Commonwealth v Norman: A Sea Change in Pre-Trial Electronic Surveillance

by Jamie Michael Charles

Legal Analysis

In recent years, the Supreme Judicial Court (the “SJC”) has dramatically changed the legal landscape governing the supervision upon release of people charged or convicted of criminal offenses by expanding privacy rights under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights. Most recently, in Commonwealth v. Norman, 484 Mass. 330 (2020), the SJC limited a trial court’s ability to impose a requirement that a defendant wear a global positioning system (“GPS”) device as a condition of pre-trial release.

The rubric by which trial courts must assess the propriety of GPS monitoring as a condition of release going forward, and the peripheral ramifications of the SJC’s decision for the various parties to the criminal justice system, have broad implications for client and Commonwealth advocacy. For instance, the decision appears to mark a retreat from prior rulings tacitly approving a broader, safety-based rationale for pre-trial release conditions, and may vitiate other release conditions historically imposed pursuant to the bail statute. In the absence of legislative action, justices of the trial courts must now strike a new balance in their efforts to ensure a defendant’s appearance and protect the various parties to a criminal case. Additionally, both prosecutors and police must revisit their use of surveillance technology, particularly in the absence of legal process, to avoid constitutional violations carrying severe consequences for prosecutions that emanate from such surveillance.

Legal Background

In 2006, the Massachusetts Legislature amended the bail statute, M.G.L. c. 276, § 58, to permit the imposition of various “restrictions on personal associations or conduct” as conditions of release in addition to (or in lieu of) cash bail.[i] In the decade that followed, law enforcement officials, probation officers, and members of the bar operated under the assumption that, where appropriate, the trial court could require a defendant or probationer to wear a GPS ankle bracelet as a condition of release without implicating that individual’s constitutional rights.

This understanding began to unravel in Commonwealth v. Johnson, 481 Mass. 710 (2019), and Commonwealth v. Feliz, 481 Mass. 689 (2019), where the SJC concluded that GPS monitoring of post-conviction probationers amounts to a constitutional search under the Fourth Amendment and Article 14. These decisions were followed in short order by Norman, which extended their holdings to defendants subjected to pre-trial release on conditions. Norman revisited the underlying purposes for which trial courts can impose pre-trial conditions pursuant to the bail statute. In doing so, the SJC left open for question the legality of pre-trial conditions that were routinely imposed on defendants across the Commonwealth before Norman. Furthermore, viewed in combination with Johnson, as well as subsequent decisions in Commonwealth v. McCarthy, 484 Mass. 493 (2020) and Commonwealth v. Mora, 485 Mass. 360 (2020), Norman reflects the SJC’s broader concern with law enforcement’s warrantless use of ever-advancing surveillance technology.

The Norman Decision

In Norman, Medford police were investigating an armed home invasion and armed robbery. They requested a targeted search from the Massachusetts Probation Service’s Electronic Monitoring (“ELMO”) Program, which oversees compliance with GPS release conditions, to determine whether any individuals under GPS supervision were present at the time and location of the robbery. That search yielded a positive result for the defendant, who was subject to GPS monitoring as a condition of release imposed in conjunction with an unrelated drug crime. The ELMO data both placed the defendant at the scene of the robbery and led authorities to a residence where the defendant was shortly before and after the robbery. A search warrant executed at that residence yielded additional inculpatory information. A Superior Court judge allowed the defendant’s motion to suppress, agreeing that the initial procurement of ELMO data absent a warrant violated the defendant’s Fourth Amendment and Article 14 rights. The Commonwealth appealed.

Relying primarily on Massachusetts and United States Supreme Court precedent recognizing an expectation of privacy in the whole of an individual’s physical movements, the SJC found that the initial imposition of GPS monitoring as a condition of pretrial release constituted a search under Article 14.[ii] It held that, going forward, the Commonwealth must demonstrate on the particular facts of each individual case that warrantless monitoring is “reasonable” to justify the attachment of a GPS ankle bracelet. Prior to imposing GPS monitoring, a judge must balance the intrusiveness of the monitoring against any legitimate governmental interests. In light of the “severe intrusion” occasioned by around-the-clock GPS monitoring[iii] – which the justices analogized to a modern-day scarlet letter – the SJC cautioned that even monitoring that serves legitimate government interests could be deemed unreasonable.

The SJC also defined narrowly the legitimate interests served by conditions of release imposed pursuant to the bail statute. It concluded that the only permissible goals of pretrial conditions of release in the defendant’s case were “ensuring the defendant’s return to court and his presence at trial, and safeguarding the integrity of the judicial process by protecting witnesses from intimidation and other forms of influence.”[iv] In doing so, the SJC rejected the Commonwealth’s argument that, unlike cash bail, conditions of release imposed under section 58 may serve the goals of generally deterring criminal conduct or addressing dangerousness concerns (the latter being an interest served under section 58A governing dangerousness determinations). As to the latter goal, the SJC appeared to limit the scope of its earlier ruling in Brangan v. Commonwealth, 477 Mass. 691, 706 (2017), that “a judge may not consider a defendant’s alleged dangerousness in setting the amount of bail, although a defendant’s dangerousness may be considered as a factor in setting other conditions of release.”[v] As a result, prosecutors must now be cognizant that general criminal deterrence and dangerousness are not valid interests in imposing GPS monitoring pursuant to the bail statute in most cases.

