Is Cellphone Tracking Okay If There’s No Trespass? A Sixth Circuit Panel Says Yes: Part Two in a Two-Part Series of Columns

Part One of this two-part series of columns appeared here on Justia’s Verdict on Wednesday, October 3. –Ed.  

When I teach constitutional criminal procedure (as I am doing this semester), I tell students that when the Supreme Court speaks of “reasonable” expectations of privacy—the violation of which constitutes a Fourth Amendment “search” requiring a warrant (or some other justification)—it may be referring to one of two distinct things.

First, the Court often uses “reasonable” to mean “empirically realistic,” thus asking whether—in the absence of police surveillance—it would be realistic for people to expect privacy under the circumstances at issue.  For instance, if I yell secrets out my apartment window to a friend across the street, it would be unreasonable, in this sense, for me to expect those secrets to remain private.  Any pedestrian or neighbor could listen to what I say and, accordingly, police may listen as well, without their needing any Fourth Amendment justification for doing so.  The Court says something along these lines when it allows government agents to pretend to be friends with civilians and thereby gather information. It is unreasonable (unrealistic), on this theory, to expect privacy in what you divulge to your friends, because friends often betray confidences.

At other times, however, the Court uses the word “reasonable” in a second way.  Specifically, it uses the word in a normative sense and asks not whether it is realistic to expect privacy but, instead, whether such an expectation is morally justifiable—whether society would be inclined to validate the expectation.  An example of this approach is the case of Illinois v. Caballes, which held that a dog sniff by a police dog does not constitute a Fourth Amendment search, because people lack a reasonable expectation of privacy in the fact that they have illicit drugs in their vehicle (the only information that trained narcotics dogs will convey).

In Caballes, it was empirically quite realistic and thus “reasonable” in the first sense for people to expect to avoid drug detection, absent police surveillance.  In general, when people carry luggage containing illicit drugs, they can realistically expect that—absent police dog surveillance—the fact that they are carrying such drugs will remain unknown.  The reason that the Court nonetheless rejected the argument that a police dog sniff constitutes a search, is that from a normative standpoint—and moving to the second sense of “reasonable”—the Court judged that people are not morally entitled to privacy in the simple fact that they are violating the law, even if that expectation is eminently realistic and thus “reasonable” from an empirical point of view.

In Skinner, the “reasonableness” question is whether a person reasonably expects to have privacy in his comings and goings on the public roads, despite the fact that his cellular phone contains a device that sends out data revealing its real-time location.

Though Jones relies on trespass, it does not in any way overrule the reasonable expectations of privacy test announced in Katz v. United States.  From the standpoint of empirically reasonable expectations, it would seem quite realistic for people to expect their whereabouts to be generally unknown by civilians as a cumulative matter, even if individual civilians might on occasion see a person at a given place.  What about as a normative matter?

This is where the Sixth Circuit seemingly tries to get mileage out of the fact that respondents are “criminals” using “modern technological devices to carry out criminal acts and to reduce the possibility of detection.”  In other words, the Sixth Circuit suggests that criminals have no legitimate right to demand privacy in the locations at which they conduct their crimes.  That might seem fair enough, at first glance.  As the Sixth Circuit openly concedes in a footnote, however, “an innocent actor would similarly lack a reasonable expectation of privacy” under these circumstances.  And it is hardly clear that society would, or should, reject an innocent person’s expectation that her comings and goings will remain largely unknown, an expectation that is empirically realistic as well.

The Abstract Versus Concrete Divide in the Exclusionary Rule

The reason that the Skinner case came before the Sixth Circuit is the exclusionary rule, a rule that provides for the exclusion at a defendant’s criminal trial of evidence that was obtained by violating that defendant’s Fourth Amendment rights.

A major downside of exclusion is quite evident in Skinner.  When the litigants who raise Fourth Amendment claims are almost all criminal defendants who are attempting to keep reliable evidence of their criminality out of court, it may appear that the Fourth Amendment is primarily or exclusively an instrument for the protection of criminals’ privacy in their wrongdoing.

The actual logic of Fourth Amendment-based exclusion of evidence, however, is that criminal defendants serve as surrogates for the rest of us, as they are highly motivated to seek evidence suppression and, by doing so, thereby lead courts to elaborate the Fourth Amendment rights that protect everyone, especially innocent people.  If police react to the suppression of evidence by making sure to obtain a search warrant and probable cause before searching people in the future, this will mean that fewer innocent people will endure invasions of their privacy.

