Standout Element in Carpenter v. U.S. Decision: Justice Gorsuch’s Dissent

On Friday, the Supreme Court ruled that law enforcement need to obtain search warrants to access phone location information.

Lauryn Gouldin is an associate professor of law at the Syracuse University College of Law. Professor Gouldin teaches constitutional criminal procedure, criminal law, evidence, constitutional law, and criminal justice reform.

Gouldin says:

“One interesting aspect of the recent decision in Carpenter v. United States is Justice Gorsuch’s dissent. While many will, no doubt, cast the Carpenter decision as a 5-4 decision narrowing the reach of the Court’s broadly-applied and long-criticized third-party doctrine, close readers will see that the lineup is a bit more complex. For those trying to predict where the justices stand on Fourth Amendment issues going forward, this is better characterized as a 5-3-1 decision with Justice Gorsuch standing alone.

“Although he dissents, Justice Gorsuch repeatedly suggests that he sees government overreaching (and a potential Fourth Amendment violation) in the factual background of the case. He unmistakably criticizes the third-party doctrine, stating, for example, that ‘[c]onsenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government’ and agreeing with the majority that ‘the rationale of Smith and Miller is wrong.’

“Despite these concerns about the doctrine and about the underlying question, Justice Gorsuch dissents from the majority opinion, ruling against Carpenter on procedural grounds. In Gorsuch’s view, Carpenter failed to assert and develop essential property-based, positive law arguments that Justice Gorsuch suggests might have persuaded him to rule in Carpenter’s favor. (‘In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.’) Justice Gorsuch says, explicitly, that it is ‘entirely possible a person’s cell-site data could qualify as his papers or effects under existing law’.”

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