Commonwealth v. Almonor , 482 Mass. 35 ( 2019 )

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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.
2
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."1 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
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., 849 F. Supp. 2d 526, 534 (D. Md. 2011).
3
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
4
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,
472 Mass. 429, 436 (2015), citing Commonwealth v. Isaiah I., 448
Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
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.
5
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.
6
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
7
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
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
8
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.
9
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, 480 Mass. 645, 652 (2018). In
assessing the propriety of the motion judge's decision, we must
make the threshold determination whether the ping of the
defendant's cell phone constituted a search in the
constitutional sense under either the Fourth Amendment or art.
14. If it did, we must determine whether conducting the search
10
without a warrant was nonetheless reasonable under the exigent
circumstances exception to the search warrant requirement.6
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, 462 Mass. 360, 366 (2012). A search in
the constitutional sense occurs "when the government's conduct
intrudes on a person's reasonable expectation of privacy."
Commonwealth v. Augustine, 467 Mass. 230, 241 (2014), S.C., 470
Mass. 837 (2015). See Katz v. United States, 389 U.S. 347, 361
(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
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,
477 Mass. 588, 594 (2017) (declining to address merits of
standing argument because issue had not been "meaningfully
addressed" at motion to suppress hearing).
11
information. See Commonwealth v. Miller, 475 Mass. 212, 219
(2016). There does not appear to be a dispute as to whether the
defendant manifested a subjective expectation of privacy in this
information.7 Our analysis is therefore limited to whether this
expectation of privacy was objectively reasonable.
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,
467 Mass. at 247-248. See Carpenter v. United States, 138 S.
Ct. 2206, 2214 (2018). In response, courts across the country,
including our own, increasingly have been tasked with addressing
whether these enhanced surveillance capabilities implicate any
objectively reasonable expectations of privacy. In so doing,
both this court and the United States Supreme Court have been
careful to guard against the "power of technology to shrink the
realm of guaranteed privacy" by emphasizing that privacy rights
"cannot be left at the mercy of advancing technology but rather
must be preserved and protected as new technologies are adopted
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., 470 Mass. 837 (2015)
(concluding subjective prong met where defendant averred that he
acquired cell phone for personal use and never affirmatively
permitted police or other law enforcement officials to access
cell site location information [CSLI] records).
12
and applied by law enforcement" (quotation and citation
omitted). Commonwealth v. Johnson, 481 Mass. 710, 716 (2019).
See Kyllo v. United States, 533 U.S. 27, 34, 35 (2001);
Commonwealth v. Connolly, 454 Mass. 808, 836 (2009) (Gants, J.,
concurring) (noting need to "establish a constitutional
jurisprudence that can adapt to changes in the technology of
real-time monitoring").
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.8
See Carpenter, 138 S. Ct. at 2200 ("Our decision today is a
narrow one. We do not express a view on matters not before us
[such as] real-time [location information]"); Augustine, 467
Mass. at 240 n.24 ("we do not need to consider [real-time
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, 884 F.3d 998, 1013 (10th Cir. 2018), cert. denied, 139
S. Ct. 638 (same); United States v. Caraballo, 831 F.3d 95, 102
(2d Cir. 2016), cert. denied, 137 S. Ct. 654 (2017) (same). The
United States Court of Appeals for the Sixth Circuit, however,
has held that no search occurs when the government acquires a
cell phone's real-time GPS location while the cell phone is in
public. United States v. Riley, 858 F.3d 1012, 1018 (6th Cir.
2017), cert. denied, 138 S. Ct. 2705 (2018) (concluding that
ping did not constitute search because "tracking [did] not
reveal movements within the home" [emphasis in original]).
13
location information] in the present case"). For the reasons
set forth below, we conclude that under art. 14, it does.9
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
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).
10Other 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, 420 Mass. 95, 106 n.9
(1995); Commonwealth v. One 1985 Ford Thunderbird Auto., 416
Mass. 603, 607 (1993). We have also noted that "[t]he inquiry
is one highly dependent on the particular facts and
circumstances of the case." One 1985 Ford Thunderbird Auto.,
supra.
11In 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, 615 F.3d 544, 566 (D.C. Cir. 2010),
14
Auto., 416 Mass. 603, 607 (1993). This analysis is also
"informed by historical understandings of what was deemed an
unreasonable search and seizure when [the Constitutions were]
adopted" (quotations omitted). Carpenter, 138 S. Ct. at 2214.
See Jenkins v. Chief Justice of the Dist. Court Dep't, 416 Mass.
aff'd in part sub nom. United States v. Jones, 565 U.S. 400
(2012) (noting that "means used to uncover private information"
plays role "in determining whether a police action frustrates a
person's reasonable expectation of privacy"). Indeed, as the
United States Court of Appeals for the District of Columbia has
noted, police may "without a warrant record one's conversations
by planting an undercover agent in one's midst but may not do
the same by wiretapping one's phone. . . . [I]n the former case
one's reasonable expectation of control over one's personal
information would not be defeated; in the latter it would be"
(citation omitted). Id. See Kyllo v. United States, 533 U.S.
