The Meaning of Justice Gorsuch’s Dissent in Carpenter v. United States

Donald L. Buresh

The full article will be available to read soon in the forthcoming 43:1 issue of the American Journal of Trial Advocacy.


            The United States Supreme Court case of Carpenter v. United States, 585 U.S. 2206 (2018), dealt with whether historical cell phone records are private. In April 2011, four men were arrested by the police because they were suspected of perpetrating a series of robberies of Radio Shack and T-Mobile stores located in the Detroit area. In May and June 2011, the FBI received three warrants, permitting law enforcement to acquire the calling history of 16 different phone numbers. The Stored Communications Act was the basis for the warrants. Carpenter was charged with six counts of aiding and abetting a robbery that violated the Hobbs Act. Carpenter was convicted of all of the Hobbs Act counts and sentenced to four 27-year mandatory-minimum prison sentences. On October 15, 2015, the case was argued before the Sixth Circuit Court of Appeals, which affirmed the decision of the District Court for the Eastern District of Michigan. On March 9, 2018, the Court agreed to review the case, granting Carpenter’s petition for writ of certiorari. On June 22, 2018, in a 5-4 decision, the Court held that when the government accesses cellphone metadata that contains location data without a search warrant, the government is violating the Fourth Amendment. The issue of the case is whether the Fourth Amendment permits the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user throughout 127 days. The pertinent rules of law, in this case, were the Fourth Amendment and the relevant portions of the Stored Communications Act of 1986. Justice Roberts wrote the majority opinion. Four dissenting opinions were written by Justices Kennedy, Alito, Thomas, and Gorsuch. The purpose of this Article is to show that Justice Gorsuch’s dissent in Carpenter may be leading the Court in the direction of acknowledging that Americans possess a right to privacy regarding their telecommunications. The Article highlights the reactions by the press and selected members of the legal community to the Court’s decision in Carpenter. The Article concludes by demonstrating the European Charter for Fundamental Rights, and the General Data Protection Regulation could serve as examples to Congress and the Court on how a right to privacy could be framed in the American legal system.