sixth circuit court of appeals creates new categorical exclusion from warrant requirement in u.s. v....

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275

Sixth Circuit Court of Appeals Creates

New Categorical Exclusion From Warrant

Requirement in U.S. v. Skinner

Kevin T. Crane, Jr.*

ABSTRACT

This case comment examines the Sixth Circuit’s recent decision in United States v. Skinner. Had the panel wanted to fight for privacy rights, there

was plenty of ground for them to make their stand. Instead, the court ig-

nored the call to hold the line, allowing the assault on privacy rights to

push forward. Should it be this easy for the government to monitor and

record the location of your cell phone?

I. INTRODUCTION

The Global Positioning System (GPS) is a twenty-year-old navigation

system that utilizes twenty-nine satellites orbiting the Earth.1 Today, there are approximately 300 million subscribers to cell phone services in the United States.2 “Over 90% of cell phones currently in use have built-in GPS location-tracking capabilities . . . and allow for extremely accurate tracking - potentially within 50 feet.”3 Though not yet in use with cell

* Member of the Bar of the Commonwealth of Massachusetts; B.A. 2008, University of

Massachusetts, Amherst; J.D. 2013, New England Law | Boston. The author thanks the edi-

tors of the New England Journal on Criminal and Civil Confinement for their assistance

with this article. For B.

1. Renee McDonald Hutchins, Tied up in Knotts? GPS Technology and the Fourth

Amendment, 55 UCLA L. REV. 409, 414 (2007).

2. David Goetz, Locating Location Privacy, 26 BERKELEY TECH. L.J. 823, 836

(2011); Adam Koppel, Warranting a Warrant: Fourth Amendment Concerns Raised by Law

Enforcement’s Warrantless Use of GPS and Cellular Phone Tracking, 64 U. MIAMI L. REV.

1061, 1066 (2010).

3. Kevin McLaughlin, The Fourth Amendment and Cell Phone Location Tracking:

Where Are We?, 29 HASTINGS COMM. & ENT. L.J. 421, 427 (2007); Goetz, supra note 2, at

837.


276 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:275

phones, some GPS transmitters now have accuracy within centimeters.4 Additionally, GPS allows tracking to occur twenty-four hours a day, from anywhere in the world,5 but the functionality of GPS indoors depends on

the sophistication of the transmitter.6

The rapid growth of cell phone use and GPS technology over the past two decades has brought Fourth Amendment analysis roaring back to the debate between the need for effective law enforcement and the protection

of privacy rights.7 Many constitutional scholars have likened the govern-ment’s use of GPS to monitor its citizens to the coming of George Orwell’s 1984, and they advocate for a judicial intervention that imposes the Fourth Amendment warrant requirement in response.8

In United States v. Skinner, the Sixth Circuit Court of Appeals was

tasked with applying the rules of Fourth Amendment jurisprudence to de-cide for the first time whether monitoring a cell phone’s location using GPS technology constituted a search.9 This case comment will analyze the court’s holding that it is not a search because there is no reasonable expec-tation of privacy in the location information a person voluntarily transmits

by cell phone while traveling on public roads.10

At the outset, the significance of this decision is tarnished by a line of reasoning that is unsupported by precedent and inconsistent with the law. The court determined that a person lacks a reasonable expectation of priva-

cy in the GPS data emitted from his cell phone because he used the cell phone in furtherance of the commission of a crime—a “criminal tool” theo-ry.11 This is clearly an incorrect statement of the law.12

However, the Sixth Circuit went on to rest its holding on grounds that

4. Hutchins, supra note 1, at 417-18.

5. Koppel, supra note 2, at 1063-64.

6. Hutchins, supra note 1, at 419-20; Goetz, supra note 2, at 837.

7. Brian Davis, Note, Prying Eyes: How Government Access to Third-Party Track-

ing Data May be Impacted by United States v. Jones, 46 NEW ENG. L. REV. 843, 844-45

(2012); Hutchins, supra note 1, at 411-12; Kevin Emas, United States v. Jones: Does Katz

Still Have Nine Lives?, 24 ST. THOMAS L. REV. 116, 117 (2012).

8. Hutchins, supra note 1, at 411; Emas, supra note 7; April A. Otterberg, Note, GPS

Tracking Technology: The Case for Revisiting Knotts and Shifting the Supreme Court’s

Theory of the Public Space Under the Fourth Amendment, 46 B.C. L. REV. 661, 661-64

(2005); Jill Yung, Big Brother Is Watching: How Employee Monitoring in 2004 Brought

Orwell’s 1984 to Life and What the Law Should Do About It, 36 SETON HALL L. REV. 163,

164-65 (2005).

9. United States v. Skinner, 690 F.3d 772, 772 (6th Cir. 2012), cert. denied, 133 S.

Ct. 2851 (2013).

