Alan J. Williams(989) 506-1210 | 1107 E. Grant Drive, Des Plaines, IL 60016 | alan.williams311@gmail.com

Legal Writing Sample__________

The following writing sample is the Opinion of the Court—and accompanying Dissenting Opinion—in the fictional U.S. Supreme Court case of United States v. Doe. It was selected to be used as a sample because it adequately demonstrates my abilities in the areas of legal research, legal writing, and complex legal analysis.

The Dissenting Opinion—intended to accompany the Opinion of the Court, and respond to many of the arguments made therein—begins on Page 12.______________________________________________________________________________

SUPREME COURT OF THE UNITED STATES__________

UNITED STATES OF AMERICA, petitioner v. JOHN DOE, respondent

__________

WILLIAMS, J., delivered the opinion of the Court.

During the course of a three-month-long multi-state manhunt for an escaped federal prisoner, FBI agents sought and obtained a subpoena under § 2703(d) of the Stored Communications Act.1 This subpoena was based on a showing that there existed reasonable grounds to believe that Verizon Wireless, LLC—Respondent’s service provider—might have in its possession certain recently created cellular telephone location records2 that could be used to determine his location. Upon receipt of the § 2703(d) subpoena, Verizon Wireless promptly disclosed all cellular telephone location records in its possession that related to Respondent’s cellular telephone activity. Using this information, FBI agents were able to discern Respondent’s likely location based on a number of cellular telephone calls he made outside of an abandoned barn in Mountain Home, Arkansas. FBI agents thereafter secured a search warrant for the premises, and arrested Respondent without incident.

Later, Respondent challenged the constitutionality of the § 2703(d) subpoena—and a subsequent warranted search of the barn that relied heavily on the information obtained from the subpoena to obtain probable cause—before district court on Fourth Amendment grounds. In so doing, Respondent argued that the subpoena was not based “upon probable cause, supported by Oath or Affirmation[,]”as required by the Fourth Amendment.3

Today, we hold that a subpoena obtained under § 2703(d)—employed for the purpose of acquiring cellular telephone location records that are in the possession of a criminal defendant’s

1 See 18 U.S.C §§ 2701-12.2 Such records are created in the ordinary course of business by Verizon Wireless for the purposes of providing cellular telephone service to its subscribers.3 U.S. CONST. AMEND. IV.

service provider—does not violate the Fourth Amendment’s prohibition against unreasonable searches.

I.Sometime in the early morning of September 20, 2013, John Cummings Doe

(“Respondent”) escaped from the minimum-security Federal Correctional Institute (“FCI”) in Greenville, Illinois.4 Respondent made his escape by way of hiding in a bin full of dirty prison laundry that was being taken off-site for a private contractor to clean. Thereafter, Federal Bureau of Investigation (“FBI”) agents charged with Respondent’s apprehension obtained a warrant for his arrest. This warrant was placed in the U.S. Department of Justice’s National Crime Information Center (“NCIC”) database—accessible by state and local law enforcement officials.

After his successful escape from FCI Greenville, Respondent’s activities for the proceeding 20 days remain a mystery to this day. What is known is that on October 4, 2013, Respondent traveled to Glenview, Illinois, and forcibly abducted 12-year-old Henry Winkelman Elementary School student Benjam’n Doe5 while the boy was playing outside the school during recess. Witnessing young Benjam’n’s abduction from a few hundred yards away, school teachers reported the incident to Glenview, Illinois, police officers, who thereafter relayed this information to those FBI agents searching for Respondent. Thereafter, the FBI agents obtained a second warrant for Respondent’s arrest, and this warrant was also placed in the NCIC database.

For the next seven days, Respondent continually evaded the FBI. Then, at approximately 11:00 a.m., on October 11, 2013, Respondent—driving along I-94 in a 1998 black Mercury sedan—was pulled over by Michigan State Police (“MSP”) Trooper Jeffrey McAleenan.6 Upon approaching the vehicle, Trooper McAleenan noticed young Benjam’n in sitting the car’s back seat. Trooper McAleenan then informed Respondent that he had been pulled over for having a broken rear driver’s-side tail light. Trooper McAleenan asked Respondent for his driver’s license. Respondent responded that he did not have his driver’s license on him, but that he did have a military ID. At this time, Trooper McAleenan noticed that Respondent appeared to be acting nervous, and that Benjam’n had begun sobbing uncontrollably. Trooper McAleenan then questioned Respondent regarding why Benjam’n appeared so upset. Respondent said that he was unsure, saying “That kid’s a sissy. He always cries.” Trooper McAleenan thereafter, asked to see Respondent’s military ID, at which time Benjam’n raised his arms in the direction of Trooper McAleenan and cried, “Help me! I want my mommy!” Startled by Benjam’n’s sudden cry for help, Trooper McAleenan backed away from Respondent’s vehicle and reached for his sidearm. Then, without warning, and while still sitting in the driver’s seat of his vehicle, Respondent produced a 1911 Colt .45-caliber handgun from his coat pocket, and proceeded to fire five bullets at Trooper McAleenan.7 Respondent then drove away from the scene, leaving Trooper McAleenan bleeding on the side of the road.8 Trooper McAleenan never had the opportunity to discover the two arrest warrants for Respondent contained on the NCIC database.4 Respondent had been serving a fourteen-month sentence for possession with intent to distribute less than 1.4 grams of a substance which contained a detectable amount of cocaine base—under 21 U.S.C. § 841(a)(1)—and, at the time of his escape, he had just three days left in his sentence.5 Benjam’n Doe is Respondent’s biological son.6 The stop occurred on I-94 at or near County Road 657—between the Paw Paw and Matawan, Michigan, exits on I-94, as one travels eastward. Audio and video of the stop was recorded both by Trooper McAleenan’s standard-issue MSP body camera, and by the audio and video equipment contained on Trooper McAleenan’s standard-issue MSP highway patrol car.7 Three of the five bullets missed Trooper McAleenan entirely, one impacted safely in his standard-issue MSP bullet-proof vest, and one broke through his vest and lodged itself in his stomach.

