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

This is the first in a two-part series of columns by Professor Colb on cellphone tracking by law enforcement.  Part Two will appear on Wednesday, October 10. –Ed.

This past August, the U.S. Court of Appeals for the Sixth Circuit, in United States v. Skinner, held that police may, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone.  This ruling is important because it follows up on the U.S. Supreme Court’s decision last term in United States v. Jones that police do need a warrant and probable cause to attach a global positioning device to a vehicle and thereby track a suspect’s whereabouts.  In this column, by examining the Sixth Circuit’s logic alongside that of the Supreme Court in Jones, I hope to shed light on some of the Fourth Amendment issues that continue to confront our courts, calling for resolution and clarity in the near future.

Wrongdoing Versus Innocence

An important theme that emerges from the Sixth Circuit opinion in Skinner is that of the wrongdoer who forfeits his interest in locational privacy by committing a crime.  The following language, for example, appears in the very first sentence of the majority opinion (emphases are mine):  “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.”  In other words, the Sixth Circuit reasoned, criminals should not be heard to complain about being discovered when they use location-emitting cellular phones to carry out (and conceal) misconduct.

One might take issue with such language on the ground that everyone—innocent and guilty alike—ought to enjoy the same rights to Fourth Amendment privacy.  And indeed, such an objection seems to underlie part of the concurring Sixth Circuit opinion, when it says that “privacy expectations are not diminished by the criminality of a defendant’s activities.”

I would not, however, endorse the sentiment behind this argument.  My view is, instead, that people who obey the law are, in a fundamental sense, entitled to greater privacy in their law-abiding activities than are people who use their private spaces to perpetrate criminal offenses entitled to privacy in their misconduct.

We know that criminality has some bearing on privacy due to the fact that such standards as “probable cause” and “beyond a reasonable doubt”—which mark the occasions on which the government may properly divest people of much privacy and liberty—reference the odds that a given person has in fact engaged in criminal conduct.

Thus what distinguishes people entitled to assert Fourth Amendment rights from people who lack that entitlement, is very much connected to innocence and guilt relative to criminal conduct.  It is because police are generally unable to tell which people are innocent and which are guilty that some innocent people must inevitably endure invasions of their privacy.  That reality does not, however, truly lessen their privacy entitlement—it simply means that despite that entitlement, they will unjustly (but lawfully) suffer in the service of pursuing law-enforcement objectives that cannot otherwise be pursued, because of the imperfect information that the police possess.

I would raise, and the Sixth Circuit concurring opinion also raises, a separate objection to the “wrongdoers” argument in the majority opinion.  If courts classify cellphone-tracking as permissible in the absence of a warrant, probable cause, or any other legitimate index of suspicion, then police will have the authority to track the cellphones of people who are neither suspected of—nor are, in fact—engaging in wrongdoing of any sort.  To classify cellphone-tracking as falling outside the scope of the term “searches” in the Fourth Amendment, as the Sixth Circuit does, is to say that wrongdoing is legally irrelevant to police officers’ constitutionally-recognized power to engage in such tracking.  Ironically, then, if the Sixth Circuit majority were truly concerned about limiting such surveillance to wrongdoers, then it would have concluded, as the concurring opinion did, that cellphone-tracking is a search, subject to the Fourth Amendment, and therefore requires a warrant supported by probable cause before it may take place.

In an older case, United States v. White, the U.S. Supreme Court ruled that government use of wired informants to talk with suspects (who believe the informants are their friends or colleagues) triggers no Fourth Amendment entitlement to a warrant or probable cause.  In White, the plurality opinion approvingly quoted language similar to that of the Sixth Circuit in Skinner in explaining why.  Specifically, the Supreme Court said that the Fourth Amendment “affords no protection to ‘a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.’”  As in Skinner, though, the consequence of White was to diminish law-abiding privacy by exposing those against whom police lack a warrant and probable cause (and who are accordingly more likely to be innocent) to wired informants pretending to be their friends.

Notably, the majority in the Sixth Circuit decision acknowledged that its ruling would extend beyond the “wrongdoers” to whom it referred.  It said specifically (in a footnote) that “[w]e do not mean to suggest that there was no reasonable expectation of privacy [i.e., that the government needed no justification for cellphone-monitoring] because Skinner’s phone was used in the commission of a crime, or that the cell phone was illegally possessed.  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.”  (emphasis in original).

