United States v. Melvin Skinner

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0262p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-6497
v.
,
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Defendant-Appellant. -
MELVIN SKINNER,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
Nos. 06-00100-001; 07-00089-005—Thomas W. Phillips, District Judge.
Argued: January 19, 2012
Decided and Filed: August 14, 2012
Before: CLAY, ROGERS, and DONALD, Circuit Judges.

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COUNSEL
ARGUED: Gerald L. Gulley, Jr., GULLEY OLDHAM, PLLC, Knoxville, Tennessee,
for Appellant. David P. Lewen, Jr., UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee. ON BRIEF: Gerald L. Gulley, Jr., GULLEY
OLDHAM, PLLC, Knoxville, Tennessee, for Appellant. David P. Lewen, Jr., UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, Mark Eckenwiler, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ROGERS, J., delivered the opinion of the court, in which CLAY, J., joined.
DONALD, J. (pp. 17–23), delivered a separate opinion concurring in part and concurring
in the judgment.

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No. 09-6497 United States v. Skinner Page 2

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OPINION
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ROGERS, Circuit Judge. 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. The drug runners in this case used pay-as-you-go (and
thus presumably more difficult to trace) cell phones to communicate during the cross-
country shipment of drugs. Unfortunately for the drug runners, the phones were
trackable in a way they may not have suspected. The Constitution, however, does not
protect their erroneous expectations regarding the undetectability of their modern tools.

The government used data emanating from Melvin Skinner’s pay-as-you-go cell
phone to determine its real-time location. This information was used to establish
Skinner’s location as he transported drugs along public thoroughfares between Arizona
and Tennessee. As a result of tracking the cell phone, DEA agents located Skinner and
his son at a rest stop near Abilene, Texas, with a motorhome filled with over 1,100
pounds of marijuana. The district court denied Skinner’s motion to suppress all evidence
obtained as a result of the search of his vehicle, and Skinner was later convicted of two
counts related to drug trafficking and one count of conspiracy to commit money
laundering. The convictions must be upheld as there was no Fourth Amendment
violation, and Skinner’s other arguments on appeal lack merit. In short, Skinner did not
have a reasonable expectation of privacy in the data emanating from his cell phone that
showed its location.

I.

Melvin Skinner was convicted by a jury on two counts related to drug trafficking
and one count of conspiracy to commit money laundering in connection with his role as
a courier in a large-scale drug-trafficking operation led by James Michael West.
No. 09-6497 United States v. Skinner Page 3

The events leading up to Skinner’s arrest and conviction began in January 2006,
when Christopher S. Shearer, a participant in West’s marijuana-trafficking conspiracy,
was stopped in Flagstaff, Arizona with $362,000. Police stopped Shearer on his way to
deliver money to West’s marijuana supplier, Philip Apodaca, who lived in Tucson,
Arizona.

Drug Enforcement Administration (“DEA”) authorities learned from Shearer how
West operated his drug conspiracy. Between 2001 and 2006, Apodaca would send
marijuana that he obtained from Mexico to West in Tennessee via couriers. Apodaca
purchased pay-as-you-go cell phones that he programmed with contact information and
then gave to the couriers to maintain communication. When buying the phones,
Apodaca provided false names and addresses for the phone subscriber information.
After some time, West and his affiliates would discard their pay-as-you-go phones and
get new ones with different telephone numbers and fictitious names. Apodaca was
unaware that these phones were equipped with GPS technology.

In May and June 2006, authorities obtained orders authorizing the interception
of wire communications from two phones that were not pay-as-you-go, but rather phones
subscribed in West’s name. Through these calls between West and Shearer, agents
learned that West used as a courier an over-the-road truck driver referred to as “Big
Foot” (later identified as the defendant in this case, Melvin Skinner). From Shearer and
the phone calls, agents determined that, on many occasions beginning in 2001, Big Foot
delivered money to Apodaca in Arizona and then returned to Tennessee with hundreds
of pounds of marijuana for West. Big Foot’s courier activities temporarily ceased
between 2002–2004, but thereafter he resumed transporting drugs and money for West.
In late 2005, West advanced Big Foot money to purchase a pickup truck for transporting
drugs.

In June 2006, authorities determined that West was using one secret phone to
communicate with Apodaca and a second secret phone to communicate with Big Foot.
Authorities thought that Big Foot was using a phone with the number (520) 869-6447
(“6447 phone”).
No. 09-6497 United States v. Skinner Page 4

Based on calls intercepted in late June and early July 2006, authorities learned
that Big Foot had recently delivered between $150,000 and $300,000 to Apodaca to pay
off existing drug debt and purchase additional drugs. In later calls between West and
Apodaca, the agents also determined that Big Foot would meet Apodaca in Tucson,
Arizona on July 11, 2006, to pick up approximately 900 pounds of marijuana. Big Foot
would be driving a “nice [RV] with a diesel engine,” while Big Foot’s son would be
driving an F-250 pickup truck, both with Southern license plates. Big Foot would then
leave for West’s home in Mooresburg, Tennessee, on or about Thursday, July 13, 2006.
Believing that Big Foot was carrying the 6447 phone, authorities obtained an order from
a federal magistrate judge on July 12, 2006, authorizing the phone company to release
subscriber information, cell site information, GPS real-time location, and “ping” data for
the 6447 phone in order to learn Big Foot’s location while he was en route to deliver the
drugs.