27, 35 n.2 (2001). Accordingly, a determination on whether
governmental conduct implicates reasonable privacy expectations
requires us to analyze the nature of the governmental conduct at
issue, not just the information that it reveals.
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, 486 U.S. 35, 41 (1988) ("police cannot
reasonably be expected to avert their eyes from . . . activity
that could have been observed by any member of the public");
Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person
knowingly exposes to the public, even in his own home or office,
is not a subject of Fourth Amendment protection"); Commonwealth
v. D'Onofrio, 396 Mass. 711, 717 (1986). What information
police learn from the ping therefore cannot be the sole focus of
the analysis. Rather, the nature of the intrusion -- in this
case, the ping -- must also be analyzed to determine whether it
implicates any reasonable expectations of privacy.
15
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., 849 F. Supp. 2d 526, 534 (D. Md. 2011)
(Matter of an Application) (describing that ping of cell phone
"send[s] a signal directing the built-in satellite receiver in a
particular [cell phone] to calculate its location and transmit
the location data back to the service provider"). This action
and transmission is initiated and effectively controlled by the
police, and is done without any express or implied authorization
or other involvement by the individual cell phone user. See id.
(noting that cell phone ping is "undetectable to the [cell
phone] user"). Without police direction, such data would also
not otherwise be collected and retained by the service provider.
See id. (noting that service providers "typically do not
16
maintain records of the GPS coordinates of [cell phones]
operating on their network"). Accordingly, in pinging a cell
phone, the police "actively induce[] [it] to divulge its
identifying information" for their own investigatory purposes.12
Jones v. United States, 168 A.3d 703, 713 (D.C. 2017).
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
12We 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, 138 S. Ct. 2206, 2211 (2018) (noting that
"[t]here are 396 million cell phone service accounts in the
United States"). Beyond the benefits that the inclusion of a
GPS receiver offers to the user, such as allowing the user to
use mapping applications, it also enables service providers to
comply with Federal regulations requiring them to transmit the
real-time location of any cell phone that dials 911 to
"facilitate rescue and emergency assistance." 47 C.F.R.
§ 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, 885 F.3d 315, 315 &
n.1 (5th Cir. 2018) (per curiam).
13We 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, 227 Md. App. 350, 379 (2016). Nor do we doubt
that as technology continues to advance, the government will
develop new ways to compel an individual's cell phone to reveal
its location. The privacy concerns raised by pinging a cell
phone apply equally to any circumstance where the cell phone's
location information is generated as a direct result of the
government's manipulation of an individual's cell phone.
17
our personal cell phones for any purpose, let alone for the
purpose of transmitting our personal location data.14 Cf.
Connolly, 454 Mass. at 835 (Gants, J., concurring) (describing
privacy concerns under art. 14 where police installed GPS
tracking device on vehicle without defendant's knowledge); State
v. Andrews, 227 Md. App. 350, 392 (2016) ("no one expects that
their [cell] phone information is being sent directly to the
police department" [citation omitted]); State v. Earls, 214 N.J.
564, 587 (2013) ("no one buys a cell phone to share detailed
information . . . with the police"). A person obtains a cell
phone for a variety of reasons, including for "the purpose of
making and receiving telephone calls," to communicate with
others electronically, or perhaps to conduct business. See
Augustine, 467 Mass. at 264 (Gants, J., dissenting). See also
Riley v. California, 573 U.S. 373, 394-395 (2014) (describing
cell phone use); Earls, supra at 587-588. More particularly,
14Justice 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.
18
individuals obtain cell phones because carrying one has become
"indispensable to participation in modern society." Carpenter,
138 S. Ct. at 2220. The decision to obtain a cell phone,
however, 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. Nor does it
operate to reduce one's expectation of privacy against such
action.
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
19
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, 849 F. Supp. 2d at 540
("Location data from a cell phone . . . enables law enforcement
to locate a person entirely divorced from all visual
observation. Indeed, this is ostensibly the very characteristic
that makes obtaining location data a desirable method of
locating the subject . . ."). This extraordinarily powerful
surveillance tool finds no analog in the traditional
surveillance methods of law enforcement and therefore grants
police unfettered access "to a category of information otherwise
unknowable." Carpenter, supra. Indeed, prior to the advent of
cell phones, law enforcement officials were generally required,
by necessity, to patrol streets, stake out homes, interview
individuals, or knock on doors to locate persons of interest.
