Case Information
*1 NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC–12499
COMMONWEALTH vs. JEROME ALMONOR.
Plymouth. September 5, 2018. - April 23, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Cellular Telephone. Privacy. Constitutional Law, Search and seizure, Privacy. Search and Seizure, Expectation of privacy, Exigent circumstances. Practice, Criminal, Motion to suppress, Interlocutory appeal.
Indictments found and returned in the Superior Court Department on September 21, 2012.
A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J.
An application for leave to prosecute an interlocutory appeal was allowed by Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.
Jessica L. Kenny, Assistant District Attorney (Nathaniel Kennedy, Assistant District Attorney, also present) for the Commonwealth.
Matthew Spurlock, Committee for Public Counsel Services (Randall K. Power also present) for the defendant.
Jennifer Lynch & Andrew Crocker, of California, Chauncey B. Wood, Christopher T. Holding, Matthew R. Segal, & Jessie J. Rossman, for Electronic Frontier Foundation & others, amici curiae, submitted a brief.
KAFKER, J. The police quickly identified the defendant as the person suspected of murdering the victim with a sawed-off shotgun. In an attempt to pinpoint the location of the fleeing suspect, the police caused the defendant's cell phone to be "pinged." They did so without a warrant. The legality of that ping in these circumstances is the central legal issue in this murder case.
The police had learned the defendant's cell phone number within approximately four hours of the shooting. After receiving this information, the police contacted the defendant's cellular service provider (service provider) to request the real-time location of his cell phone pursuant to a "mandatory information for exigent circumstances requests" form. The service provider eventually "pinged" the defendant's cell phone, an action that caused the defendant's cell phone to transmit its real-time global positioning system (GPS) coordinates to the service provider. Once received, the cell phone's GPS coordinates were relayed to police, who used the coordinates, in combination with information from another witness, to identify a single address in Brockton as the defendant's likely location. Upon arriving at the Brockton address, police entered the home with the consent of the homeowner and located the defendant in an upstairs bedroom. After the defendant was arrested, police obtained and executed a search warrant for the bedroom and seized a sawed-off shotgun and a bulletproof vest as evidence of the defendant's involvement in the victim's shooting death.
The defendant moved to suppress the evidence seized by police, arguing that it was the fruit of an unlawful search under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion judge agreed, and the defendant's suppression motion was allowed. A single justice of this court allowed the Commonwealth's application to pursue an interlocutory appeal and reported the appeal to the Appeals Court. We subsequently allowed the defendant's petition for direct appellate review.
This appeal raises an issue of first impression in Massachusetts: whether police action causing an individual's cell phone to reveal its real-time location constitutes a search in the constitutional sense under either the Fourth Amendment or art. 14. For the reasons set forth below, we conclude that, under art. 14, it does. We also conclude, however, that in the circumstances of this case, the warrantless search was supported by probable cause and was reasonable under the exigent circumstances exception to the search warrant requirement. We therefore reverse the motion judge's allowance of the defendant's motion to suppress. 2,3
Background. We summarize the facts as found by the motion
judge, supplemented by uncontested facts in the record
implicitly credited by him. See Commonwealth v. Jones–Pannell,
At approximately 5:19 P.M. on August 10, 2012, a Brockton police officer responded to a reported shooting. When he arrived at the scene, the officer saw a black car in the driveway. He found the victim inside the car, unconscious, with a gunshot wound to the chest. The victim was transported to a hospital, where he was pronounced dead approximately one hour later. Police immediately began investigating the shooting.
An eyewitness to the shooting was interviewed by police at approximately 8:15 P.M. The eyewitness explained that he and the victim had been sitting in the black car parked in the driveway when a second car pulled up behind them. Two men got out of the second car and entered the house, returning to the car a few minutes later. One of the men, later identified as the defendant, "engaged in an unfriendly exchange" with the victim. Following this exchange, the defendant pulled out a shotgun wrapped in tape and told the eyewitness and the victim to empty their pockets. After some arguing, the defendant shot the victim in the chest. The defendant and the other man with whom he had arrived then entered their vehicle and left the scene. The eyewitness stated that he had a clear view of the shooter, who was only approximately ten feet away at the time of the shooting. The eyewitness later identified the defendant from a photographic array.
During the course of this initial investigation, two officers also located and interviewed a witness who revealed that the defendant had a former girlfriend. Police later learned that the defendant's former girlfriend lived at an address on a particular street in Brockton.
By 9:10 P.M., two officers interviewed the man who had been in the car with the defendant. He admitted that he had been present at the shooting and knew the defendant. At some point before the conclusion of the interview, he provided police with the defendant's cell phone number. He also informed the officers that he had dropped the defendant off at an intersection not far from the scene of the shooting and that the defendant still had the shotgun.
By 11 P.M., the police had conducted numerous witness interviews and performed multiple identifications of the defendant using photographic arrays. They learned that the shotgun was "cut down in the front." On the basis of the information they received, a police officer sent a "mandatory information for exigent circumstance requests" form to the defendant's service provider. The officer provided the defendant's cell phone number and requested several pieces of information, including the "precise location . . . (GPS location)" of the defendant's cell phone. [4] As grounds for the request, the officer wrote, "outstanding murder suspect, shot and killed victim with shotgun. Suspect still has shotgun." The service provider did not respond to the written request.
