The Supreme Court added an important new case on the use of cellphone data by law enforcement to its docket for its next term. The justices announced this morning that they would review the case of Timothy Carpenter, who was accused of being the mastermind behind a series of armed robberies (ironically, stealing new smartphones) in Ohio and Michigan. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Carpenter’s cellphone. Law-enforcement officials received several months’ worth of historical cell-site records, which indicate the cell towers with which a cellphone connected while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies.

Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. The district court denied that request, however, and Carpenter was convicted on 11 of the 12 counts for which he was indicted. On appeal, the U.S. Court of Appeals for the 6th Circuit upheld Carpenter’s convictions. It too rejected Carpenter’s arguments that disclosure of his phone records to the federal government was a “search” for which the government needed a warrant. The court of appeals reasoned that cellphone companies had collected the data “in the ordinary course of business” for their own purposes – including “to find weak spots in their network and determine whether roaming charges apply.” And Carpenter would have no reason to believe that his cellphone records would be kept private, the court explained, because the records simply show where his phone connected with cell towers, without providing any information about the content of his calls.

Urging the justices to deny review, the federal government pointed to two of the Supreme Court’s decisions from the 1970s, which held that obtaining a business’ records about a particular person does not rise to the level of a “search” of that person, for which a warrant would be required, even if the records contain information about the person. And although the records at issue in those cases consisted of bank accounts and a list of the numbers that the defendant dialed on his home phone, it shouldn’t matter, in the government’s view, that Carpenter’s case involves “new technologies” like cellphones.

But today’s announcement that the Supreme Court will review Carpenter’s case may signal that the justices – all of whom presumably carry cellphones themselves – might view the issue differently. Three years ago, the court ruled that police must get a warrant to look at information stored on the cellphone of someone who has been arrested. In reaching that conclusion, Chief Justice John Roberts observed that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Moreover, the justices stressed in that opinion, they were not holding that “the information on a cell phone is immune from search” but instead simply making clear that “a warrant is generally required before such a search.” The justices may ultimately conclude that, as the federal government urges, giving police access to Carpenter’s historical cell-site data is significantly less intrusive than giving them access to the kind of “detailed personal facts” available on a cellphone itself. But, even if so, they may also believe that, at a minimum, this area of the law needs to be updated and clarified for the 21st century.

Going into last week’s conference, the justices also had before them two cases – both captioned North Carolina v. Covington – arising out of North Carolina’s efforts to redraw its state legislative maps. In the first case, the state asked the Supreme Court to weigh in on a ruling by a three-judge district court striking down the state’s map on the ground that 28 majority-black districts were the product of racial gerrymandering, in violation of the U.S. Constitution. In the wake of its decision last month striking down two North Carolina congressional districts on the ground that the state’s legislature had given too much weight to race in drawing the districts, the justices, without comment, today allowed the lower court’s ruling on the state legislative map to stand.

But the court issued a brief, unsigned opinion in the second case, in which the state challenged an order issued by the district court after its decision invalidating the state legislative maps. In its original ruling, the district court had allowed North Carolina to go forward with the maps for its November 2016 election, but it had instructed the state to redraw its maps before the 2018 election. However, a few weeks after the 2016 election, the district court issued a new order that, among other things, required off-year special elections in some parts of the state.

In its petition for review, the state urged the justices to vacate that order, and today the justices did precisely that. The court explained that when ordering relief in redistricting cases, a district court must ensure that the remedy is a suitable one for the infractions that it has found. This requires, the court continued, an “equitable weighing process” that considers – for example – the seriousness of the constitutional violations, the effect that early elections would have on the government’s ability to function, and “the need to act with proper judicial restraint when intruding on state sovereignty.” But in this case, the court suggested, the district court conducted “only the most cursory” review of both sides’ interests. For that reason, the court concluded, the district court’s order should be invalidated.

The court today granted the Carpenter case after considering it at seven consecutive conferences. But there was still no action on several other high-profile cases. Masterpiece Cakeshop v. Colorado Civil Rights Commission is presumably headed for its 12th relist. The case is a challenge by Jack Phillips, a Colorado man who describes himself as a “cake artist” and argues that the state’s public accommodations law violates the First Amendment by requiring him to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. Peruta v. California, in which the justices have been asked to decide whether there is a Second Amendment right to carry handgun outside the home for self-defense, is apparently headed for its fifth relist; another gun rights case — involving whether a federal law banning the possession of guns by convicted felons violates the Second Amendment as applied to two men, Daniel Binderup and Julio Suarez – seems to be slated for a fourth relist. The justices will meet for another conference on Thursday, and we expect them to announce orders from that conference on June 12.

Posted in Carpenter v. U.S., North Carolina v. Covington, North Carolina v. Covington, Cases in the Pipeline, Featured, Merits Cases

Recommended Citation: Amy Howe, Justices to tackle cellphone data case next term, SCOTUSblog (Jun. 5, 2017, 12:52 PM), http://www.scotusblog.com/2017/06/justices-tackle-cellphone-data-case-next-term/