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Upon receiving word of both Respondent’s shooting of Trooper McAleenan, and the apparent distress Benjam’n was in during the incident, the FBI’s pursuit of Respondent was named the agency’s number one domestic priority. In so doing, the FBI committed a large number of additional resources solely to finding Respondent. 22 days later, on November 1, 2013—frustrated by their inability to find Respondent, and apparently hoping to get lucky—FBI agents applied for, and received, a subpoena under § 2703(d) of the Stored Communications Act (“SCA”). The subpoena was based on a showing that there existed reasonable grounds to believe that Verizon Wireless, LLC (“Verizon”)—Respondent’s service provider— might have in its possession certain recently created cellular telephone location records that could be used to determine Respondent’s location.

On November 5, 2013, upon receipt of the § 2703(d) subpoena, Verizon Wireless promptly disclosed all cellular telephone location records in its possession that related to Respondent’s cellular telephone activity. The records indicated to the FBI that Respondent had made over 57 calls from October 20 to November 4 to 12 different individuals whom he had been close to at FCI Greenville. The records also indicated, importantly, that Respondent made all but two of these 57 calls were made while Respondent was in the direct vicinity of an abandoned barn located on the outskirts of Mountain Home, Arkansas. FBI agents then obtained a search warrant for the barn on November 6, 2013. The search warrant relied substantially on the information received as a result of the § 2703(d) subpoena to Verizon Wireless.

During the early morning hours of November 7, 2013, FBI agents executed the search warrant for the barn. Thereafter, Respondent was detained on the two previously obtained arrest warrants without altercation, and young Benjam’n was recovered unharmed. A subsequent search of the barn pursuant to the search warrant found over six kilogram-sized cocaine packages located inside of some hay bales located inside the bar.

Respondent was later indicted by a federal grand jury on charges of escaping from a federal prison, being a fugitive, kidnapping, assaulting a police officer, assault with intent to injure a police officer, attempted murder of a police officer, being a felon in possession of a firearm, using a firearm during the commission of a felony, obstruction of justice, and possession with intent to distribute six kilograms of cocaine. He filed a motion to suppress evidence relating to the FBI’s discovery of the six kilogram-sized cocaine packages before the District Court for the Eastern District of Arkansas, arguing that the § 2703(d) subpoena9—based only upon a showing of that there existed reasonable grounds to believe that the records sought were relevant and material to an ongoing criminal investigation—violated the Fourth Amendment prohibition against unreasonable searches when it sought his cellular telephone location information. The District Court thereafter denied Respondent’s motion to suppress,10 and later accepted his nolo contendere plea under a conditional plea agreement that preserved his right to appeal the denial of his suppression motion.

Appearing before the U.S. Court of Appeals for the Eighth Circuit, Respondent took a position nearly indistinguishable from the one he took before the District Court: that § 2703(d)

8 Numerous passersby on the highway witnessed this incident, and stopped to lend Trooper McAleenan aid after Respondent fled the scene. One helpful individual in particular used the radio in Trooper McAleenan’s MSP patrol car to both report the shooting to MSP central dispatch and request an ambulance for Trooper McAleenan. Thereafter, numerous MSP police officers arrived on the scene with the ambulance, and Trooper McAleenan later made a full recovery from his injuries.9 The later warranted search of the barn that relied substantially on the evidence gained therefrom to establish probable cause.10 See United States v. Doe, 8169 F.Supp.2d 1234 (E.D. Ark 2014).

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subpoenas for cellular telephone location information violate the Fourth Amendment’s prohibition against unreasonable searches. In reversing the District Court’s denial of Respondent’s motion to suppress, the Eighth Circuit—relying heavily on the U.S. Court of Appeals for the Tenth Circuit’s holding in United States v. Barajas11—held that “cellular telephone location information is within the subscriber’s reasonable expectation of privacy . . .”12 under Katz v. United States,13 and, as such, “[t]he obtaining of . . . [such] data without a warrant is a Fourth Amendment violation.”14

A matter of first impression for this Court, we granted certiorari to resolve a division among lower courts on the question of whether § 2703(d) subpoenas—used as a means to acquire cellular telephone location information—violate the Fourth Amendment’s prohibition against unreasonable searches.15 For the foregoing reasons, we hold that they do not.

II.In order to answer the question of whether § 2703(d) subpoenas violate the Fourth

Amendment’s prohibition against unreasonable searches, it is initially necessary for this Court to examine what records were requested by the government’s § 2703(d) subpoena in the present case—that is, cellular telephone location information.