10. Id.

11. Id. at 777.

12. See infra Part IV.A.


2014] NEW CATEGORICAL EXCLUSION 277

were independent of its “criminal tool” theory, grounds for which there is a basis in precedent.13 This analysis conceptualizes a person’s presence in a public space as a voluntary “communication” to the world. This line of rea-

soning is off the mark. The court incorrectly analogized facts that are actu-ally dissimilar in critical ways in order to shoehorn this case into a line of precedent that would support the outcome reached.14 Sadly the defense failed to offer the court a more sensible rationale for requiring GPS moni-toring of cell phones.15 Had the defense reframed the issue as whether the government’s warrantless use of technology to search for an incriminating

cell phone offended the Fourth Amendment, rather than whether the gov-ernment’s warrantless use of technology to search a cell phone for its loca-tion information offended the Fourth Amendment, a different result should have been reached. The court’s holding incorrectly created a categorical exclusion from the Fourth Amendment for GPS monitoring of cell phones based on poor reasoning and failed to consider the most persuasive argu-

ment in support of a determination that an expectation of privacy in the lo-cation of a cell phone is reasonable.

Part II of this comment will provide the relevant facts of Skinner and the relevant case law on Fourth Amendment searches. Part III of this comment

will summarize the Sixth Circuit’s reasoning. Part IV will provide an anal-ysis of the court’s decision. This comment argues that the criminal use of a cell phone is not relevant to the constitutional analysis and concludes it is an improper foundation for the court’s reasoning. Further, this comment finds that the comparison of GPS monitoring to surveillance techniques the Supreme Court has encountered in the past suggests GPS monitoring is a

search. Lastly, notwithstanding the constitutionality of searching a cell phone for its GPS signal, monitoring of the cell phone is clearly a search of the space in which the phone is kept. When the government seeks to search a private space for a cell phone, the Constitution requires the government to first obtain a warrant.

II. BACKGROUND

A. Facts of Skinner

Between January and July of 2006, agents for the Drug Enforcement

Agency (DEA) used high-tech surveillance to investigate conspirators en-gaged in large scale marijuana trafficking.16 Through wire taps and an in-formant, the DEA learned the following: (1) the marijuana supplier provid-

13. See infra Part IV.B-C.

14. See infra Part IV.B-C.

15. See infra Part IV.D.

16. Skinner, 690 F.3d at 775.



ed his buyer and couriers with cell phones; (2) the supplier subscribed the phones to fictitious names;17 (3) a courier with the alias “Big Foot” planned to transport 1000 pounds of marijuana from Arizona to Tennessee; (4) Big

Foot would be driving a new recreation vehicle (RV) with a diesel engine; (5) the RV would be followed by an F250 pick-up truck;18 (6) both vehicles would have southern plates;19 and (7) the number of the cell phone given to Big Foot.20

In order to locate the courier during his journey, the DEA applied for a

court order authorizing the cell service provider to supply the target phone’s GPS and ping information on an ongoing or real-time basis.21 A magistrate judge approved the order.22 The GPS data allowed the DEA to follow the cell phone in real-time from Arizona to Texas.23 On July 16, at 2:00 AM, the GPS signal was motionless at a truck stop.24 After arriving on

the scene, knocking on the door of the RV, and being declined permission to search by Skinner, officers conducted a K-9 “free air sniff” around the RV that resulted in a positive hit for narcotics.25 While searching the vehi-cle, the DEA saw bales of marijuana in plain sight and found the cell phone that led them there.26

Skinner sought to suppress all the evidence obtained when the DEA

searched the RV.27 The defense argued that the monitoring of real-time GPS constituted a Fourth Amendment search and seizure of the data trans-mitted from the cell phone.28 Accordingly, Skinner claimed that a warrant was required to monitor the cell phone, failure to procure a warrant violated

his Fourth Amendment rights, and the evidence seized from the RV must be suppressed because it was fruit of the poisonous tree.29

Magistrate Judge Guyton denied Skinner’s motion to suppress on the ground that he lacked standing to challenge the constitutionality of the

search.30 Further, Judge Guyton agreed that use of the phone on public roads and in furtherance of a crime foreclosed any legitimate expectation of

17. Id.

18. Id. at 775-76.

19. Id. at 776.

20. Id.

21. Id.

22. Id.

23. Id.

24. Id.

25. Id.

26. Id.

27. Id.

28. Id. at 776-77.

29. Id.

30. Id. at 776.



privacy.31 The trial judge adopted the findings of the magistrate judge and for those reasons denied the defendant’s motion to suppress.32 Subsequent-ly, Skinner was convicted of conspiracy to distribute and possession with

intent to distribute in excess of 1000 kilograms of marijuana and was sen-tenced to 235 months in prison.33

On appeal, the Sixth Circuit affirmed the decisions of the courts below.34 Circuit Judge Rogers, joined by Circuit Judge Clay, held that no Fourth

Amendment violations occurred because Skinner’s alleged expectations of privacy were unreasonable.35 Concurring in the judgment, Circuit Judge Donald would have held that Skinner’s expectations of privacy were rea-sonable, but that the illegally obtained evidence should not be suppressed because the good faith exception to the warrant requirement applied in this case.36

B. The Katz Standard: The Use of GPS Data and Search Precedent

In Katz v. United States,37 the principal issue before the Court was whether using a hidden device to hear and record conversations made from a public telephone booth constituted a Fourth Amendment search.38 Prior to

this case, government surveillance was not a search unless it involved some sort of physical invasion in violation of the subject’s property interests.39 The Katz Court rejected this trespass-based approach, explaining that:

