I consider this Supreme Court opinion to be mandatory reading for the entire criminal defense bar. It requires careful reading, as the opinion directly copes with the maxim that the law cannot keep up with technology.
The majority opinion as well as each dissenting opinion therefore require careful reading so future arguments on the scope and application of this decision may be well crafted. This post will discuss the majority opinion and the next posts will discuss each dissenting opinion in turn.
Chief Justice Roberts assigned the opinion directly to himself. This post will discuss the facts of the Carpenter case itself, the holding and its rationale, and the themes that developed from the writing of this opinion.
Facts of the Carpenter decision:
In 2011, police officers arrested four men suspected of robbing a series of stores. One of these four men gave information to law enforcement. Based on received information, prosecutors applied for court orders under 18 U.S.C. § 2703, also known as the Stored Communications Act. The court order was to obtain cell phone records for several suspects, including Mr. Carpenter.
Under this subsection d of this Act, an order for records may be signed when there are “specific and articulable facts showing that there are reasonable grounds to believe” that records sought “are relevant and material to an ongoing criminal investigation.”
Law enforcement obtained Carpenter’s records that spanned a four-month period. The Court noted that this meant that the Government obtained almost 13,000 location points cataloging Carpenter’s movements. This came to an average of 101 data points per day.
At his trial for robbery and use of a firearm during a crime of violence, in addition to seven of Carpenter’s “confederates” testifying that he was their leader, the prosecutors called an FBI agent as an expert witness about the cell-site data. The FBI agent produced maps that placed Carpenter’s phone near four of the charged robberies. Carpenter was convicted on all but one of the firearm counts. The Sixth Circuit affirmed, holding that these were business records held by wireless carriers. The Sixth Circuit found that Carpenter had no expectation of privacy in these records.
The Guideposts of this Opinion:
The majority opinion began by discussing some of the history behind the Fourth Amendment. Based on this history, the Court recognized that there are two basic guideposts that governed this decision: First is that the Fourth Amendment seeks to secure “the privacies of life” against “arbitrary power” (citing, Boyd v. United States, 116 U. S. 616, 630 (1886). Second, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance” (citing, United States v. Di Re, 332 U. S. 581, 595 (1948).
Resolving the tension between one’s expectation of privacy and the “third-party doctrine”:
The opinion notes that Carpenter’s case does not fit neatly within its prior precedents. One set of precedents has recognized that a person has an expectation of privacy in his physical location and movements. Another set of precedents states that one does not have a privacy interest in records that are kept by a third party such as a telephone company instead of the person himself or herself. This is the so-called “third-party doctrine”.
In resolving the tension between these two doctrines, the Court recognizes that it’s grappling with a technology that has the ability “to chronicle a person’s past movements through the record of his cell phone signals.” This tracking is similar to GPS monitoring the Court previously considered in United States v. Jones (565 U.S. 400 (2012)). Chief Justice Roberts wrote that, like GPS tracking of a vehicle, cell phone location information is “detailed, encyclopedic, and effortlessly compiled.”
As a result, the Court declined to extend the third-party doctrine to cell site location information due to the extensive nature of the tracking information. The Court explicitly held that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The majority therefore found that the location information obtained from Carpenter’s wireless carriers was the product of a search. They decided that the Government was not asking for a straightforward application of the third-party doctrine, but instead for a significant extension of the doctrine to a new category of information. The Court stated that the detailed chronicle of events that is compiled implicates privacy concerns that were never considered before in prior third-party doctrine cases. They also rejected the notion that one voluntarily assumes the risk by using the phone because the user doesn’t do anything to create these records other than turn on the phone.
Having found that the acquisition of Carpenter’s CSLI was a search, The Court also concluded that the Government must generally obtain a warrant supported by probable cause before acquiring such records. The Court rejected the notion that a court order pursuant to the Stored Communications Act will suffice to retrieve cell site location records in a case that had no exigent circumstances nor other special circumstance such as national security concerns.
The Sixth Circuit’s Decision was reversed and the case was remanded for further proceedings.
