Inquisitive police officers regularly ask suspects questions like “Can I take a look at your phone?” or “Can I see your phone?” These on-the-street requests may give rise to legal questions in court. For example, if the suspect hands over the phone in response, does that provide consent for the officer to search the phone? And if so, what is the scope of the search that the officer may conduct? This post explores those issues.
cell phone
Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part I
Two years have passed since the Supreme Court held in Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), that the government carried out a Fourth Amendment search when it obtained historical cell site location information (CSLI) for the defendant’s phone from a wireless carrier. Relying in part on the view expressed by five concurring justices in United States v. Jones, 565 U.S. 400 (2012), that individuals have a reasonable expectation of privacy in the whole of their physical movements, the court determined that allowing the government access to at least seven days of historical cell-site records contravenes that expectation, even when the records are generated for commercial purposes and held by a third party.
The Carpenter majority characterized its decision as “a narrow one” and noted that it was not expressing a view on “real-time CSLI or ‘tower dumps,’” disturbing the traditional application of the third-party doctrine, or “call[ing] into question conventional surveillance techniques and tools, such as security cameras.” Id. at 2220. Dissenting justices, in contrast, characterized the court’s reasoning as “fractur[ing] two fundamental pillars of Fourth Amendment law,” and “guarantee[ing] a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Id. at 2247. (Alito, J., dissenting).
Lower courts have applied and distinguished Carpenter in a number of cases involving electronic surveillance and the obtaining of location and other types of information from third parties. This post, the first in a three-part series, summarizes post-Carpenter decisions relating to surveillance by pole camera and tower dumps. The second post in this series will examine post-Carpenter rulings on the obtaining of real-time surveillance through GPS or CSLI. The third post will consider the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties. After reading all three, you can decide for yourself whether Carpenter’s progeny has bolstered the majority’s view of its limitations or has borne out the dissent’s warnings regarding its reach.
May Teachers Search Students’ Cell Phones?
I have a “friend” whose teenage son was caught using his cell phone in class. The teacher saw him using it and took the phone. She looked at the phone when she picked it up and saw displayed on its screen a snapchat from another student in the class. So she took the other student’s phone too. My friend wanted to know what the teacher’s options were after that. Could she search the contents of the cell phones she had seized?
News Roundup
Several stories of interest to readers of this blog have appeared over the last several days. First, the Winston-Salem Journal, in an editorial available here, is asking the General Assembly to take a close look at the death penalty, and to impose a moratorium while it does so. Of course, as the editorial notes, we … Read more
Searching Cell Phones Incident to Arrest
Nearly 90% of American adults have cell phones. When one of those cell phone users is arrested, may police search their mobile phone incident to arrest? The Fourth Circuit recently answered that question in the affimative. See United States v. Murphy, __ F.3d __, 2009 WL 94268 (4th Cir. Jan. 15, 2009). The defendant in … Read more