The Pennsylvania Superior Court has decided the case of Commonwealth v. Pacheco, holding that the police are required to obtain a search warrant if they wish to collect an individual’s real-time cell site location information (hereinafter “CSLI”). This is a very significant decision because police are increasingly relying on suspects’ digital footprints when they are building and prosecuting cases in all types of crimes.
Commonwealth v. Pacheco
In April 2015, the Montgomery County, PA District Attorney’s office and its Narcotics Enforcement Team uncovered a large alleged criminal conspiracy. The DA’s office learned that a Mexican drug trafficking organization was smuggling heroin into the United States and the defendant, a Norristown resident, was picking up the heroin in Atlanta, Georgia and then transporting it to wholesale buyers in New York City.
On July 23, 2015, Montgomery County prosecutors applied for and obtained orders for a wiretap pursuant to Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (hereinafter “The Wiretap Act”) for the defendant’s cell phone. One month later, on August 28, 2015, Montgomery County prosecutors sought and obtained additional orders under the Wiretap Act to obtain information relating to the defendant’s cell phone number and the numbers for other cell phones believed to be used by him. Pursuant to these orders, prosecutors obtained call detail records for the past thirty days. Additionally, the orders allowed prosecutors to obtain mobile communication tracking information, install and use pen registers, trap and trace devices, and telecommunications identification interception devices for sixty days. On October 15, 2015, the court issued an order extending the surveillance of the defendant’s phone for an additional sixty days.
On December 11, 2015 and January 6, 2016, the Montgomery County DA’s office sought and obtained orders from the Pennsylvania Superior Court to allow them to intercept oral, electronic, and wire communications for the cell phone registered to the defendant, as well as three others believed to be used by him. The detectives also obtained real-time cell site location information (“CSLI”), but did not get a search warrant for this information. Based on the results of these orders, prosecutors and detectives analyzed the information and identified multiple occasions between September 2015 and January 2016 when the defendant traveled to Atlanta and New York as a member of the drug trafficking organization.
On each trip, the defendant obtained a car battery containing three kilograms of heroin in Atlanta, returned briefly to Norristown, and then transported the heroin to New York. The defendant would use his cell phone to facilitate these transactions. Based on their investigation, the detectives also learned that on January 10, 2015, the defendant planned to drive from Georgia back through Norristown with a retrofitted car battery containing three kilograms of heroin. Police assembled a surveillance team along the defendant’s anticipated route and apprehended him in Montgomery County. A search of his vehicle revealed three kilograms of heroin hidden in the car’s battery.
The defendant was subsequently arrested and charged with nine counts of Possession with the Intent to Deliver (“PWID”)., two counts of dealing in unlawful proceeds, and one count of conspiracy to commit PWID and corrupt organizations. The defendant then moved to suppress the call detail records and the evidence that was collected through the telecommunications interception devices. Following a suppression hearing and supplemental briefing, the trial court denied his suppression.
The case then proceeded to a jury trial that began on August 7, 2017. The defendant stipulated that he transported three kilograms of heroin on seven of the nine trips detected by law enforcement. He also admitted that he “did the things that police say [he] did.” However, the defendant raised the defense of duress by claiming that he was coerced by Mexican drug cartels to act as a drug courier and if he did not comply, the cartels threatened that they would kill his family members. At the conclusion of the trial, the jury convicted the defendant of all charges except corrupt organizations. On November 29, 2017, the trial court sentenced him to forty to eighty years, followed by ten years of probation. The defendant then filed post-sentence motions which were denied. He then filed a timely appeal to the Pennsylvania Superior Court.
What is CSLI?
In Carpenter v. United States, the United States Supreme Court explained CSLI as follows:
There are 396 million cell phone service accounts in the United States…Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.
Cell phones continuously scan their environment looking for the best signal, which generally comes from the closet cell site. Most modern devise, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carries have install more cell sites to handle the traffic….[a]accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.
Do the Police Need a Search Warrant to Collect CSLI?
Yes. In Carpenter, the United States Supreme Court held that an individual maintains a legitimate expectation of privacy in the historical record of his physical movements as captured through CSLI. The Supreme Court stated that CSLI date contains the “privacies of life” because most people carry their cell phones everywhere they go. It was no consequence that this information is voluntarily provided to cell phone companies. However, Carpenter did not address the issue of “real time CSLI” which was the issue in the defendant’s case.
The Superior Court’s Decision
The Pennsylvania Superior Court granted the defendant’s appeal. The Superior Court found that the detectives needed to obtain a search warrant before they collected the defendant’s real-time CSLI information. Although this was an issue of first impression in the Commonwealth, the Superior Court recognized that many other courts that have addressed this issue have determined that real-time CSLI is subject to the same privacy concerns as historical CSLI. Specifically, the court found that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. Further, the Superior Court held that the Commonwealth did not comply with the Fourth Amendment when it obtained orders under the Wiretap Act because obtaining an order under the Wiretap Act does not require probable cause. Instead, these Wiretap Act orders are granted so long as the information likely to be obtained is “relevant to an ongoing criminal investigation being conducted by that agency.” Therefore, the Superior Court held that the real-time CSLI evidence seized from the cell phone was the product of a constitutionally defective warrantless search. Thus, the defendant’s sentence was vacated for further proceedings, which could include a new trial.
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