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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.1 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.2 In Commonwealth v. Augustine,3 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.4 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.5
Julaine Jules’s body was found in the Charles River on September 19, 2004, nearly one month after she went missing.6 Shortly after its discovery, police began investigating the possible involvement of her former boyfriend, Shabazz Augustine, in her murder.7 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),8 but not pursuant to a warrant.9 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.10 Nearly seven years later, Augustine was indicted by a grand jury for the murder of Jules.11
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.12 The Superior Court judge agreed that Augustine’s rights under Article Fourteen were violated and ruled that the CSLI information must be suppressed.13 The Commonwealth sought interlocutory review, which a single justice allowed and ordered that the case be heard before the Supreme Judicial Court.14
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.15 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.16 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.17 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.18 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.19
The SCA was initially created to protect the information transmitted by electronic communications by limiting the circumstances in which service providers could disclose it.20 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.21 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.22
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 rights23 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.24 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.25
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.26 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.27 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.28 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.29 Accordingly, the less stringent “specific and articulable facts” standard used in Officer McCauley’s § 2703(d) application was invalid, rendering the search unreasonable.30
Justice Gants, with whom Justice Cordy joined, dissented.31 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.32 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.33 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.34 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.35
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?36 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.37 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.38 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.39 This practical difference bears some significance on the court’s third-party analysis, as well as the parallels it draws to GPS tracking.40
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.41 Its departure results from distinguishing the applicability of certain Fourth Amendment precedent.42 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;43 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).44 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.45
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.46 In this regard, the opinion seeks to address future likely events as well as analyzing the facts of the underlying case.47 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.48 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.49 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.”50
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.
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.
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. ↩
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