When and how will the Supreme Court enter the cell-site fray?

|The Volokh Conspiracy |

In an earlier post, I noted the Fourth Circuit's new decision on Fourth Amendment protection for historical cell-site data. In this post, I want to consider whether the Supreme Court might step in and what the Justices might do.

First, when might the Supreme Court take up these issues? The issue is probably (although not certainly) going to the Supreme Court, although I'm not sure which case is the likely vehicle to get there.

Here's how I see it, with my apologies for some in-the-weeds appellate nerd talk. Right now, there are at least two and maybe three splits raised on the facts of Graham: What is a search, what searches are reasonable, and the proper interpretation of the Stored Communications Act. On one hand, a cert petition from the Eleventh Circuit's Davis case was filed just last week. The Davis petition mostly raises these issues, so the Court could grant in Davis and just hold Graham for the outcome in Davis.

But there's a catch. DOJ might file a petition for rehearing in Graham. That might lead the Justices to deny Davis because they won't know the future of Graham: If Graham might be reheard en banc by the Fourth Circuit, the splits might mostly go away on their own. But would DOJ petition for rehearing in Graham? I don't know what the odds are that en banc rehearing would be granted. You have Judge Diana Motz's dissent on one hand, but a pretty liberal Fourth Circuit these days (and perhaps an interest in getting the case to the Supreme Court among some judges) on the other. I'm not sure how that plays out.

Also complicating matters is that in all of these cases, the government ultimately won on the good-faith exception. As I see it, the good-faith claims are so strong that it's pretty clear the government will win as to the ultimate result in any of the cases if the Supreme Court takes them. That won't stop the Court from taking the cases, because in theory the Court could still rule for the defense. But it does add a wrinkle: If the government seeks review of the Fourth Amendment issue in Graham, the Court would need to add the question of whether the government (which won below) can seek review of the underlying Fourth Amendment issue by extending Camreta v. Greene. Does that added wrinkle counsel in favor of the Court taking Davis, which doesn't raise that added question? I'm not sure.

So where are we? If DOJ doesn't petition for rehearing in Graham, the Court might end up taking Davis instead of Graham. If DOJ petitions for rehearing in Graham and rehearing is granted, the split goes away at least for now and the Supreme Court likely stays out of it. If DOJ petitions for rehearing in Graham and rehearing is denied, the issue may get to the Supreme Court on DOJ's petition in Graham. At least those are my guesses. If readers have more informed opinions, please leave them in the comment thread below.

How might the Justices rule? Focusing on the "search" question, there are really three options: 1) collection of historical cell-site data from providers is never a search, 2) collection of historical cell-site data from providers is sometimes a search (such as "extended" records under the mosaic theory), and 3) collection of historical cell-site data is always a search. Based on her Jones concurrence, it seems likely that Justice Sotomayor would vote that collection of such records are sometimes or always a search.

Based on Part II of his Riley concurrence, on the other hand, Justice Alito probably would rule that such collection is never a search. The issue has been the subject of considerable federal and state legislative attention, to which Justice Alito presumably would defer. I also suspect that Justice Scalia would rule that the collection of such data is not a search, as the constitutional claim relies on some novel privacy theories the likes of which Justice Scalia has generally criticized.

It's harder to predict other Justices, I think. Fourth Amendment cases are pretty unpredictable. True, when it comes to the Fourth Amendment responding to technological change, all the Justices appear to be on board with the general concept. But how the concept applies to cell-site records is hard to say. It's possible to write an equilibrium-adjustment-based opinion for any of the three basic options. Plus, we don't know how the Justices might react when they confront the implications of the the mosaic theory without the "out" of the trespass theory. The Justices might reject the mosaic option and decide between "never search" and "always search," or there may be some Justices for each of the approaches. Perhaps there will be no majority approach and a mosaic-like theory may prevail under a Marks analysis.

It's hard to know. But it sure will be interesting to find out. Stay tuned, as always.