At approximately 12 A.M., police still had not heard from the service provider. The officer called a telephone number that the service provider maintained for law enforcement use and requested the real-time latitude and longitude coordinates of the defendant's cell phone. The service provider "pinged" the defendant's cell phone, thereby causing the cell phone to reveal its real-time GPS coordinates at the time of the ping. Once its location was revealed, the service provider relayed the cell phone's GPS coordinates to the police. The officer entered the coordinates in a common computer mapping program, which identified the cell phone as being in the "general location" of a particular street in Brockton. [5] Having already learned that the defendant's former girlfriend lived at a particular address on that street, police decided to investigate the former girlfriend's address.
Less than one hour later, multiple police officers approached the defendant's former girlfriend's house, announced their presence, and knocked on the door. The homeowner, the former girlfriend's father, opened the door. He indicated that he knew the defendant but did not believe that the defendant was at the house. He said that his daughter should be upstairs in her room, and he gave police permission to go upstairs and speak with her.
When officers reached the second floor, they eventually encountered a locked door. They knocked several times and ordered anyone inside to come out. The officers heard a male voice inside the bedroom say, "Shit." The defendant eventually opened the door, wearing nothing but boxer shorts. He was ordered to the ground and arrested. Officers thereafter conducted a protective sweep of the bedroom and observed a coordinates placed the cell phone between certain addresses on that particular street and that they only went to the specific address having already learned that the former girlfriend lived on that street. Moreover, the map relied on by police did not, as Justice Lenk's concurrence suggests, "pin-point[] . . . the location of [the particular house in which the defendant was discovered]." Post at note 8. Rather, the map included an arrow in the middle of that particular street in Brockton but did not identify that the defendant's cell phone was located inside of a specific address.
sawed-off shotgun and a bulletproof vest in plain view. They secured the scene while one officer requested a warrant to search the house. After receiving the warrant, police searched the house and seized, among other items, the shotgun and vest.
The defendant eventually moved to suppress the evidence seized from the bedroom, as well as his subsequent statements to police, on the grounds that they were the fruit of a warrantless search of the real-time location of his cell phone. After conducting a three-day evidentiary hearing, the motion judge concluded that the ping of the defendant's cell phone was a search under the Fourth Amendment and art. 14 and that the search was not justified by the exigent circumstances exception to the warrant requirement.
Discussion. When reviewing a ruling on a motion to
suppress, "we accept the judge's subsidiary findings of fact
absent clear error but conduct an independent review of his
ultimate findings and conclusions of law" (citation omitted).
Commonwealth v. Tremblay,
1. Search. The Fourth Amendment and art. 14 protect
individuals from unreasonable searches and seizures. For these
constitutional protections to apply, however, the Commonwealth's
conduct must constitute a search in the constitutional sense.
Commonwealth v. Magri,
(1967) (Harlan, J., concurring). An individual has a reasonable
expectation of privacy if (i) the individual has "manifested a
subjective expectation of privacy in the object of the search,"
and (ii) if "society is willing to recognize that expectation as
reasonable" (citation omitted). Augustine, supra at 242.
The defendant therefore bears the burden of establishing
that the Commonwealth intruded on a subjective and objective
expectation of privacy in his cell phone's real-time location
information. See Commonwealth v. Miller,
The ubiquitous use of cell phones, and the technology
allowing for the tracking of their location, have significantly
enhanced the government's surveillance capabilities. Augustine,
Neither this court nor the Supreme Court, however, has
addressed the issue we confront today: whether police action
that causes an individual's cell phone to transmit its real-time
location intrudes on any reasonable expectations of privacy. See Carpenter,
In analyzing society's reasonable expectations of privacy,
this court considers "various factors," including the "nature of
the intrusion." 10,11 Commonwealth v. One 1985 Ford Thunderbird
Auto.,
This is particularly true in the case of pinging a cell
phone to reveal an individual's real-time location. Indeed, an
individual does not have a reasonable expectation of privacy in
his or her real-time location under every circumstance. An
individual would certainly not have a reasonable expectation of
privacy in his or her real-time location while standing on a
public sidewalk, visible to any onlookers, including police, who
would care to look in the individual's direction. See
California v. Greenwood,
221, 229 (1993) ("we construe [art. 14] in light of the circumstances under which it was framed, the causes leading to its adoption, the imperfections hoped to be remedied, and the ends designed to be accomplished" [quotation and citation omitted]).
The intrusive nature of police action that causes an
individual's cell phone to transmit its real-time location
raises distinct privacy concerns. When the police ping a cell
phone, as they did in this case, they compel it to emit a
signal, and create a transmission identifying its real-time
location information. Matter of an Application of the U.S.A.
for an Order Authorizing Disclosure of Location Info. of a
Specified Wireless Tel.,
We confidently conclude that such police action implicates
reasonable expectations of privacy.
[13]
Indeed, society reasonably
expects that the police will not be able to secretly manipulate
We note that today, virtually all cell phones contain a
GPS receiver, thereby giving police the capability to ping the
cell phones of hundreds of millions of people. See Carpenter v.
United States,
§ 20.18(e) (2018) (requiring service providers to "provide to
the [police] . . . the location of all 911 calls by longitude
and latitude"); United States v. Wallace,
We recognize that the government's ability to compel a
cell phone to reveal its location is not limited to the pinging
that occurred in this case. For instance, law enforcement in
other jurisdictions have used "cell site simulators" to track
down persons of interest by "trick[ing] all nearby phones" into
revealing their location information (quotations omitted).
State v. Andrews,
our personal cell phones for any purpose, let alone for the
purpose of transmitting our personal location data. Cf.
