The right for a person to be free in his or her body, effects, and property from governmental intrusion serves as the bedrock of the Bill of Rights, as well as the Commonwealth of Massachusetts’s Declaration of Rights.[ref]See U.S. Const. amend. IV (Fourth Amendment) (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .”); Mass. Const. pt. 1, art. 14 (Article Fourteen) (“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.”). Article Fourteen’s adoption actually pre-dates the Fourth Amendment. See Herbert P. Wilkins, The Massachusetts Constitution—The Last Thirty Years, 44 Suffolk U. L. Rev. 331, 337 (2011) (explaining development of Article Fourteen as response to British infringement of Americans’ rights)[/ref] As technological advances, such as the creation of smartphones, increasingly allow for the monitoring and tracking of a device owner’s whereabouts, courts are left to reconcile whether and to what extent that information can be used in criminal proceedings.[ref]See, e.g., United States v. Jones, 132 S. Ct. 945, 949 (2012) (holding attachment of global positioning device (GPS) to defendant’s vehicle as search under Fourth Amendment); In re Application of the U.S. for an Order Directing a Provider of Elec. Commc’n. Servs. to Disclose Records to the Gov’t, 620 F.3d 304, 319 (3d Cir. 2010) [hereinafter Third Circuit Decision] (reversing order requiring probable cause for release of historical CSLI to government); State v. Earls, 70 A.3d 630, 632 (N.J. 2013) (recognizing reasonable expectation of privacy in CSLI under state constitution); see also James Beck et al., The Use of Global Positioning (GPS) and Cell Tower Evidence to Establish a Person’s Location—Part II, 49 Crim. L. Bull. 637, 651-61 (2013) (predicting application of federal rules of evidence to admission of CSLI); Kyle Malone, Comment, The Fourth Amendment and the Stored Communications Act: Why the Warrantless Gathering of Historical Cell Site Location Information Poses No Threat to Privacy, 39 Pepp. L. Rev. 701, 721-24 (2012) (describing judicial notice of CSLI in right-to-privacy cases).[/ref] In Commonwealth v. Augustine,[ref]4 N.E.3d 846 (Mass. 2014).[/ref] the Supreme Judicial Court of Massachusetts was tasked with deciding whether police may obtain historical cell site location information (CSLI)—which uses signals sent from cell phones to signal towers in order to track a device’s location—from a potential suspect’s cell phone service provider without a warrant.[ref]See id. at 849; see also Beck et al., supra note 2, at 640-49 (providing overview of cellular telephone technology). Cellular telephones emit radio signals to local cell sites, which are contained in the base stations of cell telephone towers. See Beck et al., supra note 2, at 642. Radio signals are not only transmitted to cell sites when a device owner makes and receives telephone calls, but also every seven seconds to notify the service provider that the device is within the service range. See id. at 643. The data that cell sites receive from telephone calls being made to and from a particular device is referred to as telephone information, while the data received from the seven-second service range confirmations is referred to as registration information. See Augustine, 4 N.E.3d at 868 (Gants, J., dissenting) (emphasizing distinction between data as relevant to expectation-of-privacy analysis). While telephone information can only determine what cell site a particular device connected to when a call was made or received (which is not necessarily the closest cell site), registration information is able to accurately track where a device has been and for how long due to the frequency with which signals are sent. See Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 Md. L. Rev. 681, 702-06 (2011) (describing types of information collected by cell sites). For this reason, registration information has been likened to GPS tracking. See Earls, 70 A.3d at 637-38 (explaining how increased cell site numbers decreases area between sites, thus increasing location accuracy); see also Malone, supra note 2, at 710-11 (emphasizing judicial notice of registration information or “real-time CSLI” as equivalent to tracking).[/ref] The Court held that under the Massachusetts Declaration of Rights, police must obtain search warrants supported by probable cause because defendants are owed a reasonable expectation of privacy in that information.[ref]See Augustine, 4 N.E.3d at 857-66 (“[T]he government-compelled production of the defendant’s CSLI records by [his service provider] constituted a search in the constitutional sense to which the warrant requirement of [Article Fourteen] applied.”).[/ref]
