Michael C. Hennenberg

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You Don't Always Get What You Pay For - Law Enforcement Permitted to Obtain Tracking Information From Prepaid Cell Phones

On August 4, 2012, the United States 6th Circuit Court of Appeals held an individual does not have a reasonable expectation of privacy in the data given off by their cell phone that can determine their location.

In United States v. Skinner, No. 09-6497, drug trafficker Melvin Skinner appealed his conviction and nineteen (19) year prison sentence for his part of a large scale, cross-country drug organization.  In January 2006, Drug Enforcement Administration ("DEA") agents learned through an informant that the drug trafficking was orchestrated through the use of prepaid cell phones.  After obtaining the cell phone number, in May 2006, DEA agents then received a court order to wiretap cell phone communications as well as trace location data originating from the phones.  The traces led to Melvin Skinner who was en route to delivering a motorhome filled with approximately 1,110 pounds of marijuana.

In upholding the conduct of the DEA agents, the 6th Circuit distinguished Skinner from the United States Supreme Court's recently decided U.S. v. Jones, No. 10-2059.  In Jones, the U.S. Supreme Court held that it was a Fourth Amendment violation of law enforcement to track a suspect by attaching a GPS device to the suspect's car without a warrant.  The justices held that the key distinction from Jones was the lack of physical intrusion.

The 6th Circuit went on to discuss the technological aspects used in reaching their decision.  Author of the majority opinion, Judge John Rogers, states, "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."

On September 4, 2012, a group led by the American Civil Liberties Union (ACLU) filed an amicus brief requesting a rehearing of oral arguments.

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