See United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J.,
concurring) (recognizing that, "[i]n the pre-computer age," law
enforcement surveillance tools were limited and thus "the
greatest protections of privacy were neither constitutional nor
statutory, but practical"); id. 415-416 (Sotomayor, J.,
concurring) ("because GPS monitoring is cheap . . . and . . .
20
proceeds surreptitiously, it evades the ordinary checks that
constrain abusive law enforcement practices: limited police
resources and community hostility" [quotation and citation
omitted]). For this reason, society's expectation has been that
law enforcement could not secretly and instantly identify a
person's real-time physical location at will. See id. at 429
(Alito, J., concurring) (discussing societal expectations with
respect to GPS tracking); Connolly, 454 Mass. at 835 (Gants, J.,
concurring) (noting that "[i]n the context of GPS," individuals
reasonably expect that they will not be "contemporaneously
monitored except through physical surveillance"); Jones, 168
A.3d at 712-713 (noting that society does not reasonably expect
police to be able to instantly locate individuals).
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, 168 A.3d at 714-715
(noting law enforcement's "powerful person-locating capability
that private actors do not have" invades reasonable expectations
of privacy); Earls, 214 N.J. at 586 ("Using a cell phone to
determine the location of its owner . . . involves a degree of
intrusion that a reasonable person would not anticipate").
Although our society may have reasonably come to expect that the
voluntary use of cell phones -- such as when making a phone call
21
-- discloses cell phones' location information to service
providers, see Augustine, 467 Mass. at 263 (Gants, J.,
dissenting), and that records of such calls may be maintained,
our society would certainly not expect that the police could, or
would, transform a cell phone into a real-time tracking device
without judicial oversight. Cf. Commonwealth v. Rousseau, 465
Mass. 372, 382 (2013) ("a person may reasonably expect not to be
subjected to extended GPS electronic surveillance by the
government"); Andrews, 227 Md. App. at 394–395 ("cell phone
users have an objectively reasonable expectation that their cell
phones will not be used as real-time tracking devices through
the direct and active interference of law enforcement"); Earls,
supra at 586. The power of such unauthorized surveillance is
far "too permeating" and too susceptible to being exercised
arbitrarily by law enforcement -- precisely the type of
governmental conduct against which the framers sought to guard.
See Commonwealth v. Blood, 400 Mass. 61, 71 (1987) (noting that
art. 14 was adopted to protect against "search policies . . .
which allowed officers of the crown to search, at their will,
wherever they suspected [evidence of criminal activity] to be"
[emphasis in original; citation omitted]). See also Carpenter,
138 S. Ct. at 2214 ("The basic purpose of [the Fourth] Amendment
. . . is to safeguard the privacy and security of individuals
against arbitrary invasions by governmental officials"
22
[quotations and citation omitted]). It would also require a
cell phone user "to turn off the cell phone just to assure
privacy from governmental intrusion." Tracey v. State, 152 So.
3d 504, 523 (Fla. 2014).
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, 533 U.S. at 34, 35.
Accordingly, we conclude that by causing the defendant's cell
phone to reveal its real-time location, the Commonwealth
intruded on the defendant's reasonable expectation of privacy in
the real-time location of his cell phone.15 The Commonwealth
15Justice 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
23
therefore conducted a search in the constitutional sense under
art. 14.16
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, 467 Mass. at 255,
and again in Commonwealth v. Estabrook, 472 Mass. 852, 858 n.12
(2015), that the Commonwealth ordinarily may not access
registration CSLI without a warrant.
16We also note that the state of technology at the time the
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, 468 U.S. 705, 707, 715 (1984) (search
occurred when government elicited transmission from electronic
tracking device that was brought into private residence because
device "reveal[ed] a critical fact about the interior of the
premises that the Government [was] extremely interested in
knowing and that it could not have otherwise obtained without a
warrant"). See Kyllo, 533 U.S. at 38; Augustine, 467 Mass. at
252.
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, 533 U.S. at 34,
it follows that if the governmental conduct does not actually
reveal anything about the interior of a home, it is not a
search. Indeed, where, as here, a cell phone ping does not
reveal the phone to be directly inside of a home, it cannot be
24
The Commonwealth nonetheless contends that under our
decision in Commonwealth v. Estabrook, 472 Mass. 852, 858 & n.12
(2015), where we held that police may obtain up to six hours of
historical "telephone call" cell site location information
(CSLI) without obtaining a warrant (six-hour rule), the single
ping of the defendant's cell phone was "too brief to implicate
[a] person's reasonable privacy interest" and thus does not
constitute a search in the constitutional sense (citation
omitted). This argument, however, ignores both the clear
language of Estabrook and the fundamental differences between
accessing historical "telephone call" CSLI and police action
that causes a cell phone to identify its real-time location.
