Contributions

Does the Supreme Court’s Decision in Carpenter v. United States Implicate the Government’s Use of Pole Cameras?

by Jack Derewicz1

In its deci­sion in Car­pen­ter v. Unit­ed States,2 the Supreme Court deter­mined that the government’s war­rant­less inspec­tion of cell site loca­tion infor­ma­tion (“CSLI”) to track a person’s move­ments vio­lat­ed that person’s rea­son­able expec­ta­tion of pri­va­cy.3 Cell site loca­tion infor­ma­tion is unique, accord­ing to the Court, because “[m]apping a cell phone’s loca­tion over the course of 127 days pro­vides an all-encom­pass­ing record of the holder’s where­abouts.”4 Thus, “the time-stamped data pro­vides an inti­mate view into a person’s life, reveal­ing not only his par­tic­u­lar move­ments, but through them his ‘famil­ial, polit­i­cal, pro­fes­sion­al, reli­gious, and sex­u­al asso­ci­a­tions.’”5 The government’s use of CSLI pro­vid­ed it with infor­ma­tion it would not have oth­er­wise been able to obtain.6 Com­men­ta­tors have ques­tioned the extent to which the Car­pen­ter decision’s ratio­nale will per­me­ate Fourth Amend­ment doc­trine when applied to oth­er fac­tu­al con­texts.7

One of these oth­er fac­tu­al con­texts is the government’s use of pole cam­eras. A pole cam­era is a small video record­ing device that the gov­ern­ment places on top of a tele­vi­sion pole, often on a res­i­den­tial street.8 With the pole cam­era, the gov­ern­ment can record the hap­pen­ings around a person’s place of res­i­dence. Before recent doc­tri­nal devel­op­ments, courts were not in uni­son on the issue of whether the government’s use of a pole cam­era was a “search” under the Fourth Amend­ment9 and, thus, whether the gov­ern­ment was required to get a war­rant pri­or to plac­ing a cam­era atop the pole and view­ing its record­ings.10 Recent Supreme Court doctrine—particularly the Car­pen­ter decision—further com­pli­cates the dis­pute. If a pole cam­era is con­cep­tu­al­ized as pro­vid­ing the gov­ern­ment with the type of aggre­gate, wide­spread, and cat­e­gor­i­cal data that con­cerned the Court in Car­pen­ter, then the war­rant­less use of a pole cam­era may infringe upon a person’s Fourth Amend­ment pro­tec­tion from unrea­son­able search­es.11

In this arti­cle, I argue that, despite the Court’s recent deci­sions, the use of a pole cam­era does not con­sti­tute a search because the type of infor­ma­tion revealed is not as com­pre­hen­sive as that which was at stake in Car­pen­ter.12 More specif­i­cal­ly, in aggre­gate form, it is the type of data that the gov­ern­ment would oth­er­wise have been able to obtain with­out the use of the tech­nol­o­gy. Fur­ther, while CSLI can be obtained retroac­tive­ly, giv­ing offi­cers infor­ma­tion from before they ever iden­ti­fied the sus­pect, pole cam­era infor­ma­tion is tem­po­ral­ly limited.

* * * * *

The Fourth Amend­ment pro­tects per­sons from unrea­son­able search­es and seizures.13 In Katz v. Unit­ed States, the Supreme Court deter­mined that the Fourth Amend­ment “pro­tects peo­ple, not places,”14 ush­er­ing in the rea­son­able expec­ta­tion of pri­va­cy test, under which a search occurs when the gov­ern­ment infringes upon a sub­jec­tive expec­ta­tion of pri­va­cy that soci­ety is pre­pared to acknowl­edge as being objec­tive­ly rea­son­able.15 A rea­son­able expec­ta­tion of pri­va­cy is present when the area or object of the alleged search con­tains inti­mate infor­ma­tion16 and is not acces­si­ble to the gen­er­al pub­lic.17