That same day, agents “pinged” the 6447 phone and discovered that it was
currently located in Candler, North Carolina, the location of West’s primary residence.
Based upon intercepted calls as well as the 6447 phone’s records, agents determined that
West was using the 6447 phone to communicate with Big Foot on a phone with a
(520) 869-6820 number (“6820 phone”). Authorities then obtained a second order from
the magistrate judge authorizing release of the same information for the 6820 phone,
which revealed that the phone was located near Flagstaff, Arizona.

By continuously “pinging” the 6820 phone, authorities learned that Big Foot left
Tucson, Arizona on Friday, July 14, 2006, and was traveling on Interstate 40 across
Texas. At no point did agents follow the vehicle or conduct any type of visual
surveillance. At around 2:00 a.m. on Sunday, July 16, 2006, the GPS indicated that the
6820 phone had stopped somewhere near Abilene, Texas. Authorities coordinated with
agents in the Lubbock, Texas office of the DEA, who were quickly dispatched to a truck
stop. At the truck stop, agents discovered a motorhome and a truck with Georgia license
plates. An officer approached the motorhome, knocked on the door, and introduced
himself to the man, later identified as Skinner, who answered the door. After Skinner
No. 09-6497 United States v. Skinner Page 5

denied the officer’s request to search the vehicle, a K-9 officer and his dog who were at
the scene conducted a perimeter dog sniff around the motorhome that alerted officers to
the presence of narcotics. The officers then entered the motorhome, where they
discovered sixty-one bales of marijuana, over 1,100 pounds, as well as two cellular
phones and two semi-automatic handguns. Skinner and his son, Samuel, were placed
under arrest.

Skinner was charged with conspiracy to distribute and possess with intent to
distribute in excess of 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A), conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h), and aiding and abetting the attempt to distribute in excess of
100 kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B),
and 18 U.S.C. § 2.

Prior to trial, Skinner sought to suppress the search of the motorhome, alleging
that the agents’ use of GPS location information emitted from his cell phone was a
warrantless search that violated the Fourth Amendment. After an evidentiary hearing,
the magistrate judge determined that, “[b]ased on the thrust of Fourth Amendment
precedent and the facts of this case,” Skinner lacked standing to assert a Fourth
Amendment protected interest because the cell phone was not subscribed to him and was
used as part of a criminal scheme. The magistrate judge further opined that because the
cell phone was utilized on public thoroughfares and was “bought by a drug supplier and
provided to . . . Skinner as part and parcel of his drug trafficking enterprise,” Skinner did
not have a legitimate expectation of privacy in the phone or in the motorhome that was
driven on public roads. In addition, the magistrate judge determined that, “even if the
search was found unconstitutional, the good faith exception would apply.” The district
court fully adopted the magistrate judge’s Report and Recommendation, and denied
Skinner’s motion to suppress.

Skinner’s case proceeded to a ten-day trial, and the jury found Skinner guilty on
all counts. Skinner moved for a judgment of acquittal, or in the alternative a new trial,
and the district court denied the motion.
No. 09-6497 United States v. Skinner Page 6

At sentencing, the district court heard testimony regarding the drug conspiracy
and Skinner’s role in it. In calculating Skinner’s base offense level, the presentence
report had included only the amounts of marijuana personally attributed to Skinner.
Skinner argued, however, that due to his minimal role in the conspiracy he should
receive a mitigating role adjustment under U.S.S.G. § 3B1.2. The district court
determined that no mitigating role reduction was warranted because Skinner “facilitated
the transportation of vast amounts of marijuana and money back and forth across the
country” and “[t]he conspiracy would not have been successful without the participation
of the drivers.” Therefore, because Skinner “facilitated and allowed this conspiracy to
progress,” the district court found that he was “more than just a minor or minimum
player.”

Skinner was sentenced to 235 months’ imprisonment as to each of Counts One,
Two, and Three, with the terms to run concurrently. This term of imprisonment was at
the low end of the advisory guideline range of 235–239 months.

Skinner now appeals, arguing that the use of the GPS location information
emitted from his cell phone was a warrantless search that violated the Fourth
Amendment, that there was insufficient evidence to find him guilty of conspiracy to
commit money laundering, and that as a minor participant in the drug conspiracy he was
entitled to a mitigating role reduction.

II.

A. No Fourth Amendment Violation

There is no Fourth Amendment violation because Skinner did not have a
reasonable expectation of privacy in the data given off by his voluntarily procured pay-
as-you-go cell phone. If a tool used to transport contraband gives off a signal that can
be tracked for location, certainly the police can track the signal. The law cannot be that
No. 09-6497 United States v. Skinner Page 7

a criminal is entitled to rely on the expected untrackability of his tools.1 Otherwise, dogs
could not be used to track a fugitive if the fugitive did not know that the dog hounds had
his scent. A getaway car could not be identified and followed based on the license plate
number if the driver reasonably thought he had gotten away unseen. The recent nature
of cell phone location technology does not change this. If it did, then technology would
help criminals but not the police. It follows that Skinner had no expectation of privacy
in the context of this case, just as the driver of a getaway car has no expectation of
privacy in the particular combination of colors of the car’s paint.

