J-A09011-19

                              2019 PA Super 208


    COMMONWEALTH OF                            :     IN THE SUPERIOR COURT
    PENNSYLVANIA                               :               OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID PACHECO,                             :
                                               :
                       Appellant                     No. 151 EDA 2018


       Appeal from the Judgment of Sentence, November 29, 2017,
          in the Court of Common Pleas of Montgomery County,
          Criminal Division at No(s): CP-46-CR-0002243-2016.



BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

OPINION BY KUNSELMAN, J.:                                 FILED JULY 03, 2019

        David Pacheco appeals from the aggregate judgment of sentence

imposed following his conviction of multiple counts of possession with intent

to deliver (“PWID”)1 and related offenses.                We vacate the judgment of

sentence, reverse the order denying suppression as it relates to real-time cell

site   location information       (“CSLI”)         evidence, and remand for   further

proceedings.

        In April 2015, a heroin trafficking investigation initiated by the

Montgomery County District Attorney’s Office, Narcotics Enforcement Team,

uncovered a large criminal conspiracy. The District Attorney’s Office learned


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1   35 P.S. § 780-113(a)(30).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09011-19


that a Mexican drug trafficking organization was smuggling heroin into the

United States, and Pacheco, a Norristown, Pennsylvania, resident, was picking

up the heroin in Atlanta, Georgia, and then transporting it to wholesale heroin

buyers in New York City, New York.

        On July 23, 2015, Montgomery County prosecutors applied for and

obtained orders from the Montgomery County Court of Common Pleas

pursuant to Subchapter C2 of Pennsylvania’s Wiretapping and Electronic

Surveillance Control Act (“the Wiretap Act”). The orders compelled wireless

service providers to provide to prosecutors records for three cellular

telephones suspected to be linked to Pacheco. The service records from the

wireless service providers revealed that one of the phones was registered to

Pacheco.

        One month later, on August 28, 2015, Montgomery County prosecutors

sought and obtained additional orders from the Montgomery County Court of

Common Pleas under Subchapter E,3 of the Wiretap Act. The orders, which

were issued pursuant to 18 Pa.C.S. § 5773, authorized prosecutors to obtain

information relating to Pacheco’s cell phone number and the numbers for other

cell phone believed to be used by him. Pursuant to those orders, prosecutors

obtained call detail records for the prior thirty days. Additionally, the orders

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2   18 Pa.C.S. §§ 5741-5749.

3   18 Pa.C.S. §§ 5771-5775.



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allowed prosecutors to obtain mobile communication tracking information,4

install and use pen registers, trap and trace devices, and telecommunications

identification interception devices for a prospective period of sixty days. On

October 15, 2015, the court issued an order permitting usage of the various

electronic surveillance and tracking methods for an additional sixty days, for

a total tracking period of 120 days.

        On December 11, 2015, and January 6, 2016, Montgomery County

prosecutors sought and obtained orders from the Superior Court pursuant to

Subchapter B5 of the Wiretap Act, authorizing them to intercept oral, electronic

and wire communications for the cell phone registered to Pacheco, as well as

three others believed to be used by him.




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4 “Mobile communications tracking information” is defined by the Wiretap Act
as “[i]nformation generated by a communication common carrier or a
communication service which indicates the location of an electronic device
supported by the communication common carrier or communication service.”
18 Pa.C.S. § 5702. The mobile communications tracking information at issue
in this case is CSLI, which is obtained and routinely collected by wireless
service providers each time a cell phone connects to a cell site. When law
enforcement seek an order requiring a wireless service provider to disclose
CSLI data that it has collected through a cell phone’s normal interaction with
cell sites, that information is referred to as “historical CSLI.” In contrast, as
occurred in this case, “real-time CSLI” is obtained when the service provider,
at the direction of law enforcement, actively sends signals to the cell phone,
causing it to transmit its location back to the wireless service provider, which
then provides law enforcement with a real-time record of the location of those
connections.