Defen­dants often chal­lenge gov­ern­ment inves­ti­ga­to­ry actions, like the use of pole cam­eras, and the evi­dence obtained from said actions, via motions to sup­press.18 Tra­di­tion­al­ly, courts held that the war­rant­less use of pole cam­eras was con­sti­tu­tion­al for two rea­sons. First, many courts found that, because the cam­era only record­ed areas that were oth­er­wise open to pub­lic view­ing, its use did not vio­late a rea­son­able expec­ta­tion of pri­va­cy.19 Oth­er courts found that the use of a pole cam­era did not infringe upon an objec­tive expec­ta­tion of pri­va­cy because it did not impli­cate suf­fi­cient­ly inti­mate infor­ma­tion.20 On the oth­er hand, in a select num­ber of cas­es, courts did find that the use of a pole cam­era to record the hap­pen­ings out­side of a home vio­lat­ed the Fourth Amend­ment.21 Notably, in these cas­es, courts often con­duct­ed fact-inten­sive exam­i­na­tions into the dura­tion22 and intru­sive­ness23 of the search, as well as the com­plex­i­ty of the tech­nol­o­gy used.24

The Court’s deci­sion in Car­pen­ter may have upend­ed the doc­tri­nal frame­work with­in which courts exam­ine the issue.25 In Car­pen­ter, police offi­cers arrest­ed four men they sus­pect­ed were involved in a string of rob­beries of elec­tron­ic stores in Detroit.26 One of the arrestees dis­closed to the police that Car­pen­ter had also been involved.27 In order to deter­mine whether Car­pen­ter was in the gen­er­al area of these bur­glar­ies at the times they occurred, the gov­ern­ment, through the Stored Com­mu­ni­ca­tions Act,28 obtained access to his cell-site loca­tion infor­ma­tion (CSLI).29 The Supreme Court deter­mined that obtain­ing access to this infor­ma­tion, which mapped Carpenter’s move­ments over 127 days,30 with­out a war­rant, vio­lat­ed the Fourth Amend­ment.31 Chief Jus­tice Roberts, writ­ing for the major­i­ty, con­clud­ed that the third-par­ty doc­trine, estab­lished in Smith v. Mary­land32 and Unit­ed States v. Miller,33 which dic­tates that peo­ple do not have a rea­son­able expec­ta­tion of pri­va­cy in infor­ma­tion they reveal to a third par­ty,34 should not be “extend[ed] … to cov­er these nov­el cir­cum­stances … [g]iven the unique nature of cell phone loca­tion records .…”35 Next, the Court deter­mined that prece­dent that had con­sid­ered whether per­sons have Fourth Amend­ment pro­tec­tion in their pub­lic move­ments36 was not bind­ing because CSLI infor­ma­tion, when aggre­gat­ed, gave the gov­ern­ment access to infor­ma­tion that it oth­er­wise would not have had with­out the use of the tech­nol­o­gy.37 Applied to the use of pole cam­eras, if the record­ings grant access to infor­ma­tion that, when aggre­gat­ed, pro­vide infor­ma­tion that would oth­er­wise not be avail­able with­out the use of the cam­era, then it, too, would vio­late the Fourth Amendment.

Because the Supreme Court decid­ed Car­pen­ter in 2018, few low­er courts have had the oppor­tu­ni­ty to inspect the use of pole cam­eras with­in this rel­a­tive­ly nov­el doc­tri­nal con­text. Among the courts that have recent­ly exam­ined the use of pole cam­eras, some have rec­og­nized the effect of Car­pen­ter on their analy­sis,38 while oth­ers have not.39

* * * * *

While the Supreme Court’s deci­sion in Car­pen­ter cer­tain­ly has and will con­tin­ue to affect search doc­trine in numer­ous ways,40 it does not inhib­it the government’s use of pole cam­eras. This par­tic­u­lar inves­ti­ga­to­ry tech­nique does not pro­vide the gov­ern­ment with retroac­tive access to sweep­ing, wide­spread infor­ma­tion that it can aggre­gate to obtain an inti­mate view into a person’s life.

First, the Court in Car­pen­ter explic­it­ly lim­it­ed the holding’s appli­ca­tion to CSLI when it stat­ed, “our deci­sion today is a nar­row one. We do not express a view on mat­ters not before us .…”41 Car­pen­ter involved CSLI that could specif­i­cal­ly track a person’s loca­tion at all times dur­ing the day,42 where­as the use of a pole cam­era only records a per­son when they are with­in frame. In fact, the Court specif­i­cal­ly not­ed that its deci­sion in Car­pen­ter does not “call into ques­tion con­ven­tion­al sur­veil­lance tech­niques and tools, such as secu­ri­ty cam­eras.”43 This state­ment is a clear direc­tive to low­er courts. A pole cam­era is more sim­i­lar to a secu­ri­ty cam­era than it is to CSLI data because it observes one loca­tion rather than track­ing a person’s move­ments across space and time.