Connolly,
Manipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion. In today's digital age, the real-time location of an individual's cell phone is a proxy for the real-time location of the individual. Indeed, cell phones are "an indispensable part of" daily life and exist as "almost permanent attachments to [their users'] bodies" (citation omitted). Augustine, 467 Mass. at 245-246. Cell phones "physically accompany their users everywhere" such that tracking a cell phone results in "near perfect surveillance" of its user. Carpenter, 138 S. Ct. at 2218. Augustine, supra at 246. The Commonwealth's ability to identify a cell phone's real-time location is therefore, in essence, the ability to identify the real-time location of its user.
The fact that cell phones are now "almost a feature of
human anatomy" effectively means that individuals are
constantly, and often unknowingly, carrying a hidden tracking
device that can be activated by law enforcement at any moment,
subject only to the constraints of whether law enforcement knows
the phone number and whether the cell phone is turned on
(quotation and citation omitted). Carpenter, 138 S. Ct. at
2218. See Matter of an Application,
Allowing law enforcement to immediately locate an
individual whose whereabouts were previously unknown by
compelling that individual's cell phone to reveal its location
contravenes that expectation. See Jones,
To allow such conduct without judicial oversight would
undoubtedly "shrink the realm of guaranteed privacy" under art.
14 and leave legitimate privacy rights at the "mercy of
advancing technology." See Kyllo,
automatically," such as registration CSLI, which is recorded by
a service provider every few seconds. Post at . This is
incorrect, as we plainly stated in Augustine,
ping occurred in this case -- 2012 -- enabled law enforcement to
pinpoint the cell phone to the "general location" of the street
in question in Brockton. Had the same coordinates been entered
into a computer mapping program as the technology exists today,
it appears that police would have been able to pinpoint the cell
phone's location to directly inside of the defendant's former
girlfriend's home. Had this capability existed at the time the
ping occurred in this case, there is no doubt that it would have
constituted a search in the constitutional sense, as it would
have identified the defendant's presence inside of a home. Cf.
United States v. Karo,
The concurrence by Justice Lenk faults us for not adopting
the alternative reasoning that the ping in this case must have
been a search because even though it only revealed to police
"the name of the street [on which the cell phone was located],
that information came from the [cell phone] within the home."
Post at . Although it is true that a search occurs when
governmental conduct reveals "any information regarding the
interior of the home that could not otherwise have been obtained
without physical intrusion into a constitutionally protected
area" (quotation and citation omitted), Kyllo,
As we stated in Estabrook,
said that the ping revealed a "critical fact about the interior
of the premises." Karo,
2. Reasonableness of search. Our conclusion that the Commonwealth committed a search in this case does not, however, decide the ultimate question of the search's constitutionality. Indeed, art. 14 prohibits only unreasonable searches. See id. ("Every subject has a right to be secure from all unreasonable searches . . ." [emphasis added]).
Where police conduct a search without a warrant, the search
is presumptively unreasonable. Commonwealth v. White, 475 Mass.
583, 588 (2016). Because the "ultimate touchstone" of art. 14
is reasonableness, however, "the warrant requirement is subject
to certain carefully delineated exceptions." Commonwealth v.
Entwistle,
The defendant does not contest that there was probable cause to believe that he had committed the crime. [17] Our analysis is therefore limited to whether police were confronted with an exigency such that it was impracticable for them to obtain a warrant.
We evaluate "whether an exigency existed, and whether the
response of the police was reasonable and therefore lawful . . .
in relation to the scene as it could appear to the officers at
the time, not as it may seem to a scholar after the event with
the benefit of leisured retrospective analysis." Commonwealth
v. Young,
As to the risk of flight in this case, there were
reasonable grounds to believe that the defendant would have been
aware that police would be looking for him. He had shot the
victim in the daytime in the presence of others, and thus he
likely knew that his crime was likely to attract the attention
of authorities. He was also undoubtedly aware that there were
at least two witnesses who could identify him: the second
person in the defendant's vehicle and the second passenger in
the victim's vehicle. Cf. Figueroa,
As to the risk of destruction of evidence, the record
reflects that police learned that the defendant still possessed
the sawed-off shotgun at the time he fled the scene of the
shooting. Because a sawed-off shotgun is per se illegal, it
requires ongoing concealment from authorities. See G. L.
c. 269, § 10 (c). This fact, when coupled with the fact that
the suspect likely knew he could be identified and would have
reason to fear capture, gave police reasonable grounds to
believe that there was a risk that the suspect would attempt to
conceal or destroy the shotgun before he was located by police.
Cf. Figueroa,
(1982) (no risk of destruction of evidence where marijuana packagers had no reason to believe police were investigating them).
Finally, police also had reasonable grounds to believe that
the defendant posed an immediate risk to the safety of police
and others. The suspect possessed a sawed-off shotgun, a
dangerous and per se illegal weapon. See G. L. c. 269,
§ 10 (c). In contrast to a handgun or a knife, a sawed-off
shotgun presents an ongoing danger; such a weapon has no lawful
function, and its owner continues to demonstrate a willingness
to violate the law by possessing it. In these circumstances,
police had reasonable grounds to believe that the suspect not
only had shot and killed once with the shotgun, but that he had
brutally murdered a person without an apparent motive. This was
not a case in which the threat posed by the suspect was limited
to a particular victim, for a particular purpose, such that the
circumstances that had led to the shooting dissipated
thereafter. Contrast Tyree,
With these considerations in mind, we conclude that under
the circumstances at the time the defendant's cell phone was
pinged, the police had reasonable grounds to believe that
obtaining a warrant would be impracticable because taking the
time to do so would have posed a significant risk that the
suspect may flee, evidence may be destroyed, or the safety of
the police or others may be endangered. Cf. Figueroa, 468 Mass.
at 213-214. See Carpenter,
Faced with this exigency, the police acted entirely reasonably in pinging the defendant's cell phone to determine its location. Accordingly, the motion judge erred in concluding that the warrantless ping of the defendant's cell phone was not justified by exigent circumstances and the allowance of the defendant's motion to suppress must therefore be reversed.
