Supreme Court Continues Its Modernization Campaign: Requires Warrants For Some Cell Phone Searches

Chief Justice Roberts joins the liberals to limit warrantless searches of cell phone data.

This morning, the Supreme Court issued a major decision about warrantless searches. In Carpenter v. United States, Chief Justice John Roberts joined the four progressive justices, to form a 5-4 majority, ruling that police had to obtain a warrant to track a cell phone user’s location via cell phone towers.

Ken White, lawyer and the blogger better known as @Popehat, wrote the best lead about the decision:

The technology at issue was basically explained in Batman: The Dark Knight. In that movie, Batman turns every cell phone into a tracking device (with sound!) that basically allows him to auto-locate any person, anywhere in Gotham. Upon viewing the technology, Lucius Fox tells Batman:

Beautiful… unethical… dangerous. You’ve turned every cellphone in Gotham into a microphone… This is *wrong*… This is too much power for one person.

Today, John Roberts will be playing the role of Lucius Fox!

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Timothy Carpenter is not The Joker, but he appears to be a bad dude. He was convicted for a series of armed robberies, and sentenced to 116 years in prison. But key evidence against him came from cell phone towers. The police used cell-site records, obtained from Carpenter’s service provider, that placed him in the vicinity of the crimes at the times they were committed.

Carpenter challenged the evidence, saying that law enforcement never obtained a warrant for those records. It was a longshot challenge. The Supreme Court has long established that Fourth Amendment protections against warrantless searches and seizures do not extend to information that is willingly shared with third-parties. Cell phone data is generally thought to be willingly shared, and thus receives diminished Fourth Amendment protections.

But John Roberts today yielded to… modernity. Roberts called the data cataloged by cell phones “detailed, encyclopedic, and effortlessly compiled.” He also said that normal rules of voluntary sharing don’t necessarily apply to cell phone usage because “cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society.” And then Roberts also said cell-site location information (CSLI) is compiled without any “affirmative act” of the user. They’re tracked simply because they have a cell phone.

Bringing it all together, here is a wall of text from the case that really is like a throbbing romance novel for people who are into Fourth Amendment fan/fic:

The Government contends that the third-party doctrine governs this case, because cell-site records, like the records in Smith and Miller, are “business records,” created and maintained by wireless carriers. But there is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers.

The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. Smith and Miller, however, did not rely solely on the act of sharing. They also considered “the nature of the particular documents sought” and limitations on any “legitimate ‘expectation of privacy’ concerning their contents.” Miller, 425 U. S., at 442. In mechanically applying the third-party doctrine to this case the Government fails to appreciate the lack of comparable limitations on the revealing nature of CSLI.

Nor does the second rationale for the third-party doctrine—voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as the term is normally understood. First, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Riley, 573 U. S., at ___. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.

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Roberts stressed that his decision was narrow. He tried to limit it to cell phone towers, limit it to the particular length of time over which Carpenter was tracked, and acknowledged all the normal exigency exceptions would exist for law enforcement trying to catch a terrorist or whoever by getting cell phone data without a warrant. But the core of the holding was this:

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.

And boy were the conservatives pissed. All four, ALL FOUR of the disagreeing justices filed separate dissenting opinions. SCOTUSblog awesomely and dryly reports:

Justice Kennedy filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Justice Thomas joined. Justice Gorsuch filed a dissenting opinion.

Daaayum! Batman just said, “I need to catch this man” and left it at that.

Here’s a line from each dissent.

Clarence Thomas used italics like Trump uses all-caps:

The Fourth Amendment guarantees individuals the right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” (Emphasis added.) In other words, “each person has the right to be secure against unreasonable searches . . . in his own person, house, papers, and effects.”

Samuel Alito asks us to think about the cops, those poor souls who can’t be bothered to fill out some basic paperwork to ask for a warrant that a judge will surely grant if they have any probable cause whatsoever:

The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.

Neil Gorsuch… f**king Neil Gorsuch man. I can’t believe I’m going to have to read this crap for the rest of my professional life. The Supreme Court case Katz v. U.S. established the “reasonable expectation of privacy” that governs our Fourth Amendment jurisprudence, and so naturally Gorsuch wants to just ignore all that and start from 1791:

There is another way. From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law. Jardines, 569 U. S., at 11; United States v. Jones, 565 U. S. 400, 405 (2012). The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. Though now often lost in Katz’s shadow, this traditional understanding persists.

Although he doesn’t state it clearly, because Gorsuch mistakes condescension for clarity, he seems to come down on kicking the case back down to the lower courts to resolve this persistent “traditional understanding” he alone seems to remember.

Just to kick some more dirt on Gorsuch, please note that Merrick Garland OR ANTONIN SCALIA would have made this case 6-3. Scalia was always a strong defender of the Fourth Amendment.

And then there’s Anthony Kennedy. Yesterday, he dragged tax law into the 21st Century with his opinion in Wayfair. Today…

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.

When I was in law school, I hated Kennedy. I found his outcome-based opinions devoid of any coherent ideology beyond “no seriously, the First Amendment is the only one I care about” to be frustrating. Now… I kind of love him. He figures out who he wants to win and goes from there. It’s exactly what I would do. I DGAF. Intellectual consistency is the hobgoblin of little minds, says me. I’d put on the robe and say “Just to be clear, I’m rooting for everybody black” and take it from there.

In any event, the Court has dragged the Fourth Amendment a little further into the modern world. I’ll try to remember that victory when they drag religious tolerance back into the Middle Ages next week in Trump v. Hawaii.

Carpenter v. United States [Supreme Court]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.