This conclusion is directly supported by United States v. Knotts, 460 U.S. 276
(1983). In Knotts, the police, with the consent of a chemical company, placed a beeper
in a five-gallon drum of chloroform in order to track the movements of a defendant and
discover the location of a clandestine drug laboratory. Using visual surveillance, as well
as the signal emitted from the beeper when police lost visual contact, law enforcement
officials traced the car to a secluded cabin, where the defendant and others had been
manufacturing illicit drugs. The Supreme Court held that this monitoring did not violate
the Constitution because “[t]he governmental surveillance conducted by means of the
beeper in this case amounted principally to the following of an automobile on public
streets and highways. . . . A person traveling in an automobile on public thoroughfares
has no reasonable expectation of privacy in his movements from one place to another.”
Id. at 281. The Court noted that, in Knott’s case, “[a] police car following [a defendant]
at a distance throughout his journey could have observed him leaving the public highway
and arriving at the cabin . . . . [T]here is no indication that the beeper was used in any
way to reveal information . . . that would not have been visible to the naked eye.” Id. at
285. Similar to the circumstances in Knotts, Skinner was traveling on a public road
before he stopped at a public rest stop. While the cell site information aided the police
in determining Skinner’s location, that same information could have been obtained
through visual surveillance.

1
We do not mean to suggest that there was no reasonable expectation of privacy 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.
No. 09-6497 United States v. Skinner Page 8

There is no inherent constitutional difference between trailing a defendant and
tracking him via such technology. Law enforcement tactics must be allowed to advance
with technological changes, in order to prevent criminals from circumventing the justice
system. The Supreme Court said as much in Knotts, noting that, “[i]nsofar as
respondent’s complaint appears to be simply that scientific devices such as the beeper
enabled the police to be more effective in detecting crime, it simply has no constitutional
foundation. We have never equated police efficiency with unconstitutionality, and we
decline to do so now.” Id. at 284. In drawing this conclusion, the Court discussed Smith
v. Maryland, 442 U.S. 735, 744–45 (1979), where a defendant was found to have no
reasonable expectation of privacy in the numbers he dialed on his phone, even after that
information was automated by the phone company. The Court compared this technology
to giving the numbers to a telephone operator, where they would not be confidential:
“We are not inclined to hold that a different constitutional result is required because the
telephone company has decided to automate.” Knotts, 460 U.S. at 283. Similar
reasoning compels the conclusion here that Skinner did not have a reasonable
expectation of privacy in the location of his cell phone while traveling on public
thoroughfares.

Skinner’s case also falls squarely within this court’s precedent in United States
v. Forest, 355 F.3d 942 (6th Cir. 2004). In Forest, DEA agents had lost visual contact
of the defendant as he traveled on public roads to meet two suspected drug couriers. To
reestablish contact, agents called the defendant’s cell phone, hanging up before it rang,
in order to “ping” or gather data on the phone’s physical location. Using this
information, agents were able to determine the defendant’s movements along a public
roadway, and ultimately to arrest the defendant at a gas station the following day. We
held that such monitoring did not violate the Fourth Amendment because, as in Knotts,
“the DEA agents could have obtained the same information by following [the
defendant’s] car.” Id. at 951. “Although the DEA agents were not able to maintain
visual contact with [the defendant’s] car at all times, visual observation was possible by
any member of the public. The DEA agents simply used the cell-site data to ‘augment[
No. 09-6497 United States v. Skinner Page 9

] the sensory faculties bestowed upon them at birth,’ which is permissible under Knotts.”
Id. (quoting Knotts, 460 U.S. at 282). The same is true in Skinner’s case.

In Forest, we also rejected the argument that even if a defendant does not have
a legitimate expectation of privacy regarding his location, he does have a legitimate
expectation of privacy in the cell site data itself. Forest, 355 F.3d at 951–52. Because
“the cell-site data is simply a proxy for [the defendant’s] visually observable location,”
and a defendant has “no legitimate expectation of privacy in his movements along public
highways,” we concluded, as we do here, that “the Supreme Court’s decision in Knotts
is controlling, and [thus] the DEA agents did not conduct a search within the meaning
of the Fourth Amendment.” Id.

Skinner counters that, unlike Knotts and Forest, the DEA agents in his case had
never established visual surveillance of his movements, did not know his identity, and
did not know the make or model of the vehicle he was driving (although they did know
it was a motorhome that was accompanied by a pickup truck). Skinner argues that, in
this instance, technology was used to supplement, not “augment,” the “sensory faculties”
of the agents. But even if the agents in Knotts and Forest momentarily had visual
contact of the defendant, and then relied on technology either to reestablish contact or
to learn where to initiate visual observation, this was not critical to our analysis.
Therefore, no real distinction exists in Skinner’s case. In all three instances the
defendant’s movements could have been observed by any member of the public, a
crucial fact for this court in Forest. As for not knowing his identity, this is irrelevant
because the agents knew the identity of Skinner’s co-conspirators and could have simply
monitored their whereabouts to discover Skinner’s identity. Using a more efficient
means of discovering this information does not amount to a Fourth Amendment
violation. In any event, we determine whether a defendant’s reasonable expectation of
privacy has been violated by looking at what the defendant is disclosing to the public,
and not what information is known to the police.

