SUPREME COURT NOTEBOOK

Digital-age privacy rules to track cellphones adopted

By Mark Sherman
Associated Press

WASHINGTON (AP) — Police generally need a warrant to look at records that reveal where cellphone users have been, the Supreme Court ruled last Friday in a big victory for privacy interests in the digital age.

The justices’ 5-4 decision marks a big change in how police may obtain information that phone companies collect from the ubiquitous cellphone towers that allow people to make and receive calls, and transmit data. The information has become an important tool in criminal investigations.
Chief Justice John Roberts, joined by the court’s four liberals, said cellphone location information “is detailed, encyclopedic and effortlessly compiled.” Roberts wrote that “an individual maintains a legitimate expectation of privacy in the record of his physical movements” as they are captured by cellphone towers.

Roberts said the court’s decision is limited to cellphone tracking information and does not affect other business records, including those held by banks. He
also wrote that police still can respond to an emergency and obtain records without a warrant.

But the dissenting conservative justices, Anthony Kennedy, Samuel Alito, Clarence Thomas and Neil Gorsuch, cast doubt on Roberts’ claim that the decision was limited. Each wrote a dissenting opinion and Kennedy said in his that the court’s “new and uncharted course will inhibit law enforcement” and “keep defendants and judges guessing for years to come.”

Roberts does not often line up with his liberal colleagues against a unified front of conservative justices, but digital-age privacy cases can cross ideological lines, as when the court unanimously said in 2014 that a warrant is needed before police can search the cellphone of someone they’ve just arrested.

The court ruled last Friday in the case of Timothy Carpenter, who was sentenced to 116 years in prison for his role in a string of robberies of Radio Shack and T-Mobile stores in Michigan and Ohio. Cell tower records spanning 127 days, which investigators got without a warrant, bolstered the case against Carpenter.

Investigators obtained the records with a court order that requires a lower standard than the “probable cause” needed for a warrant. “Probable cause” requires strong evidence that a person has committed a crime.

The judge at Carpenter’s trial refused to suppress the records, finding no warrant was needed, and a federal appeals court agreed. The Trump administration said the lower court decisions should be upheld.

The American Civil Liberties Union, representing Carpenter, said a warrant would provide protection against unjustified government snooping.

“This is a groundbreaking victory for Americans’ privacy rights in the digital age. The Supreme Court has given privacy law an update that it has badly needed for many years, finally bringing it in line with the realities of modern life,” said ACLU attorney Nathan Freed Wessler, who argued the Supreme Court case in November.

The administration relied in part on a 1979 Supreme Court decision that treated phone records differently than the conversation in a phone call, for which a warrant generally is required.

The earlier case involved a single home telephone and the court said then that people had no expectation of privacy in the records of calls made and kept by the phone company.

“The government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years,” Roberts wrote.

The court decided the 1979 case before the digital age, and even the law on which prosecutors relied to obtain an order for Carpenter’s records dates from 1986, when few people had cellphones.

The Supreme Court in recent years has acknowledged technology’s effects on privacy. In 2014, Roberts also wrote the opinion that police must generally get a warrant to search the cellphones of people they arrest. Other items people carry with them may be looked at without a warrant, after an arrest.

Roberts said then that a cellphone is almost “a feature of human anatomy.” Last Friday, he returned to the metaphor to note that a phone “faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”

As a result, he said, “when the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

Even with the court’s ruling in Carpenter’s favor, it’s too soon to know whether he will benefit from last Friday’s decision, said Harold Gurewitz, Carpenter’s lawyer in Detroit. The Cincinnati-based 6th U.S. Circuit Court of Appeals will have to evaluate whether the cellphone tracking records can still be used against Carpenter under the “good faith” exception for law enforcement — evidence should not necessarily be thrown out if authorities obtained it in a way they thought the law required. There also is other evidence implicating Carpenter that might be sufficient to sustain his conviction.

 

Virginia man’s gun conviction upheld

WASHINGTON (AP) — The Supreme Court is upholding a Virginia man’s conviction on a gun charge.

The Supreme Court issued its decision last Friday. The case the court ruled on involves Michael Currier, who was charged with breaking into a home in 2012 and helping steal a safe with cash and guns. He was also charged with possessing a gun after being convicted of a felony.

