Page 36 - March April 2021 TPA Journal

gave it to Davis; (2) he had permission to use the The Fourth Amendment “does not specify”
phone; (3) he had password access to the phone; what amounts to an unreasonable search. The
(4) he accessed his Facebook account from the Supreme Court has said its “ultimate touchstone” is
phone; and (5) he used the phone to capture simply “reasonableness.” But the Court has also
intimate videos of him and Davis. Fact (1) is said that “reasonableness” requires a “warrant
irrelevant. “[A] person has no standing to challenge supported by probable cause” or else a “specific
a search or seizure of property that was voluntarily exception to the warrant requirement.”
abandoned” or conveyed to another. And the It is beyond dispute that Officer Heckard began
Government correctly observes that fact (3) is not tracking the GPS coordinates only after receiving
supported by the record. Davis testified only that a warrant. And Beaudion concedes that the warrant
Beaudion “ha[d] to put in [his] screen name and . . was “supported [by] probable cause with regard to
. password” when logging onto Facebook, not [his] . . . illegal drug[] activities.” Those two facts
when accessing the phone more generally. make this an easy case.
Facts (2), (4), and (5) reduce to a claim that Beaudion nevertheless claims for the first time
Beaudion sometimes used Davis’s phone for on appeal that the GPS search was unreasonable
personal activities. There is no indication that because the authorizing warrant failed to comply
Beaudion ever used or possessed the phone outside with the Stored Communications Act (“SCA”).
of Davis’s presence. And the record doesn’t tell us The SCA creates various mechanisms by which
how often he accessed Facebook or captured a “governmental entity may require a provider of
intimate videos. What the record does tell us is that electronic communication service . . . to disclose a
Davis was the “primary user”; Davis had the phone record or other information pertaining to a
number long before she met Beaudion; Davis subscriber to or customer of such service.” 18
maintained possession of the phone throughout the U.S.C. § 2703(c)(1). One such mechanism allows
day of the arrest; and Davis’s parents paid the bill. the Government to “obtain[] a warrant” from a
No matter whether Beaudion actually expected state “court of competent jurisdiction” using
privacy in the phone, we cannot say his expectation “[s]tate warrant procedures.” Id. § 2703(c)(1)(A).
of privacy would be reasonable. That is exactly what happened here. The Louisiana
Here, the GPS coordinates told MPD officers district court that issued the warrant is
nothing about Beaudion specifically. It was only unquestionably a court of competent jurisdiction
because Officer Heckard spoke with a confidential within the meaning of the SCA. See id. §
informant and overheard her conversation with 2711(3)(B). And there is no indication that Officer
Davis that he suspected Beaudion would be nearby. Heckard or Judge Jefferson violated state warrant
Obviously, Heckard’s interactions with the procedures. So the warrant clearly complies with
informant were not a search. the plain text of the SCA. Beaudion disagrees. He
And nothing in Carpenter requires us to hold contends that the SCA requires the Government to
that Heckard’s non- search became a search simply produce probable cause that the subscriber or
because Beaudion decided to ride with Davis. customer committed a crime. And because Davis’s
Beaudion’s claim to Fourth Amendment standing parents were the relevant Verizon subscribers,
therefore fails. Beaudion insists that the SCA invalidates a warrant
Even if Beaudion has standing to challenge the premised on illegal activities not involving Davis’s
GPS search, he must also show the search was parents. The argument borders on frivolous.
unreasonable. He has not done so. Nowhere does § 2703 require a showing of

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