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.
Continue reading →
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? Continue reading →
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 already have a de facto moratorium. Even after the state supreme court’s recent decision, available here, holding that the North Carolina Medical Board can’t discipline physicians who participate in executions, there is still pending litigation over the state’s execution protocol and whether it was properly adopted by the Council of State.
Second, there has apparently been an explosion in the number of cell phones in prison. A story available here asserts that literally thousands of cell phones were confiscated in California’s prison system last year, and addresses possible solutions, including (1) stiffer penalties for those who use the phones, and (2) jamming cell phone signals within prisons. The issue apparently exists here in North Carolina, too, since S167, available here, would make it a crime to provide a prison inmate with a cell phone. One question I have about this whole issue is to what extent inmates use cell phones to avoid having their phone calls monitored, and to what extent they use them to avoid the incredibly high charges associated with prison pay phones. (An interesting story on the pricing issue is here — but I should add that my recollection from my time in private practice is that calls in North Carolina are significantly more expensive than the California calls described in the story.)
Third, a New York Times story, here, will be of interest to those concerned about forensic science. The gist of the article is that scientists are hard at work evaluating some of the techniques — such as fingerprint analysis — that have long been used but without much scientific validation. The article refers to a National Academy of Sciences report, about which I previously blogged here. Hopefully some of this new research will improve the reliability of forensic techniques used in criminal cases.
Finally, a Wisconsin court recently addressed a topic of particular interest to me, holding that the police may install a GPS tracking device on a vehicle and monitor it without committing a Fourth Amendment search, i.e., without a warrant or any level of individualized suspicion. Story here. This is consistent with what most other courts have done — see my paper on the use of GPS tracking devices, available here as a free download — though we are still awaiting the first North Carolina appellate case on point. Stay tuned.
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 Murphy was a passenger in a car that was stopped for speeding. He gave a false name to the police, they figured it out, and he was arrested for obstruction of justice. Counterfeit currency and drug-related items were found in the car. The police searched Murphy’s cell phone incident to arrest, and obtained phone numbers they later used to develop additional evidence against Murphy. Murphy was charged with drug and currency offenses, and moved to suppress, arguing that the police should have obtained a warrant to search the phone. Neither the district court nor the court of appeals agreed.
The Fourth Circuit said that the “manifest” need to preserve evidence justified police in retrieving “text messages and other information from cell phones and pagers seized incident to an arrest.” There’s some logic here: over time, new messages and calls will “crowd out” earlier ones from the phone’s memory, effectively destroying potentially relevant evidence. Murphy agreed that when a phone has a small storage capacity, the need to preserve evidence justifies a warrantless inspection of a cell phone, but he contended that when a phone has a large storage capacity, the risk of losing critical evidence is reduced, and the privacy interest of the phone’s owner is increased, so a warrant should be required. The court rejected this argument as unworkable — what would count as a “small” or “large” capacity, and how would an officer know the capacity of a phone before searching it?
Appellate courts are struggling to apply Fourth Amendment rules to new technologies, and decisions like Murphy often raise as many questions as they provide answers. For example, could the police search the “address book” of Murhpy’s phone incident to arrest, even though it is not subject to crowding out? What if Murhphy had been carrying a Blackberry? A laptop? Could those be searched incident to arrest? What if the police can obtain all call information and text messages from the service provider, removing the crowding out/exigency justification? I’m keenly interested in this area of the law, and welcome feedback and comments about what officers are doing in the field and how courts are responding.