Category Archives: Fourth Amendment

In Carpenter v. United States, the Supreme Court will decide whether a warrant is required for the government to obtain historical cell-site records from a customers account. This post asks a question for those who think the answer should be yes: How do you deal with the Fourth Amendment rights of the cellphone providers? Im not sure what the answer should be, but I think its an important question to help understand the issues and stakes in Carpenter.

This is a complex issue, so Im going to break it down into three steps. Ill start with an overview of the third-party doctrine. Ill then turn to third-party rights under current law. Ill next consider different ways the third-party rights might work if the Supreme Court holds that a warrant is required.

I. Overview of the Third-Party Doctrine

Lower courts have held, consistently with U.S. Supreme Court precedent, that historical cell-site records are not protected under the Fourth Amendment. They have mostly based this holding on the third-party doctrine, the rule that you dont maintain Fourth Amendment rights in information that you voluntarily disclose to a third party.

As I explained in this article, the third-party doctrine was originally intended to be the subjective expectation of privacy test in Justice Harlans Katz concurrence. The idea was that you can only have privacy in what you try to hide from others: You need to manifest your subjective expectation of privacy to have Fourth Amendment rights, shielding it from observation, so that you cant have such rights in what you knowingly disclose to others. As my article explains, this rule has been around for a very long time, but it accidentally moved over time from the subjective expectation test into the objective expectation of privacy test in the 1970s and 1980s.

The third-party doctrine has had very wide application. If a criminal confesses to his friend about his crimes, the government can get the information from the friend without implicating the criminals Fourth Amendment rights. If a person commits an offense in front of an eyewitness, the government can get the information from the eyewitness without implicating the criminals Fourth Amendment rights. If a person goes to the bank and deposits a check, the government can get the information from the bank without implicating his Fourth Amendment rights. And if a person dials a number to place a phone call, the government can get the numbers dialed from the phone company without implicating his Fourth Amendment rights.

II. What About the Constitutional Rights of the Third Party?

A key implication of the third-party doctrine is that the government only has to deal with the constitutional rights of the person or business that received and now possesses the information. Upon the informations receipt, the thinking goes, the sender of the information no longer has Fourth Amendment rights in it. Only the rights of the recipient/holder of the information matter.

That raises the question of to what extent the constitutional rights of the holder of the information can limit law enforcement. The answer is: some, although not much. First, the Supreme Court has held that there are no Fourth Amendment limits to the government compelling a person to testify about what they know and what they saw. That raises Fifth Amendment issues if the person who would testify may be thought to be involved in criminal activity, but the compelled testimony is not a search or seizure under the Fourth Amendment. See United States v. Dionisio, 410 U.S. 1 (1973).

Second, if the government compels a person or company to hand over stored records as opposed to live testimony, the Fourth Amendment applies to the records but the constitutional limit is only unreasonable burdensomeness. There is no warrant or probable cause requirement. See, e.g., Hale v. Henkel, 201 U.S. 43 (1906); In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (Friendly, J.). To be sure, the Fourth Amendment still applies fully to direct entry. The government ordinarily needs a warrant to break into a business and seize records just like it needs a warrant to break into a home. But its a different situation when the government is compelling assistance rather than searching directly.

These same Fourth Amendment rules apply when the government is seeking information that a business happens to hold about its customers. Whether the target of the investigation is the business or its customers doesnt matter under the Fourth Amendment. This means that if the government is seeking a companys assistance to disclose records about the businesss customers, the information is protected under the Fourth Amendment in the abstract because the business has its own Fourth Amendment rights. At the same time, the third-party business generally can be required to keep and disclose the records under a fairly low burden. See, e.g., California Bankers Association v. Shultz, 416 U.S. 21 (1974); Couch v. United States, 409 U.S. 322 (1973); Donaldson v. United States, 400 U. S. 517 (1971). And because the information or records ordinarily could not incriminate the third party in criminal activity, the third party business cannot assert a Fifth Amendment privilege against production. See Fisher v. United States, 425 U.S. 391 (1976).

The idea that a business has only modest Fourth Amendment rights to fight compelled disclosure of customer records isnt new. It has been around a long time. For example, in First National Bank v. United States, 267 U.S. 576 (1925), the IRS wanted to see if a couple had underreported their income on their federal income tax forms. The IRS issued a summons to the couples bank requiring the bank to produce their books showing the couples banking account records. The idea was that the bank statements would reveal whether the couple had falsely reported their income. The bank refused to comply under the Fourth Amendment on the ground that producing the records was an unreasonable search or seizure and that the bank wanted to keep its customers account records private.

The district court rejected the banks claim. This is not a question of a search and seizure of a partys books and papers, the court wrote, but of whether a witness who has information as to a partys dealings may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony. It would be monstrous, the court rather dramatically added, for the government not to be able to determine the proper taxes that a person owed simply because the bank desires to protect the dealings of its customers from unauthorized investigation. The Supreme Court then affirmed the district court in a one-sentence per curiam opinion upon the authority of the courts precedents about subpoenas for business records (including Hale v. Henkel, cited above).