Broader Implications of Norman

The reasoning of the SJC’s Norman decision may also limit other types of conditions routinely imposed by the Commonwealth’s trial courts. For example, does ordering a defendant charged with operating under the influence to abstain from drugs or alcohol, or submit to random screens designed to detect those substances, ensure that defendant’s return to court?[vi] Will ordering a defendant repeatedly charged with drug distribution to stay away from the geographical area in which the charges arose protect potential witnesses? There certainly is an argument that these conditions more readily serve the goals of deterrence or community safety, and therefore are inappropriate conditions post-Norman. In fact, the SJC appeared to explicitly disapprove of an exclusionary zone in drug distribution cases absent evidence that the condition was “intended to insulate any particular victims or civilian witnesses[.]”[vii] Without legislative action, judicial officers[viii] may need to reassess the enduring utility of these and other commonly imposed conditions, and explore alternative avenues to cabin a defendant’s pre-trial conduct.

In addition to creating legitimate questions about the legality of certain release conditions, Norman also is one of a string of recent decisions creating a ‘new normal’ for law enforcement use of data generated by electronic surveillance. In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the SJC held that law enforcement review of automated license plate reader (“ALPR”) data maintained by the Executive Office of Public Safety and Security could infringe upon a reasonable expectation of privacy if the data painted a detailed enough picture (or “mosaic”) of the targeted individual’s movements. Likewise, in Commonwealth v. Mora, 485 Mass. 360 (2020), the SJC applied a virtually identical analysis to protracted pole camera surveillance, concluding that a warrant was required where such monitoring enabled investigators to uncover the defendant’s private behaviors, patterns, and associations.

The theme in these cases, as in Norman and Johnson, is the SJC’s recognition that individuals have an expectation of privacy in the whole of their physical movements. And, that regardless of its form, prolonged electronic surveillance can provide “access to a category of information otherwise unknowable.”[ix] Yet while the technologies and data at issue in Norman, McCarthy, and Mora have historically been available to law enforcement in Massachusetts without a warrant, the SJC has thus far declined to set a bright line rule as to when the aggregation of such digital surveillance data crosses the threshold into an Article 14 search.[x] Members of law enforcement must therefore exercise caution when utilizing digital surveillance data that has historically served as a building block for criminal investigations. And prosecutors should seriously consider advising their law enforcement partners to secure a warrant supported by probable cause or another governing legal standard before requesting such data.[xi] Officers who fail to seek legal process run the risk of an ex post facto determination that the aggregation of GPS surveillance data infringed upon a reasonable expectation of privacy, resulting in that data being suppressed “even if law enforcement could have met the applicable [legal] standard.”[xii]

Lessons for Law Enforcement

This new “proceed at your peril” paradigm, aptly demonstrated by the historical GPS data ultimately suppressed in Norman, provides several practical lessons for law enforcement. First, warrantless requests for ELMO data may become less common, as law enforcement must determine whether the quantum of data requested from ELMO will infringe on a potential suspect’s reasonable expectation of privacy such that a warrant is required. Although there was no need for this analysis in Norman (because the ankle bracelet’s initial imposition was itself deemed unreasonable), the SJC recognized in Johnson, 481 Mass. at 727, that, at least as to defendants on probation, there is a difference between “a targeted review of GPS data directed at times and locations of suspected criminal activity” and “mapping out and reviewing all of the defendant’s movements . . . or rummaging through the defendant’s historical GPS location data indiscriminately.” The former may, depending on the specific facts of a particular case, fall short of a constitutional search necessitating probable cause.

Second, while application of the “mosaic” theory may be somewhat more straightforward in the context of ALPRs, pole cameras, and other surveillance technologies, any warrantless request will inevitably be subject to a retroactive assessment of its constitutionality. Such an analysis will consider both the volume of data requested or acquired and what that data reveals about a suspect’s movements, day-to-day routine, political and religious beliefs, and other private affairs. Absent legal process, the pyramid of evidence emanating from such data may collapse upon judicial review and cripple a prosecution.

Third, as to historical ELMO data, even a lawful, warrantless request may be subject to suppression based on a judicial determination that the suspect (whose identity was likely unknown to law enforcement at the time of the request) was improperly subjected to GPS monitoring. Given the virtually unknowable nature of this analysis at the time of an officer’s initial request, law enforcement officials may need to think twice about using ELMO data to find the proverbial needle in a haystack.

