First Circuit Holds Phone Records of Service Provider Unprotected by Fourth Amendment


On July 29, 2019, the United States Court of Appeals for the First Circuit affirmed a summary judgment granted below in favor of the defendants, the Town of Duxbury and Duxbury Police Chief Matthew Clancy.  Johnson v. Duxbury, __ F.3d __, 2019 WL 3406537 (1st Cir.)  The plaintiff was a former police officer with the Duxbury Police Department.  The case arose out of an internal affairs investigation opened by Chief Clancy after he learned that the plaintiff may have had knowledge of a murder and/or stolen firearms, yet failed to disclose such knowledge to investigating authorities or his superior officers.  During the IA investigation, Chief Clancy ordered the plaintiff to produce certain phone records.  The plaintiff, through counsel, subsequently produced redacted copies of the phone records, then retired from the DPD and filed suit against the Chief and the Town under 42 U.S.C. § 1983, alleging that the search of phone records without a warrant was a violation of his right to be free from unreasonable searches as guaranteed under the Fourth Amendment to the United States Constitution.  The District Court granted defendants’ motion for summary judgment on several grounds, including that the search was not unreasonable and, even if it was, plaintiff voluntarily consented to it.


On appeal, the First Circuit affirmed the summary judgment, but for different reasons.  Citing the third-party doctrine originally announced in United States v. Miller, 425 U.S. 435 (1976), the Court concluded that the plaintiff had “no reasonable expectation of privacy in the phone records at issue.”  Phone users typically know that the numbers they dial and the calls they receive are recorded on a register maintained by the service provider for legitimate business purposes.  Therefore, phone users cannot reasonably expect that such numbers will remain secret.  Because plaintiff had no reasonable expectation of privacy in his phone records, Chief Clancy’s order that plaintiff produce such records was not a “search” within the meaning of the Fourth Amendment.


Attorney John J. Davis of Pierce Davis & Perritano LLP represented the Town of Duxbury and Chief Clancy.