The Fourth Amendment, Cell Phones, andCarpenter v. United States

(With special bonus guest cases!)

FEDERAL CRIMINAL PRACTICE SEMINAR, District of South CarolinaNovember 2, 2017

Eric J. BrignacAssistant Federal Public Defender (EDNC)

Eric_Brignac@fd.org

How the government sees the 4th Amendment

How we’ve come to see the 4th Amendment

Three 4th Amendment Cases (So far) Before SCOTUS This Term

• Carpenter v. United States (No. 16-402): Warrantless search & seizure of historical cell phone records. (To be argued 11/29/17).

• Collins v. Virginia (No. 16-1027): Does the automobile exception extend to a vehicle parked a few feet from a private residence?

• Byrd v. United States (No. 16-1371): Whether a rental car driver needs to be listed on the rental agreement to have a reasonable expectation of privacy in the rental car.

Carpenter v. United StatesWhether 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.

Cell Site Location Information (CSLI)

Your cell phone knows A LOT about you:

Call detail report typically gives:• date• time• target phone number• other phone number• duration• cell tower• Sector• latitude and longitude

What does that tell us? A LOT

• Medial Information (phone calls and visits to doctors offices)

• Sexual Information (phone calls and visits to other individuals)

• Political Information (presence at rallies and protests)

• Financial Troubles (phone calls and visits to banks, pawn shops, payday lenders, etc.)

• Family information (when and where you bring your kids to soccer practice)

• Religious Information (visits to churches and priests)

Current 4th Circuit Position?

• Your client is out of luck.• United States v. Graham, 824 F.3d 421 (2016)(en banc)

• The third-party doctrine means you have no privacy interest in information you “voluntarily” give to a 3rd party.

• You give this information to your cell phone provider, so the police can obtain it without a warrant.

• BUT “The Supreme Court may in the future limit, or even eliminate, the third-party doctrine.”

Mr. Carpenter’s Arguments• United States v. Jones (2012) (GPS tracking) & Riley v. California (2014)

(cell phone searches) stand for proposition that new technologies cannot reduce the historical expectation of privacy that have always existed.

• People have their cell phones with them all the time (75% of people report having them in arm’s reach most of the time). The government can get unpresedented information about people from CSLI that was practically unavailable historically.

• Even the law recognizes this expectation of privacy in CSLI• 47 U.S.C. 222 prohibits disclosure to private entities• Multiple states require a warrant for this information

Mr. Carpenter’s Arguments Continued

• CSLI may be less precise that GPS tracking, but it is precise enough to invoke privacy concerns.

• That the government uses it at trial to “prove” where you were belies the argument that it is not precise enough to worry about.

• As towers become more numerous and sophisticated, CSLI will get only more and more precise.

• These records are historical, making them a greater invasion of privacy than real-time.

• It’s also a trespass on your “papers” (the argument to win over the originalists).

Mr. Carpenter’s Arguments Continued

• The Third-Party doctrine should not be extended or applied here.• The information is much more sensitive than the bank records or individual

phone calls from past cases.• The information is not “voluntarily shared.”

• People need cell phones for work, family life, and safety (911, etc.).• You cannot turn off tracking information. Turning off the GPS does nothing to turn

off CSLI• You can’t learn this information about yourself even if you wanted to.

• The Court need not eliminate Third-Party doctrine. It can simply contextualize it as part of the overall analysis.

• This is only going to get worse if you expand Third-party doctrine (internet of things, etc.)

The Government’s Arguments

• Strong reliance on Third-Party doctrine. Users know that their cellular providers know where their phones are.

• This information is not as precise as Mr. Carpenter states• The data in his case narrowed him down to 1,000 buildings in the Detroit area.• And, in any event, the quality of the information is irrelevant to the 4th Amendment

and imposing such a rule would involve too-complicated line drawing.

• Developing technology may actually reduce the use of cell phone towers in favor of device-to-device technology.

• The third-party doctrine has never depended on how happy one was to divulge the information.

The Government’s Arguments Continued

• The government re-frames this as a simple question of providing evidence at trial.

• When a third party has evidence relevant to a case, they can be compelled to testify, barring an evidentiary privilege.

• The actors here are the cell phone companies, not the government.• The invasiveness of the technology simply isn’t a factor.• No one is making these companies keep this data. If the public outcry

is strong enough, privacy-focused companies will emerge.

Is it our fault that we have a really good witness?

