COMMONWEALTH vs. JASON J. McCARTHY.
SJC-12750
Supreme Judicial Court of Massachusetts
April 16, 2020
Barnstable. October 2, 2019. - April 16, 2020. Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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Privacy. Constitutional Law, Privacy, Search and seizure, Standing, Admissions and confessions, Voluntariness of statement. Search and Seizure, Expectation of privacy, Electronic surveillance, Motor vehicle. Practice, Criminal, Motion to suppress, Standing, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement.
Indictment found and returned in the Superior Court Department on August 31, 2017.
Pretrial motions to suppress evidence were heard by Robert C. Rufo, J.
An application for leave to prosecute an interlocutory appeal was allowed by Kafker, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by him.
Paul A. Bogosian for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.
Matthew Spurlock & David Rassoul Rangaviz, Committee for Public Counsel Services, Ashley Gorski, of New York, Jennifer Lynch & Andrew Crocker, of California, Jessie J. Rossman, Matthew R. Segal, & Nathan Freed Wessler, for American Civil Liberties Union & others, amici curiae, submitted a brief.
GAZIANO, J. While investigating the defendant on suspicion of drug distribution, police used automatic license plate readers (ALPRs) on the Bourne and Sagamore bridges to track his movements. They accessed historical data, which revealed the number of times he had crossed the bridges over a three-month period, and also received real-time alerts, one of which led to his arrest. We must determine whether the use of ALPR technology in this case constituted a search under the Fourth Amendment to the United States Constitution or under art. 14 of the Massachusetts Declaration of Rights.
We conclude that, while the defendant has a constitutionally protected expectation of privacy in the whole of his public movements, an interest which potentially could be implicated by the widespread use of ALPRs, that interest is not invaded by the limited extent and use of ALPR data in this case.
1. Background.
We draw the following from the facts found by the motion judge, reserving some facts for later discussion.
a. ALPR systems.
Automatic license plate readers are cameras combined with software that allows them to identify and “read” license plates on passing vehicles. When an ALPR identifies a license plate, it records a photograph of the plate, the system‘s interpretation of the license plate number, and other data, such as the date, time, location, direction of travel, and travel lane. In Massachusetts, cameras owned and maintained by the State police feed this information into a database maintained by the Executive Office of Public Safety and Security (EOPSS).1 At some point in 2015, the State police installed fixed camera readers on both sides of the Sagamore and Bourne bridges. While these cameras
ALPR systems produce two related types of information: real-time alerts and historical data. First, individuals with user credentials can log onto the ALPR system, enter license plate numbers onto a “hot list,” and choose users to be notified about any new “hits” for that plate number. If a camera in the ALPR system detects a license plate that matches a number on the hot list, the system sends an electronic mail message or text message to the specified officers. Alert recipients receive an image of the plate, along with the date, time, location, and direction of travel. Second, users can search by license plate number for any historical matches stored in the database. EOPSS currently has a one-year retention policy for ALPR data.3
The Barnstable police department has adopted the State police general order setting out various regulations for the use of ALPR information. See State police General Order No. TRF-11 (July 22, 2014) (Order TRF-11).4
b. The investigation.
Through surveillance, several “controlled buys,” and information from four confidential informants, the Barnstable police developed substantial evidence that a codefendant in this case was distributing heroin from his residence. During that surveillance, they observed a black Hyundai vehicle appear briefly at the codefendant‘s residence. After further surveillance, and a tip from a confidential informant, police observed the defendant driving the same vehicle, and they began to suspect that he was supplying heroin to his codefendant.
On February 1, 2017, Barnstable police added the license plate number of the black Hyundai to the ALPR hot list, and specified
Police also generated a spreadsheet indicating every time that the Hyundai had passed over the Bourne and Sagamore bridges between December 1, 2016, and February 12, 2017. The spreadsheet contained the dates, times, directions, and specific lanes that the Hyundai had traveled on the bridges. The ALPR spreadsheet showed that the vehicle traveled onto Cape Cod on eight days in February, twenty-one days in January, and nineteen days in December. On multiple of these days, the defendant made more than one trip on the same day. This appeared consistent with the police theory that the defendant routinely was bringing heroin onto the Cape for distribution by his codefendant.
