Lawyer talk off the record, on the air, back breaking down a new case that's going to hit the U.S. supreme Court really soon. So first of all, how do you get to the U.S. supreme Court? Everybody says, I'm taking that all the way to the court. Well, it's really difficult. You have to go through, let's say it starts in a, in a state on some issue and you have to appeal to your state courts, all the way up to the highest court in the state. And then if you get denied in the state, you can apply or file for a writ of certiori.

It's a bougie word. It is.

Now that is a generational word right there, bougie. And you file a petition for cert, which is you're asking the Supreme Court to review it. The Supreme Court does not have to review every case. It is a court of discretion. And it only looks at the really important cases, significant cases, cases that have impact beyond the facts of that case. Particularly, I hate to say the Supreme Court doesn't care about your conviction, but they probably don't. But they might care about a law or a practice or a policy or something that happened in your conviction that might repeat and it needs to be changed or fixed or clarified. So anyway, with that backdrop, let's talk about this case.

This case is United States versus a group of four gentlemen. Jamar Smith, Thomas Orocco Odoyle, Gilbert McThermol II. And then I believe the other ones, unnamed I think it was, end up being like a snitch deal. But this is out of the Fifth Circuit.

This is, this is a U.S. this is a, this is a federal case to start with.

It was a federal case to start with because you explained the state way coming in. But this was a federal case because it started out with these gentlemen were robbing U.S. postal workers. They were like, they were stalking them out and then they would jump them and pepper spray them up, steal all their, they had. Like, for whatever reason, they knew it was money, mail. And so they're snagging like tens of thousands of dollars from these.

So their, their criminal scheme was identify postmen who are carrying mail that might have money in it.

Yeah.

And then smash and grab.

Yep. And then once this was going on, this police force, I forget the name of it, but it's the United States Postal offices. There are specific postal investigators, we'll call them. They seem like some high speed guys. They were investigating this and they noticed that these guys were using phones at the crime scenes, on security cameras. So they had body language that looked like it.

And I imagine that they are disguised enough in the camera footage that they are not identified. Yep.

Or it's blurry enough they can't tell who it is. But they have body language that looks like they're using phones.

Okay.

So what the postal office decided to do was they are going to pull a geofencing warrant.

So this basically means they're asking phone carriers to give the police information about every phone within a geographical area.

Yeah.

Because here's what happens. I don't have my phone in my pocket. But you carry your phone around, it's always pinging to the clouds. There's some, there's some tower over there or something over there. And every time you do something, I mean, you're sort of putting yourself in a place. And I think this is true. Even if you turn off your location services, your phone still identifies.

Yeah.

In that. Or will still register that it's in that area. It doesn't mean that you're the person with the phone in your hand. But they put a phone there and what do they do with this?

Well, they first ask Google and all them for the geofence warrant, they're asking like a hundred. I think it's about a hundred thousand square meters, which is pretty big, I thought. And then. And Google comes back with instead 500,000 square meters.

Okay. So what they do is we got a crime scene right here. And they draw a big circle around that.

Yeah.

And they want to know, the police want to know every single phone within that circle. And the idea, of course, is they're going to go backwards and say. And start questioning people.

Yeah.

Hey, guess what? You happen to be in the area of. Of post robbery on such and such a date. What were you up to that day?

Yeah.

And so you'd be like, wait a minute. So think for a second, and this is an important consideration, Think how you would feel about that. Like postal inspectors, we're here to talk to you.

The federal cops are just at your door.

We're here to talk to you. Would you please let us in? And you see this on TV and you see this around. And I don't want to minimize this about how that makes people feel, even if you're innocent. So look, I'm not taking a political stance because there might be a parallel to something going on in the world right now. But I'm not, I'm not saying it. But when people knock on you, when police knock on your door, it's a little intimidating.

Yeah.

And particularly if they're like federal police. You're like, wait a minute, what did I do? And you start thinking, did I do something wrong? Should I be? So they start questioning people who were in the vicinity of this robbery. And so back to the case. The warrant here asks for how many square meters?