III. Applying the Traditional Approach to Historical Cell-Site Records

Applying this traditional body of law to historical cell-site records is pretty straightforward, I think. The cellphone company generates and stores business records of what cell towers were used to connect a customers calls. Those records are like the banks records in First National Bank. The cellphone provider is ordered to be a witness who has information as to a partys dealings [and] may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony.

Granted, Congress requires an intermediate facts court order under the Stored Communications Act for the government to compel those records. A mere subpoena, which would be sufficient under the Fourth Amendment, isnt enough under the statute. But if the lesser process of a subpoena is sufficient to satisfy the rights of the company, presumably the greater process of an intermediate facts court order is as well (although that hasnt been challenged), And under the third-party doctrine, access to the account records wouldnt implicate any Fourth Amendment rights of the user.

If youll pardon a brief digression, its not even clear you need the third-party doctrine to say that the records dont implicate the users Fourth Amendment rights. The third-party doctrine is traditionally about the disclosure of private information that a suspect has revealed. The idea is that the suspect has private information, chose to reveal that information (often in confidence) to someone, and then the government sought that private information from that person. The cell-site business records in Carpenter are arguably one step removed from that. They are business records of how a private company decided to direct calls to and from the user. The records are about what a private company did for a user, not necessarily what a user chose to disclose in confidence to the company.

But at the very least, the third-party doctrine seems to fit the Carpenter case under traditional caselaw principles. So the old answer would be no Fourth Amendment rights for the customer, although statutory rights provided by Congress, and only modest Fourth Amendment rights for the cellphone provider.

IV. If the Third-Party Doctrine is Rejected, How Should Courts Deal With Third-Party Rights?

Thats the old law, at least. Now lets consider how the Fourth Amendment would work if the Supreme Court rejects that traditional approach. Lets assume the Supreme Court agrees with the defendant on both issues in Carpenter: First it holds that users have Fourth Amendment rights in cell-site records, and second it holds that the records are protected by a warrant protection.

Now we get to my question: Assuming the Supreme Court makes these two holdings, how would this work with respect to the providers rights? The government does not seek cell-site records by breaking into the providers business and rummaging around its offices and computers. That would ordinarily require a warrant even under the traditional law of the third-party doctrine. The records are already protected under the Fourth Amendment as held by the company, after all, and ordinarily the government would need a warrant to break into the company headquarters and seize them because of the companys Fourth Amendment rights.

The tricky problem, I think, is what to do with the providers rights once the user also has rights in the records. Assume, for now, that the company does not want to comply with the governments legal process. If the records were about the provider, a subpoena would be enough for the government to force the company to disclose them.

Heres what Im stuck on: How do you reconcile the conflict between that rule and a warrant requirement if the Fourth Amendment rights belong to the user? Is the idea that a company served with a subpoena for business records has to figure out if the subpoena implicates only its own Fourth Amendment rights (in which case the subpoena complies with the Fourth Amendment so long as it is not overbroad) or if it also implicates a users Fourth Amendment rights (in which case the subpoena is insufficient and a warrant is required?). If the government issues a subpoena for business records and it turns out that a customer also had rights in the data, would we say that compelled compliance with the subpoena violated the rights of the user but not the company?

Alternatively, if it doesnt make sense for every subpoena and sub-warrant court order to require a standing analysis before knowing if compliance is legal, which rule do you apply to both situations if a single rule has to be chosen? Do you say that both situations require a warrant, such that all subpoenas issued to businesses now require probable cause and warrant particularity (effectively eliminating the use of business record subpoenas for investigations)? Or do you say that neither situation requires a warrant, such that the user has Fourth Amendment rights in cell-site records but that a valid subpoena is enough to overcome the Fourth Amendment rights just as it it would for ordinary business records?

Next assume that the cellphone company wants to cooperate. If both the user and the company have Fourth Amendment rights in the records, then I imagine the common authority doctrine would apply. Under the common authority doctrine, if there is mutual use of the property by persons generally having joint access or control for most purposes, they both can consent to a search. See United States v. Matlock, 415 U.S. 164 (1974). Cellphone customers may not have joint access and control over cell site records: They dont know what the records say and have no ordinary means of accessing them. But if they nonetheless have Fourth Amendment rights in the records, I would think that at least the company has common authority over the records allowing them to legally consent to law enforcement access to the records.

If thats right, though, how does it work if the phone company is willing to help the government? Imagine Carpenter holds that users have Fourth Amendment rights in cell-site records, and that a warrant is ordinarily required. Can a provider tell the government that as long as the government has a 2703(d) court order, as required by the statute, that it will voluntarily consent to hand over the records under the common authority doctrine? If so, whether there is really a warrant requirement would depend on what the company wants to do: Because both the user and the company have common authority over the companys business record, the company could consent and eliminate the right.

You could try to avoid this by saying that the cellphone providers lack common authority over their own business records. But that seems like a hard result to justify. The companies created and used the records and keep them. It seems hard to say that they lack access to or control over the records that they created and keep for their own use.

Granted, caselaw would suggest that companies lack common authority to consent to a government search of the contents of communications, such as emails. In physical space, the landlord of an apartment or the hotel employee at the hotel lacks common authority to consent. See Chapman v. United States, 365 U.S. 610 (1961) (landlord); Stoner v. California, 376 U.S. 483 (1964) (hotel employee). By analogy, I would think that an email provider couldnt ordinarily consent to a search of the contents of a users emails, at least barring some unusual terms of service. But with cell-site records, I would think that the phone companies have at least common authority (if not exclusive authority) over the records of how their network connected calls.

