Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page20 of 46 1 identification features, that user’s cell phone will still generate CSLI whenever the phone makes or 2 receives a call, sends or receives a text, sends or receives data, or merely “checks in” with a 3 nearby cell tower. United States District Court Northern District of California 4 What is more, society’s expectation of privacy in historical CSLI is evidenced by the 5 myriad state statutes and cases suggesting that cell phone users “can claim a justifiable, a 6 reasonable, or a legitimate expectation of privacy” in this kind of information. Knotts, 460 U.S. at 7 280 (internal quotation marks omitted). Although state law is not dispositive of the issue, “the 8 recognition of a privacy right by numerous states may provide insight into broad societal 9 expectations of privacy.” Cooper, 2015 WL 881578, at *8 (quoting United States v. Velasquez, 10 No. CR 08-0730 WHA, 2010 WL 4286276, at *5 (N.D. Cal. Oct. 22, 2010)). In California, for 11 instance, where this Court sits, it has been the law for more than three decades that police need a 12 warrant to obtain telephone records. See People v. Blair, 25 Cal. 3d 640, 654-55 (1979); see also 13 People v. Chapman, 36 Cal. 3d 98, 107 (1984) (“This court held [in Blair] that under the 14 California Constitution, [telephone] records are protected from warrantless disclosure.”), 15 disapproved of on other grounds by People v. Palmer, 24 Cal. 4th 856 (2001). As Blair involved 16 nothing more than “a list of telephone calls” made from the defendant’s California hotel room, see 17 Blair, 25 Cal. 3d at 653, there is little doubt that the California Supreme Court’s holding applies 18 with full force to the government’s application here, which seeks historical CSLI generated by a 19 target cell phone’s every call, text, or data connection, in addition to any telephone numbers dialed 20 or texted. 21 Outside of California, the high courts of Florida, Massachusetts and New Jersey have all 22 recognized a reasonable expectation of privacy in CSLI. See Tracey v. State, 152 So. 3d 504, 525- 23 26 (Fla. 2014) (prospective CSLI); Commonwealth v. Augustine, 4 N.E.3d 846, 850 (Mass. 2014) 24 (historical CSLI); State v. Earls, 70 A.3d 630, 644 (N.J. 2013) (prospective CSLI). The high 25 courts of Massachusetts and New Jersey found a reasonable expectation of privacy under their 26 respective state constitutions, while the Florida Supreme Court based its ruling on the federal 27 28 20 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION