February 4, 2019

Three arguments we’re making to the Supreme Court

Sure, it’s unconstitutional, but “we meant well” say prosecutors. A valid justification? Retweet

Last week, we told you about the Zodhiates case, where cell phone data was obtained, by prosecutors, without a warrant and used to get a conviction. The problem for prosecutors is that the recent, landmark Carpenter decision says that was unconstitutional. 

Well, potentially landmark. A decision doesn’t truly become “landmark” until it becomes the precedent for other cases. We’re looking to apply Carpenter to Zodhiates — to tell prosecutors looking for information derived from cell phones, like yours, “Get a warrant!”

Right now, our attorneys are working on this Supreme Court amicus brief. Here are three arguments they’re making…

1. Can the strong protections for physical location data, outlined in Carpenter v. United States, be evaded by a prosecutor who seizes data in a manner that (even the prosecutor admits) violates the Fourth Amendment, and then uses that data at trial, based on the so-called “good faith doctrine” — which is nowhere in our written Constitution? Is “he meant well” good enough reason to keep a man behind bars?

2. In Zodhiates, the federal prosecutor used a subpoena to grab the records from a telecom, rather than a warrant issued by a judge as required by the Fourth Amendment. Should the “good faith doctrine” shield a federal prosecutor who knows better, yet chooses to circumvent the Constitution?

3. Also, the Stored Communication Act allows requests for some information about telephone numbers. But the prosecutor in Zodhiates obtained 28 months of location information about him — a much longer period than even the 152 days involved in the Carpenter case. Is it okay, especially post-Carpenter, for the prosecutor to deliberately ask for much more data on Zodhiates than he was allowed to do under the law?

Our attorneys are also locating, reading, and analyzing decisions by district and circuit courts handed down since Carpenter. They want to see how those courts are treating the issue, to strengthen the case that a Supreme Court review is needed.

Thank you for those who did respond. But we need more support to get the job done.

We need you to make a one-time contribution or monthly pledge, of any amount from $5 to $199. We’ll email you the completed amicus after it’s submitted.

I Support the Brief

The Supreme Court has highly specific submission requirements. There’s a substantial printing cost due to this specialized process.

If (thru Feb. 6) you become a Zodhiates “Cert” Patron by…

– Make a $200 one-time contribution
– Start a new pledge of $20 or more
– Increase an existing pledge so that it equals $20 or more

…we’ll send a printed copy to your postal mailbox PLUS we’ll recognize you, by name, in an upcoming newsletter.

I Support the Brief

DownsizeDC.org partners with the Downsize DC Foundation (home of the Zero Aggression Project) so that your contributions can be tax-deductible. When you click the button above, you’ll be taken to the Zero Aggression Project contribution form.

Thank you for being an ACTIVE DC Downsizer,

Jim Babka, President
DownsizeDC.org, Inc.
& Downsize DC Foundation (home of the Zero Aggression Project)

P.S. A potential patron wishes to protect his privacy. He chooses to send $199 so that his name isn’t put on the public list. There’s no need. On the contribution form, he should check the box on the line that reads, “Please don’t use my support to encourage others to give, by sharing my name on public lists” AND contribute $300 instead!

If your comment is off-topic for this post, please email us at feedback@downsizedc.org



  1. Penni Bulten
    Posted February 4, 2019 at 4:45 pm | Permalink

    The arguments made in NIFLA vs, Bercerra were worth some generous contributions. I believe it is reasonable to presume this project will be as well.

  2. Posted February 15, 2019 at 4:51 pm | Permalink

    I have been personally involved in this case since 2009. Support Philip’s defense fund either through this site or https://419fund/projects/philip-zodhiates I am the Co-founder and President of 419 Fund which has supported Philip since January 2017.

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