The 2017-18 Supreme Court Term: The Court’s Focus on Privacy Issues
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: email@example.com
As spring of 2018 approached, the Supreme Court has probably completed its docket for the 2017-18 term. By the first of March, it had granted certiorari to (i.e., agreed to hear) 64 cases. Seventeen of those were criminal cases. Six of the criminal cases are related to the way the police conduct investigations. The table below provides a brief summary of the criminal cases on the Court’s docket, including the date that the Court heard (or will hear) oral argument in those cases.
While any case on the Court’s docket is of substantial importance, four of the criminal cases stand out – especially for the law enforcement community. There is a common denominator in these four cases – the degree to which the police may invade privacy interests (or in one case, who will be able to raise the issue).
Carpenter v. U.S.
The case that almost certainly will receive the greatest public attention is Carpenter v. U.S. In that case, police were investigating a string of armed robberies in Ohio and Michigan. After Carpenter became a suspect in the case, the police sought evidence that would indicate whether he was in the vicinity of each of the robberies when they occurred. Without a search warrant (but with a court order, similar to a subpoena), they obtained from Carpenter’s cell phone provider six months’ worth of information as to which cell phone towers had been accessed by Carpenter’s cell phone, and when (often referred to as Cell Site Location Information, or CSLI). This information demonstrated that at the time of the armed robberies being investigated, Carpenter’s cell phone had been within a couple of miles of the locations of the robberies.
Carpenter will be the Court’s second important case in which it tries to determine how to apply old case law to a digital era. In the first case, Riley v. California, the Court held that the police need a search warrant to examine the contents of a cell phone found on an arrested person during a search incident to the arrest. In Chimel v. California, the Court held that when the police arrest a person constitutionally, they may search the person arrested and the area within his immediate control. Chimel has been viewed as allowing the police to look into objects found on the arrested person during the search incident to arrest. In U.S. v. Robinson, for example, the arresting officer had found drugs inside a crumpled cigarette package in the pocket of the coat Robinson was wearing when he was arrested. The Court permits these warrantless searches incident to arrest for two reasons – to protect the arresting officer from the danger posed by a weapon on the person arrested and to prevent the destruction of evidence by the arrestee.
A literal application of the Chimel/Robinson rules would have (arguably, at least) permitted the arresting officer in Riley to “open” Riley’s cell phone and examine its contents, just as the arresting office in Robinson was permitted to open the cigarette package found in Robinson’s coat. In Riley, however, the Court recognized the obvious difference between the amount and the kinds of information contained in a cell phone and a cigarette package. The Court characterized a smart phone as a mini-computer holding vast amounts of personal information about the arrested person. Therefore, the Court held that examining the contents of a cell phone was so great an intrusion into the privacy interests of the person arrested that the police need a warrant under the Fourth Amendment to do so (unless there are circumstances suggesting that the delay caused by waiting to obtain a warrant would endanger the police).
The CSLI information obtained by the police in Carpenter may not be as extensive as the information obtained by a search of the contents of a cell phone, but the CSLI information is significant, especially when it covers a lengthy period of time – six months in Carpenter. The “old” case whose application to this newer, more complicated situation is in question is Smith v. Maryland. In that case, the police had used a pen register (without a warrant) to obtain a list of the phone numbers called from Smith’s phone. The Court held that the police did not need a warrant to obtain this information. When Smith used his phone to place a call, he shared that information with the phone company and assumed the risk that it might be shared with others as well. In effect, Smith relinquished his privacy interest in the identity of the phone number called by “sharing” that information with the phone company.
In Carpenter, the government argues that Carpenter shared the general location of his cell phone with his cell phone provider when he used his phone. Therefore, Smith permits warrantless access to CSLI information. Of course, there are significant differences between the two situations. Arguably, a person’s general location is information of a more private nature than the identity of a phone number called. In addition, a cell phone “communicates” with cell towers within range of the phone whether or not the cell phone user is making a call.
Several of the Justices on the present Court have expressed concern about the long term gathering of information that would not be problematic in the short term. In U.S. v. Jones, the Court held that installing a GPS device on Jones’ vehicle constituted a search because it intruded physically into a constitutionally-protected area (i.e., the vehicle). The main reason why this case attracted so much public attention is because of the Court’s conclusion that it had not replaced its traditional trespass-based approach to what constitutes a search when it decided Katz v. U.S. (where the Court ruled that a search occurs whenever the police do something that intrudes upon a reasonable expectation of privacy).