As a practical matter, “cellular telephone location records” are generated in the ordinary course of a service provider’s business as necessary to facilitating a cellular telephone subscriber’s service,16 and are also retained by the provider for cellular network diagnostic and quality control for some time after creation.17 More specifically, however, these records relate to the physical location of a subscriber’s cellular telephone, indicating which of the provider’s cellular towers carried a specific call to or from the subscriber.18 Most of the time, the cellular tower listed on cellular telephone location records will be the closest cellular tower to the subscriber at the time a cellular call is made or received—this differs only occasionally when tower maintenance, geographical, or local interference forces a subscriber’s cellular telephone to rely on a further tower to fulfill the cellular call.19 Additionally, cellular telephone location

11 See 710 F.3d 1102, 1108 (10th Cir. 2013).12 United States v. Doe, 8169 F.3d 1234, 1237 (8th Cir. 2014).13 See 389 U.S. 347 (1967).14 Doe, 8169 F.3d at 1237.15 Compare Doe, 8169 F.3d at 1237, United States v. Davis, 754 F.3d 1205 (11th Cir. 2014), reh’g en banc granted, opinion vacated on other grounds, 573 F. App’x 925 (11th Cir. 2014), Barajas, 710 F.3d at 1108, and In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t , 620 F.3d 304, 315 (3d Cir. 2010) (finding § 2703(d) subpoenas unconstitutional), with United States v. Davis, --- F.3d ---, ---, No. 12-12928, 2015 WL 2058977, at *9 (11th Cir. May 5, 2015) (en banc), In re U.S. for Historical Cell Site Data, 724 F.3d 600, 611-15 (5th Cir. 2013), and United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012) (finding § 2703(d) subpoenas constitutional).16 See generally Jen Manso, Cell-Site Location Data and the Right to Privacy, 27 SYRACUSE J. L. & TECH. 1, 2-3, 8-9 (2012) (internal citation omitted). See also Ken Wallentine, Cell Site Location Evidence: A New Frontier in Cyber-Investigation, 2011 (2) AELE MO. L.J. 401, 407-08 (2011) (internal citation omitted).17 See generally Ryan W. Dumm, The Admissibility of Cell Site Location Information in Washington Courts, 36 SEATTLE U. L. REV. 1473, 1478-81 (2013) (internal citation omitted).18 See In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d 448, 450 (S.D.N.Y. 2006). See also Dumm, 36 SEATTLE U. L. REV. at 1479, 1480-81 (internal citation omitted); Manso, 27 SYRACUSE J. L. & TECH. at 8-9 (internal citation omitted).19 See In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 450. See also Dumm, 36 SEATTLE U. L. REV. at 1480-81 (internal citation omitted).

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records may reflect the direction of the subscriber from the cellular tower their cellular telephone is connected to. 20

While using cellular telephone location records to discern the location of a cellular telephone service subscriber’s cellular telephone is by no means an exact science, it is possible to extrapolate—in hindsight—the general location of the subscriber’s cellular telephone at the time and date reflected in a cellular telephone location record.21 In other words, while not capable of operating with pinpoint accuracy, cellular telephone location records are nevertheless sufficiently specific that—as in the present case—government agents can rely on them with a reasonable degree of certainty.22

III.It is next important to examine § 2703(d) subpoenas as they relate to the SCA23 in

particular, as well as the Fourth Amendment24 more generally.As is relevant in this case, through the SCA Congress authorized the U.S. Attorney to

obtain court orders requiring “a provider of electronic communication service . . . to disclose a record or other information pertaining to a subscriber to . . . such service (not including the contents of communications).”25 § 2703 thereafter directs that a judge “shall issue” the order if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the . . . records [sought] . . . are relevant and material to an ongoing criminal investigation.”26

While it is true that § 2703(d) subpoenas under the SCA require less than the probable cause standard for a search warrant under the Fourth Amendment,27 the SCA does demand much the same level of judicial involvement as a preventer of government overreach—the government must still both obtain a court order, and present specific and articulable facts to a judge showing that there exists “reasonable grounds to believe” the records are relevant and material to an ongoing criminal investigation.28 In this way, the § 2703(d) subpoenas are functionally indistinguishable from Fourth Amendment search warrants because, “[i]n the criminal context[,] the[y] . . . protec[t an] individual’s legitimate expectation of privacy against the overzealous police officer.”29 “Its protection consists in requiring that [government interference with a legitimate expectation of privacy be authorized] . . . by a neutral and detached magistrate instead of being [rubber-stamped] by the officer engaged in the often competitive enterprise of ferreting out crime.”30 Along these lines, we have held that “[a] related purpose of the [prohibition against unreasonable searches] . . . is to prevent hindsight from affecting the evaluation of the reasonableness of a search” at some later date.31 § 2703 (d) thus satisfies these purposes of the Fourth Amendment. Additionally, as we stated in Henry v. United States, when a statute like §

20 See In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 450. See also Dumm, 36 SEATTLE U. L. REV. at 1479 (internal citation omitted).21 See generally Dumm, 36 SEATTLE U. L. REV. at 1481-85 (internal citation omitted).22 See generally id. (internal citation omitted).23 See 18 U.S.C. §§ 2701-12.24 See U.S. CONST. AMEND. IV.25 18 U.S.C. § 2703(c).26 18 U.S.C. § 2703(d) (emphasis added).27 See U.S. CONST. AMEND. IV.28 18 U.S.C. § 2703(d).29 South Dakota v. Opperman, 428 U.S. 364, 383 (1976).30 Johnson v. United States, 333 U.S. 10, 14 (1948). See also, e.g., United States v. United States District Court, 407 U.S. 297, 316-18 (1972).