5   18 Pa.C.S. §§ 5703-5728.

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       Prosecutors and detectives analyzed the information they obtained

through pen registers, trap and trace devices, call detail records, wire

interceptions, physical surveillance and real-time CSLI tracking.          They

identified multiple occasions between September 2015 and January 2016

when Pacheco traveled to Atlanta and New York as a member of the Mexican

drug trafficking organization. On each trip, Pacheco obtained a car battery

containing three kilograms of heroin in Atlanta, returned briefly to Norristown,

and then transported the heroin to New York, using his cell phone to facilitate

the transactions.

       By monitoring intercepted telephone calls, detectives learned that, on

January 10, 2016, Pacheco planned to drive from Georgia back through

Norristown with a retrofitted car battery containing three kilograms of heroin.

Police assembled a surveillance team along Pacheco’s anticipated route, and

apprehended him in Montgomery County.          A lawful search of his vehicle

revealed three kilograms of heroin hidden in the car’s battery.6

       Police arrested Pacheco and charged him with nine counts each of PWID

and criminal use of a communications facility, two counts of dealing in unlawful

proceeds, and one count each of conspiracy to commit PWID and corrupt


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6 The amount of heroin seized from one car battery is equivalent to
approximately one hundred thousand single-dose bags. See Trial Court
Opinion, 3/9/18, at 4 (citing N.T. Trial, 8/9/17, at 88).




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organizations.7 Pacheco moved to suppress the call detail records, the real-

time CSLI evidence, and evidence collected from telecommunications

identification interception devices.           Following a suppression hearing and

supplemental briefing, the trial court denied suppression.

       The case proceeded to a jury trial beginning on August 7, 2017. Pacheco

stipulated that he transported three kilograms of heroin on seven of the nine

trips detected by law enforcement. He also admitted on direct examination

that he “did the things that police say [he] did.” N.T. Trial, 8/9/17, at 131.

However, Pacheco raised the defense of duress; he claimed that he was

coerced by Mexican drug cartels to act as a drug courier; if he did not comply,

the cartels threatened that they would kill his family members.

       At the conclusion of trial, the jury convicted Pacheco of all charges

except corrupt organizations.           On November 29, 2017, the trial court

sentenced him to an aggregate prison term of forty to eighty years, followed

by ten years of probation.8 Pacheco timely filed post-sentence motions, which

____________________________________________


7 See 35 P.S. §780-11(a)(30), 18 Pa.C.S. § 7512, 18 Pa.C.S. § 5111, 18
Pa.C.S. § 903, 18 Pa.C.S. § 911.

8 The trial court sentenced Pacheco to serve consecutive prison sentences of
five to ten years on seven counts of PWID; concurrent prison sentences of five
to ten years on the remaining two counts of PWID; a consecutive prison
sentence of three to six years for conspiracy to commit PWID; consecutive
prison terms of one to two years for each of the two counts of dealing in
proceeds of unlawful activity; five years of probation on two counts of criminal
use of a communications facility, consecutive to each other and to the period
of incarceration; and five years of concurrent probation for each of the



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the trial court denied on December 12, 2017. He then filed a timely notice of

appeal. Pacheco and the trial court complied with Pa.R.A.P. 1925.

       Pacheco raises the following four issues for our review, which we have

reordered for ease of disposition:

       I.     Whether [Pacheco] waived [his challenge to the denial of
              suppression of the real-time CSLI evidence] when it was
              clearly set forth in his [Rule] 1925(b) statement?

       II.    Whether the trial court erred in denying the motion to
              suppress evidence where the Commonwealth illegally
              tracked [Pacheco’s] cell phone(s) in violation of the
              Pennsylvania Constitution, the Fourth Amendment, the
              Pennsylvania Wiretap Act and the recent decision in
              Carpenter v. United States, 138 S. Ct. 2206, 2218
              (2018).[9]

       III.   Whether the trial court erred by denying the right to present
              a Mexican drug cartel expert whose testimony would have
              supported the duress defense presented at trial?

