1

No. 16-402

In The
Supreme Court of the
United States

Timothy Ivory Carter

Petitioner,

v.

United States of America

Respondent.

On Writ Of Certiorari To The

United States Court of Appeals
For The Sixth Circuit

BRIEF FOR PETITIONER

COUNSEL
KATHERINE E. SITTENAUER
MEAGAN B. CARMACK
 2

TABLE OF CONTENTS

I. QUESTION PRESENTED……...…………………….........3
II. INTRODUCTION………………………………………….3-4
III. STATEMENT OF THE CASE………………………….4-5
IV. ARGUMENT…………………………………………………...5
A. Metadata is a matter of personal privacy and
should be treated as such………….……………….5
B. Metadata is an “effect” and should be
protected under the Fourth
Amendment………………..………………………….5-6
C. Importance of a reasonable expectation of
privacy in an age where a cell phone is also a
minute-by-minute GPS tracking
device..…………………………………………….........6-8
D. Any amount of information collected needs
to be done under the direct of a search
warrant, from the approval of a judge with
the correct jurisdiction…….……………….............8
E. Exceptions to the probable cause warrant
requirements and why metadata doesn’t
apply……………………………………………………..8-9
F. Application of Privacy……………………...…10-11
V. CONCLUSION………………………………………….11-12

TABLE OF AUTHORITIES

CASES:

Smith v. United States

Jones v. United States
United States v. Jones
Ex Parte Jackson
Riley v. United States
Olmstead v. United States
Griswold v. Connecticut
Roe v. Wade
 3

U.S. CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOVLED:

U.S. const. amend. IV

Stored Communications Act 18 U.S.C
§ 2702(b)(A)(ii)
§2703(d)

I. QUESTIONN PRESENTED

With the protections given by the

Fourth Amendment, and an amalgamation of
other rights outlined in the Constitution, does
the warrantless collection of metadata by a
government authority without the correct
warrant for search, including location
information, from cellphone towers violate
privacy rights?

II. INTRODUCTION

As of now, under the Stored

Communications Act, 18 U.S.C. 2703(d), a
judge can issue a warrant for the collection of
metadata when there is essentially a
reasonable suspicion and a reasonable need
for the information. Specifically, the SCA
states “specific and articulable facts show[…]
that there are reasonable grounds to believe
that the contents of a wire or electronic
communication, or the records or other
information sought, are relevant and material
to an ongoing criminal investigation” (18
U.S.C). As it is, the government has the
authority to seize metadata from a “tower
dump” with the help of a third-party service
provider and comb through all the cell phone
 4

records of calls, call duration, and location of

the cell phone.
The privacy violations here are evident. In
the current time, police and other
government bodies can seize this metadata
without a warrant, and only with the
compliance of the third-party service
provider. Under the Fourth Amendment, it is
stated that citizens shall be protected from
unwarranted and unreasonable searches and
seizures of the “papers and personal effects”
and to be secure in those papers and effects.
In this instance, that very security is violated
due to the lax nature of metadata collection by
the government or governmental authority.

III. STATEMENET OF CASE

In April of 2011, a string of robberies in a

Detroit suburb of RadioShack stores and T-
Mobile stores put four men behind bars for
connection to the robberies. One of the men
confessed to the crime and implicated
Timothy Ivory Carter as one of the robbers in
the connected crimes. With this information,
FBI law enforcement obtained a warrant to
seize cell tower records from the last 127 days
from a magistrate judge. The information
obtained by the FBI showed Timothy
Carpenter’s location being within two miles of
each store that was robbed on each day it was
robbed. Using this information, the FBI
charged Timothy Carpenter with robbery and
several other charges as well.
Timothy Carpenter made a motion to
suppress the evidence gained from the cell
towers. His reasoning was that the FBI needed
probable cause to get a warrant to seize the
tower data. The Illinois district court
dismissed the motion to suppress, and when
appealed to the Sixth Circuit Court to
 5

suppress the evidence, the Sixth Circuit

affirmed the lower court’s decision to let the
evidence stand.