Julaine Jules’s body was found in the Charles River on September 19, 2004, nearly one month after she went missing.[ref]See id. at 850. Julaine Jules was last seen on August 24, 2004. See id.[/ref] Shortly after its discovery, police began investigating the possible involvement of her former boyfriend, Shabazz Augustine, in her murder.[ref]See id. at 850-51. Augustine was first interviewed by state police troopers Mary McCauley and Pi Heseltine, who later obtained logs for his and Jules’s cellular phones that provided information about the calls made between them on August 24 and 25, 2004. See id. at 850 & n.4. The logs the officers first sought, which provided information about the time and duration of the telephone calls only, are not the subject of this litigation. See id.[/ref] In order to “possibly include or exclude” Augustine “as a suspect,” police requested CSLI from his cellular service provider, Sprint Spectrum (Sprint), for a two-week period beginning on the last day Jules was seen alive; police requested this information by means of a court order under § 2703(d) of the Stored Communications Act (SCA),[ref]18 U.S.C. § 2703(d) (2012).[/ref] but not pursuant to a warrant.[ref]See Commonwealth v. Augustine, 4 N.E.3d 846, 850-51 (Mass. 2014). State trooper McCauley believed that the CSLI data was necessary to discern Augustine’s whereabouts on August 24 and 25. See id. The record indicates that Augustine’s cellular service provider gave the police CSLI records for a period longer than the prescribed fourteen days, though the exact length of time is not in the record. See id. at 851 & n.8.[/ref] A Superior Court judge granted an order to Sprint under § 2703(d) of the SCA, and Sprint released sixty-four pages of CSLI records to the Commonwealth.[ref]See id. at 851. Section 2703 of the SCA prescribes the methods by which government agencies may obtain electronic communications records from service providers, which includes by warrant or by a court order under subsection (d). See 18 U.S.C. § 2703 (2012); see also Malone, supra note 2, at 718 (describing two primary avenues for obtaining records of electronically transmitted information). Section 2703(d) allows courts of competent jurisdiction to issue orders releasing such information to law enforcement “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication . . . are relevant and material to an ongoing criminal investigation.” § 2703(d) (emphasis added). This “specific and articulable facts” standard is less stringent than the probable cause standard and is instead “essentially a reasonable suspicion standard.” See In re Application of the U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 287 (4th Cir. 2013) [hereinafter Fourth Circuit Decision]; see also In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 606 (5th Cir. 2013) [hereinafter Fifth Circuit Decision]; Third Circuit Decision, 620 F.3d 304, 313 (3d Cir. 2010); Augustine, 4 N.E.3d at 852-53.[/ref] Nearly seven years later, Augustine was indicted by a grand jury for the murder of Jules.[ref]See Augustine, 4 N.E.3d at 851 & n.9 (noting Augustine indicted on July 29, 2011).[/ref]
Augustine moved to suppress this CLSI evidence on the grounds that it violated both his Fourth Amendment and Article Fourteen rights to be free from warrantless searches.[ref]See id. at 851.[/ref] The Superior Court judge agreed that Augustine’s rights under Article Fourteen were violated and ruled that the CSLI information must be suppressed.[ref]See id.[/ref] The Commonwealth sought interlocutory review, which a single justice allowed and ordered that the case be heard before the Supreme Judicial Court.[ref]See id. at 851-52 The Commonwealth’s application for interlocutory review was brought under Mass. R. Crim. P. 15(a)(2) and Mass. Gen. Laws ch. 278, § 28E. See id.[/ref]
Under both the Fourth Amendment and Article Fourteen, the government may not search or seize a person, his house, or his effects without a search warrant that is supported by probable cause, with limited exceptions.[ref]See, e.g., U.S. Const. amend. IV (“[N]o warrants shall issue, but upon probable cause . . .”); Camara v. Mun. Court, 387 U.S. 523, 528-29 (1967) (“[O]ne governing principle . . . has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”); Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process . . . are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”) (internal citations omitted); see also Jen Manso, Cell-Site Location Data and the Right to Privacy, 27 Syracuse J. Sci. & Tech. L. Rep. 1, 17 (2012) (“The Fourth Amendment’s requirement of reasonableness mandates that all searches and seizures that violate [a person’s reasonable expectation of privacy] can only proceed upon application and receipt of a validly executed search warrant.”). But see Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 782-83 (1994) (suggesting probable cause requirement applies only to search warrants). Limited exceptions to the search warrant requirement involve cases of emergencies, where consent is given, and in automobiles. See, e.g., United States v. Ross, 456 U.S. 798, 807-11 (1982) (presenting automobile exception); Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973) (explaining voluntary consent); Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (establishing exigent circumstances doctrine).