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2703 (d) requires a showing of “reasonable grounds to believe,”32 it “states the constitutional standard”—and it is the command of the Fourth Amendment that no unreasonable searches shall take place except upon probable cause, “‘supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’”33 By stating the constitutional standard, and by requiring constitutional procedures, § 2703(d) subpoenas on their face, without infringing on a protected interest, are constitutionally sufficient.

As such, clearly § 2703(d) subpoenas must be obtained under the SCA in such a way that addresses the primary and ancillary purposes of the Fourth Amendment itself. However, this is not to say that § 2703(d) subpoenas are per se constitutional without further analysis. Indeed, the principle issue in this case is not how a legitimate expectation of privacy is being impinged, but rather whether a legitimate expectation of privacy exists in the first place.

IV.Now, in order to discern whether cellular telephone location information is worthy of

greater protection under the Fourth Amendment than that provided by the SCA, we must analyze the role of constantly evolving notions of individual privacy have played in the development of this Court’s Fourth Amendment jurisprudence alongside the cornerstone of the Amendment itself—reasonableness.

As an initial starting point, in Maryland v. King we reiterated this Court’s long-held notion that the Fourth Amendment prohibits unreasonable searches, not warrantless searches.34 As such, the Amendment contains no talismanic words that lead to a reasonable or unreasonable search. “[A] warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either.”35 Simply put, the reasonableness of a search or seizure under the Amendment is measured “under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”36 Moreover, “there is a strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is ‘reasonable’” under the Fourth Amendment.37

Given that the hallmark of the Fourth Amendment has always been what is reasonable, it is important to note that this Court’s position in antiquity had been to hold that the Fourth Amendment’s determination of “reasonableness” hinged primarily—and indeed, almost exclusively—on then-held notions of common-law trespass. In fact, not even one hundred years ago, in Olmstead v. United States, this Court openly advanced the proposition that if there was no common-law trespass, the search was not “unreasonable” under the Fourth Amendment.38 In Olmstead the government had obtained conversations of the defendants’ using a warrantless

31 United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976). See also Opperman, 428 U.S. at 383; United States v. Watson, 423 U.S. 411, 455 n.22 (1976) (Marshall, J., dissenting).32 18 U.S.C. § 2703 (d).33 361 U.S. 98, 100 (1959) (quoting U.S. CONST. AMEND. IV).34 See --- U.S. ---, ---, 133 S.Ct. 1958, 1969 (2013). See also Fernandez v. California, --- U.S. ---, ---, 134 S.Ct. 1126, 1132 (2014) (noting that the ultimate measure of the constitutionality of a search under the Fourth Amendment is “reasonableness.”).35 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995).36 Wyoming v. Houghton, 526 U.S. 295, 300 (1999).37 United States v. Watson, 423 U.S. 411, 416 (1976) (internal quotation omitted).38 See 277 U.S. 438, 468 (1928).

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wiretap. While this would clearly be considered an unreasonable search today,39 the fact that the wiretap was done in such a way as to be positioned just outside one of the defendant’s businesses led a majority of this Court to find that such conduct did not constitute an unreasonable search implicating the Fourth Amendment.40

Yet, even as far back as Olmstead, the seeds of our realization that the Fourth Amendment also protects individual privacy were beginning to bear fruit—Justice Brandeis, writing in dissent in Olmstead, expressly viewed the provision against unlawful searches as prohibiting “invasion of ‘the sanctities of a man’s home and the privacies of life.’”41 Chief Justice Stone and Justice Frankfurter would again echo Justice Brandeis’ sentiments not long thereafter in Goldman v. United States.42

It was not until the era of wireless communications and tracking that this Court expanded our view of the Fourth Amendment to include notions of individual privacy—in Silverman v. United States,43 and Katz v. United States.44 In Katz specifically, this Court resoundingly and definitively adopted the notion that the Fourth Amendment includes protection of individual privacy to the extent that the interception of a conversation is unconstitutional even when it does not accompany a physical trespass. There, we considered a case where FBI agents obtained evidence of a defendant’s conversations by way of a listening device attached to the exterior wall of a telephone booth that did not penetrate the booth’s wall to the extent that a trespass had occurred. In holding the practice unconstitutional, we said that “the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any ‘technical trespass under . . . local property law.’”45 Moreover, at this time Justice Harlan, writing in concurrence, announced what would quickly be recognized by a majority of this Court as the test for determining what individual privacies the Fourth Amendment affords protection: “first[,] that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize [(objective)] as ‘reasonable.’”46

Since the era of Katz and Silverman, our Fourth Amendment jurisprudence has remained relatively consistent with the notions of individual privacy laid down in those key cases. In Smith v. Maryland, we further fleshed out Justice Harlan’s “reasonable expectation of privacy” test in a case where a pen register was used to record the telephone numbers the defendant dialed.47 In holding that this practice did not run afoul of the Fourth Amendment when the pen register is installed at the defendant’s telephone company at police request, we reasoned that even if a criminal defendant has an “actual . . . expectation of privacy” in the telephone numbers he dials, “society is [not] prepared to recognize [this expectation of privacy] as ‘reasonable’”48 because “a person has no legitimate expectation of privacy in information he voluntarily [exposes] . . . to

39 See generally, e.g., United States v. Jones, --- U.S. ---, 132 S.Ct. 945 (2012); Bond v. United States, 529 U.S. 334 (2000); California v. Ciraolo, 476 U.S. 207 (1986); Smith v. Maryland, 442 U.S. 735 (1979). In Katz, 389 U.S. at 351—specifically—we resoundingly and definitively said that “the Fourth Amendment protects people, not places.”40 See Olmstead, 277 U.S. at 468.41 Id. at 473 (Brandeis, J., dissenting) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886) (emphasis added)).42 See 316 U.S. 129, 136 (1942).43 See 365 U.S. 505 (1961).44 See 389 U.S. at 347.45 Id. at 353 (quoting Silverman, at 511).46 Id. at 361 (Harlan, J., concurring).47 See 442 U.S. 735, 738-40 (1979).48 Katz, 389 U.S. at 361 (Harlan, J., concurring).