IV. ARGUMENT

A. Metadata is a matter of personal privacy

and it must be protected as such
With the ever-increasing dependency
on cell phones and mobile connectivity, it can
be reasonably inferred that this information is
just as private as letters are and were back
before cell phones and even landline
communication. The data collected from any
phone call, text message, or email is
considered metadata. Metadata collects the
sender identification, recipient identification,
location from which the call/text/email was
made and sent and received from.
The key issue in the case of Timothy
Carpenter is the violation of privacy regarding
his location being disclosed by cell phone
records. As it stands in the Stored
Communications Act, 18 U.S.C. 2702(b) §A(ii)
this data may be collected if the data should
“appear to pertain to the commission of a
crime.” This does note require a warrant in
order to be collected; which is where the
violation is evident. It is also noted in the
same act, section 2702(c) that nowhere does
it state that customer information can be
disclosed to a government authority is the
present danger of death is not imminent. In
the present case, there was no threat of death
that motivated the FBI to obtain the metadata
and customer information from MetroPCS
(the service provider).

B. Metadata is an “effect” and should

protected under the Fourth Amendment
 6

As it is argued, the metadata collected is

not a matter of privacy because most of the
information comes in the normal dealings of
the cell service provider. This makes sense
and is reasonable in relation to phone
numbers called, numbers that the phone has
received calls from and amount of data used.
However, what should not be in the
normal course of business for these cell phone
companies is the location of a person’s cell
phone at any minutes of the day. A cell phone
is not inherently a tracking device, nor should
it be treated as one. Location information is
sensitive information and an effect of a
person. Just as a letter could not be searched
for its contents in Ex Parte Jackson in 1878,
the location of a cell phone should not be
searched and recorded and considered to be
within the normal course of business of a cell
service provider.
In Ex Parte Jackson it was deemed that the
outside of a letter could be considered within
the searchable realm of the federal post office,
however the contents of the letter could not
be searched. This same application carries
over into the present case. The phone
numbers recorded by the cell service
company presents a reasonable expectation
of privacy in that the recording of the
numbers doesn’t not violate a right to privacy.
However, the record of location of a customer
held by a cell phone company should not be
within the normal business dealings of a
company.

C. Importance of a reasonable expectation of

privacy in an age where a cell phone is also
a minute-by-minute GPS tracking device

In Smith v. Maryland (1979), it was

decided that a person had the right to a
 7

reasonable expectation of privacy. However,

that phone numbers dialed by a phone were
recorded by the phone company, and the
person had no right to privacy regarding that
information because that information was in
the regular business of the phone company.
Jones v. United States made the
precedent that police or a government
authority cannot search a person’s house or
property or seize property for a criminal
investigation without a warrant present at the
time of the search or seizure. Here, it is
important to note that a warrant must be
present for the specified search of the search
is to be legal. There needs to be a legally
recognized and authorized document present
at the time of the search, and the search r
seizure cannot be based solely on reasonable
suspicion.
United States v. Jones outlined a more
modern expectation of privacy regarding
location tracking of people. In the case,
Antoine Jones was arrested for possession of
drugs, but released on all charges save
conspiracy. Without a warrant, the police had
placed a tracker on Jones’ Jeep and watched
his movements for a month. This evidence
was then brought to court, but the jury still
found Jones not guilty of drug possession.
The case made it up to the Supreme Court,
and all nine justices found Jones’ rights to
have been violated by the unwarranted
tracking of his location throughout that one
month. This can be applied to cell phone
tracking as well. As stated in Smith v.
Maryland, the phone numbers recorded by a
phone company are not protected under a
reasonable right to privacy. However, it is the
location tracking in the case before the court
today that violates Timothy Carpenter’s
rights. The FBI does not have the authority to
search through metadata records to weed out
 8

his location during the specified date. The

numbers he called are not subject to
protection, but his location should be.

D. Any amount of information collected

needs to be done under the direct of a
search warrant, from the approval of a
judge with the correct jurisdiction

Several arguments have stated in the past

that there is no reasonable expectation of privacy
when out in public. In the Stored
Communications Act, 18 U.S.C. 2703(d) the
required court order must be from a federal or
state subpoena or from a federal or state grand
jury in order to obtain information from a third-
party service provider. This was not done in the
case before the Court today. In this case, the
warrant for a search was issued by a magistrate
judge, in pretrial matter as a court order.
Especially in considering the sheer
amount of data collected from the tower dump
from the past 127 days. Mr. Carpenter had not
been formally charged yet in his trial, however
the magistrate judge ordered the search and
seizure of mass mounts of data from the cell
towers around the area. Such a large amount of
data should be ordered by a trial jury or a grand
jury, especially since the data collected revealed
much more than what goes on in the normal
course of business for the cell company.

