Privacy Case Caps Gorsuch’s First Full Term, Kennedy’s Last

Newly recognized Fourth Amendment rights in mobile phone location data highlighted the U.S. Supreme Court’s criminal docket for the October 2017 term.

Chief Justice John G. Roberts Jr. once again led the court’s march toward greater search and seizure protections in the digital age.

His landmark 5-4 decision for the court in Carpenter v. United States held that gathering the data from wireless carriers usually requires probable cause warrants. In doing so he upended the logic previously used by lower courts to allow warrantless collection.

Carpenter will have huge implications not just for accessing the records at issue in the case, but also for the myriad ways in which our willingness to share sensitive information with private companies clashes with law enforcement’s need to solve crimes.

It was one of three Fourth Amendment victories for criminal defendants in a term that gave them a winning record overall.

The Supreme Court “continued its thoughtful realignment of Fourth Amendment rules to accommodate the realities of twenty-first century policing,” criminal law professor Stephen E. Henderson told Bloomberg Law. He teaches at the University of Oklahoma College of Law in Norman, Okla.

“In general, this was a good term for criminal defendants in areas as varied as the Fourth Amendment, obstruction of justice, the death penalty, and criminal restitution,” Harry Sandick, a former prosecutor and current partner at Patterson Belknap Webb & Tyler LLP in New York, told Bloomberg Law. He filed an amicus brief supporting the defendant in Carpenter.

“Broadly speaking, the Court expressed some concern about government overreach, which is a theme we have seen in recent years,” Sandick said.

That theme featured in some of the rulings of Justice Neil M. Gorsuch, who just completed his first full term. His criminal justice jurisprudence usually worked to favor defendants in divided cases.

But the most consequential event of the term came on the last day, when Justice Anthony M. Kennedy announced his retirement. He authored or was in the majority for several close and important cases on both sides of the death penalty debate. It’s unclear whether his replacement will likewise be a swing vote in this area.

Carpenter Expands Fourth Amendment

Roberts’s opinion in Carpenter was perhaps unsurprising. The Chief Justice also wrote the unanimous 2014 opinion in Riley v. California, which held that cops need warrants to search the mobile phones of people they arrest.

“The Carpenter result is particularly important,” Henderson said. “Now courts can move forward, appropriately protecting our fundamental privacies in the twenty-first century.”

But Carpenter wasn’t unanimous. Roberts was joined by the Democratic appointees; all four Republican appointees wrote separate dissents. The fact that Gorsuch dissented was noteworthy given his aggressive questioning of the government at oral argument. But some court watchers have said Gorsuch’s dissent sounded more like a concurrence. Like the majority, the newest justice also criticized precedents from the 1970s which held that people have no rights in the information they convey to third parties, known as the third-party doctrine.

Carpenter was a big win for criminal defendants and civil libertarians, who applaudedthe ruling.

The dissenters, particularly Kennedy and Justice Samuel A. Alito Jr., feared the result put too many restrictions on law enforcement. It “limits the effectiveness of an important investigative tool for solving serious crimes,” Kennedy charged.

“Expect to see future litigation over the question of what types of information or investigative steps are akin to Carpenter—the decision is deliberately narrow and leaves a lot to lower courts and future Supreme Court decisions,” Sandick said.

The decision “leaves a great deal to be resolved,” Henderson said. “But that’s okay,” he said. “It is a wiser Court that cautiously sets the path for improvement, allowing the common-law judicial process to work out the difficult details.”

Other Big Case Goes Quietly

Another highly anticipated crime-fighting dispute, United States v. Microsoft Corp., was likewise set to test the intersection between modern technology and law enforcement.

The question was whether U.S. email service providers had to comply with probable cause warrants by disclosing data stored on foreign servers.

But the court was saved from deciding the issue by a provision tucked into the 2,000-plus page omnibus bill that President Trump signed March 23. It contained legislation mooting the dispute, and the justices tossed the case April 17 in a brief unsigned opinion.

Breakdown: Defendants Usually Win

Microsoft was one of two criminal cases fully briefed and argued but not decided. The other was City of Hays, Kansas v. Vogt, a Fifth Amendment case the court “dismissed as improvidently granted” after argument.

That left just 20 criminal or quasi-criminal argued cases that were actually decided. Of those, defendants, immigrants, or arrestees won 13 times.

Of those 20 decisions, 13 prompted dissent; defendants won 10 of those cases.

Justices Sonia Sotomayor and Elena Kagan always voted in the divided cases against the government. Alito and Justice Clarence Thomas each voted against the government just once; Justices Ruth Bader Ginsburg and Stephen G. Breyer did exactly the opposite. Gorsuch, Roberts, and Kennedy were more varied. Kagan and Gorsuch were recused in one divided case each.

New Guy Helps Break Ties

Two of the more contentious decisions came in “crimmigration” cases—at the intersection of immigration and criminal law. They were reargued this term after an eight-member court failed to reach results in the wake of Justice Antonin Scalia’s 2016 death.