As we stated in Estabrook, 472 Mass. at 858 n.12, albeit
without elaboration, the six-hour rule applies only to
historical "telephone call" CSLI. Historical "telephone call"
CSLI is collected and stored by the service provider in the
ordinary course of business when the cell phone user voluntarily
makes or receives a telephone call. In this context, the six-
hour rule is consistent with reasonable societal expectations of
privacy. In contrast, there is nothing voluntary or expected
about police pinging a cell phone, and the six-hour rule
therefore does not apply.
said that the ping revealed a "critical fact about the interior
of the premises." Karo, 468 U.S. at 715.
25
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, 463 Mass. 205, 213 (2012), cert. denied, 568 U.S.
1129 (2013). One such exception is where police can establish
probable cause and exigent circumstances. Commonwealth v.
Alexis, 481 Mass. 91, 96, 97 (2018). "Under the exigent
circumstances exception to the warrant requirement, 'there must
be a showing that it was impracticable for the police to obtain
a warrant, and the standards as to exigency are strict.'" Id.
at 97, quoting Commonwealth v. Forde, 367 Mass. 798, 800 (1975).
The Commonwealth bears the burden to demonstrate both probable
cause and exigent circumstances. Commonwealth v. Molina, 439
Mass. 206, 209 (2003).
26
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, 382 Mass. 448, 456 (1981). Accordingly, we do not
examine facts in isolation; rather, we take into account the
totality of the circumstances. See Forde, 367 Mass. at 801.
Although a number of factors have been considered in evaluating
the existence of exigent circumstances and the reasonableness of
police response,18 we have tended to focus on three factors.
17Among 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.
18These 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, 367 Mass. 798, 807 (1975).
27
Commonwealth v. Figueroa, 468 Mass. 204, 213 (2014). See
Commonwealth v. Tyree, 455 Mass. 676, 687, 687 n.24 (2010).
Specifically, we consider whether police had "reasonable grounds
to believe that obtaining a warrant would be impracticable under
the circumstances because the delay in doing so would pose a
significant risk that [(1)] the suspect may flee, [(2)] evidence
may be destroyed, or [(3)] the safety of the police or others
may be endangered." Figueroa, supra. Although each of these
risks need not be present for there to be exigent circumstances,
each was present here.19 See id.
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, 468 Mass. at 213–214 (risk
19As 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,
468 Mass. 204, 213 (2014), quoting Commonwealth v. Tyree, 455
Mass. 676, 684 (2010) (rejecting proposition that "exigent
circumstances always justify a warrantless entry and search in
the aftermath of a crime involving a firearm").
28
of flight present where murder suspect shot victim without
wearing mask and subsequently could attempt to evade police).
Contrast Alexis, 481 Mass. at 100-101 (no exigent circumstances
where "crime occurred the previous day, and there was no
evidence that the defendant even knew or had reason to know that
he was a suspect before the police arrived at his home"); Tyree,
455 Mass. at 687, 687 n.24 (2010) (no risk of flight where
defendant committed robbery while masked, at night, and no
witnesses would recognize him). The suspect was already on the
run after fleeing the scene, and there was a risk that, with the
passage of time, he would take further precautions to effectuate
his escape if police did not locate him.
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, 468 Mass. at 214 (likelihood of being recognized
by eyewitness created risk that suspect would eliminate forensic
29
evidence). Contrast Commonwealth v. Huffman, 385 Mass. 122, 126
(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, 455 Mass. at 678, 689 & n.28 (no
ongoing danger where robbery was complete and suspect was not
"on the run"). Rather, the officers had reasonable grounds to
believe that if the suspect shot one person, when unprovoked and
seemingly undeterred by fear of discovery or reprisal, other
individuals were in danger as well. See Figueroa, 468 Mass. at
30
214 (fear that "hot-headed gunman" who still possessed weapon
could take nearby children as hostages); Commonwealth v.
Donoghue, 23 Mass. App. Ct. 103, 108 (1986), cert. denied, 481
U.S. 1022 (1987) ("unusually brutal" nature of assault suggested
suspect was dangerous and that there might be other victims).
Indeed, law enforcement officials' concern about the danger
posed by the shotgun was reflected in the "Exigent Circumstance
Requests" form sent by facsimile to the service provider, which
stated that that there was an "[o]utstanding murder suspect,
shot and killed victim with shotgun. Suspect still has
shotgun."
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, 138 S. Ct. at 2223 (noting that
certain "exigencies" may permit police to access cell phone
location information without warrant, such as need to "pursue a
fleeing suspect, protect individuals from imminent harm, or
prevent the imminent destruction of evidence").
31
Faced with this exigency, the police acted entirely
reasonably in pinging the defendant's cell phone to determine
its location.20 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.
20The 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, 367 Mass. at 807 (noting that
whether physical entry into home by police is reasonable is
informed by whether entry is made peaceably and during daytime).