On February 22, 2017, Barnstable police received another alert that the Hyundai had traveled over the Sagamore Bridge onto Cape Cod. Police again followed both the defendant and the codefendant as they drove to Shallow Pond Road. The officers observed a meeting, but did not see an exchange of objects. Both vehicles departed thirty seconds later. This time, police stopped both vehicles on suspicion that a drug transaction had taken place.
After stopping the codefendant, police handcuffed him, read him his Miranda rights, and questioned him at the side of the road. He made incriminating statements, and officers found heroin on his person. Police also ordered the defendant out of his vehicle, handcuffed him, and read him his Miranda rights. The motion judge found that the defendant was under arrest at the moment that he was ordered out of the Hyundai and handcuffed.
At the police station, the defendant waived his Miranda rights and made various incriminating statements. Officers also seized two cellular telephones and United States currency from the defendant‘s person. The defendant‘s brother brought more money to pay the bail for the defendant, but police seized almost all of the cash on the belief that it was the proceeds of illegal drug activity.
2. Discussion.
“In reviewing a decision on a motion to suppress, we accept the judge‘s subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law” (quotations and citation omitted). Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Here, reviewing the judge‘s conclusions of law requires us to determine, among other things, whether the use of ALPR technology by police constitutes a search under the Fourth Amendment or art. 14.
a. ALPRs and constitutional search protections.
Under both the Fourth Amendment and art. 14, a search implicates constitutional protections when the government “intrudes on a person‘s reasonable expectation of privacy” (citation omitted). Commonwealth v. Almonor, 482 Mass. 35, 40 (2019). “An individual has a reasonable expectation of privacy where (i) the individual has manifested a subjective expectation of privacy in the object of the search, and (ii) society is willing to recognize that expectation as reasonable” (quotations and citation omitted).5 Commonwealth v. Johnson, 481 Mass. 710, 715 (2019), cert. denied, 140 S. Ct. 247 (2019). See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
The constitutional jurisprudence governing the technological surveillance of public space has developed rapidly in the last decade. To place the current situation in the proper context, it is necessary to review these developments and their underlying reasoning at some length.
i. Expectations of privacy and technology.
As this court and the
Like the Supreme Court, this court is guided “by historical understandings of what was deemed an unreasonable search and seizure when [the Constitutions were] adopted.” See Almonor, 482 Mass. at 43, citing Carpenter, 138 S. Ct. at 2214. These historical understandings include the basic purposes underlying the adoption of art. 14 and, later, the Fourth Amendment. See Almonor, supra, quoting Jenkins v. Chief Justice of the Dist. Court Dep‘t, 416 Mass. 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“). See also Carpenter, supra at 2213. More specifically, we have recognized that the underlying purposes of both art. 14 and the Fourth Amendment are the need to “secure the privacies of life against arbitrary power,” and to “place obstacles in the way of a too permeating police surveillance.” Almonor, supra at 53 (Lenk, J., concurring), quoting Carpenter, supra at 2214. Both warrant further explanation in the context of emerging technology.
A. Arbitrary power.
The framers had first-hand experience with abuses of arbitrary power under British rule. Our cases acknowledge
B. Permeating police presence.
As the Supreme Court made clear in Carpenter, courts analyzing the constitutional implications of new surveillance technologies also should be guided by the founders’ intention “to place obstacles in the way of a too permeating police surveillance.” Carpenter, 138 S. Ct. at 2214, quoting United States v. Di Re, 332 U.S. 581, 595 (1948). Specifically, both this court and the Supreme Court have recognized how advancing technology undercuts traditional checks on an overly pervasive police presence because it (1) is not limited by the same practical constraints that heretofore effectively have limited long-running surveillance, (2) proceeds surreptitiously, and (3) gives police access to categories of information previously unknowable.
As Justice Alito wrote in Jones, “[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken.” United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring). The continuous, tireless, effortless, and absolute surveillance of the digital age contravenes expectations of privacy that are rooted in these historical and practical limitations. For this reason, when the duration of digital surveillance drastically exceeds what would have been possible with traditional law enforcement methods, that surveillance constitutes a search under art. 14. See, e.g., Augustine, 467 Mass. at 253.
In addition, the surreptitious nature of digital surveillance removes a natural obstacle to too permeating a police presence by hiding the extent of that surveillance. Resource constraints aside, we imagine Massachusetts residents would object were the police continuously to track every person‘s public movements by traditional surveillance methods, absent any suspicion at all. Justice Sotomayor summed up these first two concerns in a discussion of global positioning system (GPS)7 monitoring: “because [it] is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility‘” (citation omitted). Jones, 565 U.S. at 415–416 (Sotomayor, J., concurring).