Conclusion

Norman and similar decisions addressing the use of digital surveillance – whether during the pre-charge investigatory phase or in conjunction with a criminal prosecution – have fundamentally altered the manner in which police and prosecutors use these technologies. Prosecutors and judges must re-evaluate how to address and constrain the behavior of defendants before and after trial. Conditions of release routinely imposed pre-trial may no longer serve the legitimate government interests vindicated by the bail statute. In particular, GPS monitoring as a condition of release and the use of associated location data by law enforcement have been significantly constrained. Police likewise must reassess technologies that previously served as building blocks of criminal investigations and weigh the utility of their warrantless use against the risk of a court suppressing the resulting evidence. One thing remains certain: as technology inevitably evolves, our appellate jurisprudence will continue to redefine the balance between the tools available to law enforcement and the courts and an individual’s right to privacy.

[1] See St. 2006, c. 48, § 8 (Mar. 30, 2006).

[2] While acknowledging that consent can justify a warrantless search, the Court largely dismissed its import in this context given the inherent coercion involved where a defendant agrees to GPS monitoring in lieu of pre-trial incarceration. Norman, 484 Mass. at 335.

[3] The Court highlighted how faulty alerts and charging issues associated with monitoring devices can compromise an individual’s employment and subject that person to the indignities and dangers associated with an arrest. Norman, 484 Mass. at 339.

[4] Norman, 484 Mass. at 338. The Court acknowledged that a separate provision of the bail statute permitted conditions of release to be imposed in certain crimes involving domestic abuse “in order to ensure . . . the safety of the alleged victim, any other individual or the community.” See G.L. c. 276, § 58, third par.

[5] In a footnote, the Court specifically referenced the provision of section 58 authorizing specific restrictions on personal associations or conduct. See Brangan, 477 Mass. at 706 n.18.

[6] Like GPS monitoring, random drug and alcohol testing constitutes a search and seizure for constitutional purposes under Article 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859 (2009). Such conditions have been deemed appropriate in the probationary context, where a defendant’s expectation of privacy is reduced, so long as “reasonably related” to the goals of sentencing and probation, in light of the defendant’s underlying crime and his or her particular circumstances. See Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001).

[7] Norman, 484 Mass. at 338.

[8] Mass. Gen. Laws. c. 276, § 58 authorizes numerous parties, including justices, clerks and bail commissioners, to set conditions of pretrial release.

[9] McCarthy, 484 Mass. at 500, quoting Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Norman, 484 Mass. at 334, quoting Commonwealth v. Johnson, 481 Mass. 710, 717 (2019). The Court first recognized this privacy expectation in Commonwealth v. Augustine, 467 Mass. 230, 245-49 (2014). Acknowledging that cellular phones had become “an indispensable part of modern American life”, the Court found that “[cell-site location information] raises even greater privacy concerns than a GPS tracking device” as a “cellular telephone is carried on the person of its user, [and therefore] tracks the user’s location far beyond the limitations of where a car can travel.” Id. at 245, 249. The United States Supreme Court reached a similar conclusion in Carpenter v. United States, 138 S. Ct. 2206 (2018).

[10] McCarthy acknowledged that the absence of a bright-line rule would create “some interim confusion[,]” but expressed confidence that the “constitutional line” would “gradually and appropriately . . . come into focus.” 484 Mass. at 509. The Court cautioned that it “risk[ed] error by elaborating too fully on the Fourth Amendment [or art. 14] implications of emerging technology before its role in society has become clear.” Id., quoting Ontario v. Quon, 560 U.S. 746, 759 (2010).

[11] Massachusetts case law already recognizes that law enforcement may obtain certain forms of historical location data on a lesser showing than probable cause. For example, in Commonwealth v. Estabrook, 472 Mass. 852, 855 n.4 (2015), the Court concluded that Article 14 permits requests for less than six hours of historical cell-site location information (“CSLI”) on a showing of “specific and articulable facts” evidencing “reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation[.]” Likewise, Chief Justice Gants’ concurrence in McCarthy, 484 Mass. at 514, proposed a “lesser” locational mosaic threshold that would require a showing of “‘specific and articulable facts’ demonstrating reasonable suspicion that the targeted individual has committed, is committing, or will commit a crime . . . and that there are reasonable grounds to believe that the data obtained from the query are relevant and material to an investigation of the crime.”

[12] McCarthy, 484 Mass. at 514 (Gants, C.J., concurring).

Jamie Michael Charles is an Assistant District Attorney in the Appeals and Training Bureau of the Middlesex District Attorney’s Office.


Commonwealth v. McCarthy: License Plate Reader Technology Can Trigger Constitutional Protections

by Jessie J. Rossman

Case Focus

In this age of increasing government monitoring of citizens in public spaces, the use of automated license plate readers (ALPRs) by law enforcement agencies has significantly increased the capacity for government surveillance of Massachusetts drivers on the roads and streets. A recent case decided by the Supreme Judicial Court suggests some limits on this surveillance.

