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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 Circuits 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 ignored 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 editors 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 Enforcements 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.

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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 governments use of GPS to monitor its citizens to the coming of George Orwells 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 decide for the first time whether monitoring a cell phones location using GPS technology constituted a search.9 This case comment will analyze the courts holding that it is not a search because there is no reasonable expectation 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 privacy in the GPS data emitted from his cell phone because he used the cell phone in furtherance of the commission of a crimea criminal tool theory.11 This is clearly an incorrect statement of the law.12 However, the Sixth Circuit went on to rest its holding on grounds that

Hutchins, supra note 1, at 417-18. Koppel, supra note 2, at 1063-64. Hutchins, supra note 1, at 419-20; Goetz, supra note 2, at 837. Brian Davis, Note, Prying Eyes: How Government Access to Third-Party Tracking 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 Courts 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 Orwells 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.

4. 5. 6. 7.

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were independent of its criminal tool theory, grounds for which there is a basis in precedent.13 This analysis conceptualizes a persons presence in a public space as a voluntary communication to the world. This line of reasoning is off the mark. The court incorrectly analogized facts that are actually 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 monitoring of cell phones.15 Had the defense reframed the issue as whether the governments warrantless use of technology to search for an incriminating cell phone offended the Fourth Amendment, rather than whether the governments warrantless use of technology to search a cell phone for its location information offended the Fourth Amendment, a different result should have been reached. The courts 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 argument in support of a determination that an expectation of privacy in the location 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 Circuits reasoning. Part IV will provide an analysis of the courts 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 courts 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 engaged in large scale marijuana trafficking.16 Through wire taps and an informant, the DEA learned the following: (1) the marijuana supplier provid-

13. 14. 15. 16.

See infra Part IV.B-C. See infra Part IV.B-C. See infra Part IV.D. Skinner, 690 F.3d at 775.

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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 phones 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 vehicle, 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 transmitted 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 Skinners 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. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

Id. Id. at 775-76. Id. at 776. Id. Id. Id. Id. Id. Id. Id. Id. Id. at 776-77. Id. Id. at 776.

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privacy.31 The trial judge adopted the findings of the magistrate judge and for those reasons denied the defendants motion to suppress.32 Subsequently, Skinner was convicted of conspiracy to distribute and possession with intent to distribute in excess of 1000 kilograms of marijuana and was sentenced 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 Skinners alleged expectations of privacy were unreasonable.35 Concurring in the judgment, Circuit Judge Donald would have held that Skinners expectations of privacy were reasonable, 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 subjects 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 preserve as private, even in an area accessible to the public, may be constitutionally 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. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

Id. Id. at 777. Id. at 776-77. Id. at 784. Id. at 781. Id. at 784 (Donald, J., concurring). Katz v. United States, 389 U.S. 347, 347 (1967). Id. at 348-49. Id. at 352-53. Id. at 351-52 (internal citations omitted); see also Emas, supra note 7, at 128. Katz, 389 U.S. at 361 (Harlan, J., concurring); Emas, supra note 7, at 127-28.

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simultaneously increases the governments ability to investigate crime and diminishes personal privacy expectations.42 A recurring principle in the Courts precedent is that whether electronic surveillance techniques are a search under the Fourth Amendment depends on the activitys intrusiveness.43 For example, in Smith v. Maryland, the petitioner challenged the governments 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 government 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 respondents cabin.48 The Court dismissed the argument that use of the beeper constituted a search because the governments 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 rejected 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, Dows expectation of privacy in the outline of the facilitys 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 criminal 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).

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did not intrude upon the privacy of the subject where the photos could legally 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 substantially 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 information 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 marijuana 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 constitutionally protected area.60 Importantly, the Court declined the governments invitation to allow thermal imaging where the search did not actually reveal intimate details about the suspects life.61 The Court found the

Dow Chem. Co., 476 U.S. at 238-39. California v. Ciraolo, 476 U.S. 207, 209, 213-14 (1986) (holding that governments use of a plane at an altitude of 1000 feet to observe marijuana plants in defendants 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 Governments 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 articleor a person, for that matteris in an individuals home at a particular time. Indiscriminate 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. 59. 60. 61.

52. 53.

Id. at 716. Kyllo, 533 U.S. at 34-35. Id. at 34. Id. at 37, 39.