Although not necessary to find that there was no Fourth Amendment violation
in this case, the Government’s argument is strengthened by the fact that the authorities
No. 09-6497 United States v. Skinner Page 10

sought court orders to obtain information on Skinner’s location from the GPS
capabilities of his cell phone. The government received authorization from the
magistrate judge to receive location information from the cell phone company so that
agents could locate and track Skinner’s vehicle that was carrying the load of marijuana.
When the first cell phone number turned out to be with West in North Carolina,
authorities then sought and obtained a second order from the magistrate judge to “ping”
the second cell phone number and locate the drugs while they were still en route.

This case is different from the recent Supreme Court decision in United States
v. Jones, 132 S. Ct. 945 (2012). That case involved the secret placement of a tracking
device on the defendant’s car, id. at 948, and the Court’s opinion explicitly relied on the
trespassory nature of the police action. Id. at 949. Although Fourth Amendment
jurisprudence includes an assessment of the defendant’s reasonable expectation of
privacy, that “d[oes] not erode the principle ‘that, when the Government does engage in
physical intrusion of a constitutionally protected area in order to obtain information, that
intrusion may constitute a violation of the Fourth Amendment.’” Id. at 951 (quoting
Knotts, 460 U.S. at 286 (Brennan, J., concurring)). No such physical intrusion occurred
in Skinner’s case. Skinner himself obtained the cell phone for the purpose of
communication, and that phone included the GPS technology used to track the phone’s
whereabouts. The majority in Jones based its decision on the fact that the police had to
“physically occup[y] private property for the purpose of obtaining information.”
132 S. Ct. at 949. That did not occur in this case. Indeed, the Jones opinion explicitly
distinguished Knotts on this ground—that trespass was not an issue in Knotts—and in
no way purported to limit or overrule the Court’s earlier holding in Knotts. Id. at
951–52. Moreover, Jones does not apply to Skinner’s case because, as Justice
Sotomayor stated in her concurrence, “the majority opinion’s trespassory test” provides
little guidance on “cases of electronic or other novel modes of surveillance that do not
depend upon a physical invasion on property.” Id. at 955 (Sotomayor, J., concurring).

Skinner’s case also does not present the concern raised by Justice Alito’s
concurrence in Jones, 132 S. Ct. at 95–64. There may be situations where police, using
No. 09-6497 United States v. Skinner Page 11

otherwise legal methods, so comprehensively track a person’s activities that the very
comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes. As
Justice Alito recognized, prior to certain advances in technology, “practical”
considerations often offered “the greatest protections of privacy.” Id. at 963. For
instance, in the situation presented in Jones, “constant monitoring of the location of a
vehicle for four weeks . . . would have required a large team of agents, multiple vehicles,
and perhaps aerial assistance.” Id. Technology, however, has made it possible to
conduct a level of extreme comprehensive tracking, “secretly monitor[ing] and
catalogu[ing] every single movement” that the defendant made over four weeks, that
previously would have been impossible. Id. at 964.

No such extreme comprehensive tracking is present in this case. Justice Alito’s
concurrence and the majority in Jones both recognized that there is little precedent for
what constitutes a level of comprehensive tracking that would violate the Fourth
Amendment. Id. at 954, 964. Skinner’s case, however, comes nowhere near that line.
While Jones involved intensive monitoring over a 28-day period, here the DEA agents
only tracked Skinner’s cell phone for three days. Such “relatively short-term monitoring
of a person’s movements on public streets accords with expectations of privacy that our
society has recognized as reasonable.” Id. at 964 (Alito, J., concurring) (citing Knotts,
460 U.S. at 281–82). Here, the monitoring of the location of the contraband-carrying
vehicle as it crossed the country is no more of a comprehensively invasive search than
if instead the car was identified in Arizona and then tracked visually and the search
handed off from one local authority to another as the vehicles progressed. That the
officers were able to use less expensive and more efficient means to track the vehicles
is only to their credit.

The Supreme Court in Jones also distinguished its previous holding in United
States v. Karo, 468 U.S. 705 (1984), that the installation of a beeper in a container did
not constitute a search or seizure, as follows:

The Government, we said [in Karo], came into physical contact with the
container only before it belonged to the defendant Karo; and the transfer
of the container with the unmonitored beeper inside did not convey any
No. 09-6497 United States v. Skinner Page 12

information and thus did not invade Karo’s privacy. That conclusion is
perfectly consistent with the one we reach here. Karo accepted the
container as it came to him, beeper and all, and was therefore not entitled
to object to the beeper’s presence, even though it was used to monitor the
container’s location.

Jones, 132 S.Ct. at 952 (internal citation omitted). The same distinction applies even
more strongly here: the Government never had physical contact with Skinner’s cell
phone; he obtained it, GPS technology and all, and could not object to its presence.

Because authorities tracked a known number that was voluntarily used while
traveling on public thoroughfares, Skinner did not have a reasonable expectation of
privacy in the GPS data and location of his cell phone. Therefore, suppression is not
warranted and the district court correctly denied Skinner’s motion to suppress.

