Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page20 of 46
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identification features, that user’s cell phone will still generate CSLI whenever the phone makes or
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receives a call, sends or receives a text, sends or receives data, or merely “checks in” with a
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nearby cell tower.
United States District Court
Northern District of California
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What is more, society’s expectation of privacy in historical CSLI is evidenced by the
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myriad state statutes and cases suggesting that cell phone users “can claim a justifiable, a
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reasonable, or a legitimate expectation of privacy” in this kind of information. Knotts, 460 U.S. at
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280 (internal quotation marks omitted). Although state law is not dispositive of the issue, “the
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recognition of a privacy right by numerous states may provide insight into broad societal
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expectations of privacy.” Cooper, 2015 WL 881578, at *8 (quoting United States v. Velasquez,
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No. CR 08-0730 WHA, 2010 WL 4286276, at *5 (N.D. Cal. Oct. 22, 2010)). In California, for
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instance, where this Court sits, it has been the law for more than three decades that police need a
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warrant to obtain telephone records. See People v. Blair, 25 Cal. 3d 640, 654-55 (1979); see also
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People v. Chapman, 36 Cal. 3d 98, 107 (1984) (“This court held [in Blair] that under the
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California Constitution, [telephone] records are protected from warrantless disclosure.”),
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disapproved of on other grounds by People v. Palmer, 24 Cal. 4th 856 (2001). As Blair involved
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nothing more than “a list of telephone calls” made from the defendant’s California hotel room, see
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Blair, 25 Cal. 3d at 653, there is little doubt that the California Supreme Court’s holding applies
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with full force to the government’s application here, which seeks historical CSLI generated by a
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target cell phone’s every call, text, or data connection, in addition to any telephone numbers dialed
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or texted.
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Outside of California, the high courts of Florida, Massachusetts and New Jersey have all
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recognized a reasonable expectation of privacy in CSLI. See Tracey v. State, 152 So. 3d 504, 525-
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26 (Fla. 2014) (prospective CSLI); Commonwealth v. Augustine, 4 N.E.3d 846, 850 (Mass. 2014)
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(historical CSLI); State v. Earls, 70 A.3d 630, 644 (N.J. 2013) (prospective CSLI). The high
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courts of Massachusetts and New Jersey found a reasonable expectation of privacy under their
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respective state constitutions, while the Florida Supreme Court based its ruling on the federal
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Case No. 15-XR-90304-HRL-1(LHK)
ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION
INFORMATION
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