Finally, new surveillance techniques risk creating too permeating a police presence by giving police access to “a category of information otherwise unknowable.” Carpenter, 138 S. Ct. at 2218. For example, with CSLI data “the Government can now travel back in time to retrace a person‘s whereabouts . . . [and] police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years . . . .” Id. See Augustine, 467 Mass. at 254. Likewise, in Almonor, 482 Mass. at 46, this court considered the capability of police to “ping” a cellular telephone, causing it to reveal its real-time location data, and observed that “[t]his extraordinarily powerful surveillance tool finds no analog in the traditional surveillance methods of law enforcement.”
These historical understandings inform our analysis as we apply the test that originated more than fifty years ago in Katz, 389 U.S. at 361 (Harlan, J., concurring), to determine whether the collection and use of ALPR data constitutes a search.
ii. Searches in public.
This founding-era guidance has aided courts, even as technological advances in the surveillance of public space have posed difficult questions to courts under the “reasonable expectation of privacy” framework established in Katz. The tension derives from two contrasting sentences contained in Katz itself. First, Katz states that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351. For this reason, “[w]hether an expectation of privacy is reasonable depends in large part upon whether that expectation relates to information that has been exposed to the public” (alteration, quotation, and citation omitted). United States v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010), aff‘d in part sub nom. Jones, 565 U.S. 400. On the other hand, “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.” Carpenter, 138 S. Ct. at 2217. For “what [someone] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, supra. See id. at 354 (constitutionally protected privacy interest in contents of telephone conversation made from public telephone booth). In short, while the Fourth Amendment and art. 14 “protect[] people, not places,” whether something is knowingly exposed to the public remains a touchstone in determining the reasonableness of a person‘s expectation of privacy. Id. at 351. See Augustine, 467 Mass. at 252; Commonwealth v. Billings, 42 Mass. App. Ct. 261, 265 (1997) (listing constitutional nonsearches based on knowing exposure principle).
A. What is knowingly exposed.
Under this doctrine, police observation of the exterior of an automobile is not a search because it is “knowingly exposed.” See New York v. Class, 475 U.S. 106, 114 (1986) (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search‘“). In Massachusetts, this reasoning extends quite naturally to license plates. In Commonwealth v. Starr, 55 Mass. App. Ct. 590, 591 (2001), a police officer saw a license plate on an automobile, located the plate number in a police database, and stopped the vehicle because the plates were registered to a different vehicle. Relying on the knowing exposure principle of Katz, the court held that the defendant had no reasonable expectation of privacy that would prevent an officer from examining his license plate. Starr, supra at 593–594.8
In United States v. Knotts, 460 U.S. 276, 285 (1983), the Supreme Court applied the logic of “what is knowingly exposed” to sanction the warrantless use of a radio “beeper”9 to assist police in tracking a vehicle on a single journey.
“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the codefendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.”
Id. at 281–282. In so holding, the Knotts Court dismissed the defendant‘s claim that, should he lose his case, “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” Id. at 283. The court went on to note, however, that “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id. at 284.
In this distinction, we recognize precisely the question posed by this case: whether Knotts, Starr, and the “knowing exposure” principle of Katz control, as the Commonwealth contends, or whether different constitutional principles apply, as the defendant argues. To answer, we must look to those cases of emerging surveillance technology where we indeed have determined that different constitutional principles govern.
B. Mosaic theory.
When new technologies drastically expand police surveillance of public space, both the United States Supreme Court and this court have recognized a privacy interest in the whole of one‘s public movements. See Carpenter, 138 S. Ct. at 2217 (“individuals have a reasonable expectation of privacy in
The question first emerged in the context of a GPS device affixed to a suspect‘s vehicle. We ultimately concluded, consistent with Supreme Court precedent, that “the government‘s contemporaneous electronic monitoring of one‘s comings and goings in public places invades one‘s reasonable expectation of privacy.” Rousseau, 465 Mass. at 382. Next, in cases addressing police access to CSLI, both this court and the Supreme Court reaffirmed the same principle -- that it is objectively reasonable for individuals to expect to be free from sustained electronic monitoring of their public movements. See Augustine, 467 Mass. at 247–248. See also Carpenter, 138 S. Ct. at 2219.
