Dylan Moore

University of San Diego

LEPSL 530 – Public Safety Law

Third Part Doctrine and CSLI Analysis

January 24, 2021

 Cell Site Location Information (CSLI) as interpreted by the majority opinion in Carpenter

v. United States, presents a new and unstable interpretation of the Constitution, requiring a

respectful dissent.

Cell phone records in my opinion are no different than any other kind of business

records. “Customers do not own, possess, control, or use the records.”1 The Fourth

Amendment of the United States Constitution reads, “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated.”2 In this case, the point of conjecture is whether the government searched

anything Carpenter exercised domain over. Prior court precedent to include Smith v. Maryland

and United States v. Miller respectively hold individuals do not have protected Fourth

Amendment interests in items “possessed, owned, and controlled only by a third party.”3 Items

in which people “voluntarily convey” to companies they have no reasonable expectation of

privacy over. Therefore, I argue the government did not search the “persons, houses, papers or

effects” of Carpenter.

The majority opinion not only expands the Fourth Amendment to third party business

information, but draws an “unprecedented and unworkable line”4 between CSLI records and

financial/telephone records. Based on the legal precedent in Miller and Smith law enforcement

often subpoena credit care statements, phone records, and various other third party data. The

majority opinion falls short at distinguishing the difference. In addition, subpoenas are a court

1
Carpenter v. United States (2018) 138 S. Ct. 2206. University of San Diego. LEPSL 530: Public Safety Law. Module
2: The Fourth Amendment’s Impact on Law Enforcement Policy & Procedure.
2
Ibid. 22.
3
Ibid. 22.
4
Ibid. 21.
approved compulsory process. By calling the process into question, but only in such a limited

scope, this ruling will “keep defendants and judges guessing for years to come.” 5

Chief Justice Roberts makes the argument on page 15 of the majority opinion “only the

few without cell phones could escape this tireless and absolute surveillance.”6 However the

Stored Communications Act does not give the government carte blanche surveillance

capabilities. Rather, it requires a judge to confirm “reasonable grounds” to believe the CSLI are

relevant material to an ongoing criminal investigation.7 In addition, the law is now placed on

unstable grounds because the court has drawn a completely new constitutional line by creating

a distinct a particular category of information separate from the rest.

These reasons all lead to a respectful dissent. The court’s dangerous expansion of the

right to privacy is a pivotal shift from the prior court’s Fourth Amendment precedent.

5
Ibid. 28.
6
Presentation 2.1 Part II. University of San Diego. LEPSL 530 Public Safety Law. Module 2. Reference Carpenter v.
United States.
7
Carpenter v. United States. 25.