E. Exceptions to probable cause warrant

requirements and why metadata doesn’t
apply

Though the Supreme Court and other

aggregate legal practices that are widely
agreed upon do allow for some exceptions to
the Exclusionary Rule, probable cause is
crucial to protecting the Fourth Amendment
 9

and is directly applicable to metadata. Below

these exclusions are listed:
i. Exigent circumstance
ii. Consent to search
iii. Search incident to lawful arrest
iv. Automobile exception
v. Plain view and open fields
vi. Terry stops
vii. Border searches
Because metadata is not actually a
physical object, exclusions iv, v, vi, and vii do
not apply. Out of the remaining three, Mr.
Carpenter did not give the magistrate
permission to search his personal device, so
this is also not applicable. Exigent
circumstances are also not applicable to
metadata, as an officer’s life is not put in
immediate danger without the seizure of
metadata as might be true of an assault
weapon. This leaves a search incident to
lawful arrest.
In Riley v. U.S. (2014), it was determined
that a cell phone must be the object of a
warrant to be lawfully searched with the
designation of “minicomputer” that contains
highly personal and sensitive information
that the Exclusionary Rule applies to. Like in
Weeks, if the information could implicate
someone in a felony, then it does fall under
this umbrella.
Therefore, under all of the current
acceptable parameters for exceptions to
warrant requirements, metadata is NOT
exempt from the warrant requirements
deemed necessary under the Fourth
Amendment since the Supreme Court already
ruled in Riley v. California that officers need a
warrant to search electronic personal effects
in 2014.
 10

F. Application of Privacy

Besides Fourth Amendment grounds,

the prosecution of Mr. Carpenter was
unlawful because the acquisition of his
personal data through a tower dump violated
his right to privacy. The right to privacy is an
implied right, and though it is not
enumerated, Griswold builds the right out of
the right to “protection from governmental
intrusion”. Before Griswold, as cited in
Olmstead v. US, the right to privacy was seen
as the “right to be let alone”. This certainly is
seen in Griswold, Roe v. Wade, and Casey; in
Union Pacific Railway v. Botsford (1891), the
majority opinion states, “No right is held more
sacred, or is more carefully guarded, by the
common law, than the right of every
individual to the possession and control of his
own person, free from all restraint or
interference of others.”
In the landmark case Griswold v.
Connecticut (1964), the majority opinion
found that a Connecticut law prohibiting
married couples from pursuing birth control
violated the citizens’ right to privacy by taking
the enumerated rights in the Bill of Rights and
the Constitution together and finding the
logical conclusions and consequences of said
rights. This formed the privacy “penumbra”.
In the majority opinion, the self-incrimination
clause of the Fifth Amendment combined with
the right to freedom of association of the First
Amendment implied a right to privacy. In a
concurring opinion, Justice Goldberg found
that based on the Ninth amendment, all of the
enumerated rights of the Constitution and the
Bill of Rights are not the only rights
guaranteed for American citizens, and that
the right to privacy as one of these implied
rights is retained by the people.
 11

Mr. Carpenter has a right to privacy, as

does every other American citizen as
guaranteed by the Ninth, Fifth, and this right
was violated through the attainment of his
personal records without probable cause or
consent to be searched. Thus, the collection
and attainment of metadata without due
process is not only a violation of the Fourth
Amendment, but the right to privacy as well.

V. CONCLUSION
The question presented before the
Court today is vital to the preservation of the
rights and liberties of the American people.
The answer to the question, “With the
protections given by the Fourth Amendment,
and an amalgamation of other rights outlined
in the Constitution, does the warrantless
collection of metadata by a government
authority without the correct warrant for
search, including location information, from
cellphone towers violate privacy rights?” is
yes. Without meeting the requirements
needed to obtain the necessary level of
scrutiny for probable cause, the attainment of
metadata is unlawful.
Furthermore, it directly interferes with
the individual citizen’s right to privacy as
implied through a penumbra of the First,
Fifth, and Ninth Amendments taken together.
The freedom of association, right to not self-
incriminate, and the caveat that the rights not
enumerated in the Bill of Rights and the
Constitution are retained by the American
people directly implies a right to privacy,
which can be seen in legal precedent to justify
the right to bodily autonomy over the past
fifty years and more diversely over the past
century. Therefore, this consul finds that the
lack of warrants concerning metadata is
appalling, and a titanic gap in current
legislation. Along with Justice Alito, we hope
 12

to find legislative action in the future that

directly outlines the specific warranting
process for metadata to make the boundaries
of the collection of this data enumerated.