-: SJC-13144, Commonwealth V Jiran Perry.
-: Okay. Attorney Tenant, when you're ready.
-: Good morning, your honors.
May it please the Court,
Eric Tenant on behalf of Jiran Perry.
Your honors, an order authorizing the government
to obtain cell tower dump data of anyone
in the general vicinity of a crime
when there is no known suspect nor known phone number
is simply a general warrant
that contravenes society's expectations of privacy.
-: So no matter how serious the crime,
no matter how many separate crimes there are,
no matter how similar the crimes are, you know how...
No matter how much probable cause that there is,
that a suspect would be discovered,
no matter how distant the cell towers are from each other,
and no matter how considerable the mitigation is,
and no matter how unlikely the crime
would be solved without the information,
the government cannot,
even with a warrant, ever have a cell tower?
-: There is no convenience exception to the Fourth Amendment,
there's no serious crime exception to the Fourth Amendment
or Article 14 for that matter.
-: Well, there's sort of are, aren't there?
Like if there's an emergency
or there are some exceptions based
on hot pursuit or based on life and death situations.
So there are exceptions.
-: Those are exceptions that the court has said,
in this situation, the search is reasonable.
-: All right, so that's what we want to look at here, right?
Eric: Correct.
-: Is the search reasonable?
Eric: So, correct. And--
-: So why isn't this, like,
this is just a narrowing and an excluding process.
It gets more and more narrow, doesn't it?
-: Actually, this broadens, so.
Elspeth: It got broader?
-: It broadens multiplied by,
you know, thousands in this case.
So you have precedence that says you can get CSLI data
for an identified suspect, one.
You know, the person or the phone number, if you know it.
And this broadens it to say,
we can get CSLI data for tens of thousands
of unknown persons, unknown phone numbers--
-: Then once they do--
-: All but one who are innocent.
-: Once they do that,
don't they do a further narrowing
of the CSLI until they focus in on that number,
or do they just pull those numbers out of that first search?
-: The... When the government seeks a tower dump data,
what they get are all of the phone numbers
that were in the vicinity,
the geographic vicinity of those towers.
So there is no narrowing.
It starts tremendously broad.
And in that moment, at that moment,
that is the unconstitutional moment.
That search obtaining that data of all
of those persons who are not guilty of anything,
who are just in or near or at the scene of a crime.
That's the unconstitutional part.
Even if they can later narrow the data.
-: Mr. Tenant, what do we do with our holdings
in Estabrook and Augustine about whether
or not something is a search in the safe harbor?
Eric: I didn't hear the last part.
Where something's in search?
-: Or the safe... The six hours--
Eric: The safe harbor.
-: Safe harbor. -: Certainly, your honor.
I think the best way to read that...
There's a couple of responses to that.
Hopefully I can get them all out.
The first is that extra book and Augustine admit
that there's a subjective expectation,
individual expectation of privacy.
And so as I understand those cases,
what they're saying is, there's societal expectations.
That's a sort of the second part
of the expectations of privacy test.
And society does not have an expectation of privacy
in the government searching six hours
or less of an individual known suspect's CSLI.
This is not that. This is not...
So you have to ask what is society's expectation
of privacy of the government searching,
not an individual known suspect's CSLI, but everyone at--
-: But you're appropriately focused
on your client's expectation of privacy.
You can't raise the 50,000 others,
or 49,099 other people's expectation of privacy.
So when you look at...
Well, I guess you're not arguing,
or are you, that Estabrook
and Augustine don't survive Carpenter,
they were wrongly decided.
-: There is a question in terms of the six-hour rule.
What... How much of that, if any, survives Carpenter,
and then, so that is up in the air.
Frank: Okay.
-: And again, in response to your question,
there's two parts to it.
So the first part I would argue is--
-: And I should, I thought you finished, but go ahead.
-: The first part you...
Is, what is society's expectations of privacy?
And we're talking about whether something's
a search in the constitutional sense.
I would say that when the court has to decide that,
what is society's expectations of privacy,
it does have to consider not just
that I am the counsel on behalf
of the person raising the issue,
but what is the government doing
and what's society's expectations
as to what the government is doing to determine
whether it's a search in the constitutional sense?
The second part of that answer, separate from that is,
does the six-hour rule, what does it mean,
and does it survive Carpenter?
And my response to that,
so different from the sort of constitutional question,
what did this court mean when it said six hours?
I would argue that the only plausible reading
of that is this court was trying
to establish a bright-line rule,
and that bright-line rule is six continuous hours.
