Fourth Amendment Reasonableness After Carpenter
128 Yale Law Journal Forum (2019 Forthcoming)
19 Pages Posted: 4 Jan 2019 Last revised: 1 Feb 2019
Date Written: December 20, 2018
Carpenter v. United States has already been recognized as one of this generation’s most important Fourth Amendment opinions. Commentators have highlighted—and generally lauded—the opinion’s limiting of the third-party doctrine, which also served as the main ground of contention between the majority, written by Chief Justice Roberts, and the four separate dissents. But just as important as the decision’s effect on the scope of the Fourth Amendment—when the Fourth Amendment applies—is its impact on the amendment’s content. The Supreme Court did not just hold that government acquisition of cell-site location data is subject to the Fourth Amendment. It also held that any process short of obtaining a warrant—and thus any level of suspicion short of probable cause—would be inadequate. On that basis, Carpenter struck down as unconstitutional a statute that allowed for such a practice. This Essay argues that Carpenter’s embrace of a categorical warrant requirement was a mistake, and that the Court missed the opportunity (one it will inevitably have to take up in the future) to decide when legislatively authorized warrantless electronic surveillance laws are reasonable.
Suggested Citation: Suggested Citation