WA: Pre-Carpenter subpoena for CSLI fails with no PC showing

Defendant’s CSLI records were obtained by subpoena without a search warrant pre-Carpenter, and the record was preserved. The Fourth Amendment and the state constitution were violated. The state just can’t use a subpoena for something this intrusive that tracks one’s every move. State v. Phillip, 2019 Wash. App. LEXIS 2062 (Aug. 8, 2019), withdrawing and substituting for State v. Phillip, 2019 Wash. App. LEXIS 1695 (July 1, 2019):

¶31 The Court’s concerns in Carpenter apply with even more persuasive force here. Just as in Carpenter, Phillip’s cell phone data provided the State an intimate view into Phillip’s life. Similar to Carpenter, Phillip’s cell phone data precisely tracked his movements. Just as in Carpenter, the State traveled back in time to retrace Phillip’s whereabouts: the State effectively tailed Phillip every moment, and the police may—in the State’s view—call upon the results of that surveillance without regard to the constraints of article I, section 7. And just as in Carpenter, this court is “obligated—as ‘[s]ubtler and more far-reaching means of invading privacy have become available to the Government’—to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Carpenter, 138 S. Ct. at 2223 (quoting Olmstead v. United States, 277 U.S. 438, 473-74, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissent), overruled in part by Berger v. State of New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967)).

¶32 Yet even more concerning is that the primary concern of article I, section 7 is to protect privacy. “[A] disturbance of private affairs must satisfy article I, section 7’s authority of law requirement.” State v. Miles, 160 Wn.2d 236, 249, 156 P.3d 864 (2007). Article I, section 7 “recognizes an individual’s right to privacy with no express limitations[,]” Winterstein, 167 Wn.2d at 631-32, and “the paramount concern of our state’s exclusionary rule is protecting an individual’s right of privacy.” Betancourth, 190 Wn.2d at 367.

¶33 The State argued below that Phillip had no expectation of privacy in the CSLI records because he voluntarily shared this data with his cell phone provider. Based on the State’s argument, the trial court agreed that it was applying a lower threshold of protection for cell phone data: “[o]ne could certainly hold that Mr. Phillip’s expectation of privacy in his personal cell phone and apartment is higher than his expectation of privacy in the historic cell tower location records.” The State’s argument and trial court’s determination is in direct odds with the holding in Carpenter. This was in error as Phillip has a reasonable expectation of privacy in his cell phone records, which was seriously impeded when the police obtained those records without a valid warrant or probable cause.

B.

¶34 In addition to misstating Phillip’s reasonable expectation of privacy in his CSLI records, the State also failed to apply for and obtain a warrant based on probable cause. The State argues that it was justified in requesting a subpoena using a probable cause standard because the probable cause standard, regardless of what mechanism it is attached to, sufficiently satisfied the authority of law requirement of article I, section 7. Because of the expectation of privacy associated with CSLI records, we disagree.

¶35 The State attempts to distinguish Carpenter by arguing that the Supreme Court did not say that a warrant was required in all situations, but instead said that a subpoena or court order based on a reasonable grounds standard was insufficient. While the State is correct that the court order in Carpenter was based on a reasonable ground standard, this does not diminish the Supreme Court’s mandate: “Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.” Carpenter, 138 S. Ct. at 2221 (emphasis added). And as the Court further explained “this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.” Id.