So if this court meant something different,
it meant no, it's just whatever 360 minutes
the government wants to use.
It's not creating a bright-line rule
because now the government can, what,
for 10 minutes, for 36 days look for CSLI data
'cause that's less than six hours
or five minutes over 72 days
or one minute over 360 days, right?
The six-hour rule, in that sense, eviscerates
because it starts to create the kind of data gathering
that implicates the mosaic theory.
The court was trying to say,
we are saying there is a small sliver
of time in which there is no expectation of privacy.
But once you start splitting up that time
over days and months--
Frank: Yeah, I don't know if--
-: You lose that narrow window.
-: So I think what we wrote
in either Estabrook and Augustine, I conflate them,
is that when we have a CSLI...
There's a murder investigation.
Eric: Yes.
-: And we have a suspect, John Doe,
and let's find out where John Doe was for six hours,
you know, or around the time of the crime.
And we can either eliminate him as a suspect
or move on to someone else or build that case on him.
But either way, when we do our six-hour snapshot of Mr. Doe,
there's no expectation of privacy
in his movements for just that particular six-hour period.
-: I believe that's right.
And as I interpret that, that is a six continuous hour rule.
Not we can...
So meaning not requiring a probable cause warrant.
-: But if... So you're saying,
if you slice up that six hours, it becomes problematic.
-: Yes, because the intent,
as I understand Estabrook and Augustine was, it's not...
There's no expectation of privacy
in this very narrow time of window.
And when you start to slice it up,
you expand that narrow time of window
to get to the point where you are gathering data
that begins to paint a pattern and that's the...
That's where you start to...
Now it blends into the other argument.
That's when you start to contravene expectations
of privacy that require probable cause warrants.
So the six-hour continuous rule
is a clean rule and it's easy to apply.
But when you split it up,
it doesn't become a clean rule.
It expand... It goes beyond expectations
of privacy requiring a probable cause warrant.
-: I'm sorry. You've answered my question.
Thank you, Mr. Tenant.
-: Thank you.
-: Don't you have to look and see
if there was less than six hours due
in fact and create a mosaic?
-: I think that would not be a bright-line rule
that this court was trying to create.
So a bright-line rule is six continuous hours.
If you say, "No, what we meant was any amount
of less than six hours that doesn't create a pattern."
Then you do not have a bright-line rule.
And now you are doing the kinds of balancing acts that...
Or the Commonwealth is not giving guidance as to,
are we asking for enough or not enough data
that doesn't create a pattern or does create a pattern
that we need a probable cause warrant.
So it doesn't create that rule
if that's what the intention was.
-: I'm with you up to the point.
I'm with you that I think it may be a search.
But doesn't the judge finds
there is probable cause here and it's particularized, right?
And why... Isn't he right?
Go ahead.
-: Sure, sir.
Obviously, I disagree.
Scott: Yeah (chuckles).
-: So if it's a search in the constitutional sense, right.
Then the question is--
Scott: You agree with that part of it?
-: So you need a probable cause warrant.
Was there particularity, was there nexus?
Scott: Right. -: Two different questions.
-: Right, what was produced?
Is it probable that
this is gonna produce relevant evidence here?
Eric: Right. So--
-: Yeah, go ahead.
-: So to take those individually, if I may.
So particularity, the...
This is akin to the prohibition
against an all-person warrant, an all-building warrant.
-: I don't... I find that completely...
I don't look at this as a general warrant.
This is not allowing the police to go rummaging
in anyone's house whenever they want.
This is a very narrow...
They're looking for numbers that are...
They're looking for, you know,
basically telephone numbers, you know,
hitting off the CSLI towers for very short periods of time.
And they're looking to intersect the same,
you know, find that, filter it out
so that the same numbers are produced.
It doesn't seem like a general warrant to me.
Eric: So--
-: It seems like it's very narrow and specific and smart.
-: So the...
What particularity does is assures that the government,
when they conduct that search,
does not search innocent persons.
So for example, the reason you don't have
an all-person warrant is because we know that
if you go to this home to search everyone there,
unless we have probable cause
to search everyone there, it's invalid.
If I know that someone is--
-: But innocent people can end
up being caught up in something, correct?
They... I mean, we don't have that sort
of innocent, non-innocent divide.
We have whether this is going
to produce relevant information.
-: If you agree it's a search, then what you agree is
that when the government obtains this data,
they are conducting searches of everyone,
every phone number is a search,
every one person is a search.
-: You want it to be particularized to a particular person.
