'Carpenter' Squared: Review and Reconcile State Court Cases Impacted by Landmark SCOTUS Decision

Peter A. Crusco

The impact of the U.S. Supreme Court’s landmark Fourth Amendment case, Carpenter v. United States, 201 L.Ed.2d 507 (2018) decided last June, requiring a search warrant be obtained by law enforcement in most cases for telephone company historical cell site location information (CSLI) is percolating up the appellate ladder from the decisions of the trial courts around the country. New York state, of course, was ahead of the pack when in an analogous scenario nine years before Carpenter, the Court of Appeals in People v. Weaver, 12 N.Y.3d 433, 458 (2009), determined that law enforcement’s employment of GPS technology on a defendant’s automobile required a search warrant in the absence of exigent circumstances. Now that the initial dust raised by Carpenter has settled, it is illuminating to review and reconcile some of the state court cases evidently impacted by the landmark decision.

Warrants and Historical CSLI

The high court in Carpenter found violative of the Fourth Amendment’s proscriptions against unreasonable searches and seizures the government’s obtaining of defendant’s historical cell site location information (CSLI) through an order on less than probable cause, the search warrant standard. In Carpenter, the government obtained the CSLI from the telephone company utilizing a court order pursuant to 18 U.S.C. §2703(d) of the Stored Communication Act (SCA). A §2703(d) order does not require the warrant standard of probable cause, but instead a lesser showing of “specific and articulable facts demonstrating reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing investigation.” 18 U.S.C. §2703(d); see also In re Application, 620 F.3d 304, 313 (3d Cir. 2010). The CSLI was used to fix defendant’s movements and thereby corroborated witness accounts of defendant’s involvement in a series of robberies. The Carpenter court determined that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” Thus, the CSLI obtained from Carpenter’s wireless carriers was the product of a search requiring a warrant and a showing of probable cause. Cf., People v. Worrell, 59 Misc. 3d 594, 609 (Sup. Ct. Queens Co., March 2, 2018, Stevens Modica, J.) (determining that the defendant had no reasonable expectation of privacy in a “shared” folder on his computer which was linked to a peer-to-peer file sharing program).

Standing

An individual’s expectation of privacy in the evidence to be admitted against him or her at trial such as CSLI, etc., and society’s recognition of that expectation has long been the test to determine whether a defendant asserting his Fourth Amendment protections has “standing” to make the arguments. See Katz v. United States, 389 U.S. 347 (1967). The defendant must show a legitimate expectation of privacy in the area searched or the items seized, and that expectation must be objectively reasonable. In Carpenter, the court refused to apply the third-party doctrine which negates a defendant’s standing to suppress evidence obtained from a third party. See, e.g., Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (no expectation of privacy in telephone company call detail records). Specifically, the Supreme Court refused to extend the third-party doctrine to what it described as the qualitatively different category of cell site records. Id. at 521. The court specifically determined that, “whether the government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” Carpenter, 201 L.Ed.2d at 522.

The Supreme Court found that “CSLI is an entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers.” The court further declared that, “when confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents.” Id. at 526. Further, the court stated, “we hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.” Id. at 527.

The court’s decision in Carpenter was expressly limited in scope, stating that its decision “is a narrow one,” deciding no more than the case before it. Id. at 525, n4. The recent decisions discussed below illuminate how the courts have applied Carpenter to cases in the pipeline at the time of its decision.

Retroactivity and Effective Equivalents

In People v. Cutts, 62 Misc.3d 411 (Sup. Ct., NY Co. Nov. 7, 2018), the defendant argued among other points that his conviction could not stand because the cell site location information admitted at trial was not obtained pursuant to a warrant but a SCA §2703(d) order, and therefore was violative of the rule set in Carpenter. First, the court determined that Carpenter did not have retroactive application as defendant’s conviction became final well before the pronouncement in Carpenter when his application for leave to appeal to the Court of Appeals was denied. Moreover, although not denominated a warrant, the court order for the cell site location information used at trial was supported by probable cause, unlike the court order in Carpenter. The order authorized the wireless company to provide the police with historical information as well as real-time cell site information. The order authorized the installation and use of a pen register and trap and trace device, including caller identification and cell site information and indicated that “probable cause had been established to show that GPS/precision location is relevant to an ongoing criminal investigation.” Thus, the court found that the order obtained to locate and arrest the defendant fully complied with the requirement under Carpenter. See also People v. Simpson, 62 Misc.3d 374 (Queens Co. Sup. Ct., Sept. 4, 2018, Zoll, J.)

Cell Site Simulators

In Andres v. State, 254 So.3d 283 (2018), the Supreme Court of Florida found Carpenter inapplicable. In Andres, police officers utilized a cell site simulator search often referred to as a “Stingray” on Andres’ mobile phone to locate the defendant to execute a warrant of his body, home and van. The court concluded that Carpenter was inapplicable because the officers used the simulator to obtain real-time cell site location information to locate Andres and execute the warrant. The court specifically quoted Carpenter: “our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval.)” Id. at 312, n.7. Moreover, the court in Andres added as an alternative theory, that even if the use of the simulator was improper, “Andres would still not be entitled to relief … searches conducted in objectively reasonable reliance on binding precedent are not subject to the exclusionary rule.” Id. at 297-98.

Inevitable Discovery

More recently, in State v. Brown, 331 Conn. 258 (April 2, 2019), the Supreme Court of Connecticut applied Carpenter and affirmed the suppression of CSLI information obtained without a warrant but on court orders based upon the lower standard of reasonable suspicion. The CSLI facilitated the state in identifying and locating an accomplice who eventually cooperated against the defendant. The state asserted the inevitable discovery rule to bar application of the exclusionary rule; however, under the inevitable discovery rule the state must prove that each contingency would have been resolved in its favor, and that, at the least, the state prove at the suppression hearing that it would have identified, located and secured the same level of cooperation from the witness in the absence of the illegally obtained CSLI. The court found that the state failed to meet its burden in that it did not present any evidence to demonstrate that the witness “would have similarly cooperated in the absence of being confronted with the illegally obtained CSLI.” Id. at 297.

Conclusion

The Carpenter rule now requires law enforcement, with few exceptions, to satisfy the Fourth Amendment warrant standard of “probable cause” before it may use historical CSLI in a prosecution. How that rule will be applied to cases in the pipeline when Carpenter was decided, and other cyber-related investigative tools, is a work in progress as evidenced from the decisions slowly percolating up from the trial courts across the country.

Peter A. Crusco is executive assistant district attorney, investigations division, Office of the Queens County District Attorney. The views expressed herein are the author’s, and do not necessarily reflect the policies or views of the office.