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November 29, 2017

Anyone have hot sentencing takes on the Supreme Court's big Fourth Amendment Carpenter case being argued today?

Folks interested in both criminal law and technology have been buzzing about the case Carpenter v. United States for quite some time.  Today, finally, the Supreme Court hears oral argument on this basic issue: "Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment."

As they do so well, the folks at SCOTUSblog provide lots of helpful background and coverage though this case page with all the briefs linked, this preview by Amy Howe, and this on-line summer symposium.  And I expect SCOTUSblog will have lots of post-argument analysis this afternoon and in the days ahead, especially if this morning's oral argument is as interesting as everyone expects.

I have not blogged about the Carpenter case in part because it is well covered by many others and in part because the sentencing echoes of the case may be remote.  But practitioners may see more direct connections between Carpenter and sentencing than I see from the ivory tower, and I welcome this morning any and all "hot takes" on the case as it might relate to any and all sentencing stories.

November 29, 2017 at 09:59 AM | Permalink


All of the Burger Court's exceptions to the exclusionary rule and the miranda warning led to a higher and higher number of plea bargains. I suspect if they add another exception to the fourth amendment with this case, it will lead to even more plea bargaining, which will lead to more judge-based sentences rather than statutory sentences.

Posted by: Plea Market | Nov 29, 2017 10:26:48 AM

This is a legislative policy question. The Supreme Court is neither competent nor allowed to rule on it.

The Congress is craven and lazy. It has its dog, the Supreme Court, fetch policy decisions to avoid responsibility for their consequences.

Posted by: David Behar | Nov 29, 2017 11:07:44 AM

My take is the mosaic theory of "too much is unconstitutional" is unwieldy and will ultimately die. The Court prefers bright line rules and only create wishy washy ones to help the police not hinder them. I think the Court (or members of the Court) will have problems with what the police do, but I think they'll struggle to find a clear reason they can't do it.

Posted by: Erik M | Nov 29, 2017 11:08:02 AM

Aside from the reasonable expectation of privacy question, there are two potential issues in the case which are relevant to sentencing.

One is form versus function. To gain the cellphone records, the government obtains a court order. As such, the search is warrantless only to the extent that the order is not called a warrant, And for gaining records from a third party (as opposed to suspects), the third parties would rather something more subpoena-like than warrant-like because they would rather pull the records themselves than have government agents stumbling through all of the businesses records to find the particular records in issue. But, at the end of the day, the warrant and the subpoena serve the same function -- getting the government access to the records.

This form versus function debate also has an impact on sentencing in the discussion of collateral consequences -- punishment vs. something else (usually some type of public safety claim). While the resolution of this debate in Carpenter will not necessarily bleed over into how the courts look at collateral consequences, it will be interesting to see how much the court is going to insist on keeping formal categories separate -- i.e does the court simply address whether the question is which box this type of request falls into or does it question the boxes that it has previously created.

The second type of issue is the level of proof. The law in question only requires reasonable suspicion as opposed to probable cause. Again depending on the box that the Supreme Court picks, that level of proof is either fine (subpoena) or problematic (warrant). This is the type of issue that comes up in sentencing all of the time -- are we talking sentencing factors that the judge gives whatever weight she deems appropriate or are we talking something element-like that alters the sentencing range. How we categorize the factor determines the burden of proof.

I could easily see a decision that sort of splits the baby down the middle -- finding that this type of order is both a warrant (requiring probable cause) and a subpoena (allowing the surrender of the material by the third party without authorizing a full-blown search). I can also see the court dropping in a good faith exception for previous requests or finding that the request was supported by probable cause making the statute constitutional as applied to this case (and effectively allowing the continued use of the statute as long as the issuing courts make adequate findings without requiring an amendment to the statute).

Posted by: tmm | Nov 29, 2017 11:36:44 AM

From past decisions, publically broadcast signals still require a warrant. For example, the heat signature of a marijuana greenhouse may not be accessed from across the street without a warrant, in a 5-4 decision, written by Scalia( https://en.wikipedia.org/wiki/Kyllo_v._United_States ). Scalia anticipated technology advances in the decision.