I'm not... That's not my understanding
of the way that the Fourth Amendment Article 14 words.
-: So, again, look at an all-person warrant
that this court has said, and the Supreme court has said
those kinds of warrants are only valid if every person...
If you know that where you are going to search all persons,
every... There's probable cause to search every person.
So it is an individual...
It does require the probable cause
for each person being sought, or an all-building warrant.
If you have information that there is--
-: Well, if you've got probable cause to search a place,
even though you don't know who's in it.
-: So you get to search the place
and innocent people may be in it.
You know, the girlfriend of the person
who's ultimately dealing the drugs may be there, right?
-: So I think the better analogy, again,
think of an all-building warrant.
So for example, the government might have
maybe they're conducting surveillance
and they have information that there was
a drug transactions coming out of a place.
If that place is a single-family home,
then it's particular enough to say,
okay, we're gonna get a warrant for that single-family home.
Elspeth: Yeah, but what--
-: If that place is the person is walking
into a 25-unit apartment building,
you cannot get a warrant to search every unit in that 25.
-: But let's go back to Justice Packer's original question,
which was, you've got a single-family home
and you've got people in there
that are not criminal or not subject to the warrant.
They're still affected by this.
-: As I understand particularity, it's the...
So that's not an all-person warrant, right?
That's to search the place, not the people there.
-: Okay. Well, what if it was an all-person-present warrant?
Eric: Then you would have to know that
there is probable cause that every person
who you're gonna come in contact with in that...
Or sorry, that there is probable cause for a person--
-: That makes it a bad analogy for this case, right?
Eric: I'm sorry, your honor.
-: That would make it a not a good analogy for this case.
-: I don't think it's apt.
I think the better analogy is we are searching...
It's like searching, you know,
you know that there is a drug transaction
in this apartment building, but you don't know which unit.
You cannot get a warrant for all that. Just like--
-: What if I decide I'm gonna sit
at the corner of the road and collect all
the license plate numbers that go down the street one day,
and then I'm gonna do it again the next day.
And I'm gonna see who's consistently showing up to...
That would be fine. Wouldn't it?
-: So like this court talked about
that in, I think, it's McCarthy.
I got the names wrong. I'm sorry.
Thank you, Justice Gaziano. And McCarthy.
So the issue there is that data gathering
so much so as to be a search
in the constitutional sense or not.
And when you're asking me about particularity and nexus,
we've already answered that question and we're moving
on to whether the warrant to get that data
is particular or has a nexus,
or sorry, and has an nexus, I should say.
-: So it doesn't matter?
-: If that goes to whether it's
a search in the constitutional sense.
-: That it's a search. And we agree it's a search.
-: So if you agree it's a search then we're onto,
did this order have particularity
in nexus to comply with the warrant?
-: But why... But it has...
But what they're looking for in that, in this case,
the particularity in nexus goes
to particularity of phones and location.
I mean, it's not...
That's the nexus and the particularity.
It's not like, give me everybody all over the state.
It's a drawn circle. It's a narrowed area.
-: Sure. I don't think it's quite that simple.
I think, again, when we talk about particularity,
we're talking about crafting the warrant
in such a way that you're only searching for,
or searching people or places
for which you have probable cause.
So it's not that we have narrowed the geographic zone
to Dorchester and not Massachusetts.
Dalila: Or things, right?
-: I'm sorry, your honor.
Dalila: Or things.
-: Or whatever it is you're searching.
Dalila: So the thing that
is being particularly described in these
warrants is the phone number?
No, because we know the location,
we know the window of time,
and we're just looking for the thing,
that number that matches across each one of these six.
-: Well, we're not particular to.
So put it this way, your honor,
or I would put it this way.
So it may be that we know there's
a suspect and there's a crime.
And so when we get this data,
we know that we will have probable cause
for that phone number.
But we also know that we're not going
to have probable cause for the tens of thousands
of phone numbers that come with that.
And that is what makes a general warrant.
When you are seeking...
When you have a warrant to search
a person or a place or a thing,
that you do not have probable cause for it,
even though you might have for some subset of that.
So I have probable cause for one person
in this house, but not all persons,
for one unit in this building, but not all buildings.
So in the CSLI case, for one person's CSLI,
but not the 49,999 other CSLIs
that this warrant is going to bring to me.
-: Well, the CSLI cases talk about not just
who are we to assess that information concerning a crime.
But just put that aside for a moment
as it relates to particularity here.
We've got, I don't have it exactly right.
Five armed robberies while masked,
one attempted armed robbery while masked
in conjunction with a murder.