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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 constitutional.62 These cases can be roughly divided into two categories, each receiving opposite treatment by the Court.63 The Court has generally approved warrantless surveillance with sense augmenting technology.64 It only increases the efficiency of gathering information that any member of the public could have gathered without the aid of technology.65 On the other hand, the Court has been more reluctant to allow unregulated use of extrasensory technology that enables the government to obtain information intentionally kept from uninvited eyes and ears.66 These cases summarize the state of constitutional regulation over electronic surveillance technologies at the time GPS technology was developed. 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 unconstitutional intrusiveness is a useful guide for analyzing the issues presented 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 surveillance.68 C. The Supreme Courts First GPS Case In Jones, the Supreme Court decided unanimously that the installation and use of a GPS tracking device on a suspects car to record his movements on public roads for twenty-eight days was a search or seizure.69 However, the Court disagreed on what reasoning to follow in its disposiId. at 39 (emphasis in original). Hutchins, supra note 1, at 432-33. Id. at 433 ([S]urveillance that reveals information that could theoretically be attained 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.
62. 63. 64.

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tion.70 In its decision, the Court decided that Katz had not replaced the trespass 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 suspects car constituted a technical trespass, the Court held that a Fourth Amendment search or seizure had occurred without resorting to the expectation of privacy test.72 The Courts holding effectively shutdown the police practice of installing GPS devices on suspects property and monitoring their movements. However, the Court failed to address what rights, if any, a person has to be free from the warrantless monitoring of electronic location devices without an accompanying trespass.73 The majoritys invocation of a trespass theory of Fourth Amendment searches left resolution of GPS monitoring without a trespass for another case. However, the five concurring Justices expressly agreed that surveillance via GPS monitoring for twentyeight days constituted a search under the Fourth Amendment without an accompanying trespass.74 Now, with the Supreme Court precedent and a preliminary understanding 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 Skinners appeal. III. THE SKINNER COURTS REASONING A. The Majority Found that Skinners Expectation of Privacy was Unreasonable The principal issue before the Sixth Circuit was whether the DEAs 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 Sotomayor, JJ.) (finding a search on common-law trespass grounds). But see id. at 954-55 (Sotomayor, J., concurring) (agreeing with Alitos 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 occurred 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., concurring in judgment). 75. United States v. Skinner, 690 F.3d 772, 776 (6th Cir. 2012).

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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 postulated 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 protection, 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 privacy 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 protection 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 persons location on public roads and their cell site data are one in the sameboth discoverable from human observationand, 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 enhances the governments ability to see what can be observed with our natural human senses. Therefore, the governments actions were no more intru76. 77. 78. 79.

Id. at 777. Id. Id. at 774, 776-77. Id. at 777 n.1.

We do not mean to suggest that there was no reasonable expectation of privacy because Skinners 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. 81. 82. 83. 84.

United States v. Forest, 335 F.3d 942, 942 (6th Cir. 2004). Skinner, 690 F.3d at 778. Id. at 779. Id. (quoting Forest, 335 F.3d at 951). Id. at 777-79.

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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 defenses motion to suppress was properly denied.85 B. Reasoning of the Concurrence Judge Donald, concurring in judgment, found that Skinners expectation of privacy was reasonable, but the search was constitutional under the good faith doctrine.86 First, Donald concluded that Skinner had a subjective expectation of privacy based on his misbelief, or ignorance, about the phones GPS capabilities.87 Focusing next on whether that expectation was reasonable, the concurrence found that relying on the cell phones use in the commission of a crime as a foundation for the Fourth Amendment reasonableness analysis was improper, and in direct conflict with the Sixth Circuits 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 previous cases.89 Judge Donald stressed that because the DEA had not established 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 concurrences 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 location of the defendants cell phone that human senses could not have observed alone.91 Therefore, the concurrence would have held that the expectation 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

Id. at 778-79. Id. at 784 (Donald, J., concurring). Id. Id. at 784-85 (citing United States v. Hicks, 59 F. Appx 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 defendants 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.

85. 86. 87. 88.

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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 courts mention of the inherent external locatability of a cell phone seems similar enough to an argument that Skinner 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, Skinners defense failed to raise a compelling alternative argument that could have changed the result of this case and the future of cell phone tracking: use of the technology implicates privacy of the home. In sum, the courts analysis was flawed and incomplete, Skinners expectation of privacy should have been found reasonable, and cell phone tracking should be subject to the warrant requirement. A. The Skinner Courts Criminal Tool Theory Is Without Merit Despite the fact that the majority opinions footnote clarified that its reasonableness 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 defendants use of the phone appeared to weigh heavily on the courts analysis, but the courts 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, Karos expectation of privacy in the presence of a barrel of ether in his home was unreasonable because its intended 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 reasonable 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 determination that the tool has been used in furtherance of criminal activity.
93. 94. 95. 96. 97. 98. 99. 100.