In Sessions v. Dimaya, the court sided with an immigrant the government wanted deported. Kagan wrote for the 5-4 majority that part of an immigration law subjecting certain offenders to removal is unconstitutionally vague. It was a followup to the high court’s 2015 ruling in Johnson v. United States, where Scalia wrote a decision striking down similar language in the Armed Career Criminal Act. Gorsuch joined Kagan’s result but concurred separately.

Dimaya addressed the problem of a statute that’s “amorphous and sweeping” and contributes “to arbitrary decision making and excessive sentences,” Leah Litman told Bloomberg Law after the decision was issued. She’s a professor at University of California, Irvine School of Law.

Kagan recused in the other crimmigration case, Jennings v. Rodriguez, after she realized she had worked on it during her time as solicitor general. That set up another possible deadlock.

Gorsuch broke the tie there, too, siding this time with the government. He joined Alito’s 5-3 opinion overturning a ruling that immigrants detained pending removal proceedings were entitled to bond hearings every six months.

Four for Fourth

The court ruled for criminal defendants in two other search and seizure cases in addition to Carpenter, reaffirming peoples’ rights on the road and in homes.

A driver can challenge the search of a rental car, even if he’s not listed on the rental agreement, the justices held in Byrd v. United States.

And the automobile exception, which allows warrantless searches of suspect vehicles, doesn’t automatically allow cops to enter the area immediately surrounding a home in order to search a vehicle parked there, they held in Collins v. Virginia.

But a quirky fact-bound case handed a loss to “partygoers” who sued police for false arrest. There was probable cause and the officers were entitled to qualified immunity, Thomas wrote for the court in District of Columbia v. Wesby. He was perplexed by some of the attendees’ inability to identify the bachelor at the purported bachelor party.

“The Fourth Amendment decisions this term were welcome, but were not a surprise,” Henderson said. “In a series of opinions over the past few years, the Court has been reasserting its critical role as Fourth Amendment gatekeeper, whether it be in restricting law enforcement location tracking, approach to our homes, blood testing, or search of our computers and cell phones.”

Sentencing, Looking Through

The justices also sorted out some issues on the back-end of the criminal justice process.

Their forays into sentencing yielded mixed results. In two rulings handed down the same day, the justices ruled for one type of sentencing challenge in Hughes v. United States and against another in Koons v. United States.

Hughes involved defendants who pleaded guilty under agreements that specified their sentences. A Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is “based on” the defendant’s federal sentencing guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement, the court said. The defendant can seek a sentencing reduction in that case, it said.

Koons involved those whose sentences were reduced after they cooperated with the government and pleaded guilty against the backdrop of mandatory minimums. Applying Hughes, the court said the defendants in that case can’t get their sentences reduced because they were based on mandatory minimums, not the guidelines.

On the habeas corpus front, a divided court sided with a convict’s view of how federal courts should conduct habeas review of state court decisions in Wilson v. Sellers. Federal habeas courts need to “look through” unexplained state court decisions to ones that provide reasons for the rulings, a divided court held. A contrary ruling would have given federal habeas courts more latitude in upholding state court judgments by pointing to any reason that a state court could have had in summarily ruling against defendants rather than having to examine the actual reasons given by the state court.

The justices likewise ruled for the habeas petitioner in Ayestas v. Davis, which clarified what inmates need to show to get funding to investigate their lawyers’ alleged ineffectiveness. The U.S. Court of Appeals for the Fifth Circuit applied too strict a standard against the petitioner, the Supreme Court held.

Undefeated SCOTUS Champs

The term also had its share of minor legal celebrities, whose involvement in the cases will likely overshadow the results.

Fane Lozman made his second successful trip to Washington to tangle with the City of Riviera Beach, Fla. Lozman, the former Marine and self-styled corruption fighter, got the justices in 2013 to hold the city shouldn’t have taken his floating home as part of its redevelopment efforts. Lozman won again this term; the fact that there was probable cause for Lozman’s arrest at a city council meeting doesn’t preclude him from suing the city for retaliation, the court said.

But the justices June 28 granted review for next term in a case quite similar to Lozman’s, so it remains to be seen how broad that holding is.

The other legal celebrity from this term, Deputy Attorney General Rod Rosenstein, is probably best known for appointing Special Counsel Robert Mueller to investigate the Trump campaign’s potential ties to Russian interference in the 2016 election.

But the strait-laced DOJ official got out of the office and into court April 23 to argue a relatively low-key sentencing case. He scored a win June 18 when a divided court ruled for the government in Chavez-Meza v. United States.

Death Penalty Still Alive

Capital punishment remains a contentious issue, and the court’s rejection of a petition from Arizona that sought to topple it means the battle over its contours lives on.

“There were no major death penalty cases this term,” Sandick said. But one, McCoy v. Louisiana, posed a peculiar question: If a defendant insists on maintaining his innocence, can a lawyer concede the defendant’s involvement in the crime in the hopes of ultimately convincing the jury not to sentence him to death?

Louisiana courts said yes.

The Supreme Court said no.

Alito dissented, joined by Thomas and Gorsuch.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at