The ping revealed only the location information of the
defendant's cell phone at a specific time, and did not otherwise
excessively intrude on the defendant's privacy interests in the
way other types of searches would, such as a forced physical
entry of a dwelling. See id. Cf. Caraballo, 831 F.3d at 106
(ping of defendant's cell phone justified by exigent
circumstances based, in part, on fact that "pinging was
'strictly circumscribed' to finding [the defendant] as quickly
as possible. . . . [T]he officers' use of this information was
no more expansive than necessary to address the exigency that
they perceived existed"). See Carpenter, 138 S. Ct. at 2223
(noting that accessing cell phone location information without
warrant reasonable under Fourth Amendment where police are
confronted with "exigencies" such as need to "pursue a fleeing
suspect, protect individuals who are threatened with imminent
harm, or prevent imminent destruction of evidence").
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,
2
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, 400 Mass. 61, 69 (1987). The right to be let alone
promotes a "sense of security" in a free society "essential to
liberty of thought, speech, and association." See id. at 73.
By codifying this right in art. 14 and, later, the Fourth
Amendment to the United States Constitution, our ancestors
sought to "secure the privacies of life against arbitrary
power," and "place obstacles in the way of a too permeating
police surveillance" (quotations and citations omitted).
Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018).
"[T]he relevant question is not whether criminals must bear the
risk of warrantless surveillance, but whether it should be
imposed on all members of society" (citation omitted). Blood,
supra.
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, 138 S. Ct. at 2213-2214. Our task is to "assure
[the] preservation of that degree of privacy against government
that existed when the Fourth Amendment [and art. 14 were]
3
adopted." Id. at 2214, quoting Kyllo v. United States, 533 U.S.
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, 138 S. Ct. at 2217 (time-stamped location
information from individual's cellular telephone "provides an
intimate window into a person's life"). See also Riley v.
California, 573 U.S. 373, 403 (2014) (location records and other
information on cellular telephones "hold for many Americans the
privacies of life" [quotation and citation omitted]). We thus
have recognized the need to protect individuals' reasonable
expectations of privacy in their location information:
"[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, 465 Mass. 372, 382 (2013).
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, 573 U.S. 395 ("it is the
person who is not carrying a [cellular telephone] . . . who is
4
the exception. According to one poll, nearly three-quarters of
smart phone users report being within five feet of their phones
most of the time . . ."). See also United States v. Ellis, 270
F. Supp. 3d 1134, 1145 (N.D. Cal. 2017) (cellular telephones act
as close proxy to one's actual physical location). "We cannot
accept the proposition that [cellular telephone] users volunteer
to convey their location information simply by choosing to
activate and use their [cellular telephones] and to carry the
devices on their person." United States v. Graham, 796 F.3d
332, 355 (4th Cir. 2015), rehearing en banc, 824 F.3d 421 (4th
Cir. 2016), cert. denied, 138 S. Ct. 2700 (2018).
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.1 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
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, 138 S. Ct. 2206, 2219
(2018). Depending upon the technology involved, the level of
precision is sometimes so exact as to identify "individual
floors and rooms within buildings" (citation omitted). See In
re Application of the U.S.A. for Historical Cell Site Data, 724
F.3d 600, 629 (5th Cir. 2013).
5
is being watched. "Awareness that the Government may be
watching chills associational and expressive freedoms." See
United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J.,
concurring). To know that the government can find you,
anywhere, at any time is -- in a word -- "creepy." United
States v. Pineda-Moreno, 617 F.3d 1120, 1126 (9th Cir. 2010)
(Kozinski, J., dissenting), judgment vacated, 565 U.S. 1189
(2012). "It is a power that places the liberty of every
[person] in the hands of every petty officer" (citation
omitted), Blood, 400 Mass. at 71, and risks "alter[ing] the
relationship between citizen and government in a way that is
inimical to democratic society" (citation omitted), Jones, supra
at 415–417.
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, 227 Md. App. 350, 400 (2016) (defendant had reasonable
expectation of privacy in real-time cellular telephone location
6
information).2 This court, by contrast, puts undue emphasis on
government "manipulation." Ante at note 13.
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, 454 Mass. 808, 819 (2009). Under both the Federal and
Massachusetts Constitutions, the government conducts a search
when it "intrudes on a person's reasonable expectation of
privacy." Commonwealth v. Augustine, 467 Mass. 230, 241 (2014),
S.C., 470 Mass. 837 (2015), citing Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J., concurring). See Carpenter,
138 S. Ct. at 2219. The government conducts a seizure when it
interferes with an individual's property rights. See Connolly,
supra at 819, 823. See also United States v. Karo, 468 U.S.
705, 712 (1984). "The distinction is not merely academic." See
Connolly, supra at 833 (Gants, J., concurring) (noting that
attachment of GPS device to vehicle constituted search due to
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, 454 Md. 581,
617 (2017).