[/ref] In order to determine whether a search in the constitutional sense has occurred, courts first assess whether the person being searched had a subjective expectation of privacy and then evaluate whether that expectation of privacy is reasonable.[ref]See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35, 40 (2001) (applying Katz analysis to police’s warrantless use of thermal-imaging technology, holding search invalid); Smith v. Maryland, 442 U.S. 735, 741-44 (1979) (holding no subjective expectation of privacy in telephone numbers dialed under Katz test); Katz, 389 U.S. at 361 (Harlan, J., concurring) (articulating two-step analysis requiring subjective and objectively reasonable expectations of privacy). Cf. United States v. Jones, 132 S. Ct. 945, 949-50 (2012) (urging warrantless intrusion of private property search under property principles instead of Katz test).[/ref] If both prongs are satisfied but the government did not obtain a warrant for the search (and no exceptions apply), then the search is illegal and the evidence obtained is excluded.[ref]See Commonwealth v. Amral, 554 N.E.2d 1189, 1193 (Mass. 1990) (noting no constitutional right to suppression of evidence, remedy developed by courts); see also 30A Mass. Practice: Criminal Practice & Procedure § 24.67 (3d ed. 2013) (explaining application of rule in Massachusetts).[/ref] While courts emphasize that individuals have a manifest reasonable expectation of privacy from the government within the sanctity of their own home, they have likewise held that an expectation of privacy in effects, such as bank statements, transmitted to third parties is not reasonable.[ref]See Jones, 132 S. Ct. at 950-51 (citing Alderman v. United States, 394 U.S. 165, 176 (1969)) (emphasizing protection of home as paramount despite other interpretations implied in Katz); see also Russell L. Weaver, The Fourth Amendment, Privacy and Advancing Technology, 80 Miss. L. J. 1131, 1136-37 (2011) (describing challenges new technology poses for courts in evaluating constitutional rights and criminal proceedings). Historically, because the Fourth Amendment was developed to prevent governmental intrusion into a private home, the Supreme Court defined “searches” in property terms: the rummaging through of personal property by the government. See Weaver, supra, at 1138. When the Court eventually addressed the issue of wiretapping in the 1928 case of Olmstead v. United States, they held that defendants’ Fourth Amendment rights were not infringed where the government installed wiretaps on their telephones but did not physically enter any of their residences to do so. See 277 U.S. 438, 464-65 (1928). The Court overturned this decision in Katz v. United States, noting that the Fourth Amendment’s applicability “cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” See 389 U.S. at 353. Justice Harlan’s concurrence would eventually create the two-prong test to determine whether a search had occurred: a defendant must have a subjective expectation of privacy, and that expectation of privacy must be reasonable. See id. at 361 (Harlan, J., concurring); see also supra note 16 and accompanying text. Since Katz, several landmark Supreme Court cases have both refined and obscured the line drawn between what are and what are not reasonable expectations of privacy when police obtain information by means of technology but without a warrant. In United States v. Miller, the Court held that a defendant did not have a reasonable expectation of privacy in bank statements because he transmitted them to a third party, the bank tellers, even though he believed the statements would be kept by his bank in confidence. See 425 U.S. 435, 442-43 (1976). Using similar reasoning, the Court likewise held in Smith v. Maryland that the defendant was not entitled to an expectation of privacy in the telephone numbers he dialed from the telephone at his home because he knew that the telephone company would be keeping a record of them. 442 U.S. 735, 743 (1979) (“This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”). Most recently, in Jones, the Court underscored that privacy expectations are deeply couched in property terms regardless of the test articulated in Justice Harlan’s Katz concurrence. See 132 S. Ct. at 950.[/ref] As technological advances allow individuals to more easily engage in behavior that was typically reserved for protected areas, courts are forced to evaluate whether that information should remain protected now that law enforcement could otherwise obtain it through first-hand observation.[ref]See generally Weaver, supra note 18 (chronicling and analyzing impact technology has on constitutional jurisprudence).[/ref]