V. Let Me Know Your Thoughts

For the seven readers that have made it this far, let me know your thoughts! There may be good answers to these questions. But it seems like largely uncharted territory, and Im not sure yet what those good answers are.

See the original post:
Third party rights and the Carpenter cell-site case - Washington Post

Orin Kerr at the Volokh Conspiracy has another twisted and complicated Fourth Amendment case for us to consider this week. It deals with United States v. Gorman and its yet another traffic stop challenge, but with several twists. This particular incident involved an officer stopping Straughn Gorman while he was driving his brothers motor home cross country to California. The officer believed that Gorman was carrying drugs and/or drug money in the RV but didnt have a drug sniffing dog with him and had no further grounds to search the vehicle so he let him go. The officer then called ahead to law enforcement in the next county and alerted them to Gormans approach and of his suspicions. A second officer (with a dog) intercepted Gorman and pulled him over on another very minor traffic violation. The dog detected drug residue and a warrant was issued, leading to a search which turned up $167,070 in cash, stuffed in white envelopes and sealed in plastic bags.

There were no criminal charges brought against Gorman, but the authorities did seize the money. The courts eventually found that the search was unsupportable and Gorman got his money back. This brings Kerr to ask the following question.

If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

The bottom line to this lengthy discussion is that there are two conflicting elements to the decision, at least for my interest in the subject. One of them is the forfeiture of all that money and the efforts by the cops to keep it. From the sound of the police reports theres pretty much zero doubt that this guy was hauling drug money, but thats not the point here. The cops have to be able to prove their case before they should even be allowed to consider confiscating someones property. Since Gorman guilty or not in reality was never even charged its preposterous that they should keep his cash. That aspect of the challenge is easy enough for me.

But the stickier subject is the fact that the courts are once again summoning up the misbegotten fruit of the poisonous tree doctrine here. If you read the entire account of both officers in the full decision, even Ill admit that these traffic stops were dodgy at best. I have no clue what tipped off the first officer that there was money (as opposed to drugs) in the vehicle. But the fact is that something tipped him off. And it was later discovered that there absolutely was a large quantity of cash with drug residue on it. So why should the second officer be forbidden to act on that tip and have a dog sniff the vehicle? What if they had received an anonymous tip from somebody telling them the driver was trafficking drugs? Wouldnt that be suitable justification?

This fruit of the poisonous tree nonsense is completely out of hand. Theres a line to be drawn somewhere between ensuring the rights of citizens against unreasonable search or seizure and simply tying the hands of law enforcement to the point where they cant do their jobs when theres obviously a crime taking place. And cases such as this one cross that line by a fair margin.

Read more:
So now coordinated traffic stops are a Fourth Amendment violation? - Hot Air

A new decision from the U.S. Court of Appeals for the 9th Circuit, United States v. Gorman, touches on an interesting question: If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

In Gorman, there was a twist: The first officer held the driver for too long. The officer pulled over Straughn Gormans motor home for a traffic offense and then he held Gorman for almost a half-hour. He called for a drug-sniffing dog but was told there werent any available. Twenty minutes into the stop, the officer gave Gorman his documents back and told him he was not issuing a ticket. The officer continued to question Gorman, however, based on suspicion that Gorman was carrying drug money in the motor home. The stop went on for too long under the time-limiting doctrine articulated by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

The officer became convinced that there was drug money in the motor home, but he did not have sufficient probable cause to search the car. He let the driver go, and he then called ahead to a second officer in the next county to get a dog and watch the vehicle. The second officer did so, later pulling over the motor home for a second traffic violation. The dog alerted, and a warrant was obtained to search the motor home. The search revealed $167,070 in cash in various interior compartments. The government brought a civil forfeiture action seeking to keep the cash as the proceeds of illegal drug activity, and Gorman moved to suppress the fruits of the search so it could not be used in the civil forfeiture action.

Held, per Judge Reinhardt: The evidence found following the second stop was a fruit of the unconstitutionally prolonged first stop. As a result, the money was suppressed.

From the opinion:

Here, there is an indisputable causal connection between Gormans concededly unlawful detention and the dog sniff and its fruits. See id. at 245. The detention unquestionably served as the impetus for the chain of events leading to the discovery of the currency. See id. It is clear, moreover, that [the first officer]s suspicions from the first stop significantly directed [the second officers] actions in making the second stop and conducting the sniff and search. See id. The close connection between the constitutional violation (the first detention) and the seizure of the currency is apparent.

On the basis of suspicions that accrued during the course of Gormans unlawful detention, [the first officer] alerted a separate law enforcement agency, informed [the second officer] of the basis for his suspicions, and requested that he attempt to stop Gorman for a second time, this time with a drug-sniffing dog. [The second officer] promptly estimated Gormans location and made a special trip to the highway for the purpose of apprehending him and conducting the dog sniff the sniff which led to the discovery of the currency. To repeat, there was a direct connection between the Fourth Amendment violation and its fruits. Thus, any evidence obtained from the sniff and search is inadmissible under the fruit of the poisonous tree doctrine.

