The upcoming Supreme Court case Carpenter v. U.S. has gotten lots of attention recently. It is, after all, likely to be the biggest criminal defense case of the next decade because it might put a long overdue limitation on the third party doctrine or even overrule it, altogether.
One of the more vocal supporters of the prosecution in the case, law professor Orin Kerr, recently wrote a blog post on SCOTUS Blog that, he thinks, wraps the case up nicely.
He’s horrendously wrong.
Kerr’s article, Carpenter and the Eyewitness Rule, synthesizes the amicus brief he filed in favor of the prosecution. In his article, Kerr argues that the eyewitness rule – which says that the government can always talk to eyewitnesses – applies to Carpenter. Based on the eyewitness rule, the police in the case could talk with Carpenter’s cell phone carrier and gather evidence that he’d committed several theft crimes.
“These interviews,” according to Kerr, “whether voluntary or compelled, don’t trigger the Fourth Amendment.”
Paradoxically, from a practical standpoint, if Kerr’s article was correct, then he’d never have had to write his article because Carpenter would never have made it to the Supreme Court. Cases don’t go to the highest court in the country if they have solutions that can be written in a single paragraph. The Supreme Court only takes cases that are going to have a big impact, like reexamining the third party doctrine after openly criticizing it several years ago.
From a theoretical standpoint, though, Kerr is still wrong because he misinterprets the question being asked. It’s not whether police can ask a cell phone carrier for information about one of their customers; it’s about whether the phone company has to provide that information if the police don’t have a search warrant.
Even Kerr’s reference to the eyewitness rule misses the crucial point – Carpenter is not about whether police can “interview” someone, it’s about whether that person has to respond. Based on Kerr’s article, he seems to think that police should be able to compel anyone they see to respond to their questions without having to show probable cause.
Carpenter v. U.S. is setting up to be one of the most important criminal cases in the past decade and is bound to have a significant impact on how people and major businesses interact with each other in the future. If Orin Kerr and the prosecution get their way, the government will see the decision as a green light to push their way into more and more private matters that nets law enforcement the access they need to reach the information they want. If the defense team in Carpenter wins the day, major companies from internet and phone service providers to banks and even department stores will finally start putting their foot down when police demand they turn over reams of customer data to satisfy their every whim.
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