In the Carpenter case, the FBI obtained 12,898 location points that recorded the Defendant’s location over a period of 127 days. The FBI secured the data from the wireless carriers without first securing a warrant based upon probable cause. Was a warrant required?

Wireless carriers collect data associated with their customer’s usage of their services. Cell phones connect to antennas known as “cell-sites” and the companies store this data for a variety of business purposes. As a result, these records are able to record information pertaining to the location of a particular cellular phone at particular times. In the Carpenter case, the FBI was able to secure the phone numbers of robbery suspects. The investigators and prosecutors secured a court order, pursuant to the Stored Communications Act, whereby the wireless carriers were required to produce the requested cell-site records. However, the standard to obtain an order under the Stored Communications Act is much lower than the probable cause standard that is required to obtain a valid search warrant. Specifically, the Act simply required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d).

Motion to Suppress

The Defendant in Carpenter filed a Motion to Suppress the evidence associated with the cell-site location data. The Motion argued that the Fourth Amendment Right to be Free From Unreasonable Searches and Seizures was violated when the Government seized the records without first securing a search warrant that was supported by probable cause. The trial court denied the Motion to Suppress and Carpenter was convicted. The first appeal went to the Sixth Circuit Court of Appeals. The Appellate Court upheld the conviction and affirmed the decision of the trial court. The Supreme Court of the United States overturned the decision and held that the provision under the Stored Communications Act falls well short of the probable cause standard required for the issuance of a search warrant. As such, the Act is not a permissible mechanism for the Government to utilize to secure historical cell-site records.

The Fourth Amendment

Within the Syllabus to its Opinion, the Court noted that the Fourth Amendment protects not only property interestsbut certain expectations of privacy as well. Katz v. United States, 389 U. S. 347, 351. Thus, when an individual “seeks to preserve some- thing as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant sup- ported by probable cause. Smith v. Maryland, 442 U. S. 735, 740

The Third-Party Doctrine

The Government argued that the “Third-Party Doctrine” was applicable in Carpenter because cell-site records are voluntarily provided to the wireless carriers by the user through the use of their networks. As such, the Government contended, the records were “business records” and since they were shared by the user, there is much less of a reasonable expectation of privacy in the information since it was already shared with a Third-Party, the wireless carrier.

The Supreme Court rejected these arguments and found that the cell-site location records were of such a nature, that there was “a world of difference” between the type of personal information collected by way of the cell-site location records and the information collected in other cases. The detailed and revealing contents of the cell-site location records are such that a “mechanical application” of the Third-Party Doctrine is improper.

What are the Implications of the Carpenter Decision?

The Court noted that its decision in Carpenteris a narrow one that does not call into question other more traditional surveillance methods by the government, or the appropriate application of prior precedent associated with the Third-Party Doctrine. However, it is apparent that the Court has not disregarded the Fourth Amendment implications associated with advances in technology, which often provide great benefit, while simultaneously revealing intricate, exhaustive and encyclopedic personal details to third-party companies.

Expect defense attorneys to raise arguments, where appropriate, that incorporate the Carpenter decision going forward in any case that involves cell-site location records that were obtained without a search warrant supported by probable cause, but also in other cases where the Government secures data and records from third-parties and where the Defendant has a claim of a legitimate expectation of privacy analogous to the circumstances in Carpenter.

If you have a question regarding the Fourth Amendment, Motions to Suppress, or are in need of a criminal defense lawyer, we invite you to contact The Frey Law Firm today for a consultation. To learn more about Attorney Frey and The Frey Law Firm’s commitment to defending those charged with crimes involving computers, the Internet, or data storage devices such as cellular telephones, please visit our InternetCrime.com website for more information.

“They didn’t read me my rights.” At some point during the representation, a majority of my client’s will enthusiastically inform me that the police never read them their Miranda Rights. What happens if the police do not read a suspect his or her rights? The Fifth Amendment to the United States Constitution provides that “no person shall be compelled in any criminal case to be a witness against himself.” The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436 (1966) held that the privilege against self-incrimination also applies to the pre-trial interrogation of the accused.

