CARPENTER V. U.S. & CELL-SITE LOCATION INFO — WHAT’S IT ALL ABOUT?
Posted by Edmund R. Folsom, Esq.
June 26, 2018.
WHAT IS CARPENTER ALL ABOUT?
On Friday, June 22, 2018, in Carpenter v. United States, __ U.S. __ (2018), the Supreme Court declared that the Government needed a search warrant to access “cell-site location information” (CSLI) that it gathered and used to prosecute Timothy Carpenter. Carpenter was involved in a series of robberies in Michigan and Ohio. The F.B.I. learned of Carpenter’s involvement from his confederates who gave the FBI Carpenter’s cell phone number.
Cell phones constantly send out signals to cell phone sites. Every time a phone connects to a cell phone site the site generates a time-stamped record of the connection. The records are known in the cell phone business as cell-site location information, or CSLI. The cell phone companies keep records of CSLI which they use for their own business purposes. Statutes place limits on what the cell phone companies are allowed to do with the information. When police get hold of the information, it allows them to track where the person’s phone was located at times police are interested in knowing about. In Carpenter’s case, F.B.I. agents gathered CSLI from two cell phone carriers, covering dates during Carpenter’s robbery spree. To get the records, the Government secured orders from a judge under the federal Stored Communications Act. The Stored Communications Act calls for a court to issue an order compelling disclosure of CSLI when the Government demonstrates “specific and articulable facts showing that there are reasonable grounds to believe” the records it seeks “are relevant and material to an ongoing criminal investigation.” In Carpenter’s case, the Government sought and received an order for 152 days of records from MetroPCS and 7 days from Sprint. In response, MetroPCS turned over records covering 127 days. Sprint produced 2 days of records covering a period when Carpenter’s phone was “roaming” in northeastern Ohio. From these records, the Government gleaned 12,898 location points showing Carpenter’s movements — an average of 101 location points per day during the covered period. The Government used these location points at Carpenter’s trial. As to four of the robberies, the Government argued that the records showed Carpenter was at the location of the robberies at the exact times they occurred. Carpenter was convicted of all but one of the charges against him and was sentenced to more than 100 years in prison.
Before trial, Carpenter brought a motion to suppress the CSLI. He argued that the Government’s acquisition of those records was a “search” within the meaning of the Fourth Amendment to the United States Constitution because he had a reasonable expectation of privacy in them. He also argued that, because acquiring the records was a Fourth Amendment “search” the Government was required to get a search warrant. A search warrant would have required the Government to show probable cause that the CSLI records held evidence of the crimes. Even though the Government followed the applicable statute to secure the records, when the Fourth Amendment requires a search warrant, the Fourth Amendment trumps a statute. Carpenter wanted the evidence excluded from use against him based on the Government’s failure to secure a search warrant. The trial court denied Carpenter’s motion to suppress the evidence. After Carpenter was convicted, he appealed to the Sixth Circuit Court of Appeals, and they upheld the trial court. The Sixth Circuit looked to precedent from the U.S. Supreme Court and decided that Carpenter had no “reasonable expectation of privacy” in the CSLI records because he shared the location information with his wireless carriers. Carpenter appealed to the U.S. Supreme Court. The U.S. Supreme Court held that Carpenter had a reasonable expectation of privacy in the CSLI, that the Government’s acquisition of the information was a Fourth Amendment search, and that a search warrant was required. The Supreme Court sent the case back (“remanded” it) to the trial court for further proceedings.
The Fourth Amendment provides as follows: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As a general proposition, whenever police conduct a search, they are required to have a search warrant which, as you can see from the text of the Fourth Amendment, must be supported by probable cause. When a person claims evidence should be suppressed because of a Fourth Amendment violation and should not be used against the person in a criminal case, that claim raises a series of questions. Those questions may usefully be asked in the following order: (1) Was there a search or seizure at all; (2) If there was a search or a seizure, was it unreasonable; (3) If there was a search or seizure, and if it was unreasonable, does the person complaining about it have “standing” to complain; and (4) If there was an unreasonable search or seizure, and if the person who is complaining has standing to complain about it, what should be done about it – what should the “remedy” be? Most of the Carpenter opinion deals with the first of these questions, although the opinion also touches on the second.