7
police's interference with owner's reasonable expectation of
privacy, and not seizure).
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.3 In determining that the ping in this case
constituted a search, the court puts substantial emphasis on the
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, 615 F.3d 544, 566 (D.C. Cir. 2010),
aff'd in part sub nom. United States v. Jones, 565 U.S. 400
(2012), upon which the court relies, the reason a wiretap
implicates the Fourth Amendment, while an undercover agent might
not, is premised on "the individual's control of information
concerning his or her person" (citation omitted). When an
individual knowingly is in the presence of another, he or she
has a reduced expectation of control over the secrecy of his or
her words. Similarly, taking the court's example of an
individual "standing on a public sidewalk," see ante at note 11,
we look, again, to the expectation of the individual with
respect to the information in question, in that case, his or her
location. The question is not whether the individual expects
the police to use one method or another, but rather whether the
individual can expect his or her location to remain private if
he or she so chooses.
It is because of the right to be let alone that the real-
time identification of an individual's location implicates
art. 14. After all, a ping is "only one way to gather data in
real time regarding the whereabouts of an individual." See
Commonwealth v. Connolly, 454 Mass. 808, 835 (2009) (Gants, J.,
concurring) (discussing police use of globing positioning system
[GPS] tracking devices). Put differently, art. 14 protects us
from pings not because of the right to keep the government from
interfering with our cellular telephones, but because of the
right to keep the government from finding us.
8
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, 454 Mass. at 822-823, we
confronted for the first time the issue of GPS monitoring by
police. There, police had installed a GPS tracking device on a
defendant's vehicle. Id. at 811. By manipulating the
defendant's property (the battery in his vehicle), the
government was able to monitor his location. Id. at 812.
We determined that the installation of the GPS tracking
device constituted a seizure, because it required "entry by the
police" into the defendant's vehicle and "operation of the
vehicle's electrical system." Connolly, 454 Mass. at 822. We
further determined that police monitoring of the device, "[i]n
addition, and apart from the installation of the GPS device,"
independently constituted a second seizure:
9
"[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., 416 Mass. 603, 607 (1993), to justify its evaluation of
10
the "nature of the intrusion" to determine whether the
government violated a reasonable expectation of privacy. In its
subsequent jurisprudence, however, this court, like the Federal
courts, has moved beyond this narrow approach. See Augustine,
467 Mass. at 246 (focusing on defendant's reasonable expectation
of privacy in cell site location information [CSLI] itself);
Commonwealth. v. Williams, 453 Mass. 203, 208 (2009) (focusing
on factors not involving government's intrusion4 to determine
whether defendant had reasonable expectation of privacy). See
also Kyllo, 533 U.S. at 34 (declining to examine nature of
intrusion in determining whether search had occurred). Our
evaluation of an individual's reasonable expectation of privacy
takes place "even in the absence of a property interest." See
Rousseau, 465 Mass. at 382 ("our property-based analysis in
Connolly" does not represent "the outer limits of the
protections afforded by art. 14").
Numerous searches involve no government manipulation of a
person's property. Individuals maintain a reasonable
expectation of privacy, for example, where police wiretap a
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, 453 Mass. 203, 208 (2009).
11
public telephone booth, see Katz, 389 U.S. at 348, 351; monitor
a GPS "beeper" in a private residence, see Karo, 468 U.S. at
707, 715; or penetrate the walls of a home with thermal sensors,
see Kyllo, 533 U.S. at 29-30, 34, all without manipulating an
individual's property.
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, 467 Mass. at 250 (police obtained historical CSLI
from cellular service provider, without manipulating device).
See also Carpenter, 138 S. Ct. at 2217. A search occurs, for
purposes of art. 14, whenever the police obtain an individual's
real-time location via his or her cellular telephone, regardless
of whether they do so by "manipulating" the device.
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
12
telephone's current location.5 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, 472 Mass. 852, 858 n.12 (2015)
(no exception for historical registration CSLI); Augustine, 467
Mass. at 255 (reasonable expectation of privacy in historical
CSLI). It is in obtaining an individual's real-time location
information that the government interferes with his or her
reasonable expectation of privacy -- and thereby conducts a
search. Such a search, however accomplished, exceeds the level
of intrusion which society is willing to accept from its
government.
3. Sanctity of the home. The court departs from the
approach of other States to have confronted this issue in its
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, 467 Mass. 230, 238 n.18 (2014), S.C., 470 Mass.
837 (2015). This is called registration CSLI.
Practically speaking, the distinction between a "ping" and
"registration CSLI" is often invisible to the requestor. If a
requested ping fails, cellular service providers will "fall
back" on the most recent location data, generally created within
the preceding ten seconds, and provide that to law enforcement
instead. See Matter of Wireless E911 Location Accuracy
Requirements, 29 FCC Rcd. 2374, 2434 (2014). The record is
silent as to whether the location data provided to police in
this case was produced through a successful ping or a resort to
registration CSLI instead.
