KY: Real time pinging of CSLI requires SW except for exigency

“[W]e hold that individuals have a reasonable expectation of privacy in real-time CSLI and, consequently, the acquisition of such data by the police constitutes a search triggering the protections of the Fourth Amendment. Furthermore, the good faith exception does not apply to prevent suppression in this case because no binding appellate precedent existed in Kentucky to support the decision of the police to collect Reed’s real-time CSLI without a warrant.” Reed v. Commonwealth, 2020 Ky. App. LEXIS 11 (Feb. 7, 2020):

Although the Carpenter Court expressly limited its holding to the acquisition of historic CSLI, Reed urges us to extend its reasoning to encompass the acquisition of real-time CSLI or “pinging.” He also relies on opinions of courts in other jurisdictions which have held that a warrant is required to acquire real-time CSLI. See e.g., Tracey v. State, 152 So. 3d 504 (Fla. 2014) (pre-Carpenter case comparing the acquisition of CSLI to GPS tracking and rejecting a case-by-case approach as unworkable and potentially leading to arbitrary and inequitable enforcement); State v. Andrews, 134 A.3d 324, 348 (Md. Ct. Spec. App. 2016) (quoting United States v. Graham, 796 F.3d 332, 355 (4th Cir. 2015)) (pre-Carpenter case rejecting “the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person”); State v. Sylvestre, 254 So. 3d 986, 987 (Fla. Dist. Ct. App. 2018) (applying reasoning of Carpenter to real-time CSLI).

We agree that the acquisition of real-time CSLI implicates significant, legitimate privacy concerns. As the Supreme Judicial Court of Massachusetts recently observed, when the police are able to ping a cell phone in order to discover its location, they also acquire the ability to identify the real-time location of its owner, which is “a degree of intrusion that a reasonable person would not anticipate[.]” Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019) (quoting State v. Earls, 70 A.3d 630, 642 (N.J. 2013)). This distinguishes the situation from one in which the police track an individual in the public thoroughfare or seek access to records held by a third party. “Although our society may have reasonably come to expect that the voluntary use of cell phones — such as when making a phone call — discloses cell phones’ location information to service providers, and that records of such calls may be maintained, our society would certainly not expect that the police could, or would, transform a cell phone into a real-time tracking device without judicial oversight.” Id. (citations omitted).

Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.

One exception to the warrant requirement occurs “when the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011) (citations and internal quotation marks omitted). So, for example, “[p]olice officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.” Id. (citation omitted). In the case before us, the police sought to locate an individual, Reed, who reportedly had just fled after committing an armed robbery. These circumstances may have been sufficiently exigent to justify the warrantless pinging of his cell phone, but this argument was not raised by the Commonwealth, which bears the burden of proving the availability and applicability of this exception, and consequently no evidence was elicited nor findings made by the trial court regarding its applicability. SeeCommonwealth v. Garrett, 585 S.W.3d 780, 790 (Ky. App. 2019).

Update: techdirt: Kentucky Appeals Court Says Cops Need Warrants To Obtain Real-Time Cell Site Location Info by Tim Cushing