Tag Archives: Fourth Amendment

The Supreme Court recognizes privacy right to cell phone location history.

On May 22, 2018, the U.S. Supreme Court issued an important decision extending the Fourth Amendment right against unlawful search and seizure into the digital age. In Thomas Ivory Carpenter v. United States, the Court sided with the privacy rights of cellphone users over law enforcement using private tracking data compiled and saved by cell phone companies. At issue was whether the Fourth Amendment required law enforcement to obtain a warrant before accessing cell phone location history from cell phone service providers.

The Supreme Court recognized the importance and prominence of cell phones in an individual’s daily life and the right to privacy of the sensitive information generated by the cell phone’s use.

The Court stated that there are 396 million cell phone service accounts in the United States for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites” mounted on towers, light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Cell phones, smartphones, tablets, and other devices tap into the wireless network several times a minute whenever their signal is on. Each time the smart device connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information. Carriers retained CSLI for the start and end of incoming calls,text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

In December of 2010, there were a series of robberies in Michigan and Ohio of cell phones, ironically. Several cell phones stores were robbed of their cell phones at gunpoint. Eventually, the FBI arrested four men suspected of the robberies. One of the men confessed and provided names and cell phone numbers of accomplices including the petitioner, Timothy Carpenter.

Prosecutors applied for court orders under the Stored Communications Act (“SCA”) to obtain cell phone records for Carpenter and several other suspects. The SCA permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” The SCA stops short of requiring that prosecutors demonstrate probable cause, which is necessary to obtain a warrant.

Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers to disclose the CSLI for Carpenter’s telephone at call origination and at call termination for incoming and outgoing calls during the four-month period when the string of robberies occurred.

Law enforcement was able to track Carpenter’s locations and connect Carpenter to the crimes by obtaining more than 100 days’ worth of his smartphone location data records without a warrant. The location data records placed his phone in over 12,000 locations including when he was at church and whether or not he spent the night at home.

Before his trial, Carpenter argued that obtaining the records constituted a Fourth Amendment search, and therefore the police should have needed a warrant. His motion was denied, and the Sixth Circuit Court of Appeals later upheld the case.

The Supreme Court reversed and remanded with Chief Justice Roberts providing the deciding vote and writing the majority opinion.

The Court held that the acquisition of Carpenter’s CSLI records was a Fourth Amendment search. The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Thus, when an individual “seeks to preserve some thing as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.

The Court further held that the digital data at issue, personal location information maintained by a third party, does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set of cases addressing a person’s expectation of privacy in his physical location and movements. The other set of cases addresses a person’s expectation of privacy in information voluntarily turned over to third parties.

The third-party doctrine, as first set forth in United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith v. Maryland, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company) holds that information customers voluntarily provide to a third party is outside the bounds of Fourth Amendment protections and, therefore, law enforcement does not need a warrant in order to access that information.

The Supreme Court stated that the third-party doctrine partly does not apply given “the nature of the particular documents sought” and “legitimate ‘expectation of privacy’ concerning their contents.” The Supreme Court cited prior case law where the court had already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Additionally, the Supreme Court recognized in many way CSLI is not voluntarily provided by the cell phone users but automatically obtained when the cell phone is used in some form.

The Supreme Court found the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the SCA, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation” which falls well short of the probable cause required for a warrant.

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Supreme Court declines to extend automobile exception to Fourth Amendment to vehicles parked in driveways or curtilage of home.

In yet another victory for Fourth Amendment advocates, the Supreme Court on May 29, 2018 ruled against a warrantless search and examination of motorcycle under a tarp in the driveway of a home.   In the matter of Ryan Austin Collins vs. Virginia, No. 16-1027, the Court in a 8-1 decision reversed the lower court’s decision which upheld a warrantless search of motorcycle under the so-called automobile exception to the Fourth Amendment.

