I once had a case in which two people were charged with trashing the greens at a country club, with stolen golf carts, at night.  By the time I was hired, they had already told the police, in videotaped interviews, that they were out of town on the night in question.  What made the government’s case was those very same statements, which the government could prove were false by showing the jury the geographic location of the clients’ cellphones at the relevant time.  I was recently reminded of that case by a couple of Supreme Judicial Court decisions.

In its second recent case to consider the issue, the SJC in Commonwealth v. Estabrook (2015) held that where the police request someone’s historical cellular site location information (CSLI) for a period of over six hours, a search warrant is required by the Massachusetts Declaration of Rights, article 14.

The case involved two defendants, both indicted on various serious charges, who moved to suppress the CSLI evidence from being used against them at trial.  The police had requested two weeks of CSLI data from the public utility, but were only seeking to use six hours of the data at trial.  The government argued that since it could have obtained six hours’ worth of data without a warrant, therefore it could use up to the six hours, despite having requested many more hours from the utility company.

The Court pointed out the absurdity of allowing the government to obtain days or weeks of CSLI without a warrant so long as the prosecutor only used six hours of the data in his or her case.  It is the police request for CSLI in excess of six hours that implicates constitutional concerns and triggers the warrant requirement, said the Court.

This case, along with Commonwealth v. Augustine, and Riley v. California (4th Amendment to the U.S. Constitution requires that the police obtain a search warrant before going through an arrestee’s cellphone), recognizes the role that cellphones play in our lives, and how cellphones really have become repositories of such a wealth of information about ourselves as was previously unimaginable.

Modern police methods of securing and preserving data on cellphones while the police request and obtain a search warrant to search said phone just about guaranty that the prosecution will not be severely handicapped in their efforts by the court’s ruling on cellphone searches.  Likewise, being limited to requesting only six hours of historical cellular cite location information without a search warrant would hardly seem to pose an insurmountable problem for the police, especially where there was some evidence of criminality, given the relaxed legal burden that obtains to search warrant applications.

Kevin D. Quinlan

Uxbridge, MA

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