Eric: Six total, yes.
-: Yeah, and you've got a limited amount
of time on each side of the alleged event.
That suggests a level of particularity.
And what you're bringing up
and Justice Gaziano and others have talked about
the constitutional rights being particular to an individual.
Your argument seems to be,
well, what about all these other phone numbers,
the raw data of all these other phone numbers?
Don't we have to take into account issues
like the ACLU brought up?
I know they agree with your argument,
but brought up about minimization.
For instance, in Commonwealth versus Yusuf,
in the body cam case.
It's clear, okay.
When you go into the home,
there's certain observations that are captured.
But you know, don't go back
and start looking through this raw data.
Eric: Right.
-: There's just minimization infused into the doctrine.
-: So there can be,
and if I can take a moment to address that.
I know my time's up, but so the ACLU talks
about that in the context of the Berger case.
And I do think it's helpful to look at that,
but to understand very clearly,
Berger was a Supreme court case
about eavesdropping and wiretapping.
And so what the court said is
what they did here was unconstitutional.
End of sentence.
If, however, these procedures were
to be put in place that minimize this,
then that might not be unconstitutional.
And that later became the eavesdropping
or the wiretapping statute that they said,
"Okay, now that you have put these in place,
it's not unconstitutional
for these various reasons that you said."
So to come back to this case,
none of that minimization was done here.
So if this court thinks there is a way to minimize
these kinds of warrants to make it
so that it's not unconstitutional,
I'm agnostic on that, and I really am,
but that doesn't save this case
because none of that was in place here.
Elspeth: Okay. Any other questions?
Scott: Can I ask one last question?
Elspeth: Of course.
-: So the Google Map cases, are you familiar with those?
-: Geo-fence cases?
Scott: Yeah, the geo-fence. -: A little bit, your honor.
-: So in the geo-fence cases,
Google has its own sort of protocol
for how to filter out numbers.
And should we be considering something like what they do?
-: I don't know if you can in the sense that,
as I understand it, and I might be wrong about this,
that Google has the technology to do that.
So I don't know if you could go to T-Mobile for example,
and say, "We only want X, Y, and Z
the way Google gives it to us."
-: But from what I understand, they break it into steps,
that the police won't get all the numbers.
They don't get that giant drop of everybody
who was using a Google Map or whatever it is at the time.
But rather, they're multiple steps
so that the police only get the sort of end product.
Would that be something that we could consider doing?
-: Maybe I don't know enough,
or maybe I misunderstand that.
What I understand about a geo-fence warrant
is that it's not just CSLI.
So for example, there's GPS and there's other things
that allow them to narrow down.
Scott: Right.
-: I don't think it allows them to say,
"This is the one person you're looking for."
So a geo-fence warrant might say,
"Look, if you are talking about a two-block radius,
we can give you that as opposed to a cell tower
that gives you a much bigger geographic zone."
-: What I'm asking is, and again,
I'm not sure the technology exists for this,
but if instead of, I mean,
you talk about the 54,000 people
whose phone numbers got dropped off at the police.
If they were only allowed to produce.
Eric: I see.
-: When there was a nexus.
Meaning so that you're really limiting
it to the people who were in the five locations
where the robberies were as opposed to 54,000 people.
Eric: I understand, so-- -: Would that be better?
-: So I think if... The short answer is,
of course it would be better.
So if the technology existed, for example,
and it may one day, and maybe it's Google's, I'm not sure.
So for example, I thought of maybe there's
a nighttime warehouse robbery where you know
no one should be there except people who are robbing it.
And so you had the technology to say,
"We can tell you what cell phones were
in that warehouse and nowhere else."
You have met particularity.
You would still have to show nexus
to show that there's information
that those persons had cell phones.
But yes, I think that solves the particularity problem,
if the technology exists.
Obviously, it's not in this case.
I'm not sure if geo-fence warrants are there yet,
but they might be one day.
Elspeth: Okay. Thank you.
-: Thank you,
-: Caitlyn Campbell.
-: Good morning, and may it please the court,
Caitlyn Campbell on behalf of the Commonwealth.
With me today is Jennifer Hickman
who's the trial prosecutor in this case.
I would also like to acknowledge the victim's family
who's watching over the webcast.
We ask you today to uphold the denial
of the defendant's motion to suppress.
I think I'll start with what
the Commonwealth specifically is asking this court to do,
and there are three things the court is that...
Three things we are asking this court to do.
The first is to formally abandon the standing analysis.
