The Supreme Judicial Court of Massachusetts issued two rulings last week addressing law enforcement access to and use of cell phone location data. In the first, the court found that pinging a cell phone’s real-time location constitutes a search in the constitutional sense. In the second, the court held that warrantless location tracking was an unlawful search and that information obtained as a result of that tracking was “fruit of the poisonous tree” that the defendant could suppress. The rulings acknowledge the challenges inherent in adapting age-old legal concepts to new technology, but also show that some invasions of privacy may be permissible depending upon the circumstances. While the court’s decisions addressed Article 14 of the Massachusetts Declaration of Rights rather than the Fourth Amendment to the U.S. Constitution, the analytical decisions may offer guidance as to how other courts may rule on similar issues in the absence of on-point precedent from the U.S. Supreme Court.
Commonwealth v. Almonor
On April 23, 2019, the court ruled that law enforcement compelling a suspect’s wireless service provider to ping the suspect’s cell phone, revealing its GPS coordinates, was a constitutional search for purposes of Article 14 of the Massachusetts Declaration of Rights, which states, in relevant part, that “[e]very subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” However, after deciding that issue of first impression, the court found the warrantless search was adequately supported by probable cause and was thus reasonable under the exigent circumstances exception to the warrant requirement.
In Almonor, the defendant was suspected of murder. After the police learned Almonor’s phone number, they requested real-time location of his cell phone from his wireless service provider. The provider pinged the phone, and police used the resulting GPS coordinates to find the defendant and subsequently seized a sawed-off shotgun and bulletproof vest from his hiding place pursuant to a search warrant. Almonor successfully moved to suppress the evidence as fruit of an unlawful search, and the government appealed.
In reversing the grant of the suppression motion, the court focused on whether Almonor had an objectively reasonable expectation of privacy in his cell phone’s real-time location information. First, the court stated that the “intrusive” nature of pinging “raises distinct privacy concerns.” The court noted those concerns were furthered by the fact that pinging is performed without any express or implied authorization by the user, but is initiated by the police and results in the collection of location data that would not otherwise be collected or retained. The court also stated that despite the ubiquity of the devices, “society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose.” Likewise, simply by owning a cell phone, a person “does not in any way authorize police to independently, and without judicial oversight, invade or manipulate the device to compel it to reveal information about its user” or reduce one’s expectation of privacy.
As a result, the court found that permitting the government, immediately and secretly, to identify any person’s location at any time contravenes reasonable societal expectations. In a footnote the court also recognized that pinging is not the only way to reveal a cell phone’s location and stated that the “privacy concerns raised by pinging a cell phone equally apply to any circumstance where the cell phone’s location information is generated as a direct result of the government’s manipulation” of a cell phone.
But the court did find the warrantless pinging was a permissible constitutional search because the police were confronted with exigent circumstances that made it impracticable to obtain a warrant. The court found the police had reasonable grounds that Almonor might flee, destroy evidence, and pose an immediate risk to the safety of police and others given his possession of a weapon, so the warrantless search was reasonable. In so finding, the court demonstrated the exigent circumstances exception’s important role in balancing individual liberties with potential harm to others in society. And while the search was ultimately permissible in Almonor, the court’s finding regarding objectively reasonable expectations of privacy in cell phone location data is likely to provide a constitutional basis for suppression arguments in future cases.
Commonwealth v. Fredericq
On April 24, 2019, the court held, in accordance with existing precedent, that warrantless tracking of a suspect’s cell site location information (CSLI) constituted an illegal search under Article 14. The court further concluded that drugs and money obtained during a consented-to search of the suspect’s residence were “fruit of the poisonous tree” as a result of the illegal CSLI tracking and evidence of those findings could be suppressed.
In Fredericq, police obtained CSLI from a suspect’s wireless service provider and used the data to track him, believing that he was traveling to Florida to buy a large amount of drugs. The tracking led police to the home of Fredericq, a passenger in the suspect’s car. The police told Fredericq that they were investigating a murder, and he consented to a search of his bedroom. Police found $2,200 in cash in the room, and a police dog found cocaine in an attic crawl space. The defendant successfully moved to suppress the evidence, but the appellate court reversed the decision and the Supreme Judicial Court agreed to review the case.
On appeal, the government conceded that the CSLI tracking was unlawful because it was not authorized by a warrant. However, the government argued that, among other things, evidence seized from the crawl space should not be suppressed because the defendant lacked a reasonable expectation of privacy in that area. The court rejected this argument, stating that Article 14’s protection extends to all evidence “sufficiently intimate” with an unreasonable search.
However, suppression would not be appropriate if there was sufficient attenuation between the illegal search and the evidence seized. The government argued this requirement was satisfied because although the CSLI tracking led to the residence, Fredericq consented to the search that produced the cash and cocaine. The court agreed that in certain circumstances voluntary consent could break the chain from an illegal search, but found that it had not occurred there. The court reasoned that consent cannot create adequate attenuation where that consent “is tainted by the illegality because it was obtained through exploitation of the fruits of the illegal search.”
Such was the case with Fredericq – the court noted that the defendant’s consent was obtained immediately after police revealed that they knew he had just gone to Florida, which was information obtained as a result of the illegal search. Thus, the court reasoned, it was possible that Fredericq gave his consent because he thought refusal would simply cause the police to secure a search warrant, rendering his refusal futile. Interestingly, while Fredericq may have been unaware of the CSLI tracking, information used from that tracking led the court to find suppression appropriate – a cautionary tale as to overreliance on electronically collected data.
The Massachusetts Supreme Judicial Court’s rulings in these cases are consistent with a societal expectation that merely using a cell phone does not constitute consent to government tracking of one’s location. But that does not mean that the government is precluded from obtaining location information. Just as the courts are tasked with crafting jurisprudence that “can adapt to changes in the technology of real-time monitoring,” law enforcement will need to find ways to permissibly obtain the wealth of information that cell phones contain. A concurring opinion in Almonor suggested that the legislature could assist this task by drafting legislation to permit telephonic or electronic requests for search warrants, rather than requiring police to appear in front of a judge. As the judiciary and law enforcement grapple with the scope of state and federal constitutional privacy rights, the Almonor and Fredericq decisions may serve as persuasive guideposts.