B. Sufficiency of the Evidence for Conspiracy to Commit Money Laundering

There was sufficient evidence for a reasonable trier of fact to convict Skinner of
conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i)
and 1956(h). Section 1956(a)(1)(A)(i) provides for criminal penalties against any person
who, “knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a
financial transaction which in fact involves the proceeds of specified unlawful activity
. . . with the intent to promote the carrying on of specified unlawful activity.” In this
case, Skinner knowingly and routinely transported drug receipts to Arizona so that he
could pay off prior debts related to the drug-trafficking conspiracy, and obtain additional
marijuana in furtherance of the conspiracy. In considering Skinner’s insufficiency of the
evidence claim, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). The record clearly supports the jury’s
verdict that Skinner was guilty of conspiracy to commit money laundering.
No. 09-6497 United States v. Skinner Page 13

Skinner argues that the drug receipts he transported were not “profits” and
therefore were not “proceeds” under the money laundering statute. He relies on the
definition of “proceeds” as “profits” discussed in United States v. Santos, 553 U.S. 507
(2008). In Santos, the Supreme Court held that a money-laundering conviction of a man
involved in an illegal gambling operation was improper because, based on the facts of
that case and relying on the rule of lenity, “proceeds” under § 1956(a)(1) meant “profits”
and not “receipts.” Id. at 514.

But as we explained in United States v. Crosgrove, 637 F.3d 646 (6th Cir. 2011),
“proceeds” means “profits” only where the “predicate offense creates a merger problem
that leads to a radical increase in the statutory maximum sentence and . . . nothing in the
legislative history suggests that Congress intended such an increase.” Id. at 654–55
(quoting United States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009)). In other
cases,“proceeds” can still include gross receipts. Crosgrove, 637 F.3d at 654. We so
held in a case involving receipts from bank fraud in United States v. Kratt, 579 F.3d 558
(6th Cir. 2009). As Skinner’s case does not present a merger problem, the gross receipts
in Skinner’s case are proceeds, and there was sufficient evidence to convict Skinner of
conspiracy to commit money laundering.

Skinner’s case does not present a merger problem. “Under the Santos-Kratt
framework, a merger problem arises when defining ‘proceeds’ as ‘receipts’
automatically makes commission of the predicate offense a commission of money
laundering and where the predicate offense carries a much lower statutory maximum
sentence than the associated money laundering charge.” Crosgrove, 637 F.3d at 655
(citing Kratt, 579 F.3d at 563). In this case, Skinner was indicted, tried, and convicted
on three charges: Conspiracy to Distribute and Possess with Intent to Distribute 1,000
Kilograms or More of Marijuana (“Count I”); Conspiracy to Commit Money Laundering
(“Count II”); and Aiding and Abetting in the Attempt to Distribute in Excess of 100
Kilograms of Marijuana (“Count III”). Regardless of which drug charge is considered
the “predicate offense” for the purposes of Skinner’s merger argument under Santos,
both carry heavier maximum penalties under their corresponding statutes than does the
No. 09-6497 United States v. Skinner Page 14

money laundering charge. Count I, the drug conspiracy charge, is a Class A Felony
carrying a mandatory minimum of 10 years to life imprisonment. Count III, the aiding
and abetting drug charge, is a Class B Felony carrying a mandatory minimum of 5 years’
up to 40 years’ imprisonment. The money laundering charge listed in Count II is a Class
C Felony with a statutory maximum sentence of 20 years, and for this charge there is no
mandatory minimum. Skinner therefore cannot rely on Santos because, under Kratt and
Cosgrove, conviction of the money laundering charge did not result in a radical increase
in his statutory maximum sentence.

In any event, we have already held in the drug-trafficking context that “proceeds”
are not limited to “profits.” In United States v. Smith, 601 F.3d 530 (6th Cir. 2010), we
explained that Justice Stevens, who was the necessary fifth vote in Santos, made it clear
in his concurring opinion that “the predicate offense of conspiracy to distribute cocaine
does not fall within the category of offenses for which ‘proceeds’ means ‘profits.’” Id.
at 544 (citing Santos, 553 U.S. at 526 n.3). In refusing to hold that “proceeds” under the
money-laundering statute must always mean “profits,” Justice Stevens “stated
specifically that ‘the legislative history of § 1956 makes it clear that Congress intended
the term ‘proceeds’ to include gross revenues from the sale of contraband and the
operation of organized criminal syndicates involving such sales,’ and he stated that he
did not agree with the plurality that ‘the rule of lenity must apply to the definition of
‘proceeds’ for these types of unlawful activities.’” Smith, 601 F.3d at 544 (citing Santos,
553 U.S. at 525–26 n.3). Therefore, “[a] majority of the Court (Justice Stevens plus the
dissenting Justices) explicitly preserved the possibility that ‘proceeds’ does not
necessarily mean ‘profits’ when a member of a drug conspiracy is prosecuted under
§ 1956.” Smith, 601 F.3d at 544.

Viewing the evidence in the light most favorable to the prosecution, and
interpreting “proceeds” to include “gross receipts,” as dictated by our precedent, there
was sufficient evidence for a rational trier of fact to convict Skinner of conspiracy to
commit money laundering. Skinner knowingly and routinely transported drug proceeds
in furtherance of the drug-trafficking conspiracy, and he was aware that he was paying
No. 09-6497 United States v. Skinner Page 15

Apodaca with West’s drug money in order to obtain more drugs to transport to
Tennessee.