The second is to hold that a search warrant is not required
for an aggregate of six hours or less of data
that's collected from a cell tower dump.
And the third is to reaffirm the premise
that cell phones are indispensable to everyday life
and people are using them and they're turned on.
I'll start with the first topic
that the Commonwealth is asking for and--
-: Actually, counsel, if you wouldn't mind,
may I have you invert your order because this
is the problem that I have most with with this case,
and even Carpenter, to be quite honest with you,
is this premise that at the motion to suppress part,
the government gets to pass first-base
without any showing whatsoever
that a cell phone was at all part of this crime.
And, you know, looking at the trial court judge's decision
and that was parroted,
or I should say was always so repeated in Carpenter,
that there's just this notion
that everybody has cell phones, everybody has them on,
and all of this data is being collected.
And in this case, I know that you heard Justice Lowy list
all of the really important things about these crimes.
Caitlyn: Correct. -: But nowhere at all,
other than just the small speculation of the affiant,
that everybody carries cell phones
so that's why we want this data dump.
We have no information whatsoever
that the person that we alleged committed
all of these crimes had a cell phone,
which is gonna presume that he did,
and that it was being utilized or that
it was emanating all of this information,
even while just passively on.
That's a part that really bugs me.
Can you help me understand how that's okay?
-: I can try.
And I'll start with the probable cause standard itself.
Not that, I mean, we argue that this
isn't a search in the constitutional sense.
But looking at the probable cause standard itself,
you can look at the practicalities of everyday life
and common sense inferences that
you can draw from those practicalities.
In cases like, I think it goes prior to Carpenter, right?
I think if you look at a case like Dorelas or Onyx White,
the cell phone search cases, they recognize that these...
That cell phones are indispensable to everyday life.
Now whether that is...
And when they do so, they cite certain studies.
Specifically, there's a CITA.
I don't know if it's called CITA, but CITA.
There's also a number of congressional studies
in which prior to the Trump administration,
so prior to 2016, there was a federal law
which required cellular phone companies
to report certain statistics and data,
which was compiled into a report.
What that showed was the number
of individuals who did have cell phone.
And at least as it could capture data
as to the cell phones and their usage--
-: And Chief Justice Roberts pointed to that,
that there were more cell phones for even
the members of the population, right?
Caitlyn: Correct.
-: Okay, I get all of that. Sure.
But I just I still have the problem saying
that just because statistically, that may be so,
the fact that we have no information whatsoever means
that we can request all of these
and begin the process of trying to mind whether or not
there were any common denominators to all of this.
-: So I think that gets to the...
What the Fourth Amendment and Article 14,
what it lets you draw inferences from.
And I think if you look at everyday life,
if you look there, it says there are more cell phones
than there are than people.
It is a reasonable and inappropriate inference
to draw that people do have cell phones.
And so far as the reservation report,
which I know your honor did asked for specific statistics
to support that they were on and being used.
You know, I was able to find sources
which do support that people generally,
and a majority of people carry their cell phones with them,
which would support that it would use their location,
that they are turned on.
You know, I think sort of, if you look at,
specifically Apple did a study of their users,
which everybody knows the proliferation
of smartphones and iPhones.
So I think it's a good snapshot of what you're asking about,
that they unlocked their phones 80 times a day,
which amounts to about six to seven times per hour
if you account for an amount of time
an average person would sleep.
So I think if you look at those specific types of facts,
it gets you there, it gets you there.
Now I would say that because of that, you--
Scott: We've also said it in a bunch
of our own cases that it's an indispensable.
Serge: Yeah. Caitlyn: Correct.
-: And so... And also wasn't there evidence
that there was a second driver here?
So this isn't, you know, completely sort of speculation
that he's communicating with somebody.
-: It's not.
I think, you know, if you're asking
for what underlies coming to that conclusion
in the first place, I think it's supported.
And I think that this court should reaffirm and support that
because the probable cause standard recognizes that
you can point to common things that happen in everyday life.
Because what we're talking about is probable cause,
which is probably, you do have to have
a substantial basis to believe.
And I believe that there is a substantial basis
to believe based on the sources
that this court has historically cited
and it's sources that I cite in my brief.
David: Ms. Campbell, I know you've listed three things,
and we're only at number one.
-: We're at three, but yeah, yes.
-: And that means we haven't gotten
to indispensable to everyday life yet--
Caitlyn: Correct.
-: But one thing I've been thinking about.
Justice Kafker's right.
We said, even in Elmanar,
that it's indispensable part of daily life
and exists almost as a permanent attachment to our bodies.