However, Jones has significance for our discussion here because, in a concurring opinion, Justice Alito (joined by Justices Kagan, Ginsburg, and Breyer) indicated that the police intruded upon a reasonable expectation of privacy when it used the GPS tracking device to monitor Jones’ movements for 28 days. Justice Alito indicated that use of the tracking device for a short period of time would not have been a search, although he declined to indicate how long was long enough to intrude upon a reasonable expectation of privacy. Nevertheless, the opinion makes it clear that these four Justices are concerned about the long term collection of information that could be obtained without a warrant for a short period of time. What’s more, in a separate opinion, Justice Sotomayor took the unusual position of agreeing with both the plurality opinion in the case (taking the trespass-based approach) and Justice Alito’s concurring opinion (taking the length-of-surveillance approach). This means that five Justices agree that long term collection of certain data requires a warrant, even though short term collection of the data would not.
U.S. v. Microsoft
The second case on the Court’s docket with important privacy implications is U.S. v. Microsoft. In that case, the government obtained a warrant requiring Microsoft to disclose information from a particular email account. Microsoft took the position that the warrant was invalid because the emails were stored in Ireland; therefore, they were beyond the geographical reach of the government’s search warrant. The Second Circuit Court of Appeals was very divided on the issue. A three-judge panel ruled in favor of Microsoft. The full court reheard the case en banc, but it divided evenly (leaving undisturbed the decision of the three-judge panel).
The implications of the decision in this case are obvious. If the Court rules for Microsoft, it can remove private emails from the reach of law enforcement by simply storing those messages somewhere outside the United States. While one can see some rationale behind exempting physical evidence from the jurisdiction of law enforcement officials, information stored electronically could viewed much differently. The physical location of the storage of digital information seems less significant than the physical location of more tangible evidence. The latter can be accessed only by being physically present in the place where the evidence is located, whereas electronic information can be accessed from virtually anywhere.
Collins v. Virginia
The third case on the Court’s docket with significant privacy implications (and great practical implications for law enforcement) is Collins v. Virginia. In this case, the police were trying to locate the driver of a motorcycle who had twice eluded the police at very high rates of speeds. In one of these incidents, an officer had been able to video record some of the incident. As a result, police were able to identify the license plate on the motorcycle. A computer search of the plate number indicated that the plate was inactive. When the police questioned the last person listed as owner of the motorcycle, that person indicated that he had sold the motorcycle to Ryan Collins. When the police accessed Collins’ Facebook page, they saw a picture of a motorcycle that looked very much like the motorcycle that had eluded the police. Through some police sources, the police were able to determine the address of the place where the photo of the motorcycle had been taken.
When the police arrived at this address, they saw a motorcycle under a tarp parked a car length or two up the driveway from the street. The motorcycle that had eluded the police had a very distinctive appearance, having been “stretched out” for apparent drag racing. The motorcycle under the tarp had this same “stretched out” look. The officers pulled the tarp up so they could access the VIN on the motorcycle. A records check of the VIN revealed that it had been stolen. Collins sought suppression of the records check on the basis that the police needed a warrant to look at the motorcycle because it was parked on private property.
The Court has held that the police may search a motor vehicle without a warrant (because of the reduced expectation of privacy associated with vehicles) so long as the police have probable cause to think the vehicle contains contraband or evidence of a crime and the vehicle is readily mobile. However, in Coolidge v. New Hampshire, the Court held that it was unconstitutional to search Coolidge’s car without a warrant. This case and subsequent automobile search cases are not as clear as they could be as to why a warrant was required in Coolidge. However, the most logical answer to that question is that Coolidge’s vehicle was on private property when it was searched. In all other vehicle searches where the Court held that a warrant was unnecessary, the vehicle was either in a public place or in the possession of the police when it was searched.
Thus, the issue in Collins is whether the police needed a warrant to look at Collins’ motorcycle when it was parked on private property. Although the Virginia Supreme Court held that the police did not need a warrant, its decision failed to clarify just when the police do need a warrant to search a vehicle on private property. The U.S. Supreme Court will have the opportunity in Collins to clarify this issue.
Byrd v. U.S.
The last case on the Supreme Court’s docket touching on privacy issues is Byrd v. U.S. In that case, Terrence Byrd’s girlfriend rented a car. She did not put Byrd’s name on the rental agreement. Byrd was driving the car when it was stopped for a traffic violation. The police searched the car and found contraband, which served as the basis for charging him with criminal activity. Byrd sought to challenge the constitutionality of the search, but the government objected, arguing that Byrd lacked standing to raise the issue.
Standing is a legal concept that determines who has the ability to raise a particular legal issue. For example, the Supreme Court has held that members of the Sierra Club could not challenge actions of the government concerning possible development of property in a national park because the club failed to assert or demonstrate that any of its members would be affected adversely by the government’s actions. Therefore, the Sierra Club lacked standing.
In criminal cases, when the defendant attempts to challenge the constitutionality of a search, the Court has held that the defendant must show that his own reasonable expectation of privacy (and not the reasonable expectation of someone else) was intruded upon by the police. Therefore, the issue in Byrd is whether Byrd had a reasonable expectation of privacy in a rental vehicle that he did not rent when his name was also not listed on the rental agreement. The issue is significant because the more people who are given standing, the more police action is subject to scrutiny by the courts.
