from the even-with-a-warrant,-it's-still-a-fishing-expedition dept
The courts in Massachusetts continue to set the standard for privacy protections. They have handed down several rulings that have expanded residents’ reasonable expectations beyond the baseline set by the Fourth Amendment and federal court rulings.
The courts in the state erected a warrant requirement for cell site location data four years ahead of the Supreme Court’s Carpenter decision. The state’s top court has also created a warrant requirement for long-term video surveillance of the outside of someone’s home, as well as one for law enforcement agencies’ searches of their own body camera footage.
So, it’s perhaps unsurprising that the top court in Massachusetts has decided that, despite the acquisition of warrants, some law enforcement acquisitions of cell tower dumps — information that provides details on all phones in an area — were unconstitutional under state law. Last year’s oral arguments suggested the court was extremely skeptical about the probable cause underpinnings that relied on unsupported assumptions not only about the people in the area (who may or may not have been carrying cellphones), but law enforcement’s entitlement to access cell site location data created by dozens or hundreds of non-suspects, even with a warrant.
In this case, warrants were used. Seven tower dumps were obtained, covering areas around six robberies, including one that resulted in a homicide. From those dumps, investigators created a list of probable suspects. This list was narrowed down and prosecutors brought charges against one person who had been near the scene of two of the crimes. Facing charges for six robberies and one homicide, the defendant moved to suppress the evidence, claiming the warrants were unsupported by sufficient probable cause.
The defendant argues that the Commonwealth’s use of the tower dumps intruded upon his reasonable expectation of privacy, and therefore effectuated a search under the Federal and State Constitutions. He also contends that search warrants for tower dumps are per se unconstitutional because they necessarily lack particularity. In addition, the defendant asserts that, here, the warrants were not supported by probable cause.
We agree that the government’s use of the seven tower dumps was an intrusion upon the defendant’s reasonable expectation of privacy, and therefore constituted a search under art. 14 of the Massachusetts Declaration of Rights.
But it’s not a complete victory. Nor should it be. Warrants were obtained. One had proper probable cause support. One did not.
We do not agree, however, that warrants for tower dumps are per se unconstitutional. Accordingly, investigators may use tower dumps so long as they comply with the warrant requirements of art. 14.
Two warrants were sought. The first was bad. The second one was good. And the court says the second warrant did not rely on information obtained with the first warrant — the one it has declared unconstitutional.
On January 30, 2019, a Boston police detective sought and obtained a search warrant from a judge in the Boston Municipal Court for tower dumps corresponding to the robberies in Boston and Canton on October 25 and October 31, 2018, as well as the attempted robbery and homicide in Boston on October 6, 2018 (second warrant). The application for this second warrant did not reference or otherwise rely upon any evidence obtained from execution of the first warrant. The second warrant required the same four service providers to produce the tower dumps. For each date, the tower dump was to include CSLI for all cellular telephones that had connected to any cell site serving the address where the crime occurred, within a forty-minute period around the time of each incident.
Those two warrants resulted in a wealth of information being collected by the Boston PD: 50,000 unique telephone numbers. Cross referencing the lists, investigators honed in one person. But the amount obtained and the period of time targeted allowed the government to obtain information it would not have been able to obtain through other, more traditional methods. In addition, the tower dumps allowed investigators to engage in proxy surveillance of someone as they went about their personal business before they were even considered a suspect — something definitely out of the norm when it comes to law enforcement surveillance.
The collective whole of this personal and private information would have been impossible to obtain through the use of traditional surveillance techniques. The government learned the defendant’s comings and goings during a period of time before he was a suspect, something that could not have been achieved through visual surveillance. Indeed, the sheer volume of information investigators obtained from the tower dumps would have been impossible to gather using traditional surveillance.
There is no historic analogue for the ability effortlessly to compile and document the locations, identities, and associations of tens of thousands of individuals, just in case one might be implicated in a criminal act. Even if such a feat were possible, it certainly would be impossible to execute surreptitiously; yet, here, investigators were able to compile and catalogue the locations of more than 50,000 individuals at varying points over more than one month, without any one of them ever knowing that he or she was the target of police surveillance.
It’s not so much the length of the surveillance as it is the aggregate result of the surveillance. That’s what exceeds the boundaries of the state’s constitutional protections.
While the court has determined that analyzing six continuous hours of CSLI does not intrude upon a reasonable expectation of privacy, analyzing small increments of CSLI over the course of several days does. Whereas the former reveals at most one-quarter of one day’s activities, the latter reveals a pattern of activity, which implicates comparatively greater privacy interests.
The second warrant was loaded with probable cause, including the investigator’s assertions of knowledge that the perpetrator communicated by phone to co-conspirators — something essential to the collection of cell tower records.
The first warrant, not so much. All it did was suggest the odds were that the perpetrator of the crime would likely have carried a phone with them. It suggested crimes like this most likely utilized multiple people but never suggested they might need to remain in close contact. In fact, the first warrant application made no suggestion investigators were even interested in or seeking to locate a co-conspirator. Instead, it claimed it was likely the same person committed the crimes and could be identified via cell tower location data. That’s not enough, the Massachusetts Supreme Court says. Particularity is important, and there’s nothing in the first warrant that would have prevented investigators from examining all the fish swept up in this fishing expedition.
Investigators permissibly could select any telephone number from among the 50,000 provided and thereafter conduct a search by determining the identity of that individual, his or her location, and with whom he or she had been communicating, all without even an iota of suspicion. Judicial authorization of such “general exploratory rummaging” undoubtedly would violate the particularity requirements of art. 14.
To limit such “general rummaging” in the future, the court erects further limits on the use of warrants to obtain cell tower dumps — ones that will force Massachusetts law enforcement agencies to be far more careful when crafting affidavits for legal documents that will give them access to information pertaining to thousands of non-suspects.
Future warrant requests will need to be handled by a Superior Court judge, rather than a lower-level magistrate. Further limitations and guidelines will apply.
The warrant must include protocols for the prompt and permanent disposal of any and all data that does not fit within the object of the search following the conclusion of the prosecution.
This is the rule going forward. It invalidates the first warrant and suppresses any evidence derived from it. The second warrant — being more firmly on probable cause ground and sufficiently particular — survives. This will help prevent future fishing expeditions and will definitely have an adverse effect on the law enforcement’s new favorite tool: reverse/geofence warrants. And once again, Massachusetts residents’ privacy is better protected by their state constitution than by the US Constitution.