Sec­ond, the Court in Car­pen­ter was con­cerned with CSLI because it was “detailed, ency­clo­pe­dic, and effort­less­ly com­piled,”44 and it “pro­vid­ed an inti­mate win­dow into a person’s life, reveal­ing not only his par­tic­u­lar move­ments, but through them his ‘famil­ial, polit­i­cal, pro­fes­sion­al, reli­gious, and sex­u­al asso­ci­a­tions.’”45 Notably, the Court did not hold that the use of CSLI always con­sti­tutes a search, but instead held that the use of CLSI for a sig­nif­i­cant dura­tion was a search because the gov­ern­ment could aggre­gate that amount of data to glean infor­ma­tion that would not have oth­er­wise been avail­able to it.46 CSLI runs the gamut, as the Court not­ed, invad­ing almost every aspect of a person’s life,47 and it can be obtained retroac­tive­ly, going back for months if not years.48 It is the dura­tion of the CSLI track­ing that pro­vides such an expan­sive view into one’s per­son­al life. CSLI infor­ma­tion on only one day may not pro­vide such an aggre­gate inspec­tion, and the Court pur­pose­ly left open the ques­tion of whether the war­rant­less col­lec­tion of CSLI data is con­sti­tu­tion­al if the gov­ern­ment obtains data that cov­ers a few­er num­ber of days.49

As com­pared to CSLI data, record­ings from a pole cam­era do not pro­vide such an aggre­gate view of a person’s per­son­al life. While it is clear that per­son­al infor­ma­tion can be gleaned from record­ings from a pole cam­era, it is not the expan­sive rev­e­la­tion of per­son­al infor­ma­tion that is at stake with respect to CSLI. For exam­ple, CSLI can reveal a person’s polit­i­cal and reli­gious affil­i­a­tions, per­son­al rela­tion­ships, place of employ­ment, and more.50 On the oth­er hand, a pole cam­era is unlike­ly to reveal all of this infor­ma­tion, regard­less of how long the cam­era is left on the pole. Thus, while dura­tion may be a con­cern with respect to CSLI, it is not a con­cern with respect to pole cam­eras. Var­i­ous courts have agreed, deter­min­ing that the use of pole cam­eras that were installed for months at a time did not con­sti­tute a search, and thus did not require a war­rant, for that very rea­son.51

Final­ly, in Car­pen­ter, the Court not­ed the impor­tance of the fact that the gov­ern­ment could access his­tor­i­cal infor­ma­tion via CSLI.52 The retroac­tive nature of the infor­ma­tion is cru­cial because the gov­ern­ment is not tem­po­ral­ly lim­it­ed in the same way that it is when only using tra­di­tion­al sur­veil­lance tech­niques. Typ­i­cal­ly, the gov­ern­ment must know the iden­ti­ty of the sus­pect before it can begin sur­veilling. How­ev­er, that lim­i­ta­tion is not present in CSLI; just as the police did in Car­pen­ter, the gov­ern­ment can sub­poe­na a cell phone car­ri­er to obtain infor­ma­tion about a per­son that pre-dates the iden­ti­fi­ca­tion of the sus­pect. The lack of a tem­po­ral lim­i­ta­tion to CSLI great­ly expands the reach of gov­ern­ment sur­veil­lance. Pole cam­eras, like oth­er tra­di­tion­al inves­ti­ga­to­ry tech­niques, can­not obtain retroac­tive information.