Determining whether a Fourth Amendment “search” occurred involves two potential lines of inquiry: (1) whether the Government activity at issue involved an intrusion into a person’s “reasonable expectation of privacy;” and (2) whether the Government intruded upon the person, himself or herself, or upon the person’s house, papers or effects, within the meaning of the protections specifically identified in the Fourth Amendment’s text. Carpenter pursued a “reasonable expectation of privacy” theory. The “reasonable expectation of privacy test” began with Katz v. United States, 389 U.S. 347 (1967). That case involved FBI agents attaching a listening device to the outside of a phone booth that Katz used to carry out illegal gambling activity. Katz moved to suppress the evidence that the Government gathered as it listened to him carry on phone conversations inside the booth. Katz claimed that the Government committed a Fourth Amendment “search” by gathering evidence from a “constitutionally protected area” – the phone booth. The Government disagreed, claiming the phone booth was not a “constitutionally protected area.” Instead of deciding whether the phone booth was or was not a “constitutionally protected area,” the Supreme Court declared that “the Fourth Amendment protects people, not places,” and went on to decide that the Government’s actions constituted a search because they “violated the privacy upon which [Katz] justifiably relied.” In a concurrence, Justice Harlan stated his understanding that, in the Court’s test for whether a search occurred, “there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”
After Katz, Justice Harlan’s explicitly twofold “reasonable expectation of privacy” test became the go-to test for determining whether a Fourth Amendment search occurred. The Supreme Court applied that test in later cases to decide that a person has no objectively reasonable expectation of privacy in information shared with third parties, in part because everyone knows that a third party might betray the person by passing the information along to anyone else. In United States v. Miller, 425 U.S. 435 (1976), the Court decided that a bank customer had no objectively reasonable expectation of privacy in records of financial transactions held by his bank. The Court reasoned that the customer assumes the risk that such information, exposed to bank employees in the ordinary course of business, might be turned over to Government authorities. Later, in Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court decided that a telephone customer had no objectively reasonable expectation of privacy in records of his calls held in a “pen register” by the phone company. Relying on Miller, the Smith Court declared, “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” What, then, is the critical difference between CSLI held by Carpenter’s cell phone carriers and bank records or pen register records of phone calls?
The Carpenter Court distinguished Miller and Smith essentially on grounds that the government’s acquisition of the CSLI records was an intrusion of far greater magnitude than the acquisition of financial records in Miller or pen register information in Smith. Because of the level of detail about a person’s movements and associations revealed by CSLI, the Court stated, “[W]e hold that an individual maintains a legitimate expectation of privacy in the record of his physical movement as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.” However, in footnote 3 of its opinion, the Court left open the possibility the Government might acquire CSLI information for a briefer period without it constituting a Fourth Amendment search. In this connection, the Court stated, “It is sufficient for our purposes today to hold that accessing seven days of CSLI [the duration requested from Sprint] constitutes a Fourth Amendment search.” There is your bottom line: It is a Fourth Amendment search for the Government to seek 7 days of CSLI from a cell phone carrier. And, as the Court went on to explain, ordinary search warrant principles apply in answering the next question: Was the search “unreasonable” under the Fourth Amendment?
The Carpenter Court did not address whether any recognized exception to the requirement of a search warrant existed in the case, but none appears to, so the warrantless search was apparently unreasonable. That takes care of the first two questions in our 4-question series. The third is: Does Carpenter have standing to complain about the search? The Carpenter Court did not deal with this as a distinct issue, but Carpenter’s reasonable expectation of privacy in the CSLI establishes his standing to complain. If one of Carpenter’s codefendants sought to complain about the search, chances are extraordinarily high that the codefendant would lack standing. A codefendant would almost certainly not have a reasonable expectation of privacy in Carpenter’s CSLI.
WHAT DOES CARPENTER MEAN FOR CARPENTER, AND FOR OTHERS WITH PENDING CASES?
The last question in our 4-question series remains unanswered by the Carpenter opinion: What should be done about the unreasonable search – what should the remedy be? That is a question to be addressed on remand to the lower court, but there is no guarantee that the exclusionary rule will automatically be applied to bar use of the evidence against Carpenter on retrial. Keep in mind that the Government believed they were doing what was required of them. They followed the terms of the Stored Communications Act and made the required showing to secure court orders for the CSLI records. They had precedent from various Circuit Courts of Appeals supporting their assessment that nothing more was required. The Supreme Court has repeatedly reminded us in recent years that the exclusionary rule is a judicially created remedy for Fourth Amendment violations. Its sole purpose is to deter police from committing future Fourth Amendment violations. In that light, its application is limited to situations in which the Court believes its deterrent purpose is “most efficaciously served.” In Davis v. United States, 564 U.S. 229 (2011) (discussed below), the Supreme Court refused to apply the exclusionary rule in circumstances that have relevance here.
Back in the day, up until 2009, police used to rely on New York v. Belton, 453 U.S. 454 (1981), to search the entire passenger compartment of an automobile and all containers in it any time a recent occupant of the vehicle was arrested, under a bright-line “search incident to arrest” theory. The rationale underlying searches incident to arrest, generally, is to allow police to search the area within an arrested person’s immediate control to prevent the person from accessing a weapon or destroying evidence while being arrested. The rule of Belton was used to justify searches of automobiles without suspicion even after the arrested occupant was handcuffed and had no possibility of reaching the vehicle’s interior to find a weapon or destroy evidence. In 2009, the Supreme Court decided that Belton had been taken too far. In Arizona v. Gant, 556 U.S. 332 (2009), the Court re-explained Belton’s meaning, declaring that a search incident to arrest of an automobile’s passenger compartment is allowed only when the arrested person is “unsecured and within reaching distance of the passenger compartment at the time of the search.” Then came United States v. Davis. Davis was a passenger in a car that was stopped by police. The driver was arrested for OUI. The driver was handcuffed and placed in one police car while Davis was handcuffed and placed in another. While the driver and Davis were in handcuffs, in police cars, the police conducted a search of the passenger compartment of the vehicle Davis had recently occupied. Police found a gun in the pocket of a coat belonging to Davis and used it to prosecute him federally for possession of a firearm by a felon. The search took place before Gant was decided, but because Davis’s case was still on appeal when Gant was handed down, the rule Gant announced was applicable to the search in Davis’s case. That put Davis in good shape for the first 3 steps of our Fourth Amendment analysis. There was a search of the car Davis had been riding in and then of Davis’s coat. These searches, without probable cause, were unreasonable under Gant because by the time the vehicle and the coat inside it were searched both occupants had been removed and secured in handcuffs in police cars. Davis had standing to complain about the search of the coat because he had a reasonable expectation of privacy in it. So far, so good, but at the next stage of the analysis things went south for Davis.