Currier was tried first on burglary and theft charges and agreed to a separate trial on the gun possession charge. After Currier was acquitted of the burglary and theft charges, he argued that the state shouldn’t be able to try him on the gun possession charge.

A judge allowed the case to go forward, however, and a jury convicted Currier. The Supreme Court upheld that conviction.

 

Justices decline to hear ‘Making a Murderer’ case

By Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court said Monday it won’t weigh in on the case of a teenager convicted of rape and murder whose story was documented in the Netflix series “Making a Murderer.”

As is typical, the justices did not explain their decision declining to take the case. The justices’ decision leaves in place a lower court ruling against Brendan Dassey.

Dassey was 16 years old when he confessed to Wisconsin authorities that he had joined his uncle in raping and murdering photographer Teresa Halbach before burning her body in a bonfire. Dassey’s attorneys, however, say he’s borderline intellectually disabled and was manipulated by experienced police officers into accepting their story of how Halbach’s murder happened. They wanted his confession thrown out and a new trial.

Wisconsin officials had urged the Supreme Court not to take the case, telling the court it shouldn’t second-guess Wisconsin courts’ determination that Dassey’s confession was voluntary. Prosecutors noted that Dassey’s mother gave investigators permission to speak with him, that Dassey agreed as well and that during the interview investigators used only standard techniques such as adopting a sympathetic tone and encouraging honesty.

Wisconsin Attorney General Brad Schimel said in a statement that his office was “pleased” with the Supreme Court’s decision not to take the case. “We hope the family and friends of Ms. Halbach can find comfort in knowing this ordeal has finally come to a close,” he said.

Dassey’s attorneys can still try to get him a new trial but they’d have to convince a judge that newly discovered evidence warrants one.

“We will continue to fight to free Brendan Dassey,” Dassey attorney Laura Nirider said in a statement after the Supreme Court announced its decision not to hear the case.

The Supreme Court’s decision comes as there are plans for a second season of “Making a Murderer,” which premiered on Netflix in 2015. Viewers of the first season were introduced to Dassey’s uncle, Steven Avery, who spent 18 years in prison for a rape before DNA testing exonerated him. After his release, he filed a multi-million dollar civil suit over his conviction, but in 2005 as that lawsuit was pending he was arrested for and later convicted of Halbach’s murder. Avery maintains he was framed.

At Dassey’s separate trial, video of him speaking with investigators and confessing to participating in Halbach’s rape and murder played a central role. Authorities had no physical evidence tying Dassey to the crimes, and he testified that his confession was “made up” but a jury convicted him. He’s eligible for parole in 2048.

While Wisconsin courts ruled Dassey’s confession was voluntary, a federal magistrate judge and a three-judge appeals court panel disagreed, saying he should be retried or released from prison. Then, in late 2017, the full appeals court ruled 4-3 that the state courts’ determination that Dassey’s confession was voluntary was reasonable, meaning no release or retrial. The Supreme Court’s announcement it wouldn’t take the case left that decision in place.

 

Court rules for American Express in credit card case

By Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court handed American Express a win Monday in a lawsuit over rules it imposes on merchants who accept its cards.
Under their contracts, merchants who accept American Express generally can’t encourage customers to use other credit cards, even though they charge merchants lower fees. The federal government and a group of states sued over those so-called “anti-steering” provisions, arguing that they violate federal law.

But on Monday the high court ruled 5-4 in favor of American Express.

“In this case, we must decide whether Amex’s antisteering provisions violate federal antitrust law. We conclude they do not,” Justice Clarence Thomas wrote in an opinion for himself and his conservative colleagues, Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch.
American Express cheered the ruling in a statement after it was announced.

“The Supreme Court’s decision is a major victory for consumers and for American Express. It will help to promote competition and innovation in the payments industry,” the statement said.

The case the Supreme Court ruled in dates to 2010 when the Obama administration and more than a dozen states sued American Express along with Visa and MasterCard, which had similar anti-steering rules. Visa and MasterCard agreed to change their practices. American Express, which accounts for about a quarter of the credit card market, decided to go to trial.

A federal trial court judge initially ruled against American Express, finding that its rules stifled competition among credit card networks and led to higher fees for merchants and higher prices for consumers. An appeals court reversed the decision, ruling for American Express. The Supreme Court upheld that decision.

 

Texas redistricting plans upheld

By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court is upholding Texas’ use of electoral districts that a lower court struck down as racially discriminatory.

