In Commonwealth v. Dunkins, No. 1003 EDA 2019 (Super. Ct. Feb. 12, 2020), the Pennsylvania Superior Court held that law enforcement did not need a search warrant to obtain from Moravian College cellphone tracking information that helped both college and Bensalem police identify the appellant as one of two masked men who entered the dormitory room of two other Moravian students, assaulted them and robbed one at gunpoint. The Superior Court distinguished the instant matter from Carpenter v. United States, 138 S.Ct. 2206 (2018), where the U.S. Supreme Court had held that law enforcement violated the Fourth Amendment when it obtained Timothy Carpenter’s cellphone tracking information from his wireless carriers by using a court order under the Stored Communication Act supported only by “reasonable grounds,” not the higher standard of probable cause demanded by the Fourth Amendment. Supporting the Bensalem Police Department’s actions in Dunkins, the Superior Court reasoned that the police could adhere simply to the lower, “reasonable grounds” standard because, as the information was specific to the college campus and so “owned,” in a sense, by the college, and because the appellant had consented to the college using the tracking information as it deemed proper, the appellant had no reasonable expectation of privacy in the tracking information.

In this month’s article, I examine the Superior Court’s reasoning in Dunkins and compare it to the U.S. Supreme Court’s reasoning in Carpenter. As with so many Fourth Amendment decisions, I review the underlying facts that the courts believed did or did not give rise to any expectation of privacy, what such expectation would be and how it would follow from interpreting those facts in light of the Fourth Amendment and precedential case law. Here we will conclude that the aforementioned underlying facts do not support the Superior Court’s conclusion or support it only by regarding those facts based upon very different assumptions made by the Supreme Court when it assessed those facts in deciding Carpenter.

Background