Pa. Justices to Eye Warrant Requirement for Real-Time Cellphone Movement Data

By Max Mitchell | The Legal Intelligencer

Although the central questions in the cases differ slightly, both could provide guidance to attorneys on lingering questions about a person’s reasonable expectation of privacy in their cellphone location data, and the level of court scrutiny that must be sought by prosecutors in order to obtain that information.

What does it take for prosecutors to properly obtain warrants to track a suspect’s real-time cellphone movements?

That’s the question Pennsylvania’s Supreme Court is set to consider in two cases—captioned Commonwealth v. Pacheco and Commonwealth v. Dunkins—both of which the justices this week slated for oral arguments.

Although the central questions in the cases differ slightly, both could provide guidance to attorneys on lingering questions about a person’s reasonable expectation of privacy in their cellphone location data, and the level of court scrutiny that must be sought by prosecutors in order to obtain that information.

The specific question in Pachecho is whether prosecutors may properly be allowed to track a suspect’s cellphone location based on orders obtained under the Pennsylvania’s Wiretap Act. David Pacheco, who was subsequently arrested and charged with drug offenses, says a 2018 U.S. Supreme Court opinion demands more. The Montgomery County Court of Common Pleas gave prosecutors the order they sought under the Wiretap Act, but Pacheco’s case argues that the wiretap order does not offer protections similar to a criminal search warrant.

In Dunkins, the justices are set to review whether the Pennsylvania Superior Court erred when it ruled earlier this year that law enforcement did not need a warrant to obtain evidence that a defendant’s cellphone had been logged on to a campus’ wireless network at the time an assault and robbery took place in a nearby dorm.

According to the Superior Court’s Feb. 12 precedential opinion, campus police had Moravian College’s director of systems engineering compile a list of all the users who logged on to the campus’ wireless access point near the dorm where the incident occurred. They discovered that, at the time of the robbery, there were only three individuals logged onto the campus Wi-Fi at that location that did not live in that building—two were female and the third was Alkiohn Dunkins, whose cellphone was set to automatically connect to the network whenever it was within range.

Dunkins claimed the campus police conducted an illegal search and invaded his privacy by tracking his physical movements through cell site location information (CSLI). But Judge Correale Stevens, writing for the Superior Court panel, said there were significant differences between CSLI and Wi-Fi data.

“Whereas CSLI tracks an individual’s movements at all times of the day regardless of where he travels, the Wi-Fi data in this case is only collected when an individual logs onto the campus wireless network and is present on the Moravian campus,” Stephens said.

Dunkins’ attorney Michael Diamondstein in Philadelphia said he was thankful the Supreme Court decided to review the ruling.

“Allowing the government to track an individual citizen without court intervention should be scary to everyone,” he said. “We’re hopeful that the court will recognize that before law enforcement can geotrack individuals the appropriate court process is undertaken.”

Rebecca Kulik of the Northampton County District Attorney’s Office, which is prosecuting Dunkins, did not return a call seeking comment.

One month before that ruling, another Superior Court panel had held similarly in Pacheco, finding that prosecutors in that case had obtained constitutionally sound warrants before tracking Pacheco’s cellphone data. That decision affirmed the lower court’s order denying Pacheco’s suppression motion and upheld Pacheco’s conviction for possession with intent to deliver.

According to Superior Court Judge Deborah Kunselman, who wrote the court’s unanimous decision, prosecutors conducted a constitutional search, and the Wiretap orders they obtained did not suffer from the same deficiencies the U.S. Supreme Court dealt with in its 2018 decision in United States v. Carpenter.

“These orders, when read in their totality, indicate that the court found probable cause that the information obtained would lead to evidence that Pacheco was violating specific provisions of the crimes code and would enable law enforcement to track and locate him through his cellphone,” Kunselman said. ”The warrants issued here under the Pennsylvania Wiretap Act differ substantially from the ‘D orders’ issued under the federal Stored Communications Act in Carpenter.”

In appealing his case, Dunkins had also cited the Carpenter decision.

Pacheco’s counsel, John I. McMahon Jr. and Brooks Thompson of McMahon, Lentz & Thompson, said a ruling from the justices could provide guidance about the different standards for obtaining warrants under the state and federal constitution versus obtaining search orders for real-time cellphone information under the Wiretap Act, which, Pacheco’s lawyers argue, is a much broader standard.

“To get a warrant, you need to show the area to be searched will lead to evidence on a crime,” Thompson said. Under the Wiretap Act there is probable cause if there is reason to believe “information relevant to an ongoing criminal investigation will be obtained. That includes a lot more than evidence of a crime. … Anything could be relevant.”

Both attorneys noted that an earlier decision by the three-judge panel had found in Pacheco’s favor on the discrepancies in the constitutional versus Wiretap Act standards, but that decision was withdrawn on reconsideration.

“A decision favorable to us by the Pennsylvania Supreme Court will have dramatic ramifications throughout Pennsylvania,” McMahon said.

A spokeswoman for the Montgomery County DA’s Office declined to comment.

According to Kunselman, in 2015, the Montgomery County District Attorney’s Office came to believe that Pacheco, a Norristown resident, was part of a Mexican drug cartel, smuggling heroin into the United States. Over their nearly year-long investigation, prosecutors obtained several orders under the Wiretap Act, including “ping” requests that authorized the phone company to send signals to Pacheco’s phone as directed by law enforcement. The signals gave real-time indications of Pacheco’s location.

After obtaining more details about Pacheco’s involvement in the heroin distribution scheme, police arrested Pacheco and charged him with multiple counts of PWID, among other things.

Before trial, Pacheco tried to suppress the cellphone information, but the court denied that request. A jury subsequently convicted him on nearly all the charges he faced.

Pacheco appealed the suppression motion denial, citing the U.S. Supreme Court’s ruling in Carpenter, which determined that people have a legitimate expectation of privacy in their movements recorded through cellphone location information and that the third-party doctrine does not apply, since a person is not voluntarily “sharing” his or her information in the usual sense of that word. The high court also found that the government generally needs to obtain a warrant supported through probable cause to obtain that type of information.

Kunselman agreed with Pacheco that Carpenter, which deals with historical location information, applies to real-time location information, but she disagreed with Pacheco’s argument that the Wiretap orders were insufficient and should not be considered a “warrant” under the law.

Kunselman said there were few Pennsylvania appellate cases on the matter, and none provided clear guidance, but, looking to U.S. Supreme Court considerations, she determined that the Wiretap orders met all the requirements for a proper warrant, since, among other things, the person was identified, the offenses were identified, the place—which Kunselman noted was Pacheco’s cellphone—was identified, and so were the items to be seized—which Kunselman said was the real-time location data.

“Unlike the Pennsylvania Wiretap Act, the federal statute did not require, and the government did not provide, an affidavit of probable cause individualized to Carpenter and his suspected crimes for the issuance of the ‘D orders,’” she said. “Again, in the high court’s opinion, the showing of reasonable grounds fell ‘well short of the probable cause required for a warrant,” noting that “the court usually requires some quantum of individualized suspicion before a search or seizure may take place.’”

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