Maine Legal Group Logo
Main Office
Satellite Office
Consultations by Appointment Only

No, the Eyewitness Rule Does Not Solve Carpenter v. U.S.

The outside of the court house, representing how one can benefit from calling a Portland criminal defense lawyer.

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.

Orin Kerr: Simply Apply the Eyewitness Rule

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.”

Why Kerr Is Wrong

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.

Maine Criminal Defense Attorney William T. Bly

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.

William T. Bly is a criminal defense attorney in the state of Maine. If you’re facing criminal charges in Maine, call his law office at (207) 571-8146 or contact him online.


Contact our office to speak with
one of our team members who will set up a confidential consultation to discuss your case.


Great group of people. Managed to get me a favorable outcome from a very bad situation. I would highly recommend this firm if you have legal troubles. Top notch performance!!

Dave Allen

So thankful I chose this team to represent me. They’re the best, hands down. Nathan Hitchcock proved my innocence not once but TWICE, including a trial by jury. I have a family in law enforcement who told me “Bill Bly and his team are the best. If I would recommend anyone, it would be them.”

Brandon Albert





Ready to Get Started? Get In Touch With Us Today!

If you are facing criminal charges in Maine, the attorneys at The Maine Criminal Defense Group are here to help. Call our office to speak with one of our team members, who will discuss your case with you and set up a consultation with one of our attorneys.

Get to Know Our Group
Maine Legal Group

We are a boutique law firm, and we stand out by prioritizing our clients’ well-being. At The Maine Legal Group, our experienced team offers personalized attention in both criminal defense and divorce cases.

The Maine Criminal Defense Group

The Maine Criminal Defense Group adeptly handles all areas of criminal defense practice, including experienced and skilled legal representation for state and federal charges.

The Maine Divorce Group

The Maine Divorce Group empowers individuals skillfully navigating divorce with compassionate guidance, ensuring a brighter future through the challenges of the process.