Three on the Fourth from SCOTUS
There were nineteen 5-4 cases this past term in the United States Supreme Court. The Chief Justice was on the losing side in just three of them. He voted with the conservative bloc fourteen times. He voted with the liberal bloc twice to get to a majority. One was on an abstruse part of the Federal civil rules. The other was Carpenter v. United States.
That was probably the most significant of SCOTUS's 4th Amendment decisions this past term, but only one of three. Robert's vote wasn't needed in the other two. The Court was unanimous in Byrd v. United States, and only Alito dissented in Collins v. Virginia.
All three cases were decided in favor the defendants.
Is that whack or what?
As indicated by the vote margins, Byrd and Collins were easy calls. After police unsuccessfully chased a distinctive orange and black motorcycle at speeds of up to 140 mph, an officer learned that the motorcycle was likely stolen and in Collins' possession. He looked up Collins' Facebook page, and sure enough, there was a picture of the motorcycle in Collin's driveway. The officer went to Collins' house and saw a motorcycle under a tarp at the top of the driveway. He walked up the driveway, lifted the tarp, and observed the orange and black motorcycle, then confirmed it was stolen by running the VIN.
Virginia argued that the warrantless search was permissible under the automobile exception, but the Court rejected that, concluding that the driveway was part of the curtilage, and the curtilage enjoys the same protection as the house; the cops need a warrant to enter it. Collins isn't entirely home free (no pun intended): Virginia still gets a chance on remand to show that the exigent circumstances exception to the warrant requirement - the possibility that the motorcycle could've been moved before the cops had time to get a warrant -- allowed the search. Since Collins wasn't home at the time, good luck with that.
Byrd's wife had rented a car, and given the keys to her husband, and off he went. She didn't list her husband as an additional driver on the rental agreement, and when Byrd was stopped near Pittsburgh, the officers decided to toss the car when they learned he was driving a rental and wasn't listed as a driver. The search proved fruitful: they found 49 bricks of heroin and some body armor.
The State argued that since Byrd wasn't an authorized driver, he had no reasonable expectation privacy in the car, and thus no standing to object to its search. The Court, though, looked beyond the rental agreement. Privacy is somewhat intertwined with property interests: a passenger, for example, has no standing to object to a search of a car because he has no possessory interest in it. But Byrd did have a possessory interest, in the sense that he had the right to exclude any others, except for his wife, from the vehicle. He doesn't get a clear win, either: the case goes back for the lower courts to determine if the police had probable cause to search the car, or if the rental of the car had been procured by fraud, so as to void any right to contest a search.
Carpenter is the most interesting, and probably the most significant, decision. The FBI suspected Carpenter of having committed several bank robberies, and so subpoenaed his cell phone records from his carrier. The data catalogued Carpenter's movements over a 127-day period, and from an analysis of which towers the calls hit off of, the FBI was able to conclude that Carpenter was in the vicinity of four of the robberies when they occurred.
Resolution of Carpenter's claim that the FBI needed a warrant to get his cell phone data fell at the intersection of two lines of cases. In its 2012 decision in United States v. Jones (discussed here), the Court had held that the police needed a warrant to place a GPS device on a car because a person had a reasonable expectation of privacy in his movements over a period of time. But in other decisions, the Court had held that one did not have a reasonable expectation of privacy in information shared with a third party.
The majority decided that the Jones analysis prevailed. A cell phone has become an "indispensable" part of life, and one does not voluntarily "share" their location information; they have no choice of whether to do so.
While Carpenter is going to provide a hiccup for the government in obtaining records, it's not going to be more than a hiccup: the FBI obviously had some evidence of Carpenter's participation in the robberies, which almost certainly would have established probable cause for a warrant. The significance of the decision, rather, lies in its recognition of how technology impinges on privacy. Sotomayor wrote an interesting concurring opinion in Jones, highlighting what constitutes a "reasonable" expectation of privacy. Simply put, my Giant Eagle card allows the store to track my every purchase. I have no problem with that, but that doesn't mean my expectation that they won't share that information with the government is an unreasonable one.
And if you don't believe that cell phones are an indispensable part of life, here's a factoid from Carpenter: there are 70 million more cell phone accounts in this country than there are people.
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