Garner v. Colorado, 16-857 (cert. petition filed January 4, 2017)
(case below: 381 P.3d 320 (Colo. App.))

Question presented:  An intractable conflict has arisen over the performance prong of the test for ineffective assistance of counsel laid out in Strickland v. Washington, 466 U.S. 668 (1984):  When the actual basis for counsel's acts or omissions was unreasonable, may a court nevertheless hold, based on an invented rationale, that defense counsel's performance was reasonable?

Click here to view Garner's certiorari petition.  The case has been distributed for the April 21, 2017 conference.

 Carpenter v. United States, 16-402 (cert. petition filed September 26, 2016)
(case below: 819 F.3d 880 (6th Cir.)

Question presented:  In this case, as in thousands of cases each year, the government sought and obtained the historical cell phone location data of a private individual pursuant to a disclosure order under the Stored Communications Act (SCA) rather than by securing a warrant.  Under the SCA, a disclosure order does not require a finding of probable cause.  Instead, the SCA authorizes the issuance of a disclosure order whenever the government "offers specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation."  18 U.S.C. § 2703(d).

   As a result, the district court never made a probable cause finding before ordering Petitioner's service provider to disclose months' worth of Petitioner's cell phone location records.  A divided panel of the Sixth Circuit held that there is no reasonable expectation of privacy in these location records, relying in large part of four-decade-old decisions of this Court.

   The Question Presented is:  Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

Click here to view the certiorari petition.   The case was originally distributed for the March 3, 2017 conference.  It has been redistributed for the April 13, 2017 conference.