by Derek Gilna
The United States Supreme Court’s 2018 decision in the Carpenter case, which set aside a criminal conviction based upon warrantless extended collection of cellphone location data on Fourth Amendment grounds, came from a court that many observers felt was moving in a more conservative direction.
This decision showed, however, that the Supreme Court has become more concerned about unchecked, warrantless law enforcement access to the mountains of data accumulated by American citizens. Although a post-Carpenter decision in a recent Georgia appellate court case, Mobley v. State, 2018 Ga. App. LEXIS 430 (2018), ruled in favor of the State in obtaining crash data from a vehicle’s airbag control module (“ACM”) without a warrant, it nonetheless cautioned the police in future cases to just “get a warrant.”
The Mobley Court distinguished the Carpenter holding, noting that in that case police collected warrantless data for 127 days, a much different factual situation from that in Mobley. “A car has little capacity for escaping public scrutiny,” the Court said. “It travels public thoroughfares where both its occupants and its contents are in plain view.” Sevilla-Carcamo v. State, 783 S.E.2d 150 (Ga. App. Ct. 2016). “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Devega v. State, 689 S.E.2d 293 (Ga. 2010).
In a line of cases beginning in 2007, the U.S. Supreme Court has recognized that cellphones, with their information-grabbing technology, present a serious challenge to the Court’s previous interpretation of Fourth Amendment protections. In contrast, the Georgia appellate court in Mobley said, “The court finds the access of ACM data does not approach the level of privacy intrusion warrantless access to cellphone’s contents would. What a driver does on a public road is observable by others, even if not to the level of detail an ACM provides.”
The ACM data showed Mobley, immediately prior to the crash, had reached speeds of 97 mph in a 45 mph zone before his airbag deployed in the crash. Although the Mobley Court referenced the Carpenter holding, it distinguished the cases explaining, “[The ACM device] is not a tracking device, wittingly or unwittingly.”
Nonetheless, the Court concluded, “The court signs off on its opinion by warning law enforcement that the best route is to always obtain a warrant, if possible.”
With that sort of warning, it is clear that the stage is set for even further recalibration by future court decisions to further re-balance the rights of citizens versus the otherwise limitless access by law enforcement to highly sensitive personal data documenting our daily lives.
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