Both courts reached these conclusions, in part, by distinguishing the relatively primitive beeper used in Knotts from the encyclopedic, effortless collection of CSLI and GPS data. See Augustine, 467 Mass. at 252 (“There is no real question that the government, without securing a warrant, may use electronic devices to monitor an individual‘s movements in public to the extent that the same result could be achieved through visual surveillance” [emphasis added]). See also Carpenter, 138 S. Ct. at 2215, 2218 (distinguishing “rudimentary” beeper used in Knotts to track single “discrete automotive journey” from use of CSLI, which achieves “near perfect surveillance, as if [the government] had attached an ankle monitor to the phone‘s user“).
Essentially, these cases articulate an aggregation principle for the technological surveillance of public conduct, sometimes referred to as the mosaic theory.10 When collected for a long enough period, “the cumulative nature of the information collected implicates a privacy interest on the part of the individual who is the target of the tracking.” Augustine, 467 Mass. at 253. See Jones, 565 U.S. at 416 (Sotomayor, J., concurring) (“when considering the existence of a reasonable societal expectation of privacy in
This aggregation principle or mosaic theory is wholly consistent with the statement in Katz, 389 U.S. at 351, that “[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection,” because the whole of one‘s movements, even if they are all individually public, are not knowingly exposed in the aggregate. As the United States Court of Appeals for the District of Columbia Circuit explained:
“the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”
A detailed account of a person‘s movements, drawn from electronic surveillance, encroaches upon a person‘s reasonable expectation of privacy because the whole reveals far more than the sum of the parts. “The difference is not one of degree but of kind . . . .” Id. at 562. “Prolonged surveillance reveals types of information not revealed by short-term surveillance,”
such as what a person does repeatedly, what he does not do, and what he does ensemble.” Id. Aggregated location data reveals “a highly detailed profile, not simply of where we go, but by easy inference,
iii. Constitutional implications of ALPRs.
With this theoretical foundation in mind, we turn to the central question of this case: whether the use of ALPRs by the police invades an objective, reasonable expectation of privacy. Or, more specifically, we must determine whether ALPRs produce a detailed enough picture of an individual‘s movements so as to infringe upon a reasonable expectation that the Commonwealth will not electronically monitor that person‘s comings and goings in public over a sustained period of time. See, e.g., Augustine, 467 Mass. at 247-248.
A. ALPRs under the mosaic theory.
In determining whether a reasonable expectation of privacy has been invaded, it is not the amount of data that the Commonwealth seeks to admit in evidence that counts, but, rather, the amount of data that the government collects or to which it gains access. See Commonwealth v. Estabrook, 472 Mass. 852, 858-859 (2015), citing Augustine, 467 Mass. at 254 (“in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person‘s CSLI is requested, not the time covered by the person‘s CSLI that the Commonwealth ultimately seeks to use as evidence at trial“). In Rousseau, 465 Mass. at 376, 382, we weighed the thirty-one days of GPS monitoring in the constitutional analysis, not the data that placed the vehicle near the suspected arsons on four specific dates. Similarly, in Carpenter, 138 S. Ct. at 2212-2213, the relevant period was the 127 days of CSLI data, not the data that placed the defendant near the robberies on four particular days.11 For this reason, our constitutional analysis ideally would consider every ALPR record of a defendant‘s vehicle that had
With enough cameras in enough locations, the historic location data from an ALPR system in Massachusetts would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes. The one-year retention period indicated in the EOPSS retention policy certainly is long enough to warrant constitutional protection. See Augustine, 467 Mass. at 254-255 (“tracking of the defendant‘s movements [by CSLI] in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant‘s expectation of privacy safeguarded by
Of course, the constitutional question is not merely an exercise in counting cameras; the analysis should focus, ultimately, on the extent to which a substantial picture of the defendant‘s public movements are revealed by the surveillance. For that purpose, where the ALPRs are placed matters too. ALPRs near constitutionally sensitive locations -- the home, a place of worship, etc. -- reveal more of an individual‘s life and associations than does an ALPR trained on an interstate highway. A network of ALPRs that surveils every residential side street paints a much more nuanced and invasive picture of a driver‘s life and public movements than one limited to major highways that open into innumerable possible destinations. For while no ALPR network is likely to be as detailed in its surveillance as GPS or CSLI data, one well may be able to make many of the same inferences from
Similarly, with cameras in enough locations, the hot list feature could implicate constitutional search protections by invading a reasonable expectation of privacy in one‘s real-time location. If deployed widely enough, ALPRs could tell police someone‘s precise, real-time location virtually any time the person decided to drive, thus making ALPRs the vehicular equivalent of a cellular telephone “ping.” See Almonor, 482 Mass. at 55 (Lenk, J., concurring) (“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. . . . To know that the government can find you, anywhere, at any time is -- in a word -- ‘creepy‘“). Of course, no matter how widely ALPRs are deployed, the exigency exception to the warrant requirement would apply to this hot list feature.13
Finally, like carrying a cellular telephone, driving is an indispensable part of modern life, one we cannot and do not expect residents to forgo in order to avoid government surveillance.
