CA1: Police chief’s order to officer to turn over cellphone and home phone records not a constitutional violation under third-party doctrine; chief gets qualified immunity

Plaintiff is a police officer, and the chief ordered production of his cell phone and home phone records in an internal investigation. The chief gets qualified immunity because of the third party doctrine. Those records were obtainable by subpoena from third parties anyway. Johnson v. Duxbury, 2019 U.S. App. LEXIS 22426 (1st Cir. July 29, 2019):

Every circuit to have considered the question has held that an individual has no reasonable of expectation of privacy in a phone service provider’s records of the phone numbers that he has dialed or from which he has received calls. See, e.g., United States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011) (finding no reasonable expectation of privacy in “cellular phone records,” even though the records include “basic information regarding incoming and outgoing calls on that phone line”); United States v. Plunk, 153 F.3d 1011, 1020 (9th Cir. 1998) (“Under longstanding Ninth Circuit precedent, individuals possess no reasonable expectation of privacy in telephone records.” (citing United States v. Lustig, 555 F.2d 737, 747 n.10 (9th Cir. 1977)); Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1045, 192 U.S. App. D.C. 376 (D.C. Cir. 1978) (“[S]ubscribers have no Fourth Amendment basis for challenging Government inspection of their toll records, since subscribers … have taken the risk in revealing their affairs to third parties that the information will be conveyed by that person to law enforcement officials ….”); Nolan v. United States, 423 F.2d 1031, 1044 (10th Cir. 1969) (“We fail to see how the Fourth Amendment is applicable to the keeping of telephone company records. There is no suggestion that these records represent anything other than records normally kept in the ordinary course of business on all customers’ phones.”); DiPiazza v. United States, 415 F.2d 99, 103-04 (6th Cir. 1969) (“[O]ne who uses a telephone to make long distance calls is not entitled to assume that the telephone company will require a warrant before submitting its records in response to an IRS summons.”).

We see no reason to conclude otherwise. The decisions quoted above rely on what is known as HN7 the third-party doctrine, under which the United States Supreme Court has “held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties, … even if the information is revealed on the assumption that it will be used only for a limited purpose.” Carpenter, 138 S. Ct. at 2216 (internal quotation marks omitted).

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