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third parties.”49 Referencing our decision in the Miller case specifically, we noted that this lack of a societally recognized expectation of privacy is ever more apparent when the third party’s records relating to the individual, and sought by the government, are—on the most fundamental level—“‘voluntarily conveyed to . . . [,] and [voluntarily] exposed to . . . [, the third party’s] employees in the ordinary course of business.’”50 We stated further:

The [individual] takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.51

Thereafter, in concluding in Smith, we held that because a person “assume[s] the risk” of disclosure whenever they voluntarily convey information to a third party, “it would be unreasonable for [that person] . . . to expect his . . . records to remain private”52 under Justice Harlan’s “reasonable expectation of privacy” test.53

Following on the heels of Smith, in United States v. Karo we were asked to decide whether placing a tracking beeper on an industrial drum by the drum’s third party owner—with the drum being later sold to the defendant, and the tracking beeper being later used to track the drums movement to the defendant’s house—was unconstitutional.54 In holding that this activity did indeed contravene the Fourth Amendment, we held that—similar to the fact that “a person has no legitimate expectation of privacy in information he voluntarily [exposes] . . . to third parties[,]”55—“[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”56 It is only “[w]hen a person’s property is concealed from public view”—as was the case in Karo—that “his possession is private and the subject of Fourth Amendment protection.”57

Then, following Karo, in United States v. Knotts we examined a case where police placed a tracking beeper in an industrial drum—with the consent of the drum’s third party owner—and used it to follow the defendant all the way to a clandestine drug lab by way of both visual surveillance, and the signal emitted from the tracking beeper when the police lost visual contact.58 In finding the conduct constitutional under the Fourth Amendment under Justice Harlan’s “reasonable expectation of privacy” test,59 we reasoned that:

49 Smith, 442 U.S. at 743-44 (internal citation omitted). See also, e.g., United States v. Miller, 425 U.S. 435, 442-44 (1976); Couch v. United States, 409 U.S. 322, 335-36 (1973); United States v. White, 401 U.S. 745, 752 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302 (1966); Lopez v. United States, 373 U.S. 427,437-39 (1963).50 Smith, 442 U.S. at 744 (citing Miller, 425 U.S. at 442) (emphasis added).51 Id. (citing Miller, 425 U.S. at 443).52 Id.53 See Katz, 389 U.S. at 361 (Harlan, J., concurring).54 See 468 U.S. 705, 707 (1984).55 Smith, 442 U.S. at 743-44 (internal citation omitted).56 Karo, 468 U.S. at 730 (internal quotation and citation omitted).57 Id. at 731.58 See 460 U.S. 276, 278-80 (1983).59 See Katz, 389 U.S. at 361 (Harlan, J., concurring).

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The governmental surveillance conducted by means of the [tracking] beeper in this case amounted principally to the following of an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.60

We then concluded by noting that:

A police car following [a defendant] at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin . . . [T]here is no indication that the beeper was used in any way to reveal information . . . that would not have been visible to the naked eye.61

In sum, our understanding that the Fourth Amendment affords shelter to certain individual privacy concerns. Further, the determination of exactly which concerns are protected hinges on whether a person has an actual expectation of privacy, and whether society recognizes that expectation as reasonable.”62 However, as a recent decision of this Court has caused confusion and disagreement among the lower courts of appeals, we now take the time to contextualize that holding within the greater picture of this Court’s Fourth Amendment jurisprudence.

V.It may be said that—at least on some level—the schism that both currently divides the

lower courts of appeals, and led to our grant of certiorari in the instant case, is the direct result of misunderstanding regarding this Court’s most recent piece of Fourth Amendment Jurisprudence. Specifically, nearly three years ago—in Jones—this Court discussed at length the constitutionality of physically installing a GPS device on a suspect’s car for the purposes of tracking their movements.63 Although we concluded that the physical installation of a G.P.S. device without a warrant to be a physical trespass conducted without a warrant in violation of the Fourth Amendment, it was our reasoning that is instructive.64 In actuality, Jones is not an abandonment of our prior Fourth Amendment jurisprudence’s reliance on Justice Harlan’s “reasonable expectation of privacy” test—instead, it stands as a reminder that even when a person does not have an actual expectation of privacy that society recognizes as reasonable,65 the Fourth Amendment still protects against what has been recognized by this Court as far back as Olmstead as common-law trespass.66 As such, when there has been no trespass, the question is whether a person has an actual expectation of privacy that society recognizes as reasonable.67 However, when there has been a trespass, the Fourth Amendment is implicated in order to

60 Knotts, 460 U.S. at 281.61 Id. at 285.62 Id. at 361 (Harlan, J., concurring).63 See --- U.S. at ---, 132 S.Ct. at 948-50.64 See id. at 950-55.65 See Katz, 389 U.S. at 361 (Harlan, J., concurring).66 See 277 U.S. at 468.67 See Katz, 389 U.S. at 361 (Harlan, J., concurring).

