Mass. High Court: Police Need Warrant for Cell Location Records

The government generally must first obtain a search warrant for probable cause to collect data from a cellular provider about the past locations of a subscriber’s mobile phone, Massachusetts’ highest court ruled on Tuesday.

The Massachusetts Supreme Judicial Court, voting 5-2, upheld a Superior Court judge’s conclusion that a search warrant based on probable cause was required because the police collection of the data constituted a search under Article 14 of the Massachusetts Declaration of Rights. The government obtained the data via a court order under the federal Stored Communications Act.

The high court, however, did not affirm a trial judge order to suppress the phone records. Instead, the court vacated the order granting the defendant’s suppression motion and remanded the case for further proceedings.

State prosecutors will now have the opportunity to argue that the government’s application for a court order for the cell site records—a lower burden than a search warrant—met the probable cause standard. The state Judicial Supreme Court ruling in Commonwealth v. Augustine is here.

In the appeal, lawyers for Massachusetts argued that no constitutional search occurred because cell site location information, or CSLI, is the “business record” of a private third party—the defendant’s cellular service provider. The government said the defendant, Shabazz Augustine, did not have an expectation of privacy in the information.

The Massachusetts high court disagreed. The defendant, the majority court wrote, “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 art. 14 applies,” Justice Margot Botsford wrote.

Cell site location information, Botsford wrote, “may yield a treasure trove of very detailed and extensive information about the individual’s ‘comings and goings’ in both public and private places.”

There is some period of time for which the Commonwealth may obtain a person’s location data under a federal Stored Communications Act court order alone, Botsford wrote, “because the duration is too brief to implicate the person’s reasonable privacy interest.”

Laura Castro is a contributing writer for The National Law Journal.

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