Warrantless Searches in the Carpenter Age

By Daniel K. Gelb and Ronald J. Hedges

In Carpenter v. United States, 138 S. Ct. 2206 (2018), the US Supreme Court extended the Warrant Requirement of the Fourth Amendment to cell-site location information (CSLI). Four years earlier, the Supreme Court held that electronically stored information (ESI) residing on a cell phone could not be searched incident to arrest. (See Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014).) These decisions reflect the Court’s concern over warrantless searches of ESI and call into question the future contours of the “third-party” doctrine established by Smith v. Maryland, 442 U.S. 735 (1979) and United States v. Miller, 425 U.S. 435 (1976). Yet, both Carpenter and Riley emphasized that warrantless searches for ESI may pass constitutional muster. How might these decisions be reconciled with the Exclusionary Rule?

Let’s start with Riley. Riley considered whether a warrantless search of cell phone data fell under the “incident to arrest” exception to the Warrant Requirement. The Court concluded that the exception was inapplicable but, in recognition of the possible impact of its decision, had this to say:

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971). Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (Roberts, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).

Even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” (Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)).) Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. (Id.) In United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.” (Id. at 15, n.9 (abrogated by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (overruling distinctions between United States v. Chadwick (1977) and Arkansas v. Sanders (1979) concerning container searches in automobiles).)

Given the availability of the “exigent circumstances” exception to the Exclusionary Rule, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb or a child abductor who may have information about the child’s location on his cell phone. Such fact-specific threats or urgencies may justify a warrantless search of cell phone data. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether the circumstances justified a warrantless search in each particular case despite the existence of probable cause. (See Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552,185 L. Ed. 2d 696 (2013) (footnote omitted).)

While Riley emphasized need for a warrant, it also emphasized that “case-specific exceptions may still justify a warrantless search. Carpenter followed four years later. Carpenter arose for the government’s use of CSLI over a 127-day period to track the petitioner, who had been convicted of robberies. The government did not secure the CSLI through a search warrant but instead used an order under the Stored Communications Act. For the purposes of this article, suffice it to say that the Court held that the Warrant Requirement applied. However, as it had done in Carpenter, the Court emphasized that warrantless searches might be justified under certain circumstances:

Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. “One well-recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U. S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978)). Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence. 563 U. S., at 460, and n. 3.

When considering the above, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings, and child abductions. While police must get a warrant when collecting CSLI to assist in the mine-run criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency. Warrantless access to CSLI in such urgent and imminent circumstances is likely outside Carpenter’s reach.

In Commonwealth v. Chamberlin, 473 Mass. 653, 657 (2016), the Massachusetts Supreme Judicial Court held that a cell phone carrier’s good faith, voluntary disclosure of phone records did not violate the Stored Communications Act when “exigent circumstances” exist.

More recently, the Massachusetts Appeals Court ruled on Commonwealth v. Raspberry, 93 Mass. App. Ct. 633 (2018), affirming the denial of a suppression motion because the government appropriately used CSLI without a warrant to track defendant after the police heard the defendant make a credible threat to travel to the victim’s location with a gun. The police learned of the defendant’s intent to shoot the prospective victim based on statements the defendant made over a telephone line that was the subject of a government wiretap. One of the law enforcement officers involved placed an “exigent request” with the cell phone carrier with the defendant’s cell phone number so she could be tracked and intercepted by police.

The court explained a distinction between the “emergency aid” and “exigent circumstances” exceptions (Raspberry, 93 Mass. App. Ct. 633, n.8 (2018)): The emergency aid exception requires no probable cause whereas the exigent circumstances exception permits a warrantless search where probable cause exists, “. . . but circumstances such as the imminent loss of evidence make obtaining a warrant impracticable.” (See id.) This recent decision exemplifies use of a warrantless search of CSLI in the context of emergency aid. The issue is likely to be further clarified by the Massachusetts Supreme Judicial Court in Commonwealth v. Almonor, SJC-12499 (2018). (See (pending as of Sept. 6, 2018).)

Carpenter does not foreclose a warrantless search of CSLI provided a well-founded exception to the Exclusionary Rule applies. Even assuming the government cannot rely on exigent circumstances or a similar exception to the Warrant Requirement, there remains a final argument upon which the government might rely—the “good faith exception.” Two recent decisions from circuit courts address that exception: United States v. Curtis, No. 17-1833 (7th Cir. Aug. 24, 2018), and United States v. Zodhiates, No. 17-838-cr (2d Cir. Aug. 21, 2018).

The defendant in Zodhiates was convicted of conspiracy to remove a child from the United States to obstruct the lawful exercise of a person’s parental rights. He argued on appeal that the district court had erred in failing to suppress inculpatory CSLI secured from a cell phone provider through a subpoena issued under the Stored Communications Act instead of a warrant. The Second Circuit noted that Carpenter was decided while the appeal was pending but upheld warrantless search:

However, Zodhiates is not entitled to have the records suppressed because, under the “good faith” exception, when the Government “act[s] with an objectively reasonable good faith belief that their conduct is lawful,” the exclusionary rule does not apply. Davis v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks omitted). This exception covers searches conducted in objectively reasonable reliance on appellate precedent existing at the time of the search. See United States v. Aguiar, 737 F.3d 251, 259 (2d Cir. 2013).