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“assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”68

This is not to say that any trespass onto an individual’s personal property is a per se violation of the Fourth Amendment under Jones. Instead, as we said in that case, the cases of Knotts and Karo support the proposition that when the trespass occurs before the property comes into the individual’s possession, this is not a Fourth Amendment trespass because no trespass can occur upon the consent of the property’s then-owner, and any individual who later acquires the property can be seen to be seen as accepting the property, tracking device and all.69

In sum, under Katz and Jones, Fourth Amendment issues are decided first by determine if government action has caused a physical trespass against an individual’s personal property,70 and—if not, or if the trespass occurred before the item came into the individual’s possession—then determine if the person nevertheless has an actual expectation of privacy that society recognizes as reasonable in their activity.71

VI.With the extent of the protections provided by the Fourth Amendment fully outlined

above, we now turn to applying that analysis to the instant case.Despite the SCA’s protections discussed above,72 Respondent argues that the § 2703(d)

subpoena compelling the production of Verizon cellular telephone locations records violated his Fourth Amendment rights. To prevail on this Fourth Amendment claim, Respondent must show both that the application of the SCA to the facts of the instant case constituted a “search” within the meaning of the Fourth Amendment, and that the search was unreasonable.

As stated above,73 we must first ask if the government action has caused a physical trespass against an individual’s personal property. Clearly, in this case we must answer this question in the negative because, unlike the situation we dealt with in Jones, the government agents in the present case never committed a physical trespass against Respondent’s cellular telephone. The agents merely obtained a § 2703(d) subpoena, and it was Verizon—Respondent’s 68 Jones, --- U.S. at ---, 132 S.Ct. at 950 (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)) (internal quotation omitted). See also, e.g., Alderman v. United States, 394 U.S. 165, 180 (1969) (“[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home.”); Soldal v. Cook County, 506 U.S. 56, 64 (1992) (While Katz establishes that “property rights are not the sole measure of Fourth Amendment violations,” this does not “snuf[f] out the previously recognized protection for property.”).69 See Jones, --- U.S. at ---, 132 S.Ct. at 952 (“[T]the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts' possession, with the consent of the then-owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. . . . [Likewise, in Karo, a]s in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. Thus, the specific question we considered was whether the installation with the consent of the original owner constituted a search or seizure when the container is delivered to a buyer having no knowledge of the presence of the beeper. . . . [In finding the beeper placement constitution, we held that] Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location.”) (internal citation and quotation omitted) (emphasis added and not added). Cf. On Lee v. United States, 343 U.S. 747, 751-52 (1952) (finding no Fourth Amendment violation where an informant, who was wearing a wire, was invited into the defendant’s business).70 See Jones, --- U.S. at ---, 132 S.Ct. at 950-55.71 See Katz, 389 U.S. at 361 (Harlan, J., concurring).72 See supra Part III.73 See supra Part V.

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service provider—that turned over the requested cellular telephone location records. Nothing in the record before us leads us to any other conclusion other than to say that no physical trespass was committed against Respondent’s cellular telephone to the extent that our holding in Jones would suggest that Fourth Amendment protection is warranted.74

However, this does not end our analysis because—as we said in Jones—“the Katz . . . test has been added to, not substituted for, . . . common-law trespass[.]”75 As such, following Katz, we must now ask whether Respondent in the instant case had an actual expectation of privacy that society recognizes as reasonable in their cellular telephone location information.76 We must answer this question in the negative for two reasons.

First, Respondent does not have an actual expectation of privacy in his cellular telephone location information because—as Justice Harlan noted in his concurrence in Katz—a person in a telephone booth may rely upon the protection of the Fourth Amendment. “[O]ne who occupies [a telephone booth,] shuts the door behind him, and pays the toll that permits him to place a call[,] is surely entitled to assume that his conversation is not being intercepted.”77 The key word here is conversation. Surely, if the government were to claim that § 2703(d) authorizes the placing of a wiretap to record Respondent’s cellular telephone conversations based upon only a showing that there exists reasonable grounds to believe that the conversations sought are relevant and material to an ongoing criminal investigation, this would not pass constitutional muster. However, seeking only discern the location of Respondent’s cellular telephone when such conversations took place—without more—does not run afoul of the Fourth Amendment because most cellular telephone subscribers know that their provider needs to know their location in order to facilitate a cellular telephone call.

Second, and even if we were to assume that Respondent did harbor some subjective expectation that his cellular telephone location information would remain private, this expectation is not one that society is prepared to recognize as reasonable. As stated above,78 we have consistently held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”79 Not only that, but as we have added:

[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.80

In the present case, when he used his phone, Respondent voluntarily conveyed his cellular telephone’s location information to his service provider—such cellular telephone location information is essential for modern cellular telephone communications. Given this, “[t]he fortuity of whether or not the phone company in fact elects to make a quasi-permanent

74 See Jones, --- U.S. at ---, 132 S.Ct. at 950-55.75 Id. at 952.76 See Katz, 389 U.S. at 361 (Harlan, J., concurring).77 Id. (internal citation and quotation omitted) (emphasis added).78 See supra Part IV.79 Smith, 442 U.S. at 743-44.80 Miller, 425 U.S. at 443. See also In re Grand Jury Proceeding, 842 F.2d 1229, 1234 (11th Cir. 1988) (“[A]n individual has no claim under the fourth amendment to resist the production of business records held by a third party.”).