       IV.    Whether the trial court abused its discretion by imposing a
              manifestly unreasonable, excessive aggregate sentence of
              forty (40) to eighty (80) years of imprisonment, which was
              a virtual life sentence, without giving adequate reasons for
              that sentence while relying on improper considerations?

Appellant’s Brief at 5 (footnote added).


____________________________________________


remaining seven counts of criminal use of a communications facility. All of
the sentences fall within the standard range of the sentencing guidelines.

9 In Carpenter, the United States Supreme Court held that when the
government accesses historical CSLI during the course of a criminal
investigation, it constitutes a search under the Fourth Amendment,
necessitating a warrant supported by probable cause.




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       Initially, we must address whether Pacheco sufficiently preserved his

constitutional challenge to the trial court’s order denying suppression of the

real-time CSLI evidence.10 In its Pa.R.A.P. 1925(a) opinion, the trial court

concluded that the issue was waived because it was stated too vaguely in

Pacheco’s concise statement. Pacheco framed this issue as follows:

       Whether the trial court erred in failing to suppress all evidence
       derived from the warrantless real-time tracking of [his] cell phone
       where such evidence was obtained in violation of the Pennsylvania
       Wiretap Act, Article I, Section 8 of the Pennsylvania Constitution,
       and the Fourth and Fourteenth Amendment of the United States
       Constitution?

Concise Statement, 1/31/18, at 1.

       Pennsylvania Rule of Appellate Procedure 1925 requires an appellant

“concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues.” Pa.R.A.P. 1925(b)(4)(ii).

This Court has considered the question of what constitutes a sufficient 1925(b)

statement on many occasions. It is well-established that an appellant must

properly specify in his concise statement the error to be addressed on appeal.

See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).




____________________________________________


10 Although numerous orders were issued to law enforcement during the
course of the investigation, Pacheco challenges only the orders issued
pursuant to 18 Pa.C.S. § 5773, Subchapter E, of the Wiretap Act. Moreover,
while those orders authorized several types of electronic surveillance,
Pacheco’s present challenge is limited to the portions of those orders which
authorized the real-time CSLI tracking of his cell phone.

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        According to the trial court, because prosecutors obtained multiple court

orders authorizing various searches, “it is unclear what evidence was obtained

without a [c]ourt order or warrant.” Trial Court Opinion, 3/9/18, at 7. The

trial court further points to the language of section 5773 of the Wiretap Act,

and notes that it “specifically requires court orders instead of warrants.” Id.

at 8.

        The Commonwealth also argues that Pacheco waived the claim, albeit

on a different basis; namely, that he did not raise a Carpenter issue before

the trial court. Commonwealth’s Brief at 4.

        Based on our examination of the certified record, we conclude that

Pacheco did, in fact, raise and preserve his constitutional challenge to the

admission of real-time CSLI evidence.       Pacheco filed a supplement to his

motion to suppress in which he specifically claimed that prosecutors failed to

“seek a search warrant from the [c]ourt to legally utilize ‘Mobile Tracking

Technology’ . . . or similar technology . . . as . . . is required and necessary

under Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment of the United States Constitution.”         Supplement to Motion to

Suppress, 11/18/16, at unnumbered 1-2. Pacheco further claimed that the

use of such technology “constitutes a ‘search’ under constitutional analysis

which . . . cannot be authorized without the issuance of a search warrant

based on probable cause.” Id. at unnumbered 2.




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      Additionally, at the suppression hearing, Pacheco’s counsel argued that

“the orders that were issued by the [c]ourt for authorization for these

electronic surveillances were illegal and unlawful orders because there were

no limitations with respect to the manner and number of hours and

circumstances that the Commonwealth would be able to utilize the real[-]time

tracking technology.” N.T. Suppression, 4/10/17, at 7. He further argued

that “this is not permitted under the 4th Amendment.” Id. at 8.

