from the start-breaking-out-the-boilerplate,-boys dept
In 2018, the Supreme Court of the United States overrode the Third Party Doctrine to declare cell site location info (CSLI) off-limits without a warrant. Recognizing the fact that ubiquitous cell phone use was generating reams of data daily that would allow law enforcement to engage in long-term tracking of people’s movements, the Supreme Court said the Third Party Doctrine didn’t cover this third-party data, at least not as presented in this case.
But the findings were limited. SCOTUS had nothing to say about real-time tracking with CSLI. It offered no opinion about wardriving with Stingray devices to find suspects. And it didn’t address shoulder-surfing law enforcement liaisons at cell service providers to use cell tower pings to locate and track suspects.
But the baseline the US Supreme Court established has had a butterfly effect. CSLI is no longer considered nothing more than a third-party record — something voluntarily shared with cell providers that has no expectation of privacy.
State courts have referenced the Carpenter decision while coming to their own, more restrictive conclusions. The US Constitution — like the Carpenter ruling — is only a baseline. States (and state courts) are free to establish higher privacy protections for their residents via their own constitutions and court decisions.
In early 2019, the top court in Massachusetts instituted a warrant requirement for real-time CSLI data. Three years later, the top court in Kentucky did the same thing.
In December 2018, Vermont investigators approached AT&T in hopes of locating a shooting suspect. The first attempt to track them down using CSLI failed.
The lead detective contacted AT&T’s law enforcement compliance center and served a subpoena request. In support of the exigent request, the officer indicated that there had been a bar fight, an active shooter, a victim who was unfamiliar with the suspect, and that the shooter might be unreasonable or “in some sort of mental state” and in possession of a firearm. AT&T complied with the request but initially informed police that defendant’s phone was turned off and, as a result, it had no information about the phone’s location.
After this failure, the investigators sought a warrant for the phone’s historical CSLI. This was obtained shortly before 5 p.m. on December 29, 2018. But before it could be served to AT&T, this happened:
Approximately ninety minutes after the warrant issued but before it was served on AT&T, AT&T notified police that defendant’s phone had been turned back on and that a subsequent ping had located defendant’s phone in West Springfield, Massachusetts. Vermont police obtained a warrant for defendant’s arrest. They alerted Springfield police that a homicide suspect’s cellphone had been pinged as being located within several feet from a motel at a particular address. A second ping placed the suspect near a particular restaurant on a specific street. A police officer spotted a person fitting the suspect’s description and then received information that a third ping placed the suspect in the area where he was observed. Defendant was arrested shortly thereafter near a motel where he was staying and charged with first-degree murder.
The lower court said this was not a constitutional violation. And even if it was, exigent circumstances (the search for a suspected murderer) justified any rights violations.
The state Supreme Court says otherwise. Analyzing the case, it notes the US Supreme Court’s Carpenter decision does not specifically address real-time CSLI. Given that fact, the Vermont court says the suppression motion must be analyzed under the state’s constitution. And under that set of rights, real-time CSLI cannot be obtained without a warrant.
Quoting a handful of state court decisions (including the Massachusetts and Kentucky rulings noted earlier in this post) that have reached this same conclusion, the Vermont Supreme Court recognizes an expectation of privacy in real-time cell site location info. The key here is the word “reasonable.”
We agree that individuals do not reasonably expect that by using their phone, they will be sharing their real-time location information with police. They do not expect their cellphone to act as “a hidden tracking device that can be activated by law enforcement at any moment, subject only to the constraints of whether law enforcement knows the phone number and whether the cellphone is turned on.” The fact that police can now, through real-time CSLI, obtain “near perfect surveillance of its user” and “access to a category of information otherwise unknowable,” Almonor, 120 N.E.3d at 1194-95 (quotations omitted), does not mean they should be allowed to do so without judicial oversight. We must guard against allowing technological advances to result in fewer privacy rights.
The court says allowing the government to obtain real-time location data without a warrant would give law enforcement permission to “invade individuals’ most private and closely-held constitutionally protected activities.”
Put more simply:
A ping is a search that requires a warrant…
That’s the new baseline in Vermont. In this case, it doesn’t do much for the defendant. The state’s top court says exigent circumstances existed and justified the bypassing of constitutional protections to find a suspected shooter, still in possession of a weapon and possibly suffering some sort of mental health breakdown.
But none of that changes the baseline. Warrant exceptions will always exist. And a warrant requirement forces the government to justify its decision to bypass the requirement, rather than simply show up and claim no precedent put officers on notice a warrant might be needed. Vermont’s a bit more insulated from law enforcement overreach following this ruling and, even if it doesn’t help the defendant, it’s a win for the rest of the state’s residents.