Vermont Supreme Court Announces ‘Pinging’ Cellphone to Obtain Real-Time CSLI Constitutes a Search Requiring a Warrant or Recognized Exception
by Richard Resch
The Supreme Court of Vermont held that individuals have a reasonable expectation of privacy under the state Constitution in their real-time cell site location information (“CSLI”), and obtaining this information by police requires a warrant, unless a recognized exception to the warrant requirement applies.
On December 28, 2018, police sought Chavis Murphy as a suspect in a fatal shooting, but they were unable to locate him. The lead investigator served a subpoena request on Murphy’s cellphone service provider, AT&T, asking for an “emergency exigent ping” of Murphy’s cellphone in order to locate him. In support of the subpoena request, the investigator advised AT&T’s law enforcement compliance center that there was an active shooter situation and that the shooter might be unreasonable or “in some sort of mental state” and possessed a firearm. AT&T complied with the request but advised that the cellphone was turned off, so there was no information about its location.
The following day, AT&T notified police that Murphy’s cellphone had been turned back on and that a “ping” of his phone placed him in West Springfield, Massachusetts, within a few feet of a specific motel. Vermont police obtained an arrest warrant and advised local Massachusetts police that a homicide suspect was in the area. A second ping placed Murphy at a restaurant, and police spotted someone fitting his description at that location. Then a third ping placed him at a motel, and police placed him under arrest. Upon doing so, he asked, “How did you find me? Who was it? I know who.”
Murphy moved to suppress all physical evidence collected, statements made to police, and the fact he was found in Massachusetts, arguing that police violated both the Vermont and U.S. Constitutions by obtaining his real-time CSLI without a warrant. The State opposed the motion, arguing that a warrant was not necessary because Murphy had no reasonable expectation of privacy in his CSLI data. But even if he did, the search was justified by the exigent circumstances’ exception to the warrant requirement, according to the State. The Court sided with the State on both its arguments and denied Murphy’s motion.
A jury found Murphy guilty of second-degree murder, and he appealed several issues, including the denial of his motion to suppress.
The Court began its analysis by noting that neither it nor the U.S. Supreme Court has answered the question of whether a person has a legitimate privacy interest in their real-time CSLI. See Carpenter v. United States, 138 S. Ct. 2206 (2018) (Court ruled that individuals have legitimate expectation of privacy under the Fourth Amendment in their historical CSLI and that obtaining such information by law enforcement constitutes a search, but the Court instructed that its decision in the case is narrow and that it expresses no opinion on the treatment of real-time CSLI.). As a result, the Court stated that it would decide the current case under Chapter I, Article 11 of the state Constitution, noting that it is “similar in purpose and effect to the Fourth Amendment” but “provides freestanding protection that in many circumstances exceeds the protection available from its federal counterpart.” State v. Martin, 955 A.2d 1144 (Vt. 2008).
The Court announced that “individuals have a reasonable expectation of privacy in their real-time CSLI and that the acquisition of this information by police is a search that requires a warrant unless an exception to the warrant requirement applies.” In reaching its decision, the Court leaned heavily on the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Almonor, 120 N.E. 3d 1183 (Mass. 2019), in which that court held that pinging a cellphone to obtain real-time CSLI information is a search under the Massachusetts Constitution. [See July 2019 CLN]
The Almonor Court based its conclusion on the “intrusive nature” of obtaining real-time CSLI, which requires police to “actively induce [the target phone] to divulge its identifying information for their own investigatory purposes.” Such an intrusion by police “implicates reasonable expectations of privacy,” the Almonor Court concluded. It reasoned that real-time CSLI of a person’s cellphone is tantamount to obtaining the real-time location of the person, and by simply having a cellphone – which has “become indispensable to participation in modern society,” Carpenter – society is not prepared to accept that police should be allowed to “transform a cell phone into a real-time tracking device without judicial oversight.” Almonor (quoting Carpenter). Thus, the Almonor Court held that pinging a person’s cellphone to obtain real-time CSLI is a search under the state Constitution.
The Court stated that it found the reasoning in Almonor and a few other state courts that have addressed this issue persuasive and reached the same conclusion under Article 11 of the Vermont Constitution. See Commonwealth v. Reed, 647 S.W.3d 237 (Ky. 2022); State v. Muhammad, 451 P.3d 1060 (Wash. 2019); Tracey v. State, 152 So. 3d 504 (Fla. 2014).
The Court then turned to the issue of whether the warrantless search was justified by the exigent circumstances’ exception to the warrant requirement, which is an objective test that examines the totality of the circumstances. United States v. Caraballo, 963 F. Supp. 2d 341 (D. Vt. 2013); see also State v. Petruccelli, 743 A.2d 1062 (Vt. 1999). In determining whether there were exigent circumstances, courts look to the nonexclusive factors listed in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc), as follows: (1) a grave offense is at issue, especially one involving violence, (2) the suspect is believed to be armed and poses a danger to the community, (3) there is a clear showing of probable cause to believe the suspect committed the crime involved, and (4) there is a likelihood the suspect will escape if not quickly apprehended.
Applying the Dorman factors to the present case, the crime involved was a fatal shooting; police reasonably believed Murphy was armed since he was being sought for shooting someone; a judge found probable cause that Murphy was the shooter and issued a warrant for his arrest prior to the police obtaining any CSLI data from AT&T; and since Murphy’s location was unknown and he was on the run, there was a reasonable likelihood that he would have escaped if not quickly apprehended. Thus, the Court concluded that exigent circumstances justified the warrantless ping of Murphy’s cellphone.
Accordingly, the Court affirmed the trial court’s denial of the motion to suppress. See: State v. Murphy, 2023 Vt. LEXIS 8 (2023).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login