The Fourth Amendment protects people, not places. What a person

knowingly exposes to the public, even in his own home or office, is not

a subject of Fourth Amendment protection. But what he seeks to pre-

serve as private, even in an area accessible to the public, may be consti-

tutionally protected.40

Following Katz, a search has taken place under the Fourth Amendment if “a person . . . exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.”41 Advances in electronic surveillance technology have forced the Fourth Amendment to evolve contemporaneously because technology

31. Id.

32. Id. at 777.

33. Id. at 776-77.

34. Id. at 784.

35. Id. at 781.

36. Id. at 784 (Donald, J., concurring).

37. Katz v. United States, 389 U.S. 347, 347 (1967).

38. Id. at 348-49.

39. Id. at 352-53.

40. Id. at 351-52 (internal citations omitted); see also Emas, supra note 7, at 128.

41. Katz, 389 U.S. at 361 (Harlan, J., concurring); Emas, supra note 7, at 127-28.



simultaneously increases the government’s ability to investigate crime and diminishes personal privacy expectations.42 A recurring principle in the Court’s precedent is that whether electronic surveillance techniques are a

search under the Fourth Amendment depends on the activity’s intrusive-ness.43

For example, in Smith v. Maryland, the petitioner challenged the gov-ernment’s use of a pen register to secretly record the numbers he called.44

The Court held this expectation of privacy to be unreasonable.45 The Court noted that before automation an operator would have been told the numbers in order to connect the call.46 The Court in Smith reasoned that if the gov-ernment could constitutionally compel an operator to testify about the numbers he received, then the government may constitutionally record the same information using a pen register because the technology was no more

intrusive than what was expected before telephone companies automated.47

In United States v. Knotts, the government installed a radio transmitter (beeper) inside a container of chloroform, tailed the purchaser until it lost visual contact, and used the beeper to relocate the chloroform nearby the

respondent’s cabin.48 The Court dismissed the argument that use of the beeper constituted a search because the government’s use of this electronic surveillance device did not intrude on privacy where the vehicle was in view of a public road.49

In another example, Dow Chemical Co. v. United States, the Court re-

jected a claim that taking aerial photographs constituted a search.50 In a stunningly prescient moment, the Court remarked: “[i]t may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a

warrant.”51 However, Dow’s expectation of privacy in the “outline of the facility’s buildings and equipment” was unreasonable because the camera

42. Matthew Radler, Note, Privacy is the Problem: United States v. Maynard and a

Case for a New Regulatory Model for Police Surveillance, 80 GEO. WASH. L. REV. 1209,

1217 (2012) (“Public-conduct surveillance technologies may provoke some unease among

privacy advocates, but they are also very effective at detecting behavior indicative of crimi-

nal activity.”).

43. Hutchins, supra note 1, at 430.

44. Smith v. Maryland, 442 U.S. 735, 737 (1979).

45. Id. at 744.

46. Id. at 744-45.

47. Id.

48. United States v. Knotts, 460 U.S. 276, 278 (1983).

49. Id. at 281-82.

50. Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986).

51. Hutchins, supra note 1, at 439 (quoting Dow Chem. Co., 476 U.S. at 238).



did not intrude upon the privacy of the subject where the photos could le-gally be taken from public airspace with technology in common use.52 On the same day Dow was decided, the Court rejected a Fourth Amendment

claim in California v. Ciraolo on substantially the same facts and for sub-stantially the same reasons.53

In contrast to Smith, Knotts, Ciraolo, and Dow, the challenges presented in United States v. Karo54 and Kyllo v. United States55 yielded different

outcomes. In Karo, the Court found that a search did occur when the same beeper technology used in Knotts was used to locate a container of ether in a residence rather than to follow the object in a car.56 To distinguish Knotts, the Court found that in Karo the beeper technology was used to gather in-formation about the contents of a house, which would have been otherwise unavailable without obtaining a search warrant.57 The critical fact was that

the suspects withdrew the object from public view and into privacy.58

In Kyllo, the Court held that a search occurred where the government used a thermal imager to detect the heat of lamps Kyllo used to grow mari-juana inside his home.59 The Court reasoned that this “sense-enhancing”

technology allowed the government to obtain “information that could not otherwise have been obtained without physical ‘intrusion into a constitu-tionally protected area.’”60 Importantly, the Court declined the govern-ment’s invitation to allow thermal imaging where the search did not actual-ly reveal intimate details about the suspect’s life.61 The Court found the

52. Dow Chem. Co., 476 U.S. at 238-39.

53. California v. Ciraolo, 476 U.S. 207, 209, 213-14 (1986) (holding that govern-

ment’s use of a plane at an altitude of 1000 feet to observe marijuana plants in defendant’s

backyard did not constitute a search where police saw what any member of the public could

lawfully have seen).

54. United States v. Karo, 468 U.S. 705, 705 (1984).

55. Kyllo v. United States, 533 U.S. 27, 27 (2001).

56. Karo, 468 U.S. at 714-15.

57. Id. at 715.

We cannot accept the Government’s contention that it should be completely

free . . . to determine by means of an electronic device, without a warrant and

without probable cause or reasonable suspicion, whether a particular article—or a

person, for that matter—is in an individual’s home at a particular time. Indiscrim-

inate monitoring of property that has been withdrawn from public view would

present far too serious a threat to privacy interests in the home to escape entirely

some sort of Fourth Amendment oversight.

Id.

