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Massachusetts Supreme Judicial Court Announces in Case of First Impression That Police Causing Cellphone to Reveal Its Real Time Location Is a Search Under State Constitution

by Douglas Ankney

In a case of first impression, the Supreme Judicial Court of Massachusetts held that when police take action to cause a cellphone to reveal its real-time location, it is a search under Article 14 of the Massachusetts Declaration of Rights.

Two eyewitnesses identified Jerome Almonor as the person who murdered a man in Brockton. The witnesses stated Almonor shot the man with a sawed-off shotgun, and he still had the shotgun when he left the scene. Police also interviewed a witness who stated Almonor had a former girlfriend who lived on a particular street in Brockton. 

A witness also gave Almonor’s cellphone number to police. Based on this information, an officer sent a request to Almonor’s service provider, requesting the precise GPS location of the phone.

When no response to the request was received, the officer phoned the service provider. The service provider then “pinged” the cellphone (meaning the service provider sent a signal to the phone that caused the phone to transmit its GPS coordinates back to the service provider). The phone’s GPS coordinates were then relayed to the officer. The coordinates gave the general location of the street in Brockton where Almonor’s former girlfriend lived. Police obtained her specific address, and when they arrived at the house, her father consented to a search. Almonor was found in an upstairs bedroom along with the shotgun. He filed a motion to suppress the shotgun and his subsequent statements on the grounds that they were the fruit of the search of the real-time location of his phone. The superior court granted his motion. 

The Commonwealth took an interlocutory appeal to the Appeals Court whereupon the Supreme Judicial Court then allowed Almonor’s petition for direct review.

The Court opined that the protections of the Fourth Amendment and of Article 14 apply whenever the Commonwealth’s conduct constitutes a search. Commonwealth v. Magri, 968 N.E.2d 876 (Mass. 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, 4 N.E.3d 846 (Mass. 2014). An individual has a reasonable expectation of privacy if: (1) the individual has manifested a subjective expectation of privacy in the object of the search, and (2) if society is willing to recognize that expectation as reasonable. Id. 

Since Almonor purchased the cellphone to communicate with others and not to share his whereabouts with police, he manifested a subjective interest of privacy in the object, satisfying the first factor. As to the second factor, society reasonably expects that the police will not be able to secretly manipulate personal cellphones for any purpose, much less for the purpose of transmitting personal location data. State v. Andrews, 227 Md. App. 392 (2016). Cellphones are an indispensable part of daily life — almost permanent attachments to their users’ bodies — so that tracking the phones is to surveil the users. Augustine. Thus, police taking action causing the phone to “ping” is a search that requires a warrant based on probable cause pursuant to Article 14, the Court ruled.

However, in the instant case, the Court found that exigent circumstances allowed an exception to the warrant requirement. Under the exigent circumstances exception, the Commonwealth must prove there was probable cause, but exigent circumstances existed that made it impracticable for police to obtain a warrant. Commonwealth v. Molina, 786 N.E.2d 1191 (Mass. 2003). Exigent circumstances exist when police have reason to believe: (1) the suspect may flee, (2) evidence may be destroyed, or (3) the safety of others may be endangered. Commonwealth v. Figueroa, 9 N.E.3d 812 (Mass. 2014). Almonor had fled the murder scene knowing witnesses could identify him. He had in his possession an illegal sawed-off shotgun. These facts satisfied all three factors for a finding of exigent circumstances, according to the Court. 

The Court concluded that the officer’s actions constituted a search under Article 14 but reversed the superior court’s granting of the suppression motion because the exigent circumstances provided an exception to the warrant requirement. See: Commonwealth v. Almonor, 120 N.E.3d 1183 (Mass. 2019). 

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Commonwealth v. Almonor




 

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