So ordered.
*32 LENK, J. (concurring, with whom Gants, C.J., joins). I agree with the court that the "pinging" of a cellular telephone, even once, constitutes a search under art. 14 of the Massachusetts Declaration of Rights that ordinarily requires a warrant. I also agree with the court that, in the exigent circumstances here, a warrant was not required. Although I quarrel with certain aspects of the court's exigency analysis, I write separately chiefly because I take issue with the weight my colleagues implicitly place on property rights in concluding that a warrantless ping is unconstitutional.
A search does not require governmental manipulation of an individual's property. Concluding so would carve out a gaping exception for violations of an individual's privacy that do not rest on government interference with an individual's property. Federal law, and this court's more recent jurisprudence, have moved beyond a focus on the nature of the government's physical intrusion in determining whether a search has occurred. It is rather the right to be let alone, including and especially within the home, that mandates that the government obtain a search warrant, supported by probable cause, before it may locate a person through a ping of a cellular telephone.
1. The right to be let alone. "Article 14, like the
Fourth Amendment, was intended by its drafters not merely to
protect the citizen against the breaking of his [or her] doors,
and the rummaging of his [or her] drawers," but to confer, "as
against the government, the right to be let alone -- the most
comprehensive of rights and the right most valued by civilized
[people]" (quotation and citations omitted). Commonwealth v.
Blood,
The analysis regarding "which expectations of privacy are
entitled to protection" is grounded in a historical
understanding "of what was deemed an unreasonable search . . .
when [the Constitution] was adopted" (citation omitted).
Carpenter,
27, 34 (2001). To do so, I would focus on the reasonable expectation of privacy that individuals maintain in their real- time location.
Individuals maintain a strong privacy interest in their
location information, which implicates their private spheres.
See Carpenter,
"[T]he government's contemporaneous electronic monitoring of one's comings and goings in public places invades one's reasonable expectation of privacy. We conclude that under art. 14, a person may reasonably expect not to be subjected to extended [global positioning system (GPS)] electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause."
Commonwealth v. Rousseau,
This interest is not diminished but, rather, heightened by
the fact that most people carry cellular telephones with them at
practically all times. See Riley,
The ability of the government to know where anyone is at
any moment poses a profound threat to the right to be let alone.
A real-time ping permits police not merely to observe an
individual's movements after the fact but to confront an
individual wherever he or she may be. When police act on real-
time information by arriving at a person's location, they signal
to both the individual and his or her associates that the person
is being watched. "Awareness that the Government may be
watching chills associational and expressive freedoms." See
United States v. Jones,
Other courts that have confronted this issue have done so
by focusing on an individual's reasonable expectation of privacy
in his or her real-time location. See, e.g., Matter of an
Application of the U.S.A. for an Order Authorizing Disclosure of
Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d
526, 583 (D. Md. 2011) (Matter of an Application) ("real time,
precise location data generated by a [cellular telephone] is
entitled to a reasonable expectation of privacy and thus is
subject to the Fourth Amendment's protections"); State v.
Andrews,
2. Search analysis. The court's reasoning risks
conflating our doctrines of search and seizure. Although
art. 14 and the Fourth Amendment guard against both, a search
and a seizure are distinct legal concepts. See Commonwealth v.
Connolly,
The court appears preoccupied not with what the government learns when it conducts a ping, but with the way in which the government learns it. In determining that the ping in this case constituted a search, the court puts substantial emphasis on the fact that the government "secretly manipulate[d]" the defendant's cellular telephone by "initiat[ing] and effectively control[ing]" its transmission of a signal. See ante at . Article 14 is implicated, the court notes, wherever "the [cellular telephone]'s location information is generated as a direct result of the government's manipulation of an individual's [cellular telephone]." See ante at note 13. This analysis, however, is more apposite to discussions of unreasonable seizure. Whether the ping constituted a search turns not on government manipulation but, rather, on reasonable expectations of privacy.
a. Seizure. In Connolly,
"[T]he government's control and use of the defendant's vehicle to track its movements interferes with the defendant's interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from 'all the world,' and the police use 'infringes that exclusionary right.' The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes." (Citations omitted).
Id. at 823.
Accordingly, where police "manipulate" private property (here, a cellular telephone), causing it to transmit information "for their own purposes," a seizure has occurred. Without using the vocabulary of "seizure" or "property," the court nonetheless performs an analysis steeped in both. In this case, however, the defendant did not challenge the ping of his cellular telephone as a seizure. The issue properly before us is only whether the ping constituted a search.
b. Search. Whether a search took place is a question of privacy rights, not property rights. See Connolly, 454 Mass. at 833 (Gants, J., concurring) ("In fact, the appropriate constitutional concern is not the protection of property but rather the protection of the reasonable expectation of privacy").
The court cites Commonwealth v. One 1985 Ford Thunderbird
Auto.,
Numerous searches involve no government manipulation of a
person's property. Individuals maintain a reasonable
expectation of privacy, for example, where police wiretap a
public telephone booth, see Katz,
We have not required the manipulation of a cellular
telephone in order to conclude that reasonable expectations of
privacy in its historical location data are implicated. See
Augustine,
By focusing on government manipulation in the search
analysis, even without using the word "seizure," the court risks
confusing the issue, creating the impression that an exception
exists for searches of real-time locations that providers
collect automatically. If government manipulation were required
in order to render a ping subject to art. 14 scrutiny, then
police could side-step the constitutional protection by
requesting not a ping, but, rather, the cellular service
provider's own automatically generated record of a cellular
telephone's current location. Such an attempt might avoid
manipulating the cellular telephone, but it leaves individuals
vulnerable to police surveillance of their real-time (up to
several seconds old), automatically collected location data.
