Dan Epps: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will Baude: And I'm Will Baude. Dan, I like this part of the summer where our unscheduled means we're actually releasing a lot of episodes as opposed to just disappearing and making people delete the podcast.
Dan: Yeah. I mean, if we always had long delays in between episodes, it would start to seem like a schedule. We've got to do this sometimes to leave people guessing. Yeah. So yeah, this is our third recording session in 3 days. This is Wednesday, the July 1st, the day after the final opinion day. We're probably going to not release this one for a little while.
Dan: So if anything happens after Wednesday that really shocks the Supreme Court world, we don't know about it yet. So like Justice Alito's Friday retirement announcement. Are you following this continued fallout from the Nina Totenberg screw-up?
Will: I refuse to follow it on the grounds that it is stupid.
Dan: It's funny though. It's stupid in a way that's funny.
Will: Okay. I like funny.
Dan: So first of all, some people are claiming that Nina broke an embargo, that the news had already been announced to journalists, but is supposed to not be shared until Friday, which is preposterous.
Will: I mean, look, if that's true, we'll be embarrassed.
Dan: Or we'll just put this episode on the cutting room floor. We'll just skip right to the substance. And then one theory was that Justice Alito did this just to own the libs by deliberately embarrassing a famous liberal Supreme Court journalist.
Will: Oh, I like that one.
Dan: Yeah, it doesn't make a ton of sense, but uh okay maybe we will be proven wrong, but I don't think we're.
Will: Justice Alito does have this story he sometimes tells in public events about embargoes. Do you know the story that he was visiting with the Canadian Supreme Court or some other country's Supreme Court where they were describing how the way they handled the press is that they invite press into a room half an hour before the decisions issue and explain the decisions to them and talk to them about the decisions and embargo it you know for until the court then announces the decisions.
Will: Then that way, the press corps is more informed, et cetera, et cetera. And I once heard Justice Alito say at a public event that he liked this idea until he found out that later they have to let the journalists out of the room.
Dan: Yeah, I think I've heard this, but I've forgotten that one. Yeah, actually, that seems like not a bad system. I kind of like it. Okay, well, given that I think less than 24 hours have transpired since our last session, luckily there hasn't been much news. I did have one minor piece of follow-up, which I had said Justice Thomas said he did not use drugs.
Dan: I was at the point in his book where he was talking about his college years, and he said no. Then I got to the point where he was talking about his judicial confirmation. And he said the following thing. He said he didn't think he did. He couldn't rule out the possibility he had used marijuana while drunk at one point. He couldn't rule that possibility out.
Dan: So out of abundance of caution, he said in the confirmation process that he had experimented.
Will: So he sort of over-cautiously confessed.
Dan: Yeah, that's interesting.
Will: You know, you don't hear a lot of that.
Dan: It's a fascinating book. I've just gotten to the key moments, the kind of Anita Hill part of the book, and it's fascinating. I mean, it's just way more frank than any other Justice, I think, would be in a work like this. Yeah.
Will: It's a great book.
Dan: Yeah. Okay. Did anything else happen between 5:30 PM Tuesday and 10:52 AM Wednesday that we need to talk about?
Will: Um I don't know, Dan. I haven't been paying attention. I've been trying to read this case you wanted me to talk about.
Dan: Are we going to get— is there going to be another round of cleanup orders?
Will: Oh, yeah. There should be, right?
Dan: I think usually there is one, like not the same day as the opinions come out, right? Isn't there usually one? Later in the week.
Will: Yes. Cause so yesterday, the day of the final opinions, I noticed there were cleanup orders like GVRs or not in light of Slaughter and Landor and Monsanto. But we haven’t yet gotten there should be some GVRs or not in light of birthright citizenship, B.P.J. So those ought to be coming out.
Dan: Yeah, so maybe later today, maybe later in the week. Yeah. Okay. So I think we should just get to substance in record time. It's not even 5 minutes into the recording. We might just go straight to the main event.
Will: Okay. I'm not sure if it's a record, but okay. Yeah.
Dan: Chatrie v. United States. All right.
Will: This is one of these Fourth Amendment cases you like.
Dan: You do too. You wrote a whole article about the Fourth Amendment. And there's stuff in this case that directly speaks to that. All right, all right. Okay, this is, at least in terms of people who teach criminal procedure investigation, as I do and as I will be this coming spring, I think this case is a pretty big deal. And I think it's a case that is going to have some pretty significant ripple effects through Supreme Court doctrine when it comes to searches and seizures involving electronic data.
Dan: So where to start? So this is going to be a majority opinion by Justice Kagan. She's got the Chief and Justices Sotomayor, Kavanaugh, and Jackson with her.
Will: Mm-hmm.
Dan: We're going to have a concurrence by Justice Jackson joined by Justice Sotomayor. We're going to have a concurrence in the judgment by Justice Gorsuch, who's got his own way to do things. We've got an Alito dissent in which Justice Thomas joins in part, and Justice Barrett joins in part, and then a short Barrett dissent.
Will: Right. And different parts, just as I understand it. We'll get to the—
Dan: Yes. Yeah.
Will: Yeah. But different parts.
Dan: Yeah. We'll want to break down exactly which parts and try to figure out why momentarily. Yeah.
Will: So that means the majority opinion by Justice Kagan has 5 votes, but only 5. And then Justice Gorsuch along for the judgment, but not the opinion. So she needs you know she needs everybody she's got to make whatever she's making.
Dan: It's a closely divided court, I would say.
Will: That's got to feel good if you're Justice Kagan, right?
Dan: Yeah. No, it's a good get for her.
Will: End of the term, 5-Justice majority making an important impact in an area of law where the Court only decides one case a decade. Yeah. Okay.
Dan: Yeah. No, I think this is good.
Will: Congratulations, Justice Kagan.
Dan: I think this one matters.
Will: Okay. What's it about?
Dan: This is about geofences. Specifically, this is an investigative technique that police have been using So they know a crime occurred at place X, right? You know a crime occurred, you don't know who did it. Yeah. Or maybe you have suspicions, but you don't have anything that would be sufficient to let you go search that person's house, say. But usually they don't even know who did it, right?
Dan: They have no leads. And so they go to Google, and interestingly, Google no longer retains this data in the same way, so I think, as I understand it, these kinds of warrants wouldn't work anymore, this kind of investigative technique. But, you know, as it did work, you would go to Google, and Google at the time has this feature called Location History where if you have it turned on on your phone, it will kind of just show you a real-time accounting of where you went over the course of the day based on GPS data.
Will: Uh-huh.
Dan: And so they would say, "Hey, just give us everybody, look at all your location history data and tell us everybody's phone who was in this location at this particular time." All right.
Will: And it's the assumption that sort of functionally just about everybody has used Google, and so we're all being tracked by Google specifically.
Dan: Well, I don't think you need to assume everybody, but I think you assume that there's a pretty good chance.
Will: Yeah.
Dan: And so it's better than nothing, right? I mean, if the person doesn't have a phone. In this instance, there was a bank robbery and there was footage of the suspect using a phone on his way outside of the building. So they knew the guy had a phone. I mean, they didn't know for certain it was a phone that had Google on it, didn't know for certain whether he had location history, but a lot of people have this. And so at least it's going to give you potential potential leads.
Will: Right. Also, I think at this point, functionally, everybody has a phone. More than 90, more than 95% of Americans have smartphones. Now maybe among people who are committing bank robberies, maybe those people disproportionately leave their phone at home or remember to turn off location tracking, although I'm not sure that's true.
Dan: Bank robbery is a crime with a high detection rate, high clearance rate, so I think probably not.
Will: My understanding is not the best. I mean, the old joke that Willie Sutton said, "Why did he rob banks? Because it's where the money is." My understanding is it's actually a bad joke in that for the most part, It's hard to get into the vault where the money is, and it's an easy place to get caught. Yeah. Okay. And to clarify one thing that I will confess has confused me for years before I started paying attention to this case, there is no geofence.
Will: There's no place. There's no physical fence, and there's not even a virtual fence. A geofence is just a metaphor for when the police draw a circle on the map and say, "We want to know who was here in this time period."
Dan: Yes, within this perimeter, basically.
Will: Right.
Dan: And so there's this like multi-step process. I don't totally understand this process, so here's how it's described. Step 1, so basically there's— and these are issued pursuant to a warrant, right? And so we'll talk about that complexity in a minute. But basically, step 1, Google produces anonymized location data for all cell phones within the geofence in this timeframe. So it was a timeframe that was set 30 minutes before and 30 minutes after the robbery.
Dan: Okay, that's step 1. Step 2, this is on page 7 of the opinion: police officers would attempt to narrow down the list of devices by reviewing the timestamped location coordinates for each device and comparing that against the known time and location information that is specific to this crime. I really don't understand what step 2 is doing, right? Because I thought the whole point of step 1 was to figure out what phones were at the crime.