      Following the suppression hearing, Pacheco filed a supplemental brief

where he again argued that the orders authorizing real-time CSLI tracking of

his cell phone under Subchapter E of the Wiretap Act violated Article I, Section

8 of the Pennsylvania Constitution and the Fourth Amendment of the United

States Constitution “because the [o]rders fail[ed] to satisfy the constitutional

protections of the warrant requirement.” Memorandum of Law in Support of

Supplemental Motion to Suppress, 3/6/17, at unnumbered 14.

      Based on these averments, it is clear that Pacheco raised and preserved

his constitutional challenge to the orders authorizing real-time CSLI tracking

of his cell phone on the basis that such tracking constitutes a search under

Fourth Amendment analysis, requiring police to obtain a warrant before they

conducted such tracking.      Moreover, we disagree with the trial court’s

determination that the issue, as stated in Pacheco’s concise statement, was

unduly vague.    In our view, the issue was stated with sufficient clarity to

identify the pertinent issue on appeal. Pa.R.A.P. 1925(b)(4)(ii).


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       Having concluded that Pacheco’s suppression challenge was sufficiently

preserved for our consideration, we employ the following scope and standard

of review in addressing his claim:

       whether the record supports the trial court’s factual findings and
       whether the legal conclusions drawn therefrom are free from error.
       Our scope of review is limited; we may consider only the evidence
       of the prosecution and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record as
       a whole. Where the record supports the findings of the suppression
       court, we are bound by those facts and may reverse only if the
       court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en

banc) (citation omitted).         Additionally, “appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pretrial motion to suppress.” Commonwealth v.

Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017) (citation omitted).11

       On appeal, Pacheco renews his argument that the real-time CSLI

tracking of his cell phone constituted a search under the Fourth Amendment

of the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution, which required a warrant supported by probable cause based on

individualized suspicion. In support of his argument, Pacheco relies on the




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11 Thus, even though Pacheco admitted his crimes at trial, we may not
consider that evidence when reviewing a suppression ruling.




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United States Supreme Court’s decision in Carpenter, supra, which was

announced during the pendency of this appeal.12

       In Carpenter, the High Court addressed the question of whether the

government conducts a search under the Fourth Amendment when it accesses

historical CSLI during the course of a criminal investigation. The High Court

aptly explained the CSLI technology in question as follows:

       There are 396 million cell phone service accounts in the United
       States—for a Nation of 326 million people. Cell phones perform
       their wide and growing variety of functions by connecting to a set
       of radio antennas called “cell sites.” Although cell sites are
       usually mounted on a tower, they can also be found on light
       posts, flagpoles, church steeples, or the sides of buildings. Cell
       sites typically have several directional antennas that divide the
       covered area into sectors.

       Cell phones continuously scan their environment looking for the
       best signal, which generally comes from the closest cell site.
       Most modern devices, such as smartphones, tap into the wireless
       network several times a minute whenever their signal is on, even
       if the owner is not using one of the phone’s features. Each time
       the phone connects to a cell site, it generates a time-stamped
       record known as cell-site location information (CSLI).       The
____________________________________________


12 Although Carpenter was decided subsequent to Pacheco’s conviction and
sentencing, the United States Supreme Court has instructed that a new rule
for the conduct of criminal prosecution is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet final. See Schriro
v. Summerlin, 542 U.S. 348, 351 (2004) (citing Griffith v. Kentucky, 479
U.S. 314, 328 (1987)); see also Commonwealth v. Washington, 142 A.3d
810, 815 (Pa. 2016) (stating that “new constitutional procedural rules
generally pertain to future cases and matters that are pending on direct review
at the time of the rule’s announcement”). Carpenter announced a new rule
for the conduct of criminal prosecution; therefore, it applies retroactively to
Pacheco’s case because it was decided while Pacheco’s case was pending on
direct review with this Court, and he preserved the issue at all stages of
adjudication. See Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.
2008).