See Commonwealth v. Estabrook,
3. Sanctity of the home. The court departs from the
approach of other States to have confronted this issue in its
silence concerning the risks of intruding upon private spaces,
including the home. See, e.g., Tracey v. State,
In evaluating reasonable expectations of privacy in new
contexts, we have long looked to whether an intrusion implicates
a constitutionally protected area, such as the home. See Kyllo,
(recognizing that fundamental privacy interest attached to
person's home complicates Fourth Amendment and art. 14
analysis). "[T]he sanctity of the home is of central concern in
jurisprudence concerning the Fourth Amendment . . . and
art. 14 . . . ." Commonwealth v. Tatum,
Under the Fourth Amendment and art. 14, "all details [in
the home] are intimate details, because the entire area is held
safe from prying government eyes" (emphasis in original).
Augustine,
(ability to detect "a particular article -- or a person, for that matter . . . that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of [constitutional] oversight").
Where some details of the home may appear more intimate than others -- compare, for example, boiling an egg with walking around in a state of undress -- the United States Supreme Court has declined to "develop a jurisprudence specifying which home activities are 'intimate' and which are not." Kyllo, 533 U.S. at 38-39. For example, in Kyllo, supra at 38, the government
was not permitted to learn "how warm -- or even how relatively warm -- [a defendant] was heating his residence." As the Court stated:
"The Government . . . contends that the thermal imaging was constitutional because it did not 'detect private activities occurring in private areas' . . . . The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained. . . . [T]here is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor."
Id. at 37. The constitutional analysis does not permit a weighing of the significance of the intrusion:
"While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in [Kyllo] that no 'significant' compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. . . . Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."
Id. at 40.
Although physical entry is the "chief evil against which
the wording of the Fourth Amendment is directed," see
Commonwealth v. Lopez,
In this case, the police looked inside a home, through the
use of technology, and determined that the defendant, or at
least his cellular telephone, was located there. By inputting
for the invasion of a person's privacy than the direct and
obvious methods of oppression which were detested by our
forebears and which inspired the Fourth Amendment. Surely
the spirit motivating the framers of that Amendment would
abhor these new devices no less." (Footnote omitted.)
Goldman v. United States,
the GPS coordinates obtained from the ping into modern mapping
technology, there remains no question that the defendant was
within a private residence when the police pinged his cellular
telephone. The court acknowledges that the same GPS coordinates
would, today, "pinpoint the [cellular telephone]'s location to
directly inside of the defendant's former girlfriend's home."
See ante at note 16. This is information "that could not
otherwise have been obtained" without entering the home. See
Kyllo,
The court mistakenly looks to police knowledge of whether their search intruded upon a home. The court states that, had the capability to associate the defendant's GPS coordinates with "the defendant's presence inside of a home" "existed at the time the ping occurred in this case," a search would have occurred. See ante at note 16. This reasoning misses the mark. The inquiry is not whether the police appreciated that they were searching a home, but rather whether the police obtained information concealed within a home. Here, they did: the defendant's location. Even if they only learned the name of the street, that information came from the cellular telephone within the home.
Of course, police cannot know in advance whether a ping
will locate a suspect in a private residence. See Matter of an
Application,
Nor is it of consequence whether the police actually
intended to search within a home. It is the individual who has
the reasonable expectation of privacy, regardless of the
subjective intentions of the officer who initiates the search.
See Commonwealth v. Lopez,
because [they] emit signals from both places." Earls, 214 N.J.
at 586. See United States v. Caraballo,
"Accordingly, there is value in adopting a bright-line
rule . . . ." Estabrook,
4. Exigent circumstances. I concur in the court's
conclusion that, although the ping of the defendant's cellular
telephone constituted a search, police were exempted from the
warrant requirement in this case, due to exigent circumstances.
It is important to note that the fact that the suspect shot an
individual with a firearm did not, by itself, create an
exigency. We repeatedly have "rejected the proposition that
'exigent circumstances always justify a warrantless entry and
search in the aftermath of a crime involving a firearm.'"
Commonwealth v. Figueroa,
5. Conclusion. Today, Massachusetts joins other States, as well as the majority of Federal courts to have addressed this issue, in determining that, before police may demand to know where someone is by means of a cellular telephone, they must a new NSA technique enabled the agency to find cellphones even when they were turned off"). A majority of Federal courts that have confronted this
question have required a showing of probable cause to a neutral
magistrate before police may search real-time cellular telephone
location information under the Fourth Amendment. See Validity
of Use of Cellular Telephone or Tower to Track Prospective, Real
Time, or Historical Position of Possessor of Phone Under Fourth
Amendment,
New technologies hold great promise for helping to solve
modern crimes. Doubtless, we will continue to develop
increasingly advanced tools to aid law enforcement in the years
to come. But as our capacity for surveillance grows, we must be
mindful to preserve individuals' constitutional rights. We must
be wary of the "all-powerful government, proclaiming law and
order, efficiency, and other benign purposes," when it seeks to
"penetrate all the walls and doors" behind which we might
shelter. United States v. White,
GANTS, C.J. (concurring, with whom Gaziano and Lowy, JJ., join). I agree with the court's conclusion that a warrant is required to search the real-time location of an individual's cellular telephone (cell phone). I also agree that, under the exigent circumstances exception to the search warrant requirement, the police in this case could lawfully obtain the assistance of the cellular company to "ping" the defendant's cell phone -- without prior judicial authorization -- because time was of the essence to determine his location in order to arrest him for the brutal killing. I write separately only because this case highlights the need for Massachusetts to join the majority of other States in allowing warrants to be obtained by telephone or other reliable electronic means so that, in the future, a warrant can reasonably be obtained promptly where time is of the essence.
