In Carpenter v. United States, __ U.S. __, __ S.Ct. __, 2018 WL 3073916 (June 22, 2018), the Supreme Court ruled that when the government obtains long-term, historical cell site location information (CSLI) about a person, it conducts a Fourth Amendment search and so “the Government must generally obtain a warrant supported by probable cause before acquiring such records.” I previously blogged about Carpenter here.
That post referenced the possibility of using a court order supported by probable cause in lieu of a search warrant. The idea behind that suggestion was that some of the statutory execution procedures associated with search warrants are an awkward fit for this type of order. For example, G.S. 15A-252 requires that an officer executing a warrant must “read the warrant and give a copy of the warrant application . . . to the person to be searched, or the person in apparent control of the premises . . . to be searched.” In a case involving CSLI, is the officer supposed to read the warrant to Verizon? Or to the suspect, even though he or she will not be present at the search? But since I wrote my prior post, I’ve been asked several times whether using a court order based on probable cause in place of a search warrant would really be permissible. This post attempts to answer that question.