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June 5, 2017

Supreme Court grants cert on whether Fourth Amendment limits collections of historical cell phone records

In this order list this morning, the US Supreme Court granted certiorari in Carpenter v. United States which asks, in the words of the cert petition, "whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment."

Though obviously not a sentencing case, I suspect lots of criminal justice fan (and others) will be keeping an eye on Carpenter in the months ahead.  In addition, this case would seem to present the first big opportunity for the newest Justice, Justice Neil Gorsuch, to reveal his take on the Fourth Amendment in particular and privacy issues more generally.

June 5, 2017 at 09:45 AM | Permalink


Interesting case including to see how the various justices will apply the GPS case opinions (there were two camps, on relying on property interests, the other -- headed by Alito -- on expectation of privacy concerns; Sotomayor concurring separately to note some support for both sides).

As to the non-grants: "Despite requesting a response, #SCOTUS won’t hear 16-898 re incarceration beyond release date for sex offender who couldn’t find housing."

Posted by: Joe | Jun 5, 2017 9:52:01 AM

Carpenter should be interesting. I think an implicit sub-question is whether to treat the court order as equivalent to a subpoena or as warrant or something else. In previous cases, courts have treated court-issued subpoenas to record holders as functionally an exception to the warrant requirement requiring only that the scope of the subpoena be reasonable. If equivalent to a warrant, the problem would be that the authorizing act seems to only require reasonable suspicion rather than probable cause. (I would think for orders issued in reliance on the act, prosecutors might be able to argue for the good faith exception.)

Posted by: tmm | Jun 5, 2017 10:52:28 AM

I have a two-headed approach to this topic as I do all recent 4A law. On one hand I think it obvious that under various doctrine, especially the 3rd party doctrine there is no 4A problem here. However, I also believe that the 3rd party doctrine in all its various guises has no place in a system of world-wide mass communication. My own view is that SCOTUS is best served--as is the country--by junking the 3rd party doctrine in in its entirety rather than nibbling around the edges.

Posted by: Daniel | Jun 7, 2017 1:54:51 PM

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