The United States Supreme Court heard arguments two weeks ago regarding a federal trial out of the Eastern District of Michigan that resulted in the conviction of several armed robbers. The case United States v. Carpenter, however, involved an issue that has come under fire recently, because of the Court’s prior decisions involving individual privacy rights in other technology cases. In Carpenter, the U.S. Attorney introduced evidence of what is known as cell site location information, which, simply put, is data that is stored by cell phone towers that can provide location information about the cell phone user, even when they are not directly using the phone. After his conviction, the Defendant filed an appeal, arguing that the Government obtained the records without obtaining a search warrant, and a warrant should be required to obtain that cell site location information.

Fourth Amendment

 The United States Constitution’s Fourth Amendment provides protections from warrantless searches and seizures of persons, papers or things. As a general rule, police must obtain a search warrant to search for and seize evidence. In order to obtain a search warrant, the police have to show a judge that they have probable cause that a crime was committed and that there is evidence of the crime that can be found in the place they want to get a warrant. There are exceptions to the general rule, and the list of them is too long to discuss here. However, as a few examples, police do not need a search warrant to search a person once they are under arrest, and police do not need to obtain a search warrant if they have ascertainable facts that a person is in the process of destroying or tampering with the evidence they are seeking to obtain.

Cell Site Location Information

In Carpenter, the Court has to decide whether the police or the prosecution must obtain a search warrant before they can receive cell site location information regarding a certain person, or if the prosecution can simply ask the Court for an order, as they are presently able to do. The Court’s questioning during the hearing leads observers to believe that the Court is likely to extend their current series of decisions to include the question here, and require the obtaining of a search warrant before the police can get cell site information location. The Court has been expanding the protections of the Fourth Amendment’s protections over the past fifteen years. In Kyllo v. United States, the Court determined that the police could not use a thermal imaging or infrared device on a home to gather evidence for a drug operation, without the express permission of a search warrant. The Court has expanded the Fourth Amendment to require search warrants for use of GPS devices on motor vehicles by police in United States v. Jones, and more recently determined that police must have a search warrant to seize a cell phone, but must also obtain a separate or concurrent warrant that permits them with the ability to enter the phone and look at the contents.

Searches and Seizures in the Digital Age

The Court’s decision is not known in the Carpenter case, though the Justices will make a decision this term. However, the trend in the Court’s decision making has been to err on the side of extending the protections of the Fourth Amendment to new and complex data and technologies. There are many unique and problematic questions that may be opened as a result of this case. For example, if a warrant is necessary to obtain cell site location information about a person in a criminal case, what about other third-party stored software? If you are accused of online theft, must a search warrant be obtained from third-party online software data storage companies? Will this type of decision apply to data stored by internet data mining companies, in the event the information stored on their servers directly related to a person or people accused of a crime? The world is often moving faster than the Courts can keep up with regard to regulations and protections in the digital age.

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