C. No Mitigating Role Reduction

At sentencing, the district court did not err in denying a mitigating role reduction
under U.S.S.G. § 3B1.2, because Skinner’s role as courier was critical to the success of
the drug trafficking and money laundering conspiracies. To receive a reduction, Skinner
was required to “prov[e] . . . by a preponderance of the evidence . . . that he played a
relatively minor role in conduct for which he was held accountable,” United States v.
Sheafe, 69 F. App’x 268, 270 (6th Cir. 2003). See also United States v. Groenendal,
557 F.3d 419, 427–28 (6th Cir. 2009). The district court did not err in denying the
mitigating role adjustment, which authorizes a four-level reduction in offense level if the
defendant is deemed a “minimal” participant in the criminal activity, a two-level
reduction if he is deemed a “minor” participant, and a three-level reduction if he falls
somewhere in between. See U.S.S.G. § 3B1.2.

The district court determined that Skinner was responsible for 12,611 pounds of
marijuana, the amount he actually delivered or transported, not the total amount of drugs
transported throughout the entire conspiracy. Since November 1, 2001, the Sentencing
Commission has said that a defendant is not precluded from being considered for a
mitigating role reduction simply because he is held accountable only for the quantity of
drugs attributable to him. U.S.S.G. § 3B1.2 cmt. n.3(A). However, while Skinner is
eligible for a mitigating role reduction, this determination is left to the discretion of the
district court, which in this instance did not clearly err in denying the reduction in light
of Skinner’s instrumental role in the conspiracies.

As a courier, Skinner’s role in the conspiracy was critical to its success. “[T]he
critical question in whether to grant a ‘mitigating role’ reduction is what role the
defendant played in relation to others involved in the criminal enterprise.” United States
v. Henderson, 307 F. App’x 970, 983 (6th Cir. 2009) (citing United States v. Campbell,
279 F.3d 392, 396 (6th Cir. 2002)). At sentencing, the district court determined that
Skinner “facilitated the transportation of vast amounts of marijuana and money back and
No. 09-6497 United States v. Skinner Page 16

forth across the country,” and “[t]he conspiracy would not have been successful without
the participation of the drivers . . . . [T]his defendant facilitated and allowed this
conspiracy to progress. . . . That is more than just a minor or minimum player.” There
is nothing in the record to suggest that these determinations were clearly erroneous, and
they justify the district court’s denial of the mitigating role adjustment. See Campbell,
279 F.3d at 396 (stating clearly erroneous standard for factual determinations).

Although Skinner argues that he should be granted the mitigating role reduction
because he did not have a “high degree of culpability” in the conspiracy and because his
role was largely limited to that of a courier or “mule,” we affirmed the district court’s
denial of a mitigating role adjustment in a case factually similar to Skinner’s. In Sheafe,
the defendant was charged with several narcotics-related offenses due to his participation
as the driver in three inter-state shipments of cocaine. 69 F. App’x at 269. We rejected
Sheafe’s “protestations that he was a lowly courier” and determined it to be “immaterial
that Sheafe was not the owner of the cocaine or the leader or organizer of the drug
transaction. A defendant does not qualify for a mitigating role reduction merely because
someone else planned the scheme and made all the arrangements.” Id. at 270 (citation
omitted). Rather, we determined that a “defendant who plays a lesser role in a criminal
scheme may nonetheless fail to qualify as a minor participant if his role was
indispensable or critical to the success of the scheme, or if his importance in the overall
scheme was such as to justify his sentence.” United States v. Salgado, 250 F.3d 438, 458
(6th Cir. 2001) (citation omitted). As in Skinner’s case, in Sheafe’s case “the conspiracy
could not have succeeded without someone to transport the [drugs].” Sheafe, 69 F.
App’x at 270. The district court, therefore, could properly determine that Skinner played
a critical role in the drug-trafficking and money-laundering conspiracies.

III.

The judgment of the district court is affirmed.
No. 09-6497 United States v. Skinner Page 17

______________________________________________________________

CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
______________________________________________________________

DONALD, J., concurring in part and concurring in the judgment. I join Parts
II.B and II.C of the majority opinion, which conclude that the evidence was sufficient
to support Skinner’s conviction for conspiracy to commit money laundering and that
Skinner was not entitled to a mitigating-role reduction in sentencing. As to Part II.A, I
concur only in the judgment because 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. Accordingly, I would also affirm
the district court’s denial of Skinner’s motion to suppress, but for reasons other than
those announced by the majority.

A. Reasonable expectation of privacy

In the context of the Fourth Amendment, standing turns on whether a person has
a “constitutionally protected reasonable expectation of privacy.” Katz v. United States,
389 U.S. 347, 360 (1967) (Harlan, J., concurring). The analysis of this constitutionally-
protected interest involves a two-part inquiry: “First, has the individual manifested a
subjective expectation of privacy in the object of the challenged search? Second, is
society willing to recognize that expectation as reasonable?” California v. Ciraolo,
476 U.S. 207, 211 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)).

Though the majority does not discuss the first prong of this test, Skinner’s use
of the phone arguably manifests his subjective expectation of privacy in his GPS location
No. 09-6497 United States v. Skinner Page 18

information. In fact, the majority aptly points out that the phone was trackable in a way
that Skinner most likely did not anticipate. Skinner’s erroneous belief that the phone
was untrackable, or even his general ignorance of the phone’s GPS capabilities, supports
the conclusion that Skinner had a subjective expectation of privacy in this information.