58. Id. at 716.

59. Kyllo, 533 U.S. at 34-35.

60. Id. at 34.

61. Id. at 37, 39.



distinction to “be wrong in principle [and] impracticable in application” because the home is constitutionally protected from intrusion regardless of the “quality or quantity of information obtained,” and “no police officer

would be able to know in advance whether” the search was constitution-al.62

These cases can be roughly divided into two categories, each receiving opposite treatment by the Court.63 The Court has generally approved war-

rantless surveillance with “sense augmenting” technology.64 It only in-creases the efficiency of gathering information that any member of the pub-lic could have gathered without the aid of technology.65 On the other hand, the Court has been more reluctant to allow unregulated use of “extrasenso-ry” technology that enables the government to obtain information inten-tionally kept from uninvited eyes and ears.66

These cases summarize the state of constitutional regulation over elec-tronic surveillance technologies at the time GPS technology was devel-oped. The constitutional analysis is largely fact specific. However, judges’ recurrent utilization of the comparison between technological capabilities

and the human senses to distinguish constitutional investigations from un-constitutional intrusiveness is a useful guide for analyzing the issues pre-sented by GPS surveillance. In addition, United States v. Jones,67 though it raised more questions about the future of GPS surveillance than provided answers, offers insight into the Justices’ opinion of limitless GPS surveil-lance.68

C. The Supreme Court’s First GPS Case

In Jones, the Supreme Court decided unanimously that the installation and use of a GPS tracking device on a suspect’s car to record his move-ments on public roads for twenty-eight days was a search or seizure.69

However, the Court disagreed on what reasoning to follow in its disposi-

62. Id. at 39 (emphasis in original).

63. Hutchins, supra note 1, at 432-33.

64. Id. at 433 (“[S]urveillance that reveals information that could theoretically be at-

tained through one of the five human senses.”).

65. See United States v. Knotts, 460 U.S. 276, 282 (1983); Smith v. Maryland, 442

U.S. 735, 744 (1979); Dow Chem. Co. v. United States, 476 U.S. 227, 238 (1986) (“The

mere fact that human vision is enhanced somewhat, at least to the degree here, does not give

rise to constitutional problems.”).

66. Hutchins, supra note 1, at 436 (“Extrasensory surveillance [] reveals information

otherwise indiscernible to the unaided human senses.”); see Kyllo, 533 U.S. at 34 (holding

that use of a thermal imager to detect heat not visible to the naked eye was a search).

67. United States v. Jones, 132 S. Ct. 945, 945 (2012).

68. Emas, supra note 7, at 165.

69. Jones, 132 S. Ct. at 948-49.



tion.70 In its decision, the Court decided that Katz had not replaced the tres-pass test used before it; rather, the Katz test supplemented the common-law understanding of a Fourth Amendment search.71 Accordingly, because the

installation of a GPS tracking device on the suspect’s car constituted a technical trespass, the Court held that a Fourth Amendment search or sei-zure had occurred without resorting to the expectation of privacy test.72

The Court’s holding effectively shutdown the police practice of in-

stalling GPS devices on suspects’ property and monitoring their move-ments. However, the Court failed to address what rights, if any, a person has to be free from the warrantless monitoring of electronic location devic-es without an accompanying trespass.73 The majority’s invocation of a trespass theory of Fourth Amendment searches left resolution of GPS mon-itoring without a trespass for another case. However, the five concurring

Justices expressly agreed that surveillance via GPS monitoring for twenty-eight days constituted a search under the Fourth Amendment without an accompanying trespass.74

Now, with the Supreme Court precedent and a preliminary understand-

ing of the technology at issue in mind, Part III presents the reasoning the Sixth Circuit relied on to decide in favor of the United States in Skinner’s appeal.

III. THE SKINNER COURT’S REASONING

A. The Majority Found that Skinner’s Expectation of Privacy was Unreasonable

The principal issue before the Sixth Circuit was whether the DEA’s “use of GPS location information emitted from his cell phone was a warrantless

search that violated the Fourth Amendment.”75 The court stated, “[i]f a tool used to transport contraband gives off a signal that can be tracked for loca-

70. See id. at 949 (Scalia, J., with Roberts, C.J., and Kennedy, Thomas, and So-

tomayor, JJ.) (finding a search on common-law trespass grounds). But see id. at 954-55 (So-

tomayor, J., concurring) (agreeing with Alito’s analysis under the Katz standard but joining

the Court to resolve the matter under the common-law trespass rule); id. at 964 (Alito, J.,

concurring in judgment with Ginsberg, Breyer, and Kagan, JJ.) (concluding a search oc-

curred under the Katz standard because society does not expect the government will be able

to secretly watch and record every movement an individual makes over long periods of

time).

71. Id. at 953.

72. Emas, supra note 7, at 154.

73. Id. at 154-55.

74. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring); id. at 964 (Alito, J., concur-

ring in judgment).