The government does not contend that the fruit of the poisonous tree doctrine is applicable only if the impetus for the second stop came from the unlawful portion of Gormans detention. Even if it did, however, our conclusion would be the same, because the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gormans detention. It was only after the stops mission had been completed that [the first officer developed suspicion that the car motorhome was being used to carry drug money. . . . ] Given that sequence, we need not determine whether it would be appropriate to divide an unlawful detention into lawful and unlawful parts for purposes of fruit of the poisonous tree analysis

Reinhardt adds:

The coordinated action at issue in Gormans case offers a prime illustration of the value of the fruit of the poisonous tree analysis. The analysis allows us to see the officers conduct in Gormans case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitutions requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops. . . . The Constitution guards against this kind of gamesmanship because the Fourth Amendments protections extend beyond the margins of one particular police stop and can extend to the integrated and purposeful conduct of the state.

Putting aside whether this fruit of the poisonous tree analysis is correct under Utah v. Strieff, Im more interested in whether the second stop would be allowed if the first stop had not been prolonged. That is, can officers coordinate stops, watching for new traffic violations to stop a car to make sure a drug-sniffing dog will be present?

Reinhardt drops the following footnote on this issue:

Because we conclude that the seized currency is inadmissible as the fruit of the poisonous tree, we do not consider the argument that the second stop, taken independently, was itself unconstitutional. It could well be argued, for example, that performing the routine records checks during the second stop (which in Gormans case took significantly longer than usual because the central dispatch was delayed in responding to [the second officer]s inquiry) unreasonably prolonged Gormans roadside detention because [the second officer] knew in advance what the results of those redundant checks would be, as he correctly assumed [the first officer] already had done them and knew [the first officer] had found no probable cause to search the vehicle. [The second officers] checks therefore served no purpose other than to prolong the traffic stop.

Im not sure what I think of this, but it seemed like an interesting question worth flagging for the Fourth Amendment nerds among our readership.

Read more here:
Coordinated traffic stops and the Fourth Amendment - Washington Post

Phillips is the founder of Tea Party Nation. He is based in Nashville, Tenn.

Among lawyers, there is a saying, Bad cases make bad law. Now, a single case is about to make very bad law. It will eviscerate the Fourth Amendment of the Constitution in the 21st Century.

And Congressman Bob Goodlatte can stop it.

While the background for this is a little technical, it is worth knowing. In 2013, the United States Department of Justice sought a search warrant on electronic communications for an individual, under Section 2703(a) of the Stored Communications Act.

The search warrant was served on Microsoft, for communications in the companys possession. Microsoft complied with the warrant as far as any digital communications that it had that were stored in America. The problem for law enforcement was some of those communications were stored in Ireland and Microsoft said it could not and would not produce those. Microsoft was held in civil contempt for refusing to turn over the emails and contents stored in Ireland.

Eventually the case went to the Second Circuit Court of Appeals, which ruled that Microsoft was not obligated to turn over emails and other digital records that were exclusively stored outside of the United States.

Not satisfied with that ruling, the Department of Justice chose a different route. They decided to ask Congress to give them what the Courts would not. The House Judiciary committee will hold a hearing on June 15th, entitled, Data stored abroad: Ensuring Lawful Access and Protecting Privacy.

Fortunately, the laws governing false advertising do not apply to Congress.

When the 4th Amendment was written, it was one of the most expansive statements of liberty and an incredible restriction on the power of government. The Fourth Amendment says, 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, and particularly describing the place to be searched, and the persons or things to be seized.

If you consider the world of the 1780s, that statement was amazing. Every form of property the founding fathers could think of was included. Today, we live in a world where the government wants all of the data about us it can get. Guilty or innocent, it does not matter.

The modern surveillance state is the exact reason our founding fathers incorporated the Fourth Amendment into the Bill of Rights.

In the last few years, the American people have been treated to one horror story after another that featured the abuse of citizens by our government. America is only scratching the surface of the unmasking scandal from the last year of the Obama administration. The story of the IRS abuse of citizens who dared to disagree with the government continues

Does any sane person trust giving the government more power?

Privacy, as we know it, is on the endangered species list. There are many government officials who believe that the only privacy rights Americans should have are those the government chooses to grant them.

There is an truism that says, Those who forsake liberty for security, deserve neither. As the Chairman of the House Judiciary Committee, Congressman Goodlatte has the power to stop this bad idea and protect the Fourth Amendment.

He needs to hear from Virginians that the government is too powerful now. He needs to hear that the government needs to stay within its bounds and allow liberty to flourish. He needs to hear that this idea should be tossed on to the ash heap of bad ideas and forever forgotten.

Congressman Goodlatte, help save the Fourth Amendment.

