As we mourn Justice Kennedy’s retirement, Sentencing Resource Counsel Sissy Phleger has graciously allowed us to post her summaries of the Supreme Court’s recent decisions in Carpenter v. United States (opinion available here) and Currier v. Virginia (opinion available here):
First, in the eagerly-anticipated Carpenter v. United States, the Court held that the government’s acquisition of Mr. Carpenter’s cellphone location records was a Fourth Amendment search. Roberts wrote for the majority, joined by Kagan, Breyer, Sotomayor, and Ginsburg. All the dissenters filed separate opinions (and variously join in each other’s). While the majority opinion is at pains to confine its impact, this is a great win with potential implications far beyond its specific circumstances.
Mr. Carpenter had challenged the use of warantlessly-obtained historical cell-site location records used to convict him of a string of armed robberies. He argued that the records constituted a search, and thus required a warrant. The Court agreed. Writing for the majority, Roberts held that because of the “unique nature of cellphone location information,” the third party doctrine did not apply. The third party doctrine instructs that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. The majority focused on the nature of the information at issue and the “seismic shifts in digital technology,” to justify the carve out.
Second, in Currier v. Virginia the Court rejected the defendant-petitioner’s double jeopardy challenge to his conviction. Gorsuch wrote for the majority, joined by Roberts, Thomas, Alito, and Kennedy (in part). Ginsburg dissented (with Breyer, Sotomayor, and Kagan). This outcome is disappointing, as is the additional confusion that Gorsuch’s majority-and-plurality opinion will inject into the double jeopardy analysis. For those not steeped in the baroque nuances of double jeopardy, Ginsburg’s thorough dissent here is worth reading in its entirety. In it she concisely identifies and explains the various protections afforded, and helpfully untangles the collapsed doctrine displayed in the majority opinion.
The issue in this case is whether a defendant who is indicted on multiple charges and agrees to have the charges tried in separate trials gives up his right to benefit from an acquittal in his first trial. Mr. Currier was charged with breaking and entering, larceny, and being a felon in possession of a firearm, and he consented to have the felon-in-possession charge tried separately. He was first tried on the breaking and entering/larceny charges, and was acquitted. He then argued that he couldn’t be tried on the question of whether he had a gun during a burglary because, as the jury had found, he hadn’t taken part in the burglary.
Five members of the Court agreed that because Currier consented to have the charges tried separately, his trial and conviction on the felon-in-possession charge did not violate the Double Jeopardy Clause (Parts I and II of Gorsuch’s opinion). They determined that consenting to multiple trials waives not only the protection against multiple trials but also the protection against relitigation of an issue following an acquittal (i.e. an Ashe v. Swenson issue). Kennedy, who provided the deciding vote, would have ended the inquiry there. A plurality of the Court, however, also tackled the issue on broader grounds. In Part III of his opinion, Gorsuch (with Roberts, Thomas and Alito) questioned whether relitigating an issue after acquittal violated double jeopardy at all—directly challenging Ashe’s constitutional issue-preclusion.