For CSLI, direct evidence that defendant had a cell phone on him is not constitutionally required under Carpenter or any other case. The content of communications aren’t sought – just the fact of where the phone has been. Commonwealth v. Hobbs, 2019 Mass. LEXIS 369 (June 28, 2019):
a. Nexus. The defendant first argues that the affidavit categorically failed to establish the requisite nexus “between the crime[s] alleged and the article to be search or seized” (quotation and citation omitted), White, 475 Mass. at 588, because there was no assertion in the affidavit that the defendant actually used or possessed his cell phone during the commission of the crimes. We disagree, as neither this court nor the United States Supreme Court has required such a showing to satisfy the nexus requirement where the sought-after evidence is CSLI. See, e.g., Carpenter, 138 S. Ct. at 2221; Estabrook, 472 Mass. at 870; Augustine II, 472 Mass. at 453.
The affidavit in support of a search warrant application must demonstrate a nexus between “the crime [for which there is probable cause to search] and the items sought, and the location to be searched.” Commonwealth v. Alexis, 481 Mass. 91, 102, 112 N.E.3d 796 (2018). See Holley, 478 Mass. at 521. The nexus “need not be based on direct observation” and it “may be found in the type of crime, the nature of the [evidence] sought, and normal inferences as to where such evidence may be found” (emphasis added; quotation omitted). White, 475 Mass. at 589. To establish the requisite nexus, the affidavit must demonstrate a substantial basis to conclude that “the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues” (citation omitted). Alexis, supra. See Holley, supra; Augustine II, 472 Mass. at 455.
In the context of historical CSLI, the sought-after evidence is the location of the cell phone itself, not what information may be found in the cell phone’s contents. That location can also be reasonably expected to be the location of the person possessing the cell phone. We have repeatedly recognized that cell phones have become “an indispensable part of daily life and exist as almost permanent attachments to [their users’] bodies” (quotations omitted). Commonwealth v. Almonor, 482 Mass. 35, 45, 120 N.E.3d 1183 (2019), quoting Augustine I, 467 Mass. at 245-246. “Cell phones ‘physically accompany their users everywhere’ such that tracking a cell phone results in ‘near perfect surveillance’ of its user.” Almonor, supra, quoting Carpenter, 138 S. Ct. at 2218; Augustine I, supra at 246. Accordingly, in light of the inseparability of person from cell phone, an affidavit establishing that a suspect committed a crime and that the suspect was known to own or use a particular cell phone, along with the reasonable inferences drawn therefrom, demonstrates a substantial basis to believe that the CSLI from that cell phone was “related to the criminal activity under investigation, and that [the CSLI] reasonably may be expected to be located in the place to be searched at the time the search warrant issues” (citation omitted). Alexis, 481 Mass. at 102. More precisely, the location of a suspect’s cell phone at the time of the criminal activity provides evidence directly related to his or her participation, or lack thereof, in the criminal activity, and the location of the cell phone at that time can reasonably be expected to be found in the CSLI records requested.
Consequently, there is a sufficient nexus between the criminal activity for which probable cause has been established and the physical location of the cell phone recorded by the CSLI of the person the applicant has probable cause to believe has committed the offense, at least for the time and place of the criminal activity. A direct observation of a suspect’s actual use of the cell phone during the commission of the crime is thus not required to establish the requisite nexus between the crime and CSLI.