Read this article:
Phillips: Congressman Goodlatte, Save the Fourth Amendment - Roanoke Times

The Fourth Amendment states, "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, and particularly describing the place to be searched, and the persons or things to be seized." Pretty straightforward, right? It was, until something labeled the "Foreign Intelligence Surveillance Act" (FISA). Today, every electronic communication of every kind -- e-mail, telephone conversation, radio or TV communication, in any medium -- is routinely overheard, recorded, stored and available for use against any American citizen by the FBI, the CIA, the NSA, the IRS, the Social Security Administration and every information and intelligence gathering agency government-wide. Your cell phone isn't just a telephone any more: it's a GPS for government trackers; it stores your phone records and conversations; and the "your" telephone company routinely provides that Government whatever it asks about what we say, to whom, and when. So do our computers. The result? There is no longer any reasonable expectation of privacy, anywhere, anytime, for anyone.

One might ask, "How did this come to be?" In 1978, under President Jimmy Carter, Congress enacted something called the "Foreign Intelligence Surveillance Act" (FISA), whose nominal purpose was to enable the federal government to eavesdrop, wiretap, or otherwise capture the contents of communications and/or conversations involving people from other nations around the world whom our government believed might be plotting or conspiring to do America harm. Of course, some of those nefarious plotters might also be doing so in conjunction with Americans; therefore, it was necessary to "listen in" on everyone, lest our defenders in the intelligence community not be able to detect all they could. Which in turn meant that a mechanism needed to exist to honor the 4th Amendment - if only in form. Thus came about what is now known as the "FISA Court," whose two-fold purpose was to approve the "listening" while maintaining a cover for violating the 4th Amendment, and appearing to provide protection for American citizens against the very Government behavior things that Court was approving. (No, it doesn't make sense, but it's the way it is.) All this, of course, was long before cell phones, personal computers, laptops and even the internet.

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Read the rest here:
Constitution and Fourth Amendment - Gettysburg Times

The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. Ill then ask readers to weigh in on it.

Lets start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Heres the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word their can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a persons own self, houses, papers or effects must be unreasonably searched or seized.

Heres what Scalia wrote in Carter, with emphasis in the original:

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . U. S. Const., Amdt. 4 (emphasis added). It must be acknowledged that the phrase their . . . houses in this provision is, in isolation, ambiguous. It could mean their respective houses, so that the protection extends to each person only in his own house. But it could also mean their respective and each others houses, so that each person would be protected even when visiting the house of someone else. As todays opinion for the Court suggests, however, ante, at 88-90, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to houses without giving it the same interpretation with respect to the nouns that are parallel to housespersons, . . . papers, and effectswhich would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

The founding-era materials that I have examined confirm that this was the understood meaning. . . . Like most of the provisions of the Bill of Rights, the Fourth Amendment was derived from provisions already existing in state constitutions. Of the four of those provisions that contained language similar to that of the Fourth Amendment, two used the same ambiguous their terminology. See Pa. Const., Art. X (1776) (That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure . . .); Vt. Const., ch. I, XI (1777) (That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure. . .). The other two, however, avoided the ambiguity by using the singular instead of the plural. See Mass. Const., pt. I, Art. XIV (1780) (Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions); N. H. Const., XIX (1784) (Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions).

The New York Convention that ratified the Constitution proposed an amendment that would have given every freeman a right to be secure from all unreasonable searches and seizures of his person his papers or his property, 4 B. Schwartz, The Roots of the Bill of Rights 913 (1980) (reproducing New York proposed amendments, 1778) (emphases added), and the Declaration of Rights that the North Carolina Convention demanded prior to its ratification contained a similar provision protecting a freemans right against unreasonable searches and seizures of his person, his papers and property, id., at 968 (reproducing North Carolina proposed Declaration of Rights, 1778) (emphases added). There is no indication anyone believed that the Massachusetts, New Hampshire, New York, and North Carolina texts, by using the word his rather than their, narrowed the protections contained in the Pennsylvania and Vermont Constitutions.

That their . . . houses was understood to mean their respective houses would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment. The peoples protection against unreasonable search and seizure in their houses was drawn from the English common-law maxim, A mans home is his castle. As far back as Semaynes Case of 1604, the leading English case for that proposition (and a case cited by Coke in his discussion of the proposition that Magna Carta outlawed general warrants based on mere surmise, 4 E. Coke, Institutes 176-177 (1797)), the Kings Bench proclaimed that the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house. 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B.).

Thus Cooley, in discussing Blackstones statement that a bailiff could not break into a house to conduct an arrest because every mans house is looked upon by the law to be his castle, 3 W. Blackstone, Commentaries on the Laws of England 288 (1768), added the explanation: [I]t is the defendants own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose. . . . 3 W. Blackstone, Commentaries on the Laws of England 287, n. 5 (T. Cooley 2d rev. ed. 1872). See also Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng. Rep. 1029, 1030 (C. P. 1815) ([I]n many cases the door of a third person may be broken where that of the Defendant himself cannot; for though every mans house is his own castle, it is not the castle of another man).

Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. People call a house their home when legal title is in the bank, when they rent it, and even when they merely occupy it rent freeso long as they actually live there. That this is the criterion of the peoples protection against government intrusion into their houses is established by the leading American case of Oystead v. Shed, 13 Mass. 520 (1816), which held it a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court reasoned that the inviolability of dwelling-houses described by Foster, Hale, and Coke extends to the occupier or any of his family . . . who have their domicile or ordinary residence there, including a boarder or a servant who have made the house their home. Id., at 523 (emphasis added). But, it added, the house shall not be made a sanctuary for one such as a stranger, or perhaps a visitor, who upon a pursuit, take[s] refuge in the house of another, for the house is not his castle; and the officer may break open the doors or windows in order to execute his process. Ibid. (emphasis in original).

