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Nov 19

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Sixth Circuit continues the law’s quest to keep up with technology

In United States of America vs. Melvin Skinner (09-6497, August 14, 2012), the Sixth circuit decided a case involving the limits of the use of computer and other modern technology (here, specifically cell phones) to obtain evidence.

The Sixth Circuit summarized the factual background as follows:

The government used data emanating from Melvin Skinner’s pay-as-you-go cell phone to determine its real-time location. This information was used to establish Skinner’s location as he transported drugs along public thoroughfares between Arizona and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and his son at a rest stop near Abilene, Texas, with a motorhome filled with [illegal drugs]”

The key rationale in the Sixth Circuits, ruling follows:

When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them. This is not a case in which the government secretly placed a tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the crosscountry shipment of drugs. Unfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools. …

There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay as- you-go 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. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.”

The ACLU and other groups are seeking reconsideration of the ruling. They contend that the Skinner ruling contradicts the unanimous Supreme Court ruling in re:United States vs. Jones (No. 10–1259, January 23, 2012) that a warrant is needed for GPS tracking. The Sixth Circuit distinguished its ruling from Jones as follows:

This case is different from the recent Supreme Court decision in United States v. Jones. That case involved the secret placement of a tracking device on the defendant’s car, and the Court’s opinion explicitly relied on the trespassory nature of the police action. Although Fourth Amendment jurisprudence includes an assessment of the defendant’s reasonable expectation of privacy, that “d[oes] not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’ No such physical intrusion occurred in Skinner’s case. Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts. The majority in Jones based its decision on the fact that the police had to “physically occup[y] private property for the purpose of obtaining information.” That did not occur in this case.” [Citations omitted]

This article provides additional information regarding evidence and discovery opportunities involving cell phones.

 

About the author

David Nolte

I am a founding principal of Fulcrum Inquiry, an accounting and economic consulting firm that performs damage analysis for commercial litigation, forensic accountings, financial investigations, and business valuations. I am a Certified Public Accountant (CPA) and an Accredited Senior Appraiser (ASA), as well as having other professional credentials. I regularly serve as an expert witness involving damages measurement. My litigation-oriented resume is on Fulcrum's website.

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