Massachusetts supreme court says cops should have gotten warrant before obtaining cell phone location data

Court takes a “different approach” with respect to one’s expectation of privacy

After defendant’s girlfriend was murdered in 2004, the police got a “D order” (an order authorized under 18 U.S.C. 2703(d)) from a state court to compel Sprint to turn over historical cell site location information (“CSLI”) showing where defendant placed telephone calls around the time of the girlfriend’s murder. Importantly, the government did not get a warrant for this information. After the government indicted defendant seven years later, he moved to suppress the CSLI evidence arguing a violation of his Fourth Amendment rights. The trial court granted the motion to suppress, and the government sought review with the Massachusetts supreme court. That court agreed, holding that a search warrant based on probable cause was required.

The government invoked the third party doctrine, arguing that no search in the constitutional sense occurred because CSLI was a business record of the defendant’s cellular service provider, a private third party. According to the government, the defendant could thus have no expectation of privacy in location information — i.e., information about the his location when using the cell phone — that he voluntarily revealed.

The court concluded that although the CSLI at issue was a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case — where the CSLI obtained covered a two-week period — the warrant requirement of the Massachusetts constitution applied. The court made a qualitative distinction in cell phone location records to reach its conclusion:

No cellular telephone user . . . voluntarily conveys CSLI to his or her cellular service provider in the sense that he or she first identifies a discrete item of information or data point like a telephone number (or a check or deposit slip…) … In sum, even though CSLI is business information belonging to and existing in the records of a private cellular service provider, it is substantively different from the types of information and records contemplated by [the Supreme Court’s seminal third-party doctrine cases]. These differences lead us to conclude that for purposes of considering the application of [the Massachusetts constitution] in this case, it would be inappropriate to apply the third-party doctrine to CSLI.

To get to this conclusion, the court avoided the question of whether obtaining the records constituted a “search” under the Fourth Amendment, but focused instead on the third party doctrine (and the expectation of privacy one has in information stored on a third party system) in relation to the Massachusetts constitution.

In a sense, though, the court gave the government another bite at the apple. It remanded the case to the trial court where the government could seek to establish that the affidavit submitted in support of its application for an order under 18 U.S.C. § 2703(d) demonstrated probable cause for the CSLI records at issue.

Commonwealth v. Augustine, — N.E.3d —, Mass. , 2014 WL 563258 (Mass. February 18, 2014)

No Fourth Amendment violation when government looked at Facebook profile using friend’s account

U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012)

The government suspected defendant was involved in illegal gang activity and secured the assistance of a cooperating witness who was a Facebook friend of defendant. Viewing defendant’s profile using the friend’s account, the government gathered evidence of probable cause (discussion of past violence, threats, and gang loyalty maintenance) which it used to swear out a search warrant.

What you do on Facebook is almost guaranteed to come back and bite you in the ass.

Defendant argued that the means by which the government obtained the probable cause evidence – by viewing content protected by defendant’s Facebook privacy settings – violated defendant’s Fourth Amendment rights. The court denied defendant’s motion to suppress.

It held that where Facebook privacy settings allowed viewership of postings by friends, the Government could access them through a friend/cooperating witness without violating the Fourth Amendment. The court compared the scenario to how a person loses his legitimate expectation of privacy when the government records a phone call with the consent of a cooperating witness who participates in the call. It held that defendant’s legitimate expectation of privacy ended when he disseminated posts to his Facebook friends because those friends were then free to use the information however they wanted, including sharing it with the government.

Photo credit: Flickr user Poster Boy NYC under this Creative Commons license.

On the radio: Mobile devices and the Fourth Amendment

I was honored to be a guest on this morning’s episode of Oregon Public Broadcasting’s show Listen Out Loud, talking with host Dave Miller about the recent case of Schlossberg v. Solesbee.

Listen to the interview here:

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We talked about the Fourth Amendment and, more specifically, the exceptions to the warrant requirement for searches made incident to lawful arrests. Some courts have given special treatment to mobile devices when considering whether the information contained on them may be searched without a warrant, because of the vast amounts of personal information that is present.

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