75. United States v. Skinner, 690 F.3d 772, 776 (6th Cir. 2012).



tion, certainly police can track the signal. The law cannot be that a criminal is entitled to rely on the untrackability of his tools.”76 The majority postu-lated that, if they were to allow Skinner to rely on his mistaken belief that

his phone could not be tracked by GPS as a basis for constitutional protec-tion, then fugitives could rely on mistakenly believing that search hounds could not smell them, and the driver of a getaway car could exclude the identification of his license plate or the color of the vehicle if he thought no one saw it.77

The Skinner court mentioned repeatedly that the use of a cell phone in

the commission of a crime diminished any reasonable expectation of priva-cy Skinner had.78 However, the court relinquished in a footnote that there could be no reasonable expectation of privacy in the location of a cell phone notwithstanding its use in furtherance of a crime.79 Thus, Skinner

creates a categorical exclusion for all “tools” from Fourth Amendment pro-tection if they are inherently traceable.

The court also found that its decision in United States v. Forest80 was controlling precedent.81 In Forest, the Sixth Circuit “rejected the argument

that . . . [a person has] a legitimate expectation in the cell site data . . . .”82 Relying on Knotts, Forest held that a person’s location on public roads and their cell site data are one in the same—both discoverable from human ob-servation—and, therefore, there is no legitimate expectation of privacy.83 The court analogizes the cell phone location information in Forest, the pen register in Smith, and the beeper in Knotts by reasoning that the information

at issue in each instance could have otherwise been gathered through lawful police surveillance.84

In summary, Skinner reasoned that using GPS technology merely en-hances the government’s ability to see what can be observed with our natu-

ral human senses. Therefore, the government’s actions were no more intru-

76. Id. at 777.

77. Id.

78. Id. at 774, 776-77.

79. Id. at 777 n.1.

We do not mean to suggest that there was no reasonable expectation of privacy

because Skinner’s phone was used in the commission of a crime, or that the cell

phone was illegally possessed. On the contrary, an innocent actor would similarly

lack a reasonable expectation of privacy in the inherent locatability of a tool that

he or she bought.

Id.

80. United States v. Forest, 335 F.3d 942, 942 (6th Cir. 2004).

81. Skinner, 690 F.3d at 778.

82. Id. at 779.

83. Id. (quoting Forest, 335 F.3d at 951).

84. Id. at 777-79.



sive than a passerby watching Skinner drive down the highway. Where the government did not intrude upon a reasonable expectation of privacy, there was no constitutional search, and on this basis, the defense’s motion to

suppress was properly denied.85

B. Reasoning of the Concurrence

Judge Donald, concurring in judgment, found that Skinner’s expectation of privacy was reasonable, but the search was constitutional under the

“good faith” doctrine.86 First, Donald concluded that Skinner had a subjec-tive expectation of privacy based on his misbelief, or ignorance, about the phone’s GPS capabilities.87 Focusing next on whether that expectation was reasonable, the concurrence found that relying on the cell phone’s use in the commission of a crime as a foundation for the Fourth Amendment rea-sonableness analysis was improper, and in direct conflict with the Sixth

Circuit’s own precedent and weight of authority.88

Next, the concurrence distinguished the facts of Skinner from the facts of Forest and Knotts based on what the DEA agents knew before using the technology in this case compared with what the government knew in previ-

ous cases.89 Judge Donald stressed that because the DEA had not estab-lished visual surveillance of Skinner before using the GPS technology, the government could not claim it used technology to aid in observation that would have been possible using only human senses.90 In the concurrence’s opinion, the use of technology in this case did not augment human senses; rather, the use of technology in this case gathered information about the lo-

cation of the defendant’s cell phone that human senses could not have ob-served alone.91 Therefore, the concurrence would have held that the expec-tation of privacy was reasonable because no individual would have believed, based on the facts that the government knew at the time, that it was possible to locate Skinner using the human senses.92

85. Id. at 778-79.

86. Id. at 784 (Donald, J., concurring).

87. Id.

88. Id. at 784-85 (citing United States v. Hicks, 59 F. App’x 703, 706 (6th Cir.

2003)); United States v. Pitts, 322 F.3d 449, 458 (7th Cir. 2003) (“[L]egitimate expectation

of privacy does not depend on the nature of the defendant’s activities, whether innocent or

criminal.”); United States v. Field, 113 F.3d 449, 458 (2d Cir. 1997); United States v.

Taborda, 635 F.2d 131, 139 n.10 (2d Cir. 1980).

89. Skinner, 690 F.3d at 786 (Donald, J., concurring).

90. Id.

91. Id.

92. Id.



IV. ANALYSIS

The Skinner majority resolved this case incorrectly, partly because of a flawed analysis, and partly because the Skinner defense failed to raise a

critical argument. As a preliminary matter, the “criminal tool” analysis is inconsistent with Supreme Court precedent and an improper foundation for its conclusion.93 However, the court’s mention of the “inherent external lo-catability” of a cell phone seems similar enough to an argument that Skin-ner voluntarily communicated his cell phone data to third parties to explore that analysis.94 Next, the facts in Knotts bear one important similarity to the

facts of the present case, but the differences the Sixth Circuit overlooked merit a different result.95 Finally, Skinner’s defense failed to raise a com-pelling alternative argument that could have changed the result of this case and the future of cell phone tracking: use of the technology implicates pri-vacy of the home. In sum, the court’s analysis was flawed and incomplete, Skinner’s expectation of privacy should have been found reasonable, and

cell phone tracking should be subject to the warrant requirement.

