Carry A Cell Phone? This Case is For You.

What could your phone reveal about your daily habits? Today’s phones reveal precise information about their owners’ locations—either via GPS or by tracking which cell phone towers it uses. This information can be valuable for law enforcement officials, who regularly seek cell phone records to track their suspects.

However, Massachusetts law enforcement officials must now obtain a search warrant supported by probable cause to obtain cell phone records to track someone’s movements. In Commonwealth v. Augustine, the Massachusetts Supreme Judicial Court announced this new rule, holding that the Massachusetts Constitution protects individuals’ reasonable expectation of privacy in the information contained in cell phone records. SJC-11482, slip op. (Feb. 18, 2014).

The case arose in the prosecution of Shabazz Augustine for the August 2004 slaying of his ex-girlfriend. Law enforcement officials obtained cell phone records for Augustine’s phone, hoping to determine his location around the time of the victim’s death. The records they obtained included two weeks worth of the phone numbers, times, and locations for all of the calls made and received by the defendant’s cellular telephone handset—including unanswered calls. Augustine sought to suppress the phone records, arguing that they were obtained in violation of his rights under both the Fourth Amendment to the U.S. Constitution and art. 14 of the Massachusetts Declaration of Rights.

The Commonwealth argued that no search in the constitutional sense occurred, because the cell phone records are “a business record of the defendant’s cellular service provider,… and the defendant can have no expectation of privacy in location information that he voluntarily revealed.” Augustine.

In its ruling for the defendant Augustine, the Court acknowledged his reasonable expectation of privacy amid a reality of modern society: “cellular telephones physically accompany their users everywhere—almost permanent attachments to their bodies.” Id. The Court reasoned that the location data contained in the cell phone records were gathered by the cell phone company as it provided phone service. Location was not the purpose of the defendant’s making calls, and defendant took no purposeful step to reveal his location to the cell phone company. Thus, the defendant could have a reasonable expectation that his location would be private, and art. 14 of the Massachusetts Declaration of Rights requires that law enforcement show probable cause to get a warrant for such records.

With this new rule, Massachusetts joins a small minority of states that require warrants for cell phone record searches.

Surveillance and privacy rights in the digital age are a quickly evolving legal issue. If you have concerns about the privacy of your communications, contact the attorneys at Hutchins Law, P.C. today.

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.