Thus, in deciding the question presented today we write upon a slate that is far from clean. The text of the Fourth Amendment, the common-law background against which it was adopted, and the understandings consistently displayed after its adoption make the answer clear. We were right to hold in Chapman v. United States, 365 U. S. 610 (1961), that the Fourth Amendment protects an apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder. And we were right to hold in Bumper v. North Carolina, 391 U. S. 543 (1968), that an unreasonable search of a grandmothers house violated her resident grandsons Fourth Amendment rights because the area searched was his home, id., at 548, n. 11 (emphasis added). We went to the absolute limit of what text and tradition permit in Minnesota v. Olson, 495 U. S. 91 (1990), when we protected a mere overnight guest against an unreasonable search of his hosts apartment.

I think we can all agree that the cellphone companys records of which of its cell towers were associated with its customers phone at some point in the past are, in the abstract, papers or effects. I would think that an originalist would then want to ask the Carter question: Whose papers or effects are they? Presumably they are the papers or effects of the phone company. But are they also the papers or effects of the customer?

The idea of papers and effects presumably was understood to include situations such asEntick v. Carrington (1765), the case that helped inspire the Fourth Amendments enactment, in which the kings officials broke into Enticks home. Inside the home, the officials removed all the private papers, books, etc. of the plaintiff there found, . . . and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away. In that setting, papers and effects likely meant something like a persons private property. Indeed, the first draft of the Fourth Amendment used property instead of effects.

The question is, can cell-site records be the users own papers or effects? It seems like an uphill battle. Cell-site records are a phone companys internally generated records ofhow its network connected a communicationbetween a customer and someone else. Cellphone customers dont know what cell towers their phones are connecting to, or where the towers are located. They dont know what the phone companys records say. Thats information that the phone company generates describing how its own network service operated that the phone company keeps in the ordinary course of its business. Whether those records are retained, and for how long, is up to the phone company. Its the phone companys business and its network, and users wouldnt see or access the records that the phone company creates and stores.

Given that, to say that cell-site records belong to the user that they are the users papers or effects you would need some kind of theory by which a person has some kind of property or property-like rights in another persons records of what they did on your behalf.

There are ways to get there, but Im not aware of any of those theories being recognized in the past much less the late 18th century. For example, one option would be to look to contract law or agency law. Perhaps signing the agreement makes the phone company the agent of the user, such that the phone company is working for the user and its company records belong, at least in some sense, to the user. This is creative, but at least at this point I dont see support for this theory in the historical caselaw or other materials.

Id be happy to be corrected, but Im not aware of an early court or even just a litigant suggesting that the contractual or agency relationship made the providers records in some sense the customers own, triggering the Fourth Amendment, its state equivalents, or common law search and seizure principles. There presumably were situations in the 18th or 19th century in which two parties would enter into a contractual agreement and the government would want records or testimony from the provider of those goods or services concerning what the recipient of the goods or service had done. A possibly interesting example is hotel guest lists, which are at least somewhat analogous to cell-site records records by a business of who was using a particular service and when. My understanding is that hotel guest lists were traditionally left open to inspection by anyone. See Jefferson Williamson, The American Hotel: An Anecdotal History 181 (1930). The records apparently werent considered the guests own papers, even though they were created in the course of providing a service to the guest.

It would be a different case, I think, with the contents of communications. In the case of contents, the network provider is merely holding the private communications of the user on the users behalf. The communications are still the users communications. The user wrote them, or, on receipt, received them. If I decide to store my emails on Gmails servers, for example, they are still my emails, just as my letters are still my letters when I send them through the postal mail. See Ex Parte Jackson, 96 US 727, 733 (1877) (Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.).

If Im right, an originalist might plausibly conclude that the contents of communications are protected by the Fourth Amendment as the users papers or effects but that the business records of the company as to how those papers or effects were delivered would be the companys records, not the users.

Anyway, thats my tentative thinking. Im very interested to know whether readers who are interested in originalism find this thinking persuasive. And my apologies in advance if I have offered a wrong or naive view of originalism. It sometimes seems that one must be a sophisticated theorist of originalism to truly understand what originalism means, and I admit I am only a simple country Fourth Amendment lawyer.

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How should an originalist rule in the Fourth Amendment cell-site case? - Washington Post

With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful CNSNews.com On June 5, the Supreme Court agreed to hear a case involving Fourth Amendment protections for cell phone records, Carpenter v. U.S. This case features a much-criticized judicial creation called the third-party doctrine and how it applies to an ...

Excerpt from:
With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful - CNSNews.com

The doorbell to the home you are renting rings. You open it to find a city code enforcement officer asking to do an interior inspection. The officer unveils a list of 80 items to check. There will be snooping through cupboards and drawers, bathrooms, bedrooms and closets.

You feel extremely uncomfortable with the idea of a stranger rummaging through your home, and you wonder why the city feels its needed. After all, if theres a problem with the property, all you need to do is call the owner. It you dont get satisfaction, you could contact code enforcement at that point.

