MA requires search warrant for historical cell site location information data

A search warrant required for historical cell site location information data in Massachusetts. Commonwealth v. Augustine, 467 Mass. 230 (February 18, 2014):

The central question we address in this appeal is whether, consistent with the Massachusetts Constitution, the Commonwealth may obtain from a cellular telephone service provider (cellular service provider) historical cell site location information (CSLI) for a particular cellular telephone without first obtaining a search warrant supported by probable cause. The Commonwealth appeals pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), from an order of a judge in the Superior Court granting the defendant’s motion to suppress evidence of CSLI associated with the cellular telephone he was using. The judge concluded that, although the Commonwealth had obtained the CSLI from the defendant’s cellular service provider pursuant to a valid Superior Court order issued under 18 U.S.C. § 2703(d) (2006) of the Federal Stored Communications Act (SCA), the Commonwealth’s access to the CSLI constituted a search within the meaning of art. 14 of the Massachusetts Declaration of Rights, and therefore a search warrant based on probable cause was required.

On appeal, the Commonwealth principally asserts that no search in the constitutional sense occurred because CSLI is a business record of the defendant’s cellular service provider, a private third party, and the defendant can have no expectation of privacy in location information–i.e., information about the subscriber’s location when using the cellular telephone–that he voluntarily revealed. We conclude, like the motion judge, that although the CSLI at issue here is a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case–where the CSLI obtained covered a two-week period– the warrant requirement of art. 14 applies. We remand the case to the Superior Court, where the Commonwealth may seek to establish that the affidavit submitted in support of its application for an order under 18 U.S.C. § 2703(d) demonstrated probable cause for the CSLI records at issue.