A. The Skinner Court’s Criminal Tool Theory Is Without Merit

Despite the fact that the majority opinion’s footnote clarified that its rea-sonableness determination did not rely on illegal use or possession of a cell

phone, one cannot ignore the volume of space Judge Rogers devoted to the subject.96 The defendant’s use of the phone appeared to weigh heavily on the court’s analysis, but the court’s reliance is without merit. If this line of reasoning were true, Kyllo lacked a legitimate expectation of privacy in the bulbs used to illegally grow marijuana because they were used as a tool in the commission of a crime.97 Also, Karo’s expectation of privacy in the

presence of a barrel of ether in his home was unreasonable because its in-tended use was to manufacture cocaine.98 Further, Katz may not have had a reasonable expectation of privacy that the phone he was using to commit a crime could be tapped.99 However, these three individuals did have reason-able expectations of privacy despite their criminal activity.100 Therefore, the “criminal tool” theory directly conflicts with Supreme Court precedent.

A critical failure to the “criminal tool” argument is that it requires a de-termination that the tool has been used in furtherance of criminal activity.

93. See infra Part IV.A.

94. Skinner, 690 F.3d at 777 n.1.

95. See infra Part IV.C.

96. Skinner, 690 F.3d at 776-77.

97. Kyllo v. United States, 533 U.S. 27, 29 (2001).


99. Katz v. United States, 389 U.S. 347, 348 (1967).

100. See supra Part II.B.



However, this improper reasoning ignores the truth that many Fourth Amendment cases arise specifically because an object was searched that contained information relevant to the commission of a crime.101 In other

words, the object to be searched will not be private because it is used for criminal gains, but the government will not know it was used for criminal gains until after it was searched. This is nothing more than an attempt to circumvent established constitutional protections by way of circular logic. For these reasons, lawyers and judges reading Skinner should ignore the “criminal tool” argument.

B. “Voluntary Transmission” and the Third Party Disclosure Doctrine

The foundation for the principle that communications voluntarily made to third parties carry no legitimate expectation of privacy was explained in Smith.102 The Court held that there was most likely no subjective expecta-

tion of privacy, and absolutely no objective expectation of privacy because communicating the numbers to the phone company is the same as convey-ing the information to the public.103 The issue then is whether the transfer of GPS data to a cell service provider is sufficiently analogous to dialing a number on a landline—it is not.

By referring to a cell phone’s “inherent external locatibility” the Sixth

Circuit seems to believe that cell phones are actively transmitting their GPS location to the service provider.104 Thus, by way of analogy to the pen reg-ister, a user’s location is transmitted to the public. Whether cell service providers receive and use GPS location information for any or all users is

unclear and may depend on which services the user has enrolled in.105

101. Skinner, 690 F.3d at 785 (Donald, J., concurring) (quoting United States v. Fields,

113 F.3d 313, 321 (2d Cir. 1997)).

102. Smith v. Maryland, 442 U.S. 735, 744-45 (1979).

103. Id.

104. Skinner, 690 F.3d at 777 n.1.

105. Compare Orin Kerr, Sixth Circuit Rules that Pinging a Cell Phone to Determine

Its Location Is Not a Fourth Amendment “Search,” THE VOLOKH CONSPIRACY (Aug. 14,

2012, 2:02 PM), http://www.volokh.com/2012/08/14/sixth-circuit-rules-that-pinging-a-cell-

phone-to-determine-its-location-is-not-a-fourth-amendment-search/, and Jennifer Granick,

Updated: Sixth Circuit Cell Tracking Case Travels Down the Wrong Road, STAN. L. SCH.

CTR. FOR INTERNET & SOC’Y BLOG (Aug. 14, 2012, 9:24 PM),

http://cyberlaw.stanford.edu/blog/2012/08/updated-sixth-circuit-cell-tracking-case-travels-

down-wrong-road#.UCsknnDKN1U.twitter, and Greg Nojem, Tracking Big Foot: Why GPS

Location Requires a Warrant, CTR. FOR DEMOCRACY & TECH. (Aug. 17, 2012),

https://www.cdt.org/blogs/greg-nojeim/1708tracking-big-foot-why-gps-location-requires-

warrant, with Privacy Policy, AT&T,

http://www.att.com/Common/about_us/privacy_policy/print_policy.html (last visited Sept.

29, 2013) (stating that “wireless location” is an industry term that may include information

from GPS technology, and wireless location is collected), and About You–Privacy Policy,



However, the fact that the service provider had to continuously “ping” the phone in order to locate its GPS signal rather than just provide the DEA with information it was already gathering suggests that the company was

not gathering the data prior to the court order in this instance.106 This dif-ference defeats the analogy to the pen register because in this case the em-ployed technology was not used to record information that the third party was already passively receiving.107 Unfortunately, the opinion and related filings are missing facts that are necessary to fully analyze this issue.

C. Location Information and Public Roads: Knotts Comes Close, but

Is Not Binding

The Sixth Circuit’s primary argument for holding that there was no ex-pectation of privacy was that traveling on public roads is not an activity that is protected under the Fourth Amendment. Both Skinner’s defense and

the concurrence argued that Knotts was not controlling because the DEA could not “identify the target of their search” prior to finding where the technology led them; therefore, the technology did not “augment the sens-es.”108 The majority disagreed because, according to Knotts, the controlling factor was that “a person traveling in an automobile on public thorough-fares has no reasonable expectation of privacy in his movements from one

place to another.”109

There are a few important flaws to the Sixth Circuit’s reliance on this particular statement from the Knotts opinion. First, the context within which the Knotts Court made that statement is significant, but it was ig-

nored. Secondly, the Supreme Court’s decision in Jones suggests that a broad interpretation of Knotts is improper.110 Finally, a comparison of the technology reveals enough differences between beepers and GPS receivers in cell phones to justify reaching a different result.

