EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, July 27, 2015

ACLU, Defense Attorneys Seek to Exclude Cell Tower Pings From Evidence in Murder Trial

According to an article in the Sentinel & Enterprise News,

The American Civil Liberties Union of Massachusetts has joined with defense attorneys in an effort to toss out a crucial piece of evidence -- the "pings" off cellphone towers -- that allegedly tie four men to the 2012 murder of a Billerica man and the motive.

Probing the cellphone records of Adam Bradley, the accused shooter, and his cousin Jason Estabrook, along with Peter Bin, Gabriel Arias and others show that from about 1 a.m. to shortly after 6 a.m. on July 7, 2012 -- the day of the murder -- the cellphones of those men hit off cell-tower locations in Billerica, prosecutors allege.

The ACLU argues investigators were required to obtain a warrant for the cell-site location information. After receiving two weeks worth of cell information, investigators argued they only needed the six hours of information to locate suspects around the time of the murder as the "critical time period."

The ACLU's brief makes this seem like an easy one. In Commonwealth v. Augustine, the Supreme Judicial Court of Massachusetts held that "the tracking of the defendant's movements in the urban Boston area for two weeks [through Cell Site Location Information ("CSLI")] was more than sufficient to intrude upon the defendant's expectation of privacy safeguarded by" Article XIV of the Massachusetts Constitution. 

According to the ACLU,

Augustine determined that it is the Commonwealth’s collection of location information, not its subsequent use, which triggers Article 14 protection. Under this holding, Augustine squarely foreclosed the view that the Commonwealth can warrantlessly seek and obtain two weeks of CSLI without violating Article 14. 

Although Augustine also stated that the duration of CSLI "sought" or "request[ed]" would likely bear on "the reasonable expectation of privacy calculus," it nowhere suggested that periods of CSLI sought or requested by the Commonwealth can be excluded from that calculus if they are later deemed non-critical to a criminal case....This Court did not write that a request for two weeks of historical CSLI does not require a warrant so long as the Commonwealth is truly interested in or ultimately uses only six hours or less. Rather, it wrote that it would be "reasonable to assume that a request for historical CSLI...for a period of six hours or less would not require the police to obtain a search warrant." 

In other words, the Commonwealth has argued that it can request two weeks of CSLI without a warrant when it only plans to use 6 hours of that information. The ACLU counters that breadth of the request that matters, not the breadth of the use. Given that the Commonwealth requested and received two weeks of CSLI, this seems like an easy decision for the appellate court.



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