Commonwealth v. Pacheco, D., Aplt., 263 A.3d 626

Background

Montgomery County and DEA investigated a Mexican heroin-trafficking organization; David Pacheco was alleged to shuttle kilograms of heroin from Atlanta to New York.
Commonwealth obtained ex parte orders under Subchapter E of Pennsylvania's Wiretap Act (18 Pa.C.S. §§ 5772–73) authorizing carriers to "ping" a specified phone to generate real-time cell site location information (CSLI); orders covered successive 60‑day periods (total ~108–120 days).
The applications included a detailed affidavit by Detective Reynolds identifying Pacheco, the target phone numbers, confidential-informant information, corroborating electronic analysis, and alleged nexus to specified drug offenses.
Pacheco moved to suppress the real-time CSLI as a warrant-required search under the Fourth Amendment (and PA Const. art. I, § 8); the trial court denied suppression and the jury convicted Pacheco.
The Superior Court applied Carpenter to real-time CSLI, held Pacheco had a reasonable privacy expectation, and concluded the Section 5773 orders satisfied Fourth Amendment warrant requisites.
The Pennsylvania Supreme Court affirmed: Carpenter’s warrant rule applies to real-time CSLI, and the Section 5773 orders (supported by the affidavit) were the functional equivalent of warrants and thus constitutional.

Issues

Issue	Plaintiff's Argument (Pacheco)	Defendant's Argument (Commonwealth)	Held
Whether Carpenter’s warrant rule for historical CSLI applies to continuous real‑time CSLI	Real‑time CSLI is at least as invasive as historical CSLI (and arguably more so because law enforcement initiates pings); therefore Carpenter requires a warrant	Commonwealth did not dispute Carpenter applies to real‑time CSLI	Held: Carpenter applies to real‑time CSLI; individuals have a reasonable expectation of privacy in continuous real‑time CSLI
Whether the Section 5773 orders satisfied Fourth Amendment warrant requirements	Section 5773 authorizes orders based on relevancy to an ongoing investigation and lacks the particularized nexus/particularity of a warrant; thus orders are insufficient	Section 5773 requires probable cause, an affidavit, identification of target phone/person and statement of offense—so orders can be the functional equivalent of warrants; trial court found probable cause here	Held: The Section 5773 orders (backed by the detailed affidavit) met the Dalia criteria and were the functional equivalent of warrants; suppression properly denied
Whether Pacheco preserved a facial challenge to Section 5773	(argued on appeal) statute text is constitutionally inadequate	Commonwealth: Pacheco waived any facial challenge by not raising it below	Held: Any facial statutory challenge was waived; Court addressed only whether orders were applied constitutionally in this case
Particularity / breadth of CSLI orders (geographic/time limits)	Orders authorized continuous monitoring 24/7 across locations including private residences and were overbroad	Commonwealth: orders targeted a specific phone and limited seizure to location data; affidavit supported duration	Held: Particularity satisfied—orders identified phone and data sought; challenge to overbreadth was not preserved for review

Key Cases Cited

United States v. Carpenter, 138 S. Ct. 2206 (U.S. 2018) (historical CSLI collection is a Fourth Amendment search; warrant generally required)
Dalia v. United States, 441 U.S. 238 (U.S. 1979) (court orders can be the functional equivalent of warrants if three warrant requisites are met)
United States v. Jones, 565 U.S. 400 (U.S. 2012) (installation of GPS tracker for extended period constituted a search)
United States v. Knotts, 460 U.S. 276 (U.S. 1983) (short‑term public movements monitored by beeper not a search)
Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (totality‑of‑circumstances test for probable cause)
United States v. Miller, 425 U.S. 435 (U.S. 1976) (third‑party doctrine—no expectation of privacy in information voluntarily conveyed to third parties)
United States v. Grubbs, 547 U.S. 90 (U.S. 2006) (warrant need not be labeled as such; particularity requirement narrowed to place and items)
Commonwealth v. Alexander, 708 A.2d 1251 (Pa. 1998) (orders under Wiretap Act may satisfy Fourth Amendment when probable cause found)
Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994) (probable cause determination by neutral magistrate can satisfy warrant requirement for wiretap orders)
Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989) (judicial order authorizing pen registers equals search‑warrant effect when supported by affidavit of probable cause)