Track the phone, track the person. As cell phones have become a vital organ to many, the ability to locate a phone allows law enforcement to place a person in a specific area.
It is impossible for the Fourth Amendment to keep up with the technology explosion in real time. But eventually, case by case, advancement by advancement, the principles of our constitution adapt to changes in time.
Generally, the cops can retrieve usage of a cell phone via the Third-Party Doctrine. While our usage of these devices can be retrieved most of the time, it does not mean that our locations are readily retrievable absent a warrant. This is precisely the issue in Carpenter v. United States, a United States Supreme Court opinion that addressed the intersection of the Third-Party Doctrine and an individual’s expectation of privacy in their movement and location.
In 2011, several Radio Shacks and a T-Mobile store were robbed. Several suspects ended up getting arrested, one of which provided over fifteen different accomplices to the robberies along with their cell-phone numbers. During the trial, several of the named accomplices identified Mr. Timothy Carpenter, the named Defendant, as the leader. During this time, the FBI also provided the cell-phone records they had obtained during its investigation. These records were then explained by an FBI expert to pinpoint Mr. Carpenter’s location to that of the crime on numerous occasions. The prosecutor even stated in closing arguments that the cell-phone records show that Mr. Carpenter was “right where the . . . robbery was at the exact time of the robbery.” On direct appeal, the court determined that Mr. Carpenter lacked a reasonable expectation of privacy, because he voluntarily gave up this information to his wireless provider.
In the famous case of Katz v. United States, the Court established a test for reasonable expectation of privacy. Roughly ten-years later, the Court further prescribed that information voluntarily turned over to third parties has no legitimate expectation of privacy in United States v. Miller. These third parties typically include: banks, phone companies, and internet providers. Often, the police request cell-phone call records from your provider to see your cell-phone activity at the time of a suspected crime. Since the cell-phone provider is not a government entity, it can willingly give up this information, because you voluntarily turned it over to them when you signed up for the company’s services.
Currently, mobile phones can do much more than simply make phone calls. They are mini computers people carry at all times. Due to these advancements, cell-phones can almost pinpoint your exact location at any point in time, whether you are making a call or not. With these types of advancements in mind, it almost goes without saying that the Third-Party Doctrine in relation to cell-phone companies, needs major curtailing. Thankfully, as evidenced by Chief Justice Roberts’ opinion in Carpenter, this appears to be happening.
The opinion by Chief Justice Roberts clarifies the sharp distinctions between the government obtaining cell-phone records from a company and the actual location and movement of an individual from said cell-phone. The Court declared that obtaining the locations and movements of an individual is a search, which requires both probable cause and a warrant. As CJ Roberts reasoned: “The location of individuals is not the purpose of the third-party doctrine, and in fact the Court has already shown special solicitude for location information in the third-party context.” This is a good distinction for privacy rights and individuals throughout the country being illegally tracked by investigatory entities within the government.
Chief Justice Roberts focused much of this opinion on the foundational protections that Katzlaid out over half a century ago. The principle protection being of individuals privacy rights, and that when society recognizes someone’s want for privacy as reasonable, the Fourth Amendment must provide protections for it. This protection comes in the form of the warrant requirement. This requirement calls for the government to obtain a warrant before conducting a search and seizure of a person or their property, barring an exception being present.
Alec Rolain is a law clerk at Ambrose Law Firm, PLLC. He just finished his second year at Mitchell Hamline School of Law in St. Paul. Prior to law school, Alec attended St. Mary’s University in Winona where he played baseball and made the MIAC all-sportsmanship team. Criminal Defense Lawyer Minnesota; DWI Lawyer Woodbury; and Criminal Appeals Lawyer Minnesota.