The critical question, then, is whether society is prepared to recognize Skinner’s
expectation of privacy as legitimate. The majority implicitly answers this question in
the negative, focusing on the criminal conduct in which Skinner was engaged and
declaring that “[t]he law cannot be that a criminal is entitled to rely on the expected
untrackability of his tools.” This seems to suggest that, assuming Skinner has a
subjective expectation of privacy in the cell phone, it is not one that society is prepared
to recognize as legitimate because he used the phone in the commission of a crime.
While this circuit’s law is not well developed on this point, numerous courts have held
that privacy expectations are not diminished by the criminality of a defendant’s
activities. See, e.g., United States v. Hicks, 59 F. App’x 703,706 (6th Cir. 2003) (“it is
far from clear that the legitimacy of one’s privacy expectation can be made to depend
on the nature of his activities—innocent or criminal”); United States v. Pitts, 322 F.3d
449, 458 (7th Cir. 2003) (“We may not justify the search after the fact, once we know
illegal activity was afoot; the legitimate expectation of privacy does not depend on the
nature of the defendant’s activities, whether innocent or criminal.”); United States v.
Fields, 113 F.3d 313, 321 (2d Cir. 1997) (“We also reject the government’s argument
that the illegal nature of Fields’ activities made any expectation of privacy regarding the
premises unreasonable.”); United States v. Taborda, 635 F.2d 131, 139 n.10 (2d Cir.
1980) (“We disagree . . . that the amount of Fourth Amendment recognition accorded to
a person’s privacy expectations may vary solely on the basis of whether his activity is
criminal or innocent.”). To hold otherwise would ignore the fact that “many Fourth
Amendment issues arise precisely because the defendants were engaged in illegal
activity on the premises for which they claim privacy interests.” Fields, 113 F.3d at 321.

On the other hand, it bears noting that courts have declined to recognize a
“legitimate” expectation of privacy in contraband and other items the possession of
No. 09-6497 United States v. Skinner Page 19

which are themselves illegal, such as drugs and stolen property. In United States v.
Bailey, we explained the important distinction, for Fourth Amendment purposes,
between the electronic monitoring of contraband and non-contraband items, stating:

[T]here is a clear line of demarcation between, on the one hand,
contraband and other items, such as stolen goods, whose possession is
illegal, and on the other, goods, whatever their suspected use, whose
possession is legal. The narcotics peddler in whose heroin a beeper is
planted has no privacy interest in the substance; but the same is not so of
legally-possessed substances into which a beeper is placed, even if these
are destined later to be used in the commission of a crime. . . .
The rationale of the Government's argument would authorize
warrantless beeper surveillance of laboratory equipment, handguns, or
any other legitimately owned item the Government suspected would be
used to commit a crime. The fourth amendment contains no such
exception. If the Government reasonably suspects non-contraband items
will be used for criminal purposes, presumably it can articulate sufficient
grounds to convince a neutral magistrate to issue a warrant authorizing
beeper surveillance of those items. For fourth amendment purposes, there
is a clear distinction between contraband and other property.

628 F.2d 938, 944 (6th Cir. 1980) (emphasis added). Although the majority states that
pay-as-you-go phones are presumably more difficult to trace, perhaps implying that
possession of such phones is somehow illicit or suspicious in itself, Skinner’s phone was
not contraband and his possession of the phone was not illegal. Nevertheless, the
majority holds that Skinner had no expectation of privacy in the data emitted from the
phone because he was using the phone in the commission of a crime. This is in direct
conflict with the principle we articulated in Bailey.

In support of its conclusion, the majority relies on United States v. Knotts,
wherein the Supreme Court found that the government’s use of a beeper to track the
whereabouts of a suspect “amounted principally to the following of an automobile on
public streets and highways.” 460 U.S. 276, 281 (1983). According to the majority,
there is no meaningful distinction between this case and Knotts because “[w]hile the cell
site information aided the police in determining Skinner’s location, that same
information could have been procured through visual surveillance.” It is not accurate,
however, to say that police in this case acquired only information that they could have
No. 09-6497 United States v. Skinner Page 20

otherwise seen with the naked eye. While it is true that visual observation of Skinner
was possible by any member of the public, the public would first have to know that it
was Skinner they ought to observe. This case is thus distinguishable from both Knotts
and United States v. Forest, 355 F.3d 942 (6th Cir. 2004), in which officers had already
identified and undertaken visual surveillance of a particular suspect. Authorities’ use
of electronic surveillance in those cases was used to aid surveillance already initiated.
In this case, police had not and could not establish visual contact with Skinner without
utilizing electronic surveillance because they had not yet identified the target of their
search. Authorities did not know the identity of their suspect, the specific make and
model of the vehicle he would be driving, or the particular route by which he would be
traveling. Moreover, officers could not have divined any of this information without the
GPS data emitted from Skinner’s phone; therefore, they cannot be said to have merely
“augmented the sensory faculties bestowed upon them at birth.” Knotts, 460 U.S. at 282.

I would not characterize the question before us as whether society is prepared to
recognize a legitimate expectation of privacy in the GPS data emitted from a cell phone
used to effectuate drug trafficking. Rather, in keeping with the principle that the law
affords the same constitutional protections to criminals and law-abiding citizens alike,
the question is simply whether society is prepared to recognize a legitimate expectation
of privacy in the GPS data emitted from any cell phone. Because I would answer this
question in the affirmative, I cannot join Part II.A of the majority opinion.

B. Good faith exception

While I believe that authorities were required to get a warrant before effecting
the search in this case, I nevertheless agree that Skinner’s motion to suppress was
properly denied. Therefore, I agree with the majority’s conclusion that the district court
should be affirmed.

In United States v. Leon, the Supreme Court noted that the Fourth Amendment
does not itself proscribe the introduction of illegally seized evidence in all proceedings
or against all defendants. 468 U.S. at 906. Rather, the “wrong condemned by the
Amendment is ‘fully accomplished’ by the unlawful search or seizure itself,” and the
No. 09-6497 United States v. Skinner Page 21

“use of fruits of a past unlawful search or seizure ‘work[s] no new Fourth Amendment
wrong.’” Id. The issue before the Court in Leon was whether the sanction of exclusion
is appropriate where officers act in reasonable reliance on a search warrant later found
to be defective. Id. at 900. In considering the question, the Court weighed “the costs
and benefits of preventing the use . . . of inherently trustworthy tangible evidence
obtained in reliance on a search warrant issued by a detached and neutral magistrate that
ultimately is found to be defective.” Id. at 907. The Court recognized that an
“unbending application” of the exclusionary rule “would impede unacceptably the truth-
finding functions of judge and jury.” Id. Moreover, where officers acted in objective
good faith, application of the rule would not serve its remedial objectives. Id. at 907-08.
The purpose of the exclusionary rule, after all, is to “deter police misconduct rather than
to punish the errors of judges and magistrates.” Id. at 916. Thus, an assessment of the
flagrancy of the police misconduct, if any, is an important step in determining whether
the “deterrent effect of the exclusionary rule” would be served under the facts of a
particular case. Id. at 911.

There are some circumstances in which the good faith exception to the
exclusionary rule does not apply. For instance:

1) when the warrant is issued on the basis of an affidavit that the affiant
knows (or is reckless in not knowing) contains false information; 2)
when the issuing magistrate abandons his neutral and detached role and
serves as a rubber stamp for police activities; 3) when the affidavit is so
lacking in indicia of probable cause that a belief in its existence is
objectively unreasonable; and 4) when the warrant is so facially deficient
that it cannot be reasonably presumed to be valid.

United States v. Thomas, 605 F.3d 300, 311 (6th Cir. 2011).

As Leon and its progeny make clear, the applicability of the exclusionary rule in
a particular case often depends upon the presence of deliberate police misconduct. In
the present case, officers should have obtained a warrant authorizing them to collect GPS
real-time location information for the 6820 phone; instead, they applied for and were
issued an order. But this error does not necessarily mean that application of the
exclusionary rule is warranted. The good faith exception enunciated in Leon, though not
No. 09-6497 United States v. Skinner Page 22

expressly applicable to the kinds of orders at issue in the present case, could be extended
if the purposes of the exclusionary rule would not be served by its application. Because
there is no indication of police misconduct and officers clearly had probable cause, if not
a warrant, to conduct the challenged search, I would affirm on this ground.

According to the Government’s Response, authorities were unsure about the
proper procedural path to follow in order to get authorization to collect GPS and ping
data. (R1, DE 39 at 13.) In hindsight, they erroneously obtained a court order when
they should have obtained a warrant. However, the sworn affidavits made in support of
the Orders were nineteen pages and five pages long, respectively.1 They were not “bare
bones” affidavits, nor were they filled with knowing or reckless falsehoods. They
detailed a wealth of information regarding the West drug operation collected over the
span of many months of legal surveillance and investigation. Based on conversations
recorded through the cooperation of a confidential informant, authorities obtained
detailed information regarding an upcoming drug run. They also learned that they might
be able to track the whereabouts of the courier known as “Big Foot” by collecting data
emitted from a cell phone they had reason to believe was in his possession. This would
enable authorities to seize half a ton of marijuana and potentially identify additional co-
conspirators. Had these same affidavits been presented in support of an application for
a warrant rather than a court order, they would almost certainly have been sufficient to
establish probable cause.

There is no evidence that officers in this case engaged in any intentional
misconduct; rather, it appears they made a procedural error. Officers relied in good faith
on a court order, issued by a neutral and detached magistrate, which they reasonably
believed authorized them to collect GPS-location information. Although proper in
regard to most of the data collection it authorized, the order was later determined to be
defective as to the authority to collect GPS and other location-identifying information.
Nevertheless, officers had probable cause to conduct the search, and the information

1
The five-page affidavit for the second order relies on and essentially incorporates by
reference the nineteen-page affidavit in support of the first order.
No. 09-6497 United States v. Skinner Page 23

establishing that probable cause was presented to the magistrate judge in the affidavits
supporting the application for a court order. The fact that officers had probable cause
means that this is not a case in which officers deliberately and wrongfully sought a court
order, which requires a less demanding showing than probable cause, in the hopes of
gaining some advantage to which they were not entitled. Presumably, if the document
presented to the magistrate judge had been labeled an application for a warrant as
opposed to a court order it would have been granted. Thus, an extension of Leon to the
Title III order in this case would be appropriate because suppression would not serve the
purpose of deterring police misconduct. On these grounds, I would affirm.