GOVERNMENT SEIZURE OF CELLULAR TOWER RECORDS REQUIRES WARRANT IN CERTAIN CIRCUMSTANCES

In Commonwealth v. Estabrook (September 2015), the Supreme Judicial Court of Massachusetts (SJC)affirmed the judge’s denial of the motions of defendants Estabrook and Bradley seeking suppression of historical cellular site location information (CSLI) regarding Bradley’s telephone; and (2) vacated the judge’s denial of the defendants’ motions to suppress all of their statements to the police. The case arose from a police investigation regarding a murder and related offenses. In 2012, the police obtained without a search warrant but in compliance with the which is under a less stringent standard than probable cause, the CSLI pertaining to Bradley’s telephone. That CSLI evidence indicated that at the time the shooting took place, Bradley’s … telephone was … communicating with a cell tower located three miles from the victim’s home.

Following the receipt by the police of Bradley’s CSLI, both defendants made statements to the police. In 2013, the police reobtained Bradley’s CSLI pursuant to a warrant, in light of uncertainty as to whether Massachusetts law required probable cause and a search warrant… to obtain the CSLI.

In 2014, the SJC resolved that uncertainty, ruling in Commonwealth v. Augustine, that under Article  14 of the Massachusetts Declaration of Rights, procurement of CSLI records requires a warrant based on probable cause. The defendants in this case then moved to suppress evidence of Bradley’s … CSLI on the ground that the Commonwealth had obtained this evidence in violation of Article 14. The defendants also sought suppression of their statements made to police allegedly derived from the CSLI that was unlawfully obtained under Federall Statute.  The judge denied the defendants’ motions.

In its decision, the SJC, referring to an issue briefly touched on in Augustine  that set forth a bright-line rule that a defendant’s reasonable expectation of privacy protected under art. 14 … is not violated where the Commonwealth requests up to six hours of historical CSLI without obtaining a search warrant.  The Court concluded, however, that in this case, … because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposed to use only six hours of the CSLI as evidence at trial.  Therefore, opined the Court, the initial procurement of the CSLI pursuant to Federal Statute was unlawful. Nonetheless, the Court concluded that that evidence did not have to be suppressed because the 2013 search warrant which enabled the police to reobtain the CSLI was supported by probable cause derived from information the Commonwealth obtained independently rather than through exploitation of the tainted CSLI. Moreover, the Court ruled that many of the defendants’ statements to the police … were not subject to suppression on account of the CSLI that was first obtained unlawfully, because they were not made in response to being confronted by that tainted CSLI. However, some of Bradley’s statements did have to be suppressed, because they were made in response to questions based directly on the tainted CSLI.

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