Page 42 - TPA Journal July August 2018
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1 under standings in mind when applying the
—————— JUSTICE KENNEDY
believes that there is such a rubric—the Fourth Amendmentto innovations in
“proper ty-based concepts” that Katz purported surveillance tools. As technology hasenhanced
to move beyond. Post, at 3 (dissenting the Government’s capacity to encroach
opinion). But while property rights are often uponareas normally guarded from inquisitive
informative, our cases by no means suggest eyes, this Court has sought to “assure[ ]
that such an interest is “fundamental” or preservation of that degree of privacy against
“dispositive” in determining which government that existed when the Fourth
expectations of privacy are legitimate. Post, at Amendment was adopted.”
8–9. JUSTICE THOMAS (and to a large extent
JUSTICE GORSUCH) would have us abandon For that reason, we rejected in Kyllo a
Katz and return to an exclusively property- “mechanical interpretation” of the Fourth
based approach. Post, at 1–2, 17–21 Amendment and held that use of a thermal
(THOMAS J., dissenting); post, at 6–9 imager to detect heat radiating from the side of
(GORSUCH, J., dissenting). Katz of course the defendant’s home was a search. Because
“discredited” the “premise that property any other conclusion would leave homeown -
interests control,” 389 U. S., at353, and we ers “at the mercy of advancing technology,” we
have repeatedly emphasized that privacy determined that the Government—absent a
interests do notrise or fall with property rights, warrant—could not capi talize on such new
see, e.g., United States v. Jones, 565 U. S. 400, sense-enhancing technology to explore what
411 (2012) (refusing to “make trespass the was happening within the home.
exclusive test”); Kyllo v. United States, 533 U.
S. 27, 32 (2001) (“We have since decou pled Likewise in Riley, the Court recognized the
violation of a person’s Fourth Amendment “immense storage capacity” of modern cell
rights from trespassory violation of his phones in holding that police officers must
property.”). Neither party has asked the Court generally obtain a warrant before searching the
to reconsider Katz in this case. contents of a phone. We explained that while
the general rule allowing warrantless searches
Although no single rubric definitively incident to arrest “strikes the appropriate
resolves which expectations of privacy are balance in the context of physical objects
1 ,neither of its rationales has much force with
entitled to protection, the analysis is informed
respect to” the vast store of sensitive
by historical understandings “of what was
information on a cell phone.
deemed an unreasonable search and seizure
when [the Fourth Amendment] was adopted.”
The case before us involves the
On this score, our cases have recognized some
Government’s acquisi tion of wireless carrier
basic guideposts. First, that the Amendment
cell-site records revealing the location of
seeks to secure “the privacies of life” against Carpenter’s cell phone whenever it made or
“arbitrary power.” Second, and relatedly, that
received calls. This sort of digital data—
a central aim of the Framers was “to place
personal location information maintained by a
obstacles in the way of a too permeating police third party—does not fit neatly under existing
surveillance.”
precedents. Instead, requests for cell-site
records lie at the intersection of two lines of
We have kept this attention to Founding-era
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