The justices ruled 5-4 Monday in an unusual case involving congressional and state legislative districts that had first been adopted by the lower court on an interim basis, then approved by the Texas Legislature.

In 2017, the same judges who approved the interim maps in 2012 agreed with the challengers that the maps were the product of intentional discrimination.

But Justice Samuel Alito said for the court’s conservative majority that the lower court made a mistake by striking down two congressional and seven state house districts. The high court struck down one safe Democratic House district in Fort Worth because the state relied too heavily on race when it increased the district’s Latino population.

“We now hold that the three-judge court committed a fundamental legal error,” Alito wrote. The lower court ignored evidence showing that the legislature adopted districting plans in 2013 primarily to try to end the litigation over the districts, Alito said.

The court’s liberal justices dissented.

“The court today does great damage to that right of equal opportunity,” Justice Sonia Sotomayor wrote. She said her colleagues had blinded themselves “to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”

Texas’ congressional and legislative districting plans have been embroiled in court action for years, beginning in 2011.

After the state’s original maps were tossed out as probably unconstitutional, a three-judge federal court produced interim districting plans that were used in the 2012 elections.

In 2013, Republicans who control the state government rushed to permanently adopt those maps to use for the rest of the decade, until a new round of redistricting after the 2020 census. But opponents criticized the adopted maps as a quick fix that didn’t purge all districts of the impermissible use of race.
The three-judge court concluded that some districts were almost identical to the earlier versions and were rife with racial bias.

The ruling is a blow for Democrats who are outnumbered nearly 2-1 in the Texas Legislature and are unlikely to pick up many seats in November, even after seeing record primary turnout in March.

“This is a huge win for the Constitution, Texas, and the democratic process. Once again, Texans have the power to govern themselves,” Republican Texas Attorney General Ken Paxton said.
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Associated Press writer Paul Weber in Austin, Texas, contributed to this report.

 

Justices send back case of florist against gay marriage

WASHINGTON (AP) — The Supreme Court is ordering Washington courts to take a new look at the case of a florist who refused to provide services for the wedding of two men because of her religious objection to same-sex marriage.

The justices’ order Monday means the court is passing for now on the chance to decide whether business owners can refuse on religious grounds to comply with anti-discrimination laws that protect LGBT people.

That’s the same issue they confronted, but ultimately passed over, in the recent ruling in favor of a Colorado baker who also objected to same-sex marriage on religious grounds.

The court said in the Colorado case that the Colorado Civil Rights Commission expressed anti-religious bias in violation of the baker’s constitutional rights. Washington courts will review the florist’s case for similar issues.

It’s not clear from the record that the Washington Supreme Court will evaluate Stutzman’s case any differently in light of the Colorado ruling.

There are no similar allegations that bias affected the state court decisions, and Washington Attorney General Bob Ferguson said the recent Supreme Court ruling will have no effect on the case against Baronelle Stutzman and her Arlene’s Flowers store in Richland, Washington.

But the Alliance Defending Freedom senior counsel Kristen Waggoner, who represents Stutzman, said Ferguson “pursued unprecedented measures to punish Barronelle not just in her capacity as a business owner but also in her personal capacity.”

 

Court won’t hear North Carolina districting dispute

WASHINGTON (AP) — The Supreme Court is choosing not to take on a new case on partisan redistricting for now. Instead, the justices are sending a dispute over North Carolina’s heavily Republican congressional districting map back to a lower court for more work.

The court’s order Monday follows a ruling last week in which it declared that Wisconsin voters who sued over the state’s GOP-drawn legislative districts had not proven they have the right to bring their case in court. The justices ordered the court in North Carolina to examine the same issue.

On the surface, the North Carolina case doesn’t appear to have the same problem the high court identified in the Wisconsin lawsuit. It could return to the Supreme Court quickly, perhaps in time for the term that begins in October.

The case concerns a congressional districting plan in which 10 seats are held by Republicans and three, by Democrats. State Republican Rep. David Lewis said that he drew 10 districts because he did not “believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In January, a three-judge court found that the map violated the Constitution and ordered the state to come up with a new plan quickly — in time for the 2018 elections. But the Supreme Court delayed enforcement of the court order, mainly because the justices already were considering the partisan districting cases from Maryland and Wisconsin.
 

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