Discussion of Justice Kennedy’s dissent

In cases that where the defendant, through his/her attorney prevail in the higher courts, there is an awesome temptation to skip reading the dissent. After all, it has as much precedential value as what’s written here in this blog.

For some, the temptation arises because, when one reads between the lines, one reads “but he’s going to go free”!

For others, there is nothing to learn from the dissent that’s of any use to the criminal defense lawyer. There’s so much that we have to cram into our heads these days, why cram information of which we have no practical use?

In Carpenter v. United States, every dissent here is a necessary read if you want to be most prepared to counter the prosecution and your judge. While there is undoubtedly the “I don’t want the defendant to go free” sentiment in these opinions, these opinions not only give us a better understanding of what the majority is trying to say, one can see the outlines of our opponent’s future arguments in these opinions. To understand these dissenting opinions is to better understand our future opposition in court.

Starting in this post with Justice Kennedy’s dissent, he wrote a 22 page dissenting opinion that was joined by Justices Thomas and Alito (although they both wrote their own dissenting opinions that will be discussed in future posts. This opinion was almost as long as the majority opinion itself. It has the outlines of arguments I believe we are going to see in the future. Justice Kennedy’s opinion focuses mainly on the third-party doctrine, stating his fervent belief that the doctrine applies here, so therefore there is no expectation of privacy that one might have in one’s CSLI records.

The establishment of a “new rule”

There are two diametrically opposing ways to frame this discussion. One is that, as Justice Kennedy opines, the Court announced a “new rule” that states that the third-party doctrine does not apply to CSLI records (or at least these CSLI records).
The other is that, as the majority stated, the Court was rejecting the Government’s request to expand the third-party doctrine into CSLI records given that the nature of these records were never contemplated when the Court created the third-party doctrine.

The framing of the issue may matter a great deal. As will be discussed in future posts, one will expect prosecutors to argue that since this a new rule, the new rule is not retroactive and doesn’t apply to searches that occurred before the date of the Carpenter decision. One can also expect that prosecutors will argue that searches that occurred before the date of Carpenter were done in good faith by law enforcement so that an exception applies.

Without going into a further discussion of retroactivity or good faith right now, I believe it would be helpful to cite the majority’s language regarding law enforcement’s request to expand the third-party doctrine to argue that this is not a new rule at all despite Justice Kennedy’s protestations, among others.

Crippling of law enforcement vs. these CSLI records aren’t that helpful

With all due respect to Justice Kennedy, one can argue that he is talking out of both sides of his mouth in this dissent. On the one hand, Justice Kennedy writes that these CSLI records are not like GPS records in their privacy implications because CLSI is relatively imprecise because CLSI covers a large geographic area in comparison to Global Positioning Systems. At the same time, Kennedy argues that these records are necessary for law enforcement to possess, otherwise law enforcement will be crippled.

It seems to me that this illogical tension will be repeated often by our opponents in future litigation. Other than the obvious arguments that one can make such as it’s close enough, it seems to me that one can put the opposition on the spot as Chief Justice Roberts did by pointing out that it was important enough for the prosecutors to use and emphasize in closing argument. How can the technology be so imprecise to be legally relevant because it tracks a subject well enough but not one worthy of privacy interests since it doesn’t track the subject well enough? I predict this tension will continue to exist in future litigation.

Kennedy’s views on the Third-Party Doctrine and voluntariness

Justice Kennedy apparently believes the proper framework for analyzing this case is through applying the 20th Century commercial paper transactions to a 21st Century data-driven world. Kennedy relies heavily on the third-party doctrine cases of United States v. Miller (425 U. S. 435 (1976)) and Smith v. Maryland (442 U. S. 735 (1979)) to argue that just about no matter what personal and sensitive information a third-party may possess, the Government may use a subpoena to obtain records. Curiously enough, Kennedy frames the subpoena issue not as an exercise of governmental power, but as a right bestowed onto the government.

The Miller case, if we limit it just to its facts, dealt with checks and deposit slips for which the defendant made a voluntary transaction with same said bank. While the majority in Carpenter points out that there is no voluntary act on the part of Carpenter other than turning on the phone, Kennedy would make no distinction. He would seem to hold that almost any record held by a third party would not have an expectation of privacy.

Smith v. Maryland involved the use of a pen register that was installed by law enforcement on telephone company property to identify telephone numbers. The Court there specifically stated that people do not maintain a privacy interest in the telephone numbers that they dial to make calls. The Court there pointed out that there is no issue as to the privacy of the contents of the call, but just the number that Smith himself dialed to make the call in the first place. The Court there ruled that Smith probably had no expectation of privacy in the number he dialed, and even if he did, it wasn’t legitimate.

It seems to me that this distinction is an important one for which Justices Kennedy, Alito, and Thomas take a complete pass. An argument can be made that the third-party doctrine must be limited to information in the possession of that third party for which the subject targeted made an affirmative act to engage with the third party. That seems to be the logical result if Miller and Smith are limited to their facts, which is something the dissenters refuse to do.

Curiously enough, Justice Kennedy states that Miller and Smith have limits in their application, but he does not really explain what those limits are. He states that Miller and Smith may not apply when the Government
obtains the modern-day equivalent of an individual’s own “papers” or “effects” using an 1878 case regarding mail carriers and a 2010 6th Circuit case regarding emails held by a service provider, but does not distinguish why emails would be “papers” or “effects” for the purposes of the Fourth Amendment but a compendium of every place you have visited that your phone tracks is not. It seems to me that this lack of precise definition of “papers” or “effects” is something worthy of argument for expansion by defense counsel.

Kennedy’s views on property rights and privacy expectations

Kennedy accuses the Carpenter majority of unhinging Fourth Amendment doctrine from the property-based concepts as the analytic framework that pertains in these cases despite the fact that the Chief Justice cites a line of cases that stand for the proposition that property rights are part of the analytical framework, just not the only part.

In sum, Kennedy claims that since Carpenter doesn’t own or possess the records, that finishes the inquiry. He claims that the only question is whether the Government searched anything of Carpenter’s when it obtained the cell-site records. He believes that Miller and Smith squarely answer the question for the Court.

Maybe I am blind, but that language is not in either the Miller or Smith opinions on third-party doctrine that I can see. Kennedy completely ignores the voluntariness prong of both opinions entirely. It’s my view that when the prosecution argues that the “officers did not search anything belonging to the defendants within the meaning of the Fourth Amendment,” one must argue that the relevant question is whether the record sought is based on a voluntary affirmative act by the defendant. If not, then the defendant maintains an expectation of privacy within that record.

“The Six Day Rule”

In Carpenter’s case, the Government sought and received seven days of Court records. Does that mean that records that are extensive, but less than seven days of records, can be sought without a warrant? This is an argument, based on language in this dissent that we may expect to see come forth as Kennedy turns the facts of the Carpenter into a Court created “arbitrary 6-day cutoff” with a “perverse effect of nullifying Congress’ reasonable framework”.

Of course, there is no “six day rule” anywhere really in the majority opinion. But we can expect prosecutors to argue that the majority’s wish to decide the Carpenter case just on its facts creates such a rule.


Given the references to the “future” in my post about the majority opinion, it’s interesting that Kennedy touches upon the same concept yet he turns the concept on its head. He essentially argues that since future developments in technology are unclear, the Court should take no action until its role in society has become clear. In other words, err on the side of allowing mass surveillance until we have a full understanding of the technology of mass surveillance. Not legally helpful to the defense lawyer, but very Orweillian, indeed.

Any comments or suggestions, please send to billwolf@wolfcriminallaw.com.

The next post will cover Justice Thomas’ dissent.

Related Posts
  • Fighting Google Keyword Warrants Read More
  • Three new cases coming up that will affect Carpenter litigation, all in Massachusetts. Read More
  • Middle District of Tennessee holds Iphones in plain view can be seized during a lawful arrest or encounter. Read More