If public signals are accessible without a warrant, the Fourth Amendment has been repealed by technology. Locations may be triquartered. Conversations are next.

My son in law discussed an esoteric surfing product with a friend in his living room, with all appliances off. He began receiving ads for it on the internet. The most likely cause was his smart TV. It waits for his saying, turn on, go to channel 78. However, while it is waiting, it is also transmitting conversation to Google headquarters, selling it to advertisers. What if he had been talking about avoiding taxes, maybe legally, maybe not? Would it be OK to transmit the conversation to the IRS, without a warrant?

Posted by: David Behar | Nov 29, 2017 11:41:36 AM

China is now putting up the faces and identifying information on huge electronic billboards of jaywalkers. You registry assholes have to get it in gear, China is way ahead of you.

They also have social desirability scores, similar to our credit scores, but measuring your political correctness. If you buy a video game, it goes down. If you buy work boots, it goes up.

What if all transmitted conversations were recorded, including those in your living room? I subscribe to all -isms and -ophobias. I would be sunk in my social desirability score. I would not be qualified to clean the sewer. The filthy scum on this blog would send my conversations to the sewer authority, and I would be fired, as untrustworthy. I would be a threat to the sewer business, when employment lawyers sue them for my "inappropriate" speech in my own living room, obtained without a warrant, since I committed no crime.

Posted by: David Behar | Nov 29, 2017 11:51:32 AM

Orin Kerr, who has been blogging on this, as I recall thinks a lot of this will be a matter of congressional regulation to promote 4A principles which seems appropriate up to a point. The justices split into two camps in the GPS camp -- one signed on with Scalia's property based opinion, four with Alito's expectation of privacy decision with Sotomayor straddling both sides.

I support her criticism of the third party doctrine. Whatever the final dynamic becomes, especially in the 21st Century, that seems artificial and not a proper protection of 4A interests. Ditto something that might in some fashion be "public" such as if someone followed a car 24/7 instead of using GPS info.

Alito appears to support broad discretion but something that long (guess over a month would be a soft limit of sorts at least) seems too much.

Posted by: Joe | Nov 29, 2017 12:03:09 PM

The government accessed the Facebook accounts of everyone who "Liked" a post about a Washington protest of Trump, and put a gag order on Facebook, to prevent their telling the Likers.


Posted by: David Behar | Nov 29, 2017 12:23:17 PM

"This is a legislative policy question. The Supreme Court is neither competent nor allowed to rule on it.

The Congress is craven and lazy. It has its dog, the Supreme Court, fetch policy decisions to avoid responsibility for their consequences."


I also agree with the very first comment. I tend to think that there is not the "hard wall" between the guilt phrase and the sentencing phrase that many in the ivory tower think there is/should be. Judges tend to factor in "how guilty" a person is when the sentence and that goes to the weight of the evidence. So while I agree that there are no direct sentencing implications in this case there are indirect ones.

Posted by: Daneil | Nov 29, 2017 1:01:26 PM

There is a sentencing angle, obliquely. If I recall correctly from reading the circuit court opinion, Carpenter is serving a very long mandatory minimum sentence and raised an (obviously, unsuccessful) Eighth Amendment challenge below. So maybe this illustrates that it’s easier to gain traction both legally and in the public sphere with Fourth Amendment claims than with sentencing claims (this blog notwithstanding :)

Posted by: Sara Mayeux | Nov 29, 2017 2:18:21 PM

I'm unsympathetic to the idea that this is an issue for Congress unless Congress has the power and willingness to pass regulations that extend to state law enforcement as well and has the same effect as all protections conveyed by the Fourth Amendment.

Posted by: Erik M | Nov 30, 2017 11:18:48 AM

It is not complete for Congress but as regulators of national communications and so forth they would have a role.

In respect to the areas where state law is involved and not superseded, state law would provide some guidelines too.

Posted by: Joe | Nov 30, 2017 4:09:04 PM

Erik. You should provide your reasoning. My assertion comes from Article I Section1, and the lack of investigatory resources of the Court. They are also not accountable to an electorate on the verge about privacy.

Posted by: David Behar | Nov 30, 2017 7:10:56 PM

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