{"id":46041,"date":"2020-11-05T07:05:50","date_gmt":"2020-11-05T12:05:50","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=46041"},"modified":"2020-11-05T08:34:06","modified_gmt":"2020-11-05T13:34:06","slug":"ma-sw-for-csli-for-too-much-time-was-severable","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=46041","title":{"rendered":"MA: SW for CSLI for too much time was severable"},"content":{"rendered":"\n

The search warrant for too many hours of CSLI was overbroad: \u201cThe collection of extended CSLI data raises significant constitutional concerns.\u201d 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<\/a>, 2020 Mass. LEXIS 723 (Nov. 4, 2020):<\/p>\n\n\n\n\n\n\n\n

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) (\u201cthe infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant \u2026 but does not require the suppression of anything described in the valid portions of the warrant\u201d); Lett, supra at 145 (\u201cThe 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\u201d). 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 \u00a7 4.6(f), at 814-815 (5th ed. 2012 & Supp. 2019) (endorsing Aday rule).<\/p>

Importantly, this severance doctrine is not without limits. \u201cIt 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 \u2014 abhorrence for which gave birth to the Fourth Amendment \u2014 is intolerable by any measure.\u201d 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. \u201cJust 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.\u201d 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 \u00a7 4.6(f), at 816.<\/p>

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 \u201ca reasonable period of time encompassing the commission of and flight from the crime.\u201d Id. Because those three hours were severable, we discern no abuse of discretion in their admission.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The search warrant for too many hours of CSLI was overbroad: \u201cThe collection of extended CSLI data raises significant constitutional concerns.\u201d Three hours is all that could be shown was necessary. The overbroad part, however, could be severed, and suppression … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[84,14,7],"tags":[],"class_list":["post-46041","post","type-post","status-publish","format-standard","hentry","category-cell-site-location-information","category-exclusionary-rule","category-overbreadth"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/46041","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=46041"}],"version-history":[{"count":2,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/46041\/revisions"}],"predecessor-version":[{"id":46049,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/46041\/revisions\/46049"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=46041"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=46041"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=46041"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}