1. The Government Does Not Have Free Range to Surreptitiously

Monitor Travel

Knotts and Skinner have one similarity: both cases involve technology that revealed the location of an object traveling on public roads.111 The

VERIZON, http://www.verizon.com/about/privacy/policy/#wireinfo (last visited Sept. 29,

2013) (“Verizon Wireless collects and uses mobile device location data for a variety of pur-

poses . . . .”).

106. Skinner, 690 F.3d at 776.

107. Kerr, supra note 105.

108. Skinner, 690 F.3d at 786 (Donald, J., concurring).

109. Id. at 778 (quoting United States v. Knotts, 460 U.S. 276, 281 (1983)).

110. See supra notes 30-31 and accompanying text.

111. Skinner, 690 F.3d at 777-78.



Skinner majority relies on its analogy of the facts in Knotts to find that the DEA’s use of Skinner’s GPS signal amounted to an augmentation of the human senses.112 However, the Skinner opinion did not acknowledge that

in Knotts, the government watched the suspects load the container into a car, drive to a house, transfer the container to a different car, and drive over state lines before visual contact was lost.113 The government then used the beeper to identify its general location.114 From the road, the government identified the vehicle they had seen transporting the container earlier out-side a cabin.115 Accordingly, the beeper merely provided one link in the

chain of inferences necessary to identify the location of the container. Im-portantly, the government could have filled in that step using only their natural vision by sweeping the area.

The statement made in Knotts, which found that a reasonable expecta-

tion of privacy does not exist in movement from one place to another, does not stand for the proposition that a person has no legitimate expectation of privacy in all of their travels.116 The Court stated its holding did not apply to technology-aided, twenty-four hour, dragnet government surveillance.117 Rather, the Court wisely pointed out that just because a person gets into a vehicle and drives away does not mean the government has to forget that

they know what the passengers were carrying.118

In addition, the Skinner majority’s broad application of Knotts seems un-likely to be followed by the Supreme Court. When the Court takes up GPS monitoring again, assuming no dramatic change to the Court’s composi-

tion, the Jones decision suggests that the Court will limit the interpretation of Knotts relied on in Skinner. According to Skinner, Knotts stands for the rule that an expectation of privacy on a public road is never reasonable be-cause any member of the public could see the individual.119 However, the Supreme Court is unlikely to take Knotts that far if it were to decide this issue. As five Justices agreed in Jones, there is a significant difference be-

tween being seen on a given road for a moment and being monitored every time you travel.120

112. See supra Part III.A.

113. Knotts, 460 U.S. at 278.

114. Id.

115. Id. at 278, 282.

116. Id. at 283-84.

117. Id.

118. Id.

119. United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012).

120. See supra Part II.C.



2. The Technologies Are Distinguishable

The Sixth Circuit was wrong to treat Knotts as dispositive without fur-ther developing its analysis. One way to predict how a different court may

decide this issue is to identify whether GPS is sense augmenting or extra-sensory and apply the analytical trend identified in past cases.121 Arguably, Skinner’s location was obtainable through visual observation. For example, the police could have orchestrated a massive net of officers watching all the roadways leading from Arizona to Tennessee to locate and follow vehicles matching the description. These facts support the majority’s argument that

the use of GPS in this case, like beeper technology in Knotts, augments human senses. Consistent with the Supreme Court’s precedent, the surveil-lance would therefore be constitutional.122

On the other hand, it is undeniable that GPS is capable of much more

than human sight alone. In this very case, GPS monitoring accomplished a feat that would have been virtually impossible without the aid of technolo-gy. At the time the GPS tracking began, the government did not know who or where Skinner was; what route Skinner and his son were taking; when on July 12 they were leaving Tucson; or where they were heading.123 Any member of the public could have theoretically seen Skinner, but practically

speaking, no member of the public could have identified that it was Skinner they were watching with the available description. GPS’s capability to identify and monitor a cell phone’s location supports Judge Donald’s find-ing that GPS is extrasensory technology. Where technology allows the government to gather more information about an individual’s life than an observer could learn from a lawful vantage point, the use of said technolo-

gy intrudes upon a reasonable expectation of privacy.124 Therefore, the government should be required to obtain a warrant based on probable cause before using GPS to monitor a phone’s location.