An orange and black motorcycle was believed to have been stolen and in the possession of Mr. Collins. Apparently Mr. Collins was proud of his accomplishment and posted photos of the stolen motorcycle parked in his driveway on his Facebook profile. The police discovered the photos on Mr. Collins’ Facebook profile, drove to his house and observed what appeared to be the motorcycle under a tarp parked in Mr. Collin’s driveway. The arresting police officer acting without a search warrant, walked to the top of the driveway, removed the tarp, confirmed that it was the stolen motorcycle, returned the tarp, and waited for Mr. Collins to return.

Upon his return Mr. Collins was arrested and charged with receiving stolen property. At trial, Mr. Collins sought to suppress the evidence on the grounds that the police had violated his Fourth Amendment rights when they had trespassed on Mr. Collins’s house curtilage (driveway) to conduct a warrantless search. Mr. Collins was convicted of receiving stolen property. The conviction was affirmed by the Virginia Court of Appeals who found “numerous exigencies justified both the entry onto the property and the moving of the tarp to view the motorcycle and record its identification number.” The Virginia Supreme Court also affirmed the conviction holding that the warrantless search was justified under the so-called automobile exception to the Fourth Amendment. The State Supreme Court held that the police officer had probable cause to believe that the motorcycle was contraband, and that the warrantless search was justified.

The central question before the Supreme Court was whether the so-called automobile exception to the Fourth Amendment, which allows the police certain latitude to search vehicles on public streets without a warrant, also allows the police to walk up a driveway without a warrant and search a vehicle parked in the area near a house.

The so-called automobile exception, first articulated in Carroll v. United States, 267 U.S. 132 (1925), allows police to search a car without a warrant if the car is “readily mobile” and they have probable cause to believe that it contains evidence of a crime.

The Court began its Fourth Amendment discussion by examining the intersecting case law of the so-called automobile exception to the warrant requirement with case law extending the protection against warrantless searches to the curtilage of a home. The “curtilage” of a home being the area immediately surrounding the house, where residents expect privacy.

In its near unanimous opinion written by Justus Sonia Sotomayor, the Court held that the driveway where Mr. Collins’ motorcycle was parked was part of the curtilage protected by the Fourth Amendment. Justice Sotomayor further wrote, “To allow an officer to rely on the automobile exception to gain entry to a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,”

The court explained that the justification for the automobile exception doesn’t consider a resident’s privacy interest in his home and its curtilage at all; rather, the rationale rests on the twin ideas that cars can easily be moved and are subject to regulation simply by virtue of being on the roads.

The stated that there are no Supreme Court’s cases that indicates the automobile exception allows a police officer to enter the home or its curtilage without a warrant to search a vehicle – if anything, the court has emphasized the need to treat “automobiles differently from houses.”

The sole dissent in the case was filed by Justice Samuel Alito, who stated that “The Fourth Amendment prohibits ‘unreasonable’ searches,” and that, “What the police did in this case was entirely reasonable.”


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Loose Lips Sink Ships…and Closed Ones Could Land You in Hot Water with the Pennsylvania Game Commission

Yesterday, Representative Keller introduced a bill into the Pennsylvania House of Representatives, that would repeal the unconstitutional provision found in the game code which makes it unlawful for a hunter to refuse to answer any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.

game commission

Currently, in Pennsylvania, it is a crime to invoke your Fifth Amendment rights against a Game Commission Officer in relation to the killing and wounding of any game or wildlife or the disposition of a carcass or any part of a carcass. Jack Coble spent thousands of dollars to fight against this unconstitutional provision in order to obtain relief as applied to him.

As I’ve reported previously, Game Commission Officers (GCO) will be utilizing body cameras in future encounters. As such, an individual needs to be conscious that any information they give to a GCO will likely be used against them. This is true even if there is no camera involved.

Interactions with WCO, GCO or WLCO should be treated in the same manner as an interaction with the police. You, as an individual, still retain your Fourth Amendment right to be free from unreasonable searches and seizures and your Fifth Amendment right to not incriminate yourself. As such, you should not consent to any searches, no matter what the officer offers or threatens nor should you make any statements against your self-interest.

