By Ken Wallentine
Carpenter v. United States, U.S., No. 16-402, argued November 29, 2017
Justice Neil M. Gorsuch took center stage with his robust questions from the bench during arguments in the Carpenter v. United States case, the one likely to determine whether the government must obtain a warrant for historical cellphone location records from mobile phone service providers. Present law requires only an order issued under the Stored Communications Act. Such orders require only reasonable suspicion that a crime has taken place, not the probable cause standard required for warrants.
Justice Gorsuch suggested that the government is far astray of the Founding Father’s view of property rights. He quipped, “You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information.” Justice Gorsuch was referring to Writs of Assistance, which dramatically differ from orders for historical cell site location information. The Writs of Assistance empowered British troops, officials and loyal sympathizers to enter private homes and conduct broad searches. Notwithstanding, it seems clear that Justice Gorsuch favors a “property interest” approach to Fourth Amendment analysis, rather than the “expectation of privacy” analytical model that has held fast for five decades, ever since the Supreme Court’s ruling in Katz v. United States (389 U.S. 347 (1967)).
But the tension between the two analyses dates back even further. During Prohibition, Roy Olmstead and approximately 50 others were involved in a massive bootlegging operation. Federal agents listened in on their telephone calls for months, gathering enough evidence for numerous arrests and raids. In Olmstead v. United States (277 U.S. 438 (1928)), the Court held that the warrantless wiretapping was permissible because the agents didn’t physically trespass on Olmstead’s property to eavesdrop.
Nearly 40 years later, the Court’s decision in Katz marked a sharp turn from years of precedent focusing on whether officers committed a physical trespass to gather evidence. Charles Katz made his living placing bets on basketball games across the nation, in violation of federal law prohibiting interstate gambling. To avoid the possibility of the FBI tapping his phone, Katz placed his bets in phone calls made from a series of public telephone booths along Sunset Boulevard in Los Angeles. The agents believed their wiretapping of a public phone was lawful. The Court disagreed, abandoning its “trespass doctrine” analysis and ruling that wiretapping counts as a search (physical intrusion is not necessary). In the decision, Justice Potter Stewart famously wrote that the Fourth Amendment “protects people, not places.”
More recently, in United States v. Jones (132 S.Ct. 945 (2012)), the Supreme Court held that installing a GPS tracking device to monitor Jones’ vehicle movements constitutes a search under the Fourth Amendment. The Court hearkened to a property rights analysis, holding that officers committed a trespass against Jones’ “personal effects.”
In the Carpenter arguments, Justice Elena Kagan queried whether the Jones holding should not directly lead to a similar ruling for historical cell site location information. After all, whether it is a GPS transmitter or a mobile phone, the pertinent information is the location data. The difference, of course, is that Carpenter voluntarily shared his location data with a third party—his mobile phone service provider. Much of the questioning and briefing concerns the Court’s holdings in United States v. Miller (425 U.S. 435 (1976)) and Smith v. Maryland (442 U.S. 735 (1979)), which held that people do not have a reasonable expectation of privacy in bank records (Miller) and pen register record of numbers dialed (Smith) when such records are disclosed to third parties. The Court’s decision in Carpenter v. United States may well signal the death of the third-party doctrine.
At the end of the day, the Court’s ruling will impact you and me far more than Carpenter. Carpenter is serving a 116-year prison term for his eight robbery convictions. Justice Alito asked, “Is any of this going to do any good? […] Is [Carpenter] going to get anything suppressed?” It is almost certain that the “good faith” exception to the exclusionary rule will prevent suppression of any of the evidence against Carpenter (the good faith doctrine was recognized in United States v. Leon, 468 U.S. 897 (1984)). Because the investigators used a court order to obtain Carpenter’s phone records, Carpenter can’t claim bad faith by the investigators, even if he “wins” his case at the Supreme Court.
Carpenter v. United States not only may upend the third-party doctrine, but the Court may move even closer to a strong property rights analytical model for digital privacy. The Court may decide that the Fourth Amendment protects people and places, particularly cyberplaces. The ripples of such a move would be felt for years to come as police develop investigative methods to challenge the ever-changing technology used for criminal purposes.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.