Supreme Court Decision Will Play Important Role in Shaping Defendant Privacy Rights

The primary question will likely come down to whether or not cell phone data and location records are protected interests under the Fourth Amendment.

Defendant Privacy Rights

Gus Kostopoulos

October 23, 2017 04:52 PM

Many Americans now use cell phones as an integral part of their everyday lives. Information about the people we know, places we go, and things we do are systematically cataloged and stored on one convenient little device. Cell phones could potentially serve as an invaluable tool for law enforcement during an arrest and subsequent criminal investigation. In 2014, the Supreme Court held that law enforcement officers must (generally) obtain a search warrant before cell phones can be searched in an investigation. This fall the Supreme Court will have another chance to answer questions about the relationship between cell phone use and Fourth Amendment privacy protections. Specifically, they will be asked if police must also be required to obtain a warrant to secure cell phone data and location records.

The Supreme Court’s decision will definitely impact the criminal justice system in one way or another. If the Supreme Court determines that a warrant based on probable cause is required to retrieve cell phone data and location records, criminal defendants will retain fairly strong Fourth Amendment rights. If the Supreme Court determines that a warrant is not required to retrieve such records, criminal defendants face a new hurdle in defeating criminal charges.

The primary question will likely come down to whether or not cell phone data and location records are protected interests under the Fourth Amendment.

What makes something a protected interest under the Fourth Amendment? The text of the amendment states that the people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The only way this right can be pierced is with a particular warrant based on probable cause. Over the years, the scope of which interests are protected by this text has slowly been defined. Courts have held that the Fourth Amendment “protects people, not places.” This has helped to expand privacy rights to things like electronic communications and cell phones.

Here, the Supreme Court will have to determine if this protection extends to cell phone data and location records. In order to accomplish this, the court will likely employ the two-prong test developed in Smith v. Maryland. The court will consider:

  • If the defendant exhibited an actual expectation of privacy; and
  • If society is prepared to recognize that this expectation of privacy is reasonable.

Essentially, the court will try to determine if Americans expect that the information generated by the use of their personal cell phone will remain private. The contents on the cell phone itself are subject to Fourth Amendment protections. The question now becomes whether the information that is generated by the use of the cell phones should also be protected.

The case that has prompted this question stems from the conviction of a man for his role in a string of armed robberies. Police, using a provision of the Stored Communications Act, requested cell phone location data from his service provider. An analysis of the location data then allowed police to connect the defendant to the string of robberies. He was convicted, in large part, because of this cell phone location information.

The fact that law enforcement used the Stored Communications Act to sidestep the warrant requirement is interesting. The Stored Communications Act allows law enforcement to request this type of third-party stored information on the basis of reasonable suspicion. This is significantly less burdensome than the probable cause requirement for a search warrant. If police thought that cell phone location information was a gray area—in terms of the Fourth Amendment—did they intentionally use the less restrictive Stored Communications Act provisions to circumvent a potential constitutional issue?

The Supreme Court’s upcoming decision will not only answer the question of whether cell phone location information is a protected interest under the Fourth Amendment, but also whether law enforcement can use these types of loopholes to essentially violate criminal defendants’ rights against unreasonable searches and seizures. A defendant’s expectation of and right to privacy must be upheld. This decision will either strengthen a defendant’s right to privacy or open the floodgates to eventually decimate it.


Gus Kostopoulos is an attorney and founder of Kostopoulos Law Group, a Chicago-based criminal defense firm. Mr. Kostopoulos is a former prosecutor with over 18 years’ helping those accused of a crime.

Phone: 312-883-4904

Related Articles

Destiny Fulfilled

by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

Ketanji Brown Jackson Becomes Joe Biden’s Nominee for Vacant SCOTUS Seat

by Gregory Sirico

President Joe Biden has nominated former lawyer Ketanji Brown Jackson for the Supreme Court of the United States.

Biden Nominates Ketanji Brown Jackson

Biden’s History-Making SCOTUS Nominees

by Gregory Sirico

The promise of the first Black female Supreme Court Justice in history is on the verge of reality as the top three candidates for the most recent vacant seat are announced.

Biden Promises First Black Female SCOTUS Pick

Biometric Privacy: It’s Not Just an Illinois Issue

by Kenn Brotman and Molly K. McGinley

How BIPA Litigation May Impact Companies Outside of Illinois

Blue fingerprint that's reflective with black background

Are Cell Phones to Blame for a Rise in Rear-End Car Accidents?

by Michele Mirman

Distracted Driving Is Causing More Accidents

Cell Phones and Rear-End Car Accidents?

Don’t Fall Asleep at the Wheel

by Paul Goatley

Identify Exhaustion or Risk Waiving a Defense.

Don’t Fall Asleep at the Wheel

What New York's Child Victims Act Means for Public Schools

by Anastasia M. McCarthy

The new Child Victims Act is expected to have a profound and long-lasting impact on public school systems.

Understanding New York's Child Victims Act

Recent Developments on Privacy and Data Protection in Brazil

by Ricardo Barretto Ferreira da Silva and Camila Taliberti Ribeiro da Silva

A change of paradigm is urgent and requires a robust legislation on personal data protection.

Privacy and Data Protection Brazil

Send, Serve, or Both

by Holly M. Polglase and Matthew E. Bown

The Supreme Court decides the meaning of Article 10(A) of the Hague Service Convention.

Article 10(A) of the Hague Service Convention

Victory for The Slants and Redskins

by Carol Steinour Young and Emily Hart

On June 19, 2017, the United States Supreme Court settled the issue of whether an offensive name—in this case, an Asian-American rock band called “The Slants”—can properly be registered as a trademark.

The Slants Legal Case Decoded

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco

by Clifford J. Zatz and Josh Thomas Foust

The decision “may make it impossible to bring certain mass actions at all.”

Bristol-Myers Squibb Co. Mass Tort

Post-Conviction Relief

by Douglas Trant

In these post-conviction cases, we look for Constitutional violations that deprived the defendant of a fair trial and undermined confidence in the outcome.

Post-Conviction Relief

In the News: Austin/San Antonio

by Compiled by Tess Congo

A summary of newsworthy content from Austin/San Antonio lawyers and law firms.

Austin/San Antonio In the News

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Could Reign Supreme End with the Queen?

by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?


2022: Another Banner Year

by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Thirteen Years of Excellence

by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes