DOES CARPENTER PUT A NAIL IN WARRANTLESS POLICE SEARCHES OF SMARTPHONE CELL SITE LOCATION INFORMATION?

• Author: Trafford, Christopher G.

INTRODUCTION

Introduction 1477 I. Understanding Carpenter and Evolving Police Surveillance Laws 1479 A. Carpenter: Phone Thief Nabbed after His Own Cell Phone's Location Was Warrantlessly Searched 1479 i. RadioShack Robbery: An Unlikely Digital Privacy Battleground 1480 ii. Modem Technology "[I]s an Open Rox. We Know Not Where We Go" 1482 iii. This CSLI Investigation Constituted a Search, but What about Others? 1483 1. Justice Kennedy (Joined by Justices Thomas and Alito): Treat CSLI as a Business Record 1484 2. Justice Thomas: The Fourth Amendment's Text Does Not Protect CSLI 1485 3. Justice Alito (Joined by Justice Thomas): The Fourth Amendment's Intent Does Not Protect CSLI 1486 4. Justice Gorsuch: Instill an Individual Property Right in CSLI 1486 iv. Justice Gorsuch's Originalist Argument Regarding Property Rights in CSLI 1487 1. Privacy of Customer Information Act 1488 2. Modern Technology Has Fundamentally Changed How America Stores Information 1488 v. Justice Gorsuch's Case against the Third Party Doctrine 1489 B. Applicable Statutes and Common Law Concerning Warrantless Police Surveillance 1490 i. Katz v. United States 1490 ii. Third Party Doctrine 1492 iii. Stored Communications Act of 1986 1493 iv. The SCA's "Reasonable Grounds" of Suspicion Standard 1494 v. United States v. Jones, 1494 vi. Riley v. California 1496 II. Dazed and Confused: How States and Lower Courts Are Treating CSLI Post-Carpenter 1497 A. Legislatures and Courts Are Extending Carpenter 1498 i. Supreme Court of Connecticut 1499 ii. Supreme Court of Massachusetts 1500 iii. Maine Supreme Judicial Court 1502 iv. New York County Supreme Court 1503 v. Queens County Supreme Court 1503 vi. States Are Acting Independently to Add to Carpenter 1504 B. Supreme Deference: Lower Courts Avoiding or Declining to Extend Carpenter 1505 i. United States District Court for the District of Massachusetts 1505 ii. Supreme Court of Florida 1507 iii. Court of Appeals of Indiana 1508 III. Progressive Federalism: Implementing Justice Gorsuch's Property-Based Approach to Protect All CSLI 1510 A. The Katz Is Out of the Bag: Judges Are Ill-Equipped to Measure Societal Expectations of Privacy 1511 B. Big Brother Is Watching: The Third Party Doctrine Gives Law Enforcement Carte Blanche to Warrantlessly Search an individual's Location 1512 C. Throw the Baby Out with the Bathwater: Protect CSLI through Fourth Amendment "Property" Categorization 1514 Conclusion 1515 Certain modern law enforcement surveillance techniques lead to wrongful arrests and, arguably, infringe upon an individual's constitutional freedom from warrantless searches. (1) Indeed, such warrantless cell phone location searches on an individual's cell phone location are leading to wrongful incarceration. (2) For example, in December 2018, Avondale, Arizona, police arrested Jorge Molina after they ordered Google to turn over Molina's cell phone location records. (3) This information tied Molina's location to an earlier crime scene. (4) Molina was eventually cleared of his charges after police found the real culprit, but he will never be made whole from the reputational and emotional damage. (5) It is an open question today whether such warrantless location searches are constitutional. The Supreme Court and a number of states are currently weighing in on law enforcement's ability to warrantlessly track an individual's digital location records.

In the 2018 landmark case Carpenter v. United States, the Supreme Court decided that (1) an individual holds a legitimate expectation of privacy in that individual's cellular phone's "cell-site location information" (CSLI), and (2) warrantless law enforcement historical CSLI searches of one week or more violate the Fourth Amendment's protection against unreasonable searches and seizures. (6) CSLI is the information cell phones convey to nearby cell towers, which are then used to triangulate a person's position. (7) The Carpenter Court declined to rule whether real-time location surveillance or historical searches of less than one week require search warrants. (8) As a result, it is unknown whether current legislation that only requires "reasonable grounds" (9) to search CSLI sufficiently protects an individual's constitutional rights.