D. Tracking a Cell Phone Is a Search for the Cell Phone

The preceding arguments focus on critiquing the Sixth Circuit’s reading of the Knotts decision. They conclude that a more conservative reading of the rule in Knotts is proper, and that the facts of Skinner merit a different result than the one reached in Knotts. However, these arguments are not even the most important criticism of the Skinner opinion, which is not that Knotts was applied incorrectly, but that Knotts did not apply at all.125 Un-

121. See supra Part II.B.

122. Hutchins, supra note 1, at 436.

123. See supra Part II.A.

124. See Katz v. United States, 389 U.S. 347, 535 (1967).

125. Julian Sanchez, Skinning the Fourth Amendment: The Sixth Circuit’s Awful GPS

Tracking Decision, CATO INST. (Aug. 15, 2012, 1:03 PM),



fortunately, Skinner’s defense did not argue, and therefore the court did not address, this critical point: the use of GPS does not locate a person; it lo-cates a phone.126

In Jones, five members of the Supreme Court were concerned that GPS has the ability to reveal whether a person is at a political office, psychia-trist, house of worship, abortion clinic, strip club, or gay bar—the public’s expectation being that this information should remain private.127 More ac-

curately, GPS tracking reveals whether or not the target receiver is located in any of these places or in any one home. The Court needs to look no fur-ther than its own precedent to discern why this poses a constitutional issue. When incriminating evidence is located in a private space, a warrant is re-quired for the government to search the space for the evidence.128

In Karo, the government was not allowed to use a beeper to track the lo-

cation of a container in a home.129 The principle rests on the fact that the government would not have been able to follow the container from its origin to its delivery at Karo’s cabin without physically searching two homes along the way.130 Thus, the government learned the location of an

object in a home via technology and could not have done so otherwise without a physical search.131 The same was true in Kyllo where the gov-ernment learned about the presence of heat lamps in a residence through the use of technology.132 A search of a cell phone using GPS satellites and radio towers may reveal the presence of a cell phone in a home in the same way that a search for heat lamps using a thermal imager reveals details

about the privacy of a home.

There are two natural rebuttals to this argument. First, that GPS technol-ogy cannot reveal intimate details of the home, only that a cell phone is in-side it. One may argue that the technology is not actually capable of reveal-

ing private information about a home or other private locations because the technology can only locate the phone to a particular area. As reviewed above, the capability of GPS receivers to locate a cell phone depends on a number of factors.133 A rebuttal could suggest that the government may learn a phone is on a given farm using GPS but could not know whether it

http://www.cato.org/blog/skinning-fourth-amendment-sixth-circuits-awful-gps-tracking-

decision.

126. Id.

127. United States v. Jones, 132 S. Ct. 945, 955 (2010) (Sotomayor, J., concurring); id.

at 964 (Alito, J., concurring).


129. Id.

130. Id. at 714-15.

131. Id. at 716.

132. Kyllo v. United States, 533 U.S. 27, 34-35 (2001).

133. See supra Part II.C.



was in a vehicle, a desk, on the roof, under a rock, or tucked in the lady of the house’s undergarments. The location will also play a factor because it will require less accuracy to locate the person in possession of the phone if

he or she lives in a remote cabin compared to an urban high-rise or college dorm.

This argument should fail because GPS is capable of accurately locating a cell phone to a particular house.134 That may be the extent of what the

GPS reveals in some instances; however, the beeper used in Karo was ca-pable of far less accuracy than GPS and was held to reveal too much about a home.135 GPS monitoring can provide law enforcement with as much in-formation about a home as a beeper. Under Karo, the warrantless surveil-lance of a home does not have to provide the government with any more information about the home than a beeper would to offend the Constitution.

The second argument will challenge that the use of GPS will not reveal details about a private location in every instance, so the government should be able to use the technology to locate a phone. For example, possession of a phone will be knowingly exposed to the public when used in a vehicle or

on a public street. However, the Court spoke clearly in Kyllo when it said a search cannot be retroactively legitimized on the basis that intimate details of the home were not actually revealed because the government could not prospectively know the search would not reveal such information.136 Ac-cordingly, because the presence of a particular phone in a private place is protected by the Fourth Amendment, and the government cannot know be-

fore it performs a search where a particular phone is located, all uses of GPS to monitor the location of a cell phone should be subject to the war-rant requirement.

V. CONCLUSION

The principal issue before the Sixth Circuit was whether a person has a reasonable expectation of privacy in the GPS signal of their cell phone or the location of their person. The court incorrectly held against Melvin Skinner. The criminal tool argument is unsupported and inconsistent with Fourth Amendment precedent. Based on the facts contained in the record, Skinner’s claim to a reasonable expectation of privacy should not have

been defeated based on the Third-Party Disclosure doctrine. Additionally,

134. See McLaughlin, supra note 3, at 437 (“Over 90% of cell phones currently in use

have built-in GPS location-tracking capabilities that incorporate longitude and latitude using

the already-existing GPS satellite infrastructure, and allow for extremely accurate track-

ing—potentially within 50 feet.”).

135. Karo, 468 U.S. at 708 (stating the beeper could locate what row of storage lockers

the ether was in, but the beeper was not accurate enough to tell which locker).

136. Kyllo, 533 U.S. at 39.



the analogy that using GPS technology to locate a phone was merely a proxy for observing the possessor on a public road stretches the facts of this case and the meaning of the supporting case law beyond reason. Lastly,

GPS tracking is more than a search of the cell phone; it is a search for the cell phone. In some instances, the search for a cell phone using GPS tech-nology will enable the government to obtain private information protected by the Fourth Amendment. Therefore, courts should require the govern-ment to obtain a warrant before using GPS to locate a cell phone in all cas-es unless an exception to the warrant requirement applies, and lawyers

should argue as much on behalf of their clients.

sixth circuit court of appeals creates new categorical exclusion from warrant requirement in u.s. v....

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