B. Number and location of ALPR data collection points in this
On this record, however, we need not, and indeed cannot, determine how pervasive a system of ALPRs would have to be to invade a reasonable expectation of privacy. While a testifying expert alluded to cameras “all over the [S]tate,” the record is silent as to how many of these cameras currently exist,14 where they are located, and how many of them detected the defendant.
Therefore, for this case, we consider the constitutional import of four cameras placed at two fixed locations on the ends of the Bourne and Sagamore bridges. ”
“There is no real question that the government, without securing a warrant, may use electronic devices to monitor an individual‘s movements in public to the extent that the same result could be achieved through visual surveillance.” Augustine, 467 Mass. at 252. It is an entirely ordinary experience to drive past a police officer in a cruiser observing traffic on the side of the road, and, of course, an officer may read or write down a publicly displayed license plate number. See Starr, 55 Mass. App. Ct. at 594. In this way, a single license plate reader is similar to traditional surveillance techniques. On the other hand, four factors distinguish ALPRs from an officer parked on the side of the road: (1) the policy of retaining the information for, at a minimum, one year; (2) the ability to record the license plate number of nearly every passing vehicle; (3) the continuous, twenty-four hour nature of the surveillance; and (4) the fact that the recorded license plate number is linked to the location of the observation. These are enhancements of what reasonably might be expected from the police.
The limited number of cameras and their specific placements, however, also are relevant in determining whether they reveal a mosaic of location information that is sufficiently detailed to invade a reasonable expectation of privacy. The cameras in question here gave police only the ability to determine whether the defendant was passing onto or off of the Cape at a particular moment, and when he had done so previously. This limited surveillance
While we cannot say precisely how detailed a picture of the defendant‘s movements must be revealed to invoke constitutional protections, it is not that produced by four cameras at fixed locations on the ends of two bridges.15 Therefore, we conclude that the limited use of ALPRs in this case does not constitute a search within the meaning of either
b. Defendant‘s other arguments.
We turn to the defendant‘s remaining claims. He argues that various evidence should be suppressed because (1) the Barnstable police did not show a written policy governing ALPR use, and the State police ALPR policy, adopted by the Barnstable police, is deficient and constitutionally inadequate; (2) the use of ALPR systems violates
The defendant argues that, because the Barnstable police did not introduce a written policy governing police use of ALPR data, and because the State police policy, Order TRF-11, is inadequately specific, the evidence against him must be suppressed. In support of this argument, the defendant relies on cases where we have required police to introduce evidence of a written policy to justify warrantless inventory searches or to demonstrate “that sobriety checkpoints be governed by standard, neutral guidelines that clearly forbid the arbitrary selection of vehicles to be initially stopped.” Commonwealth v. Murphy, 454 Mass. 318, 323 (2009) (sobriety checkpoint guidelines). See Commonwealth v. Bishop, 402 Mass. 449, 451 (1988) (”
This argument is unavailing. These cases involve the reasonableness of a search or seizure conducted under specific exceptions to the warrant requirement, not the threshold constitutional question whether a search or seizure has occurred at all. Detailed policy guidelines for police use of ALPRs well may be a “good idea,” Riley, 573 U.S. at 398, but their existence or lack thereof does not determine the constitutional question.
ii. Statutory claims.
The defendant argues further that the government‘s use of ALPR data is subject to the SCA and the ECPA. Neither statute, however, is applicable.18 The SCA prevents the government from compelling a “provider of electronic communication service” to produce such communications without following certain procedures. See
iii. Target standing.
The defendant also argues that this court should adopt the doctrine of “target standing,” which would give him standing to contest the search of his codefendant because he was one of that search‘s secondary targets. See Commonwealth v. Santiago, 470 Mass. 574, 577 (2015). It would allow him “to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial.” Id. The United States Supreme Court has rejected the doctrine with respect to the
iv. Miranda waiver.
