Cops Dodge Warrant Requirement By Grabbing Two Weeks Of Data, But Entering Only 6 Hours Of It As Evidence

from the too-clever-by-much-more-than-half dept

Today’s novel legal argument: take a ruling on cell site location info warrant requirements and make it fit the warrantless data haul obtained earlier by submitting only the “quantity” the court has previously OKed.

To get a sense of where we’re going with this, here’s a bit from the opening paragraphs of the opinion:

The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley’s cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant.

The CSLI was sought twice. This is the first sign that something’s not quite right. Historical cell site location information doesn’t change. That’s the thing about history. And yet, the police obtained it twice: once with a subpoena (which was wrong) and once with a warrant (the lawful way to do it).

You see, the Massachusetts courts had already created a bright-line (of sorts) for the acquisition of cell site location data. Under the state’s interpretation of its Declaration of Rights, cell site location info carries with it a reasonable expectation of privacy. This status demands the use of a warrant. An earlier decision determined that small amounts (up to six hours) of CSLI can be obtained without a warrant, as the limited time period makes acquisition much less analogous to long-term tracking.

The police knew they could only get six hours of CSLI without a warrant, but they had already grabbed two week’s worth using only a subpoena. But the officers had an angle…

In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial.

That’s a very opportunistic reading of the court’s intentions. If the police were so inclined, they could subpoena a year’s worth of CSLI and trim it down to only the most incriminating six hours of data before presenting it in court. Or they could just go fishing with subpoenas, look over the collected data and see if they could match any six hours of it to an investigation or prosecution.

The court points out the flaw in this logic, which, let’s face it, the cops knew all along.

It is important to emphasize that, in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person’s CSLI is requested, not the time covered by the person’s CSLI that the Commonwealth ultimately seeks to use as evidence at trial.

The warrant requirement is for the “asking,” not the “telling,” to put it elementary school terms.

Fortunately for the police, the twice-obtained CSLI didn’t harm their case too much. The defense argued that other evidence — including statements made to the police — should be suppressed because it originated from tainted CSLI. The court, however, concludes that a great deal of evidence was obtained independently and that only a few moments from various interviews could be traced back to inferences drawn from the cell site location info.

The court also came to the conclusion that the warrant the police sought well after it already had the subpoenaed CSLI in hand was likely legitimate, rather than just a shoddy attempt to cover up its earlier misdeed. Over the course of several paragraphs, the court lists all of the information gathered by officers prior to their issuing of the subpoena and finds it adds up to probable cause that isn’t overly-reliant on the already-acquired CSLI info. The court doesn’t offer any speculation as to what actually happened here, but rather points out that the CSLI was still lawfully-obtained, and anything stemming from the latter acquisition cannot be suppressed.

While this obtain-twice, admit-once method of cell site evidence acquisition didn’t pay off for the criminal defendants, it at least provides another citable example of how far law enforcement agencies are willing to go to bypass the mild logistical hiccup that is obtaining a warrant.

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Comments on “Cops Dodge Warrant Requirement By Grabbing Two Weeks Of Data, But Entering Only 6 Hours Of It As Evidence”

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AJ says:

I’ve read quite a few stories about evidence being throw out because it was deemed to be obtained “Illegally”, but what I don’t read about is the prosecution of the people that broke the law to obtain the evidence. If they obtained the data illegally, is it not theft?

Maybe we would have less illegally obtained evidence if there were repercussion for obtaining the evidence illegally?

Jesper says:

Re: Re:

Excellent point that is key to main problem.
No real accountability !

Police (and government agencies in genera) operate outside the laws and enforcement processes applied to all other Americans. Thus the current government system is corrupt.

The MSM and public (government) education system actively promote police & government activity as being fundamentally noble and thus beyond accountability to the normal criminal justice mechanisms for the “common” people (us). Under such heavy propaganda, the general public comes to believe the same thing– that’s why you rarely read about (or see0 cops being criminally prosecuted for their daily crimes.

Also note, warrantless police surveillance ONLY becomes a legal problem to the cops… if the cops want to formally use the info as evidence in a court!!

Otherwise there’s NO judicial review or consequences for ILLEGAL SURVEILLANCE. The FBI has very freely operated this way for over 75 years. All other U.S. police agencies followed that FBI path.

Anonymous Coward says:

Re: Re:

…If they obtained the data illegally, is it not theft?…

Not always. Listening to and recording a phone conversation when one is not a party to said conversation is not theft, but the police need a warrant to do so or else the courts will not admit anything resulting from it as evidence.

