A judge on President Trump’s list of 25 potential nominees to replace Justice Anthony Kennedy on the Supreme Court penned an appeals court’s 2016 opinion holding that government collection of business records containing location data did not constitute a Fourth Amendment search, a ruling recently overturned by the Supreme Court.
In its 22-page judgment on United States v. Carpenter, the Sixth Circuit Court of Appeals in Cincinnati denied the appeal of convicted defendants Timothy Carpenter and Timothy Sanders, who argued that federal investigators deprived them of their Fourth Amendment rights against unreasonable search and seizure. The defense contended that evidence should have been suppressed during the criminal trial because the FBI relied on a mere court order, and not a warrant, to collect cell phone metadata from the two men’s cellular carriers.
In his opinion, Judge Raymond Kethledge, one of three judges serving on the appellate panel, said that while the content of a phone call is inherently private, metadata such as cell tower site information is not. “The Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it,” Kethledge wrote. “Content, per this distinction, is protected under the Fourth Amendment, but routing information is not.”
But the high court last Friday ruled differently, saying in the landmark Carpenter v. United States opinion that generally, the government needs a warrant for long-term tracking of location using cell phone records.
“Although the ‘ultimate measure of the constitutionality of a governmental search is ‘reasonableness,” our cases establish that warrantless searches are typically unreasonable where ‘a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing,’” the court wrote. “Having found that the acquisition of Carpenter’s CSLI [cell phone location information] was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.
Noting that cell phones and the services they offer are “such a pervasive and insistent part of daily life” as determined in Riley v. the United States. “that carrying one is indispensable to participation in modern society” and that cell phone logs are created “without any affirmative act on the part of the user beyond powering up,” the court said “no way to avoid leaving a digital trail of location data” so “in no meaningful sense does the user voluntarily ‘assume the risk’ of turning over a comprehensive dossier of his physical movements.”
The 51-year-old Kethledge’s name appears on an expanded list of possible nominees released by the White House in November 2017 but the likelihood of his nomination is not known. Trump has said he would draw from that list to fill the slot left by Kennedy who is retiring July 31.