If Carpenter is Going to Win, This is How the Case Should Be Decided
Orin Kerr believes the gov't should prevail in the potentially explosive case of US v. Carpenter, argued in November at SCOTUS. But oral argument suggested that the court had a majority in favor of Carpenter. Orin Kerr -- who is always worth reading but particularly on cases where electronic devices and the 4th Amendment intersect -- proposes a way that the court could rule for Carpenter that he thinks makes the most sense.
- If the Court wants to rule for Carpenter, I think the best rule would be that the Fourth Amendment gives individuals Fourth Amendment rights in records solely useful to the government to identify that individual's physical location at a particular time. The question would be objective: Is that category of record something that ordinarily is solely useful to the government to determine a person's location? If the nature of that kind of record means that it is of a type ordinarily only of government use to identify a person's physical location, then it is protected by the Fourth Amendment unless there has been consent to the search. On the other hand, if government collection of that kind of record ordinarily has a non-location purpose, then this special rule would not apply and the third-party doctrine would continue to apply.
This is an attractive argument. There is something particularly disturbing about the concept of perpetual surveillance. But of course such surveillance is complicated when we voluntarily carry around the instruments of such surveillance. Regardless, I'm linking to Mr. Kerr's argument not merely because it's always valuable to work through such issues (especially when the potential unravelling of the third-party doctrine could have such a big impact on the practice of criminal defense), but also because his analysis is useful for those of who might litigate the issue at the trial level and your client's location is exactly what the government was seeking.