Yet, as I discussed in an academic paper here, people tend to focus on the concrete, rather than on the abstract.  The concrete petitioner who seeks suppression of the damning evidence against him is, of course, the person who is apparently engaged in criminal activities and is seeking to keep evidence of those criminal activities away from a jury of his peers.

In contrast, the innocent individual who will benefit from Fourth Amendment compliance in the future is still undetermined and abstract and therefore more difficult for us to contemplate.

The Sixth Circuit opinion seems to exploit this concrete/abstract divide by emphasizing the “drug runners” for whom it is “unfortunate[]” that “the phones were trackable in a way they may not have suspected,” declaring that “[t]he Constitution … does not protect their erroneous expectations regarding the undetectability of their modern tools.”  Here, the court’s language virtually screams “Too bad—you deserve what you got!”

Gilding the Lily to Divest Innocent People of Privacy

In Skinner, it was criminals who experienced electronic tracking via their cellphones.  And when police know they are dealing with criminals (and thus have probable cause to this effect), nothing in the Fourth Amendment will stop them from successfully seeking a search warrant that enables them to track the criminals’ movements.

The question in Skinner, though, was whether such tracking may occur in the absence of probable cause, in the absence of a warrant, and in the absence of any reason at all to suspect that the person to be tracked has done anything to violate the law.  Under Skinner, police will need no suspicion at all to use your cellphone signal to keep track of everywhere you go, perhaps because they are curious, perhaps because they oppose your political commitments, or perhaps because they hope that by tracking everyone’s whereabouts, they may eventually find evidence of someone’s crime.

As Justice Sotomayor, an integral member of the five-Justice majority, emphasized in her concurring opinion in Jones, however, unleashing such massive invasions of privacy on the populace is antithetical to the right of personal security that was enacted in the Fourth Amendment.  Justice Sotomayor states there that “[a]wareness that the Government may be watching chills associational and expressive freedoms.  And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’”

The state of our technology at present permits the efficient gathering of personal information on a scale that was previously unimaginable.  Yet the Sixth Circuit casually dismisses this worry, saying that “[u]sing a more efficient means of discovering … information does not amount to a Fourth Amendment violation.”

The Extensiveness of the Invasion:  An Afterthought for the Sixth Circuit

Almost as an afterthought, the Sixth Circuit majority briefly entertains the complaint raised in Justice Alito’s concurring opinion in Jones (and echoed in Justice Sotomayor’s concurrence):  the complaint that technology can threaten Fourth Amendment-protected privacy by making it easy to carry out comprehensive, efficient, and inexpensive massive intrusions that would previously have been impractical or impossible without physical intrusion and without the dedication of massive resources.

The Sixth Circuit’s decision to respond to Justice Alito’s concurrence may indicate some awareness, on the Sixth Circuit’s part, of the fact that Justice Sotomayor, a member of the High Court’s majority, shared these concerns, and that they therefore call for a response.

In response, the Skinner court says that by contrast to Jones, in which the police tracked the suspect for twenty-eight days, “[n]o such extreme comprehensive tracking is present in this case . . . .  here the DEA agents only tracked Skinner’s cell phone for three days.”

Perhaps three days of locational monitoring truly does fall short of what a majority of the Supreme Court would ultimately consider an invasion of a reasonable expectation of privacy.  One has the definite sense, however, that the Sixth Circuit majority is not especially concerned, one way or the other, about the length of the surveillance.  Its primary reasoning, to which it dedicates almost all its Fourth Amendment discussion, rests on the notion that absent a physical trespass, the efficiency of technology poses no cognizable threat to constitutional security from unreasonable searches and seizures.  This emphasis in the Sixth Circuit’s opinion gives me little confidence that if the surveillance had lasted, say, twenty-eight days or even longer, the majority in Skinner would have seen fit to decide the case any differently.

For this reason, the Supreme Court may soon need to revisit Jones, and decide whether it indeed insulated, for Fourth Amendment purposes, GPS-monitoring that does not begin with a straightforward physical trespass.  I am hopeful that when it does, the Sixth Circuit opinion in Skinner will no longer remain good law.