Real time tracking of defendant’s cell phone required a court order, and a search warrant was not required (what’s the difference if PC shown?). Here, defendant had just committed a triple murder and had indicated he was still going to kill, so there were exigent circumstances, too. The court order obtained was constitutionally and statutorily sufficient, even under the state’s higher privacy requirements. The court starts with the difference between historical cell site location data and present data. (The opinion also cites about 60 cases on historical location data.) Commonwealth v. Rushing, 2013 PA Super 162, 71 A.3d 939 (2013):
Appellant does not challenge the government’s request for historical cell site information. Therefore, that issue is not before this Court and the rationale of Electronic Communications, II, does not apply. Finally, the minority of federal decisions that have determined that probable cause is unnecessary for real time cell site location data all have based their conclusions on what has been labeled as a hybrid theory, which is inapplicable in Pennsylvania. The hybrid theory uses the federal Pen Register, Trap and Trace Devices Act and Stored Communications Act in tandem to uphold the searches on a lesser standard than probable cause. See footnote 10, supra (collecting cases). These courts and the federal government have conceded that the federal Stored Communications Act standing alone is insufficient to justify a search of real time cell site information based on specific and articulable facts. Id. Under then applicable Pennsylvania law, the Pen Register, Trap and Trace Devices statute required probable cause. 18 Pa.C.S. § 5773 (effective December 8, 2008 to December 23, 2012); see also Melilli, supra. Thus, it cannot be used together with Pennsylvania’s stored communications provision in the same manner as in the federal cases. Moreover, the record in this case does establish that the real time data was used to narrow Appellant’s location to an actual residence in Wilkes-Barre, Pennsylvania, with the question being which exact residence.
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Next, we conclude that under the Pennsylvania Constitution, Appellant did have a legitimate expectation of privacy that the government could not surreptitiously track his real time location via his cell phone signal. 11 This is especially so because tracking via a cell phone signal will invariably locate people inside private dwellings where their expectation of privacy is at its highest. We recognize that police herein only narrowed Appellant’s cell phone location to within 300 feet; nevertheless, the lack of precision also means that the government cannot accurately ascertain whether it is invading a residence. Under the federal constitution’s lesser search and seizure protections, probable cause ordinarily is required whenever location tracking information stretches to private property. See Karo, supra. Our Supreme Court in the seminal Edmunds decision explained in scholarly fashion Pennsylvania’s heightened standards in the search and seizure field.
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The Pennsylvania Supreme Court has stated that the concurring opinion of Justice Harlan in Katz v. United States, 389 U.S. 347, (1967), “sets forth the foundation for both federal and Pennsylvania constitutional law analysis with respect to constitutionally-protected privacy expectations.” Commonwealth v. Rekasie, 778 A.2d 624, 628 (Pa. 2001). Therefore, [*56] the test is whether Appellant exhibited an actual subjective expectation of privacy and that the expectation is one that society is prepared to recognize as reasonable. Id. citing Katz, supra at 361-62, (Harlan, J., concurring). The Rekasie Court, nonetheless, did recognize that Pennsylvania law does not track federal constitutional jurisprudence when it comes to this test. Notably, the Court in Rekasie highlighted that information that is voluntarily disclosed does not automatically render it unprotected. Id. at 630 (“under Pennsylvania Constitutional jurisprudence, it is manifest that a citizen’s expectation of privacy can extend, in some circumstances, to information voluntarily disclosed to others.”). Information that is not voluntarily turned over to another party is even more sacrosanct.
Real time data pertaining to a cell phone’s location is not voluntarily conveyed. See Electronic Communications, II, supra at 317. Instead, so long as the phone is on, data is automatically transmitted independent of the user. Some cell phone users may be unaware that the government can track their present whereabouts simply by using cell site location information. While a cell phone service provider has the ability to access this information, that does not translate into a waiver of an expectation of privacy. Cf. DeJohn, supra (constitutional protections of Article I, Section 8 extend to bank records). If this were so, individuals would forfeit constitutional protections to other important information whenever a third party has the ability to access the information.
Additionally, we reject the Commonwealth’s position that because a person is a criminal suspect, he no longer possesses a reasonable expectation of privacy; this far-reaching contention would entirely eviscerate the constitutional search and seizure protections. See also Electronic Communications, II, supra at 318 (“The Government is also not free from the warrant requirement merely because it is investigating criminal activity.”); Commonwealth v. Cockfield, 246 A.2d 381, 384 (Pa. 1968) (“a search without a warrant is not reasonable simply because the officers have probable cause to believe that incriminating evidence will be disclosed. If this constituted ‘exigent circumstances,’ it would be almost impossible to think of a case in which a warrant would be necessary.”) (internal citations omitted). A similar position was rejected by the United States Supreme Court in discussing the lesser protections of the Fourth Amendment. In Karo, supra at 716, the High Court explained: …
Admittedly, in this case, there was judicial oversight; nevertheless, insofar as the Commonwealth advances the position that no reasonable expectation of privacy exists in one’s own cell phone signals in Pennsylvania, we reject that argument. Additionally, since cell phone tracking can invariably invade the right to privacy in one’s home, as cell phones are generally carried by the user wherever they travel, we believe that society is prepared to recognize that it is reasonable to expect that the government cannot trace one’s location via his or her cell phone absent probable cause. Thus, we hold that under the Pennsylvania Constitution police were required to make a showing of probable cause in order to obtain real time cell site information data of Appellant’s cell phone.
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Whether the Commonwealth had time to obtain a search warrant, though a factor, is not dispositive to our appellate review of the trial court’s finding of exigent circumstances in this case. Since Appellant had just committed a triple homicide, was armed and dangerous, and most importantly, had indicated that he intended to continue his crime spree, we agree that exigent circumstances existed herein. The seriousness of Appellant’s crimes cannot be understated, he was armed, police had probable cause to arrest him, and he was a danger to others. These factors in combination support a finding that exigent circumstances existed. As both probable cause and exigent circumstances were present, the Commonwealth acted within its constitutional bounds in obtaining the real time cell site information after receiving a court order from the trial court.