Dan: But maybe they're looking at it in a more granular way because the GPS gives you, you know, fairly close, you know, physical proximity information. Okay, so that's a narrowed list where Google comes back and gives additional anonymized data, cell phone locations, both inside and outside the geofence during a longer time period. So now we're going to go an hour before the crime and an hour after the crime.
Dan: Yeah. Okay. And then at step 3, police again attempt to narrow down the list by comparing this additional information regarding travel and time against the known time and location information that is specific to this crime. Again, I don't totally know what that information would be. And then Google comes back and gives over the names of the phones that satisfy after that winnowing process.
Dan: And so here it was 19 users, and then second stage it was 9 users, and then the third and last step it was 3 users. And then the police, that list of 3 people.
Will: Right. Then further police work ensues. Now I take it, do you think that what they've done so far, just getting the 3 people, would that be enough for probable cause to search the houses of those 3 people to see if you have any stolen money?
Dan: I would like to think no.
Will: Really?
Dan: I would like to think you would do a little bit more. Basically, all that information would show you that this person was at the bank while it was a robbery. Yeah, I think that if at least if I was being thorough and haven't gone back and looked at exactly what the additional investigative steps were, you'd want to have a little bit more, right, to go to the— like, you know, maybe so.
Dan: But it's kind of like one of those probabilistic evidence questions, right, which if you know with certainty that 1 of 3 people committed the crime, is that sufficient? If you know it's 1 of 5 people, like, when does—
Will: Well, and you agree, if you knew that 1 of 3, if you knew that this phone was the bank robber's phone, and there's— and one of three— there's a one in three chance it's Chatrie's phone. That's got to be probable cause, right?
Dan: Probably. Although, I mean, I don't think— I mean, I think, you know, probably, because probable cause is definitely less than 50%, it does seem a little bit awkward to say we're gonna go get search warrants for 3 different people, right?
Will: It is awkward to get search warrants for 3 people saying, "We know that 2 of these search warrants are for the wrong person." Yes.
Dan: Yeah, that's sort of what I'm saying.
Will: But we don't know which one. Yeah. But if it's less than 50%, that's got to be entailed by it, right?
Dan: It does, although I just think that normally you'd want sort of each one to be evaluated on their merits. And so you'd go to the— maybe it's the fact that you're doing it if you're doing all 3 at once. That's the thing that's making me feel uneasy. Right.
Will: I mean, maybe you instead have to say, "We have some hunch, even if it's very fishy, that this is the best of the three."
Dan: Yes.
Will: Okay, we tried that one, didn't work.
Dan: Yes, I think then you're good.
Will: Let's try the next one. Okay, what happens next?
Dan: Okay, so then we're just going to skip ahead. This guy Chatrie is indicted for robbery, other offenses. He moves to suppress this information obtained from Google. And I think also there would be some further implications if that information is suppressed. There would be some further follow-on effects about other evidence that might be suppressed. He says that this was acquired, this information was acquired as part of a Fourth Amendment search.
Dan: Mm-hmm. And there was a warrant, right? A lot of times in these Fourth Amendment cases, the government is saying, well, it wasn't a search at all. Fourth Amendment isn't implicated, so it doesn't matter that we didn't have a warrant. Right. Here, there was a warrant, but there is this further argument that the Court is not going to reach, which is that this warrant is invalid because it's a what we call a general warrant.
Dan: OK. General warrants were these things that were given to customs inspectors and the like during the founding era and before that made the founders really mad. They were just basically these get-out-of-jail-free cards that would say to these inspectors, constables who were acting on behalf of the Crown, "Go search wherever you want, and because you have this special general warrant, nobody can sue you."
Dan: Right. And we know whatever the Fourth Amendment is supposed to do, we know it's supposed to not let that happen. Right.
Will: But we know the thing that makes that warrant not general, right? So the Fourth Amendment says, "No warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized." So you can get a warrant that's not general if it particularly describes the place to be searched, right?
Will: So if I say, "I want to search the University of Chicago Law School because I have probable cause to believe that the thing I'm looking for is at the University of Chicago Law School," then that's not a general warrant, right?
Dan: Well, it might still not satisfy particularity if you were to say, "I want a warrant to search the backpacks of every single human being inside the University of Chicago Law School."
Will: Well, so why is that?
Dan: Which might be hundreds of people.
Will: Well, so maybe if I need a warrant for the backpacks, I haven't established probable cause as to each backpack. But if I just said, look, somebody somebody stole the treasure and they took it to the University of Chicago Law School and it's somewhere in there. I saw the treasure go in and I've never seen it come out, so it must be in there somewhere. Is it just that it's too big a place? It's not particular enough?
Dan: I think that the issue is that it implicates too many people, right? Okay. Because I think the point is then this isn't a search of the geofence. It's a search of the private data of potentially hundreds of people.
Will: Okay, but why?
Dan: I think that's the issue.
Will: Okay, but the Constitution says it refers to the place to be searched and the persons or things to be seized. So if it's a search warrant—
Dan: Well, I mean, I don't think you could have a warrant that said, you know, we're going to go to this office building and we're going to search every single person who's there, and we're going to list the names of every single person in that office building.
Will: Okay, because that's not particular.
Dan: It's not particular, and also there's certainly not sufficient probable cause as to any given person, right, in that world. We're just like, we know the bank robber is in this apartment building. We saw him go into this apartment building.
Will: Okay.
Dan: He's one of the 100 and 200 people in this apartment building. Don't know which one, but just give us a warrant that would let us search everybody. Now you can—
Will: Okay, but if it were a room, a single room that were a crack den. You got a warrant to search the crack den. Could the warrant say, "And while we're in the crack den, we would like to search all the people in the crack den to see if they have crack?"
Dan: So there's actually a case that's kind of like that called Ybarra v. Illinois. I don't know if you came across this one back when you were writing your sole Fourth Amendment article. So this was a case from 1976 where the police had a warrant to search a tavern and the bartender at the tavern for evidence of heroin trafficking. Okay. And the police went there, and then they used this to search not just the physical building and the bartender, but they actually searched all of the customers as well. And—
Will: Is that allowed?
Dan: The Court said no. The Court said that was no good.
Will: Now, if they've been searching them for alcohol, would they be different? Because a tavern is not a crack den. Could you just presume that the customers in an establishment selling X are there quite possibly, quite probably to buy it?
Dan: Sorry, is this in a hypo where it's a Prohibition era or something?
Will: Yeah. Or there's some reason to believe the alcohol is an element of crime or evidence of a crime.
Dan: It's possible. It's possible. I mean, part of the problem in Ybarra is that the warrant didn't specify. Okay. But I think part of the problem is also that there just wasn't— you can't just assume that everybody there has evidence of the crime. Okay. So part of the reasoning there was that probable cause finding, right? When the search warrant— the Court says search warrant was issued, there's not probable cause to believe that any person found in the tavern was violating the law.
Dan: Right. They say maybe there— look, maybe there's more. They say, you know, maybe they could have alleged that patrons had been seen buying drugs or things like that. But I think clearly here, there is not probable cause that every phone, the owner of every phone who was in this geofence is a bank robber.
Will: Right.
Dan: And in fact, I think it's certain, almost certain that they're not, right? I mean, we know there was one guy, we saw him. Right.
Will: And even if you think 1 out of 3, maybe definitely not everybody in the geofence.
Dan: Yeah, it turned out to be 19 on the first cut, but it could have been 200, right? At that stage, at that initial stage, the police don't know.
Will: Yeah.
Dan: How many it could be.
Will: Yeah.
Dan: Um, so is it a true, like, old-style general warrant that lets you search anywhere all the time? No, but that doesn't mean that it's okay, right? It still might be— it might be just too general.
Will: Yeah, okay. The establishment in the bar, by the way, appears to be the Aurora Tap House. Does that still exist?
Dan: Is that near you?
Will: It's on the South Side. It's in the western suburbs of Chicago. It's not that near. Google Maps seems to think it's still there. So next time you're here, we should do a field trip.
Dan: Yeah, let's get all your students. Yeah, it's fun because when I teach investigation, there are some locations that are in St. Louis, including one case where there is an apartment building with the actual address named in the opinion. Uh-huh. And I had a student once who was like, "Oh, yeah, I used to live in that building." And another student who went and just took pictures of it.
Dan: So always kind of fun. By the way, if there's any Chicago area, Chicagoland, listeners who want to just go check out the tavern, the tap house, for us, send us some pictures and/or a report, we will report back on that on the next episode. So think about it.
Will: Okay.
Dan: Okay.
Will: So there are 3 questions you could ask, right? One is, was this a search?
Dan: Yeah.
Will: The next question—
Dan: And if it's not, that's the end. That means basically the police— if it's not, the police can do it whenever they want without the Fourth Amendment having any problem with it. Maybe you could Maybe there's something else wrong, but if it's not a search and it's not a seizure, that's the end of the story.
