As noted in a previous post, the Sixth Circuit recently held in United States v. Riley that tracking a fugitive’s real-time GPS location through his cell phone was not a Fourth Amendment search. The Supreme Court has now taken up a case that involves the government’s seizure of cell phone location records. On the same day that the Riley opinion was issued, the Supreme Court granted certiorari in Carpenter v. United States, No. 16-402, which presents the question “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.”
In Carpenter, the defendants were charged with multiple robberies in violation of the Hobbs Act (18 U.S.C. § 1951). They sought to suppress evidence that included “business records from [their] wireless carriers showing that each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred.” United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016). The defendants argued that the government’s acquisition of those records constituted a warrantless search in violation of the Fourth Amendment. The Sixth Circuit upheld the denial of the suppression motion.
The Sixth Circuit recognized a distinction between “a communication’s content and the information necessary to send it.” In the court’s view, cell-site data is information that facilitates personal communications, “rather than part of the content of those communications themselves.” Carpenter, 819 F.3d at 887. The bottom line was that the government’s acquisition of records containing cell-site data was not a search under the Fourth Amendment and the defendants did not have a reasonable expectation of privacy in those records.
The Supreme Court may rule on the issue by the end of the year.