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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)