These cases stand for the proposition that in 2011, prior to Carpenter, a warrant was not required for the cell records. We acknowledged as much in United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017), when we considered ourselves bound by the third-party doctrine in Smith “unless it is overruled by the Supreme Court.” (Id. at 97.) To escape this result, Zodhiates directs us to United States v. Jones, 565 U.S. 400, 404 (2012), which held that when the government engages in prolonged location tracking, it conducts a search under the Fourth Amendment requiring a warrant. However, Jones is of no help to him. It was decided in 2012, after the government’s 2011 subpoena, and consequently is not relevant to our good faith analysis. For these reasons, we conclude that the district court properly denied Zodhiates’ motion to suppress the cell location evidence. Zodhiates demonstrates the reach of “objective reliance on appellate precedent” in the context of the good faith exception.

The defendant in Curtis had been convicted on various charges arising out of cell phone store robberies. The government had secured CSLI information for the defendant’s cell phone over a 314-day period that had been admitted into evidence after the defendant’s suppression motion had been denied. The CSLI had been secured pursuant to an order secured under the Stored Communications Act. On appeal, the Seventh Circuit affirmed the defendant’s conviction despite the defendant’s argument that Carpenter mandated reversal:

Our case stands in the same position as the Carpenter remand. The Court has resolved the question whether an SCA order obviates the need for the warrant, but it has not spoken to what should happen next. We must decide whether this conceded error automatically results in relief for Curtis, for whom records covering 314 days were collected. We conclude that it does not. A different part of Fourth Amendment jurisprudence is, in our view, dispositive: evidence obtained in good-faith reliance on a statute later declared unconstitutional need not be excluded. Illinois v. Krull, 480 U.S. 340, 349–50 (1987); see also United States v. Pembrook, 876 F.3d 812, 823 (6th Cir. 2017), vacated on other grounds by Johnson v. United States, 138 S. Ct. 2676 (2018) (applying the good-faith exception to CSLI obtained under the SCA); United States v. Graham, 796 F.3d 332, 363 (4th Cir. 2015), reversed on other grounds by United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc) (same); United States v. Davis, 785 F.3d 498, 511, 518 n.20 (11th Cir. 2015) (same).

The defendant’s proposed path around Krull in Curtis appears ambitious. Curtis does not argue that officers obtained his CSLI in bad faith. Far from it: His motion to suppress seemingly concedes there would have been probable cause to seek a search warrant. It is Krull itself that the defendant in Curtis attempts to constrict by arguing the ruling applies only to statutes authorizing administrative searches. The defendant’s logic is broken into three components: First, he urges, the good-faith exception to the Exclusionary Rule cannot insulate statutory frameworks per se from constitutional challenge. To do so would “. . . destroy [ ] all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights.” (See Krull, 480 U.S. at 369 (O’Connor, J., dissenting).) Second, the defendant in Curtis suggests that the Krull majority could sidestep such a concern because the target of an administrative search necessarily knows that a search is impending. A forewarned target still has reason to “bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation” notwithstanding the good-faith exception. (Id. at 354 (majority opinion).) Third, he points out that the target of an SCA order issued under section 2703(d) has no knowledge of the order until the CSLI has been collected and used in a criminal proceeding.

If an administrative search of ESI is insulated from a constitutional challenge, there is the risk of a chilling effect on defendants to challenge a statute because the regulatory body acting on it invokes the good-faith exception to avoid what could very well be suppressible as another form of fruit of the poisonous tree. (See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963).) Experience has shown that the good-faith exception has not had the chilling effect that the defendant in Curtis feared. Curtis, like many others, challenged section 2703(d) of the SCA on Fourth Amendment grounds—notwithstanding the risk that an administrative exception may apply. (See, e.g., Carpenter v. United States, 138 S. Ct. 2206 (2018); United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc); United States v. Daniels, 803 F.3d 335, 351–52 (7th Cir. 2015); Davis, 785 F.3d at 511; In re U.S. for Historical Cell Site Data, 724 F.3d 600, 608 (5th Cir. 2013).) This is just what the Krull majority predicted: Defendants will still “contest the validity of statutes [even] if they are unable to benefit directly by the subsequent exclusion of evidence. . . .” (480 U.S. at 353.)

The Exclusionary Rule is designed primarily to deter unconstitutional conduct. (Id. at 349.) Nothing substantiates fear of privacy infringement more than when government begins passing laws such as the SCA that may appear as “. . . legislators inclined to subvert their oaths and the Fourth Amendment.” (Id. at 351.) Curtis emphasizes the deterrent value of the exclusionary rule and, at the same time, affirms that suppression is inappropriate when the information issued was collected in good faith based on then-existing precedent.

Riley confirms that society maintains a reasonable expectation of privacy in a person’s cell phone, and Carpenter reaffirms that same privacy interest extends to where one uses it. The Warrant Clause of the Fourth Amendment is the gatekeeper of privacy, and, therefore, the jurisprudence in this world of ESI will continue to develop—including the application of exceptions to the Exclusionary Rule.

DANIEL K. GELB is a partner at the Boston firm of Gelb & Gelb LLP. He practices in the areas of general and white collar criminal defense, complex civil litigation, and academic discipline and student misconduct defense.

Ronald J. Hedges

RONALD J. HEDGES is a former United States Magistrate Judge, District of New Jersey (1986-2007) and senior counsel with Dentons US LLP.