The SCA was initially created to protect the information transmitted by electronic communications by limiting the circumstances in which service providers could disclose it.[ref]See Malone, supra note 2, at 716-17 (describing history of and protections intended by SCA); see also Brian L. Owsley, The Fourth Amendment Implications of the Government’s Use of Cell Tower Dumps in its Electronic Surveillance, 16 U. Pa. J. Const. L. 1, 13-17 (2013) (recounting history of SCA and underscoring its intent to protect electronic communications).[/ref] The SCA allows the government to obtain this information either pursuant to a warrant, which requires a showing of probable cause, or pursuant to a § 2703(d) order, which requires only a showing of reasonable suspicion—a much lower standard.[ref]See supra note 10 and accompanying text (detailing development of tests government must satisfy to obtain electronic communications).[/ref] While courts remain divided on the issue, many federal courts have held that the lesser “reasonable suspicion” standard mandated by the § 2703(d) order is sufficient to obtain historical CSLI, even though CSLI may reveal information about people while they are at home or engaging in other constitutionally protected conduct.[ref]See Malone, supra note 2, at 721-24 (describing cases decided since 2005 regarding historical CSLI applications). The division between the courts rests in their interpretation of two Supreme Court cases, United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984). In Knotts, police placed a beeper in a five-gallon drum of chloroform that was sold to the defendants, whom the police suspected of producing amphetamines. 460 U.S. 276, 278 (1983). The police were able to track the container because the beeper emitted electronic signals, and they followed them as it was transported to Knotts’s cabin, at which time they obtained a search warrant and found a drug laboratory there. See id. at 278-79. Knotts moved to suppress the evidence that the police had obtained by tracking the chloroform drum, but the Supreme Court held that because the police had primarily followed the drum on public roads, “[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 282. The following year, the Court again held that defendants do not have a reasonable expectation of privacy when their movements are tracked by a beeper. In United States v. Karo, the Drug Enforcement Agency placed a beeper in a can of ether. See 468 U.S. 705, 708 (1984). The Court reasoned that because the can’s movements while in transit “could have been observed by the naked eye, no Fourth Amendment violation was committed by monitoring the beeper during the trip” to the defendant’s associate’s home. Id. at 713-14. The Court warned, however, that when the beeper entered into the home of one of Karo’s associates, a warrant was necessary because the beeper was no longer in the public view. Id. at 719. For opinions allowing the government to obtain historical CSLI pursuant to a § 2703(d) order instead of a search warrant, see Fifth Circuit Decision, 724 F.3d 600, 615 (5th Cir. 2013) (holding § 2703(d) standard for historical CSLI constitutional under Fourth Amendment); Third Circuit Decision, 620 F.3d 304, 319 (3d Cir. 2010) (underscoring magistrate’s discretion to require showing of probable cause while interpreting § 2703(d) statutory construction); In re Smartphone Geolocation Data Application, 2013 WL 5583711, at *1 (E.D.N.Y. 2013) (holding no reasonable expectation of privacy in CSLI); In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 2011 WL 679925, at *2 (E.D.N.Y. 2011) (allowing § 2703(d) order for three-day and six-day period); In re Applications of the U.S. for Orders Pursuant to Title 18, United States Code, Section 2703(d), 509 F. Supp. 2d 76, 181 (D. Mass. 2007) (granting order for historical CSLI under § 2703(d) and determining registration CSLI constitutional argument premature). For opinions rejecting the reasonable-suspicion standard and requiring a showing of probable cause to obtain CSLI, see In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 809 F. Supp. 2d 113 (E.D.N.Y. 2011) (underscoring CSLI may be disclosed but only upon showing of probable cause); In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 736 F. Supp. 2d 578, 595-96 (E.D.N.Y. 2010) ( “recogniz[ing] . . . [t]he Fourth Amendment cannot properly be read to impose on our populace the dilemma of either ceding to the state any meaningful claim to personal privacy or effectively withdrawing from a technologically maturing society”); In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747 (S.D. Tex. 2005) (emphasizing infringement upon privacy rights in home mandates probable cause showing for CSLI).[/ref]