It's 100,000 square meters, give or take. Ish.

And Google gives them 500,000 square. So it's not only just this circle, they give the whole table.

I understand they didn't ask for that, but I mean, I imagine this is common practice.

Little is good, a lot is better, right? Why not just give them more?

Google's like, now they're not going to ask twice, you know.

All right, so there's all sorts of implications here on the Fourth Amendment because, look, do I have a reasonable expectation of privacy when I use my phone? And what are the criteria that the police here, the postal workers, the federal government, can breach or enter in maybe that expectation of privacy and figure out where I was.

So the 4th Circuit, the 4th Circuit.

Court of Appeals, now this is the.

5Th, but the 4th Circuit had this issue, and they addressed that, and they talked about the third party doctrine and how you have no reasonable expectation of privacy because you're using a phone.

So one court of appeals in federal government says, look, and by the way, all these Fourth Amendment standards are measured by what we call a reasonable expectation of privacy. So, for instance, and that's a sliding scale in your house, utmost expectation of privacy, at least in so far in Western civilization, there are people that may want to change that. But so far, it's our home. Our home is our castle. It is what it is. This is us. And you can't come into my castle unless I invite you in. I have the highest expectation of privacy in my home. And you can even make it higher by, like, building a fence around your house and saying, do not enter. I don't care if you're a cop. I don't care if you're a postal inspector. I. I don't care if you're trying to deliver that you're not allowed in. Stick the mail in this little hole right here. Don't come in like you're showing the world that you have an expectation of privacy. The least expectation of privacy is when you're walking around on the streets because you're in public. You have put yourself out there in public where you can be seen. You see all these videos on TV or on YouTube with people like, you.

Can'T videotape the First Amendment, auditors, those Are the.

Yeah. So your expectation of privacy, whether you think it's higher or maintains in public, it doesn't. Because you have a choice. Stay home. Now, look, I'm not saying you should stay home, but I'm saying that's how the courts have analyzed this. All right, so now we get to this weird question. You know, our founders certainly weren't thinking, one day we're going to have these devices.

Yeah.

And these devices are going to hook up in the clouds. Like Ben Franklin was flying his kite thinking about cell phones.

Right. Yeah.

So is there a reasonable expectation of privacy in the data that is involuntarily created by virtue of me having a cell phone that communicates with Google or Verizon or T Mobile or whoever and think, you know, break that down. Like, it's not just Verizon. If you had a Verizon phone, if you've set it up with Google and you have a Google account, every time you Google something, it's pinging a tower or it's creating data.

And.

We'Ll bring in an expert on cell phones because this stuff gets crazy. How much they can find a cell phone is like modern DNA. The question is, do you have an expectation of privacy? And the 4th says what?

The 4th Circuit says, no, you gave up all your data to this company. All that. And now the 5th Circuit here is saying, respectfully, we disagree that people are dependent on cell phones. Now, we're basically like biohumans. We're little androids. We have to have the phone on there. And to some extent, we do have an expectation of privacy in the phones because we are dependent on them as a society.

Yeah. Let's break this down. So if I've got my phone, like, you can think of the stuff on your phone. Folks, a lot of people. See, I turn this stuff off because I'm a little bit of a conspiracy theorist, but I don't give my phone access to any health data. Like, immediately. Turn that crap off. Any. Look, if it's. If there's location data anytime, I don't even understand it. But they say Google wants your location. No effing way. Or getting. I don't care. You're not allowed to know where I am. And if I. You need to use a map, I'll turn it on and use it and then turn it off.

Yeah.

So I try to maintain an expectation of privacy in my phone. But then there's other things. You know, you store your passwords in the clouds.

Yep.

You store your banking. Like you access your banking information. From your phone. I mean, because you're using your phone, should somebody feel like they have a lesser expectation of privacy in that? I would think no. And I'm not saying it's the same, because it's not. That's not the information you're looking for from Google, but we feel like it is.

