Supreme Judicial Court of Massachusetts, Plymouth
Heard: September 5, 2018.
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.
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
Matthew Spurlock, Committee for Public Counsel Services
(Randall K. Power also present) for the defendant.
Jennifer Lynch & Andrew Crocker, of California, Chauncey
B. Wood, Christopher T. Holding, Matthew R. Segal, &
Jessie J. Rossman, for Electronic Frontier Foundation &
others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
police quickly identified the defendant as the person
suspected of murdering the victim with a sawed-off shotgun.
In an attempt to pinpoint the location of the fleeing
suspect, the police caused the defendant's cell phone to
be "pinged." They did so without a warrant. The
legality of that ping in these circumstances is the central
legal issue in this murder case.
police had learned the defendant's cell phone number
within approximately four hours of the shooting. After
receiving this information, the police contacted the
defendant's cellular service provider (service provider)
to request the real-time location of his cell phone pursuant
to a "mandatory information for exigent circumstances
requests" form. The service provider eventually
"pinged" the defendant's cell phone, an action
that caused the defendant's cell phone to transmit its
real-time global positioning system (GPS) coordinates to the
service provider. Once received, the cell phone's GPS
coordinates were relayed to police, who used the coordinates,
in combination with information from another witness, to
identify a single address in Brockton as the defendant's
likely location. Upon arriving at the Brockton address,
police entered the home with the consent of the homeowner and
located the defendant in an upstairs bedroom. After the
defendant was arrested, police obtained and executed a search
warrant for the bedroom and seized a sawed-off shotgun and a
bulletproof vest as evidence of the defendant's
involvement in the victim's shooting death.
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
appeal raises an issue of first impression in Massachusetts:
whether police action causing an individual's cell phone
to reveal its real-time location constitutes a search in the
constitutional sense under either the Fourth Amendment or
art. 14. For the reasons set forth below, we conclude that,
under art. 14, it does. We also conclude, however, that in
the circumstances of this case, the warrantless search was
supported by probable cause and was reasonable under the
exigent circumstances exception to the search warrant
requirement. We therefore reverse the motion judge's
allowance of the defendant's motion to
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).
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.
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.
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.
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.
P.M., the police had conducted numerous witness interviews
and performed multiple identifications of the defendant using
photographic arrays. They learned that the shotgun was
"cut down in the front." On the basis of the
information they received, a police officer sent a
"mandatory information for exigent circumstance
requests" form to the defendant's service provider.
The officer provided the defendant's cell phone number
and requested several pieces of information, including the
"precise location . . . (GPS location)" of the
defendant's cell phone. 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.
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. Having already learned that the
defendant's former girlfriend lived at a particular
address on that street, police decided to investigate the
former girlfriend's address.
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.
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 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.
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.
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 without a warrant was
nonetheless reasonable under the exigent circumstances
exception to the search warrant requirement.
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.
defendant therefore bears the burden of establishing that the
Commonwealth intruded on a subjective and objective
expectation of privacy in his cell phone's real-time
location information. See Commonwealth v. Miller,
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. Our analysis is
therefore limited to whether this expectation of privacy was
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 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
this court nor the Supreme Court, however, has addressed the
issue we confront today: whether police action that causes an
individual's cell phone to transmit its real-time
location intrudes on any reasonable expectations of
privacy.See Carpenter, 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
location information] in the present case"). For the
reasons set forth below, we conclude that under art. 14, it
analyzing society's reasonable expectations of privacy,
this court considers "various factors," including
the "nature of the intrusion."' Commonwealth
v. One 1985 Ford Thunderbird 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. 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]).
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 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.Jones v. United
States, 168 A.3d 703, 713 (D.C. 2017).
confidently conclude that such police action implicates
reasonable expectations of privacy. Indeed, society
reasonably expects that the police will not be able to
secretly manipulate our personal cell phones for any purpose,
let alone for the purpose of transmitting our personal
location data. 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, 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.
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
fact that cell phones are now "almost a feature of human
anatomy" effectively means that individuals are
constantly, and often unknowingly, carrying a hidden tracking
device that can be activated by law enforcement at any
moment, subject only to the constraints of whether law
enforcement knows the phone number and whether the cell phone
is turned on (quotation and citation omitted).
Carpenter, 138 S.Ct. at 2218. See Matter of an
Application, 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 . . .
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).
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 -- 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"
[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).
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. The
Commonwealth therefore conducted a search in the
constitutional sense under art. 14.
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.
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.
Reasonableness of search.
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]).
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) .
defendant does not contest that there was probable cause to
believe that he had committed the crime. Our analysis
is therefore limited to whether police were confronted with
an exigency ...