* * * * *

The Supreme Court’s deci­sion in Car­pen­ter v. Unit­ed States could have ram­i­fi­ca­tions across crim­i­nal pro­ce­dure law. To a large extent, courts have not begun to grap­ple with its impact. How­ev­er, after an exam­i­na­tion of the Car­pen­ter opinion’s jus­ti­fi­ca­tions, the rel­e­vant case law, and the effects of the government’s use of pole cam­eras, it is clear that Car­pen­ter does not impli­cate this par­tic­u­lar inves­ti­ga­to­ry tech­nique. The infor­ma­tion gleaned from the use of a pole cam­era can­not be aggre­gat­ed to pro­vide infor­ma­tion that would not oth­er­wise be avail­able to the gov­ern­ment, and the infor­ma­tion that the gov­ern­ment can gath­er from a pole cam­era is tem­po­ral­ly con­strained. Accord­ing­ly, courts should con­tin­ue to engage in their tra­di­tion­al, fact-spe­cif­ic analy­sis of pole cam­eras, inspect­ing the dura­tion and the sen­si­tiv­i­ty of the infor­ma­tion at stake to deter­mine whether the use of the cam­era vio­lat­ed a person’s rea­son­able expec­ta­tion of privacy.

1. Jack Derewicz is a J.D. Can­di­date (2021) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on the 2020 Prob­lem at the Prince Moot Court Com­pe­ti­tion held in Brook­lyn, New York. The prob­lem dealt with the inter­ac­tion between the police’s use of pole cam­eras  and the Supreme Court’s recent deci­sion Car­pen­ter v. Unit­ed States. The views expressed in this arti­cle do not rep­re­sent those of the author. Rather, this arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the author’s team at the Prince Moot Court Competition.

2. Car­pen­ter v. Unit­ed States, 138 S. Ct. 2206 (2018).

3. Id. at 2223 (“The Government’s acqui­si­tion of cell-site records here was a search under that Amendment.”).

4. Id. at 2217.

5. Id. (quot­ing Unit­ed States v. Jones, 565 U.S. 400, 415 (2012) (Sotomay­or, J., concurring)).

6. Id. at 2218 (“[W]hen the gov­ern­ment tracks the loca­tion of a cell phone it achieves near per­fect surveillance .…”).

7. See, e.g., Amy Howe, Opin­ion Analy­sis: Courts Hold That Police Will Gen­er­al­ly Need a War­rant for Sus­tained Cell­phone Loca­tion Infor­ma­tion, SCO­TUS­blog (June 22, 2018), accessed at https://www.scotusblog.com/2018/06/opinion-analysis-court-holds-that-police-will-generally-need-a-warrant-for-cellphone-location-information (“Today’s rul­ing gives sig­nif­i­cant Fourth Amend­ment pro­tec­tion to cell-site loca­tion infor­ma­tion, but it sheds less light on whether the Fourth Amend­ment pro­tects oth­er types of infor­ma­tion in the dig­i­tal era. To the extent that they haven’t already, those issues are like­ly to sur­face in the low­er courts soon .…”).

8. See, e.g.,  Unit­ed States v. Moore-Bush, 963 F.3d 29, 32–33 (1st Cir. 2020) (describ­ing a “cam­era [placed] towards the top of the pub­lic util­i­ty pole across the pub­lic street from the unfenced-in house” as a “pole camera”).

9. Com­pare Unit­ed States v. Hous­ton, 813 F.3d 282 (6th Cir. 2016) (hold­ing that a pole cam­era record­ing the out­side of a trail­er home did not vio­late a rea­son­able expec­ta­tion of pri­va­cy), with Shafer v. City of Boul­der, 896 F. Supp. 2d 915 (D. Nev. 2012) (find­ing a vio­la­tion of defendant’s rea­son­able expec­ta­tion of pri­va­cy when cam­eras record­ed his back­yard and residence).

10. See Katz v. Unit­ed States, 389 U.S. 347, 357 (1967) (“[S]earches con­duct­ed out­side the judi­cial process, with­out pri­or approval by judge or mag­is­trate, are per se unrea­son­able under the Fourth Amend­ment – sub­ject only to a few specif­i­cal­ly estab­lished and well-delin­eat­ed exceptions.”).

11. U.S. Con­st. amend. IV (“The right of the peo­ple to be secure in their per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures, shall not be violated .…”).

12. Car­pen­ter, 138 S. Ct. at 2218 (“A cell phone faith­ful­ly fol­lows its own­er beyond pub­lic thor­ough­fares and into pri­vate res­i­dences, doctor’s offices, and polit­i­cal head­quar­ters, and oth­er poten­tial­ly reveal­ing locales.”).

