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Peter A. Crusco

On Nov. 29, 2017, the U.S. Supreme Court heard oral argument in a significant privacy case implicating the Fourth Amendment interpretation in the digital age, Carpenter v. United States.1 At issue was whether certain telephone business records evidence, known as historical cell site location information (CSLI), was erroneously admitted at trial in violation of the Fourth Amendment to the U.S. Constitution prohibiting unreasonable searches and seizures. The CSLI records concerned a 127-day period, the alleged time period of the crimes charged, and were obtained by authorities without a search warrant satisfying the required standard of probable cause. The evidence was presented at petitioner Timothy Carpenter’s trial, and explained by an FBI expert and supported by accomplice testimony resulting in his conviction and lengthy prison sentence. Although not mentioned by name during the oral argument, the spirit of People v. Weaver, 12 N.Y.3d 433, a case decided by the New York Court of Appeals in 2009, dealing with the suppression of evidence resulting from the 65-day warrantless use by police of a GPS tracking device, had clearly descended over the courtroom. A Weaver mist like the presence of a Charles Dickens’ Christmas ghost seemed to be ever present, and barely visible in certain of the questions and expressed concerns by the learned justices. This article will analyze the issues raised in Carpenter, and compare them with those in Weaver, and in the spirit of the season, hope to shed new light on this evolving and often confusing area of privacy, third-party digital records and Fourth Amendment jurisprudence.

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