The defendant argues that his waiver of his Miranda rights and the statements he made to police were involuntary because the officers repeatedly told him that he was not under arrest. The tests to determine whether a Miranda waiver was voluntary and for the voluntariness of a statement are “essentially the same” (citation omitted). Commonwealth v. Newson, 471 Mass. 222, 229 (2015).
With respect to the Miranda issue, the motion judge found the following. First, the defendant was under arrest at the time he was handcuffed during the roadside stop. He properly and carefully was advised of his Miranda rights immediately after being handcuffed, and again at the police station. He understood these rights both times.
We agree with the motion judge that questions asked at the roadside and at the police station constituted custodial interrogation. Considering the totality of the circumstances, the only factor
“[D]eception or trickery does not necessarily compel suppression of the confession or admission but, instead, is one factor to be considered in a totality of the circumstances analysis.” Newson, 471 Mass. at 230, quoting Commonwealth v. Tremblay, 460 Mass. 199, 208 (2011). In Newson, supra, this court held that even if an officer engaged in deceit or trickery by telling a defendant that he was not under arrest, such deceit would not be enough to demonstrate involuntariness. Here, the facts are essentially the same. Therefore, we do not disturb the judge‘s finding that the Commonwealth proved beyond a reasonable doubt that the statements and the Miranda waiver were voluntary.
3. Conclusion.
While we recognize that the widespread use of ALPRs in the Commonwealth could implicate constitutional protections against unreasonable searches, the limited use of the technology in this case does not.
Order denying motions to suppress affirmed.
GANTS, C.J. (concurring). I agree with the court that, if the State police had obtained historical locational data regarding the defendant‘s vehicle from enough automatic license plate readers (ALRPs) in enough locations, the mosaic that such collection would create of the defendant‘s movements “would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes.” Ante at . I also agree with the court that the locational information regarding the defendant that was obtained from four ALPRs at two fixed locations on two bridges falls short of creating the type of mosaic that would constitute a search within the meaning of either
It is important to recognize that this is the first case we have encountered where the State police are collecting and storing a vast amount of locational data, from which they potentially might conduct a targeted search of locational information for a particular person or vehicle without probable cause and without court authorization. Cellular telephone companies possess even more locational data that can track the movements of a cellular telephone (and thus the person in possession of it), but law enforcement may obtain that information from these companies only through a search warrant or court order.
Under our case law, a search warrant based on probable cause is required for law enforcement to obtain more than six hours of historical telephone call cellular site location information (CSLI) regarding a particular individual. See Commonwealth v. Estabrook, 472 Mass. 852, 854 (2015); Commonwealth v. Augustine, 467 Mass. 230, 255 (2014), S.C., 470 Mass. 837 (2015). A court order under
But what if the historical locational information regarding a targeted individual that can be obtained from data in the possession of a law enforcement agency could yield a mosaic of location points that is less than that created by CSLI but greater than the four location points established in this record? Pragmatically, I submit we have two alternatives. Our first option is to determine based on the facts of a particular case when the locational mosaic of a targeted individual‘s movements crosses the threshold of the reasonable expectation of privacy. A mosaic above that threshold would require a search warrant based on probable cause, but a mosaic below that threshold would not require any court authorization.
This second alternative would mean that law enforcement agencies would need to obtain court authorization more often before retrieving targeted individual historical locational information in their possession because queries that would not require a showing of probable cause might still require a showing of reasonable suspicion. But the benefit to law enforcement would be that, if the police sought a court order based on reasonable suspicion and a reviewing court determined that the query sought locational data that could yield a mosaic of movement requiring a showing of probable cause, the search would not be found unconstitutional (and the information collected would not be suppressed) if the reviewing court found that the affidavit supported a finding of probable cause. In contrast, where no court order was obtained and a reviewing court determined that probable cause or reasonable suspicion was required to support the retrieval of historical locational information, the data retrieved from the query would have to be suppressed even if law enforcement could have met the applicable standard.
Regardless of which alternative the court ultimately chooses, a reviewing court will need to know the extent of the mosaic that was possible from the retrieval of historical locational information regarding the movements of a targeted individual, because only then can the court accurately determine whether the threshold had been crossed. Therefore, unless the law enforcement