ALPR systems capture and retain photographs of every license plate number that comes into view, along with the time, date and location. These systems can retain millions of historical records for months or years on end, and send real-time alerts on any license plate number entered into a “hot list.” According to one recent national survey, in 2016 and 2017 alone 173 law enforcement agencies scanned a total of 2.5 billion license plates.

In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the Supreme Judicial Court addressed ALPRs for the first time. Although the Court affirmed the denial of defendant Jason McCarthy’s motion to suppress the warrantless search of data from four fixed ALPR units that captured information about his vehicle, the Court made clear that it would reach a different conclusion in cases involving more pervasive ALPR systems.

McCarthy joins a growing line of SJC and United States Supreme Court cases addressing the privacy implications of evolving surveillance technology. The Fourth Amendment of the United States Constitution and Article 14 of the Massachusetts Declaration of Rights protect an individual’s reasonable expectations of privacy from warrantless government intrusion. Technology has dramatically increased police officers’ surveillance capacity, overcoming the practical constraints and civilian oversight that historically checked such powers, and in doing so, has provided access to categories of information previously unknowable.

Mindful of these dangers, the SJC and SCOTUS have responded to ensure scientific advancements do not destroy traditional expectations of privacy. As the SJC emphasized in Commonwealth v. Almonor, 482 Mass. 35, 41 (2019), “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.” Reflecting this understanding, the highest courts in the Commonwealth and the country have held that the police must obtain a warrant based on probable cause to conduct long-term GPS tracking of a car (Commonwealth v. Rousseau, 465 Mass. 372 (2013) and Commonwealth v. Connolly, 454 Mass. 808 (2009)), to obtain more than six hours of historical cell site location information (CSLI) from a cellphone, (Carpenter v. United States, 138 S. Ct. 2206 (2018), Commonwealth v. Augustine, 467 Mass. 230 (2014), and Commonwealth v. Estabrook, 472 Mass. 852 (2015)), and to use electronic surveillance of a cellphone to obtain real-time location information (Almonor).

McCarthy applied these established principles to a different surveillance-technology: ALPRs. Since 2015, the Massachusetts State Police has operated four ALPRs on the Sagamore and Bourne Bridges. Their cameras automatically feed images into a database maintained by the Executive Office of Public Safety and Security (EOPSS). As part of a narcotics investigation, the Barnstable Police Department searched for the appearance of McCarthy’s license plate in historical and real-time ALPR data from these four cameras without obtaining a warrant. In his motion to suppress, McCarthy argued that this warrantless access violated his constitutionally protected reasonable expectations of privacy, while the District Attorney suggested that art. 14 and the Fourth Amendment did not apply to these images because McCarthy knowingly exposed them to the public. Denying the motion, Superior Court Judge Robert Rufo opined, “[p]erhaps the defendants’ argument would be stronger if the ALPR Hot List was set to issue an Alert every time McCarthy’s vehicle passed any of the ALPR cameras installed at a multitude of locations statewide,” before noting that, “such a scenario is not in keeping with the facts before this court[.]”

The SJC took Judge Rufo’s reasoning one-step further. It affirmed that accessing ALPR data from “four cameras placed at two fixed locations on the ends of the Bourne and Sagamore bridges” did not trigger constitutional protections. But the Court went on to emphasize “[w]ith enough cameras in enough locations, the historic location data from an ALPR system in Massachusetts would invade a reasonable expectation of privacy and would constitute a search for constitutional purposes.” While the SJC did not demarcate the specific threshold that would require a warrant, it did provide some helpful guidance.

First, applying case law developed through cases involving GPS and CSLI, the SJC made clear that its precedents were anchored not in the particular type of technology used to conduct surveillance, but in the type of information collected via that technology. To that end, the SJC confirmed that technology which allows the police to “travel back in time,” obtain “real-time location data,” or conduct surveillance for a period of time that “drastically exceeds what would have been possible with traditional law enforcement methods,” will trigger constitutional protections.

Second, the SJC set forth some guideposts for future ALPR cases. It noted that EOPSS’ year-long retention period for ALPR data “certainly is long enough to warrant constitutional protection.” It also indicated that even a limited number of ALPRs may still trigger constitutional protections when they are placed “near constitutionally sensitive locations” such as “the home [or] a place of worship” that “reveal more of an individual’s life and associations[.]”

Finally, Chief Justice Gants’ concurrence proposed an “analytical framework that might prove useful in future cases.”  He suggested a warrant could be required for ALPR data that created a sufficiently detailed picture to be “the type of mosaic that would constitute a search,” and reasonable suspicion could be required for ALPR data that was less revealing of the individual’s movements “but greater than the four location points established in this record[.]”  This “would mean that law enforcement agencies would need to obtain court authorization more often before retrieving targeted individual historical locational information in their possession because queries that would not require a showing of probable cause might still require a showing of reasonable suspicion.” Chief Justice Gants also warned that, “unless the law enforcement agency has sought prior court approval to search for particularized locational data in its possession, the agency will have to preserve each and every search query for the retrieval of historical locational information regarding a targeted individual” and make it “available in discovery when sought by the defendant.”

