Cell phone location information

Carpenter v. United States, 585 U.S. __ (2018)
“An individual maintains a legitimate expectation of privacy, for Fourth Amendment purposes, in the record of his physical movements as captured through CSLI.” A warrant is required to obtain a suspect's historical cell phone location information. 

An "order issued under § 2703(d) of the [Stored Communications] Act, [18 U.S.C.S. § 2703(d)] is not a permissible mechanism for accessing historical cell-site records."

Before compelling a wireless carrier to turn over a subscriber’s cell-site location information, the government’s obligation is a familiar one: get a warrant.

The evolution of Massachusetts Court’s decisions regarding a defendant’s cell phone location data

Comm. v. Perry, 489 Mass. 436 (2022) 
In Comm. v. Perry the SJC continues to discuss the balance between public safety and personal privacy in cases involving requests for cell site location information (CSLI), and “tower dumps” (collection of data on a multitude of individuals over multiple days.) The SJC decided “Henceforth, before acquiring and analyzing a series of tower dumps, the Commonwealth must obtain a warrant from a judge. Before issuing the requested warrant, the judge must ensure that it provides a protocol for the disposal of any data that falls outside the scope of the search.” 

Comm. v. Almonor, 482 Mass. 35 (2019)
In a departure from the finding of Comm. v. Estabrook, and Comm v. Augustine, Comm. v. Almonor found that real-time "pinging" of a cell phone location by a service provider at the request of police is a search under Article 14 of the Mass. Constitution, and so normally will require a warrant and “by causing the defendant's cell phone to reveal its real-time location, the Commonwealth intruded on the defendant's reasonable expectation of privacy in the real-time location of his cell phone.”

Comm. v. Raspberry, 93 Mass.App.Ct. 633 (2018)
The judge ruled that the CSLI search was justified under the emergency aid exception to the warrant requirement, because the police had a ‘good faith, reasonable belief that there was a serious and imminent threat to human life’.”

Comm. v. Estabrook, 472 Mass. 852 (2015).
A "request for historical CSLI [cellular site location information] for a period covering six hours or less does not require a search warrant in addition to a [18 USC] § 2703(d) order....This exception to the warrant requirement for CSLI applies only to 'telephone call' CSLI,..., and not to 'registration' CSLI. 'Telephone call' CSLI indicates the 'approximate physical location . . . of a cellular telephone only when a telephone call is made or received by that telephone.' ...By contrast, 'registration' CSLI 'provides the approximate physical location of a cellular telephone every seven seconds unless the telephone is 'powered off,' regardless of whether any telephone call is made to or from the telephone."

Comm. v. Augustine, 467 Mass. 230 (2014)
A warrant is generally required for historical cell site location information (CSLI) CSLI [cellular site location information]. However, “it is likely that the duration of the period for which historical CSLI is sought will be a relevant consideration in the reasonable expectation of privacy calculus—that there is some period of time for which the Commonwealth may obtain a person's historical CSLI by meeting the standard for a [18 USC] § 2703(d) order alone, because the duration is too brief to implicate the person's reasonable privacy interest.” And “it would be reasonable to assume that a request for historical CSLI of the type at issue in this case for a period of six hours or less would not require the police to obtain a search warrant.”

Decisions regarding the cell phone location data of others

Comm. v. Fredericq, 482 Mass. 70 (2019)
Defendant in a car had automatic standing to challenge the warrantless search of another's cell phone location because police knew that he was in car with murder suspect whose movements were being tracked through CSLI of another person's cell phone for more than six days.

Comm. v. Lugo, 482 Mass. 94 (2019)
Defendant did not have standing to challenge the search of another person's cell phone location information where police did not know they were together, and "the period of the search - less than two hours - was not sufficiently significant to allow the defendant standing." 

Cell phone data

Com. v. Delgado-Rivera, 487 Mass. 551 (2021)
A person has "no reasonable expectation of privacy... in the text messages sent by him that were stored on a cellular telephone belonging to, and possessed by, another person."

Com. v. Dorelas, 473 Mass. 496 (2016)
“The Supreme Judicial Court…held that where there was probable cause that evidence of communications linking defendant to crimes under investigation in connection with shooting would be found in electronic files on his cell phone, and because such communications could be conveyed or stored in photographic form, a search of photograph files was reasonable.”

Com. v. Feliz, 486 Mass. 510 (2020)
Given the defendant's use of devices to share child pornography over the Internet, a condition of probation allowing the probation department to inspect and search any electronic device was reasonably related to the Commonwealth's probationary goals. This condition only allows searches of the defendant's electronic devices for child pornography, not his home or person, and not for other subjects.

Com. v. Fencher, 95 Mass. App. Ct. 618 (2019)
Seizure before consent. The court concluded in this case, that "the seizure of the defendant's cell phone was supported by probable cause and that the defendant's subsequent consent to search was free and voluntary."

Com. v. Henley, 488 Mass. 95 (2021)
Although general or exploratory searches are not permitted, requiring a search warrant application to identify specific locations or files on a cell phone to be searched places an unrealistic burden on law enforcement and restricts legitimate search objectives, given the storage capacity and file structure of most cell phones”

Com. v. Jones, 481 Mass. 540 (2019)
"When the Commonwealth seeks a Gelfgatt order compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires that, for the foregone conclusion to apply, the Commonwealth must prove beyond a reasonable doubt that the defendant knows the password.

Com. v. Shipps, 97 Mass. App. Ct 32 (2020)
Constitutionality of a cell phone search by a probation officer pursuant to a condition of probation.

Com. v. Snow, 486 Mass. 582 (2021)
Provides additional guidance on the proper scope of cell phone search warrants, including particularity and time restrictions.

Com. v. White, 475 Mass. 583 (2016)
"Probable cause to search or seize a person's cellular telephone may not be based solely on an officer's opinion that the device is likely to contain evidence of the crime under investigation... also ... in these circumstances, the Commonwealth has not... met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable."

Riley v. California, 573 US 373 (2014). 
Warrantless search of cell phone incident to arrest is unconstitutional. "The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested."


Last updated: September 23, 2022