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Sixth Circuit finds no reasonable expectation of privacy in phone GPS for marijuana courier

Aug 27, 2012 Sixth Circuit finds no reasonable expectation of privacy in phone GPS for marijuana courier

Two weeks ago, the Sixth Circuit ruled, 2-1, that criminals have no reasonable expectation of privacy in their phone GPS technology, reasoning that:

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.

U.S. v. Skinner, ___ F.3d ___ (6th Cir., Aug. 14, 2012).

Concurring in the judgment, Judge Donald wrote:

I do not agree that Skinner lacked a reasonable

expectation of privacy in the GPS data emitted from his cellular phone. In my view, acquisition of this information constitutes a search within the meaning of the Fourth Amendment, and, consequently, the officers were required to either obtain a warrant supported by probable cause or establish the applicability of an exception to the warrant requirement. However, because the officers had probable cause to effect the search in this case and because the purposes of the exclusionary rule would not be served by suppression, I believe some extension of the good faith exception enunciated in United States v. Leon, 468 U.S. 897 (1984), is appropriate.

Based in part on the sharp differences between the majority and Judge Donald, I anticipate seeing en banc review of Skinner.

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