MA: SW for CSLI for too much time was severable

The search warrant for too many hours of CSLI was overbroad: “The collection of extended CSLI data raises significant constitutional concerns.” Three hours is all that could be shown was necessary. The overbroad part, however, could be severed, and suppression of the relevant parts was inappropriate because there was no prejudice to defendant from that. Commonwealth v. Wilkerson, 2020 Mass. LEXIS 723 (Nov. 4, 2020):

In reaching this decision, we relied on Commonwealth v. Holley, 478 Mass. 508, 524-525, 87 N.E.3d 77 (2017), a case in which we sanctioned the admission of certain relevant text messages, notwithstanding an insufficiently particular warrant. Both Hobbs and Holley are consistent with analogs from the physical world, which allow severance of the valid portion of a search warrant where a part of the warrant is insufficiently particular or not supported by probable cause. See Commonwealth v. Lett, 393 Mass. 141, 144-145, 470 N.E.2d 110 (1984), quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983), cert. denied, 466 U.S. 950, 104 S. Ct. 215, 104 S. Ct. 2151, 80 L. Ed. 2d 538 (1984) (“the infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant … but does not require the suppression of anything described in the valid portions of the warrant”); Lett, supra at 145 (“The partial suppression remedy for a partially invalid warrant, we believe, effects a pragmatic balance between the deterrent effect of suppression and the cost to society of excluding probative evidence”). See also Aday v. Superior Court of Alameda County, 55 Cal. 2d 789, 797, 13 Cal. Rptr. 415, 362 P.2d 47 (1961) (seminal case on severance); 2 W.R. LaFave, Search and Seizure § 4.6(f), at 814-815 (5th ed. 2012 & Supp. 2019) (endorsing Aday rule).

Importantly, this severance doctrine is not without limits. “It is beyond doubt that all evidence seized pursuant to a general warrant must be suppressed. The cost to society of sanctioning the use of general warrants — abhorrence for which gave birth to the Fourth Amendment — is intolerable by any measure.” Lett, 393 Mass. at 145-146, quoting United States v. Christine, 687 F.2d 749, 758 (3d Cir. 1982). This is equally true in the context of digital location tracking. “Just as police are not permitted to rummage unrestrained through one’s home, so too constitutional safeguards prevent warrantless rummaging through the complex digital trails and location records created by merely participating in modern society.” Commonwealth v. McCarthy, 484 Mass. 493, 499, 142 N.E.3d 1090 (2020). Thus, where a warrant so lacks particularity or is so overbroad that it begins to resemble a general warrant, total suppression is required. See Lett, supra; LaFave, supra at § 4.6(f), at 816.

We need not decide here how overbroad a request for CSLI must be in order for total suppression to be appropriate. The forty-eight hours requested, and the thirty-four hours obtained here, are not so overbroad on the facts of this case so as to be akin to a general warrant. In addition, nothing in the record suggests that the Commonwealth relied upon or exploited the CSLI data that was not admitted. See Hobbs, 482 Mass. at 550. Indeed, the round-trip journey between Taunton and Avon revealed by the CSLI fits squarely within the language used in Hobbs; it represents “a reasonable period of time encompassing the commission of and flight from the crime.” Id. Because those three hours were severable, we discern no abuse of discretion in their admission.