A victory for LE: Warrantless tracking of cell phones

A burn phone was used to find a marijuana smuggler

The double-edged sword of technology sometimes facilitates crime, but can do the same for investigation and apprehension of the bad guys. The tech usually outpaces case law, so some geeky detective work risks creating evidence that will later be suppressed at trial.

I’m happy to say that one of the more recent developments in this area was a victory for law enforcement.

A recent decision from the U.S. Court of Appeals’ Sixth Circuit in the case of U.S. v. Skinner http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf  holds that the warrantless tracking of GPS data from a pay-as-you-go cell phone (sometimes called a “burn phone”) is admissible evidence in a criminal investigation, as it augments the ability of the police to track and observe a suspect visually.

Further, the suspect under electronic surveillance has no legitimate expectation of privacy just because he is unaware the phone he is using has GPS capability.

Melvin Skinner was a courier in a marijuana-smuggling operation run by Michael West, delivering marijuana obtained from Mexico from Arizona to various southern states. Another participant in the trafficking conspiracy purchased no-contract cell phones for use by Skinner and other couriers.

They used these phones to stay in touch with the overseers of the operation as they transported money and marijuana across state lines. Typically, one phone was used solely for communication between Skinner and West, while Skinner used another phone for calls to Philip Apodaca, the marijuana supplier in Arizona. Apodaca bought the phones and gave false subscriber information to the cellular network provider.

When DEA agents obtained wiretap orders and intercepted conversations on conventional cell phones owned by West, they learned the numbers of Skinner’s burn phones. The agents then obtained an order from a federal magistrate to get the network provider to furnish subscriber, cell site, GPS and “ping” data for Skinner’s phones.

The wiretap revealed that Skinner and his son would be driving a motorhome and a pickup truck from Tuscon to West’s home in Candler, North Carolina.

When the GPS data indicated that the phones were stationary near Abilene (Texas), DEA agents from the Lubbock (Texas) office were dispatched to the truck stop where Skinner and his son were parked.

Skinner refused to allow the agents to search the motorhome, but when a drug detection dog alerted to the presence of narcotics, they made entry and found 61 bales of marijuana totaling over 1100 lbs, the two burn phones, and two handguns.

Skinner attempted to suppress the cell phone data at trial on the grounds that discovery of the information violated his reasonable expectation of privacy under the Fourth Amendment. Skinner said that he was unaware the phones had GPS features the police could track.

The magistrate judge dismissed the claim, since the phones were not Skinner’s property and were used in a criminal enterprise. The judge further noted that the phones were used on public roads, and only supplemented the ability of the DEA to conduct their tracking visually, had they chosen to do so. It didn’t matter that Skinner didn’t believe his phone could be tracked.

The case doesn’t set out clearly how the evidence might have been considered if the phone(s) in question had been the property of the defendant and registered in his name.

Still, given the fondness the criminal community has for using anonymous burn phones in their activities, the rules established here may be helpful to investigators in other cases. 

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