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       precision of this information depends on the size of the
       geographic area covered by the cell site. The greater the
       concentration of cell sites, the smaller the coverage area. As data
       usage from cell phones has increased, wireless carriers have
       installed more cell sites to handle the traffic. That has led to
       increasingly compact coverage areas, especially in urban areas.

       Wireless carriers collect and store CSLI for their own business
       purposes, including finding weak spots in their network and
       applying “roaming” charges when another carrier routes data
       through their cell sites. In addition, wireless carriers often sell
       aggregated location records to data brokers, without individual
       identifying information of the sort at issue here. While carriers
       have long retained CSLI for the start and end of incoming calls,
       in recent years phone companies have also collected location
       information from the transmission of text messages and routine
       data connections. Accordingly, modern cell phones generate
       increasingly vast amounts of increasingly precise CSLI.

Carpenter, 138 S. Ct. at 2211-12.

       Carpenter challenged court orders issued pursuant to the federal Stored

Communications Act (“SCA”).13 The orders permitted federal prosecutors to

obtain historical CSLI records for Carpenter’s cell phone because he was a

suspect in a string of robberies. The prosecutors applied for and obtained two

orders pursuant to 18 U.S.C.S. § 2703(d) of the SCA directing Carpenter’s

wireless service providers to disclose historical CSLI information for the four-

month interval during which the robberies occurred.14 The records revealed

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13 18 U.S.C.S. §§ 2701-2713.              The SCA is the federal counterpart to
Pennsylvania’s Wiretap Act.

14 The first order sought 152 days of historical CSLI from MetroPCS, which
produced records spanning 127 days. The second order requested seven days
of historical CSLI from Sprint, which produced two days of records covering



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the location of Carpenter’s cell phone whenever it made or received calls, and

placed the phone near four of the charged robberies.

       Carpenter unsuccessfully moved to suppress the historical CSLI

evidence obtained pursuant to those orders. He argued that the government’s

seizure of the records violated the Fourth Amendment because they had been

obtained without a warrant supported by probable cause.          The Court of

Appeals for the Sixth Circuit affirmed his subsequent conviction on the basis

that Carpenter lacked a reasonable expectation of privacy in the historical

CSLI data because he voluntarily shared his location information with his

wireless carriers. See United States v. Carpenter, 819 F.3d 880 (6th Cir.

2016).

       In reversing that decision, the United States Supreme Court held that

an individual maintains a legitimate expectation of privacy in the record of his

physical movements as captured through CSLI. The High Court concluded

that CSLI data contains the “privacies of life” because we carry our cell phones

everywhere we go. It stated:

       Although such records are generated for commercial purposes,
       that distinction does not negate Carpenter’s anticipation of
       privacy in his physical location. Mapping a cell phone’s location
       over the course of 127 days provides an all-encompassing record
       of the holder’s whereabouts. As with GPS information, the time-
       stamped data provides an intimate window into a person’s life,
____________________________________________


the period when Carpenter’s phone was “roaming” in northeastern Ohio.
Altogether the Government obtained 12,898 location points cataloging
Carpenter’s movements—an average of 101 data points per day. Carpenter,
138 S. Ct. at 2212.

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        revealing not only his particular movements, but through them
        his familial, political, professional, religious, and sexual
        associations. These location records hold for many Americans
        the privacies of life. . . . [A] cell phone—almost a feature of
        human anatomy, tracks nearly exactly the movements of its
        owner. While individuals regularly leave their vehicles, they
        compulsively carry cell phones with them all the time. A cell
        phone faithfully follows its owner beyond public thoroughfares
        and into private residences, doctor’s offices, political
        headquarters, and other potentially revealing locales.

Carpenter, 138 S. Ct. at 2217-18 (internal quotation marks, citations, and

paragraph formatting omitted).