Will: And the next question you could ask is, okay, if it is a search, is it an unreasonable search because it violated particularity or whatever? And then the third question you could ask is, should this evidence, even if the evidence is illegally seized, should it be excluded from the criminal case? And all those are real questions, right? You could think it's a search, but it's a lawful search, or you could think it's an unlawful search, but we should admit it anyway.
Dan: Yeah, and there is a very good chance that that third thing is the correct answer, right? Because there is this doctrine called the good faith exception that functionally says that unless it's kind of clear that the police were doing something, or at least should have known they were doing something that violated the Fourth Amendment at the time, the evidence can still come in.
Dan: So let's say the police are relying on old Supreme Court precedent that later gets overturned, or the police are relying on a kind of facially valid warrant. Right. So I think there's a very good argument here that whatever however you resolve the first two questions, the evidence should still come in. Right.
Will: And even just the absence of precedent, right? The Court at times suggested that the good faith exception to the exclusionary rule and qualified immunity from civil liability are similar standards.
Dan: Yeah. I mean, I think it's less clear in the Fourth Amendment context. There's a case, Davis, which friend of the show, Orin Kerr, actually argued— and did the briefs on based on some scholarship he had written, where there's an opinion by Justice Sotomayor who sort of tries to leave that question open of unclear precedent or lack of precedent. Okay. But yes, potentially.
Dan: Potentially. I mean, I think at least some of the conservative Justices, putting even if there we're not getting rid of the exclusionary rule, some people just don't like the exclusionary rule and it is kind of made up. But they would say, look, it only should apply, if it's going to apply at all, it only should apply where in situations where like any officer should have known this violated the Fourth Amendment.
Will: Right.
Dan: And that's not the case here. That is not the case here. I mean, I think the law here is sufficiently unresolved, up in the air, that this was a viable argument that this doesn't count as a search. I think it's wrong, and I think that the precedent on balance cuts in favor of it being a search, but it's certainly not crystal clear.
Dan: So this guy may still lose. To be clear, the Court, you just said there's 3 questions. The Court is not going to resolve 2 or 3 of them. Right. The Court is only going to address the first question. Right.
Will: The Court, as I understand it, granted cert on questions 1 and question 2. Granted cert on the lawfulness of the search, which could include whether it is a search and whether it's lawful, and already carefully fenced out of its grant of certiorari the exclusionary rule question, presumably because if they took the exclusionary rule question, then it's going to be impossible to cobble together a majority to think it's a search. Yeah, so that was good. That was clever lawyering.
Dan: Yeah. And so, and so, to be clear, yeah, the question that they granted could have incorporated— yes, both of those things, uh, was it a search? Is the warrant good?
Will: Right. And then it turns out, once they work on this opinion, that they only have a majority to answer question 1, is it a search? They don't answer questions.
Dan: I mean, maybe they do have a majority, but maybe they just don't want to get to it. Or maybe— I mean, we don't know, right?
Will: Well, They do not produce to us a majority that is willing to answer that question, and they produce to us some members of the majority who are, which it would've been easy if all 5 members of the majority— we're getting ahead— if all 5 members of the majority agree with the expressed views of others, then they could.
Dan: Yes.
Will: And they didn't.
Dan: Yeah, but we don't totally know why. Maybe there were people who disagreed. Maybe there were people who just said, "It's too late in the term. I don't want to think about this." But at least this makes some progress.
Will: I highlight this also just again to To the Justice Kagan point, I think steering getting a 5-Justice clear ruling on anything in this area seems impressive. And to do that, she has to make a bunch of choices about what not to reach and how to get there. Yeah.
Dan: I'd love to know whether there was an initial draft that reached those questions or not, or maybe they just decided at conference not to reach those questions. Hard to know.
Will: Okay.
Dan: Should we just give people an overview of the precedent here?
Will: Well, now we should talk about Carpenter. Is that what you mean?
Dan: Yeah, that's where I was going to go. Maybe I could step back one step before that.
Will: Yeah, you should step back.
Dan: Just to talk about Jones. Sure. Okay. So there's one other kind of GPS case. There's older cases about these things called beepers, which are kind of like very primitive GPS that kind of send out these radio signals and you can sort of track them. I don't think we need to talk about those, but there's a more recent case, in the more recent, as far as these things go, called Jones from about 20 years ago, a little bit less than, maybe 15, 20 years ago, where the police had physically installed a GPS tracking device on a vehicle without a warrant and used it to track a suspect's movements for weeks.
Dan: And the question was, is that a search? There, the Court, 4 Justices said it is a search because it was a physical trespass, right? There's two— actually two different tracks of Fourth Amendment jurisprudence. We'll come back to this in a second. One that focuses on these traditional kind of physical trespass concepts and the more dominant one, which has been around for the last 60 years or so, the Katz test, which isn't focused on principles of trespass, but is instead focused on— privacy.
Dan: And then so you had 4 Justices led by Justice Scalia and joined by Justice Sotomayor. So they had a majority who said it's a search because of the trespass.
Will: Didn't Scalia have 5 for that proposition?
Dan: Well, that's what I just— that's right, that's just what I said. 4 joined by Justice Sotomayor. She provides the 5th vote.
Will: Yeah.
Dan: Okay, so they do have 5 for it, but I'm getting— Sotomayor is a little complicated, so I'm gonna get to her in a second.
Will: All right, fine.
Dan: And then there were 4 Justices led by Justice Alito who said, you know, this trespass thing is stupid, we should just decide this under Katz privacy test, and here basically what the police did involved tracking this person for a long enough time that it seems kind of like a search to us. And then Sotomayor, sort of in the middle, she says, I'm going to go along with the property thing. That makes sense to me, but basically also endorses the privacy thing. Yeah. So she does kind of both.
Will: Yeah.
Dan: But formally, the majority opinion is the property thing. Yeah. Okay? But you can count— I think you can count 5 Justices there who also buy the privacy thing. Okay, so that's, that's step 1. Step 2, Carpenter, right? I don't know if you want to take Carpenter.
Will: Sure. Otherwise, then do we also need step 0?
Dan: So you always need a step 0 whenever you're doing a legal analysis. You've got to, you've got to identify step 0. I think step 0— I mean, now we're like, you know, you need step -1 sometimes. But what's, uh, sorry, what is step 0?
Will: Step 0 would be Before the cyber age, there was something called the third-party doctrine, which says— Oh, yeah. —in lots of circumstances, if you have stuff, you have information or documents or whatever, and you give them to somebody else, then you don't have any reasonable expectation of privacy in them anymore, even if you are in fact quite upset to learn that other person has been searched.
Will: So your bank records, which you might have thought were between you and your bank, can be obtained by the government without it being searched at all.
Dan: Yeah, no Fourth Amendment problem with that at all. Right.
Will: So essentially the Fourth Amendment, the pre-cyber age Fourth Amendment inculcated the principle that two can keep a secret only if one of them is dead. If you tell another soul, you've given up your privacy.
Dan: Yeah. Deeply controversial, deeply heavily criticized rule.
Will: Right. And so one of the questions arising out of Jones, privacy, and then the increased amount of data sharing and transformation in the cyber age is how all that applies to data. Yes.
Dan: And so the Jones case, the problem with it is that if you just do the physical trespass rationale, there's lots of things in the 2010s and 2020s that the government can do that don't require— that involve getting the same amount of information but don't involve any kind of physical trespass. Yeah. Right, basically now all of our data that we care about is stored not just on our phones, and we can be tracked not just using a physical GPS device but using the cloud, right?
Dan: You could just go to Apple, go to Google, and say, hey, you know, you've got GPS, where's this person? Yeah. And so, or, you know, you could go to Apple and say, you know, what is— what are this person's emails or text messages? I mean, basically all of this stuff is no longer physically held by you. It might— you might have a local copy on your device, but it's also going to be elsewhere, right?
Dan: So that seems like a problem, right? If we're going to follow that doctrine all the way to its conclusion, that might leave us with not a ton of digital privacy, right? Because we have all voluntarily consented to letting Tim Cook and Mark Zuckerberg and Jeff Bezos and all these folks host our most intimate information on their servers.
Will: Right, but only because I was fine when it was just Mark Zuckerberg and Jeff Bezos and Tim Cook doing it, but when I learn that it's the government doing it, then I might feel differently about it.
Dan: Yeah. Okay. Okay, so that's the third-party doctrine.
Will: So then Carpenter, the Court has a case in 2018. The Court has a case about whether it is a search under the Fourth Amendment to access historical cell phone records that provide a comprehensive chronicle of the user's past movements.
Dan: Yeah, and these are not GPS, so they're not quite as accurate as GPS, but what they are is data about where—
Will: What cell phone tower you were near, right?
Dan: Yeah. So you can kind of look at someone's account and be like, "Okay, on August 20th, what towers was this person connecting to?" And like, "Well, they were connected to this tower on 13th Street, and then 5 minutes later, their phone switched over to the tower on 17th Street." Right.— and you can get a pretty good account of the movements of that device using this data.
