{"id":6011,"date":"2011-12-28T19:30:01","date_gmt":"2011-09-12T00:09:25","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-09-11T14:07:13","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6011","title":{"rendered":"FL4: Failure to show cause for order for historical cell site location information did not permit exclusion in Florida"},"content":{"rendered":"

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<\/a>, 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):<\/p>\n

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)\u2014the application failed to offer \u201cspecific and articulable facts\u201d to show that CSLI was \u201crelevant and material to an ongoing criminal investigation.\u201d 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 \u201cConfidential Source (CS) indicated that [Tracey] obtains multiple kilograms of cocaine from Broward County for distribution on the West Coast of Florida\u201d and that the \u201cCS contacts\u201d Tracey at a certain phone number. As Tracey notes in his brief, this vague language \u201cdoes not explain the origin of the informant\u2019s 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.\u201d 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).<\/p>\n

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 \u201cevidence derived\u201d from the violation. \u00a7 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). \u201c[T]he Stored Communications Act expressly rules out exclusion as a remedy; \u00a7 2708, entitled \u2018Exclusivity of Remedies,\u2019 states specifically that \u00a7 2707’s civil cause of action and \u00a7 2701(b)\u2019s criminal penalties \u2018are the only judicial remedies and sanctions for violations of\u2019 the Stored Communications Act. 18 U.S.C. \u00a7 2708.\u201d Smith, 155 F.3d at 1056 (emphasis in original).<\/p>\n

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

The remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections.<\/p><\/blockquote>\n

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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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