13. U.S. Con­st. amend. IV.

14. Katz v. Unit­ed States, 389 U.S. 347, 351 (1967).

15. Id. at 360–61 (Har­lan, J., con­cur­ring) (argu­ing that the government’s place­ment of a record­ing device on the out­side of a pub­lic tele­phone booth to record con­ver­sa­tions vio­lat­ed Katz’s “rea­son­able expec­ta­tion of pri­va­cy”); see also Smith v. Mary­land, 442 U.S. 735, 740 (1979) (not­ing that the prop­er ana­lyt­i­cal frame­work con­sists of two ques­tions: whether the indi­vid­ual, by his con­duct, has “exhib­it­ed an actu­al (sub­jec­tive) expec­ta­tion of pri­va­cy,” and then whether the expec­ta­tion of pri­va­cy is “one that soci­ety is pre­pared to rec­og­nize as rea­son­able” (inter­nal cita­tions omitted)).

16. See, e.g., Oliv­er v. Unit­ed States, 466 U.S. 170, 179 (1984) (explain­ing that one does not have an expec­ta­tion of pri­va­cy in an area unless it impli­cates “inti­mate activ­i­ties that the [Fourth] Amend­ment is intend­ed to shel­ter from gov­ern­ment inter­fer­ence or sur­veil­lance”); see also Unit­ed States v. Vankesteren, 553 F.3d 286, 290 (4th Cir. 2009) (hold­ing that a cam­era record­ing a bird-trap in defendant’s field did not vio­late a rea­son­able expec­ta­tion of pri­va­cy since “the land was being used for farm­ing and not inti­mate activities”).

17. See Kyl­lo v. Unit­ed States, 533 U.S. 27 (2001) (the use of an infrared cam­era to see the hap­pen­ings with­in a place of res­i­dence vio­lat­ed a person’s rea­son­able expec­ta­tion of pri­va­cy); Unit­ed States v. Knotts, 460 U.S. 276, 281–82 (1983) (find­ing no rea­son­able expec­ta­tion of pri­va­cy in move­ments exposed by a GPS track­er since defen­dant “vol­un­tar­i­ly con­veyed” his trav­el to the pub­lic); Cal­i­for­nia v. Cirao­lo, 476 U.S. 207, 213 (1986) (hold­ing that the use of an air­plane to aeri­al­ly observe a person’s back­yard did not vio­late the Fourth Amend­ment because “[t]he Fourth Amend­ment pro­tec­tion of the home has nev­er been extend­ed to require law enforce­ment offi­cers to shield their eyes when pass­ing by a home on pub­lic thoroughfares.”).

18. Fed. R. Crim. P. 41(h) (“A defen­dant may move to sup­press evi­dence in the court where the tri­al will occur .…”).

19. See Unit­ed States v. Buc­ci, 582 F.3d 108, 116–17 (1st Cir. 2009) (hold­ing that a pole cam­era that record­ed video from out­side of a home did not vio­late a rea­son­able expec­ta­tion of pri­va­cy since “[a]n indi­vid­ual does not have an expec­ta­tion of pri­va­cy in items or places he expos­es to the pub­lic .…” (inter­nal cita­tions omit­ted)); Unit­ed States v. Ander­son-Bagshaw, 509 F. App’x 396, 404 (6th Cir. 2012) (hold­ing that a war­rant­less sur­veil­lance of a person’s back­yard was not a vio­la­tion under the Fourth Amend­ment since cur­tilage does not pre­clude obser­va­tion “from a pub­lic van­tage where [the offi­cers] have a right to be and which ren­ders the activ­i­ties clear­ly vis­i­ble” (quot­ing Cal­i­for­nia v. Cirao­lo, 476 U.S. 207, 213 (1986))).

20. See Unit­ed States v. Hous­ton, 813 F.3d 282 (6th Cir. 2016) (hold­ing that a pole cam­era record­ing the out­side of a trail­er does not con­sti­tute a search under the Fourth Amend­ment); Unit­ed States v. Jack­son, 213 F.3d 1269, 1281 (10th Cir. 2000) (hold­ing that the use of pole cam­eras was not a search since the cam­era was “capa­ble of observ­ing only what any passer­by would have eas­i­ly been able to observe”), vacat­ed on oth­er grounds, 531 U.S. 1033 (2000); Unit­ed States v. Vankesteren, 553 F.3d 286, 290 (4th Cir. 2009) (“[T]he land was being used for farm­ing and not inti­mate activities .…”).