McCarthy does not provide all of the answers regarding ALPRs. Additional clarity will ultimately come from future Court cases or new legislation to confer explicit privacy protection on data gathered by ALPRs and other caches of aggregated personal information. McCarthy already makes clear, however, that ALPR data can—and at a certain threshold does—trigger constitutional protections and the warrant requirement.

 

Jessie J. Rossman is a staff attorney at the American Civil Liberties Union of Massachusetts (ACLUM) and one of the authors of an amicus brief submitted in Commonwealth v. McCarthy on behalf of ACLUM, the Committee for Public Counsel Services, the Electronic Frontier Foundation, and the Massachusetts Association of Criminal Defense Lawyers.    


Cell Tower Dumps

Kortz_102x126Bavitz_102x126by Mason Kortz and Christopher Bavitz

Legal Analysis

Introduction

In 2014, the Supreme Judicial Court of Massachusetts ruled in Commmonwealth v. Augustine, 467 Mass. 230 (2014) that, under the Massachusetts Declaration of Rights, police must obtain a warrant in order to access cell phone records that can reveal a single person’s location over an extended period of time. Last year, the United States Supreme Court reached the same conclusion under the Fourth Amendment in Carpenter v. United States,138 S. Ct. 2206 (2018). However, neither decision addressed the practice of so-called “tower dumps,” which involve access to a different type of location information–namely, the identity of all cell phones that were in a particular location at a particular time. This article addresses law enforcement use of tower dumps, providing a technical description, an examination of current law, and some thoughts on trends in widescale data collection efforts

Technical Overview:  What Are Cell Tower Dumps?

A cellular network is composed of numerous fixed-location cell towers or “cell sites,” each of which covers three or more directional “sectors.” Whenever a cell phone sends or receives data over a cellular network, it connects to one of these cell sites. The network continually tracks which phones are connected to which sites and sectors at any given time. This information — called cell site location information or CSLI — can be logged by the cellular service provider and stored, in some cases for multiple years. Depending on the density of the cellular network in a particular location, CSLI can be used to track a phone’s location with precision varying from a few miles down to a single city block. Newer cellular technologies allow for even greater detail.

The historical CSLI at issue in Augustine and Carpenter could be defined as information on all of the cell sites that a particular device had connected to over a particular interval. The Supreme Court in Carpenter defined a cell tower dump, on the other hand, as “information on all the devices that connected to a particular cell site during a particular interval.” Carpenter, 138 S. Ct. at 2220. The following examples highlight the distinction between the historical CSLI (Scenario A) and tower dumps (Scenario B):

  • SCENARIO A — Police are investigating a crime that took place between November 15 and 19, 2018. Officers have probable cause to believe Smith committed the crime. Smith claims to have been nowhere near the scene of that crime, but officers question his alibi based on eyewitness testimony and other evidence. Officers seek a warrant that would require Smith’s cell phone provider to turn over CSLI indicating the location of Smith’s phone between November 15th and 19th.
  • SCENARIO B — Police are investigating a crime that took place at 2:00 pm on November 19, 2018 in the 100-block of Main Street. Officers have no indication as to the identity of the perpetrator. Officers seek warrants that require cellular service providers with towers in the area to turn over CSLI for all cell phones that contacted towers near 123 Main Street between 1:50 pm and 2:10 pm on November 19th.

A tower dump, by its nature, involves access to more users’ data than historical CSLI does; indeed, one federal district court has noted that “[a]ny order authorizing a cell tower dump is likely to affect at least hundreds of individuals’ privacy interests.” In the Matters of the Search of Cellular Telephone Towers, 945 F. Supp. 2d 769, 770 (S.D. Tex. 2013). That said, a typical tower dump is confined in the sense that it covers both a small area and a relatively short time period — often a few hours or even a few minutes. Thus, a tower dump reveals less about any given individual’s movements over a period of time than does historical CSLI.

Current State of the Law

The primary legal question concerning cell tower dumps is whether they require a warrant or, alternatively, can be obtained under the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d). If the warrant requirement applies, the government would need to show probable cause in order to obtain a tower dump. Section 2703(d) of the SCA, on the other hand, requires only “specific and articulable facts showing that there are reasonable grounds to believe that the contents of [the cell tower dump] are relevant and material to an ongoing criminal investigation.”

Proponents of the warrant requirement argue that individuals have a reasonable expectation of privacy in their location information and that cell tower dumps therefore fall within the ambit of the Fourth Amendment. Alternatively, they argue that even if cell tower dumps do not infringe on any one person’s privacy, the sheer number of data points collected with each dump constitute “dragnet surveillance,” which the Supreme Court has suggested may be unlawful.

