In United States v. Skinner, 690 F.3d 772, 774, 776-77 (6th Cir. 2012), the court held that the government’s use of real-time cell phone GPS data to track a suspected drug trafficker as he traveled for several days in a motorhome driven on public roads was not a search. An important factor in Skinner’s Fourth Amendment analysis was that the defendant’s movements could have been observed by members of the public. Id. at 779. Relying on Skinner, the Sixth Circuit held in United States v. Riley, that tracking the real-time GPS location data from a fugitive’s cell phone for about seven hours preceding his arrest did not constitute a Fourth Amendment search.
A state court issued an arrest warrant for Mr. Riley. He bought a cell phone and gave the number to his girlfriend who gave it to law enforcement officers. The officers obtained a court order for call metadata which included real-time tracking of the cell phone. Following the issuance of the court order, officers received real-time GPS data which showed that Mr. Riley’s cell phone was located at a motel in Memphis. The officers went to the motel and learned Mr. Riley’s room number from an employee. Mr. Riley was arrested and subsequently filed a motion to suppress a gun that was found in his room. Mr. Riley contended that the gun was the fruit of an unconstitutional search because the government’s method of tracking him violated his reasonable expectation of privacy and therefore required a search warrant. The Sixth Circuit upheld the denial of the suppression motion.
The court recognized that a warrantless search inside a home (or a hotel room) is presumptively unreasonable. Mr. Riley, however, was not subject to a Fourth Amendment search because the use of GPS location data to determine the location of a person or a cell phone “does not cross the scared threshold of the home,” as long as the tracking “does not reveal movements within the home (or hotel room).” Riley, at p. 8 (court’s emphasis). The tracking here only showed that Mr. Riley “traveled to [the motel], “not which room (if any) the phone was in at the time of the tracking.” Id. (court’s emphasis). A significant factor in the court’s reasonable-expectation-of-privacy analysis was that the government learned no more about Mr. Riley’s whereabouts from the tracking than what “he exposed to public view by traveling to the motel lobby ‘along public thoroughfares.’” Riley, at p. 9 citing Skinner, 690 F.3d at 774 (court’s emphasis). The court emphasized that “one cannot expect privacy in one’s public movements.” Riley, at p. 9 (court’s emphasis).
The per curiam opinion concludes with some good advice: if a person “truly wished to avoid detection, he could have chosen not to carry a cell phone at all, or to turn it off.” Riley at p. 9 (court’s emphasis).
In a concurring opinion, Judge Boggs discussed several other factors that in his view supported the court’s holding. The most significant factor was Mr. Riley’s status as a fugitive as opposed to being a suspect. In Judge Boggs’ view, Payton v. New York, 445 U.S. 573 (1980), “as corroborated by significant historical evidence of the original meaning of the Fourth Amendment, provides strong support for the proposition” that fugitives who are on the run from arrest warrants have a diminished expectation of privacy. Riley, at p. 12 (concurring opinion). He would hold that Mr. Riley’s Fourth Amendment argument fails because “he was a fugitive subject to a valid arrest warrant,” and the officers had reasonable suspicion that he was in possession of the cell phone they were tracking. Riley, at p. 10 (concurring opinion).