21. Unit­ed States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (con­clud­ing the use of a pole cam­era to record a person’s back­yard vio­lat­ed the person’s rea­son­able expec­ta­tion of pri­va­cy); Shafer v. City of Boul­der, 896 F. Supp. 2d 915 (D. Nev. 2012) (find­ing a vio­la­tion of defendant’s rea­son­able expec­ta­tion of pri­va­cy in his home when the police used pole cam­eras to record defendant’s res­i­dence and back yard).

22. See Shafer, 896 F. Supp. 2d at 932 (stress­ing that peti­tion­er “was under con­stant video sur­veil­lance for fifty-six days”).

23. See Cuevas-Sanchez, 821 F.2d at 251 (5th Cir. 1987) (“This type of sur­veil­lance pro­vokes an imme­di­ate neg­a­tive vis­cer­al reac­tion: indis­crim­i­nate video sur­veil­lance rais­es the spec­tre [sic] of the Orwellian state.”).

24. See, e.g., Unit­ed States v. Moore-Bush, 381 F. Supp. 3d 139, 149 (D. Mass. 2019) (stress­ing that the pole cam­era down­loaded the record­ings in “a dig­i­tal­ly search­able form”), rev’d, 963 F.3d 29 (1st Cir. 2020); Shafer, 896 F. Supp. 2d at 932 (D. Nev. 2012) (not­ing that the gov­ern­ment used “long-range, infrared, heavy-duty, water­proof, daytime/nighttime cameras .…”).

25. Car­pen­ter v. Unit­ed States, 138 S. Ct. 2206 (2018).

26. Id. at 2212.

27. Id.

28. 18 U.S.C. § 2703.

29. Car­pen­ter, 138 S. Ct. at 2212.

30. Id. at 2217.

31. Id. at 2223 (“The Government’s acqui­si­tion of cell-site records here was a search under that Amendment.”).

32. Smith v. Mary­land, 442 U.S. 735 (1979) (hold­ing that a per­son did not have a rea­son­able expec­ta­tion of pri­va­cy in num­bers dialed on his per­son­al tele­phone because the tele­phone com­pa­ny col­lect­ed and record­ed the num­bers he called).

33. Unit­ed States v. Miller, 425 U.S. 435 (1976) (hold­ing that a per­son did not have a rea­son­able expec­ta­tion of pri­va­cy in his bank records which were acces­si­ble by any­one who worked at the bank).

34. Id. at 443 (“The depos­i­tor takes the risk, in reveal­ing his affairs to anoth­er, that the infor­ma­tion will be con­veyed by that per­son to the Government.”).

35. Car­pen­ter, 138 S. Ct. at 2217.

36. See, e.g., Unit­ed States v. Knotts, 460 U.S. 276, 281 (1983) (“[A] per­son trav­el­ing in an auto­mo­bile on pub­lic thor­ough­fares has no rea­son­able expec­ta­tion of pri­va­cy in his move­ments from one place to another.”).

37. Car­pen­ter, 138 S. Ct. at 2218 (“[T]he time-stamped data pro­vides an inti­mate win­dow into a person’s life, reveal­ing not only his par­tic­u­lar move­ments, but through them his ‘famil­ial, polit­i­cal, pro­fes­sion­al, reli­gious, and sex­u­al asso­ci­a­tions.’” (cit­ing Unit­ed States v. Jones, 565 U.S. 400, 416 (2012) (Sotomay­or, J., concurring))).

38. See Unit­ed States v. Moore-Bush, 963 F.3d 29, 321 (1st Cir. 2020) (explain­ing that “[t]his appeal by the pros­e­cu­tion rais­es the ques­tion of whether the Supreme Court’s opin­ion in Car­pen­ter” affects a chal­lenge to the admis­sion of evi­dence the gov­ern­ment obtained via the use of a pole camer.).

39. See Unit­ed States v. Ste­fanyuk, No. 4:17-CR-40042 (KES), 2018 WL 3235569 (D.S.D. June 14, 2018) (no men­tion of Car­pen­ter).

