Emerging Issues

 

                                                                CASES

AN IMPORTANT CASE PENDING IN THE SUPREME COURT:  Carpenter v. United States

            The case is expected to decide whether law enforcement agencies may obtain cellphone data from third-party service providers without a warrant.  One of several armed robbery suspects confessed and gave his cellphone number and the number of other participants to the FBI.  The FBI applied for and obtained orders from magistrates to obtain “transactional records” for each of the numbers under the Stored Communications Act, 18 U.S.C. 2703(d).  These orders were not warrants based upon probable cause.  The transactional records include the date and time of calls, and the approximate location where the calls began and ended from connections to cell towers, “cell site” information.  From these historical cell site records, (127 days’ worth) the government was able to link Carpenter to the robberies.

            The government argued that the records fall with the “third-party doctrine,” which holds that the Fourth Amendment does not protect records that one shares with someone else.  The government argued that the cellphone providers created the records for their own purposes and gave them to the government and the government did not collect the data itself.  Moreover, the information only reveals a cellphone’s routing data rather than the contents of communications.  Carpenter relied on other cases in which warrants have been required for cellphone data.  Over 90% of Americans own cellphones which contain highly personal data, so the routing data provides much more data than communication from one point to another.  An opinion is expected by the end of the June 2018.

 

MORE QUESTIONS THAN ANSWERS:  Class v. United States (Feb. 21, 2018)

            Class pled guilty in federal court pursuant to a written plea agreement that contained no express waiver of Class’s right to appeal his conviction.  Federal and state courts have generally held that a guilty plea waives appellate claims regarding constitutional rights, including right to a jury trial and defects in pre-plea proceedings.  The appeals court held that Class’s guilty plea constituted an implicit waiver of his constitutional attacks.  The Supreme Court, 6-3, held that Class neither expressly nor implicitly waived his right to appeal, and absent such waiver, he could challenge the constitutionality of the statute of conviction.

           The majority (Breyer) claimed that the conclusion simply flowed from prior precedents.  The dissent (Alito) described the majority opinion as muddled and incoherent, and chastised the majority for relying on an 1869 Massachusetts case, not cited by any party, and for providing no clear answer as to the scope of the holding.

            Several questions flow from this opinion.  First, while this was a federal case, its application to the states is unclear.  The opinion could be read as the majority’s intent to extend to states as a constitutional requirement.  Second, Class raised both a due process and a Second Amendment challenge.  However, the due process claim may be in the nature of an “as applied” challenge which is not a direct attack on the constitutionality of the statute of conviction.  Finally, the opinion does not discuss the validity of appeal waivers, including general or “universal” waivers of appeal rights.

 

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