So, you politely tell the officer, I do not want you to inspect the inside of my home.

The officer responds that the inspection is required by city law, and the owner will get in trouble if you dont let me in.

You reply, Im sorry, but without a warrant you cannot come in.

This is a true story, showing how the tenants in a Highland rental home that I own became caught up in the citys systematic assault on privacy rights.

Highland developed a plan to inspect all 4,800 residenti al rentals, whether or not there were any issues with the properties. Officials also decided to cut corners and not seek judicial approval to enter dwellings. Instead, they would pressure owners and renters to allow inspectors in.

My tenants certainly had no complaints about their rental home; it is well-maintained, as with all my properties. They had no reason to want officials intruding on their privacy, so they refused to agree to the inspection, as did I.

The city responded by issuing me a fine, and withholding my rental license in order to force me to comply.

Some property owners might have given in at that point, unwilling to fight city hall. But I have a strong reverence for the Constitution and Americas heritage of liberty, and I was determined not to let the citys coercion go unchallenged. Along with my tenants, I filed a lawsuit in federal court, represented free of charge by Pacific Legal Foundation, a watchdog organization for property rights and individual liberty.

Our case rested on the Fourth Amendment freedom from unreasonable searches. This is a core liberty, part of the Bill of Rights. It reads as follows:

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, and particularly describing the place to be searched, and the persons or things to be seized.

You dont need to be a legal scholar to interpret these words. In order for a government agent to enter a private home without permission, a warrant must be obtained.

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The good news is that, in the wake of our lawsuit, the city has now repealed its invasive inspection scheme, replacing it with an owners self-inspection program. Highland can now focus enforcement resources on the small number of real problem cases, instead of unnecessarily disturbing the privacy of rental-home residents.

Tenants are customers. Like any business, if you dont take care of your customers they will give their business to someone else. Rental owners want happy, long-term tenants. That is why the vast majority of owners do a good job taking care of their customers.

Whether you own or rent, the Fourth Amendment protects you from warrantless searches of your personal effects, in your private home. It is a precious liberty that we should all cherish.

Unfortunately, Highland is far from alone in imposing oppressive, unjustified search and inspection schemes for rental homes. But the victory that my tenants and I have achieved in Highland should send a message to cities throughout California: They need to bring their code enforcement into conformity with the Constitution.

Karl J. Trautwein, a resident of San Juan Capistrano, owns rental homes in Highland and other Southern California communities.

Link:
Highland case a Fourth Amendment victory: Guest commentary - San Bernardino County Sun

The doorbell to the home you are renting rings. You open it to find a city code enforcement officer asking to do an interior inspection. The officer unveils a list of 80 items to check. There will be snooping through cupboards and drawers, bathrooms, bedrooms and closets.

You feel extremely uncomfortable with the idea of a stranger rummaging through your home, and you wonder why the city feels its needed. After all, if theres a problem with the property, all you need to do is call the owner. It you dont get satisfaction, you could contact code enforcement at that point.

So, you politely tell the officer, I do not want you to inspect the inside of my home.

The officer responds that the inspection is required by city law, and the owner will get in trouble if you dont let me in.

You reply, Im sorry, but without a warrant you cannot come in.

This is a true story, showing how the tenants in a Highland rental home that I own became caught up in the citys systematic assault on privacy rights.

Highland developed a plan to inspect all 4,800 residenti al rentals, whether or not there were any issues with the properties. Officials also decided to cut corners and not seek judicial approval to enter dwellings. Instead, they would pressure owners and renters to allow inspectors in.

My tenants certainly had no complaints about their rental home; it is well-maintained, as with all my properties. They had no reason to want officials intruding on their privacy, so they refused to agree to the inspection, as did I.

The city responded by issuing me a fine, and withholding my rental license in order to force me to comply.

Some property owners might have given in at that point, unwilling to fight city hall. But I have a strong reverence for the Constitution and Americas heritage of liberty, and I was determined not to let the citys coercion go unchallenged. Along with my tenants, I filed a lawsuit in federal court, represented free of charge by Pacific Legal Foundation, a watchdog organization for property rights and individual liberty.

Our case rested on the Fourth Amendment freedom from unreasonable searches. This is a core liberty, part of the Bill of Rights. It reads as follows:

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, and particularly describing the place to be searched, and the persons or things to be seized.

You dont need to be a legal scholar to interpret these words. In order for a government agent to enter a private home without permission, a warrant must be obtained.

Advertisement

The good news is that, in the wake of our lawsuit, the city has now repealed its invasive inspection scheme, replacing it with an owners self-inspection program. Highland can now focus enforcement resources on the small number of real problem cases, instead of unnecessarily disturbing the privacy of rental-home residents.

Tenants are customers. Like any business, if you dont take care of your customers they will give their business to someone else. Rental owners want happy, long-term tenants. That is why the vast majority of owners do a good job taking care of their customers.

Whether you own or rent, the Fourth Amendment protects you from warrantless searches of your personal effects, in your private home. It is a precious liberty that we should all cherish.

Unfortunately, Highland is far from alone in imposing oppressive, unjustified search and inspection schemes for rental homes. But the victory that my tenants and I have achieved in Highland should send a message to cities throughout California: They need to bring their code enforcement into conformity with the Constitution.

