Commonwealth v. Almonor

          Heard: September 5, 2018.

         Indictments found and returned in the Superior Court Department on September 21, 2012. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.

          Jessica L. Kenny, Assistant District Attorney (Nathaniel Kennedy, Assistant District Attorney, also present) for the Commonwealth.

          Matthew Spurlock, Committee for Public Counsel Services (Randall K. Power also present) for the defendant.

          Jennifer Lynch & Andrew Crocker, of California, Chauncey B. Wood, Christopher T. Holding, Matthew R. Segal, & Jessie J. Rossman, for Electronic Frontier Foundation & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          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 combination with information from another witness, to identify a single address in Brockton as the defendant's likely location. Upon arriving at the Brockton address, police entered the home with the consent of the homeowner and located the defendant in an upstairs bedroom. After the defendant was arrested, police obtained and executed a search warrant for the bedroom and seized a sawed-off shotgun and a bulletproof vest as evidence of the defendant's involvement in the victim's shooting death.

         The defendant moved to suppress the evidence seized by police, arguing that it was the fruit of an unlawful search under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion judge agreed, and the defendant's suppression motion was allowed. A single justice of this court allowed the Commonwealth's application to pursue an interlocutory appeal and reported the appeal to the Appeals Court. We subsequently allowed the defendant's petition for direct appellate review.

         This appeal raises an issue of first impression in Massachusetts: whether police action causing an individual's cell phone to reveal its real-time location constitutes a search in the constitutional sense under either the Fourth Amendment or art. 14. For the reasons set forth below, we conclude that, under art. 14, it does. We also conclude, however, that in the circumstances of this case, the warrantless search was supported by probable cause and was reasonable under the exigent circumstances exception to the search warrant requirement. We therefore reverse the motion judge's allowance of the defendant's motion to suppress.^[2]'^[3]

         Background.

         We summarize the facts as found by the motion judge, supplemented by uncontested facts in the record implicitly credited by him. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

         At approximately 5:19 P.M. on August 10, 2012, a Brockton police officer responded to a reported shooting. When he arrived at the scene, the officer saw a black car in the driveway. He found the victim inside the car, unconscious, with a gunshot wound to the chest. The victim was transported to a hospital, where he was pronounced dead approximately one hour later. Police immediately began investigating the shooting.

         An eyewitness to the shooting was interviewed by police at approximately 8:15 P.M. The eyewitness explained that he and the victim had been sitting in the black car parked in the driveway when a second car pulled up behind them. Two men got out of the second car and entered the house, returning to the car a few minutes later. One of the men, later identified as the defendant, "engaged in an unfriendly exchange" with the victim. Following this exchange, the defendant pulled out a shotgun wrapped in tape and told the eyewitness and the victim to empty their pockets. After some arguing, the defendant shot the victim in the chest. The defendant and the other man with whom he had arrived then entered their vehicle and left the scene. The eyewitness stated that he had a clear view of the shooter, who was only approximately ten feet away at the time of the shooting. The eyewitness later identified the defendant from a photographic array.

         During the course of this initial investigation, two officers also located and interviewed a witness who revealed that the defendant had a former girlfriend. Police later learned that the defendant's former girlfriend lived at an address on a particular street in Brockton.

         By 9:10 P.M., two officers interviewed the man who had been in the car with the defendant. He admitted that he had been present at the shooting and knew the defendant. At some point before the conclusion of the interview, he provided police with the defendant's cell phone number. He also informed the officers that he had dropped the defendant off at an intersection not far from the scene of the shooting and that the defendant still had the shotgun.

         By 11 P.M., the police had conducted numerous witness interviews and performed multiple identifications of the defendant using photographic arrays. They learned that the shotgun was "cut down in the front." On the basis of the information they received, a police officer sent a "mandatory information for exigent circumstance requests" form to the defendant's service provider. The officer provided the defendant's cell phone number and requested several pieces of information, including the "precise location . . . (GPS location)" of the defendant's cell phone.^[4] As grounds for the request, the officer wrote, "outstanding murder suspect, shot and killed victim with shotgun. Suspect still has shotgun." The service provider did not respond to the written request.

         At approximately 12 A.M., police still had not heard from the service provider. The officer called a telephone number that the service provider maintained for law enforcement use and requested the real-time latitude and longitude coordinates of the defendant's cell phone. The service provider "pinged" the defendant's cell phone, thereby causing the cell phone to reveal its real-time GPS coordinates at the time of the ping. Once its location was revealed, the service provider relayed the cell phone's GPS coordinates to the police. The officer entered the coordinates in a common computer mapping program, which identified the cell phone as being in the "general location" of a particular street in Brockton.^[5] Having already learned that the defendant's former girlfriend lived at a particular address on that street, police decided to investigate the former girlfriend's address.

         Less than one hour later, multiple police officers approached the defendant's former girlfriend's house, announced their presence, and knocked on the door. The homeowner, the former girlfriend's father, opened the door. He indicated that he knew the defendant but did not believe that the defendant was at the house. He said that his daughter should be upstairs in her room, and he gave police permission to go upstairs and speak with her.

         When officers reached the second floor, they eventually encountered a locked door. They knocked several times and ordered anyone inside to come out. The officers heard a male voice inside the bedroom say, "Shit." The defendant eventually opened the door, wearing nothing but boxer shorts. He was ordered to the ground and arrested. Officers thereafter conducted a protective sweep of the bedroom and observed a 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 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 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 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 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 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]).

         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 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 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, 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 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).

         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 -- 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).

         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 therefore conducted a search in the constitutional sense under art. 14.^[16]

         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.

         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) .

         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 ...