The United States Supreme Court sent shock waves to the criminal defense community with their decision in Carpenter V. United States on June 22, 2018. The decision ruled that access to a person’s historical cell-site records is a Fourth Amendment search because it violates the person’s “legitimate expectation of privacy in the record of his physical movements.” The court also held that accessing those records requires a warrant. To understand what this decision will mean to the people of the state of Michigan, we turned to leaders in the criminal law community to get their thoughts.
Scott Grabel is the founder of Grabel and Associates which has earned a reputation as the top criminal defense firm in our state. Grabel was quoted as saying, “We need to understand that while this is a victory it is a narrow one. In Carpenter, we have a 5-4 decision and when you break down the specifics of the opinion, the court actually states that seven days or more of cell-phone records equate to a Fourth Amendment search. This still provides wiggle room for the government actor to potentially violate the rights of our citizens. Yes, this case was a move in the right direction but we still need further protection when utilizing a cell phone.”
Jeremy Tatum, a criminal defense attorney in Saginaw, Michigan stated, “When we look at cell-site location information (CSLI), we see a grave danger. We have always been taught that our expectation of privacy is lowered once we leave the house and we do assume the risk whenever we have a conversation on our cells. Now, there is some level of protection but not to the point where we should tell our clients to feel comfortable saying anything on their phones. There is still a hidden danger of using a statement as a party admission when you speak too freely on your cell phone.”
Peter Samouris is the founder of “Samouris Law” and also works for Grabel and Associates as a criminal defense attorney. Samouris added, “I think it is a big victory for what some are calling ‘digital privacy’ but what I simply call ‘privacy.’ While it is true that once we step out of our homes, we are automatically giving up many privacy rights, that alone should not, however, give police the go-ahead to track your every movement without a warrant.”
Grabel went on to say, “We saw concurring opinions in United States v. Jones but we also see what is potentially a new direction for the United States Supreme Court. Instead of focusing squarely on the facts of “Carpenter” it would appear that the biggest concern for the court was the direction that technology is going. In 1998, we could’ve never imagined the possibilities that cell phones would have in 2018. It’s going to be difficult to gauge where our society will be in 2018. I commend the Supreme Court for having an opened mind on this issue at hand but the vulnerability of the defendant is still present. This was a victory for constitutional freedoms but a narrow win. As criminal defense lawyers, we will need to be cautious in educating our clients on the ramifications of Carpenter.”
Today, the cell phone is not simply a mode of communication but an amazing research mechanism. The fact that our freedoms and research can be commingled and a simple conversation can evolve into criminal prosecution is a cause of great concern. Carpenter is a step in the right direction but when it comes to fourth amendment rights within the cell phone industry, we have to remember that we are in a marathon and not a race.
William Amadeo is a partner at Ann Arbor Legal in Ann Arbor, Michigan and a Senior Associate for Grabel and Associates. In addition to his legal duties, Amadeo is the owner of BAT Tutoring in Lansing, Michigan and a staff writer for “The Chronicle News” and other websites.