13
silence concerning the risks of intruding upon private spaces,
including the home. See, e.g., Tracey v. State, 152 So. 3d 504,
524-526 (Fla. 2014) (applying Fourth Amendment analysis); State
v. Earls, 214 N.J. 564, 568-569 (2013) (applying State
constitution). See also Andrews, 227 Md. App. at 393 (applying
Fourth Amendment). I would rely, in part, on this reasoning,
because it underscores significant risks inherent in the
government pinging of cellular telephones.
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.6 See Kyllo,
533 U.S. at 29-30, 34 (reasonable expectation of privacy where
police used thermal imaging to detect heat through walls of
house); Karo, 468 U.S. at 714-715 (GPS monitoring within home
presumptively unreasonable); Augustine, 467 Mass. at 252-253
(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
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").
14
jurisprudence concerning the Fourth Amendment . . . and
art. 14 . . . ." Commonwealth v. Tatum, 466 Mass. 45, 56, cert.
denied, 571 U.S. 1113 (2013).
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, 467 Mass. at 252, quoting Commonwealth v. Porter P.,
456 Mass. 254, 260 (2010). Any intrusion into the home, "by
even a fraction of an inch," is presumptively unreasonable
(citation omitted). See Kyllo, 533 U.S. at 37. Where
technology permits police to learn "any information regarding
the interior of a home that could not otherwise have been
obtained" without entering the home, constitutional protections
are triggered. See id. at 34. See also Karo, 468 U.S. at 716
(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.
15
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, 458 Mass. 383, 390 (2010), it is not the
only one.7 Where "the Government surreptitiously employs an
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
16
electronic device to obtain information that it could not have
obtained by observation from outside," a warrant is required.
Karo, 468 U.S. at 715 (revealing location of canister). See
Kyllo, 533 U.S. at 34 (revealing internal temperature of house);
Blood, 400 Mass. at 70 (revealing contents of verbal
conversations). While monitoring via an electronic device may
be "less intrusive than a full-scale search," it nonetheless
"does reveal a critical fact about the interior of the premises
that the Government is extremely interested in knowing and that
it could not have otherwise obtained without a warrant," and
requires a warrant. See Karo, supra.
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, 316 U.S. 129, 139 (1942) (Murphy, J.,
dissenting). Several decades after Justice Murphy penned his
dissent, the United States Supreme Court adopted his position in
Katz v. United States, 389 U.S. 347, 353 (1967). "It is true
that the absence of such penetration was at one time thought to
foreclose further Fourth Amendment inquiry . . . [but] we have
since departed from [that] narrow view." See id. 352-353
(extending Fourth Amendment protections to "the recording of
oral statements overheard without any technical trespass
under . . . local property law" [quotation and citation
omitted]).
17
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, 533 U.S. at 34. See also Andrews, 227 Md. App. at 359,
378, 391 (warrant required because signal "did reveal at least
one critical detail about the residence; i.e., that its contents
included [the defendant's cellular telephone], and therefore,
most likely [the defendant] himself").
The court mistakenly looks to police knowledge of whether
their search intruded upon a home.8 The court states that, had
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
18
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.9 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, 849 F. Supp. 2d at 540-541. "[C]ell phones . . .
blur the historical distinction between public and private areas
Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018). Instead,
he found that there was "no question that the [coordinates]
placed [the defendant] inside a private residence." This is
hardly "clear error." See id. at 655 n.7; ante at note 5. In
any event, the matter is something of a distraction; the
question is not whether the police understood that they had
obtained location data from within a house, but whether they in
fact had done so. See note 9, infra. They had.
9 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, 458 Mass. 383, 391 (2010) ("we do not
consider [the officer's] intent in entering [the home] in
determining whether the entry constituted a search in the
constitutional sense").
19
because [they] emit signals from both places." Earls, 214 N.J.
at 586. See United States v. Caraballo, 963 F. Supp. 2d 341,
354 (D. Vt. 2013), aff'd, 831 F.3d 95 (2d Cir. 2016), cert.
denied, 137 S. Ct. 654 (2017) (defendant's presence on public
highway during ping did not remove expectation of privacy,
because location information would have been transmitted
regardless of whether defendant was in his home or in public).
As the Florida Supreme Court has observed, the "warrant
requirement cannot protect citizens' privacy if a court
determines whether a warrant is required only after the search
has occurred, and the incursion into a citizen's private affairs
has already taken place." Tracey, 152 So. 3d at 519, quoting
Commonwealth vs. Pitt, Mass. Super. Ct., No. 2010-0061 (Norfolk
County Feb. 23, 2012). Where the warrant analysis is performed
"retrospectively based on the fact that the search resulted in
locating the [cellular telephone] inside a home," the law "would
provide neither guidance nor deterrence" to the officers. See
Andrews, 227 Md. App. at 394.