Themes and First thoughts about future applications of this decision:
This opinion provokes a lot of questions such as, To what other information or technology will this holding be applied? What kind of information held by third parties will require a warrant? Who will (and won’t) have standing to contest these searches? What will constitute an exigency to excuse a warrant?
Future litigation and decisions by the lower courts must be culled to provide defense counsel the best arguments with which to proceed, and the best counters to the Government’s future submissions.
For now, some clues are evident from the language used by Chief Justice Roberts which elicit some themes that prevail in the writing of this Opinion. Roberts took great care in his words to make his point, as well as quotes from giants from our past to breathe some life into the Fourth Amendment.
The amount of information
The Roberts court found the sheer amount of data to be compelling. Apart from given the sheer number of location entries compiled on Mr. Carpenter by the Government, the Roberts court uses phrases like “comprehensive chronicle”, “continuously scan”, “cataloging”, “monitor and catalogue”, “detailed and comprehensive,” “exhaustive chronicle,” “detailed chronicle”, “chronicle”, and “depth, breadth, and comprehensive reach.”
Black’s Law online defines “chronicle” as recorded description of events or happenings in the order of their occurrence.
Ballentine’s Law Dictionary defines “catalog” more typically as “a list of the articles to be offered for sale at auction, including representations as to the character of particular articles. A listing of merchandise for sale, sometimes with a secret code or system of letters, figures, and characters which show the cost and selling price.”
On an elementary level, the more information that’s collected, the more likely that a court will grant the information Fourth Amendment protection despite the fact that it is held by a third-party.
People v. Property
The Fourth Amendment has some of its roots in property rights. Some of the Justices in dissent apparently believe that the exclusive method to determine whether one has an expectation of privacy is one based on a property rights approach; that the Fourth Amendment protects physical spaces. To advocates of this approach, if one ventures out into the open air, one does not have protection against knowledge of where you were because you can be publicly seen.
The majority rejects this, stating simply that while this is a valid approach to viewing the Fourth Amendment, it’s not the only approach. In a footnote that I believe will be cited by defense lawyers repeatedly in future litigation, the Court rejects a property rights approach as a mandate in making privacy determinations and emphasized that the Court has “decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property.”
The theme suggests that, if defense counsel wishes to push back further against the third-party doctrine, that the more personal and intimate (and political) that the gleaned information becomes, the better the argument that the information sought by law enforcement deserves Fourth Amendment protection. The Court wrote that these records “hold for many Americans the ‘privacies of life.’” Defense counsel must now search for the privacy of life in the records sought to argue for suppression of those records.
The lack of detective gumshoe work
To rebut arguments that people can be seen out in public, hence no privacy interest in one’s location, the Court refers to the lack of traditional detective methods that are used to monitor people such as simply following the subject around. The majority was impressed by the fact that now, a detective can have someone push a button to acquire information on anyone who has a phone that’s “detailed, encyclopedic, and effortlessly compiled” to provide a “category of information otherwise unknowable.”
The digital age of apps, programs, search histories, and other information gives defense lawyers a tremendous opportunity to argue that detectives need to do more work to investigate someone than merely push a button, or ask an information peddler to push the button for them. Chief Justice Roberts wrote that the Court “must take into account more sophisticated systems already in use or in development” given this “seismic shift in digital technology.”
The Undiscovered Country
One must wonder if John Roberts is a fan of science fiction. In making the Court’s decision, the majority turns down an invitation to render decisions regarding other surveillance tools, writing what it says is a narrow decision based on its facts because it does not want the Court to “embarrass the future” by making speculative decisions on the unknowable (citing Frankfurter in Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944)).
This unknowable future in the rise of different and constantly improving technologies has been of concern to some members of the Court for generations. The Chief Justice reminded us of this in citing Justice Brandeis’ dissent in Olmstead v. United States (277 U. S. 438, 473–474 (1928)) that the “Court is obligated—as ‘[s]ubtler and more far-reaching means of invading privacy have become available to the Government’—to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.”
It’s up to us in the defense bar to remind judges of this obligation.
It’s up to us.
Please send any feedback and constructive criticism through futuristic electronic mail at billwolf@wolfcriminallaw.com.