Melvin Skinner was arrested in 2006 for alleged drug trafficking. He was tried and eventually convicted of two counts of drug trafficking and one count of conspiracy to commit money laundering. Law enforcement agencies where able to arrest Skinner by tracking him through his cell phone prior to his arrest in 2006. Skinner appealed his conviction claiming his Fourth Amendment rights where violated (protection from unreasonable searches and seizures) because the police did not attain a warrant to track his cell phone. In a 2-1 judgement, the U.S. Court of Appeals for the Sixth Circuit has now come back and smacked down Skinner’s appeal, effectively stating warrantless cell phone tracking is legal in the USA.
One of the two judges that ruled to deny Skinner’s appeal, Judge Rogers, states the Constitution does not protect against “erroneous expectations regarding the undetectability of their modern tools”:
The drug runners in this case used pay-as-you-go (and thus presumably more difficult to trace) cell phones to communicate during the cross-country 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.
Judge Rogers is also quick to contrast this ruling with a Supreme Court ruling made earlier this year which stated warrantless GPS tracking is not okay. According to Rogers, the difference between the Supreme Court’s ruling and this new ruling is that cell phone tracking is a feature inherently built into phones and does not involve law enforcement physically placing a tracker on people; as such, warrantless cell phone tracking is legal even though warrantless GPS tracking is not:
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.
It isn’t entirely clear where warrantless GPS tracking falls in the case of cars with built-in GPS systems.
This new ruling comes on the heels of a recent ruling by the 9th U.S. Circuit Court of Appeals which, more or less, legalized warrantless wiretaps . On paper both these rulings are sound. After all, tracking criminals and listening in on terrorists prevents tragedies. However, there is no question the potential for abuse with warrantless cell phone tracking and warrantless wiretaps is high. In fact, it is this type of abuse that the American Bill of Rights is intended to protect against. Not anymore, it seems.