        The High Court determined that the government’s acquisition of

Carpenter’s     historical    CSLI    records   invaded   Carpenter’s   reasonable

expectation of privacy in the whole of his physical movements, and constituted

a search within the meaning of the Fourth Amendment. Id. at 2219.15 The

High Court further ruled that “the Government must generally obtain a

warrant supported by probable cause before acquiring such records.” Id. at

2221.

        Having found a search occurred, the High Court then examined section

2703(d) of the SCA (which provided the grounds upon which the government



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15 In reaching its ruling, the High Court declined to decide whether there is a
limited period for which the government may obtain an individual’s historical
CSLI free from Fourth Amendment scrutiny, and if so, how long that period
might be. Carpenter, 138 S. Ct. at 2217 n.3. Instead, the Court ruled that
“[i]t is sufficient for our purposes today to hold that accessing seven days of
CSLI constitutes a Fourth Amendment search.” Id. Here, the real-time CSLI
tracking of Pacheco’s cell phone exceeded seven days; hence, under
Carpenter, it constituted a search under the Fourth Amendment.

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acquired the historical CSLI) to determine if the statute withstood Fourth

Amendment scrutiny.       That provision of the SCA authorizes a federal

magistrate judge to issue an order compelling the disclosure of certain

telecommunications records when the government “offers specific and

articulable facts showing that there are reasonable grounds to believe” that

the records sought “are relevant and material to an ongoing criminal

investigation.” 18 U.S.C. § 2703(d).

      In the High Court’s opinion, “[t]hat showing falls well short of the

probable cause required for a warrant,” noting that “[t]he Court usually

requires some quantum of individualized suspicion before a search or seizure

may take place.”     Carpenter, 138 S. Ct. at 2221 (citation and internal

quotation marks omitted). In the Court’s view, the fact that law enforcement

need only show that the CSLI evidence “might be pertinent to an ongoing

investigation” presented a “gigantic” departure from the probable cause

rule. Id. (emphasis added). Consequently, the High Court ruled that an order

issued under section 2703(d) of the SCA is not a permissible mechanism for

accessing historical CSLI records, and that, before compelling a wireless

carrier to turn over a subscriber’s CSLI, the government must get a warrant.

Id.

      Notably, the High Court in Carpenter emphasized that its decision was

a narrow one, and did not extend to matters not before it, including the seizure

of real-time CSLI, which is at issue in this case. Id. at 2220. Nevertheless,


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Pacheco asserts that the rationale utilized in Carpenter with respect to

historical CSLI applies with equal or greater force to real-time CSLI tracking.

He argues that historical CSLI is passively generated by a cell phone as it

communicates throughout the day with cell towers and the wireless service

provider as part of its ordinary operations.     By contrast, real-time CSLI

tracking requires the wireless service provider to actively send signals to the

cell phone at the request of law enforcement.      Appellant’s Brief at 26-27.

Pacheco asserts that “[t]hose signals then reached into [his] pocket, home,

car, or wherever the phone was kept, to activate the phone’s location

subsystem . . . without [Pacheco’s] knowledge.” Id. at 27.

       We have found no controlling Pennsylvania appellate decision on this

issue.16 In the wake of Carpenter, we found other courts that addressed this

question determined that real-time CSLI is subject to the same privacy

concerns as historical CSLI. See United States v. Thompson, 2019 U.S.

Dist. LEXIS 41169, *33 (D.C. Minn. March 7, 2019) (extending Carpenter to

real-time CSLI, noting “the Fourth Amendment was undoubtedly implicated


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16 A panel of this Court previously considered the question before us, and
determined that the collection of real-time CSLI data by law enforcement
constitutes a search under the Fourth Amendment; however, that decision
was reversed on other grounds. See Commonwealth v. Rushing, 71 A.3d
939, 961-64 (holding the “[a]ppellant did have a legitimate expectation of
privacy that the government could not surreptitiously track his real time
location via his cell phone signal” and that the “police were required to make
a showing of probable cause in order to obtain real time cell site information
data,” and to demonstrate “exigent circumstances” in the absence of a
warrant), rev’d on other grounds, 99 A.3d 416 (Pa. 2014).

