MA already held 6 hrs CSLI needs no warrant; here it was two weeks worth but only 6 hrs used at trial, so warrant required

The Massachusetts court had already held that six hours of CSLI did not need a warrant. Here, however, two weeks’ worth were sought by subpoena, and the state sought to admit only six hours worth to comply with the prior holding. The court holds that a warrant was required, and the state can’t circumvent that by only relying on six hours worth at trial. Commonwealth v. Estabrook, 2015 Mass. LEXIS 734 (September 28, 2015):

In Augustine, the court held that a person has a reasonable expectation of privacy in historical CSLI relating to his or her cellular telephone, at least insofar as it covers a two-week period, and that this expectation of privacy rendered the Commonwealth’s access to this information a search in the constitutional sense, subject to the warrant requirement of art. 14.10 Augustine, 467 Mass. at 232, 255. However, we surmised that there may be “some period of time for which the Commonwealth may obtain a person’s historical CSLI by meeting the standard for a § 2703(d) order alone, because the duration is too brief to implicate the person’s reasonable privacy interest.” Id. at 254. Although we declined in Augustine to announce “a temporal line of demarcation between when the police may not be required to seek a search warrant for historical CSLI and when they must do so,” we assumed without deciding that “a request for historical CSLI … for a period of six hours or less would not require the police to obtain a search warrant in addition to a § 2703(d) order” (emphasis added). Id. at 255 n.37. We now hold that, assuming compliance with the requirements of 18 U.S.C. § 2703, the Commonwealth may obtain historical CSLI for a period of six hours or less relating to an identified person’s cellular telephone from the cellular service provider without obtaining a search warrant, because such a request does not violate the person’s constitutionally protected expectation of privacy.