In 1973, before the widespread use of cell phones, cell
site location information, global positioning systems installed
in cell phones, and electronic mail messages (e-mail), the
National Advisory Commission on Criminal Justice Standards and
Goals recommended that "every State enact legislation that
provides for the issuance of search warrants pursuant to
telephoned petitions and affidavits from police officers."
National Advisory Commission on Criminal Justice Standards and
Goals, Report on Police 95 (1973) (noting that "[l]engthy delays
in obtaining search warrants are the chief reason that police
officers rely upon exceptions to the rule requiring warrants").
See American Bar Association Project on Standards for Criminal
Justice, Standards Relating to the Urban Police Function 257
(Mar. 1972) (highlighting "the time and effort required to
obtain a search warrant . . . [because of] the frequent
unavailability of the magistrate," and recommending that "new
procedures . . . be devised to simplify the warrant process").
Since then, advances in technology have enabled police officers
to apply for warrants remotely -- that is, without physically
appearing before a judge or magistrate -- through a variety of
means other than a telephone, including e-mail and video
conferencing. See Missouri v. McNeely,
No comparable rule of criminal procedure can be promulgated in Massachusetts by this court, however, because G. L. c. 276, § 2B, provides that "[a] person seeking a search warrant shall appear personally before a court or justice authorized to issue search warrants in criminal cases and shall give an affidavit in substantially the form hereinafter prescribed" (emphasis added). 23A-35-6; Va. Code Ann. § 19.2-54; Wis. Stat. § 968.12(3); Ala. R. Crim. P. 3.8(b); Colo. R. Crim. P. 41(c)(3); Haw. R. Penal P. 41(h)-(i) (2013); Minn. R. Crim. P. 33.05, 36.01-36.08; N.J. R. Crim. P. 3:5-3(b); N.M. Dist. Cts. R. Crim. P. 5-211(F)(3), (G)(3); N.D. R. Crim. P. 41(c)(2); Ohio R. Crim. P. 41(C)(1)- (2); Pa. R. Crim. P. 203(A), (C); Utah R. Crim. P. 40(I); Vt. R. Crim. P. 41(d)(4), (i)(2); Wash. Super. Ct. Crim. R. 2.3(c); Wyo. R. Crim. P. 41(d)(3)-(4). See Fla. Stat. §§ 901.02(3)-(4), 933.07(3)-(4); 725 Ill.
Comp. Stat. 5 / § 108-4(c)(1); Md. Code Ann., Crim. Proc. § 1- 203(a)(2)(ii)-(iv); Tex. Code Crim. Proc. Ann. art. 18.01(b- 1)(1); Del. J. P. Ct. Crim. R. 4(g) (applicable only to issuance of arrest warrants by Justice of the Peace Court); Me. R. U. Crim. P. R. 41C.
We have permitted a law enforcement officer to obtain a search warrant by telephone or facsimile transmission only where "the officer exhausted all reasonable efforts to find a judge before whom he could personally appear." Commonwealth v. Nelson, 460 Mass. 564, 573 (2011). In all other circumstances, our law requires officers to find and personally appear before a magistrate or judge. Id. at 569-570.
In determining whether the exigency exception to the search
warrant requirement justifies the failure of the police to
obtain prior judicial approval of a search, we consider the
amount of time necessary to obtain a warrant. See Commonwealth
v. Tyree,
Today, modern technology can be applied to enable substantially quicker electronic application procedures that satisfy the requirements of art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution. In California, for example, the statutory scheme explicitly provides that a magistrate may receive an officer's affidavit via e-mail with an electronic signature, and then issue the warrant with an electronic signature and transmit it back via e-mail; this document is considered the original warrant. See Cal. Penal Code § 1526(b). Moreover, if a magistrate wishes to see the affiant raise his or her right hand to swear to the truth of the affidavit, the magistrate may use face-to-face video technology -- such as Skype or FaceTime software -- in the issuance of warrants. See Bean, Swearing by New Technology: Strengthening the Fourth Amendment by Utilizing Modern Warrant Technology While Satisfying the Oath or Affirmation Clause, 2014 B.Y.U. L. Rev. 927, 945-946.
The court in its decision recognizes that law enforcement, after properly obtaining a warrant or facing exigent circumstances, may employ Twenty-first Century technologies to solve Twenty-first Century crimes. But requiring officers to locate and then personally appear before a judge or magistrate when the court house is closed -- or when the affiant is far away from the judge or magistrate -- is hardly a Twenty-first Century procedure. I believe that our opinion today underscores the need for the Legislature to give careful consideration to amending G. L. c. 276, § 2B, to permit warrants to be applied for and approved remotely through reliable electronic means so that judicial approval may be sought and obtained in a timely manner.
