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.

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Court of Appeals Rules that a Citation Was Sufficient Even Though It Failed to Allege Multiple Elements of an Offense

Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).

Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well.

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Update on Jury Trial Waivers

In 2014, North Carolina’s voters approved an amendment to the state constitution. The amendment enabled a criminal defendant charged with a crime in superior court to waive his or her right to a jury trial, and instead have his or her guilt or innocence determined by a judge. I wrote a report about the amendment before it was adopted; I wrote about some of the procedural questions raised by the amendment after it passed; and I wrote about 2015 legislation that changed or clarified the waiver procedures. Now we have an appellate case that addresses two issues pertinent to jury trial waivers, so I thought I’d write about that.

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Pole Camera Surveillance Under the Fourth Amendment

Placing a video camera on a utility pole and conducting surveillance can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But this tool may be subject to the Fourth Amendment restrictions. This post reviews the evolving case law, particularly since the United States Supreme Court ruling in United States v. Jones, 132 S. Ct. 945 (2012).

Jeff Welty in a 2013 post reviewed video surveillance generally, not just pole cameras, and discussed Jones and the few cases decided in light of its ruling. This post, after reviewing Jones, will discuss a few pole camera cases decided in federal courts since his post and whether officers should seek approval from a court before conducting pole camera surveillance.

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Video Surveillance Cameras

Law enforcement officers are making more and more use of video surveillance cameras, often mounted on utility poles. Sometimes these cameras are focused on streets or parks, as discussed in this Fayetteville Observer article. Sometimes they are focused on suspects’ residences. (Sometimes, hidden cameras are installed inside residences or other private areas, but such uses … Read more

Does the Trespass Theory of the Fourth Amendment Limit the Scope of Knock and Talks?

In United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013), the Supreme Court announced a new, or perhaps revived an old, understanding of the Fourth Amendment that is closely tied to property rights and trespass. In Jones, the Court ruled that attaching a GPS tracking device to a … Read more


Don’t Look a Gift Horse in the Mouth

As I explain in more detail here, notice and demand statutes allow the State to obtain a constitutional waiver of confrontation rights so that forensic lab reports and related items can be admitted without the presence of the preparer. Nevertheless, I get a lot of calls from panicked prosecutors wondering how they are going to … Read more

Advice to Officers after Jones

I’ve had quite a few questions from officers and others about United States v. Jones, the Supreme Court’s recent GPS tracking decision. I previously summarized the case here. Below, I’ve collected some of the questions I’ve been asked and my answers. It should go without saying that officers should check with their supervisors and agency … Read more

The Supreme Court on GPS Tracking: U.S. v. Jones

Yesterday, the United States Supreme Court decided United States v. Jones, the important GPS tracking case I previously blogged about here. (The case was captioned United States v. Maynard at that time.) In brief, Washington, DC officers suspected that the defendant was a drug dealer. They wanted to track his movements, so they obtained a … Read more