Police Do Not Always Have to Read a Person His or Her Miranda Rights

Many are surprised that there is no rule that law enforcement must read a person his or her Miranda Rights every time they detain a person, or even every time a person is placed under arrest. Certain conditions must be present in order for the Miranda Rights requirement to trigger. The person must be:

1. In custody; and
2. subject to interrogation by law enforcement.

If a person is not in custody, then there is no requirement that the Miranda Rights be read prior to questioning. Similarly, if a person is in custody, but is not questioned or interrogated, then there is no requirement that their Miranda Rights be read. Only when a person is in custody and interrogated, is the requirement activated. Specifically, law enforcement is required to properly advise the person of the right to remain silent and the right to counsel prior to commencing with any questioning. Further, the person must waive the rights before the questioning can commence.

What is “Custody?”

For a person to be considered in custody for Miranda purposes, there is no bright line rule. For instance, a person can be considered in custody even if they are not under arrest. The general test that court’s employ in order to determine whether a person is in custody is how a “reasonable person” would interpret the circumstances. Specifically, would a “reasonable person” consider him or herself in custody in such a situation.

As a result of this standard, there is often a great deal of litigation between defense attorneys and prosecutors as to whether a suspect was in custody or not. It is a fact-based inquiry and requires persuasive argumentation in order to prevail. It is important to argue that the totality of the circumstances demonstrate that the person was in custody. If that can be accomplished than the first prong of Miranda is met.

What is “Interrogation?”

Interrogation, for purposes of the Miranda analysis, need not include a dimly lit, small and smoky room within a police station. Rather, the general test for interrogation is whether the statements, words, questions, or actions of the law enforcement officer are likely to elicit an incriminating response.

As a result of the standard, again, there is much litigation that can occur in order to determine whether the conduct of the officer amounted to an interrogation for purposes of Miranda. Even if a person is in custody, if there is no interrogation, then there is no need for the Miranda warnings to be read. Voluntary statements, that are not the result of interrogation, do not trigger the requirements for Miranda. Again, the interrogation requirement is a very fact-based inquiry. (Please note, there are many exceptions, such as the public safety exception, that are beyond the scope of this article).

If Custodial Interrogation, Then the Suspect in Custody Must Be Read Miranda Warnings Prior to Interrogation.

Pursuant to the Fifth Amendment and the Supreme Court’s Miranda decision, the suspect must be informed of:

1. The Right to Remain Silent;
2. The Explanation that Anything Said can be Used Against the Suspect;
3. The Right to an Attorney; and
4. If the Person Cannot Afford a Lawyer, a Lawyer will be Appointed to Represent Him or Her.

Waiver of the Miranda Rights

Prior to conducting a custodial interrogation, law enforcement must first inform the person in custody of the Miranda Rights and the person must voluntarily waive those rights. If a person asserts his or her rights, or refuses to waive the rights, then there is no waiver and no custodial interrogation should proceed. If the rights are read and then voluntarily waived, then the custodial interrogation can legally proceed.

What Happens When a Person’s Miranda Rights are Violated?

If law enforcement commences with a custodial interrogation, without first properly advising a person of their rights and securing a voluntary waiver, any and all statements made during the interrogation can be excluded from evidence at trial, pursuant to the Exclusionary Rule. Essentially, the exclusionary rule serves as a deterrent to ensure that law enforcement follows the mandates of the Fifth Amendment and Miranda.

In order to litigate issues pertaining to Miranda in a criminal case, defense counsel will review the discovery and evidence, draft a Motion to Suppress if warranted, and proceed to argue that the Defendant’s Miranda Rights were violated and any and all evidence or statements secured as a result of the Constitutional violation should be suppressed pursuant to the Exclusionary Rule and the Fruit of the Poisonous Tree doctrines.

If you, or someone you know, has questions regarding Miranda or questions pertaining to a criminal charge, please do not hesitate to contact Attorney Ron Frey and The Frey Law Firm for a consultation.