I have been lecturing at Marino Legal CLE for several years.  We have been tracking the Supreme Court's analysis of privacy rights in the electronic age.  Specifically, I have been highlighting the Government's use of Judicial Orders rather than Warrants based upon Probable Cause to obtain historical, real-time and prospective cell site information on an individual. A recent Circuit Court Split has created the opportunity for SCOTUS to now resolve the question which we have been batting about. 

The 11th Circuit reviewed a case where historical cell site information linked the defendant to a string of Hobbs Act robberies. The Court concluded that the third-party doctrine, first discussed in Miller in 1976 "plainly controls the disposition of this case".
The flaw in this analysis resides in the presumption that citizens are aware of their privacy interests and are willingly forfeiting those privacy rights when they sign a contract with their cell phone service provider.

The 4th Circuit, faced with a similar factual scenario, came to an opposite conclusion.  "Taken together, Karo, Kyllo  and the views expressed in Riley and the Jones concurrences support  our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual  over an extended period of time.  Cell phone tracking through inspection of CSLI is one such technology."

I have predicted that the Supreme Court will side with the 4th Circuit.  The 4th Circuit decision rests upon the analysis conducted by the Supreme Court as it has recently grappled with the particular problem technology presents to Fourth Amendment analysis.  The 11th Circuit on the other hand goes back to 1976 to support its holding.

Stay tuned.  I will report back when The Supreme Court agrees to resolve the split.

Here is an outline of the cases I discuss to build a framework for the electronic age discussion.

BACKGROUND CASES

A.      MAPP V. OHIO, 81 S.CT 1684 , 1961 WARRANT NECESSARY TO ENTER HOUSE  - TRESPASS-

B.      KATZ V. U.S., 88 S.CT.507, 1967 – NO TRESPASS - PROTECTS PEOPLE NOT PLACES – PRIVACY IN ASSOCIATION PROTECTION EXTENDED TO OFFICE, HOTEL, PHONE BOOTH.  HARLAN’S CONCURRENCE BECOMES TOUCHSTONE FOR FOURTH AMENDMENT “REASONABLE EXPECTATION OF PRIVACY” FORESHADOWING… THE MAJORITY SAYS WE CANNOT IGNORE THE ROLE THE PUBLIC TELEPHONE HAS COME TO PLAY IN OUR SOCIETY.

C.       UNITED STATES V. MILLER, 96 S. CT. 1619 (1976) –BANKING – THIRD PARTY DOCTRINE INTRODUCED

D.      SMITH V. MARYLAND, 99 S. CT. 2527 (1979)

E.       SOUTH DAKOTA V. OPPERMAN 96 S.CT 3092, 1976 - FIRST EXAMPLE OF TORTURING LOGIC.  CAR IS IMPOUNDED DUE TO PARKING TICKETS, HOW CAN MOBILITY/EXIGENCY BE FOUNDATION OF LOGIC.  CHANGE TO , USING HARLAN’S WORDS, WHAT IS EXPECTATION OF PRIVACY, IN AUTO, AND THEN WE GET “DIMINISHED EXPECTATION OF PRIVACY”

F.       U.S. V. KNOTTS 103 S.CT.1081 , 1983 FACTS – INTERDICTED CHLOROFORM, SELLER PLACES BEEPER INSIDE JAR –POLICE FOLLOW TO SEVERAL LOCATIONS EVENTUALLY TO A CABIN IN WISCONSIN.  COURT FINDS THAT NO INFORMATION OBTAINED ELECTRONICALLY THAT COULD NOT BE OBTAINED BY VISUAL SURVEILLANCE.  COURT FINDS NO TRESPASS, NO SEIZURE, NO SEARCH, AND NO EXPECTATION OF PRIVACY IN MOVEMENT FROM ONE PLACE TO ANOTHER.   THROW IN ANALYSIS OF BELTON TO GANT – “WOULD UNTETHER THE RULE FROM THE JUSTIFICATION UNDERLYING THE CHIMEL CASE”

G.     U.S. V. KARO 104 S.CT. 3296, 1984 – FACTS LIKE KNOTTS, BUT HERE BUGGED CONTAINER TRAVELLED TO LOCATIONS OUTSIDE THE VIEW OF THE POLICE.  NO SEARCH, NO SEIZURE, DECISION REFERS TO A “TECHNICAL TRESPASS” BUT I AM NOT SURE ABOUT THAT LANGUAGE.  RESOLVED THAT THE PLACEMENT OF BUG IS NOT A PROBLEM, BUT MONITORING A BEEPER INSIDE A PRIVATE RESIDENCE NOT OPEN TO VISUAL SURVEILLANCE WOULD VIOLATE EXPECTATION OF PRIVACY.

H.       KYLLO V. U.S. 121 S.CT. 2038, 2001. TECHNOLOGY SHRINKING REALM OF PRIVACY. 4 STEP ANALYSIS.

I.        UNITED STATES V. JONES, 132 S. CT. 945, 2012 FACTS – NO WARRANT – 4 WEEKS OF SURVEILLANCE – 2,000 PAGES OF DATA. COURT BELOW STATES, “PEOPLE TRAVELLING THE PUBLIC HIGHWAYS HAVE NO EXPECTATION OF PRIVACY” REVISIT DRAGNET QUOTE FROM KNOTTS.

SCALIA USES A CASE FROM 1765 TO DISCUSS AND DECIDES RETROFITS THE DECISION AS A “TRESPASS” VIOLATION.

LANGUAGE FROM SOTOMAYER VERY BENEFICIAL.

J.        FLORIDA V. JARDINES, 133 S. CT. 1409, 2013. DOG AS TECHNOLOGY KAGAN CONCURRENCE

K.      RILEY V. CALIFORNIA, 134 S. CT. 2473, (2014)  TELEPHONE AS SO MUCH MORE

N.     USA V. DAVIS -11^TH CIRCUIT,  MAY, 2015 SUPPRESSED ORIGINALLY, EN BANC REVERSAL

O.     USA V. GRAHAM – 4^TH CIRCUIT AUGUST, 2015

Suggested Reading

       1.       State v. Earls, 214 NJ 564

2.       In the Matter of an Application…, 515 F. Supp. 2D 325

3.       In the Matter of an Application… 809 F. Supp. 2D 113