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record of . . . [the location from which a cellular telephone call is made, this] does not[,] in our view, make any constitutional difference.”81

In sum, and in all likelihood, Respondent probably did not entertain an actual expectation of privacy in his cellular telephone’s location information, but—even if he did—this expectation was not legitimate. As such, the government obtaining Respondent’s cellular telephone’s location information by way of a § 2703(d) subpoena—issued upon a showing that reasonable grounds existed to believe that the records sought were relevant and material to an ongoing criminal investigation—did not run afoul of the Fourth Amendment because it was not an unreasonable search.

VII.For the reasons stated above, the judgment of the United States Court of Appeals for the

Eighth Circuit is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.

It is so ordered.______________________________________________________________________________

JUSTICE SCALIA, with whom JUSTICE THOMAS and JUSTICE ALITO join, dissenting as to Parts III, VI, and VII of the Opinion of the Court.

Today, the Court issues a sweeping holding that will have profound implications for the constitutional implications and application of Fourth Amendment rights in the digital age, While I agree with the Court’s reiteration of our prior Fourth Amendment jurisprudence under Katz82

and Jones,83 I dissent as to Parts III, VI, and VII of today’s opinion to express my strong distaste for the path the Court’s has chosen for the Fourth Amendment to follow.

As such, for the reasons stated below—notably, that a legitimate expectation of privacy is being impinged upon in the instant case, and that the Court’s holding makes much of the text of the Fourth Amendment superfluous—I strongly dissent.

I.At its most basic level, the present case succeeds or fails with the application of Justice

Harlan’s “reasonable expectation of privacy” test first announced in his concurrence in Katz—that is to say that the Fourth Amendment protects against unreasonable searches, and that determining what searches are unreasonable when no physical trespass has taken places hinges on whether the individual being searched has an actual expectation of privacy that society recognizes as reasonable.84 Therefore—in the present case—if Respondent had an actual expectation of privacy in his cellular telephone’s location information that society recognizes as reasonable, the government obtaining such data without a warrant must be found to be unreasonable in view of the Fourth Amendment. However, if Respondent did not have an actual expectation of privacy in his cellular telephone’s location information, or—even if he did—society does not recognizes this expectation of privacy as reasonable, a § 2703(d) subpoena for the acquisition of cellular telephone location information was be permissible.

81 Smith, 442 U.S. at 745.82 See Katz, 389 U.S. at 361 (Harlan, J., concurring).83 See Jones, --- U.S. at ---, 132 S.Ct. at 950-55.84 See Katz, 389 U.S. at 361 (Harlan, J., concurring).

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So how is this Court to proceed? Well, first of all, I disagree with the Majority’s eagerness to cast off Respondent as not having an actual expectation of privacy in his cellular telephone’s location information. In particular, the Majority provides no facts or scientific studies to back up its claim that “most cellular telephone subscribers know that their provider needs to know their location in order to facilitate a cellular telephone call.”85 Quite to the contrary, while the average cellular telephone subscriber may have some knowledge that his cellular telephone must send and receive a signal to a nearby cellular tower in order to wirelessly send and receive a cellular telephone call,86 it is not clear if the subscriber is aware that the transmission of signals between cellular telephone and cellular tower happens constantly—not only when the user makes or receives a cellular telephone call.87 Since most—if not all—cellular telephones display to the subscriber some way of measuring the strength of the signal between their cellular telephone and their provider’s cellular tower,88 are we to assume that the average cellular telephone user assumes that his location is being tracked and recorded by his provider every minute of every day that his cellular telephone is receiving any signal from one of his provider’s cellular towers? Certainly not.

Furthermore, does the average cellular telephone user know that when his device signals a nearby cellular tower, the signal can be used—either by his service provider or government agents—to determine his location?89 Again, certainly not. Much as in the case of users of two-85 Opinion of the Court at ___ (emphasis added).86 See generally, e.g., Dumm, 36 SEATTLE U. L. REV. at 1479 (internal citation omitted); Briana Schwandt, Is the Government in My Pocket? An Overview of Government Location Tracking of Cell Phones under the Federal System and in Montana, 72 MONT. L. REV. 261, 286 (2011); Note, Who Knows Where You’ve Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators , 18 HARV. J.L. & TECH. 307, 309 (2004); Laurie Thomas Lee, Can Police Track Your Wireless Calls? Call Location Information and Privacy Law , 21 CARDOZO ARTS & ENT. L.J. 381, 383 (2003). See also In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 450 (noting the different methods by which cellular telephone location information is obtained, recorded, and archived by a service provider).87 See In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 450 (“Whenever a cellular telephone is in the “on” condition, regardless of whether it is making or receiving a voice or data call, it periodically transmits a unique identification number to register its presence and location in the network. That signal, as well as calls made from the cellular phone, are received by every antenna tower within range of the phone.”). See also Dumm, 36 SEATTLE U. L. REV. at 1479 (“When a cell phone is switched “on,” it periodically transmits a signal to all tower antennae within the phone’s range. The time distance of arrival method essentially tracks a phone’s longitude and latitude when a communication is sent or received, and a triangulation algorithm produces an estimate of the phone’s location by measuring the time it takes for different cell towers’ signals to reach the phone.”) (internal citation omitted).88 See In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 450-51. (“The location of the antenna tower receiving a signal from a given cellular telephone at any given moment inherently fixes the general location of the phone. Indeed, in some instances, depending upon the characteristics of the particular network and its equipment and software, it is possible to determine not only the tower receiving a signal from a particular phone at any given moment, but also in which of the three 120–degree arcs of the 360–degree circle surrounding the tower the particular phone is located. In some cases, however, the available information is even more precise.”). See also Dumm, 36 SEATTLE U. L. REV. at 1479 (“[T]he angle of arrival . . . relies on transmissions between the phone and a tower, but the algorithm uses the angles of the signals, rather than a measurement of time, to approximate the phone’s location. The calculation’s accuracy depends to some degree on the number of cell towers within the phone’s range.”) (internal citation omitted).89 See generally Dumm, 36 SEATTLE U. L. REV. at 1480 (“Law enforcement agencies rely on the cellular provider’s call detail record to determine a cell phone’s location during a specific time. The data in the record is often classified as prospective or historical . . . [. Prospective] cell site location information [is recorded] as it happens in real time, whereas historical data allows the government to learn about a suspect’s past and often relatively recent whereabouts. When a cell phone sends or receives a communication, the cellular provider automatically records a data set corresponding to each call or text message for billing purposes. Most standard call detail records show the

