Massachusetts Supremes finds probable cause in affidavit for search warrant for cell site location information.

The Supreme Judicial Court of Massachusetts has decided a Carpenter case on the issue of probable cause on a search warrant. The case does not appear to me to be a significant case outside of Massachusetts, but it may give us a preview of what we can expect for litigation on search warrant applications that are made post-Carpenter.

In Massachusetts, their State Constitution had already been interpreted pre-Carpenter to require probable cause and a search warrant for cell site location information despite the Stored Communications Act, so in this murder and robbery case, there was a search warrant pre-Carpenter. The issue in this appeal is whether the search warrant was supported by probable cause.

When reviewing the sufficiency of a search warrant application for historical CSLI, we determine whether, based on the affidavit in support of the search warrant, (1) the magistrate had a substantial basis to conclude that a particularly described offense has been, is being, or is about to be committed; [**7] and (2) the CSLI being sought will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense. Commonwealth v. Estabrook, 472 Mass. 852, 870, 38 N.E.3d 231 (2015). Inferences drawn from the affidavit must be reasonable and possible, but no showing that the inferences are correct or more likely true than not true is required. See Commonwealth v. Matias, 440 Mass. 787, 794-795, 802 N.E.2d 546 (2004) (contraband found in trash of multiunit apartment building examined in whole supplied probable cause to conclude that contraband came from defendant’s apartment).

The defendant argued that the affidavit was insufficient because it relied primarily on unsourced police information and misrepresented the quality of one of the eyewitnesses. The Court held that the remaining information was still sufficient for probable cause because the affidavit provided two witness accounts of the shooting. They also held that the evidence would be sufficient to establish probable cause to believe the CSLI of the cell phone associated with number in question would provide evidence of the murder, citing Commonwealth v. Dorelas, 473 Mass. 496, 503, 43 N.E.3d 306 (2016).

The case is Commonwealth v. Robertson, 480 Mass. 383, 2018 Mass. LEXIS 563, 2018 WL 4175867 (Sup. Jud. Ct. Mass.) (August 31).

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