The majority of courts to consider the question have rejected these arguments and held that a warrant is not required to obtain a cell tower dump. Many of these decisions rely on the third-party doctrine, which provides that an individual has no legitimate privacy interest — and, therefore, no Fourth Amendment protection — in information that he/she voluntarily discloses to a third party (in this case, that person’s cell phone service provider). Such courts have also noted that, although cell tower dumps collect information about a large number of subscribers, they often cover relatively limited time periods.

On the other hand, at least one United States Magistrate Judge has held that cell tower dumps implicate the Fourth Amendment and therefore require a warrant. See In re United States ex rel. Order Pursuant to 18 U.S.C. Section 2703(d), 930 F. Supp. 2d 698 (S.D. Tex. 2012) (denying § 2703(d) application to obtain tower dump, holding that warrant is required). The court expressly relied on an order extending Fourth Amendment protections to historical CSLI, a decision later reversed by the Fifth Circuit. By its nature, a cell tower dump includes information that turns out not to be relevant to the investigation in question, and the Magistrate Judge was concerned that the government had made no plans for how to handle or dispose of that information. Thus, the court declined to approve an application for a cell tower dump until both (a) it was supported by probable cause; and (b) the government presented a protocol for minimizing the intrusion into the privacy of technological bystanders.

Looking Ahead:  Developments Post-Carpenter

Although the Court in Carpenter did not reach the question of cell tower dumps, its decision will certainly have an impact on this evolving body of law. In holding that a warrant is not required to obtain cell tower dumps, many lower courts have expressly relied on appellate decisions permitting warrantless access to historical CSLI. Carpenter has now abrogated those decisions. Historical CSLI and tower dumps raise different privacy concerns, though, so lower courts applying Carpenter and Augustine to tower dumps will still need to engage in an independent analysis of whether the information the government seeks would invade individuals’ reasonable expectations of privacy.

Carpenter set forth two important holdings. First, it limited the application of the third-party doctrine to historical CSLI on the grounds that the pervasiveness of cell phones (and the essentially invisible way in which they generate location information) rendered any disclosure of CLSI effectively non-voluntary. The application of this holding to tower dumps should be straightforward: because tower dump CSLI and historical CSLI are generated in the same fashion, it stands to reason that the third-party doctrine does not apply to either one.

Second, Carpenter made clear that the collection of seven days of historical CSLI infringes on a cell phone user’s reasonable expectation of privacy and, absent exceptional circumstances, requires a warrant. The application of this holding to cell tower dumps is less certain. While tower dumps implicate the privacy of far more people than access to historical CSLI does, they are arguably less invasive at the individual level. The Court in Carpenter declined to state whether there is some lower limit to the collection of CSLI below which a warrant is not required. The SJC in Augustine did reach this question, setting the limit at six hours of CSLI. However, the SJC was presumably thinking of six hours CSLI for a single person–not six hours of CSLI for everyone whose cell phone passed by a specific location in that time period. Thus, the analogy between historical CSLI and tower dump CSLI is imperfect.

Finally, because the Court in Carpenter did not address tower dumps, it did not reach the question of what to do with hundreds, perhaps thousands, of innocent bystanders’ location information. Regardless of whether the warrant requirement applies, future courts that address the question of cell tower dumps will need to consider how to craft — or ensure that government entities requesting CSLI craft — mechanisms to minimize potential privacy harms caused by these broad and far-ranging requests.

Warrantless tower dumps, widely approved up until recently, are now on uncertain footing. Tower dumps that cover more than a few hours without a warrant are questionable under Carpenter and almost certainly unlawful in Massachusetts under Augustine. Even narrower tower dumps raise questions due to the number of people affected, although courts may focus more on minimizing harm through search protocols than on the warrant requirement. Courts and practitioners should also keep in mind that, as both the Supreme Court and the SJC observed, the granularity and precision of CSLI continues to increase dramatically as new network technologies are rolled out. The arguments that prevailed in Carpenter and Augustine are likely to become even more compelling as the relevant technologies continue to evolve.

Mason Kortz is a Clinical Instructor at the Harvard Law School Cyberlaw Clinic, part of the Berkman Klein Center for Internet & Society. His areas of practice include electronic search and seizure, online speech and privacy, open records and government transparency, and the law of artificial intelligence.

Christopher Bavitz is the WilmerHale Clinical Professor of Law at Harvard Law School, Managing Director of the Law School’s Cyberlaw Clinic, and a faculty co-director of the Berkman Klein Center for Internet & Society.


Look no Further! The Scope of Consent Searches After Commonwealth v. Ortiz

Langsam

by Jessica Langsam

Case Focus

In Commonwealth v. Ortiz, 478 Mass. 820 (2018), a closely-divided Supreme Judicial Court held that, under the Fourth Amendment and article 14 of the Declaration of Rights, a suspect’s consent to search for weapons or drugs “in the vehicle” does not include consent to search under the hood (and under a removed air filter) unless it is “reasonably clear” to a “typical reasonable person” that consent extends beyond the interior of the vehicle and the trunk. Id. at 826-27. The case turned on the scope of the suspect’s consent and the application of the settled rule that “[t]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment [and article 14] is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 824 (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). Ortiz considered “the words spoken” in the exchange to be informed only by “the context” as it existed during that time, id., a narrower period than in previous cases and one that excludes a suspect’s lack of objection when his consent to the scope of the search is deemed ambiguous.