This acknowledgment suggests that the court’s emphasis on Melvin Skinner as a wrongdoer may not reflect any authentic concern about the normatively troubling assertion by wrongdoers of a privacy entitlement in furthering their criminal activities.

Physical Trespass Versus No Physical Trespass

The respondent in the U.S. Supreme Court case, United States v. Jones, appears to have been a wrongdoer as well, yet the Court there nonetheless held that the Fourth Amendment required police to obtain a warrant before monitoring his whereabouts through a GPS device.  In Jones, in other words, public location-monitoring constituted a search, but in Skinner, according to the Sixth Circuit, it did not, though both cases involved putative wrongdoers.  What difference between the two cases led to these disparate results?

One difference is that in Jones, police attached a GPS tracking device to the car at issue (and through that device, they tracked the defendant’s whereabouts on the public roads for an extended period of time).  In Skinner, by contrast, the relevant electronic device was already built into the cellphone at the time that the defendant purchased it.  The police thus trespassed on the suspect’s property in Jones (by attaching a monitoring device to the car) but the police did not trespass on the suspect’s property in Skinner.  The Sixth Circuit in Skinner expressly appeals to this distinction in the second sentence of its opinion:  “This is not a case in which the government secretly placed a tracking device in someone’s car.”

The trespass/no-trespass distinction, under the majority opinion in Jones, is an important one.  The Supreme Court rested its ruling on the fact that police were able to gather information about their target because of the initial trespass.  And in an earlier case, United States v. Knotts, the Court had similarly rejected a Fourth Amendment challenge to the use of a beeper (a primitive tracking device) installed in a container that later came into the defendant’s possession (the installation of which thus involved no trespass).  The Sixth Circuit opinion in Skinner displays familiarity with Knotts and takes pains to note that Jones did nothing to overrule it.

One problem with the trespass/no-trespass approach, however, is that it largely ignores the “reasonable expectations of privacy” rubric, under which courts generally resolve questions about what triggers the Fourth Amendment’s protection by asking whether people, under the given set of circumstances, are and ought to be protected in their expectation that something they consider personal will remain private.  Under Jones, what mattered—by the majority’s lights—was trespass, and the Court saw no need to say whether people traveling on the public roads could indeed invoke a Fourth Amendment reasonable expectation of privacy in their comings and goings.  The Skinner court, by contrast, did consider this question and apparently answered it “no.”

If the majority opinion in Jones and the older Knotts decision were all there was, then it might be uncontroversial for the Sixth Circuit to have resolved Skinner in the way that it did.  In reality, however, one of the necessary five voters for the 5-4 majority in Jones saw things very differently.

Justice Sotomayor, providing the fifth vote, said in a separate opinion that with trespass-plus-information-disclosure, there was certainly a Fourth Amendment search requiring a warrant.  Crucially, however, she added that one’s privacy expectations against technology ought to—and, in fact, do—extend beyond law-enforcement activities involving an initial physical trespass, as was involved in the facts in Jones.  Justice Sotomayor states that “[w]ith increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones.”  She states further that “[u]nder that rubric [the reasonable expectations of privacy rubric], I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”  Justice Sotomayor expressed concern, as well, that even short-term, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

Justice Sotomayor thus made a point of indicating that she found the government’s monitoring project at issue in Jones to be offensive for reasons having little to do with the physical trespass involved in attaching a GPS device to a car.  With Justice Alito, Justice Sotomayor shared the view that people have a reasonable expectation of privacy that police violate in tracking people’s movements on the public roads through a technology far more powerful than the beeper devices at issue in the older case of Knotts.  Because of Justice Sotomayor’s strong concurring opinion in Jones, it is peculiar for the Sixth Circuit majority to write as though five Justices on the Supreme Court have now definitively repudiated the view that GPS monitoring, absent a physical trespass, implicates a reasonable expectation of privacy.

Justice Sotomayor provided a necessary fifth vote in Jones, and she indicated her agreement with the concurrence in the judgment, to the extent that it endorsed a reasonable expectation of privacy in freedom from electronic monitoring.  The Sixth Circuit opinion accordingly courts reconsideration by relying for its judgment on the lack of any physical trespass in Skinner.