And that's the whole reason that we have all these cases
where we want to be able
to protect individual liberty as technology evolves.
Caitlyn: Correct.
-: But instead of...
I've been thinking about going
in Justice George's point is,
what about all these innocent people?
Isn't there going to be a point in time
where there anyone who's thinking
through a crime is going to shut off the phone
and the only people you're going to get are innocent people?
-: So here's what I have to say about that.
I think as to the innocent people,
and I would point to McCarthy for that,
specifically page 508,
is that the Fourth Amendment and Article 14 cases
must be decided on the facts of each case,
not by extravagant generalizations.
The court has never held that potential
as opposed to actual invasions
of privacy constitutes searches
for purposes of the Fourth Amendment.
And you may be right. You may...
What you're talking about are people
that their Fourth Amendment rights
haven't been implicated, right?
Because they're not charged with a crime.
I don't think that the Fourth Amendment
or Article 14 provides a remedy to that.
That's not saying that there isn't a legal remedy,
but when you look at what
the Fourth Amendment and Article 14 is designed to do,
it's designed to protect individual personal rights,
not rights wholesale of large or 50,000 people.
So a good example, I think,
it's sort of legally how that could happen
is if you think about your toll reader in your car.
There's a statute that says
if the government wants to get that type of information,
they have to get a search warrant.
So there certainly are other legal avenues
by which you could try to mitigate
or minimize sort of invasions of privacy
that happen to innocent people.
That being said, I think it's important
to look at the type of data
that was requested and obtained in this case.
That's not to say the ends justify the means.
But it's always difficult in these type
of cases where we're talking about data, generally,
to sort of paint a picture of what it actually is.
And when you look at it,
it's the location of the cell tower which was connected to,
and it's phone numbers and it's the type of message.
I hear what you're saying, Justice Lowy,
and I think that the mosaic theory
is trying to get that balance, right?
It's trying to look at the usefulness
of these electronic surveillance tools,
is recognizing that there could be...
That there needs to be a balance.
But it also is guarding against the power of technology
to shrink the realm of guaranteed privacy.
And I think it's that realm of guaranteed privacy
that's important to look at because look
at the data that was collected in this case
as this court should and look at, historically,
whether that type of information
would be offered to any protections.
And I say that it wouldn't.
You know, locations historically so far,
even if you look at it during the mosaic theory.
-: But people don't have an expectation that...
I mean, they do have an expectation
that the police aren't pinging them
and trying to figure out whether they're at the...
I mean, I find it hard to say this isn't a search.
You're... I don't think everyone thinks,
I had my phone on and I'm near the location of this place.
Suddenly I'm in the realm of suspects.
So I'm bothered by that.
I understand this was localized.
And that's why I'm interested in the geo-fence analogy,
which doesn't give the cops the information
until you've narrowed it down
to somebody who actually might be a suspect.
The idea that 52,000 people
are potential suspects seems a little much.
-: But I disagree that 52,000 people
are potential suspects, right?
-: But the police are looking... I mean, they're not...
Yes, they're not targets at this point, but...
Caitlyn: They're not.
-: But they're... I don't think... Don't we...
Doesn't society have an objective expectation
that you're not gonna be swept
into the police search this way without some more control?
-: Well, my answer to that is twofold, right?
The first is if you look at Augustine
and the cases going on from Augustine,
but I think Chief Justice Gants' dissent
in Augustine really describes this balancing
that has to go on well.
Where it talks about the reasonable expectation
of privacy that exists when we're talking
about electronic surveillance, which I'm not sure that...
This does survey in as it reveals location,
but it's not qualitatively the same type of surveillance.
But he speaks about, you know, drawing that durational line
and looking at what is collected.
That the reasonable expectation of privacy is that,
and this is under Article 14,
a person may reasonably be subjected
to extended electronic surveillance
by the government targeted at his movement.
So it is the extended nature of that.
Frank: Does all that survive Carpenter?
-: All of that does survive Carpenter.
I would point the court to page 2,217, note three,
which specifically states that it is...
There is some duration. It is extremely limited.
And they're talking about the duration
which was requested in Carpenter,
and it need not decide whether there is
a limited period for which the government may obtain
an individual's historic CSLI free
from Fourth Amendment scrutiny.
-: Does that, as Mr. Tenant points out,
survive being sliced and diced into six different episodes?
-: I believe it does. I believe it does.
I believe it does because if you apply the mosaic theory,
which this court should,
because it's involving the electronic collection of data.