Background

An officer stopped the defendant’s car and asked if there was anything “in the vehicle that the police should know about, including narcotics or firearms.” Ortiz, 478 Mass. at 821. The defendant replied, “No, you can check.” Id. He exited the vehicle at an officer’s request and was then handcuffed. Id. at 821-822. A drug-detection dog walked around the vehicle but did not alert. Id. at 822. Officers searched the vehicle’s interior but found no contraband. Id. They then raised the hood, removed the air filter, and found a bag containing firearms. Id. The defendant watched from the side of the road but did not object. Id. He was arrested and subsequently told officers that the firearms belonged to him and that he had given consent to look in his vehicle. Id.

The defendant sought to suppress the firearms and his statements on the ground that the search unconstitutionally exceeded the scope of his consent. Id. After an evidentiary hearing, the court suppressed the evidence, ruling that although the defendant’s consent was free and voluntary, when the officer asked only about items “in the vehicle,” a typical reasonable person would understand the scope to have been limited to the interior, and the scope of the defendant’s consent was not expanded by his lack of objection during the search. Id. at 822-823.

The Majority Opinion

In this 4-3 decision, the SJC affirmed suppression, concluding that the defendant’s consent was limited to a search of the vehicle’s interior, which included, the Court said, the passenger compartment and the trunk. The majority cited a similar conclusion by the Tennessee Supreme Court in State v. Troxell, 78 S.W.3d 866 (Tenn. 2002). Ortiz, 478 Mass. at 824. There, an officer asked the driver of a pickup truck whether he had “any weapons in the vehicle”; the driver replied “no, nothing”; the officer asked, “Okay if we take a look?”; and the driver answered, “Yeah, go ahead.” Id. (emphasis in original). As the SJC noted, Troxell concluded that “[t]he verbal exchange therefore expressly indicated” that the officer intended to search “in the vehicle” (i.e., the cab) and that it was therefore “objectively reasonable to conclude that the consent to search included only the interior.” Id. (quoting Troxell, 78 S.W.3d at 872).

In essentially an alternative ruling, the majority stated that as a matter of fairness, the scope of consent, like voluntariness, must be unambiguous and that the scope of consent here was ambiguous and suppression was warranted because the police may not take advantage of an ambiguity that could be resolved with a clarifying question. Id. at 825-826. The Court held that “unless it is reasonably clear that the consent to search extends beyond the interior of the vehicle, the police must obtain explicit consent before a vehicular search may extend beneath the hood.” Id. at 826-827. It held that where, as here, the scope of consent to search was not reasonably clear, the defendant’s silence when the search extended to the hood was not a substitute for consent but was rather “mere acquiescence to a claim of lawful authority” and his failure to revoke consent was not an agreement to expand the scope beyond its initial limit. Id. at 827.

The Dissent

The dissent would have reversed suppression, noting that to apply the standard interpreting a suspect’s consent to search required considering not only the exchange itself but also the “facts and circumstances surrounding” it, including whether the defendant limited the scope, and, as stated in Jimeno, the “expressed object” of the search. Id. at 827-28. Concluding that the defendant did not limit consent to the interior and trunk, the dissent pointed to his “unqualified and unambiguous general consent” in response to the officer’s request to search for “any narcotics or firearms in the vehicle” and his lack of objection when officers looked under the hood, which would indicate to a “typical reasonable person” that he “authorized the entire search.” Id. at 828.

The dissent noted that whereas Troxell concluded that “in the vehicle” referred to the pickup’s cab, the Ortiz majority concluded that “in the vehicle” referred to the cab plus the trunk – and that there was no “meaningful difference” between the trunk and the hood because both were beyond the passenger compartment and opened separately. Id. at 828-29. The dissent also noted that Troxell’s “narrow focus on the colloquial use” of “in” ignored the conversation’s subject matter, and that Troxell’s search was more extensive in kind and duration and included a drug detection dog, an officer’s examination of the vehicle’s underside and gas tank, and removal of the gas tank at a service station (to which the defendant was instructed to drive), where drugs were found. Id. at 829. In contrast, the dissent found no ambiguity in the defendant’s consent to the scope of the search and noted that his failure to object when the search moved to the hood further evidenced his initial authorization for that portion of the search. Id. at 830.