Two fundamentally different framings of the issue

• Does the current set-up allow the government access to an unpresented level of highly-personal information involuntarily given to cell phone companies that completely untethers the third-party doctrine from its intellectual base?

• Or, is this simply a case of the government compelling a witness with information relevant to a crime to testify at a criminal trial?

Really could go either way.

So what do we do for our clients?

1. Be Aware of the Intersection of Technology and the 4th Amendment.

For good or ill, Carpenter is likely to change the game.

• Depending on the logic used by Carpenter (regardless of outcome), the courts’ approach to technology and searches and seizures might be changing.

• Or, really, you should be the lawyers helping to make that change.

Be very worried about drones• We should be ahead, not behind,

of the law on this• Aerial surveillance cases are 25

years old & predate the revitalization of trespass

• They don’t address long term tracking or Riley-style privacy

• Ripe for renewed challenges• Particularly since trespass and tech

are going hand in hand• Argue that drones are different-in-

kind from prior surveillance cases.

Automated License Plate Readers

Very similar issues to CarpenterPossible 3d party storageLong term trackingTechnology unknown at the founding

Whatever the Future Holds

2. And if we lose Carpenter?

HOPE IS NOT LOST!

• By the government’s own arguments in Carpenter, we know that these records are not magic. They are normal evidence that must still meet the admissibility thresholds of any evidence presented against your client.

• The government will want to present this information in a “jury pretty” form like a spreadsheet or map.

• Force them to disclose the source of the raw data.• If funds permit, get your own expert to review and ensure that the government’s

interpretation of the data is supported• These are business records

• Force the government to comply with FRE 803(6)• Have the records been authenticated under FRE 902(11)?

• “Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.”

• Remember, this stuff is new-ish to AUSA’s, too, so they will make mistakes.

What CSLI cannot show

• Who had the cell phone at any particular time.• Do NOT say where “my client” was. Do not let the government witnesses say

that. Say where “the phone” was.• People often use their partner’s phone

• Precisely where the phone was• Your expert and the government’s expert will have to admit that CSLI is not as

precise as the government’s presentation will imply.

Don’t Forget Daubert

• CSLI is complicated. The government wants to present it as simple.• Your client was here on Tuesday evening. The crime happened here on Tuesday

evening. Therefore, guilty.• The government may attempt to have the agent conducting the

investigation testify as to it.• Object! Require an expert in cell tower data forensics.• Use your own expert to show the court that the government’s proffered

testimony does not meet Rule 702’s standards.• The government may do this all by the book, but force them to do it by the

book.• Even if you don’t get it excluded, you start laying the groundwork to show

the court/jury that this information is complicated.

Bonus Fourth Amendment Cases Upcoming This Term!

Collins v. Virginia

• Officers were looking for an individual who had eluded them in two high-speed motorcycle chases.

• They suspected Mr. Collins & noticed a motorcycle covered by a tarp in the curtilage of the home where he was staying.

• Without a warrant or permission, they walked up the driveway, lifted the tarp, investigated the motorcycle, and discovered it was stolen.

• They arrested Mr. Collins for possession of the stolen motorcycle.

At issue:4th Amendment Sacred v. 4th Amendment Profane

Sacred Profane

Prediction?

• Hard to know without any briefing, but some good signs.• Cert was granted for petitioner.• The Court’s focus on curtilage is relatively recent.• Many of the justifications for the automobile exception are lessened

in a case like this• Exigent circumstances would still provide flexibility for law

enforcement • But I’m an AFPD, so I probably would think all that.

Byrd v. United States

• Do you have a reasonable expectation of privacy in a rental car if you are driving it with the renter’s permission, but you are not listed in the rental contract?

• Split of authority on this question.• The current 4th Circuit law is that you do not. United States v.

Wellons, 32 F.3d 117 (4th Cir. 1994).• Driver has “no legitimate privacy interest”• The driver “may well have had [the renter’s] permission to drive the

automobile, he did not have the permission of Hertz Corporation, the owner of the automobile.”

What’s the takeaway?

• Do not accept “settled” doctrines. There just might be a revolution afoot.

• Carpenter challenges the 3rd party doctrine bright line rule.• Collins challenges the automobile exception bright line rule.• Byrd challenges the 4th Circuit’s ownership requirement.

• You will generally not win these at the trial or circuit level. But you need to be preserving and getting your cases in the pipeline.