Will: All right. And there the answer was yes in an opinion by another 5-4, that opinion by Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Yep. And then with dissents at the time from Kennedy, Thomas, Alito, and Gorsuch.
Dan: And there the Court does not go down a property path. It goes down a privacy, Katz path. —and sort of says, look, when the government goes and gets this information, that you have an expectation of privacy in that information. We don't care that in some sense you're voluntarily disclosing it to the cell phone company by using your phone. We don't care. We're not going to apply the third-party doctrine to this.
Dan: That is a search. Right. It's 5-4, but Justice Gorsuch has this weird dissent where he is deeply sympathetic to the Fourth Amendment interests here. And it's like, oh, if we start— you can go down this path and if we were to follow the third-party doctrine, we'd have no privacy. But he doesn't like the Katz test. He says, I want to keep doing this property approach, maybe a more general kind of positive law type approach, um, you know, which is an approach that you've advocated, uh, with James Stern in your scholarship.
Dan: He dissents because he says, like, you know, the parties didn't give me enough to work with here. You know, Carpenter, you should have made better arguments to me, and Next time, someone should make a better argument, so I'm going to dissent. Do you want to just quickly give people your positive law model?
Will: Well, sure. We can do it somewhere. So Justice Gorsuch, in his dissent in Carpenter, says the third-party doctrine is dubious. Okay, sorry. One way to think about this that James Stern and I argued for in an article written 10 years ago now is to ask,— in a way to try to unite the property model, the trespass model, aspects of the privacy model, aspects of a lot of different models, by asking instead the question, are the government officials doing something that only government officials are legally allowed to do, or are they doing something that anybody can do?
Will: So the thing we argued that made property a paradigm case of a lot of early Fourth Amendment cases is that normally people can't come on your property without your permission. Yet when it's the police saying, "No, no, you got to let us in because we're the police," that's the kind of thing that has to have a warrant. Not because property is special, but because legal rights are special.
Will: So if you had data that was shielded by something other than property and the police were doing the same thing, saying, "Knock, knock, custodian of the data, you got to let us in because we have a warrant," that would be a search just as much. It also lines up with what warrants were. Part of what a warrant was was some kind of immunization or authorization from the ordinary rules of law.
Will: You've got a warrant in part to stop people from suing you later and saying what you did was unauthorized. And so we try to develop historically, textually, logically, et cetera, the idea that what the Fourth Amendment is doing is regulating the dispensation of special exceptions from the law to the police. Okay. Those have to be reasonable.
Dan: I think it's a great article. I think it's the most important Fourth Amendment article written in the last decade or two. And the thing that's interesting is Gorsuch looks at it and he says, look, there's a lot unanswered questions about a kind of property type approach. Do you look at the rules from 1791? Do you look at— do the Baude-Stern thing and look at what the rules are today?
Dan: I'm not really sure. We need to start figuring this out. Yeah. Okay, so he doesn't have all the answers, right? Um, that's the setup. I've— I'm going to come back to this once we get to his opinion in this case. Okay. Oh, can I say one other thing about Carpenter? Which is that the Court says in Carpenter, it is a search. The Court does not tell us exactly when it becomes a search because the Court doesn't say it's a search instantly when the government obtains this information.
Dan: We're just going to say— it says, "We need not decide if there is a limited period for which the government may obtain an individual's historical cell site location information free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing 7 days of CSLI constitutes a Fourth Amendment search." Right.
Will: Okay. And so just in terms of— in, like, Luddite terms, tell me if this is wrong— in Carpenter, it's one person's location data for a long period of time.
Dan: Yes.
Will: And here it's a lot of people's location data for a short period of time.
Dan: Yes.
Will: So the question is just if 1 times 7 is enough to be a search, whether 41 times 0.5 is also enough to be a search.
Dan: Yeah. The thing to note about what Carpenter does, and it's similar to what Justice Alito wanted to do in the Jones GPS case, is it's something that Orin Kerr has, I think, usefully described as the mosaic approach, which is to say, look, there seems to be— he's not endorsing this, but he sort of says there seems to be this approach that's on the table where the Court might say, "Look, any one of these things in isolation isn't a search, but once you start racking them up, start building out the mosaic Byzantine style, it starts to become searchier at a certain point." Right.
Will: And the government doesn't like this. The government wants to say, "Look, if we just had a guy hanging out near the bank looking and seeing who was there" one at a time, that wouldn't be a search. And so under Carpenter, you'd also tell us that accessing one person's data for an hour, maybe it's not a search. And if one person's data for an hour is not a search, then two persons' data for an hour is not a search, and three and four.
Will: And you just, zero plus zero plus zero plus zero equals zero. Yeah. Whereas the mosaic theory is like, actually there's 0.01s, and so you add up enough of them, they eventually make a number or a picture that you worry about.
Dan: Yeah, and, and so that opinion very much leaves alive the possibility that, you know, this mosaic approach, you know, is a real thing, right? Okay, I think that's a lot of setup, but I think it's the right setup.
Will: Okay. Okay, so armed with Carpenter, is Chatrie just Carpenter or just an extension of Carpenter?
Dan: Well, I mean, it's obviously not for the reasons you just described, right? It's a different, uh, first of all, it's a different type of data. It's a different timeframe, and it's physically constrained in a way that the Carpenter search was not. But Justice Kagan is going to treat this as somewhat dictated by Carpenter, but then is going to go beyond Carpenter, I think, in a very important way.
Will: Okay. So dictated by Carpenter. So first she says, look, cell site— these two kinds of location data. Are very similar. And if anything, this location history is even more, uh, intrusive than before. So it provides more data.
Dan: Can you actually show, like, what floor on a building you went to? Yeah, you know, it can narrow you down to a smaller kind of square foot range, right?
Will: So, okay, it's, you know, a fortiori on that aspect. It's a fortiori from Carpenter. Then we have the question of, you know, what about the fact that it's a short amount of time? Does that do enough to distinguish it? And she says no.
Dan: Yeah, and quite decisively no, in a way that I think shuts the door on a mosaic approach, right? This is on page 20. So she says a couple things. She says, first, look, even a short period can provide a lot of very intimate data. Yeah. Still more fundamentally, we have never understood Fourth Amendment protections as kicking in only once an intrusion goes too far.
Dan: Where the Fourth Amendment applies, it applies regardless of the quality or quantity of information the government obtains. Okay. So I think this means that the kind of question reserved in Carpenter, obviously the Court is not saying that 100%, but I think that means that I think that means that any amount of cell site location information would be a search as well.
Will: Although it's interesting because here she's projecting the mosaic theory sort of in the other direction. Often the mosaic theory is articulated by people who say, "We've already held that this little thing is not a search. Does it follow that adding up a bunch of those little things is also not a search? And here, I mean, her examples are just all, well, look at all these little things that are searches.
Will: Yeah. Now, I agree with you logically. I think it should work in both directions, but I wonder, will the Court still try to use the mosaic theory to distinguish some prior non-search precedents?
Dan: Yeah, and I think that it matters because in some of these cases, for exactly the point you just made, the government had wanted to say, look, you know, we could tail you, right? We could have a police officer follow your car for an hour every— that wouldn't be a search because you're just— you're, you're, uh, exposing your movements on public roadways. That's not a search. So it can't suddenly become a search if we just do that for, right, 60 days or whatever.
Will: Now, is it— is there a Supreme Court case about tailing? That holds that no amount of tailing, no matter where on public roads, is a search, or is that just something we assume?
Dan: I don't know if there's that case exactly. There is one of the beeper cases where the Court said— basically, this is a case where the government had sort of contrived to put this beeper in these chemicals that were being used for drugs, but did so in a way that wasn't trespassory. They didn't sneak in and break into the person's car. And so the Court said in that case, to the extent the government is just using the beeper to track someone's movements on public roadways, that's not a search. So I think it follows from that, right?
Will: Well, the movements might be— so I'm just wondering, because somebody actually tailgating you learns more than just your movements, of course. They learn— imagine, this may not be as fanciful as it sounds now, imagine that Donald Trump says to the head of the FBI, "So-and-so is my enemy and they're annoying me. I want you to follow them all the time. Stick on them like glue with your cell phone camera running.
Will: Now, of course, if they go in a private place, you got to wait outside, but I want you to wait there until they come out. Everywhere else they go, go in the public bathroom, I want you to follow them and stand at the urinal next to them, et cetera." And the person, after a week of this, goes to court and tries to get an injunction.
Will: "Get this guy to leave me alone." It it's not obvious to me that he would fail, but maybe it should be.
Dan: Yeah. I mean, I wonder whether the problem there is is less Fourth Amendment problem, but maybe kind of like harassment problem or something.
Will: Well, so at the risk of stomping over the positive law model again, the positive law model would say Indeed. I think in lots of jurisdictions, that kind of like extensive and annoying and out of the ordinary intrusive following somebody even in public often at some point becomes a tort under anti-stalking laws and things like that. So at that point, that would be a search.