You're talking about these terms and conditions, turning off a location, all that. They talk about this in the case and they're like, imagine someone who just got a new phone, setting it up at 11pm at night, and they're just hitting on these boilerplates like, sure, consent, Consent, Consent.

Yeah. Your phone wants you to. Google wants all this information, by the way, because they take it, use it, and try to sell you stuff.

Yeah. So they're saying people just don't really understand what they're actually giving away. And the third party doctrine shouldn't apply.

What is the third party doctrine?

Third party doctrine says you don't have an explanation of privacy if someone else is involved. So a third party being Google, this.

Is what we're talking about. So if I share my information with somebody voluntarily, I'm giving up my expectation of privacy with that. Now you may be able to do things to limit that or expand that. And so we get cases all the time where cell phone carriers provide information to the government and we pull out their consent agreement. Again, the kind of boilerplate crap that you check. And this becomes, I think in contract law, they would call it an adhesion contract, because there's only one way you get to use Google, and it's if you check this box, you consent to this. Otherwise Google won't. They won't let you create an account that you're going to share certain data. Now, the data might be illegal. They might share stuff. If you're serving for illegal things, think some varieties of pornography, for instance, that are just grossly illegal.

Yeah.

You know, you're immediately giving up your expectation of privacy. But I think the court's talking here, like, well, wait a minute. What about, like, I'm just out on a Sunday stroll with my dog and my girlfriend.

Mm.

Getting a sandwich in the park.

Yeah.

Like, am I, am I telling Google that they can share that information with the police if they want to know? And then you get the knock, knock, knock. So anyway, keep going.

So they determined that the third party dogs friend is not the Fourth Circuit.

Or the fifth Circuit.

Fifth Circuit said, so this is where the conflict happens. And we talked about getting to the United States Supreme Court. This is how. This is the Easiest ticket in right here. Because we're just so. We don't want the circuit courts across the United States to have different opinions. We want them, if they are going against each other, then the next person who can solve this argument and solve this conflict is the United States Supreme Court.

Let's break this down. So district courts in the federal system are like trial courts. You go in there, you're charged with a crime, you go to district court, you have a trial, you raise a Fourth Amendment issue and say, judge, throw that evidence out of court. And the judge says no, all right, you appeal in Ohio, you'd appeal to the sixth Circuit. Here they're appealing to the fifth Circuit. The circuit courts sort of sit above the district courts. And you go to the circuit courts, those are courts of appeal. And what's happening here is one court of appeal here, the 4th Circuit says you have a reasonable expectation of privacy in this information. Well, the fifth is saying, nuh, we don't agree. And the sixth may say something consistent with one or the other or maybe even their own little nuance to it. And you get to a point where the law loves consistency. Our system just thrives on consistency. I've studied the common law since I was in college. I love it. It's interesting. It evolves, but it likes consistency. So you don't want somebody in Arkansas in a circuit court being treated somebody differently or being treated differently than Ohio on a Fourth Amendment constitutional issue.

Yeah.

Enter the Supreme Court. So the Supreme Court doesn't care about these guys. I hate to say that guys, they don't care. But the court does care about having inconsistent standards with applying the fourth Amendment. So the Supreme Court has now granted certiorari.

Yep. And their next point on the analysis is that after the third party doctrine is solved up, they then go on to this whole geofencing warrant, which is broken down into like three steps. But we've talked about the first step is the whole postal workers ask for the geofencing location, they get it back. And when they get it back, they don't get like, here's Steve Palmer and then here's a cell phone. What they send them back is a random list of numbers and they basically ask. They then ask the postal workers back. Narrow this down for us. Which ones do you want to get their data from? This is the part where they said, this is a general warrant. They said this is too, too broad, like it's unconstitutional.

Okay, so let's, let's. We got to talk about something. There was a time and I. We'll have to. We can pull the case law and we can put in the comments if we need to, but there was a time that police didn't even have to get a warrant or they weren't getting warrants. And we may have even talked about this on a different show, but the grand jury or the prosecutor would send out a subpoena to Google and say, give me all this information about this person. And this is maybe not a broad generalization, but they would just subpoena the information.

