The impact of the U.S. Supreme Court’s landmark Fourth Amendment case, Carpenter v. United States, 201 L.Ed.2d 507 (2018) decided last June, requiring a search warrant be obtained by law enforcement in most cases for telephone company historical cell site location information (CSLI) is percolating up the appellate ladder from the decisions of the trial courts around the country. New York state, of course, was ahead of the pack when in an analogous scenario nine years before Carpenter, the Court of Appeals in People v. Weaver, 12 N.Y.3d 433, 458 (2009), determined that law enforcement’s employment of GPS technology on a defendant’s automobile required a search warrant in the absence of exigent circumstances. Now that the initial dust raised by Carpenter has settled, it is illuminating to review and reconcile some of the state court cases evidently impacted by the landmark decision.

Warrants and Historical CSLI

The high court in Carpenter found violative of the Fourth Amendment’s proscriptions against unreasonable searches and seizures the government’s obtaining of defendant’s historical cell site location information (CSLI) through an order on less than probable cause, the search warrant standard. In Carpenter, the government obtained the CSLI from the telephone company utilizing a court order pursuant to 18 U.S.C. §2703(d) of the Stored Communication Act (SCA). A §2703(d) order does not require the warrant standard of probable cause, but instead a lesser showing of “specific and articulable facts demonstrating reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing investigation.” 18 U.S.C. §2703(d); see also In re Application, 620 F.3d 304, 313 (3d Cir. 2010). The CSLI was used to fix defendant’s movements and thereby corroborated witness accounts of defendant’s involvement in a series of robberies. The Carpenter court determined that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” Thus, the CSLI obtained from Carpenter’s wireless carriers was the product of a search requiring a warrant and a showing of probable cause. Cf., People v. Worrell, 59 Misc. 3d 594, 609 (Sup. Ct. Queens Co., March 2, 2018, Stevens Modica, J.) (determining that the defendant had no reasonable expectation of privacy in a “shared” folder on his computer which was linked to a peer-to-peer file sharing program).

Standing