AJ says:

Re: Re: Re:

Perhaps it’s not theft, but if I tapped into my neighbors phone and listened in, without a warrant, you bet your ass I’ve broken some kind of law. Theft, illegal wire tap, trespassing, hacking, whatever; they broke some kind of law. You can’t tap into other peoples phone calls like that, even if you are a LEO.

cryophallion (profile) says:

Not the Cops this time.... with some background

Full Disclosure: I can almost see the police station involved above from where I am sitting.
My first reaction was the usual “well, it’s easy to talk about police abuses of power amorphously, very different when it’s your own town, with police you’ve seen doing traffic details, pulling you over for going a bit over the speed limit, and who go to your kids schools to educate them (and who are suddenly doing lok-down (sic) training on Friday)”.

Then I was surprised such a middling town police force would try this tactic. This isn’t super small town trying to shake down people with traffic stops (in MA, we believe in speed suggestions, not limits). This isn’t a town where a lot of profiling should really happen. This is a town where it was a big deal that a selectman decided to rush out and paint crosswalks with deck paint because he was impatient, and was charged for it.

Then I read the actual court transcript. It wasn’t the police who sought it.. it was the ADA, and the commonwealth. This may seem trivial, but I’m starting to realize that the issues aren’t just with the officers. It’s the people telling the officers what info they want, it’s the people who seem to think that everyone is guilty until proven innocent, it’s the people who will take prosecutorial discretion to new lows and throw every possible law at people to force them to make a plea deal (and we won’t even go into Aaron Schwartz here).

I’m realizing nothing happens in a vacuum. The number of times we’ve seem evidence withheld, questionable prosecutions, and railroading is becoming a major issue (especially in light of John Oliver’s recent segment highlighting this on public defenders).

The reality is, Law and Order both brought to light the underlying assumptions in that world that the prosecution is always right and everyone is guilty, and then the rash of police procedurals perpetuated that myth. It’s gotten out of control. We need to stop believing it’s just X group. It’s because numerous groups enable each other that these things happen. And we as a society need to find some way to get some accountability. I just wish I knew how to do that. People are too busy watching reality tv to even see the world outside their door. And until they are prosecuted, they will be happy their streets are supposedly safer. Even though they are safer because the people supposed to enforce the rules are making them up so they almost always win.

That One Guy (profile) says:

Re: More than enough blame to go around

Just because the cops were told by the higher-ups to get the information does not make them any less guilty. They were either incompetent in not realizing that their actions were a pretty clear violation of the rules set down, or corrupt and simply didn’t care.

Just because other groups were involved does not make the police any less guilty of their actions.

cryophallion (profile) says:

Re: Re: More than enough blame to go around

I absolutely agree. Like I said, these groups are enabling each other. I do not find any of them blameless. There is constant overreach by all of them, and when one group overreaches, and it becomes the status quo, and then when the other party then decides to push some limits, and it becomes the norm… you get the creeping of powers, assumption that everyone is guilty and must be punished, and then there are too few people to help those who have this behemoth of a system looming over them.
Mind you, I’m not saying everyone is innocent either, by any stretch, and there are clearly rules and laws that need to be obeyed, and there is a society to protect.
It’s like the situation where people think that because lives have been lost, that privacy needs to go away so people can be better protected, when we are also losing our freedom. People are way too scared of the “not on my watch” attitude, where they are so scared of being blamed for some tragedy that they go way overboard in trying to prevent it. The reality is, and I’m sad to say it, there are always tragedies, both by nature and by man.
The issue is that all of them have crossed the line from protecting everyone, to only protected the ones they think are innocent. As soon as you are seen as possibly in the wrong, you are not worthy of protection anymore, and are generally contemptible and evil. When you are charged, it’s like your rights in general go out the window, and they are just looking for the kill. At least, that’s how it feels to me.

Anonymous Coward says:

Re: Re: Re: More than enough blame to go around

The issue is that all of them have crossed the line from protecting everyone, to only protected the ones they think are innocent.

Even this would be better than what we currently have. The factor of innocence is not evaluated any more. The entire system is designed to be tough on crime, regardless of innocence, where only those with the ‘proper’ connections walk away.

Face it, we effectively live in a guilty until proven innocent society.

nasch (profile) says:

Re: Not the Cops this time.... with some background

In the Criminal Justice System the people are represented by two separate, yet equally important groups. The police who illegally detain citizens, abuse asset forfeiture laws, and use excessive force, and the District Attorneys who think that everyone is guilty until proven innocent, and will take prosecutorial discretion to new lows and throw every possible law at people to force them to make a plea deal. These are their stories.

Doesn’t quite have the same ring.

Anonymous Wow Card says:

Bad for All

The laziness and/or stupidity of not getting a warrant does the most harm to the public. Dangerous criminals that would have been locked up are freed to victimize more people. The victims or victims families should be able to sue for damages if the reason they were harmed is related to a criminal going free because police broke the law.

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