In an interesting criminal case, United States v. Skinner (09-6497), the Sixth Circuit rejected a Fourth Amendment challenge by a convicted drug runner based on the government’s tracking of location data from his cell phone. Judge Rogers’ opinion chronicles the efforts by government authorities to investigate a multi-state drug operation that utilized “pay as you go” cell phones to avoid detection (unhappily for defendants, the phones happened to be equipped with GPS).  After “pinging” the defendant’s phone, officers located him at a rest stop in Texas and ultimately searched his truck, discovering over 1,000 pounds of marijuana.

The Sixth Circuit refused to find any reasonable expectation of privacy in the data given off by the cell phone: “If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.” This case continues the exploration of how the use of modern investigative techniques can be squared with the Fourth Amendment. In that respect, the Sixth Circuit distinguished the case from the Supreme Court’s recent decision in Jones, regarding a tracking device placed on a car because the officers did not physically intrude upon the defendant’s property.

In a concurrence, Judge Donald disagreed with the majority on the reasonable expectation of privacy, framing the issue as to whether society “is prepared to recognize Skinner’s expectation of privacy as legitimate.” The phone itself was not contraband, nor was its possession illegal. As a result, Judge Donald found the majority’s conclusion on the expectation of privacy in conflict with prior Sixth Circuit precedent. Judge Donald, however, ultimately found the search saved by the good faith exception in Leon.