D.Mass.: Court order for CSLI under SCA not “clearly unconstitutional”

A court order on probable cause for CSLI information under the SCA was not clearly unconstitutional and good faith would apply in any event. [It it’s issued on probable cause, what’s the problem?] United States v. Letellier, 2015 U.S. Dist. LEXIS 142432 (D.Mass. Oct. 20, 2015):

Here, it was objectively reasonable for law enforcement officers to rely on the SCA’s authority in applying for an order to obtain historical CSLI from Sprint. At the time that the application was submitted, the provisions of the SCA at issue were not “clearly unconstitutional.” See Krull, 480 U.S. at 349-50 (“Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.”). While there was no controlling Supreme Court or First Circuit cases directly addressing the constitutionality of § 2703(d) at the time the order was sought, statutes are presumed to be constitutional. Id. at 351. Indeed, the limited case law in this district supported the conclusion that the SCA was constitutional and that a § 2703(d) order may be obtained without showing probable cause. See, e.g., In re Applications of U.S. for Orders, 509 F. Supp. 2d at 80-81 (reversing magistrate judge’s opinion that historical CSLI may be obtained only pursuant to a warrant based on probable cause); In re Application of U.S. for an Order Pursuant to Title 18, U.S. Code, Section 2703(d) to Disclose Subscriber Info. & Cell Site Info., 849 F. Supp. 2d 177, 179 (D. Mass. 2012) (stating that “[u]ntil either the First Circuit Court of Appeals or the Supreme Court rule otherwise, or Congress enacts legislation dealing with the problem, the Court will follow the ruling” in In re Applications of U.S. for Orders, 509 F. Supp. 2d at 80-81, and “not require a showing of probable cause before issuing” a § 2703(d) order for historical CSLI). Although some out-of-circuit cases have called into question the constitutionality of the statute, other cases have taken the opposite view, and it cannot be said that the statute was “clearly unconstitutional” when application for the order was made. It was objectively reasonable for officers to rely on § 2703(d) to seek to obtain historical CSLI data of the defendant’s telephone.

Second, to the extent that Leon extends to the government in this context, it was objectively reasonable for officers to rely on the magistrate judge’s order. The magistrate judge applied the correct standard under the SCA and found that the applicant had offered specific and articulable facts showing that there was reasonable grounds to believe that the records were relevant and material to an ongoing criminal investigation. See 18 U.S.C. § 2703(d). The application for the order was supported by information from the government containing grounds for suspicion. Further, there is no argument from the defendant that any carve outs to the good-faith exception apply, such as the magistrate judge having wholly abandoned his judicial role or the government having misled the magistrate judge in its application for an order. See Leon, 468 U.S. at 923. The government was entitled to rely on the legal judgment of a neutral magistrate.

In sum, the data collected pursuant to the § 2703(d) order by the government acting in reasonable reliance both on a statute that cannot be said to be “clearly unconstitutional” and an order by a neutral magistrate judge applying the proper legal standard is not subject to the exclusionary rule.