If you have found yourself having an interaction with a GCO and were issued a citation, give us a call to discuss your options. It is not uncommon for hunters to sign a citation only to find out their license has been revoked for the next several years. The best way to prevail in challenging a citation is to give the GCO nothing to use against you.

What should you do in order to help make this bill a law? Tell your state representative to support H.B. 455 and help push to remove this unconstitutional provision from Pennsylvania’s game code!

Who is my representative?

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Supreme Court and Individual Freedoms – Difficult to Determine, Harder to Rationalize


Well, It would seem that my blog from last time may have been a bit premature.  Recently, the Supreme Court ruled that it is sometimes OK to take DNA samples of arrestees.

The United States Supreme Court.

The United States Supreme Court. (Photo credit: Wikipedia)

How does this case differ from police taking blood for a DUI/DWI stop is the immediate question that follows this recent ruling.  In each case fluids of the individual are being taken. In the case of blood, the police/government argued that circumstances might exist that would cause the evidence (blood/urine) to become unusable, and therefore should not require a warrant.   The Court, however, found that if the totality of the circumstances so warranted the intrusion, then there should be no problem getting a judge to sign a warrant for the taking of the fluids.

In the DNA case, “In a 5-to-4 decision, the high court said that as long as authorities have probable cause supporting an initial arrest for a “serious” crime, the government may collect DNA from any arrestee, store it in a database, and use it to help solve other crimes. Such a routine collection procedure is reasonable under the Fourth Amendment, the court said.”

So it would seem the Court is trying to balance the intrusion by the seriousness of the crime, and not the loss of liberty to the individual.  One could argue that the mere swabbing on an arrestee’s mouth does not give rise to a level of intrusion on personal liberties, because DNA can be gotten from almost anywhere; hair, skin, silica, etc.  Most people leave DNA all over the place without even knowing it – see my dogs hair in my car for a better understanding.  In fact, one can say that since the police are allowed to take and keep fingerprints, then DNA should also be allowed.

This, however, does not mean that the government should get a free pass to collect and maintain such information on an individual, especially when the person in question has not been convicted.  If the police are arresting an individual, and said individual is properly charged and convicted, then by all means, the government should have a record on that person.  However, until the final verdict, that individual must be protected to the fullest extent that the Constitution and state law provides.  And that means obtaining a warrant.


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Email and the Fourth Amendment

Almost nothing on the internet is as private as people often believe it to be. Many people imagine their email conversations as similar to spoken conversations, where the information stays between the participants of the conversation unless one or both should choose to disclose it. However, in actuality, an email conversation, like almost anything else that a user transmits via their Internet Service Provider (ISP) is nowhere near as private as a conversation that takes place in person.

            Data transmitted by a particular ISP (such as Verizon or Comcast) is stored on the ISP’s servers. Although the privacy agreements of the ISP commonly state that the employees of the ISP will not view personal content, the information transmitted is usually stored, scanned, and can be voluntarily disclosed to the police or subpoenaed in a case against the internet user. Sometimes the information is kept for months or even years, meaning that any conversations that take place via the internet may include three viewers- the sender, the receiver, and the ISP. The same is true for email servers, such as Yahoo or Gmail, which also store a person’s email on their servers, meaning that the email service also has the power to “eavesdrop” on the conversation. Finally, school, office and home networks can all be set up to store all of the information transmitted through the network, which creates a fifth potential eavesdropper for any online communications.

            Most troubling of all, because the advent of communication and networking technology is so new, courts have yet to clearly define whether a person’s email, chat and search history is protected by the Fourth Amendment at all. Some courts have found that there is a Fourth Amendment protection for “content based” communications, such as personal email, but other courts have found that there is not. Ultimately, “[T]he extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.” Quon v.  Arch Wireless Operating Co., 529 F.3d 892, 904 (9th Cir.  2008).

    Until this issue is fully resolved in the law, it is important to remember that any data transmitted online could potentially be saved and stored by one or more third parties. If you have any questions or concerns about this, please feel free to contact our office for a free initial consultation.

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