FL4: Failure to show cause for order for historical cell site location information did not permit exclusion in Florida

The court order for historical cell site location information (CSLI) as opposed to real time CSLI was not valid for lack of a proper showing, but it was still admissible because there is no exclusionary rule in Florida for violation of the statute. Tracey v. State, 69 So. 3d 992 (Fla. 4th DCA 2011), reh’g denied 2011 Fla. App. LEXIS 16332 (Fla. Dist. Ct. App. 4th Dist., Oct. 14, 2011):

We need not decide in this case whether prospective CSLI is subject to a probable cause requirement, because the state failed to meet even the less stringent standard required by section 934.23(5)—the application failed to offer “specific and articulable facts” to show that CSLI was “relevant and material to an ongoing criminal investigation.” In fact, the application did not even seek a court order for CSLI, only a pen register and a trap and trace. The application merely stated that a “Confidential Source (CS) indicated that [Tracey] obtains multiple kilograms of cocaine from Broward County for distribution on the West Coast of Florida” and that the “CS contacts” Tracey at a certain phone number. As Tracey notes in his brief, this vague language “does not explain the origin of the informant’s information; whether it was based on first-hand knowledge or was merely hearsay obtained from some other source; when [Tracey] was supposed to have last engaged in the alleged criminal conduct; when he was supposed to again engage in the alleged criminal conduct; or how the cell phone was involved in the transactions.” The statement in no way demonstrated how the confidential source was reliable. See generally State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001); Dozier v. State, 766 So. 2d 1105 (Fla. 2d DCA 2000).

To say that the state violated section 934.23 in obtaining real time CSLI does not mean that an exclusionary rule applies to prevent the state from using any “evidence derived” from the violation. § 934.06, Fla. Stat. (2009). Under federal law, suppression of evidence is not a remedy for violations of the ECPA. See United States v. Forest, 355 F.3d at 949; United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998); United States v. Navas, 640 F. Supp. 2d 256, 262-63 (S.D.N.Y. 2009), reversed on other grounds, 597 F.3d 492 (2d Cir. 2010). “[T]he Stored Communications Act expressly rules out exclusion as a remedy; § 2708, entitled ‘Exclusivity of Remedies,’ states specifically that § 2707’s civil cause of action and § 2701(b)’s criminal penalties ‘are the only judicial remedies and sanctions for violations of’ the Stored Communications Act. 18 U.S.C. § 2708.” Smith, 155 F.3d at 1056 (emphasis in original).

Similarly, under Florida law, the exclusionary rule is not a remedy for violations of section 934.23. Section 934.28, Florida Statutes (2009) provides:

The remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections.

The criminal penalties of section 934.21 and the civil remedy provided in section 934.27 are the only remedies authorized for a violation of section 934.23. Application of the exclusionary rule is not an option authorized by the statute.