Will: Now, we don't talk about it very much because usually the tailing comes up in cases where it's not that, where the tailing is something that a private person would obviously be allowed to do. And so the courts may without thinking about it just say, "Oh, yeah, sure. Your motions in public." Because in general, I'm allowed to be in public looking at what's going on, even allowed to follow you around a little bit and be creepy.
Will: But the positive law model would draw on like the precedents and law I might already have about when that crosses the line. Harder for other methodologies, but that's okay. Okay. So we've established that we followed Carpenter in saying that the data is important. We have transgressed Carpenter in saying that even a little bit of the data is just as important as a lot of the data.
Will: Then I guess the last move, is this a separate move, is the third-party doctrine. The Court says now the government's other counterargument is, look, you gave all this to Google. You hit the button on your phone that said you know, "Share my information." As in Carpenter, the Court says, "No, that can't be how it works." Okay.
Dan: This has, I think, pretty big implications, right? Well, okay, why? Because I think it's going to suggest that all kinds of things the government does that involve acquiring private information from a third party, those are now searches, and those are searches like instantly, right?
Will: Yes. I mean, we don't know exactly what kind of— so location information is a search instantly. We still don't know whether other kinds of information are protected. So I guess the government used to be able to try to defend these things on either it's a safe kind of information or it's just a little bit. And now it seems like they're going to have to mostly try to argue on safe kind of information.
Will: Is that right? So like, okay, your location is very sensitive, but if they just want to know were you or were you not texting this drug dealer? Like the numbers you've texted. Maybe they get to refight the battle of that's private or something like that.
Dan: Is that— Sorry, say that again.
Will: So suppose the government wants not data about your location, but data about whether or not you have communicated with a given phone number. Isn't that another thing they often look for? Potentially, yeah. Yeah. So post-Chatrie, they will still be able to argue anyway that that kind of data is not as sensitive as location data.
Dan: Yeah, I mean, there is some— just, you mean in terms of who?
Will: Yes, just not the content.
Will: No, just the fact. That's often the thing, the kind of data the government often tries to get through third-party doctrine is, did this person communicate with that person? Did this phone number call that phone number? We don't— not the contents of the call, but—
Dan: yeah, there is precedent saying that's actually one of the classic, you know, Smith v. Maryland, one of the classic third-party doctrine cases where the Court says you don't have an expectation of privacy in the numbers you dial. Right.
Will: And that might still be true even if you dial them with a cell phone or a computer. Yes.
Dan: And it could be that same principle could apply to the recipient of your text messages, although it's not exactly the same thing. Right. But so yeah, I mean, I think that obviously, you know, we still need to figure out whether the acquisition of the information by the government is a search, right? But I think that, you know, now we know tracking your location in various ways, I think, is a search, right?
Will: And do we know exactly why the third-party doctrine doesn't apply? So one option would be the third-party doctrine doesn't apply to computers and phones because, I don't know, we don't want it to. The Court says some things that are more specific. They talk about how it's not that voluntary because Google's constantly nagging you to turn it on and you don't really have a choice.
Will: They talk about they have several— It was just what everybody does. So do you have a sense of what the— They clearly are rejecting the third-party doctrine argument here, but would there be times that you turned your location data over to a third-party provider in a way that counts as—
Dan: So I think clearly yes. So first of all, the Court is clearly not overturning the third-party doctrine as a categorical matter. Right. The original case still stands. I don't think the Court is saying anytime computers come into play, there's no third-party doctrine, because I could imagine situations where, let's say, someone uses Strava, which is kind of like a biking and running app.
Dan: Oh yeah. That, you know, you can, you know, put online, put your routes, right, and your times. And amusingly, this— This has been used to like accidentally reveal the location of like military bases and things because soldiers are using it. And I think, you know, even if you're using Strava under like a username that isn't clearly tied to you, I think there might be a good argument that like you've sufficiently exposed that to the world, right?
Dan: That you don't have an expectation of privacy. So I don't— I mean, you could make the argument, but I don't think that would conclusively—
Will: So what about like Venmo? So what if my Venmo purchase is public, which for some reason they are by default? Yeah, I've turned that off.
Dan: And I love how there's all these scandals where someone is like, "Venmo, underage prostitutes." Right. Well, that's just it.
Will: Yeah. So I have my Venmo on, and then I Venmo somebody and I say, "For heroin." And some cop notices that. Does Justice Kagan say, "Well, look, lots of people share their data," or would we say no?
Dan: I think that my instinct is that it wouldn't apply there, right? Because you have shared it not just with the service provider and not just in a way that everybody has to do, but you've gone on social media and exposed it to other people.
Will: Well, right, but definitely not self-consciously or intentionally, right? I've just done the same stupid thing everybody does when they sign up for Venmo of not realizing that their purchase history is public. So it's not like I've opted in, if that's the relevant test.
Dan: Yeah, I mean, maybe there's some assumption of risk there. Maybe you should have known. Because you can see every time I open up the Venmo app, it's always like I see some random babysitter I hired a year ago and paid over Venmo. It shows her paying her friend tequila, and I'm just like, I didn't need to know that. Right.
Will: Although it's funny, it only shows that to the extent you are friends with other people who have also not turned it off. So either if you don't have any friends yet, you might not see that, and if your other friends are sensible and if all, like, they know not to take notes or not to make their Venmo heroin deals public, then you might not realize.
Dan: Yeah. No, I mean, yeah, these are interesting arguments. And so I don't think this case is going to resolve that, but I think that this is something that lower courts will have to deal with. I mean, I do think that going forward, lower courts are going to want to err more in the direction of saying stuff is a search. Yeah. And it's interesting because for a long time, there wasn't really— there was this idea that the government isn't doing the searching, right?
Dan: Here, they're just getting, let's say, a subpoena or something like that. That doesn't really implicate the Fourth Amendment in the same way. Either it doesn't implicate the Fourth Amendment at all, or if it does, Fourth Amendment only applies very loose limits. On third-party subpoenas. And that is not the case anymore with respect to this kind of data collection.
Will: All right. So we should talk about the separate opinions in a minute, because I think I like all of them. You said this is a big deal. It seems to me it's a big deal for two reasons. One is the doctrinal point that a little search is just as much of a search as a big search. So the anti-Mosaic theory and the small amounts of data thing matters.
Will: That's going to be huge, because that would've been the most natural way to limit Carpenter until now. The other is just in making clear that a majority of Justices in the Supreme Court are Carpenter people. Yeah. Because the Carpenter majority required some Justices who are now gone that included Justice Kagan and Chief Justice Roberts, but did not include Justice Kavanaugh. Yeah. And so until this opinion came out, you might have thought the only way to get a sort of majority on Carpenter issues is for them to find their way to Justice Gorsuch or Justice Barrett.
Will: And we don't know yet what Justice Barrett thinks, and Justice Gorsuch is going to have his own views. And so Justice Kavanaugh's willingness to join in full, a sort of full-throated application of Carpenter is also just— Yeah. Yeah.
Dan: And good. I mean—
Will: I'm not against it, just a big deal.
Dan: Yeah. I think it's very good because I think the Court is good for the Court to recognize that if you keep trying to mechanically apply some old rules to, as you use the phrase and as Justice Kennedy liked the phrase, the cyber age. The Fourth Amendment isn't going to be worth much. And that's also something that Justice Gorsuch believes and has said, although he's going to have a different solution to it.
Dan: So yeah, I think it's good, and I think it's going to tell lower courts, look, you need to start with Katz, you need to start with privacy, and whatever you, you know, physical world, pre-digital world rules that you were going to apply, you need to not reflexively apply those, right? And you need to say, you know, basically Is the government getting this information?
Dan: Is this really intruding on someone's privacy? And you can't just say third-party doctrine. You can't just say short amount of time in the Court. There are 5 Justices who care about this, who are worried about it. So yes, big deal. Okay.
Will: And now 2 things people have said to me who told me this was not a big deal. So I just want to run them by you so you can tell me why they're wrong so I can tell them. One thing they said is there are no geofence warrants anymore. It's a dead practice. And there's quite a footnote about this that like Google's the main person, the main entity that responded to these, and Google now doesn't have my location history anymore.
Will: They've stuck it all on my phone so that they can't be asked for it. And I take it the answer is, well, that's fine, but the point is the principles, the principle about the anti-mosaic principle is very important to everything, not just geofence warrants. Yeah.
Dan: I mean, if the Court decided 6 Fourth Amendment cases a year, you might say any given case is just about that narrow fact pattern. But the Court decides a case of this magnitude in the Fourth Amendment, like, you know, once or twice a decade. And so lower courts should be, you know, following the reasoning where it leads. So, okay, yeah, geofence maybe not, but there's tons of other things that might look like this.
Dan: And so I think that, you know, There are other devices and other pieces of software that people might own that might be storing that data on the cloud. So for example, I have the Volvo app for my cars, and it has location history on it. Uh-huh. And I can sort of see where my car was over the last week. I don't know where that information is stored.
