PA directs parties to brief whether Carpenter applies to real time CSLI

Pennsylvania withdraws a CSLI opinion (Commonwealth v. Pacheco, 2019 PA Super 208, 2019 Pa. Super. LEXIS 662 (July 3, 2019)) and directs that the parties brief whether Carpenter applies to real time CSLI. Commonwealth v. Pacheco, 2019 Pa. Super. LEXIS 927 (Sept. 13, 2019):*

THAT the parties are hereby directed to file supplemental briefs to the Panel addressing the following issues:

1. Should the Majority’s mandate in Carpenter v. United States, 138 S. Ct. 2206, 2218, 201 L. Ed. 2d 507 (2018), to “get a warrant” to obtain historical CSLI, apply to efforts by law enforcement to obtain real-time CSLI?

2. Does Carpenter constructively overrule this Court’s decision in Commonwealth v. Burgos, 2013 PA Super 26, 64 A.3d 641 (Pa. Super. 2013), and any other decision holding that an order is the functional equivalent of a warrant, given the constitutional and procedural differences between orders and warrants?

3. If not, is an order issued pursuant to 18 Pa.C.S.A. § 5773(b)(1) of Subchapter E, as opposed to other subchapters of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (such as section 5761(c)(4)), the functional equivalent of a warrant (i.e., does section 5773(b)(1)(i)’s requirement that the information sought be “relevant to an ongoing criminal investigation” satisfy Carpenter’s requirement of “individualized suspicion”)?

4. Under 18 Pa.C.S.A. section 5773(a), the standard for issuing an order authorizing the disclosure of mobile communications tracking information is that “there is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained by such installation and use on the targeted telephone;” is this the same standard of probable cause that is needed for obtaining a search warrant in general (i.e., car, house, etc.)?

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