Notes
[1] On request, a cellular service provider (service provider)
can cause a cell phone to transmit its global positioning system
(GPS) coordinates to the provider, in a process known as
"pinging." See Matter of an Application of the U.S.A. for an
Order Authorizing Disclosure of Location Info. of a Specified
Wireless Tel.,
[2] All Justices agree that there was a search for purposes of art. 14 of the Massachusetts Declaration of Rights, and that a search without a warrant was justified on the facts of this case by the exigency exception. The majority -- the author of this opinion joined by Justices Gaziano, Lowy, Budd, and Cypher -- hold that a search occurred because the police, with the assistance of the defendant's service provider, unbeknownst to the defendant and without his consent, caused his cell phone to transmit real-time location information. Justice Lenk, joined by Chief Justice Gants, writes separately to express her concern that our analysis blurs the distinction between "search" and "seizure" by focusing primarily on a violation of the defendant's property rights (i.e., the manipulation of his cell phone) instead of the intrusion on his personal right to be let alone, especially within a private home. We address her concern infra. The Chief Justice, joined by Justices Gaziano and Lowy, writes separately as well to point out that this case illustrates the need for police to be able to seek, and courts to be able to issue, search warrants electronically in appropriate circumstances, and to encourage the Legislature to permit that to happen.
[3] We acknowledge the amicus brief submitted by the Electronic Frontier Foundation; the American Civil Liberties Union of Massachusetts, Inc.; and the Massachusetts Association of Criminal Defense Lawyers.
[4] The officer also requested subscriber information, one week's worth of call detail records with cell site information, and two weeks' worth of historical location information.
[5] In his factual findings, the motion judge expressly found that the ping located the defendant's cell phone in the "general location" of the street in question. Although the motion judge went on to note in his discussion section that there was "no question that the [GPS] placed [the cell phone] inside a private residence," this was an incorrect conclusion inconsistent with his earlier factual finding and was therefore clear error. The record in the case supports the motion judge's factual finding on this point. Several police officers testified at the evidentiary hearing on the motion to suppress that the GPS
[6] The Commonwealth also argues that the defendant does not
have standing to challenge the lawfulness of the search of his
former girlfriend's bedroom. Because the Commonwealth failed to
raise this issue below, it is waived. Commonwealth v. Mauricio,
[7] Even if there were, the defendant has met his burden. The
defendant averred that he owned the cell phone "to communicate
with others, not to share any detailed information, including
[his] whereabouts, with the Government, or any of their agents
within law enforcement." Cf. Commonwealth v. Augustine, 467
Mass. 230, 255 & n.38 (2014), S.C.,
[8] Several United States Courts of Appeals have expressly
avoided the issue. See, e.g., United States v. Wallace, 885
F.3d 806, 810 (5th Cir. 2018) (assuming, without deciding, that
accessing cell phone's real-time location data is search under
Fourth Amendment to United States Constitution); United States
v. Banks,
[9] As we have noted, this issue remains an open question as a matter of Fourth Amendment jurisprudence. Nevertheless, as we conclude that a ping is a search under art. 14, we "have no need to wade into these Fourth Amendment waters." Augustine, 467 Mass. at 244. Instead we "decide the issue based on our State Constitution, bearing in mind that art. 14 . . . does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States" (quotation and citation omitted). Commonwealth v. Mauricio, 477 Mass. 588, 594 (2017). In deciding this case under art. 14, we look to cases interpreting the Fourth Amendment only for historical context and more general guidance. See id. at 591- 594 & n.1 (reviewing Fourth Amendment jurisprudence).
[10] Other factors include whether the public had access to,
or might be expected to be in, the area from which the
surveillance was undertaken; the character of the area (or
object) that was the subject of the surveillance
;
and whether
the defendant has taken normal precautions to protect his or her
privacy. See Commonwealth v. Berry,
[11] In her concurrence, Justice Lenk, joined Chief Justice
Gants, takes issue with our consideration of the nature of the
governmental conduct at issue, arguing that our decision is too
narrowly focused and "appears preoccupied not with what the
government learns when it conducts a ping, but with the way in
which the government learns it." Post at . Yet the nature
of the challenged governmental conduct -- i.e., what the
government does -- has always been relevant to whether such
conduct implicates reasonable expectations of privacy. See
United States v. Maynard,
[14] Justice Lenk's concurrence, in which Chief Justice Gants joins, argues that our consideration of the fact that a ping involves government manipulation of a cell phone places undue weight on "property rights" and therefore "risks conflating our doctrines of search and seizure." Post at . The concurrence goes on to state that "[o]ther courts that have confronted this issue have done so by focusing on an individual's reasonable expectation of privacy in his or her real-time location" and that it would focus on the same. Id. at . Contrary to the concurrence's assertions, we do not conclude that the manipulation violates art. 14 because it is a seizure or because it interferes with an individual's property right. We quite clearly conclude that such manipulation violates art. 14 because it intrudes on reasonable expectations of privacy.
[15] Justice Lenk's concurrence argues that our decision today somehow amounts to a mandate that going forward, a search only occurs if it involves "governmental manipulation of an individual's property." Post at . We fail to see how the concurrence could read our decision to make such a pronouncement. Nothing in our decision suggests that a search only occurs when the government manipulates one's property. We only conclude that the manipulation that occurs in these circumstances invades reasonable expectations of privacy. That one method of police conduct amounts to a search does not mean any other method is fair game. Indeed, as the concurrence correctly points out, "[n]umerous searches involve no government manipulation of a person's property." Post at . Our decision today does not strip constitutional protections in those cases. As always, governmental conduct that invades reasonable expectations of privacy is ordinarily not permitted without a warrant, regardless of how such an invasion takes place. Additionally, the concurrence argues that our decision risks "creating the impression that an exception exists for searches of real-time locations that providers collect
[17] Among other things, the defendant had been identified by multiple witnesses as the shooter, and his photograph was positively identified in several photographic arrays. The Commonwealth has therefore met its burden of establishing probable cause.
