What type of cell phone information can the police obtain without a warrant? This is an important question under the 4th amendment that the Massachusetts Supreme Court recently addressed. Nowadays, nobody leaves their cell-phones out of their sight, and a cell phone is almost an extension of a person’s body. However, inside of your smartphone are powerful location tracking services, that “ping” your location whenever you are near a cell tower. The use of this data in criminal cases is controversial, and many would consider it an invasion of privacy. The Supreme Judicial Court recently decided a murder case involving cell site location information (CSLI) in Commonwealth v. Wilkerson.
What happened in Wilkerson?
The victim in this case was twenty-three year old Kristopher Rosa, who was a longtime rival of one of the defendant’s high school friends, Rhandisyn Lawrence. Lawrence and the victim had a rivalry that apparently stemmed from both of them dating the same woman, Mendes, who the victim later had a child with. In 2011, Lawrence and the defendant, Wilkerson, chased Rosa in cars when Rosa and his girlfriend were on the way to his mother’s house. He was shot in the chest while still driving and pronounced dead from a gunshot wound. The defendant was convicted of first degree murder of Rosa two years after the incident, when the defendant’s girlfriend called the police.
While investigating the shooting, the government request forty-eight hours of CSLI for the defendant’s phone. Before trial, the defendant moved to suppress the CSLI evidence, the trial judge granted this motion in part, and suppressed all the evidence except a three hour period between 8 p.m. and 11 p.m. on September 19th, 2011, covering ninety minutes before and ninety minutes after the shooting.
The United States Supreme Court held last year in Carpenter v. United States that CSLI is a search for Fourth Amendment purposes. That case involved 137 days of CSLI while this case only involves three days. In Massachusetts, collecting more than six hours of CSLI invades a person’s reasonable expectation of privacy, and requires a warrant supported by probable cause. There must be a sufficient nexus between the criminal activity for which probable cause has been established, and the physical location of the cell phone recorded by CSLI. So, the question in this case becomes, when only a portion of the period of data received by the government is supported by probable cause, should the entirety of the CSLI data obtained be suppressed? Here, the government seized three days worth of data, but only had probable cause for a few hours.
The SJC held that complete suppression of the data is not necessary. Nothing on the record shows that the government relied on the data that was not supported by probable cause. Because the three hours needed was severable, there was no abuse of discretion in admitting them. It was a reasonable period of time to admit into trial because it encompassed the round trip drive to the location of the shooting, Avon, and back to the defendant’s home in Taunton.
The probable cause here was supported by the fact that the defendant had called the victim and threatened him on multiple occasions before the shooting. The victim’s girlfriend, Mendes, was an eyewitness and saw the defendant during the shooting. Taken together, we conclude that the element of coordination inherent in the shooting as described, the defendant’s previous threats to the victim, and the telephone call to the defendant from Lawrence minutes before the coordinated attack – made while Lawrence was stopped on the side of the road near the victim’s home – establishes probable cause to believe that the defendant was the shooter or otherwise involved in the commission of the crime. Therefore, there was no error in the introduction of the three hours of CSLI at trial, because the three-hour period of CSLI data admitted was supported by probable cause.
This case turned on the fact that the prosecution obtained a warrant that was supported by probable cause in order to access the defendant’s CSLI data. Had no warrant been obtained, that would have violated the Fourth Amendment.
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