In this post, I make several random observations about the Carpenter cell phone ping-records case. There is no particular order to my musings.
First Random Observation: Despite the fact that he and I almost got into a naked mud wrestling match over another Fourth Amendment issue, I agree with Professor Orin Kerr’s point of view in the Carpenter case. Among other things, he argues in his amicus brief (at page 3) that:
Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct. By contracting with a cell phone network provider to deliver their calls, customers ensure that network providers may be available to testify – whether in person or by sending records – about how the providers made that delivery for their users. Just as a person voluntarily exposes himself to observation by traveling in public to deliver a communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely. The Fourth Amendment is not implicated by compelling testimony from an eyewitness or by observation in public.
Kerr’s argument is elegant in its simplicity and clarity!
Second Random Observation: Carpenter argues that he had a reasonable expectation of privacy in the business records of the phone carriers. His argument goes something like this:
I am a simple naïf (albeit it with a nasty violent streak). I had no idea that my phone would send pings to towers. (I thought the phone worked by magic.) Nor did I ever in the world imagine that the providers would keep records of those pings so that they could bill me and otherwise provide me with the cell phone service that I used to organize my attempt to liberate treasure from the unworthy.
My response: The devices are called “cell” phones for a reason, you moron! And you knew damn well that nothing is free (except that which you steal).
Third Random Observation: The government got the cell phone ping records pursuant to a federal court order issued under the Stored Communications Act, which required the government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U.S.C. § 2703(d) (“A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”)
Why doesn’t that statute strike a perfectly “reasonable”[i] balance under the Fourth Amendment?
Fourth Random Observation: Taking time off from endeavoring to trap Trump for the Machiavellian Mr. Mueller, Deputy Solicitor General Michael R. Drebben, a career DOJ lawyer with more than 100 oral arguments before the Court, wrote about a little thing called “precedent”:
This Court has long held that an individual cannot invoke the Fourth Amendment to object to the government’s acquisition of a third party’s records that contain information about the individual. See Smith v. Maryland, 442 U.S. 735 (1979) (records of dialed calls); United States v. Miller, 425 U.S. 435 (1976) (banking records).
Brief of the United States at 11.
If the Justices determine that these cases don’t apply but refuse to overrule them, I double dog damn dare them to provide a principled distinction.
Fifth Random Observation: Carpenter admits that “there is some period of time for which the government may obtain a person’s historical [cell-site information] free from Fourth Amendment scrutiny, because the duration is too brief to implicate the person’s reasonable privacy interest.” Carpenter’s Brief at 30 (brackets, citation, and internal quotation marks omitted).[ii]
The government, jumping on this concession, argues that at least some of the records would fall into this gaping hole. “Applying that analysis, agents did not need a warrant to request seven days of cell-site information from Sprint. Law enforcement agents regularly surveil suspects for a week or more.” Brief of United States at 56.
It will be funnier than watching a barrel of meth monkeys to read how the Justices articulate a principled line of demarcation if they otherwise decide to rule in favor of Carpenter.
Sixth Random Observation: Carpenter is serving a 1,395-month sentence. Even if the Justices rule in his favor. he will be sad.
In Illinois v. Krull, the Supreme Court extended the good-faith exception articulated in Leon to evidence obtained in reasonable reliance on a statute that is subsequently declared unconstitutional. Upon remand, assuming the Justices issue a ruling declaring 18 U.S.C. § 2703(d) unconstitutional, the Sixth Circuit will properly utter a one word rejoinder to Carpenter:
Have a productive day.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] Perhaps I am simple minded, but the Fourth Amendment only protects “against unreasonable searches and seizures.” (Italics by Kopf.)
[ii] He had to acknowledge this because it is plain as the large nose on my ugly face that the cops could physically follow him all they wanted.