While states are required to enforce (and may not abridge) the protections under the Fourth Amendment under the provisions of the Fourteenth Amendment, they are empowered to enlarge those rights[ref]See, e.g., Commonwealth v. Buccella, 751 N.E.2d 373, 383 n.9 (Mass. 2001); Commonwealth v. Cote, 556 N.E.2d 45, 50 (Mass. 1990); Commonwealth v. Blood, 507 N.E.2d 1029, 1033 n.9 (Mass. 1987) (“We have often recognized that [Article Fourteen] does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States.”).[/ref] Accordingly, some states have held that the § 2703(d) process constitutes an illegal search under state constitutions, even though it may comply with the Fourth Amendment.[ref]See State v. Earls, 70 A.3d 630, 644 (N.J. 2013) (requiring probable cause under New Jersey State Constitution but recognizing lesser standard under Fourth Amendment).[/ref] Particularly in regard to electronic communications, the Massachusetts Supreme Judicial Court has diverged from the Supreme Court in analyzing searches and seizures under Article Fourteen and afforded Massachusetts residents greater protections than those found under the Fourth Amendment.[ref]See Commonwealth v. Rousseau, 990 N.E.2d 543, 553 (Mass. 2013) (“We conclude that under [Article Fourteen], a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.”); Blood, 507 N.E.2d at 1034 (“we conclude that it is objectively reasonable to expect that conversational interchange in a private home will not be invaded surreptitiously by warrantless electronic transmission or recording.”). In Blood, a police informant wore a wire transmitter during discussions with Blood regarding robbing a bank. 507 N.E.2d at 1030-31. Because several of those conversations were recorded in private homes and because the police had not sought a warrant to record them, the Supreme Judicial Court held that the defendants’ Article Fourteen rights were violated. See id. at 1033-34; see also Robert J. Cordy, Criminal Procedure and the Massachusetts Constitution, 45 New Eng. L. Rev. 815, 822 (2011) (describing Blood opinion). In Rousseau, the Supreme Judicial Court held that Rousseau, a passenger in a truck being tracked by GPS, had a reasonable expectation of privacy in his comings and goings for the thirty-one days the truck was tracked under Article Fourteen. 990 N.E.2d at 553; see also Commonwealth v. Connolly, 913 N.E.2d 356, 371 (Mass. 2009) (concluding, as matter of first impression, warrant necessary for GPS tracking on minivan).[/ref]
In Commonwealth v. Augustine, the Supreme Judicial Court declined to analyze the release of Augustine’s CSLI records pursuant to the § 2703(d) order under the Fourth Amendment, thus limiting its holding to Article Fourteen of the Massachusetts Declaration of Rights.[ref]See Commonwealth v. Augustine, 4 N.E.3d 846, 857-58 (Mass. 2014) (“We have no need to wade into these Fourth Amendment waters and focus instead on . . . [Article Fourteen].”).[/ref] The Court first evaluated whether Augustine’s voluntary use of his cellular telephone, and his knowledge that cellular service providers maintain information about the telephone’s whereabouts, diminishes his expectation of privacy. The Court held that it did not, because of the “indispensable” role cellular telephones play in modern society and the lack of choice people have in cellular service providers transmitting this information.[ref]Id. at 856-60 (citing Earls, 70 A.3d at 643). The court addressed the Commonwealth’s argument that, because Augustine voluntarily transmitted data to a third party cellular service provider, he could have no reasonable expectation of privacy in it. See id; see also supra note 18 and accompanying text (describing third-party doctrine articulated in Smith and Miller Supreme Court cases). The court disposed of the Commonwealth’s reliance on the Smith and Miller Supreme Court cases, which held that defendants do not enjoy an expectation of privacy in data voluntarily transmitted to third parties (such as banks and telephone companies) on the grounds that the types of information contemplated in those cases was antiquated given the progression of technology. See Augustine, 4 N.E.3d at 859 (“the digital age has altered dramatically the societal landscape from the 1970s, when Miller and Smith were written.”). The court further underscored that CSLI is never voluntarily transmitted, in contrast with the telephone numbers dialed in Smith or the bank statements handed to tellers in Miller. See id. at 861-62.[/ref] The Court next compared CSLI data to GPS tracking and emphasized the likelihood that those records would reveal information about Augustine’s location in constitutionally protected places.[ref]See id. at 863-65.
This distinction between privacy interests in public and private spaces makes CSLI especially problematic, because cellular telephones give off signals from within both spaces, and when the government seeks to obtain CSLI from a cellular service provider, it has no way of knowing in advance whether the CSLI will have originated from a private or public location.
