Oral Argument: Carpenter v. United States: Audio, Transcript, Thoughts
On November 29 the Supreme Court held oral argument in Carpenter v. United States, a major Fourth Amendment and cell phone/digital data case and the subject of my October 18th post. Two days later, audio of the entire argument was posted on the Oyez site, along with all the arguments of the week. Like me, you can hear the argument here. Aside from the audio being first-rate, which even picks up the laughter (and yes, there is laughter) in the courtroom, as each justice asks a question, their picture lights up, as if you were facing the bench from the counsel table. In addition, there is a running transcript that lets you follow along, identifying the speakers. And you can stop and rewind. Having been present for Supreme Court arguments, it's the next best thing to being there. I can't recommend it highly enough: there is nothing like hearing a live appellate argument, especially at that level. Total time is 1:22:01. If you want a transcript of the argument, you can find it (all 102 pages) here.
I think that my readers should read my October 18 post (which will introduce you to the cases most referred to in the argument) and hear/read the argument and figure out for themselves which way they think it will go. I also know that my regular readers will want to know what I think, so here goes.
Other than Justice Thomas (who almost never speaks at oral argument, including this one), all the justices agreed that the speed of technological progress has outstripped the Court's cases and the relevant statutes. And what was most striking about the argument is that justices as divergent in philosophy as Sotomayor and Gorsuch agreed that mass searches such as were done in this case are unreasonable under the Fourth Amendment, though their reasons were quite different. Justice Sotomayor thought that the gathering of 127 days of cell site location information violates what she considers a reasonable expectation of privacy; Justice Gorsuch thought that people had a property interest/right in the data that they turned over to third parties and that right is infringed by this kind of search, at least without a warrant, even likening it to the writs of assistance that helped spark the Revolutionary War. In fact, the only push back on Carpenter's position came from Justices Alito and Kennedy, who thought that the standard third-party doctrine (information turned over to a third party, like a bank or an old-style landline phone company, can be accessed without any Fourth Amendment violation) still applied to digital data like cell phone location information.
One of the first lessons I learned as an appellate lawyer is don't try to predict the outcome based on the oral argument, even if it's judges (or justices) you know well. Judges can ask questions and make statements to test the lawyers, each other, and even their own opinions, using the argument to formulate, rather than espouse, a position. Having said that, both Justice Sotomayor and Justice Gorsuch seemed truly passionate about protecting privacy and property interests and making it clear that the Fourth Amendment has to be translated into the digital age. While they had very different theories for doing so, they, along with Justices Ginsburg, Kagan, and Breyer can, I think, be reliably counted on to side with Carpenter. It seems to me Chief Justice Roberts is also leaning in that direction. He wrote a unanimous opinion in 2014, Riley v. California, which held the warrantless search of a cellphone on arrest impermissible, again using the analogy of writs of assistance, and saying that the government's position in Carpenter--that we voluntarily turn over private data to cellphone companies and therefore abandon expectations of privacy in the data--is inconsistent with Riley. (And saying, without saying, that Justices Alito and Kennedy need to think about that too).
So, my guess: Carpenter prevails, on a vote of 6-3, with Alito, Kennedy, and Thomas dissenting. However, much could turn on how broadly (or narrowly) the majority opinion is written. And because there were at least two theories being put forward, (reasonable expectation of privacy and property rights), one opinion may not get five votes, although five or six justices agree as to the result (a plurality). We will just have to wait and see.
And what about Carpenter himself? Well, with a 6-3 Supreme Court vote, the Sixth Circuit will be reversed and the case will be remanded. Carpenter's conviction (and 116-year sentence) is overturned, right? Maybe (actually probably) not. In Illinois v. Krull, 480 U.S. 340 (1987), the Supreme Court held that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but which is subsequently found to violate the Fourth Amendment. And if you listen to the argument (or read the transcript) this issue comes up right at the end. Carpenter's lawyer, in response to a question from Justice Alito, says that Krull does not apply because the cases that have a good faith exception dealt with warrants based on affidavits from an investigating officer, unlike Carpenter's case which had only a court order supported only by an unsworn application from a prosecutor. Again, we will see.