Legislators who enacted the outdated telecommunication laws could not have contemplated warrantless searches of an individual's location at virtually every moment. (10) Congress passed the Stored Communications Act in 1986, a whopping 14 years before the first cell phone would be equipped with GPS. (11) Ever-improving technological advances and societal reliance on cell phones made the Carpenter ruling inevitable. Justice Sotomayor remarked that, unlike previous decades, most people today consider their cell phone as more of an "appendage" than an electronic device. (12) Still, Carpenter's narrow holding declined to rule on the constitutionality of real-time CLSI searches, as well as historical searches of less than one week. (13)

This Note seeks to examine Carpenter and, in doing so, best present possible solutions to protect an individual's real-time and historical CSLI. In Part I, this Note discusses the Supreme Court's recent opinion in Carpenter v. United States, with particular emphasis on the four dissents which imagine a different legal framework than the status quo. Part II traces the evolution of federal telecommunications legislation and common law doctrines regarding warrantless law enforcement searches, and the Fourth Amendment's protection against unreasonable searches and seizures. (14) Part III outlays the current judicial split amongst lower courts on how to treat real-time and historical CSLI searches post- Carpenter, as well as an initiative in some states to protect their citizens' location information from warrantless searches.

In conclusion, this Note advocates for states to individually adopt Justice Gorsuch's property classification of CSLI, thereby providing more protection against warrantless location searches than the federal government does, with the intent to influence the Supreme Court to adopt his approach eventually.

1. UNDERSTANDING CARPENTER AND EVOLVING POLICE SURVEILLANCE LAWS

   Part I provides background information regarding Carpenter and the four dissents that accompanied Chief Justice Roberts's majority opinion. In particular, it reviews the applicable statutes and Supreme Court decisions that have brought us to today's Fourth Amendment crossroads. When law enforcement employs questionable modern surveillance methods, such as warrantless surveillance of an individual's cell phone location, governing law must be reviewed to determine its ongoing relevance and possible infringement upon the individual's constitutionally guaranteed freedom from "unreasonable searches and seizures." (15) Throughout this Note, it is important to keep in mind the Supreme Court's "sliding scale" approach to the Fourth Amendment, which provides a different, context-based threshold for what is considered "reasonable." (16)

   1. Carpenter: Phone Thief Nabbed after His Own Cell Phone's Location Was Warrantlessly Searched

      In 2018, the Supreme Court passed down its most impactful Fourth Amendment decision in years. (17) The Court granted certiorari in Carpenter v. United States to decide whether the Fourth Amendment protects against warrantless cell phone location record searches--which had never been classified as a person, paper, thing, or effect. (18) This holding calls into question whether current telecommunications legislation sufficiently protects an individual's CSLI from warrantless law enforcement searches. Law enforcement may currently search this data if they have reasonable suspicion, which is a lower standard than probable cause that the Fourth Amendment demands. (19) But in exchange, searching CSLI allows law enforcement to identify suspects more efficiently and take them into custody. Fourth Amendment enthusiasts closely followed Carpenter v. United States, keenly aware that Carpenter's holding and extrapolated rationale could result in dramatic consequences affecting an individual's right to be free from warrantless location searches. (20)

      i. RadioShack Robbery: An Unlikely Digital Privacy Battleground

      Timothy Carpenter is now the face of digital privacy. He arrived at this position when he received a 116-year sentence after police searched his CSLI without a warrant. (21) Many, including nationally recognized law professor Orin Kerr, have scrutinized the circumstances leading to Carpenter's arrest and conviction. (22) His story began in April 2011, when law enforcement investigated a string of robberies from nine different RadioShack and T-Mobile stores across Ohio and Michigan. (23) They quickly arrested four suspects, one who confessed to the robberies and implicated 15 accomplices. (24) This informant voluntarily provided the Federal Bureau of Investigation with a list of his co-conspirators' cell phone numbers. (25) Law enforcement also uncovered a number of additional cell phone numbers that the informant called around the time of the robberies, but which the informant did not volunteer. (26) Timothy Carpenter's number was among those. (27)

      With this new information, the Government obtained court orders pursuant to the Stored Communications Act (SCA), compelling the suspects' cellular providers to turn over their location records. (28) The SCA permits law enforcement to obtain reports from cellular providers by court order where there are "reasonable grounds" for suspicion. (29) MetroPCS and Sprint (Carpenter's wireless carriers at the time) dutifully turned over 127 days of Carpenter's CSLI to investigators. (30) Currently, triangulating this CSLI can pinpoint a person's location to within five to ten feet, and this technology is ever-improving. (31) Carpenter's CSLI allowed the prosecution to catalog and map out exactly 12,988 of his location points and times, which averages to about 101...