Supreme Court to Decide Whether Warrantless Cell Phone Location Search Violates Fourth Amendment


The United States Supreme Court has agreed to hear a case that could become a landmark case in the use of cell phone data in criminal investigations. 

In Carpenter v. United States, the FBI, without a warrant, obtained cell phone data that marked the locations of several robbery suspects during the times in which the robberies occurred. Timothy Carpenter, a suspect charged with aiding and abetting robber that affected interstate commerce (violating the Hobbs Act, 18 U.S.C. 1951), moved to suppress the cell site evidence, saying that the FBI violated the Fourth Amendment by not obtaining a warrant based on probable cause before searching the data.

Last April, the U.S. Sixth Circuit Court of Appeals upheld the government's warrantless search of cell phone location data. In the court's opinion, Circuit Judge Raymond Kethledge wrote: "In Fourth Amendment cases the Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it. Content, per this distinction, is protected under the Fourth Amendment, but routing information is not." According to the decision, the cell phone companies' business records used to determine the location of the callers is not protected information.

The appeals court determined that cell-site data is just "like mailing addresses, phone numbers, and IP addresses [are] information that facilitate personal communications, rather than part of the content of those communications themselves. The government's collection of business records containing these data therefore is not a search." 

Certainly, many would disagree. After all, a person's mailing address is a fixed location. If you find my mailing address through public records, it shows you my permanent residence--it does not, however, give you the precise locations where I travel each day.

To reach this decision, the Sixth Circuit judges cited precedence in two cases:

  • Katz v. United States (1967), in which the Supreme Court held that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," and
  • Smith v. Maryland (1979), the Court ruled that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

The "third party doctrine" has greatly expanded the powers of law enforcement to collect information without a warrant while eroding the protections offered under the Fourth Amendment.

Certainly, there is enough gray area here in the use of cell phone technology in criminal investigations that it demands a closer look. In 2012,

Justice Sonia Sotomayor noted, "[P]eople disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Last week, the Supreme Court of the United States agreed to hear Carpenter v. United States. The case is to be considered in the October 2017 term.

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