Marijuana Runner Had No Phone GPS Privacy Right, Court Says

A man convicted of marijuana trafficking had no reasonable expectation of privacy with the mobile phone he was using when apprehended, a U.S. appeals court ruled.

Federal agents tracked Melvin Skinner to Abilene, Texas, using the global positioning signals emitted by his mobile phone, found him in possession of more than 1,100 pounds (498 kilograms of marijuana and arrested him in July 2006, the court said in its 2-1 ruling today.

Skinner appealed his convictions for trafficking and other federal crimes as well as a lower court ruling that the GPS tracking was lawful and that evidence found in the ensuing search was admissible.

“If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal,” U.S Circuit Judge John M. Rogers wrote. “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.”

Rogers’s ruling, joined by U.S. Circuit Judge Eric L. Clay, distinguished this case from a U.S. Supreme Court decision in January that curbed the ability of police to track people using GPS devices.

Need Warrant

In a fragmented ruling addressing the affixing of a GPS device to a suspect’s car without a warrant, the high court majority said police in many cases will need a warrant to track suspects using those means.

U.S. Supreme Court Justice Antonin Scalia faulted the police for encroaching upon “a protected area.”

“No such physical intrusion occurred in Skinner’s case,” Rogers and Clay said in their ruling today.

Dissenting in part, U.S. Circuit Judge Bernice Donald said the discovery of Skinner’s location by using a mobile phone constituted a search as defined by the U.S. Constitution, requiring federal agents to obtain a warrant or explain why they should be granted an exception.

Donald concurred in Skinner’s ultimate conviction on other grounds.

“We do not mean to suggest there was no reasonable expectation of privacy because Skinner’s phone was used in the commission of a crime,” Rogers and Clay said in a footnote to their opinion. “On the contrary, an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.”

The case is U.S. v. Skinner. 09-6497, U.S. Circuit Court of Appeals for the Sixth Circuit (Cincinnati).

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