Ambrosio E. Rodriguez

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Do Fourth Amendment Protections Extend to Cell Phone Records?

The right to be free from unlawful searches and seizures is a cornerstone of American freedom. The Fourth Amendment plainly states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”

In the coming months, the United States Supreme Court will hear arguments in a case based on seemingly blatant violations of a suspect’s Fourth Amendment rights. The Carpenter case asks whether police are required to obtain a search warrant before procuring and searching historical cell phone records in a criminal investigation.

Without the protections of the Fourth Amendment we would have a drastically different criminal justice system. The Supreme Court’s ruling in the Carpenter case will seriously impact on future criminal cases in the United States.

As defense attorneys, we cannot overemphasize the value and importance of the Constitutionally-mandated right to be free from unlawful searches and seizures. Our clients are innocent until proven guilty and stripping them of the right to be free from unlawful government intrusion could be devastating.

Overview of the Carpenter Case

The Carpenter case involved a series of armed robberies in Michigan and Ohio between 2010 and 2011. Timothy Carpenter, the man who allegedly orchestrated the robberies, used a cell phone during the robberies to communicate with his co-conspirators. During the criminal investigation, the government applied for three court orders to obtain copies of the “cell-site records” associated with the different phone numbers used in the heists. The information contained in the cell phone records would be used to track Carpenter’s location during the heist and establish guilt.

The government was successful in receiving access to the cell phone records. However, they did not get a search warrant, as is required in criminal proceedings. Instead, they received the cell phone information under the Stored Communications Act. This is significant because the government only needed to present “reasonable grounds to believe” information is “relevant and material to an ongoing criminal investigation.” Search warrants require probable cause, which is a much higher standard. The Stored Communications Act was essentially used as a backdoor to bypass the protections guaranteed by the Fourth Amendment.

Challenges to the Fourth Amendment

The Fourth Amendment has been continuously challenged by the advancement of technology. When it was originally written our founding fathers could never have anticipated the technological boom our world would experience, and how technology would affect the most intimate corners of our lives. Today, we tend to rely on technology in ways that we unfathomable even decades ago. A major question that has arisen time and time again is: how do we square the use of technology with our right to be free from unreasonable searches and seizures? Alternatively, should the Fourth Amendment apply to electronic privacy, or should it be focused primarily on the more traditional privacies that were intended to be protected when the Amendment was written?

The Supreme Court has, in prior cases, indicated that the protections of the Fourth Amendment should be extended to technology. In perhaps the most relevant case, the Court (in a unanimous decision) held that warrantless searches of cell phones are illegal.

Chief Justice John Roberts explained that “modern cell phones are not just another technological convenience. With all they contain and may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

The decision in this case will likely come down to two primary questions. First, can law enforcement use National Security claims to circumvent the protections of the Fourth Amendment. If not, do cell phone service records require the same level of protection as the contents of a cell phone?

What Does the Fourth Amendment Say?

The text of the Fourth Amendment is intentionally broad. Unlawful searches and seizures of “persons, houses, papers, and effects” are prohibited by the Constitution. This may indicate that the authors intended for the scope of our Fourth Amendment protections be applied broadly.

Here, one issue may be whether electronic cell phone service records should be considered to be effects. Carpenter’s criminal defense team will likely make a strong argument that cell phone records are simply an extension of his personal effects. If the contents of what we do on our cell phones are private enough to warrant Fourth Amendment protection, the records that stem from those behaviors should also be protected. The government, on the other hand, will likely argue that Carpenter had no reasonable expectation of privacy for those records.

What is the Fourth Amendment Issue Before the Supreme Court?

The Supreme Court is faced with a seemingly simple issue: can a warrantless search and seizure be conducted in a criminal case without violating a suspect’s Fourth Amendment rights. Using the Stored Communications Acts was an interesting way to circumvent those protections. If the Supreme Court decides that the government’s actions were not in violation of the law it could potentially open a can of worms that could be disastrous for future criminal proceedings across the country.

It is incredibly important that the Supreme Court maintains the structure and dignity of the Fourth Amendment in its Carpenter decision. A decision that undermines the protections of the Fourth Amendment could forever change our criminal justice system to the detriment of anyone accused of a crime.

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