In George Orwell’s novel 1984, every citizen was subject to constant surveillance by means of two-way television sets that allowed the government to see into every home. The government could follow citizens wherever they went, for whatever reason or for no reason at all.
Fortunately, Orwell was writing science fiction. In real life, the government can’t use an electronic device to track your every move; that would be unconstitutional, wouldn’t it?
Apparently not. According to the United States Court of Appeal for the Sixth District (which includes Ohio), the government can track you using your cell phone at any time and for any reason, without a warrant and without probable cause to believe that you have committed a crime.
In 2006, the DEA believed that Michael Skinner was part of a drug smuggling operation, but it wanted to catch Skinner in the act. It could not place a tracking device on his RV without getting a warrant, because physically interfering with Skinner’s private property would be a “search” under the Fourth Amendment. The DEA never asked for a warrant.
Instead, the DEA began to trace Skinner by pinging the GPS locator on his cell phone. The trace allowed the DEA to follow Skinner for three days as he drove his RV from Arizona to Texas, where he was arrested with 1,000 kilograms of marijuana.
At trial, Skinner asked the court to throw out the evidence, arguing that it was obtained through an illegal warrantless “search” of his cell phone information. The trial court refused, saying that tracking his cell phone was not a “search.”
The Court of Appeal agreed. Justice John Rogers said that using a cell phone signal to track a suspect is no different from tracking the suspect by physically tailing his car. The only difference, Justice Rodgers said, is that tracking a cell phone is “more efficient.”
However, unlike tailing your car, tracking your cell phone allows the police to track you anywhere at any time. And, under the court’s ruling, the police (or any other government agency) can track you for any reason, without ever showing a reasonable basis for the surveillance.
In Skinner’s case, the DEA did have probable cause to believe that he was running drugs. But the Court of Appeal opinion makes it clear that probable cause has nothing to do with the government’s right to track your cell phone.
In essence, the court said that you have no reason to expect that your location is private, when your cell phone is broadcasting a GPS signal telling the government where you are.
Are there any limits to the government’s power to follow your movements using your cell phone? Perhaps.
Supreme Court Justice Antonin Scalia, one of the most conservative members of the court, recently said that long-term surveillance of a person without good cause may be a violation of the Fourth Amendment. He suggested that constantly watching a person may be unconstitutional because the scope of the surveillance itself is unreasonable, even if the method isn’t.
Of course, some will argue that if you have nothing to hide, you have nothing to fear from such warrantless surveillance. However, the Fourth Amendment protects your right of privacy from unreasonable searches, even if you have nothing to hide.
One would hope that it protects your right of privacy from unreasonable surveillance, as well. Otherwise, Orwell’s 1984 could start to sound like a history lesson instead of a novel.
Have a question or a suggestion for a topic? Email dspirgen@SpirgenLawFirm.com.
Patch posts are general discussions and should not be used as advice on any specific legal matter. If you need legal advice on a particular situation, please consult an attorney.