But when you apply the mosaic theory,
what you're looking at is the points that are revealed.
I think it's similar,
and this is an answer to your question too, Justice Kafker,
about innocent people being swept up in this,
you know, this surveillance that's going on.
If you look at a case like McCarthy,
every car that's going over the bridge,
their license plate is being recorded.
So you don't say, "We can't look for this license plate
just because all these other license plates were collected."
The same is true if you look at a case like Maura,
which is pole cam cases.
Everybody that walks by the view
of that camera is getting recorded.
You don't say,
"You know, for the pole cameras that are in public places,
that the government can't obtain it
because other innocent people may be walking by."
That's where I disagree, too, with my brothers,
and I'm skipping around here,
but I want to make sure that I make this point,
argument about particularity.
Because particularity has nothing
to do with innocent people.
Particularity has to do with defining
the limits and scope of the search.
And looking here, the limits in the scope
of the search are clearly defined.
Now that's not to say, again,
that there isn't some other legal remedy
which may be applied to people who do not wish
to have this type of information revealed to the government,
but I don't believe the remedy
is Article 14 or the Fourth Amendment.
Now to get your answer at...
-: I mean, we can make a refinement
of this apply prospectively.
So because I mean, we're sort of,
just what Justice Lowy says, we're keeping up with...
The criminals are getting smarter.
The police are getting smarter.
There's sort of a constant changing of the game here.
But I don't see why the police get all this...
If there's a way of limiting
what the police get to the targeted person,
wouldn't you want that?
-: So my answer to that is,
we don't have the record to do that in this case.
We don't have the record to do this in this case.
And, you know, I can tell you,
speaking outside the record and my experience with...
-: I mean, Google can do it.
I'm not sure why the government...
Why the telecommunication companies can't do it.
-: Your honor, all I can say is you would be surprised
what you get back when you send...
Even when you're getting a call detail record
and administrative subpoena,
it is extremely difficult, in my experience sometimes,
to deal with the telephone companies and how they keep
or sort of disseminate this information.
So I hear what you're saying. It's not on this record.
And I would say, looking at it here,
and I think that this is important
when you look at the burdens and emotion to suppress,
it is the defendant's burden to prove that
his reasonable expectation of privacy was intruded upon.
Looking at the data that was collected,
which I think is critical under the mosaic theory.
And under any principle, the defendant has not done
that here because you only, with locational data,
gain an expectation of privacy.
If it reveals the intricacies and private associations,
private things that happen in your life.
And there's absolutely no showing
on this record that any of that happened here.
I mean, and the best case...
Serge: How about where you go?
-: where you go,
you only have an expectation of privacy in where you go
if the whole picture that is captured by...
You know, think of the mosaic theory,
every single tile is something
that you wouldn't necessarily get.
I don't think that there is that showing here
because of the limited duration.
We have that this person was hitting off this cell tower,
but we don't even have movement, as you do,
in some of these cases.
So I just think if you look at it under the mosaic theory,
that it doesn't rise to that level.
Now I want to hit my first point,
which is formerly abandoning the standing and--
-: Can you? I'm sorry.
Before you go to the first point.
On your second point,
which I talked about the six hours issue,
and this goes to a lot of questions
that you've already discussed.
But when you talk about the mosaic theory,
what about when the six hours are broken off and there's...
And you're looking over the course of four hours,
you can see that the person was at this political event
or at this other association six times.
So the question that Mr. Tanner raised
about breaking up the time.
Could the six hours mean six continuous hours
from the Augustine incident?
-: So I think how you should look at it.
I think there is a recognition that
there is some limited period of time
in which individuals don't have an expectation of privacy
and because the picture that it reveals is not big enough.
I think the Maura and McCarthy
have really good language as to this question.
Maura says, "Whether this surveillance
was so targeted and extensive,
and that the data it generated
in the aggregate exposed otherwise unknowable details
of a person's life."
McCarthy says, "The analysis should focus ultimately
on the extent to which a substantial picture
of the defendant's movements are revealed by surveillance."
I don't think that six hours,
whether you look at it as a continuous six hours,
or whether you look it up as a broken up piece by piece.
Six hours gets you there.
But even so, even if this court were to say,
"Okay, maybe we should look on it at a case by case basis."
Here, it would be the defendant's burden to prove that
the electronic surveillance in this instance did.
And he...
There is absolutely nothing on this record to show if--
-: Counsel, can I ask you to address opposing counsel's point
regarding the bright-line rule?
I mean, the whole reason the six hours
was set forth was to create this bright-line rule.