Dan: I believe it's stored on the cloud. Uh-huh. Right? Because when I switch to a different phone, the information is still there.
Will: Yeah. Other than my phone, which I just have made my peace with, I try to turn off all these things. We don't buy smart devices. And it's very hard now to buy a microwave that's not smart and trying to talk to the cloud for reasons that are unknown.
Dan: You're sort of more worried about this stuff than I am. You won't use Face ID on your phone, right? Because you're worried— that the government might be able to—
Will: The Fifth Amendment applies to your passcode and not to your face, Dan.
Dan: That is not settled. That is not settled.
Will: No, but that's obviously the right answer, isn't it?
Dan: No, I don't think that's the right answer at all. I think that's the wrong answer. I think the Fifth Amendment applies to testimony where you're being asked to say something that conveys information. So I think that the Fifth Amendment applies to the extent that you handing over the passcode functionally testifies to the fact that you know the passcode. But in a situation where we can independently establish that you know the passcode and the only question is, do you have to give it up?
Dan: I don't think that's a Fifth Amendment problem at all. I think that's actually pretty clear.
Will: But how will they ever establish that I didn't forget the passcode?
Dan: Well, so first of all, the fact that you know the passcode might not be something that's going to be used as evidence in any way. Right.
Will: No, but I just mean, suppose they say you have to unlock your phone now, and I say I don't remember the passcode.
Dan: Well, I mean, that's a separate question, right? I don't think that makes it a Fifth Amendment violation. I think that might make it a question for contempt, right? Okay.
Will: Putting aside the Fifth Amendment, I guess what I mean to say is— You have forgotten your passcode, but you can't forget your face.
Dan: That's true. I mean, you could risk civil contempt and just like spend forever in jail because you refuse to give your passcode and you insist that it’s you don't know it, even though—
Will: I've really forgotten it.
Dan: You may have, but—
Will: I've forgotten a lot. I want to say, Dan, I have forgotten most of my passcodes.
Dan: To your phone? I don't believe that.
Dan: I don't believe you routinely forget your phone passcode.
Will: Many of my devices I can no longer log into, and so I just you have to use the various recovery things.
Dan: I believe that is not true of your iPhone. Well, we'll see. I believe that has never happened with your iPhone.
Will: It has happened regularly with my iPhone. Um, it may not happen.
Dan: Do you use your iPhone like 20 times a day? I mean, we text all the time.
Will: Well, you wonder why I'm slow sometimes, Dan.
Will: I don't believe this.
Dan: I don't believe this is— you're just trying to set this up for future litigation.
Will: I'm not saying it's happened at this instant. I'm just saying it does regularly happen. I don't believe that.
Dan: I'm gonna speak to Judith about this and see.
Will: Dan, I have more enemies than you do, so I have reasons to take this seriously.
Dan: That's true. You were a prominent Trump critic.
Will: All right. So the other question is, what about the Stored Communications Act, which does not seem to be mentioned here, which I vaguely recall is a statute that does a lot of this stuff? So I have heard it said, "Oh, this is pretty silly because all the Court is doing is saying the Constitution requires what the Stored Communications Act already requires. And since nobody will ever change the Stored Communications Act, it doesn't matter." Is that true?
Dan: I don't think that's correct. Okay. I think that in Carpenter, the government had complied with the Stored Communications Act, but its requirements are less demanding than a traditional warrant.
Will: Okay, but in Chatrie, do geofence warrants comply with the Communications Act?
Dan: Uh, well, I don't think we know because I don't think we know— have any idea what, uh, whether even a regular warrant would be okay here, right? Okay, so I don't know. I mean, I think it's unclear. Okay. Sometimes the government doesn't use the Stored Communications Act, but my understanding is that it does impose a process for the government to get this information, but it is less demanding than the traditional warrant requirement. Okay.
Will: So it's possible that now that we said this is a search, even though we don't ask the next question, it's possible that in Chatrie 2, somebody will say, even though the Stored Communications Act also requires something before you can get this kind of geofence warrant, it's not good enough as a constitutional warrant, and thus it like requires more than the Stored Communications Act. Is that okay? Are these even stored communications? This is part of what I don't even understand.
Dan: Yeah, look, I'm not deep into that statute, so I don't know.
Will: All right, fine. Okay. Should we talk about the other opinions before we have to go?
Dan: Yeah. And there is something from the majority that we're going to want to circle back to once we deal with the dissent, the principal dissent. Yes. Good. But let's hold off on that. Yeah.
Will: So, okay, Gorsuch— are we skipping Jackson and Sotomayor? Oh, I guess we should not skip them.
Dan: Okay, we can just say they would—
Will: they wanted to say that it lacks particularity.
Dan: Yeah, right. It's a short, short opinion. Yeah. Uh, so maybe, you know, who knows, maybe there was a draft that they joined that did that, and then that had to get withdrawn, and so they decided to write— Jackson decided to write this. Yes. Yeah. Um, but also trying to kind of like nudge the Fourth Circuit, which is going to have to deal with this on remand.
Dan: I had a random question. Do you remember the answer to this? If an en banc court— this was an en banc decision by the Fourth Circuit that split evenly— if a case is remanded by the Supreme Court back to the circuit, does it go to the en banc court again, or does it go to the panel?
Will: I believe that is a question of circuit practice. Okay.
Dan: So different circuits might approach that differently.
Will: I believe the ordinary practice is to give it back to the panel. The 3-judge panel. The original 3-judge panel. Yeah. This is sort of related to 2 other— So I think there's circuit variation on whether when a case goes en banc, whether you vacate the panel opinion or not.
Dan: Oh, really? I thought that was standard. Oh, I didn't know that, that some of them didn't do that. It's a question of circuit rule.
Will: Okay. And I'm not sure where the Fourth Circuit is on that. I don't think the Fourth Circuit vacated the original.
Dan: Oh, interesting. Okay.
Will: But I could be wrong.
Dan: Now, you and you and Marin Levy are working on an article about circuit precedent. Does it deal with any of those issues, or is that outside of scope?
Will: It deals with some of the circuit variations on en banc issues. So I’m not tring to deal with I mean she already has written a book with co-author Judge Newman on the lots and lots of the unwritten variation in circuit practices and procedures. Yeah. And the important ways in which the unwritten law of circuit procedure shapes how the different courts of appeals work. A lot of these things are me, as usual, trying to ride on the coattails of my co-authors. Okay, so there's the remand question.
Dan: They would deal with that. Gorsuch? Forget about that. So Gorsuch is going to do Carpenter, but unlike Carpenter, here he feels like he got enough to rule for the defendant using his alternate path approach, his let's not do Katz. Kind of reiterates some of the points about— Katz isn't great, third-party doctrine isn't great, but I'm going to do a kind of more textual, you know, positive law property-type approach.
Dan: So he says, and this is in Part 2 of his concurrence on page 4, he says, I would consult the terms of the Fourth Amendment, asking first whether location history qualifies as one of Mr. Chatrie's papers or effects, right? That's one of these specifically enumerated things in the Fourth Amendment. And then asking whether the government searched those papers or effects. Okay. And he says, you know, we still do this sometimes.
Dan: Okay. And he actually mentions sometimes litigants forget to do this, right, as in Carpenter. But here, Chatrie didn't forfeit that. He began his brief with this. Okay, so he says it's effects, and he doesn't resolve the papers question. Yeah, he says it's effects, and he says it qualifies as his personal property. Mm-hmm. And why he does this, a little unclear, but he sort of says, "Okay, first of all, look at the agreement with Google," which Google says, "This is your information."
Dan: He was free to review and edit it. So he had, like, control over it. Yeah. Right? In a way that I think is not true of cell site location information. Okay. And then he looks to statutory and case law. All right. Yep. And here he looks to Virginia, which is where this occurred, right? But he doesn't just look at Virginia. He looks at Texas law, for example. He looks at some precedent from Colorado, Arkansas.
Will: He says he's trying to establish that Virginia is not some outlier. Right. And this is interesting. Of course, I know you're setting this up. So under the strict version of the positive law model, the relevant question is the actual law applicable to this thing, right? Yes. What is the law of Virginia? In this jurisdiction. Yeah, exactly. Or wherever that is. So Virginia, which is the relevant state, is it the case that an ordinary person, a private person can't get this data?
Will: And so he starts there, but then he pivots to say Virginia's not an outlier, as if it would matter if Virginia was an outlier, as if he would be unwilling to say, "Oh, okay, it's a search in Virginia and not elsewhere." There is a competing approach that, of course, is yours that attempts to use the positive law model in maybe a way that's more attractive by making it more uniform and more general. You want to talk a little bit about that?
Dan: Yeah. So in my article with Danielle D'Onfro, "The General Law and the Fourth Amendment," Yale Law Journal from, I guess, 3 years ago. We say, you know we start, we frame it around Justice Gorsuch's questions in Carpenter. We sort of say, there's a third option, right? You don't need to stick with 1791, and you don't need to stick with the specific law of the jurisdiction where this thing happened.
