SCOTUS: Police State Surveillance Dealt a Setback, but Future Uncertain

Yesterday, the Supreme Court handed down its decision in the case of Carpenter v. United States, reversing and remanding Mr. Carpenter's conviction for armed robbery.  That conviction had been obtained in part by using detailed Cell Site Location Information (ACSLI), which the police acquired without a warrant and which showed Mr. Carpenter's whereabouts at the time of various crimes.  This procedure, which allows law enforcement ready access to the whereabouts of every American with a cell phone every minute of his life, was authorized by Congress in the Stored Communications Act of 1986.

In this case, the government obtained Carpenter's CSLI through use of a subpoena signed by a federal magistrate, which was based on "reasonable grounds" and a representation that the records were "relevant and material to an ongoing criminal investigation" – quite a departure from a warrant based on probable cause, as required by the Fourth Amendment.

In this case, the government had argued that cell phone users "voluntarily convey" this information to their cell phone providers, even though few people even know what CSLI is or that it is being collected any time their phones are turned on, even when they are not using them.  However, because CSLI stored by cell phone companies is described as a "business record" being held in the hands of a "third party," a number of prior cases have ruled that the Fourth Amendment has no application whatsoever.  Seizing the records does not constitute a search even in the minds of the pro-government judges who developed that peculiar theory.

Chief Justice Roberts wrote the majority opinion and was joined by the four liberals – Justices Breyer, Ginsburg, Kagan, and Sotomayor.  Justices Kennedy, Thomas, Alito, and Gorsuch each filed a separate dissenting opinion.


To be sure, Chief Justice Roberts's opinion comes down on the right side of the issue – protecting a person from having his movements tracked at the whim of the government without a warrant.  Additionally, there are helpful rhetorical phrases in the opinion but few clear principled restraints on government.  Roberts notes that cell phone records are increasing, more precise and pervasive, and can be compiled for an unlimited period in the past.  He argues that it is the job of the Court to protect Americans from the advances of science, to "preserve the degree of privacy against government that existed when the Fourth Amendment was adopted."

However, in spite of the good sentiments expressed, the Roberts opinion is based on notions of "reasonable expectations of privacy" and allows future judges to make constitutional decisions based on their own personal opinions as to how intrusive they feel that the government's actions were – rather than any type of objective constitutional standard.

Unfortunately, the Roberts opinion is careful not to upset any of the Court's precedents, no matter how bad those precedents may be.  Neither does the opinion create much of any legal principle that could constrain judges in future cases.  Instead, the majority created two balancing tests to be added to future Fourth Amendment privacy‑based cases: First, "the need to avoid 'arbitrary power' and the importance of 'plac[ing] obstacles in the way of a too permeating police surveillance.'"  Whatever that means.  Second, Chief Justice Roberts claimed that application of the third-party doctrine to override Fourth Amendment protection requires courts to scrutinize the nature and importance of the documents or data sought by the government.

It is good that the opinion imposes some limit on the government's ability to track every American every hour of every day.  However, the main takeaway from the Court's opinion is that – in this case and this case only – the government went too far.  We had hoped for a principled statement of limitations on government based on the Fourth Amendment's text, but we obtained little, almost none, of that.


While winning is better than losing, the Courts' five opinions read together reveal a Supreme Court deeply divided over the meaning of the text of the Fourth Amendment and the methodology to be employed by courts in the enforcement of its protections.  In that regard, the Carpenter decision was much like the Supreme Court's opinion in the Masterpiece Cakeshop decision, issued last week, where Justice Thomas concluded that the First Amendment had survived to fight another day.  Here, the Fourth Amendment has survived to fight another day, despite Justices Kennedy's, Alito's, and Thomas's position that law enforcement should not be much restrained.

Remarkably, Justice Gorsuch's dissenting opinion was the bright light in the bunch.  It revealed the fallacy underlying the "reasonable expectation of privacy test" created out of whole cloth in the Katz v. United States case in 1967.  It also dismissed the Court's longstanding "third-party doctrine," which assumes that records in the hands of a third party are never constitutionally protected.  Finally, Justice Gorsuch argues that the Court's decision settles little – except the case before it.

It is the last two pages of Justice Gorsuch's opinion that are the most important.  There, he provides the practicing bar with counsel as to how to win Fourth Amendment cases against increasingly constitutionally deaf law enforcement and prosecutors (and judges).  Justice Gorsuch's advice is simple: argue the text and original understanding of the Fourth Amendment!  Justice Gorsuch graciously states that "American courts are pretty rusty at applying the traditional approach to the Fourth Amendment."

Indeed, at every level, Carpenter's lawyers argued almost exclusively based on Katz's "reasonable expectation of privacy analysis," which bears no relation to the Fourth Amendment text or original public meaning.  Justice Gorsuch chastised Carpenter's counsel for their failure to make any property-based claims based on the property arguments rebirthed in United States v. Jones in 2012 and Florida v. Jardines in 2013, thus forfeiting these arguments.

The Katz privacy-based arguments traditionally made by lawyers seems to run in deep channels, and it remains to be seen if lawyers who went to law school before 2012 now will get Justice Gorsuch's message.  However, after yesterday's decision, there is absolutely no reason for counsel to continue to limit their Fourth Amendment claims to the Katz "reasonable expectation of privacy" test and, in the process, "fail[] to vindicate the full protections of the Fourth Amendment."

Both the Thomas and Gorsuch dissents provide plenty of fodder for the full development of a textual, property-based Fourth Amendment claim.  Truly, future litigants who fail to argue the property basis of the Fourth Amendment will be without excuse.

Robert J. Olson and Herbert W. Titus, of William J. Olson, P.C., have filed four amicus briefs in the protection of cell site location information.  One was filed on the merits in the Supreme Court in Carpenter v. United States, two were filed in Graham v. United States (one in the Fourth Circuit and one in the U.S. Supreme Court), and one in Zodhiates v. United States in the Second Circuit.

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