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and a warrant based on a showing of probable cause was required”); United

States v. Williams, 2019 U.S. Dist. LEXIS 64324, *31 (S.D. Ga. Feb. 27,

2019) (concluding that the Carpenter analysis appears to apply equally to

the collection of real-time CSLI); Sims v. State, 569 S.W.3d 634, 645 (Tex.

Crim. App. 2019) (“Even though Carpenter dealt with historical CSLI, not

real-time location information, we believe that the Court’s reasoning in

Carpenter applies to both kinds of records.”); see also United States v.

Chavez, 2019 U.S. Dist. LEXIS 33210, at *41 (N.D. Cal. Mar. 1, 2019)

(discussing Carpenter’s application to historical CSLI and noting, in dicta,

that “[e]ventually, the same may be expected of real-time cell-site location

information, where an individual has arguably an even greater expectation of

privacy”); State v. Brown, 202 A.3d 1003, 1014 n.9 (Conn. 2019) (stating,

in dicta, that “we see no difficulty in extending the rationale of Carpenter as

applied to historical CSLI to prospective orders”).

      Notably, even before Carpenter was decided, several courts had

determined that when law enforcement obtained CSLI in the context of a

criminal investigation, it constituted a search under the Fourth Amendment,

and thus required a warrant. See, e.g., United States v. Ellis, 270 F. Supp.

3d 1134, 1145 (N.D. Cal. 2017) (holding “that cell phone users have an

expectation of privacy in their cell phone location in real time and that society

is prepared to recognize that expectation as reasonable”); In re Application

of U.S. for an Order Authorizing Disclosure of Location Info. of a


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Specified Wireless Tel., 849 F. Supp. 2d 526, 539 (D. Md. 2011) (finding a

“reasonable expectation of privacy both in [subject’s] location as revealed by

real-time [CSLI] and in his movement where his location is subject to

continuous tracking over an extended period of time”); In re Application of

U.S. for an Order Authorizing the Release of Historical Cell-Site Info.

(In re Application (E.D.N.Y.)), 809 F. Supp. 2d 113, 119-20 (E.D.N.Y.

2011) (concluding that cell-phone users maintain a reasonable expectation of

privacy in long-term CSLI records and that the government’s obtaining these

records constitutes a Fourth Amendment search); Tracey v. State, 152 So.

3d 504, 525-26 (Fla. 2014) (holding that real-time CSLI data was protected

by the Fourth Amendment, and thus, its use by law enforcement constituted

a   search   which   required   a    warrant   based   upon   probable   cause);

Commonwealth v. Augustine, 4 N.E.3d 846, 866 (Mass. 2014) (holding

that the government-compelled production of the defendant’s CSLI records

constituted a search in the constitutional sense which required a warrant);

State v. Earls, 70 A.3d 630, 644 (N.J. 2013) (holding that police must obtain

a warrant based on a showing of probable cause, or qualify for an exception

to the warrant requirement, to obtain tracking information through the use of

a cell phone).

      We see no meaningful distinction between the privacy issues related to

historical as opposed to real-time CSLI. Indeed, in our view, the High Court’s

rationale in Carpenter applies with equal, if not greater, force to real-time


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CSLI. Thus, we conclude that an individual maintains a legitimate expectation

of privacy in the record of his physical movements as captured through both

historical and real-time CSLI.   Accordingly, prosecutors need to obtain a

warrant supported by probable cause before obtaining this information.