Yeah.

Now at least then the court, the Supreme Court is saying, no, no, no, no, no, no, no, no. You have to go get a warrant. And that means they have to put probable cause in an affidavit. Check back on our shows on this. They have to put probable cause in an affidavit, and a judge has to sign it. They send that warrant to Google or someplace like Google, get the information, and what's coming back is like gobbledygook numbers. And then the Google is saying, which ones police do you want us to release names on?

Yeah. And they want more narrow, specific timelines and all that because they asked for like an hour, this whole table worth of data. So they want narrow down. And the footnotes highlight how dangerous this is. And the footnotes talk about cases where people have been wrongfully charged and like, convicted based on these geofences being wrong. And it's very dangerous because, you know, these are just general warrants. Anybody that's in this table, you are now a potential suspect. You're getting the knock on the door, and you could literally be arrested. One guy talks about how he lost his job, they, like, repossess his car. All that his, like, life got, like, basically ruined, all based on this general warrant. So they concluded that, you know, the general warrant being.

We want all of it.

Yeah, yeah. So now they determine it's a general warrant. Can't do geo. I don't know how they're going to do geofencing going forward. Obviously, the United States Supreme Court's going to figure that out. But as right now, you know, they got to redo it. They got to figure out some other way to do it.

Well, yeah, I mean, it's, It's. We're gonna, we're gonna see more and more of this. I, I suspect the Supreme Court is gonna split the baby, as they often do. You're gonna hear something like, it has to be very narrowly tailored to an exact time frame. You're gonna have like these criteria. I think, I think. Or it Wouldn't surprise me, generally speaking, if the court actually decided or actually found a Fourth amendment violation and said do something else, it wouldn't surprise me, but we'll have to wait and see.

And how they finally did this analysis. And if you're sitting there like, why are we trying to get these guys off that are doing this mail robbery scheme, the court said it concluded that it shouldn't have been suppressed under the good faith exception. And their philosophy on it was this is cutting edge technology for cops. And so they were doing the best they could. They followed all the, they even reached out to other departments, the FBI, to make sure, hey, are we doing this right. And all that.

All right, so good faith exception is basically this. Yeah, we violated the fourth Amendment, but we didn't do it on purpose. We just were following the law that was in place at the time. So at least in this case let us do it anyway because we were folks, after all, operating in good faith. I hate this nonsense. I don't, look, I don't like exactly what they were doing. And they were taking advantage of a policy and practice. And look, you have to impute information to law enforcement, I think down from the government. So look, these are federal cops. They know darn well that some courts say no and some courts say yes. And if they don't know, they should know. And that's not good faith. So I, I, either way, it is. It is. The good faith exception will be relevant only to these facts, not necessarily going forward.

I didn't like this though, because they have case law going back 10 years. We have, I mean, we deal with it. Suburb cops are doing this. These are federal cops.

Yeah.

This is not cutting edge.

No, this is hardly cutting edge. I have dozens. Almost every case I have now where there's something like this going on, there's geofence stuff or there's Google warrants. I've got a case right now we're working on where we're gonna get a big cell phone dump. And I'll be very curious to see how the police procured that information. Because they took my client's phone, he did not give them a passcode, and somehow they have cracked into his phone and obtained information. I'd be very curious in discovery whether there's a warrant and what the warrant says, because I cry foul.

Yeah, that's gonna be interesting. This is gonna be good.

So where we are with this, the courts granted certiori. That means they're going to actually review the case. That means the parties, the government on one side and these defendants on the other will actually write briefs, submit them to the US Supreme Court, and the lawyers will get to stand up in the big court and argue their case.

We call it the Big House.

The Big House. All right. So anyway, breaking it down, Fourth Amendment style. Lawyer talk, off the record, on the air. Check us out. Lawyer, lawyerTalkPodcast.com send us a question there. We got one. We just answered it. Send us a question in the comments. We'll be happy to try to address it here. Can't give you legal advice, but if you got a topic wants to cover, we'll do that, I promise. Off the record, on the air, till next time.