Now if I start allowing six hours from whatever day,
you know, arguably the police could say,
"Well, let's see if Mr. Smith is home
at 4:00 a.m, all right?
Let's monitor his...
The cell tower closest to his home for 10 minutes.
And then on Sundays at 10:00 a.m.,
let's see if he's at the Catholic church,
and do that for another 10 minutes."
And so I can start painting
a really good mosaic picture of Mr. Smith
if the rule suddenly becomes six hours
from wherever, you know,
as opposed to the bright-line of six continuous hours.
Can I ask you to address that?
-: Certainly. So, again, I don't...
Looking at Augustine itself and looking at Estabrook,
I don't see the word continuous in there
so that's my first response.
The second is that may be so, but on the facts of this case,
that showing hasn't been made.
So it could be then if--
-: So if we wanted to stick with the bright-line rule,
that you would agree that
the continuousness would be important.
Because if you allow the police just to say,
"Okay, six hours in Justice Wendlandt's life,
whatever six hours you may choose."
You can choose specific hours and figure out where I am
and start painting a picture of Justice Wendlandt's life.
Caitlyn: And that may be so.
-: Yeah.
-: And that may be so. I would say that it would be--
-: It may not have happened here.
I'm just saying in general,
if we wanted to issue a bright-line rule,
which is why in Estabrook we said six hours.
Caitlyn: Correct.
-: Or in Augustine.
It starts getting into a slippery slope
if I let you break it up.
-: It may.
I would say, you need not reach that question here
because it is not on the record here.
And I would say that if a defendant wishes
to make that argument
and it could be in certain instances that they could show
though this bright-line rule exists, look here.
This mosaic that we're talking about,
these unknowable details of personal life,
that's what happened here.
-: Right, and so that would defeat
the whole point of the six-hour rule,
is if it's case by case, then,
you know, why delineate this rule?
-: It would, I would say, if you look at the...
If you look at Augustine,
in a footnote is where they talk about a limited duration.
They pick six hours.
If you look at Chief Justice Gants' dissent,
he talks about figuring out some sort
of duration for which there wouldn't be.
But really, this balancing test.
I would say that, you know,
where the mosaic theory has been more developed here
and talks about the development of the points
and looking at these points and looking
at the picture that the points,
that the overall big picture that the points creates,
I, you know, it wouldn't be dispositive
to this case and it wouldn't matter.
Dalila: Thank you.
Elspeth: Would you go on to the first point?
-: Thank you (chuckles).
I will happily go on to the first point.
As this court and as chief...
As Justice Cypher wrote
in her concurrence in Delgado-Rivera,
I think it is time for this court to revisit
the standing issue as a separate analysis.
I don't believe...
If you even look at a Commonwealth V Amendola
which adopted the separate standing analysis in 1990,
even in that case, it doesn't make much sense.
They find that the defendant has standing to challenge
yet they remand it for the question
of reasonable expectation of privacy,
whether he had a subjective expectation
of privacy in the trunk.
So the dispositive factor is this expectation of privacy.
I think it gets even more complicated
when we're talking about electronic data search...
And searches that happen and continue
to happen with more frequency here.
Because if you look at this traditional standing analysis,
which looks at whether the person was present
or whether the person has a substantial possessory interest
in the items searched,
or the place search or the item seized,
it gets really convoluted and complicated
to try to understand.
I think it has only gotten more complicated post
the announcement of adopting it in 1990.
Specifically, if you look at a case like Mob D
in which, you know, they discuss Amendola.
They then turned to reasonable expectation of privacy.
They say it's the defendant's burden to prove
that someone has a reasonable expectation of privacy.
They cite to the Carter case,
which expressly disavows that very notion.
But even more so than that,
if you look at this idea of an objective somebody,
it's against the very text
of the Fourth Amendment in Article 14,
which talk about the right of people
to be secure in their person's houses, papers, and effects.
Dalila: My understanding is the Fourth Amendment
and Article 14 are personal rights.
-: They are personal.
And, you know, the text of Article 14
and the Fourth Amendment support that.
Look at Article 14.
They say, "Searches and seizures of his person,
his houses, his papers, and his possessions."
So it was always meant to be personal
to that person exerting their rights,
which I think is important here
when we can't go down and look at the 50,000 other people.
We have to look at the defendant himself
and his privacy interests.
So thank you for letting me get to my first point,
but I ask that this court formally abandon this standing.
Dalila: Thank you.
Elspeth: Thank you. -: Thank you.