What do you call it when five justices follow the law, four ignore it, and act like partisan political hacks? Another bad day for the Liberals.

The Supreme Court came out with a major search and seizure decision, this week.  Called Carpenter v the United States  www.supremecourt.gov. In a 5-4 decision, the court decided that the government needed to obtain a search warrant in order to obtain cell phone records. All of the dissenting justices wrote opinions, Gorsuch was one of four. 

The government maintained that cell tower location information, metadata, GPS and other such information was gathered by the service provider for its use and not that of the customer. The information gained was collected for billing, maintenance, planning, troubleshooting and purposes unrelated to the customer’s desire to make a telephone call. It is the government’s position is correct then the customer has no stake in the information gathered and “no reasonable expectation of privacy.”

Chief Justice Roberts, writing for the majority decided that the data collected from a client phone belonged to the customer and thus the customer did have a “reasonable expectation of privacy.” This means that the government would be required to obtain a search warrant. Gorsuch-says-he’ll-repeal-and-replace-the-Fourth-Amendment-with-something-terrific.

I have included the decision above and also an article taking Gorsuch to task. I don’t know who the writer is. He may specialize in articles about how to pick up dog poop by the clean end. The regular court guy called in sick and the editor put him in. Could have happened that way.

Here I am a broke down old narc who stopped paying close attention to search and seizure law twelve years ago when I retired. I’m fixin’ to tell you how the cow ate the cabbage.

Up until the mid-sixties, the Fourth Amendment protected places. This didn’t require a whole lot of heavy lifting on the part of the court. “Officer, you got word that “Lefty” had 327 and a half cases of whiskey in his basement, so you went over and took it away from him? No warrant? The evidence is inadmissible, case dismissed, court is adjourned to the Bar Association club, drinks are on Lefty.

Things started to change, along came Katz. Katz was a bookie who used a specific telephone booth to do business. The cops put a wiretap on the telephone booth and Katz was busted. Katz had no control over the telephone booth. On his appeal, Katz pointed out, the phone booth had a door, a light, a little fan a seat and a shelf to write on, all the comforts of home. He paid rent, a nickel at a time, for the exclusive private use of the telephone. He had “a reasonable expectation of privacy.”

Pretty soon the term “reasonable expectation of privacy” was rolling off the lips of attorneys all over the country. Was this the “one size fits all” panacea to meet every search and seizure situation every time? Sadly, it was not.

Gorsuch throws out a new standard for consideration, “Is it yours?” In the case in hand, the telephone company has the data, but it was generated by your telephone. This joint effort implies joint ownership. If the target has an ownership interest, then the government is required to obtain a warrant.

Minority decisions can be entertaining to read. William O Douglas when he got rolling could be a real wit. Sometimes Justices use the minority decision to point out trouble on the horizon. For example:

Just about the time of the Civil War a minority decision came down where the Justices gave the police a warning. The Justices warned the police that their performance was unacceptable and that they needed to institute reforms. If the police did not the Justices might have to develop an exclusionary rule. Like clockwork, every twenty years up until the 1960’s a dissenting Justice would send a message. ( I’m paraphrasing) You assholes better knock this stuff off. If you don’t you won’t like our fix. We’re thinking of calling it the exclusionary rule.

Finally, in the 1960’s the Feds got really cute. They wanted into Mapp’s house but couldn’t obtain a search warrant. They contacted the local police and pointed out the locals weren’t bound by the same rules and they could search Mapp’s house without a warrant. The Feds would just go along because they were all buddies. Using the excuse of the local presence to justify their entry the Feds found what they were looking for in “plain view.” The court was not impressed and in Mapp V Ohio came up with a new concept, when the police don’t follow the rules, they don’t get to use the evidence they found as a result. The cops were outraged, this all came about without warning, nobody ever told them and there ought to be a kings X or something. They were told in eighty years of minority decisions.

Think of Gorsuch’s “Is it Yours” as the first shot in a four-man scramble. It’s up to somebody else to advance the ball, the next shot could put it in the hazard or be the perfect layup. Time will tell.

The moral of the story be careful about what you read when it comes to the court. You might get a law professor or the guy who writes about picking up turds from the clean end.