Retrieval of Real-Time Cell-Site Location Information (CSLI); Pennsylvania Wiretap Act; Fourth Amendment

Commonwealth v. Pacheco, 227 A.3d 358 (Pa. Super. 2020), allocatur granted July 28, 2020, appeal docket 42 MAP 2020

The Pennsylvania Supreme Court granted allocatur in this matter to determine whether a Court of Common Pleas Order issued under Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5782 (the Wiretap Act) permitting the Commonwealth to search over 100 days of real-time Cell Site Location Information (CSLI) was the equivalent of a search warrant in accordance with the warrant requirement for historical CSLI as recognized by the U.S. Supreme Court in Carpenter v. United States,138 S.Ct. 2206 (2018), and whether Carpenter extends to the collection of real-time CSLI.  

In 2015, the Montgomery County District Attorney’s Office, the Narcotics Enforcement Team, and the Drug Enforcement Agency (DEA) (collectively, Law Enforcement) uncovered a Mexican drug cartel heroin-trafficking distribution conspiracy involving Pacheco, a Norristown, Pennsylvania resident. Law enforcement believed Pacheco was a significant player in the drug smuggling and was responsible for transporting drugs from Georgia to New York. During their year-long investigation, Law Enforcement obtained several court orders under the Wiretap Act for real time CSLI. In collecting this CSLI, Law Enforcement uncovered that Pacheco’s travels from Georgia to New York included him obtaining a car battery containing three kilograms of heroin from Georgia, returning briefly to his hometown in Pennsylvania, and transporting the heroin to New York while facilitating the transactions through his cell phone. Law Enforcement set up a surveillance team to apprehend Pacheco in his anticipated route and search his vehicle. This search uncovered the heroin hidden in the car battery. Pacheco was arrested for multiple counts of possession with intent to deliver (PWID) and related offenses.

Pacheco moved to suppress the real time CSLI evidence, which the trial court denied.. Pacheco’s case proceeded to jury trial and Pacheco was convicted of the charges and sentenced to a prison term of forty to eighty years. After denial of his post-sentence motions, Pacheco appealed to Superior Court, challenging, inter alia,  the warrantless search and seizure of his real-time CSLI.

Superior Court found that the government’s retrieval of Pacheco’s real time CSLI was a constitutional search because Common Pleas’ orders were, in fact, warrants that were supported by probable cause and properly issued in accordance with the Wiretap Act and Fourth Amendment.  Superior Court reasoned that while Carpenter did not address the collection of real time CSLI, there was no meaningful distinction between the privacy issues related to historical and real time CSLI; therefore the Supreme Court’s rationale would extend to real time CSLI tracking. Slip Op. at 16-17, 19. Thus, Pacheco had a legitimate expectation of privacy of his physical movements and Law Enforcement conducted a search in retrieving his real time CSLI,  Slip Op. at 19, but the orders issued under the Wiretap Act satisfied the Fourth Amendment warrant requirement. Superior Court determined that the Fourth Amendment warrant requirement was met because the “orders were obtained pursuant to affidavits of probable cause,” and the orders, “when read in their totality, indicate that the court found probable cause that the information obtained would lead to evidence that Pacheco was violating specific provisions of the crimes code” and would allow Law Enforcement to use his cell phone to track him. Slip Op. at 23-25.

The Supreme Court granted allocatur to determine:

(1) Whether the Superior Court Panel erred in finding that an Order by a Court of Common Pleas permitting the Commonwealth to search 108 days of real time cell site location information was the equivalent of a search warrant, as required by United States v. Carpenter, — U.S. –, 138 S.Ct 2206, 201 L.Ed.2d 507 (2018)? Furthermore, did the Order of the Court of Common Pleas permit the Commonwealth to track Petitioner’s cell phone(s) in violation of the Pennsylvania Constitution, the Fourth Amendment, the Pennsylvania Wiretap Act and the recent decision in Carpenter?

(2) Whether the Superior Court properly held that the decision of the United States Supreme Court in Carpenter v. United States, — U.S. –, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), extends to the collection of real time cell site location information.

For more information, contact Kevin McKeon or Dennis Whitaker.