The presence of four cases on the docket of the Supreme Court that deal with privacy issues provide an opportunity to assess where the Court stands on privacy, especially in the wake of Justice Gorsuch’s addition to the Court. The record of the Roberts Court concerning its interest in protecting privacy is mixed. At times the Court has been quite sensitive to privacy concerns. For example, as we have seen, the Court has held that attaching a GPS device to an automobile is a search, and the police need a warrant to examine the contents of a cell phone seized incident to an arrest. It has also ruled that bringing a drug detection dog to the front door of a residence to sniff around the door is a search. It has held that the police may not search the passenger compartment of a vehicle without a warrant incident to an arrest taking place at the vehicle unless the person arrested is not under the control of the police and is within reaching distance of the vehicle, or there is reason to believe that evidence of the offense of arrest is in the vehicle. The Court has declined to permit the police to extend the time of a traffic stop to permit a drug detection dog to walk around the stopped vehicle. The Court has also held that the police may not detain a person who has just left a residence about to be searched unless the person detained is still within the immediate vicinity of the place to be searched.
At other times, the Court has ruled in a manner that demonstrates a greater concern for government interests than for privacy interests. The Court has upheld arrests for an offense which was not chargeable under existing law, so long as there existed probable cause to arrest the suspect for some other offense. It has ruled that probable cause to search may be based on exigent circumstances created by the police’s own actions. It has held that if an arrest is unlawful only because it violates a state statute, the arrest is not therefore a violation of the Fourth Amendment (thereby leaving it to the discretion of the states as to whether evidence discovered incident to the unlawful arrest should be excluded as evidence at trial). The Court has found reasonable suspicion to stop a vehicle based on an anonymous report that the vehicle had forced off the road the person making the anonymous report. The Court has also permitted warrantless searches of parolees and strip searches of persons who have been arrested for minor offenses and cannot make bail, before placing the person in pretrial detention, without any suspicion that the parolee or detainee possesses contraband or evidence of a crime. Perhaps most dramatically, the Court has strongly intimated that evidence obtained during an unconstitutional search should not be suppressed unless the police intentionally violated the Fourth Amendment or were reckless or grossly negligent (or perhaps systemically negligent) in thinking their search complied with the Amendment.
Of course, while privacy interests are of extremely great significance in a free society, it is also important that the police are given enough authority to be effective in preventing and solving crimes. In deciding cases involving interpretation of the Fourth Amendment, the Court weighs these competing interests against each other. The four cases pending before the Court and discussed in this article should provide further insight into the relative weight that the Roberts Court, in its first full term with Justice Gorsuch, gives those competing interests.
 The Supreme Court now posts audio recordings of oral arguments at the end of the week in which the arguments took place (https://www.supremecourt.gov/oral_arguments/argument_audio/2017https://www.supremecourt.gov/oral_arguments/argument_audio/2017https://www.supremecourt.gov/oral_arguments/argument_audio/2017). At another website (oyez.org), one can not only listen to the oral arguments, but follow along with a written transcript at the same time.
 134 S.Ct. 2473 (2014).
 395 U.S. 752 (1969).
 414 U.S. 218 (1973).
 442 U.S. 735 (1979).
 565 U.S. 400 (2012).
 389 U.S. 347 (1967).
 This case was the topic of an earlier article in the Bulletin, “Warrantless Searches of Automobiles on Private Property.” (http://www.radford.edu/content/cj-bulletin/home/june--2017--vol-2--no--2-/warrantless-searches-of-automobiles-on-private-property.html).
 Pennsylvania v. Labron, 518 U.S. 938 (per curiam, 1996).
 403 U.S. 443 (1971).
 Sierra Club v. Morton, 405 U.S. 727 (1972).
 Rakas v. Illinois, 439 U.S. 128 (1979).
 Jones, supra note 6.
 Riley, supra note 2.
 Florida v. Jardines, 133 S.Ct. 1409 (2013).
 Arizona v. Gant, 556 U.S. 332 (2009).
 Rodriquez v. U.S., 135 S.Ct. 1609 (2015).
 Bailey v. U.S., 133 S.Ct. 1031 (2013).
 Heien v. N.C., 135 S.Ct. 530 (2014).
 Kentucky v. King, 563 U.S. 452 (2011).
 Virginia v. Moore, 553 U.S. 164 (2008).
 Navarette v. California, 134 U.S. 1683 (2014).
 Samson v. California, 547 U.S. 843 (2006).
 Florence v. Board of Freeholders, 564 U.S. 1065 (2012).
 Herring v. U.S., 555 U.S. 135 (2009).