"Accordingly, there is value in adopting a bright-line
rule . . . ." Estabrook, 472 Mass. at 858 n.11. See Kyllo, 533
U.S. at 38–39 (finding it impractical to bar thermal imaging of
only "intimate details" because police do not "know in advance"
what they will find). "[P]olice, trial judges, prosecutors, and
defense counsel are entitled to as clear a rule as possible"
20
regarding whether a real-time ping may be requested without a
warrant (citation omitted). Estabrook, supra. By requiring a
warrant before conducting a ping, in all cases, we avoid these
warrantless intrusions into the home.
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, 468 Mass. 204, 213 (2014), quoting
Commonwealth v. Tyree, 455 Mass. 676, 684 (2010).10 Here,
10The 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,
21
however, the suspect was still at large, in possession of a
sawed-off shotgun; he had demonstrated his willingness to use
that weapon in front of witnesses; he had targeted an apparent
stranger; he did not appear to have been provoked; and he had
committed the offense in broad daylight. The Commonwealth
introduced evidence that the officers were concerned about the
ongoing danger to the safety of others posed by the defendant's
continued retention of the sawed-off shotgun, and noted this
concern on the form that they sent by facsimile to the cellular
service provider. Given this, I agree that the order allowing
the defendant's motion to suppress must be reversed.
5. Conclusion. Today, Massachusetts joins other States,
as well as the majority of Federal courts to have addressed this
issue,11 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").
11A 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, 92 A.L.R. Fed. 2d 1, §§ 4–8 (2015) (collecting
cases). See also In re Applications of the U.S.A. for Orders
Pursuant to Title 18, U.S. Code Section 2703(d), 509 F. Supp. 2d
76, 78 & n.4 (D. Mass. 2007). Cf. United States v. Ellis, 270
F. Supp. 3d 1134, 1145, 1149 (N.D. Cal. 2017) (requiring
"warrant supported by a showing of probable cause" in order to
use cell site simulator "to locate a [cellular telephone]").
22
first obtain a warrant supported by probable cause. The
detection of an individual's real-time location, by means of a
cellular telephone, violates the individual's reasonable
expectation of privacy. It is unnecessary for the court to rely
upon the fact that the government manipulated a cellular
telephone in this case in order to reach this conclusion.
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, 401 U.S. 745, 756 (1971)
(Douglas, J., dissenting). There must always be judicial
oversight interposed between the government and the individual
it seeks to observe, lest we allow the guarantees of privacy to
slip away -- not because we no longer needed them, but because
we left them behind in our rush toward progress.
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
2
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, 569 U.S. 141, 154
(2013). In 2013, the United States Supreme Court identified
thirty-six States that permit remote warrant applications in at
least some circumstances. Id. at 154 n.4.1 Since the McNeely
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,
3
opinion was issued, at least six more States have enacted
statutes or procedural rules permitting remote search or arrest
warrant applications.2 Moreover, the Federal Rules of Criminal
Procedure permit Federal magistrate judges to consider sworn
information that is provided in support of a search warrant or
an arrest warrant application "by telephone or other reliable
electronic means," and to transmit to the applicant the approved
warrant by those same means. See Fed. R. Crim. P. 4.1; Fed. R.
Crim. P. 41(d)(3).
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).
2 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.
4
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, 455 Mass. 676, 690-691 (2010) ("In evaluating whether
exigent circumstances existed, we also have placed particular
emphasis on whether police consider[ed] how long it would take
to obtain a warrant before acting" [quotation and citation
omitted]); Commonwealth v. Forde, 367 Mass. 798, 801-803 (1975).
Where time is of the essence, as it often is when law
enforcement seeks to ping a cell phone to determine a suspect's
location, the more time that is needed to obtain a warrant, the
greater the need for law enforcement to invoke the exigency
exception. The length of time required to obtain a warrant
depends on the length of three time periods: (1) the time
needed to write an affidavit and particularize an application
and warrant, (2) the time needed to locate a judge or magistrate
5
(or reasonably exhaust efforts to locate him or her), and (3)
the time needed to appear before the magistrate or judge and
obtain his or her signature. The second and third time periods
could be considerably shortened, especially when the court house
is closed, if Massachusetts were to join the Federal government
and at least forty-two States in allowing warrants to be
approved by reliable electronic means. See McNeely, 569 U.S. at
172-173 (Roberts, C.J., concurring in part and dissenting in
part) (noting that in Utah, under State electronic search
warrant procedure, "[j]udges have been known to issue warrants
in as little as five minutes").
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
6
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.