As to what should be done about the unreasonable search of Davis’s coat, which led to discovery of the gun, the Supreme Court answered that the evidence should not be excluded from use against Davis. Why? Because, the Court explained, the exclusionary rule is a “bitter pill” that society must be made to swallow only as a “last resort.” It is not to be applied unless its heavy costs (letting the criminal escape punishment) are outweighed by its deterrent benefits. Everyone agreed that the police had acted in accordance with binding judicial precedent under Belton, as Belton was then understood. Applying the exclusionary rule would not have any deterrent effect. The police did nothing wrong. The exclusionary rule deters police misconduct. If police do nothing wrong, there is nothing to deter. Of course, if police were to act the same way after Gant, there would be something to deter. Davis was winning right up until step 4 of the analysis, and then he lost.
How will Carpenter fare at step 4? How will people with pending cases fare if their CSLI records were acquired by police in compliance with the Stored Communications Act but without a search warrant before Carpenter was decided? Will they be told that they are victims of unreasonable searches and have standing to object, but that their CSLI will not be excluded because excluding it would not deter police misconduct?
WHAT DOES CARPENTER MEAN FOR THE FUTURE?
Carpenter clearly informs police that they need a search warrant in the ordinary case if they are seeking at least 7 days of CSLI, but Carpenter does not make clear whether seeking 1 or 2 days, or 3 or 4, of CSLI also requires a search warrant. Still, police who want to be sure their evidence is usable will now seek a search warrant for any amount of CSLI in an ordinary case (no ongoing emergency or national security concern, etc.). But what about other kinds of personal information vacuumed up by private entities that police want to get their hands on? Carpenter reflects that a majority of the U.S. Supreme Court agreed what the Government did in Carpenter was a step too far. The implications apparently freaked-out a majority of 5, enough so they felt they had to step in and do something about it. Precedent leaned against finding that Carpenter had a reasonable expectation of privacy in information that he shared with his cell phone providers. But if Carpenter had no reasonable expectation of privacy in those records, that might leave him– and all of us — with no Fourth Amendment protections against the Government looking into the history of our every movement, nearly at will, on the barest of pretenses. To forestall the advancement of that parade of horribles, the majority essentially told us they know an unreasonable search when they see one, and they see one here. Exactly where the line was crossed that made acquisition of the CSLI a search, the Court will not say, but the line was crossed. Will the Court be able to draw principled lines in future cases based on its Carpenter analysis? Or will the analysis lead to an incoherent series of judgement calls as to whether a reasonable expectation of privacy was breached in each given case? Time will tell.
Don’t get me wrong, I am glad to have Carpenter’s small degree of protection from Government’s prying eyes. But Carpenter is not comforting. It reveals a seriously splintered Supreme Court struggling to deal with an age of electronic information gathering that threatens to make any expectation of any degree of privacy objectively absurd, forget unreasonable. Each of the four Carpenter dissenters wrote a separate dissent. With those dissents, the opinion runs 119 pages. Three dissenters join in the position that Fourth Amendment protections in persons, houses, papers and effects against unreasonable searches and seizures have nothing to do with business records containing personal information gathered and held by third parties. One Justice takes the separate position that the Katz reasonable expectation of privacy test has no support in the text or historical context of the Fourth Amendment and is a mistake that should be revisited in favor of returning to the Fourth Amendment’s specific, textual protections. Another writes separately to say he is concerned that Carpenter will wreak havoc on law enforcement’s ability to acquire records by subpoenaing them from third parties, instead requiring a showing of probable cause as a more general matter. Yet another Justice writes to suggest that the CSLI might be protected from unreasonable searches as a form of Carpenter’s “papers” or “effects” within the meaning of the Fourth Amendment’s text. In his view the textual, positive law analysis has been neglected in favor of the mistaken reasonable expectation of privacy analysis of Katz, and the majority opinion simply adds to the confusion that Katz has wrought.
We are not dealing well with our brave new world of constant corporate/government surveillance, and I seriously question the ability of the Supreme Court’s Fourth Amendment jurisprudence to save us from it. Carry on.