Karl J. Trautwein, a resident of San Juan Capistrano, owns rental homes in Highland and other Southern California communities.

Continued here:
Highland case a Fourth Amendment victory: Guest commentary - Redlands Daily Facts

Therewas enormously important Fourth Amendment news from the Supreme Court on Monday: The justices agreed to review the U.S. Court of Appeals for the 6th Circuits decision in Carpenter v. United States, one of the long-pending cases on whether the Fourth Amendment protects government access to historical cell-site records.

This is a momentous development, I think. Its not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case. Let me say a bit about the case, the issues it will decide and why it matters.

I. The Facts of the Case

Carpenter involves a string of armed robberies that occurred over a two-year period. A group of men (at least five of them) would go into cellphone stores armed with guns, order the customers and employees to the back, and steal the phones. Carpenter was the lead organizer of the conspiracy, and he often supplied the guns, acted as a lookout and would signal when each robbery was to begin.

One of Carpenters conspirators confessed to the crime and gave the government his cellphone number and the numbers of the other conspirators (16 numbers total). The government applied for three different court orders for the cell-site records associated with those numbers, which included Carpenters number. Specifically, the orders sought cell site information for Carpenters phone at call origination and at call termination for incoming and outgoing calls. The government obtained the orders under the Stored Communications Act. They complied with the statute, but the statute requires only reasonable suspicion and not probable cause.

The order that covered Carpenter was directed at his cellphone provider MetroPCS. MetroPCS produced 127 days of historical cell-site records. (Sprint produced another seven days of historical cell-site records for Carpenters phone from a time window when he was roaming and Sprint picked up his service instead of MetroPCS.) Together with the orders obtained, the records showed that that the phones of the alleged conspirators were within distances ranging from a half-mile up to two miles of the robberies at the time they occurred. Specifically, Carpenters phone was shown to be in communication with cell towers near four robberies over a five-month window.

II. The Legal Issues

Here is how counsel for the petitioner framed the question presented:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

And heres how the United States redrafted the question presented in its brief in opposition:

Whether the governments acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain.

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

Notably, neither side sought review of whether the good-faith exception applies if the answer to both of these questions is yes. The parties are asking only for a ruling on the merits, with any remedies decision bifurcated for review on remand if the Supreme Court reverses.

III. Why The Case Matters

The Carpenter case is tremendously important, I think. The structure of modern surveillance law is built on the idea that the contents of communications receive Fourth Amendment protection but that non-content metadata records about communications, and other third-party business records do not. That has been the rule since the 19th century for postal letters, and it has been the rule since 1979 for phone calls. Carpenter will help determine if that basic rule framework will remain, or if the Supreme Court will amend it somewhat or even dramatically change it.

Part of the importance of the case is that its not just about cell-site records. Although the case is formally about cell-site records, its really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies. The justices cant answer how the Fourth Amendment applies to cell-site records without providing a framework for how the Fourth Amendment applies to many other forms of surveillance, such as visual surveillance, obtaining traditional phone records, obtaining e-mail transactional records, obtaining credit card records and the like.

For example, readers will recall the debate over the mosaic theory of the Fourth Amendment. Among the issues likely to be pressed in Carpenter is whether the justices should adopt or reject the mosaic theory. Note that the question presented focuses on the fact that the records covered 172 days. Should the length covered by the records matter? Is evidence collection for a short time window no search that becomes a search because the records spanned a long time window?

Plus, remember that the justices will have two questions: what a search is, and when searches are reasonable. Most will focus on the first question, but note that the two issues go together. As I explained here, the broader the court interprets search, the more pressure there is to water down reasonableness. The narrower the definition of search, the stronger the reasonableness standard tends to be. This creates some interesting dynamics. For example, you might get a ruling that there is no search but that retains the traditional default warrant rule for searches. On the other hand, you might get a ruling that a search occurred but that authorizes a new category of warrantless surveillance. This is just speculation, of course, but I suspect the briefing will urge major doctrinal innovations on both questions.

IV. Why Did the Justices Take the Case?

Some will speculate that the Supreme Court would have taken the case only if it were going to reverse. I have no idea how the court will rule, but I tend to doubt that. If I had to guess, I would guess that the court took these cases because theyre really important. The lower court rulings are based on the third-party doctrine, and none of the current justices were on the court the last time the justices decided a case on the third-party doctrine. Its pretty sensible to have the current Supreme Court weigh in.

As it happens, I think the third-party doctrine is essential to technological surveillance in a digital age. As I see it, the doctrine is needed to maintain the essential balance on which Fourth Amendment law has been built and on which it evolves in response to new technology. Prominent alternatives, like the mosaic theory, strike me as a dead end. But it makes a lot of sense for the justices to review these cases and decide whether they agree and if not, identify what new framework should replace it.

V. Lots of Blogging Ahead

Finally, Ill probably be doing a lot of carpentry (that is, blogging about the issues raised in Carpenter) over the next few months. A lot of my academic work in the past decade has been about issues that touch on the case, so it will be really fun to see what the justices do.

Continue reading here:
Supreme Court agrees to hear 'Carpenter v. United States,' the Fourth Amendment historical cell-site case - Washington Post