Dan: Instead, you should do a kind of general law approach. And by general law, I think we're using a slightly thinner definition of that than you do in some of your other work that's been really important in surfacing this idea, which is we sort of treat it as generic versions of the law. Yeah. This is something the Court does in very serious— like in federal contracting law, the Court has to define what counts as a contract, and it sort of looks at different jurisdictions and comes up with a distillation of contract law.
Dan: Yeah. Our claim is that the Court should do that here with some of the property type and positive law type concepts. But also, that is what the Court does. And I think that that descriptive claim is correct pretty clearly. So if you look at Jones, where you have 5 Justices for doing a kind of property law approach, they're not specifically dialing into Maryland and DC property law.
Dan: They're kind of reasoning from more general, is this a trespass principles? Likewise, there's another case we haven't talked about called either Jardines or Jardines. The Chief Justice says Jardines, but I'm told maybe it should be Jardines, where the question is, can the police bring a drug-sniffing dog onto your front porch to figure out whether you have drugs in your house? Mm-hmm. And the Court, again, per Justice Scalia, says no, and it says this is inconsistent with the kind of implied license that people give.
Dan: It's a trespass on your property because it's inconsistent with the implied license you give to let people come to your front porch. You give a license for people to come to your front porch, to knock on the door and try to sell you Girl Scout cookies or whatever, but that doesn't extend to people coming onto your front porch to use a dog to sniff for drugs.
Dan: And again, the Court there does not look at like Florida-specific, you know, property law of license. The Court sort of does something more generic, right? And I'm going to say— and you're going to probably push back on this— I'm going to say Justice Gorsuch is now settling on that third approach that he didn't seem to put on the table in his Carpenter dissent, because he seems to say— he seems to look— he starts with Virginia law, and so that is a data point in your favor.
Dan: But he seems to think, you know, let's kind of look at some other states, right? Let's— what's the approach here? And I don't read this as saying that this is he agrees that this is a search in Virginia, but not in other states, right? He seems to think that you can do a more general, slightly more hand-wavy analysis of the personal property question.
Will: So I don't disagree with that, but I actually think he's even more hand-wavy than either of us. Okay. The positive law question, and I think the general question, is ultimately, like s the action at issue something that's forbidden by positive or general law? Yeah.
Dan: Is this a trespass, however defined, right?
Will: Right. Right.
Dan: Or some other kind of intrusion. Right.
Will: I think he instead is just asking, is it property? Yeah. Once it's property, his search test is just, did you look over or through it for the purpose of finding something? Yes. Yeah.
Dan: Basically, I think that's right.
Will: For instance, if I leave a sheaf of papers out on a picnic table, that's my property. Whether it's a violation of my property, whether it's trespass to chattels for you to come look at the paper, It might be complicated. It might depend on you looking at the top paper or other papers.
Dan: Yeah. So this is like page 7 and 8 where he says, "Government conducts a search when it looks over or through for the purpose of finding something." Right.
Will: And I think also he sort of makes the effects thing harder than he has to. So whether data is technically property is an interesting question. I'm not even sure he's totally right that it's property in every sense we care about. I don't know that when you go into bankruptcy, your creditors can seize your location history.
Dan: Yeah, that's a good question.
Will: I don't know that I can sell it or alienate it or trade it. It's true, mostly what it has is a protection against a certain kind of intrusion, which applies to the government too. Now, I think he's doing that because this makes the whole thing seem more textualist. Now you just ask effect and search, which have the advantage of being the words in the Fourth Amendment. They just have the disadvantage that it's not actually clear that his questions make any sense in light of them. Yeah.
Dan: No, that's a good point.
Will: But yeah, I agree. To the extent he is doing anything like what either of us want, it's more like what you want than I want. But I want to just disown Justice Gorsuch's dissent here and give it to you, Dan.
Dan: Okay, great. I'll take it. So then we have Justice Alito, principal dissent, and Justice Thomas is going to join for part one. So what's part one of the opinion is him going on at length about how the Court shouldn't have granted cert in the case.
Will: I loved this part of the dissent. So why not grant cert in the case? Well for starters, when the Fourth Circuit split 7-7, the en banc court, a bunch of them wrote separately to make clear that whatever the answer, the good faith exception to the exclusionary rule would apply, right? Yeah.
Dan: Which seems eminently plausible to me, at least in the broad way the Supreme Court has interpreted that exception. Right.
Will: And if it's not plausible, the Court has not said anything to make it less plausible. It's fine to say the lower court said this, but it's wrong. But normally, If there's a lower court opinion that says there was no constitutional violation and also there's qualified immunity, it would be odd for the Supreme Court to take the case and say, "Oh, actually there was a constitutional violation.
Will: Now go decide if there's qualified immunity," because the lower court's already decided that there's qualified immunity. Yeah. So I take the point that that makes it a very odd thing to take. And he keeps calling it an advisory opinion.
Dan: Right.
Will: Well, I mean, it is in a sense.
Dan: It is, but although not in the jurisdictional sense, which he's not saying, and the majority is acknowledging that he's not saying. Okay.
Will: So he's not saying it's in the jurisdictional sense, but is it? So one of the requirements of standing is redressability, is that the— and like usually on appeal, we ask, will the appeal redress your injury vis-à-vis the loss below? Mr. Chatrie is being criminally prosecuted. Of course, as a defendant, he has standing. But to make any particular appeal, don't we have to ask, will this appeal in any way redress anything for you?
Dan: So I guess it depends a little bit on whether you think like there needs to be a reasonable chance or some chance. Okay. So in footnote 4 of the majority that responds to this, sort of says, first, it's not advisory in the jurisdictional sense. Okay, fine. Apparently, the dissent's objection is that we today decide a question involving the Fourth Amendment where the odds are strong.
Dan: So says the dissent that the Fourth Circuit will eventually, as it did before, resolve this case on exclusionary rule grounds. But to repeat, the Fourth Circuit may now consider anew, after a review of our opinion, how the good faith exception applies here. Yeah. So the Court seems to be saying, "Maybe there's a good chance. We're not going to tell you there's a good chance, but we want a do-over on that question."
Dan: And I don't know, maybe there's going to be some reason that the Fourth Circuit would say, "Gosh, under these circumstances, we should not apply good faith." Okay.
Will: So at first cut, I thought that was ridiculous because sure, they could, I guess, return to this other thing they decided that doesn't seem— but there's no reason to think they would redecide it. Yeah. Now, is this something the Court has done before? We talked about this a few terms ago on the show, there was a case NRA v. Vullo, one of these First Amendment cases, First Amendment jawboning cases where the government pressured the NRA's banks not to talk to it, where the Court I think did the same thing.
Will: The Second Circuit had said no violation and qualified immunity, and the Court took it and was like, "Well, who knows? Maybe they'll reconsider their qualified immunity holding." And they didn't. But there is some precedent for it. And I do think Justice Kagan wrote the opinion, as in the most sort of pro-exclusionary rule direction you could, given how little she resolves. Yeah. The good faith question is in part about was this established by preexisting precedent?
Will: And trying to make this as much as possible follow from Carpenter at least does make it more possible than you otherwise could. And this is why Justice Kagan's writing in this is so impressive, because I'm sure she was thinking about this. More possible than you otherwise could to now say Oh, now the Supreme Court has told us what they meant in Carpenter.
Will: We see that they were right about what Carpenter meant, and thus this was not a good faith interpretation of Carpenter, whose meaning has been clarified by Chatrie.
Dan: And also, you could then go on, having done that, and then say, yes, there was a warrant, but that wasn't enough because there is an exception to the good faith exception. For warrants where basically the warrant is facially invalid. Right. And so you could then go on and say, "Look, this is a general warrant, and so officers shouldn't have relied on it."
Dan: So there is a path. And to the extent that anyone below was like, "Okay, we should err in favor of good faith to avoid this really hard constitutional question," that's taken off the table, right?
Will: Yes. Now you can't avoid the constitutional question. That's right. The search question is answered, and so now having answered that, maybe a judge might be like, "Okay, well, you know." Although you could still avoid the particularity question by deciding on a good faith grounds.
Dan: Yes, they could still do that.
Will: Yeah. Now, and it's also, my memory is that Davis also contained a possible reservation that the good faith exception to the exclusionary rule not apply to people named Davis or not apply to if you are the specific person who won the specific Supreme Court case, you should get to have the exclusionary rule apply to you even though it doesn't apply to anybody else similarly situated.
Will: Because otherwise there'd be a risk that the Supreme Court would never be able to take a case and that all Supreme Court opinions would be advisory opinions. So the Fourth Circuit could also go with that on remand. They could say, well, look, the good faith exception applied before your name was Chatrie, the prevailing party in a Supreme Court case. And that view is ridiculous in various ways, but it's something the Court has played with before.