[18] These include, inter alia, (1) "a showing that the crime
was one of violence or that the suspect was armed"; (2) "a clear
demonstration of probable cause"; (3) "strong reason to believe
the suspect was in the dwelling"; (4) "a likelihood that the
suspect would escape if not apprehended"; and (5)"whether the
entry is peaceable and whether the entry is in the nighttime."
Commonwealth v. Forde,
[19] As Justice Lenk correctly points out, the fact that the
suspect shot the victim with a shotgun did not, by itself,
create an exigency. Post at . See Commonwealth v. Figueroa,
[20] The reasonableness of police conduct in response to the
exigency in this case is also supported by the manner in which
the search was conducted. Forde,
[1] Locations reported by cellular telephones have become
increasingly accurate. Cellular service providers "already have
the capability to pinpoint a phone's location within [fifty]
meters." Carpenter v. United States,
[2] The highest court in Maryland has yet to reach the issue
of privacy in real-time location information. When it had the
chance to comment on the reasoning in State v. Andrews, 227 Md.
App. 350, 393 (2016), the court observed that "there may be a
decision in the near future [(Carpenter)] providing
authoritative guidance. . . . None of this means that the
analysis in Andrews is wrong." See State v. Copes,
[3] The manner in which the government conducts a search of
course matters; there is a marked difference between knocking on
doors and knocking down doors. By fixating on the method,
however, the court loses sight of the very thing in which
individuals hold an expectation of privacy: their location.
The court's own examples are instructive. As noted in
United States v. Maynard,
[4] The court in that case focused on several factors,
including "the character of the location involved; whether the
defendant owned or had other property rights in the area at
issue; whether the defendant controlled access to the area; and
whether the area was freely accessible to others" to determine
whether the defendant's expectation of privacy was reasonable.
Commonwealth. v. Williams,
[5] Cellular service providers automatically record the
location of cellular telephones at regular intervals, absent any
police request, in order to provide service. See Commonwealth
v. Augustine,
[6] An intrusion into the home, alone, is sufficient to implicate art. 14. See Commonwealth v. Porter P., 456 Mass. 254, 260 (2010) ("These factors may provide guidance when the place searched is not the defendant's home. . . . However, where, as here, the place searched is the interior of the . . . home, we need not consult any such factors in deciding that the [defendant] has a reasonable expectation of privacy, because the Fourth Amendment and art. 14 expressly provide that every person has the right to be secure against unreasonable searches and seizures in his home").
[7] "There was no physical entry in this case. But the search of one's home or office no longer requires physical entry, for science has brought forth far more effective devices
[8] The court disputes whether, in 2012, the capacity existed for police to associate the GPS coordinates with the former girlfriend's home. See ante at note 5. In his postargument letter, the defendant included a copy of the map relied upon by the police, which was introduced as an exhibit at the hearing on the motion to suppress. He contends that, "[a]lthough the heading of the map references a range on the one-block street . . . , the map itself pin-pointed (at 'A') the location of [the particular house in which the defendant was discovered]." The court construes this "arrow" to signify nothing more than "the middle of" the street in question, noting that officers testified that the coordinates, alone, were insufficient to identify any particular home. See id. The motion judge, who heard the evidence, was not required to credit the officers' testimony in this regard. See
[10] The Commonwealth's suggestion that exigent circumstances are present also because the defendant was capable of powering off his cellular telephone to evade capture is unavailing. Such an exception would swallow the rule, as all owners of cellular telephones are capable of powering them off at any time. Moreover, there is some indication that law enforcement may be able to access individuals' location information through their cellular telephones even when the devices are powered off. See How the NSA Could Bug Your Powered-Off iPhone, and How to Stop Them, Wired, June 3, 2014, https://www.wired.com/2014/06/nsa- bug-iphone [https://perma.cc/FV7B-QCLY]; NSA Growth Fueled by Need to Target Terrorists, Wash. Post, Jul. 21, 2013, https: //www.washingtonpost.com/world/national-security/nsa-growth- fueled-by-need-to-target-terrorists/2013/07/21/24c93cf4-f0b1- 11e2-bed3-b9b6fe264871_story.html?noredirect=on&utm_term= .4d7a16309a81 [https://perma.cc/3ZQU-X2E8] ("By September 2004,
[1] All thirty-six continue to permit remote search warrant applications. See Alaska Stat. § 12.35.015; Ariz. Rev. Stat. Ann. §§ 13-3914(C), 13-3915(D), (E); Ark. Code Ann. § 16-82-201; Cal. Penal Code § 1526(b); Ga. Code Ann. § 17-5-21.1; Idaho Code §§ 19-4404, 19-4406; Ind. Code § 35-33-5-8; Iowa Code § 808.3(1)(b); Kan. Stat. Ann. §§ 22-2502(a), 22-2504; La. Code Crim. Proc. Ann. art. 162.1(B), (D); Mich. Comp. Laws § 780.651(2)-(7); Mo. Rev. Stat. § 542.276.3, .7; Mont. Code Ann. §§ 46-5-221, 46-5-222; Neb. Rev. Stat. §§ 29-814.01, 29- 814.03, 29-814.05; Nev. Rev. Stat. § 179.045(2); N.H. Rev. Stat. Ann. § 595-A:4-a; N.Y. Crim. Proc. Law §§ 690.35(1), 690.36(1), 690.40(3), 690.45(1), (2); N.C. Gen. Stat. § 15A-245(a)(3); Okla. Stat. tit. 22, §§ 1223.1, 1225(B); Ore. Rev. Stat. § 133.545(7)-(8); S.D. Codified Laws §§ 23A-35-4.2, 23A-35-5,