Id. at 864.[/ref] The Court concluded that Augustine’s expectations of privacy were reasonable, and thus, a search had occurred when the government sought to obtain Augustine’s CSLI. Therefore, police should have obtained a search warrant supported by probable cause.[ref]See id. at 866.[/ref] Accordingly, the less stringent “specific and articulable facts” standard used in Officer McCauley’s § 2703(d) application was invalid, rendering the search unreasonable.[ref]See Augustine, 4 N.E.3d at 865-66. The court then remanded the case for a determination of whether probable cause existed, as the Commonwealth contended, despite the fact that Officer McCauley sought an order under § 2703(d) instead of a search warrant. See id. The court held that if probable cause did not exist then the CSLI should be excluded under the exclusionary rule. See id. The court finally held that the rule requiring that police obtain search warrants in order to have CSLI released instead of § 2703(d) orders would be a new, and not retroactive, rule. See id. at 866.[/ref]
Justice Gants, with whom Justice Cordy joined, dissented.[ref]See id. at 868-74 (Gants, J., dissenting).[/ref] While they would recognize that certain types of CSLI—namely, registration information—ought to be protected under Article Fourteen, they believed that the more general information of historical CSLI (which only tracks the cell site location when the telephone makes or receives calls) reveals no information that Augustine could reasonably expect to be kept private.[ref]See Commonwealth v. Augustine, 4 N.E.3d 846, 868-69 (Mass. 2014) (Gants, J., dissenting) (recounting majority opinion’s discourse on types of CSLI but giving both equal constitutional weight).[/ref] The dissent reasoned that cellular telephone users would need to make calls constantly in order for the telephone call CSLI to amount to GPS tracking.[ref]See id. at 870 (Gants, J., dissenting).[/ref] Further, because this type of information is stored only when calls are made or received, the dissent disagreed with the majority’s contention that the information conveyed to the third-party service provider was involuntary.[ref]See id. at 872-73 (Gants, J., dissenting).[/ref] Justice Gants would accordingly deny the motion to suppress the CSLI records, which only sought to know the location of the cellular device when it made or received calls for a two-week period.[ref]See id. at 874.[/ref]
The dissent underscores an important question on the distinction between types of CSLI not squarely addressed by the majority opinion: do all types of CSLI deserve the same constitutional treatment?[ref]See Malone, supra note 2, at 704-05 (discussing debate among scholars and courts about treatment of different types of CSLI).[/ref] Registration CSLI tracks the precise locations of cellular devices every seven seconds, allowing law enforcement officers to reconstruct detailed maps showing where, when, and for how long individuals were at certain locations.[ref]See supra note 4 and accompanying text (describing how cellular technology works).[/ref] All justices on the Supreme Judicial Court agree, as do many other jurisdictions, that law enforcement officers should obtain search warrants in order for this type of data to be released.[ref]See, e.g., Commonwealth v. Augustine, 4 N.E.3d 846, 872 (Mass. 2014) (Gants, J., dissenting) (“In the context of cellular telephone records, I would not extend the third-party doctrine to include information that is not necessary to the successful completion of a telephone call, and therefore would not apply the third-party doctrine to registration CSLI.”); Fifth Circuit Opinion, 724 F.3d 600, 615 (5th Cir. 2013) (“We do not address orders requesting . . . location information for the duration of the calls or when the phone is idle (assuming the data are available for these periods).”); Third Circuit Opinion, 620 F.3d 304, 311 (3d Cir. 2010) (“We take no position whether a request for GPS data is appropriate under a § 2703(d) order.”).[/ref] However, the type of CSLI at issue in this case—historical CSLI—tracks only the locations of cell sites used in the event calls were made or received.[ref]See supra note 4 and accompanying text (comparing historical CSLI with registration CSLI).[/ref] This practical difference bears some significance on the court’s third-party analysis, as well as the parallels it draws to GPS tracking.[ref]See generally Malone, supra note 2 (analyzing development of CSLI and applying Fourth Amendment principles to it).[/ref]