40. See Jen­nifer Lynch, Courts Grap­ple with a Sea Change in Fourth Amend­ment Law After Car­pen­ter: Year in Review 2019, Elec­tron­ic Fron­tier Foun­da­tion (Dec. 29, 2019), accessed at https://www.eff.org/deeplinks/2019/12/courts-grapple-sea-change-fourth-amendment-law-after-carpenter-v-us-year-review.

41. Car­pen­ter v. Unit­ed States, 138 S. Ct. 2206, 2220 (2018).

42. Id. at 2218 (“A cell phone faith­ful­ly fol­lows its own­er beyond pub­lic thor­ough­fares and into pri­vate res­i­dences, doctor’s offices, and polit­i­cal head­quar­ters, and oth­er poten­tial­ly reveal­ing locales.”).

43. Id. at 2220.

44. Id. at 2216.

45. Id. at 2217 (quot­ing Unit­ed States v. Jones, 565 U.S. 400, 415 (2012) (Sotomay­or, J., concurring)).

46. Id. at 2217 (“Pri­or to the dig­i­tal age, law enforce­ment might have pur­sued a sus­pect for a brief stretch, but doing so ‘for any extend­ed peri­od of time was dif­fi­cult and cost­ly and there­fore rarely under­tak­en.’” (quot­ing Jones, 565 25 U.S. at 429 (Ali­to, J., concurring))).

47. Id. at 2218 (“[T]he time-stamped data pro­vides an inti­mate win­dow into a person’s life, reveal­ing not only his par­tic­u­lar move­ments, but through them his ‘famil­ial, polit­i­cal, pro­fes­sion­al, reli­gious, and sex­u­al asso­ci­a­tions.’” (cit­ing Unit­ed States v. Jones, 565 U.S. 400, 416 (2012) (Sotomay­or, J., concurring))).

48. Id. at 2211 (“This case presents the ques­tion whether the gov­ern­ment con­ducts a search under the Fourth Amend­ment when it access­es his­tor­i­cal cell phone records that pro­vide a com­pre­hen­sive chron­i­cle of the user’s past move­ments.”) (empha­sis added).

49. Id. at 2217 n.3 (“[W]e need not decide whether there is a lim­it­ed peri­od for which the gov­ern­ment may obtain an individual’s his­toric CSLI free from Fourth Amend­ment scruti­ny, and if so, how long that peri­od might be.”).

50. Id. at 2218 (“[T]he time-stamped data pro­vides an inti­mate win­dow into a person’s life, reveal­ing not only his par­tic­u­lar move­ments, but through them his ‘famil­ial, polit­i­cal, pro­fes­sion­al, reli­gious, and sex­u­al asso­ci­a­tions.’” (cit­ing Unit­ed States v. Jones, 565 U.S. 400, 416 (2012) (Sotomay­or, J., concurring))).

51. See Unit­ed States v. Wymer, 654 F. App’x 735, 744 (6th Cir. 2016) (“The length of the sur­veil­lance d[oes] not ren­der the use of the pole cam­era uncon­sti­tu­tion­al.”) (quot­ing Unit­ed States v. Hous­ton, 813 F.3d 282, 288 (6th Cir. 2016)); Unit­ed States v. Buc­ci, 582 F.3d 108, 116–17 (6th Cir. 2009) (the use of a pole cam­era for eight months did not con­sti­tute a search); Unit­ed States v. Kubasi­ak, No. 18-CR-120‑p, 2018 WL 4846761 at *6-*7 (E.D. Wis. Oct. 5, 2018) (The use of a pole cam­era, “[e]ven for twen­ty-four hours a day over sev­er­al months, … did not present the kind of aggre­gate view of inti­mate details of the defendant’s every moment that con­cerned … the major­i­ty in Car­pen­ter.”).

52. Car­pen­ter, 138 S. Ct. at 2211 (“This case presents the ques­tion whether the gov­ern­ment con­ducts a search under the Fourth Amend­ment when it access­es his­tor­i­cal cell phone records that pro­vide a com­pre­hen­sive chron­i­cle of the user’s past move­ments.”) (empha­sis added); id. at 2218 (“With just the click of a but­ton, the Gov­ern­ment can access each carrier’s deep repos­i­to­ry of his­tor­i­cal loca­tion infor­ma­tion at prac­ti­cal­ly no expense.”) (empha­sis added).