     Having concluded that the privacy concerns identified in Carpenter with

respect to historical CSLI apply equally to real-time CSLI tracking, we must

next determine whether the grounds upon which the Montgomery County

District Attorney’s Office applied for and obtained the orders authorizing the

real-time CSLI tracking of Pacheco’s cell phone satisfy Fourth Amendment

considerations. Applying Carpenter to the facts of this case, it appears that

the Commonwealth did not comply with the Fourth Amendment in its reliance

on orders obtained pursuant to Subchapter E of the Wiretap Act to access

Pacheco’s real-time CSLI from a third-party provider. Prosecutors applied for

these orders pursuant to section 5772, which permits them to seek an order

compelling, inter alia, mobile communications tracking information upon “a

certification by the applicant that the information likely to be obtained is

relevant to an ongoing criminal investigation being conducted by that

agency.” 18 Pa.C.S.A. § 5772(b)(2) (emphasis added). The court may then

authorize such tracking upon a finding “[t]hat there is probable cause to

believe that information relevant to an ongoing criminal investigation will




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be obtained from the targeted telephone.” Id. at § 5773(b)(1)(i) (emphasis

added).17

       This standard is strikingly similar to the corresponding provision of the

SCA, which the Carpenter Court deemed constitutionally inadequate under

the Fourth Amendment.           Under that provision, federal prosecutors could

obtain an order compelling the disclosure of CSLI records when they showed

“reasonable grounds” for believing that the records were “relevant and

material to an ongoing criminal investigation.”           18 U.S.C. § 2703(d)

(emphasis added). As noted above, the High Court ruled that this standard

of proof falls “well short” of the probable cause required for a warrant, and

that some quantum of individualized suspicion is usually required before a

search or seizure may take place. Carpenter, 138 S. Ct. at 2221.

       Although Subchapter E of the Wiretap Act calls for a finding of “probable

cause,” as opposed to the SCA’s requirement for “reasonable grounds,” we

believe that this distinction is immaterial. Both statutes merely require that


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17 Our review of the orders in question reveals that the court limited its
probable cause ruling to the specific language of 18 Pa.C.S.A. § 5773(b)(1)(i),
and made no additional finding of probable cause predicated upon
individualized suspicion, as required to support a search warrant under the
Fourth Amendment. See Carpenter, supra at 2221; cf. United States v.
Thompson, 2019 U.S. Dist. LEXIS 41169 (D.C. Minn. March 7, 2019) (holding
that although the application for an order authorizing real-time CSLI tracking
referenced an outdated standard, no Carpenter violation occurred because it
was clear that the issuing judge found probable cause for the cell-phone
warrant)



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the information sought be relevant to an ongoing criminal investigation.

Critically, neither statute requires any quantum of individualized suspicion.

Given that the standard of proof for an order to obtain CSLI under Subchapter

E of the Wiretap Act18 requires no quantum of individualized suspicion, we are

constrained     to    conclude    that,   under        Carpenter,      this   order     not   a

constitutionally permissible means to access either historical or real-time CSLI

records. Instead, Carpenter dictates that to obtain a wireless subscriber’s

CSLI, prosecutors must get a warrant supported by individualized suspicion.

Carpenter, 138 S. Ct. at 2221.

        Based on the record before us, we conclude that the real-time CSLI

evidence     seized    from   Pacheco’s        cell   phone    was     the    product    of   a

constitutionally      defective   warrantless         search   under    the    rationale      of

Carpenter. Accordingly, the trial court erred in denying Pacheco’s motion to

suppress the real-time CSLI evidence obtained by law enforcement. However,

as Pacheco’s suppression challenge is limited to the admission of real-time

CSLI, our decision does not affect the trial court suppression ruling as it relates

to other challenged evidence. We therefore vacate Pacheco’s judgment of

sentence, reverse in part and affirm in part the order denying suppression,

and remand for further proceedings consistent with this Opinion.




____________________________________________


18   18 Pa.C.S. §5773(b)(1)(i).

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      Given our determination that the orders permitting the real-time CSLI

tracking of Pacheco’s cell phone were constitutionally infirm under the Fourth

Amendment, we need not address Pacheco’s other appellate issues.

      Judgment of sentence vacated, suppression order affirmed in part and

reversed in part, case remanded for further proceedings.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/19




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