Dan: Which, as I recall, was something that Justice Kagan sort of put on the table in the Davis argument itself. Yeah, just sort of said, look, you don't really need a broad rule like this. The thing that you really care about is a specific exception just for you, right? But the Court, uh, doesn't do that because it wasn't applicable there. I mean, Davis wasn't the guy who caused the Court to reconsider its precedent in this case.
Will: All right, now then, the last thing that Justice Kagan doesn't say— and this is just where I'm wondering if I'm confused— Justice Kagan says, "The odds are strong, so says the dissent, the Fourth Circuit will eventually, as it did before, resolve this case on exclusionary rule grounds." Is it actually true the Fourth Circuit ever resolved this case on exclusionary rule grounds?
Dan: Yeah, my understanding was that they didn't, that it was half.
Will: Well, my understanding is they split, the en banc court split 7-7 with a bunch of concurring opinions. Yeah. And even, I haven't counted to see if there are 7 concurring opinions, or the point is that even some of the people on Chatrie's side of the of the search question were on the concurring opinion side.
Dan: Yeah, maybe that's the case. I didn't go through and—
Will: The Fourth Circuit panel opinion by Judge Jay Richardson, a great judge, finds no search and does not talk about good faith as far as I can tell. And the Fourth Circuit en banc, the only thing the court did was issue a per curiam ruling that says the judgment of the district court is affirmed. It has no grounds. It has no reasoning. It's just a per curiam affirmance. Yeah. And then it's full of a bunch of separate talk.
Dan: Yeah. Yeah, no, that's reasonable. So it's more like you're sort of saying, well, as a practical matter, there's enough of them that are going to say this. Well, maybe they'll reconsider it. Yeah. I wonder whether she had wanted to include that carve-out, the language about a possible carve-out in Davis that you just mentioned. That would that would be a nice place to include it, but there may not have been support for that.
Will: Yeah. I think I assume that everything not in this opinion couldn't be in this opinion because she has done everything. She understands exactly what she's working with. Yeah. There is this broader sense though in which like— I mean, it's true that this opinion is of very likely no importance to Mr. Chatrie and very minimal importance for the issue of geofence warrants more broadly, there being no more geofence warrants.
Will: And the real reason that the Court took the case and the real reason everybody cares about the case is just that it expresses a general advisory opinion about the Court's approach to computer and digital searches. And the truth is just, we think that's good. We think the Supreme Court doesn't take very many Fourth Amendment cases. We could use some advice, and this advisory opinion is nice. Yeah.
Dan: And I think that's okay. I mean, I think that this is the kind of law declaration model of the Supreme Court, as the language of the casebook, Hart and Wechsler's The Federal Courts, uses. But yeah, there's this interesting Part 1B criticism of the majority in Justice Alito's opinion, which he basically says, "We shouldn't have granted cert because this case is really unimportant, and also this case is bad because it's really important because it's going to have a lot of consequences." Right.
Will: Well, again, there's a way in which you're saying this specific case is unimportant, and you are now using it to put into the US reports in the form of precedent extensive musings that will that are very disruptive. Yeah. I mean, that's not false.
Dan: Yeah, it's not, but I also think it's good. I think that the Court has really not provided enough guidance. Lower courts are really struggling with these questions, and I think it's good to give us some more data points. And Orin Kerr has complained about how few Fourth Amendment cases the Court has decided. It's made teaching investigations a pretty easy lift in recent years.
Dan: You don't really have to update your materials. But I think this is good. I mean you know I Next spring, I think I will teach this case instead of Carpenter. I think this should replace Carpenter. Yeah. Okay, and so Justice Thomas only joined that part. He does not join any discussion of the merits. Right.
Will: And then on the merits, Justice Alito says, "This is wrong. This doesn't follow from Carpenter. I wouldn't do this," et cetera, et cetera. Because Justice Thomas in Carpenter had signaled some interest also in the property or positive law model, right? Yes.
Dan: Although he was he was more clear that Carpenter should lose. Right. Right. So I think he takes maybe a more kind of originalist, narrow, cramped vision of the property type model.
Will: Yeah. Although it'd be interesting to find out. It's possible that he read Justice Gorsuch's concurrence and thought, "Yeah, maybe." Yeah. But it doesn't matter because I don't think we should be doing this.
Dan: Okay. And so on the merits section, Justice Barrett is joining in part. And can we just try to break down which parts she's joining and which parts she's not? So part 2A, she does not join.
Will: She joins 2B, 2C1, and 2C2.
Dan: Okay, so 2A, she doesn't join, which he basically says this isn't a search. Government didn't transgress any rights in his papers or effects. Okay, can't do it. Okay. And then 2B is the kind of Katz part, and he says it's not a search under Katz. Okay, she joins that part. Yeah. And then 2C1 and 2C2 is— Carpenter doesn't change this. Yeah, Carpenter is narrow, doesn't change it.
Dan: And Carpenter said that it mattered that how comprehensive this was and how long it was. Okay. And it's 2C2, again, focusing on uniqueness of the situation in Carpenter. Okay. And then he loses Barrett for 2C3.
Will: Which is where he starts complaining about the unshackling of Carpenter that will unleash the very upheaval in Fourth Amendment law that Carpenter disclaimed.
Dan: Yeah. And maybe she likes that and then he—
Will: Or maybe she's just not taking a position.
Dan: Yeah, yeah. She also doesn't join 2C4, which is criticizing the kind of abolition of the mosaic-type approach, I think. Okay.
Will: What I like is then she writes a one-paragraph dissent, which I think helpfully explains why she joins the part she joins.
Dan: Yeah, but doesn't say much, right?
Will: Well, it says—
Dan: She says, "No quarrel with Carpenter or with the Court's decision to grant cert." So Carpenter's fine. Yeah. But I agree, under Carpenter, Chatrie had no reasonable expectation of privacy in data about his public movements that he voluntarily disclosed. Yeah. Isn’t so she thinks is she saying she thinks Carpenter's right, but this is wrong? And how would you land there?
Will: She's saying she has no quarrel with Carpenter. Which is different, right? You could have the view of, "I probably would've been in the dissent in Carpenter, but also it's fine." You're not going to quarrel with it. I'm not going to overrule it. But that posture is exactly the posture you might say, "Part of the reason I'm not going to overrule it is because it said it was a narrow decision.
Will: It was only about 7 days' worth." I'm not necessarily going to extend its logic further than I have to. I'll just say these kinds of dissents that can say in a paragraph just what they're mad about, what they're not mad about, where they get off the train, these are great. We should have more dissents like this.
Dan: Yeah, and fewer 91-pagers. Yes. Okay, so that's Chatrie. I am excited about teaching it. I'm excited to see how it is going to play out in the lower courts, and hopeful that maybe it suggests some interest on the Court now in taking a few more of these cases, because I just think this is important, right? I think this is really important. We're going to get to a point where physical searching just doesn't matter as much, and digital searches are the whole ballgame.
Dan: I think it would be useful to have the Court's guidance on those questions.
Will: Dan, I think there are two kinds of law professors. Mm-hmm. Law professors who want the Supreme Court to say more about their area of law. Law, and law professors who want the Supreme Court to say less about their area of law. So it seems like as to the Fourth Amendment, you're in the first camp.
Dan: Yeah, although maybe that's driven by the fact that I kind of like what they're doing.
Will: Right. I have colleagues, I'll just say, who definitely are in the second camp about their areas of law. Yeah.
Dan: I mean, I enjoy the intellectual puzzles of these cases, even if sometimes in other areas, the Court is doing stuff I don't love. Right.
Will: There's the old John Langbein articles, like "The Supreme Court Flunks Trusts", that I remember at least basically having the attitude. ERISA was doing fine before the Supreme Court got interested. Yeah. And I totally believe that.
Dan: And I think that maybe IP and tax are other places where people who are subject matter experts are pretty critical of the Court's forays into those highly technical areas. Tax for sure.
Will: I think IP has a split because then some people— if you don't have the Supreme Court, you have the Federal Circuit, and some people don't like that either. Yeah. Anyway, I sort of like the Supreme Court to stay out of all areas of law, ideally.
Dan: You don't think that, right? You like the Court. You think the Court is great.
Will: I was just singing hosannas to the Court in the New York Times this morning, getting other people mad at me for that. But I don't know that we need a lot of new law.
Dan: We've just got enough law. We're good on law. Yeah.
Will: I mean, sometimes people talk a lot about how will the law develop? And I guess I do worry sometimes that we're fine with the law we have. Maybe even a little less of it.
Dan: Okay. So anything else to talk about?
Will: No.
Will: All right. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: Rate and review on the Apple Podcast Store or wherever else you get your podcasts. Website, dividedargument.com for transcripts, store.dividedargument.com for merchandise. Email us pod@dividedargument.com, leave us a voicemail, 314-649-3790, or leave us a voice message on our website. Again, I'm going to promise no long delay before our next episode because we are currently scheduled to have our fourth recording session of the week tomorrow, Thursday, July 2nd. So I'm going to give you the rare promise of a schedule. The case is submitted.