This morning the U.S. Supreme Court decided the long-awaited case on police access to cell-phone location records, Carpenter v. United States, No. 16-402. Chief Justice Roberts' opinion for the bare majority trims back the "third party" doctrine that one has no reasonable expectation of privacy in information belonging to and in the custody of a third party such as a telephone company. As a result, police will need a warrant supported by probable cause to obtain cell phone location records. The dissenting opinions have a variety of interesting perspectives, including questioning whether "reasonable expectation of privacy" is a valid basis for deciding the reach of the Fourth Amendment at all.
As important as all this is, none of it has anything whatever to do with the justice of the criminal case actually before the Court. Was Timothy Carpenter or was he not the mastermind of a series of robberies in which his henchmen "entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers' bags with new smartphones"? If he was, justice for the employees terrorized in these crimes requires that he go to prison for a long, long time. If he gets off because of today's decision that is a miscarriage of justice, and nothing in the text or history of the Fourth Amendment requires it.
The Fourth Amendment protects "[t]he right of people to be secure in the persons, houses, papers, and effects, against unreasonable searches and seizures ...." Except for "persons," these are all property of the person, and for much of our history the scope of the Fourth Amendment was tied to property rights. As the Supreme Court grappled with electronic communication in the middle of the twentieth century, it found a property focus insufficient. In Katz v. United States (1967), the Court expanded the scope of the Fourth Amendment to protect "reasonable expectations of privacy."
Who decides what is reasonable? In cases limiting the scope of the new Katz rule, the Court decided that there was no reasonable expectation of privacy in records kept by third parties containing information voluntarily disclosed by the subject of the investigation. Thus, a warrant was required to listen to the content of a phone call, but the number dialed (necessarily disclosed to the phone company to place the call) was fair game. Today's opinion of the Court holds:
We decline to extend Smith and Miller [the third-party cases] to cover these novel circumstances. Given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information]. The location information obtained from Carpenter's wireless carriers was the product of a search.Whether this is declining to extend those cases or partially overruling them is debatable. Justice Kennedy writes in dissent:
This case involves new technology, but the Court's stark departure from relevant Fourth Amendment precedents and principles is, in my submission, unnecessary and incorrect, requiring this respectful dissent.The new rule the Court seems to formulate puts needed,reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation. Adherence to this Court's longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case.
Is the answer to dump Katz altogether and return to a property-focused view of the Fourth Amendment, with appropriate adjustments to "property" to deal with new technology? Again from Justice Kennedy:
In concluding that the Government engaged in a search, the Court unhinges Fourth Amendment doctrine from the property-based concepts that have long grounded the analytic framework that pertains in these cases. In doing so it draws an unprincipled and unworkable line between cell-site records on the one hand and financial and telephonic records on the other.
I'm not sure about the correctness of that "long grounded" in the post-Katz era. Justice Kennedy is more inclined to soft-pedal the extent of the change Katz made rather than give it the heave-ho. Justice Thomas has no such reluctance.
The more fundamental problem with the Court's opinion, however, is its use of the "reasonable expectation of privacy" test, which was first articulated by Justice Harlan in Katz v. United States, 389 U. S. 347, 360-361 (1967) (concurring opinion). The Katz test has no basis in the text or history of the Fourth Amendment. And, it invites courts to make judgments about policy, not law. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence. I respectfully dissent.
Justice Alito joins Justice Kennedy's dissent and adds his own emphasizing the difference between a search and a subpoena.
Justice Gorsuch is also critical of Katz: "Little like it can be found in the law that led to the adoption of the Fourth Amendment or in this Court's jurisprudence until the late 1960s." In practice, "Katz has yielded an often unpredictable--and sometimes unbelievable--jurisprudence. Smith and Miller are only two examples; there are many others."
Like Justice Thomas, Justice Gorsuch calls for a return to a property-focused approach, with property rights being determined by external sources, such as legislation, and not the Court's view of what is "reasonable." In the present case, a strong argument could have been made for rights in the CSLI under federal statutes. See pp. 19-20 of his opinion, 118-119 of the PDF file. But Carpenter's lawyers didn't make such an argument; they were all-in for the Katz approach.
Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. See Byrd, 584 U. S., at ___ (slip op., at 7). Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not.
Given the closeness of today's opinion, this suggestion is worth heeding, even though it is in a dissent.
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