Landmark SCOTUS Privacy Ruling Dangerous, Dissents Warn

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By Jordan S. Rubin

Chief Justice John G. Roberts Jr.’s momentous majority opinion for the defendant in Carpenter v. United States claimed to be a narrow one pertaining only to the phone records at issue.

At least some of the justices dissenting from the Fourth Amendment ruling argued it could stifle law enforcement.

Notably, all four justices in dissent—Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch—each wrote their own. That’s only the second time that’s happened since Roberts joined the high court.

The government’s warrantless acquisition of Timothy Carpenter’s historical cell-site records was a Fourth Amendment search, Roberts wrote June 22. Warrants are generally required for such searches, he wrote. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

The feds got the records from Carpenter’s wireless carrier under a court order requiring a judge’s approval but meeting a lower standard than the probable cause required for warrants.

The records tied Carpenter to several armed robberies—some were of phone stores, ironically—leading to his convictions at trial and a 116-year prison term.

But Kennedy doubted that the majority opinion was narrow.

The court’s “reinterpration” of precedent “will have dramatic consequences for law enforcement, courts, and society as a whole,” Kennedy argued. He was joined by Thomas and Alito.

“Most immediately,” Kennedy charged, the ruling for Carpenter “limits the effectiveness of an important investigative tool for solving serious crimes.”

Upheaval, Danger to Follow: Dissents

Kennedy and Alito were particularly concerned about the implications for law enforcement. They were the most skeptical of Carpenter’s position at the oral argument.

But they could be overstating the threat. “It strikes me as a bit extreme to jump to conclusions about devastating effects upon crime control,” professor Stephen E. Henderson told Bloomberg Law. He teaches criminal law at the University of Oklahoma College of Law in Norman, Okla.

“After all, in Timothy Carpenter’s very investigation, it seems the police could have obtained just the warrant the Court requires,” Henderson said.

Some of the dissenters’ gripes could just be part of the growing pains of the Fourth Amendment catching up to new technology.

“Any time a ruling requires the government to make a higher showing before they can get access to a certain kind of evidence, there is a potential risk to law enforcement,” attorney Harry Sandick told Bloomberg Law. A litigator at Patterson Belknap Webb & Tyler LLP in New York, he filed an amicus brief supporting Carpenter which cited Henderson’s scholarship.

The phone records at issue in Carpenter are often “indispensable at the initial stages of investigations when the Government lacks the evidence necessary to obtain a warrant,” Kennedy said, repeating one of the government’s arguments.

“No doubt there will be some case in the future where a prosecutor will say, ‘Before Carpenter, we could’ve gotten the evidence, we could’ve stopped that crime,’” Sandick, a former federal prosecutor, said. But that would also be true for warrantless searches and frisks of everyone, Sandick added. “We’ve decided as a society that we don’t want to live in a police state.”

But that doesn’t mean that Carpenter won’t have a real impact on investigations.

“There may be some cases where the cell site information cannot be obtained based on the quantum of evidence known to the government at the time of the application,” Sandick said. But the government can develop additional evidence, he said.

And Roberts made clear in his majority opinion that law enforcement can get this type of evidence without warrants in emergency situations, Sandick added.

Still, the majority’s decision for Carpenter could “cause upheaval,” Alito argued in his own dissent, joined by Thomas. It could also upend investigations into terrorism, political corruption, and white-collar crime, he said.

“Many investigations will sputter out at the start, and a host of criminals will be able to evade law enforcement’s reach,” Alito claimed.

Henderson said Alito’s concerns are “exaggerated,” but that doesn’t mean Carpenter won’t affect investigations.

“It seems almost inevitable that Carpenter’s result will be expanded to many more types of data—and perhaps durations of data—over the years,” Henderson said.

“So, it is fair for Justice Alito to fear the Court’s opinion will impact law enforcement,” he said. “But then so does every meaningful Fourth Amendment win.”

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

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