The court’s conclusion that Augustine’s transmission of information by his cellular telephone to his service provider violates his reasonable expectation of privacy marks a departure from how many courts have addressed the issue.[ref]See supra note 22 and accompanying text (listing cases requiring probable cause for CSLI and cases requiring reasonable suspicion for CSLI).[/ref] Its departure results from distinguishing the applicability of certain Fourth Amendment precedent.[ref]See Augustine, 4 N.E.3d at 857-59. In Smith v. Maryland, the Supreme Court held that privacy expectations in the numbers dialed on a landline telephone were unreasonable. See 442 U.S. 735, 743-44 (1979); see also supra note 27 and accompanying text.[/ref] Other courts have specifically relied on the Supreme Court case of Smith v. Maryland for the proposition that an individual’s expectation of privacy in the telephone numbers he calls is unreasonable;[ref]Smith v. Maryland, 442 U.S. 735,743-44 (1979). See, e.g., Fifth Circuit Opinion, 724 F.3d 600, 614-15 (5th Cir. 2013) (holding disclosure of CSLI voluntary and retention of it by service providers as legitimate business record); In re Smartphone Geolocation Data Application, No. 13–MJ–242 GRB, 2013 WL 5583711, at *14 (E.D.N.Y. 2013) (“Cell phone customers . . . cannot possibly labor under the belief that their location is somehow kept secret from telecommunication carriers and other third parties.”); In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Information, 809 F. Supp. 2d 113, 122 (E.D.N.Y. 2011) (explaining privacy expectations destroyed by third-party doctrine but nonetheless finding exception).[/ref] instead, the majority in Augustine emphasized that cellular telephone users do not expect that the telephone numbers they dial remain private, but rather the area in which those calls are made should remain private, now that telephones are portable (noting especially that Smith was penned prior to the development of portable telephones).[ref]See Commonwealth v. Augustine, 4 N.E.3d 846, 859-60 (Mass. 2014) (“More fundamentally, . . . cellular telephones physically accompany their users everywhere—almost permanent attachments to their bodies.”).[/ref] In this regard, location information is not voluntarily given simply because cellular telephones exhibit the feature of portability, since users take no affirmative actions to disclose it.[ref]See id. at 862 (“No cellular telephone user, however, 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 . . . .”); see also State v. Earls, 70 A.3d 630, 641 (N.J. 2013) (“cell-phone users have no choice but to reveal certain information to their cellular provider. That is not a voluntary disclosure in a typical sense; it can only be avoided at the price of not using a cell phone.”).[/ref]
Though not directly linked back to its introduction on how cellular telephone technology has evolved, the trend of cellular service providers consistently constructing new cell sites supports the majority’s reasoning that even historical CSLI may eventually operate like GPS tracking, if not more precisely.[ref]See Augustine, 4 N.E.3d at 864 (“we cannot ignore the probability that, as CSLI becomes more precise, cellular telephone users will be tracked in constitutionally protected areas.”); see also Freiwald, supra note 4, at 716 & n.217 (discussing increase in available information for law enforcement use).[/ref] In this regard, the opinion seeks to address future likely events as well as analyzing the facts of the underlying case.[ref] See Augustine, 4 N.E.3d at 859; see also Earls, 70 A.3d at 643-44.[/ref] While historical CSLI is contingent upon calls being made to or from the cellular device, the reality that this information will be transmitted while the device is in constitutionally protected areas cannot be ignored.[ref]See Earls, 70 A.3d at 642-43; see also Freiwald, supra note 4, at 715-20 (suggesting impossibility of knowing when cell phones in protected areas requires law enforcement to self-police).[/ref] As such, data provided by even historical CSLI may be more invasive than what law enforcement could learn through first-hand observation or GPS tracking.[ref]See Freiwald, supra note 4, at 702-14 (describing types of cellular telephone tracking in detail).[/ref] Furthermore, the use of GPS tracking provides location information for future movements, but historical CSLI would allow police to recreate an individual’s past movements—“a category of information that never would be available through the use of traditional law enforcement tools of investigation.”[ref]Commonwealth v. Augustine, 4 N.E.3d 846, 865 (Mass. 2014) (emphasis in original).[/ref]
In Commonwealth v. Augustine, the Supreme Judicial Court ruled, consistent with its Article Fourteen jurisprudence, that in order for police to obtain CSLI from a particular cellular telephone they must first obtain a search warrant. While this holding declines to interpret § 2703(d) applications under Fourth Amendment analysis, it may play an important role in shaping state constitutional analysis in other jurisdictions. Further, the decision may serve as guidance to the Supreme Court in the event that the apparent split between federal courts on the reasonableness of privacy expectations in CSLI is granted certiorari. Because privacy expectations remain a reflection of what society as a whole is willing to accept as reasonable, every individual decision protecting the privacy of CSLI will help demonstrate to the Supreme Court that the government should obtain warrants before infringing upon it.
Preferred Citation:
Kathryn Acello, Case Note, SJC Requires Search Warrants To Obtain Defendants’ Cellular Site Location Information in Augustine, 2 Suffolk U. L. Rev. Online 37 (May 19, 2014), http://www.suffolklawreview.org/acello-augustine.