Convicted Robber in SCOTUS Privacy Case May Lose, Even if He Wins

From Criminal Law Reporter

December 5, 2017

By Jordan S. Rubin

You’d think the outcome of the Supreme Court’s landmark search and seizure case this term would make a difference to the man at the center of it.

Not so, scholars on opposite sides of the dispute told Bloomberg Law.

Not if his goal is getting out of prison, anyway.

Carpenter v. United States asks whether warrants are required to get mobile phone location records from wireless carriers. Records obtained from Timothy Carpenter’s carrier suggested he was near the scenes of several robberies and helped secure his convictions for aiding in them.

How the high court balances surveillance and privacy interests in its ruling in Carpenter, expected by June, could have wide impact beyond mobile phone records, potentially extending to all types of information consumers share with companies.

But even if the justices find the government needed a warrant to get the records, it’s unlikely the decision will do anything to upend Carpenter’s convictions and 116-year prison term, the scholars said.

That’s because of an exception to the rule that evidence obtained in violation of the Fourth Amendment can’t be used against defendants at trial, they said.

Known as the “good faith” exception, it allows evidence illegally obtained to be used if, for example, government agents reasonably relied on a statute to get it. Law enforcement got Carpenter’s phone data pursuant to a statute in this case.

“I think it’s pretty clear that Carpenter will never get out of jail thanks to the good faith exception,” Orin Kerr told Bloomberg Law. Kerr, a professor at George Washington University Law School in Washington, filed an amicus brief in the case supporting the government’s position that a warrant isn’t required to get the data.

Stephen E. Henderson, a professor at the University of Oklahoma School of Law in Norman, Okla., thinks a warrant should be required, but he agreed that the good faith exception likely dooms Carpenter’s chances of freedom in any event. Henderson’s scholarship was cited in an amicus brief supporting Carpenter.

“Ultimately, regardless of any Fourth Amendment violation, it seems very unlikely that the evidence against Mr. Carpenter will be suppressed,” Henderson said.

‘Good Faith’ = ‘Misnomer’

The good faith doctrine dates to 1984, when the Supreme Court recognized the exception to the exclusionary rule in United States v. Leon.

“We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion,” the high court said in that case.

But even though the court used the term “good faith” in Leon and in subsequent opinions, these aren’t really matters of faith, Henderson pointed out.

“It’s typically called the ‘good faith’ exception, and that’s OK so long as we all realize it’s a misnomer,” Henderson said.

“It isn’t about good faith, but instead about reasonable reliance upon something else: often a warrant, but also potentially a statute, court record, or judicial precedent. The idea is that when police officers reasonably rely upon such things, they are doing just as we’d like, and so there is no bad behavior to deter, either individually or systemically,” he said.

Faith Binds Carpenter, Alito Suggests

Justice Samuel A. Alito Jr. raised the good faith issue at the very end of the Nov. 29 oral argument, just as Carpenter’s attorney, Nathan Freed Wessler of the ACLU, was set to wrap up.

“Is any of this going to do any good for” Carpenter? Alito asked Wessler. “Is he going to get anything suppressed?” he asked.

They seemed to be rhetorical questions answered in the negative, as far as Alito was concerned.

Alito noted that, under the Supreme Court’s 1987 decision in Illinois v. Krull, “if a search is conducted in reliance on a statute authorizing the search in accordance with a certain procedure, the exclusionary rule doesn’t apply.”

Law enforcement here obtained several months of Carpenter’s location data under the Stored Communications Act, a law that lets the government get the data under a lower standard than the probable cause standard required by warrants.

Wessler sought to counter Alito’s good faith point by arguing that, because the act also allows law enforcement to get warrants for the data, the government in this case should have known better and done so.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.


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