Larry E. Holtz, Esq.
Supreme Court Protects Cell Phone Location Information
Does an individual have a constitutional right of privacy in his (or her) cell phone location information? Recently, in Carpenter v. United States (US 6-22-18), the United States Supreme Court said, “Yes!”
The Case: Police arrested four men suspected of robbing a series of RadioShack® and (ironically enough) T-Mobile® stores in Detroit. One of the men confessed that, over the previous four months, the group had robbed nine different stores in Michigan and Ohio. The suspect identified various accomplices who had participated in the heists, including defendant Timothy Carpenter, and gave the FBI their cell phone numbers. Based on that information, the prosecutors applied for court orders to obtain cell phone records for Carpenter and several others. The court orders directed Carpenter’s wireless carriers – MetroPCS and Sprint® – to disclose cell site records revealing the location of Carpenter’s cell phone whenever it made or received calls. In all, the Government was able to obtain Cell Site Location Information (CSLI) documenting 12,898 location points which cataloged Carpenter’s movements over 127 days – an average of 101 data points per day. This was the time frame when the string of robberies occurred.
The question before the Court was how to apply the Fourth Amendment to the personal location information maintained by a third party (Carpenter’s wireless carriers Sprint and MetroPCS) and law enforcement’s “ability to chronicle a person’s past movements through the record of his cell phone signals.” Much like GPS tracking of a vehicle, CSLI “is detailed, encyclopedic and effortlessly compiled.” In fact, “when the Government tracks the location of a cell phone, it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
The Law: In the court below, the Sixth Circuit found that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. The United States Supreme Court disagreed, holding that the Government’s acquisition of cell site records revealing the location of Carpenter’s cell phone whenever it made or received calls was a Fourth Amendment search. Said the Court:
Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology…or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search [and] the Government must generally obtain a warrant supported by probable cause before acquiring such records.
Emergency Circumstances
Even though the Government will generally need a warrant to access cell site location information, case specific exceptions may support a warrantless search of an individual’s cell site records under certain circumstances. “One well recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.” As a result, “if law enforcement is confronted with an urgent situation, such fact specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings and child abductions,” and this case does not call into doubt warrantless access to CSLI in such circumstances.
No Delay for Prayer!
If an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, does the suspect have a right to delay that trip by insisting on first engaging in prayer? Recently, in Sause v. Bauer, (US 6-28-18), the United States Supreme Court said, “No!” Once placed under arrest, the suspect does not have a right to delay that trip by insisting on first engaging in prayer – “conduct that, at another time, would be protected by the First Amendment.” “There can be no doubt,” said the Court, that “the First Amendment protects the right to pray. Prayer unquestionably constitutes the ‘exercise’ of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.” However, “[w]hen an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.”
Note: The Freedom of Religion clause set forth in the First Amendment clearly applies to the States through the Due Process Clause of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940). (As is true with Congress, state legislatures shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.).
Larry E. Holtz has served as a Detective Sergeant with the Atlantic City, New Jersey, Police Department; a Deputy Attorney General for the state of New Jersey; and an Assistant County Prosecutor. Presently, Mr. Holtz is the Managing Editor of Blue360° Media, the largest US provider of legal information which is solely focused on serving law enforcement.
Mr. Holtz is a certified police trainer and teaches on a regular basis. He is a member of the bar in New Jersey, Pennsylvania and the District of Columbia and is admitted to practice before the federal bar in the District of New Jersey and the Third Circuit.