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way radios, while the average cellular telephone user may be aware that his device signals a nearby cellular tower, he is no doubt unaware that such signals can be used to determine his location.90 Indeed, none of the parties in this case have advocated for the proposition that when one uses a cellular telephone, he loses all notions of privacy, and intentionally broadcasts his location to the entire world.

Thus, today the Court bases its holding on what it personally thinks society should find reasonable; not on whether Respondent has an actual expectation of privacy in his cellular telephone’s location information that society recognizes as reasonable. 91 This is simply not the result this Court could have ever predicted—let alone, sanctioned—by our holding in Katz.

II.Yet, more frightening than the Court’s bastardization of Justice Harlan’s “reasonable

expectation of privacy” test92—warping it so as to justify the result desired—is its willingness to do so with not only a high level of disregard for the expectations of the average citizen of our republic, but also an inability to full grasp what today’s decision will mean for the text of the Fourth Amendment itself.

Unbelievably, today the Court has essentially authorized the use of § 2703(d) subpoenas as a means for the government to track any individual’s location not by way of some implanted tracking device, but by way of something so essential to communication and daily life to many Americans as the cellular telephone. While the Court tries to convince itself that § 2703(d) “‘states the constitutional standard’”93—and that “§ 2703(d) subpoenas are functionally indistinguishable from Fourth Amendment search warrants because, ‘[i]n the criminal context[,] the[y] . . . protec[t an] individual’s legitimate expectation of privacy against the overzealous police officer’”94—this argument is unconvincing.

Sure, one can accept the Court’s assertion that the mechanisms § 2703(d) would have the government employ to carry out their unreasonable searches is, at best, mildly similar to those required by the Fourth Amendment—“the government must both obtain a court order, and present specific and articulable facts to a judge showing that there exists ‘reasonable grounds’ to believe the records are relevant and material to an ongoing criminal investigation.”95 However, the Fourth Amendment does more than prescribe a set of mechanisms for carrying out a search; it unequivocally states the physical interests to be protected. Indeed, “[t]he text of the Fourth Amendment reflects its close connection to [physical interests] . . . , since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and

time of the call, the duration of the call, the tower from which the call was sent or received, and the specific “face” of the tower from which the call was sent or received. . . . Once a party has obtained the call detail record for the relevant dates and times, the information can be synthesized to map the vectors approximating the phone’s location when it sent or received a communication[.]”) (internal citation and quotation omitted).90 See In re Application of the United States for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F.Supp.2d at 451 (“Often, especially in urban and suburban areas, the signal transmitted by a cellular telephone is received by two or more antenna towers simultaneously. Knowledge of the locations of multiple towers receiving signals from a particular telephone at a given moment permits the determination, by simple mathematics, of the location of the telephone with a fair degree of precision through the long established process known as triangulation. Real time information concerning the location permits the geographic movements of the phone to be tracked as they occur.”).91 See Katz, 389 U.S. at 361 (Harlan, J., concurring).92 See id.93 Opinion of the Court at p.10 (quoting Henry, 361 U.S. at 100).94 Id. at p.9 (quoting Opperman, 428 U.S. at 383).95 Id. (quoting 18 U.S.C. § 2703(d)).

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seizures’; the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous.”96

In sum, under the conclusion the Court reaches today, I fear that half of the text of the Fourth Amendment can now be thought of as superfluous if the government tracking the location of an individual’s cellular telephone without a warrant does not contravene “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]”97

III.For the reasons stated above—because Respondent had a legitimate expectation of

privacy in his cellular telephone’s location information, and because § 2703(d) falls far short of the constitutionally mandated procedures necessary for the government to be able to impinge such a privacy expectation—I cannot join the Court as it prances down this uncharted path of Fourth Amendment jurisprudence.

Accordingly, I strongly dissent.

96 Jones, --- U.S. at ---, 132 S.Ct. at 949 (quoting U.S. CONST. AMEND. IV).97 U.S. CONST. AMEND. IV.

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