In a huge decision impacting how criminal defense lawyers handle their cases, here in Atlanta and elsewhere, the Supreme Court issued a ruling in Carpenter v. United States. For me, the case demonstrates two aspects of handling criminal defense matters here in the second decade of the 21st century, slow change in the legal field, and the need for defense lawyers to never give up.
First, let’s talk about the glacial rate of change in the legal field. The law is old, slow, and develops incrementally. Judges tend to be older, more thoughtful than the average citizen, and less likely to climb on board with the latest craze or fad. Now, compare the slowly crawling legal field with technology. As we all know, the IT world yields a new cell phone, device or application at least every year, and is encapsulated by Moore’s law (more or less accurately predicting the doubling of computing storage every 18 months). Regular readers know I like to talk about how the creaky legal system deals with rapid developments from the world of technology. The Carpenter case is a perfect example.
Law enforcement arrested some guys for knocking off Radio Shack stores in Detroit (as if this company or the place of my birth needed any more bad stuff happening to them). One guy says that this group and 15 others had been doing this same thing throughout Michigan and Ohio. The snitch gives the officers some cell phone numbers. The Officers get some court rulings to get cell phone location records, using the Stored Communications Act (the SCA). Now, here’s the important part. The SCA does NOT require the same level of suspicion as is needed for a warrant. Warrants require “probable cause” while orders under the SCA can be issued if an agent has “reasonable grounds” for thinking that the cell phone records might be “relevant.” So, agents got their SCA orders, then got the cell phone records, and voila, were able to prove that Carpenter’s phone was around the other guys at the same times as the various Radio Shack heists took place throughout the Midwest. One two three, guilty, but wait, there’s more!
The majority of the Supreme Court last week said that getting cell phone location records is a “search” under the Fourth Amendment, and therefore generally requires a warrant based on probable cause. The big change here seems to be that the majority of the Court now rejects the notion that we surrender our privacy just by signing up for cell phone service (or using Facebook or any other handy part of modern life that gathers boatloads of our private information). Instead, the Court adopts a more nuanced and modern view that likely is what most of us want: a court system that lets law enforcement gather information of a crime while at the same time retaining some measure of personal privacy for the rest of us.
As I said earlier, there is a second lesson from this case. Defending against a criminal charge is an art, for 10 good defense lawyers will take 10 different approaches. Despite this rule, some things are constant in being a criminal defense lawyer. The attorney needs to not only know the law, he or she needs to take a stand from time to time, even if the cards seem to be stacked against the client or the legal principle urged by the criminal defense lawyer. At the time when Mr. Carpenter’s case was being tried, the legal decisions in this area were generally against the defense. I salute Mr. Carpenter’s criminal defense lawyers who had the guts and foresight to raising this issue many years earlier at a point when it appeared they were fighting a lost cause. Bravo!