DE: SW for CSLI in murder case was overbroad as to seizures more than 24 hours after the murder; limited to that time period

The search warrant for defendant’s CSLI was for 4 days before a murder and 2 weeks after. He pleads overbreadth. The warrant is particular as to the subject matter, just the time is excessive. Thus, it does not permit a “rummaging,” but it needs to be narrowed. The court declines to suppress all of it and agrees with the state that 24 hours after the murder is not excessive. State v. Waters, 2020 Del. Super. LEXIS 61 (Jan. 30, 2020):

We have seen above that the warrant in this case was supported by probable cause to believe that the phone in question was in the Defendant’s possession on the night of the murder and its cell site information may offer up evidence of the Defendant’s whereabouts at the time of the crime. But the warrant and affidavit fail to offer probable cause as to what evidence, if any, might be gleaned from evidence of the phone’s location 4 days before and 2 weeks after the murder and it thus authorizes the seizure of more cell site location information than is supported by probable cause. Thus, it is an overly broad warrant. But because it is particular in that it seeks only cell site location information and only over a specific period of time and does not authorize a “general rummaging” through all data on a cell phone, it cannot be characterized as a general warrant and suppression of all of its fruits cannot be the appropriate remedy.

When a warrant is broader than the probable cause that supports it, for example in its temporal limitations, the Court may limit the scope of permissible evidence to that for which probable cause is present in the warrant.

The warrant did not explain why cell site location information was needed in this case and it is only by inference that the Court believes the location information may help to determine whether the Defendant (or at least his cell phone) was present at the date and time of the crime. But what, if any, further inference can be made — that is, what expanded window of time logically flows from the affidavit of probable cause — is sufficiently ambiguous that the Court requested further briefing from the parties.

Counsel for Defendant has responded that the probable cause demonstrates that the HSCLI for the location of the phone at the exact moment the offenses occurred is all that the warrant establishes. The State points to the affiant’s declaration that it was believed that the Defendant came to the victim’s residence in the “late afternoon” on the day before the homicide, “casing” the spot to which they would return after midnight. The State believes “late afternoon” can fairly be put at 3:30 pm and the Court agrees.

As to the end point, the State seeks to terminate the HSCLI 24 hours after the crime. Although the justification for this is a bit skimpier than it is for the starting point, the basis for a finding of probable cause that the HSCLI will yield evidence of a crime presumes that the HSCLI will be probative of the whereabouts of the Defendant. Demonstrating the whereabouts of the Defendant in the hours after the murder is certainly probative of whether he stayed within range of the cell tower for hours after the homicide — demonstrating that he remained within the locale of the crime scene or departed shortly thereafter. The Court finds that the HSCLI for the 24 hours after the crime is a reasonable window within the probable cause laid out in the warrant.

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