See infra Part IV.A. Skinner, 690 F.3d at 777 n.1. See infra Part IV.C. Skinner, 690 F.3d at 776-77. Kyllo v. United States, 533 U.S. 27, 29 (2001). United States v. Karo, 468 U.S. 705, 708 (1984). Katz v. United States, 389 U.S. 347, 348 (1967). See supra Part II.B.

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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 expectation of privacy, and absolutely no objective expectation of privacy because communicating the numbers to the phone company is the same as conveying 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 landlineit is not. By referring to a cell phones 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 register, a users 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-cellphone-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 & SOCY BLOG (Aug. 14, 2012, 9:24 PM), http://cyberlaw.stanford.edu/blog/2012/08/updated-sixth-circuit-cell-tracking-case-travelsdown-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-requireswarrant, 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 YouPrivacy Policy,

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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 difference defeats the analogy to the pen register because in this case the employed 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 Circuits primary argument for holding that there was no expectation of privacy was that traveling on public roads is not an activity that is protected under the Fourth Amendment. Both Skinners 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 senses.108 The majority disagreed because, according to Knotts, the controlling factor was that a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.109 There are a few important flaws to the Sixth Circuits 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 ignored. Secondly, the Supreme Courts 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 purposes . . . .). 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.

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Skinner majority relies on its analogy of the facts in Knotts to find that the DEAs use of Skinners 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 outside a cabin.115 Accordingly, the beeper merely provided one link in the chain of inferences necessary to identify the location of the container. Importantly, 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 expectation 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 majoritys broad application of Knotts seems unlikely to be followed by the Supreme Court. When the Court takes up GPS monitoring again, assuming no dramatic change to the Courts composition, 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 because 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 between being seen on a given road for a moment and being monitored every time you travel.120

112. 113. 114. 115. 116. 117. 118. 119. 120.

See supra Part III.A. Knotts, 460 U.S. at 278. Id. Id. at 278, 282. Id. at 283-84. Id. Id. United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012). See supra Part II.C.

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The Sixth Circuit was wrong to treat Knotts as dispositive without further developing its analysis. One way to predict how a different court may decide this issue is to identify whether GPS is sense augmenting or extrasensory and apply the analytical trend identified in past cases.121 Arguably, Skinners 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 majoritys argument that the use of GPS in this case, like beeper technology in Knotts, augments human senses. Consistent with the Supreme Courts precedent, the surveillance 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 technology. 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. GPSs capability to identify and monitor a cell phones location supports Judge Donalds finding that GPS is extrasensory technology. Where technology allows the government to gather more information about an individuals life than an observer could learn from a lawful vantage point, the use of said technology 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 phones location. D. Tracking a Cell Phone Is a Search for the Cell Phone The preceding arguments focus on critiquing the Sixth Circuits 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 UnSee supra Part II.B. Hutchins, supra note 1, at 436. See supra Part II.A. See Katz v. United States, 389 U.S. 347, 535 (1967). Julian Sanchez, Skinning the Fourth Amendment: The Sixth Circuits Awful GPS Tracking Decision, CATO INST. (Aug. 15, 2012, 1:03 PM),
121. 122. 123. 124. 125.

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fortunately, Skinners defense did not argue, and therefore the court did not address, this critical point: the use of GPS does not locate a person; it locates 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, psychiatrist, house of worship, abortion clinic, strip club, or gay barthe publics expectation being that this information should remain private.127 More accurately, 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 further than its own precedent to discern why this poses a constitutional issue. When incriminating evidence is located in a private space, a warrant is required 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 location 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 Karos 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 government 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 technology cannot reveal intimate details of the home, only that a cell phone is inside it. One may argue that the technology is not actually capable of revealing 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-trackingdecision. 126. Id. 127. United States v. Jones, 132 S. Ct. 945, 955 (2010) (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). 128. United States v. Karo, 468 U.S. 705, 716 (1984). 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.

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was in a vehicle, a desk, on the roof, under a rock, or tucked in the lady of the houses 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 capable 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 information about a home as a beeper. Under Karo, the warrantless surveillance 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 Accordingly, because the presence of a particular phone in a private place is protected by the Fourth Amendment, and the government cannot know before 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 warrant 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, Skinners 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 trackingpotentially 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.

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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 technology will enable the government to obtain private information protected by the Fourth Amendment. Therefore, courts should require the government to obtain a warrant before using GPS to locate a cell phone in all cases unless an exception to the warrant requirement applies, and lawyers should argue as much on behalf of their clients.