Consent Searches Post-Ortiz

Cases prior to Ortiz considered a broader context to ascertain the scope of a suspect’s consent, including whether the defendant objected. In Commonwealth v. Gaynor, 443 Mass. 245, 255 (2005), cited by the Ortiz majority and dissent, the defendant argued that the scope of his consent was limited by what officers told him, which was that they wanted to test his blood and compare the results with results of testing connected to one victim. Id. However, the Gaynor Court held that a reasonable person likely would have concluded that the police were seeking the defendant’s blood test results, including his DNA profile, that the scope was not limited to the current investigation (there were additional victims), and that the defendant never limited the scope. Id. at 255-56. See, e.g., Commonwealth v. Caputo, 439 Mass. 153, 163 (2003) (holding that when defendant invited officers inside residence and then said that he did not want to talk with them, but did not ask them to leave and did not object when two officers reentered after inspecting his car, invitation to enter was not circumscribed). By way of explanation for limiting the context to only the exchange between the suspect and police, the majority noted that the law is already “quite protective of law enforcement” in that consent may be found valid even when the suspect was not informed of and was unaware of his right to refuse. Ortiz, 478 Mass. at 826.

Going forward, police who want to search a suspect’s vehicle should choose their words carefully and obtain explicit consent for a search beyond the vehicle’s passenger compartment and trunk. A suspect’s consent will likely not be held to be any broader than the plain language of that exchange and could turn, as it did here, on what the meaning of “in” is.

Jessica Langsam is Senior Appellate Counsel at the Middlesex District Attorney’s Office.  She has litigated motions to suppress and cases at trial and has argued before the Appeals Court and the Supreme Judicial Court.  This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.


The Phifer and Berry Decisions And The Future Of Cell Phone Searches

by John T. Mulcahy

Legal Analysis

Mulcahy_JohnThe Supreme Judicial Court (the “SJC”) recently ruled in two factually similar cases that police can conduct a warrantless cell phone search pursuant to the “search incident to arrest” exception to the warrant requirement.  The SJC’s holdings leave open many questions and evolving cell phone technology will create challenges for courts as they grapple with such searches under the Fourth Amendment.  This article analyzes those two cases and considers their implications and some larger questions.

In Commonwealth v. Phifer, 463 Mass. 790 (2012) and Commonwealth v. Berry, 463 Mass. 800 (2012), the SJC ruled as a matter of first impression that the police can search a cell phone incident to arrest.  The Court noted that its holding in both cases was narrow.  In Phifer, the defendant moved to suppress a warrantless search of his cell phone after he had been arrested and transported to the police station.  The defendant had been arrested on two outstanding warrants related to drug charges.  The detective checked the call history on the phone and discovered the phone number of a person whom the police knew to be a drug user.  The defendant moved to suppress; the trial court denied the motion, citing federal circuit and district court decisions holding that a cell phone can be searched incident to arrest.

The SJC ruled that the detective’s review of the defendant’s recent call history was a proper search incident to arrest.  The Court relied heavily on Commonwealth v. Madera, 402 Mass. 156, 159-161 (1998) in reaching its decision.  In Madera, the Court upheld the search of a gym bag incident to arrest where the police had probable cause to believe that bag contained evidence of the crime charged.  The Court ruled that, as in Madera, the police in Phifer had probable cause to believe that a search of the cell phone would turn up evidence of the crime at issue.  Before the defendant’s arrest in Phifer, police saw the defendant on his cell phone and saw him with someone who was a known drug user.  Also, the detective had testified that drug dealers use cell phones as part of the drug trade.

The Court also ruled that even though this search was conducted at the time of booking, not arrest, it was still justified as a search incident to arrest; the delay in the search was of no importance because the cell phone found during booking had to have been on the defendant’s person at the time of arrest.

The Court cautioned that its holding should be read narrowly, and that its decision would not “necessarily . . . be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.”

On the same date as the Phifer case, the SJC also issued its decision in Berry.  In that case, the police saw the defendant sell heroin.  After the defendant was arrested and brought back to the police station, the police officer looked at the recent call history on the defendant’s cell phone and dialed the most recent phone number, which called the heroin customer.  Consistent with Phifer, in Berry, the Court stated that a search of a cell phone does not have to be contemporaneous with arrest, but that it can occur during booking at the police station.  The SJC held that the search was proper because it was a “very limited search” and the police had reason to search based on their experience that cell phones are used in drug transactions.  The SJC again cautioned that it would not necessarily come to the same conclusion if it were dealing with different facts.

In explicitly noting the limitations of its holdings in Berry and Phifer, the SJC recognizes that the law on cell phone searches is still developing.  These cases make clear that court review of cell phone searches will be a fact-specific exercise; at least for the near term, courts will not be able to establish a bright-line rule for analyzing these scenarios.  The different factual scenarios and ever-changing capabilities of cell phones make the formulation of such a rule difficult.  As Justice Gants’ concurring opinion in Phifer points out, the SJC’s comparison of cell phone searches to the search of a gym bag in Commonwealth v. Madera might have over-simplified the analysis.  A gym bag is a bounded object, while the information that can be accessed through a cell phone is potentially limitless.  Phifer and Berry dealt only with call history, but the average smartphone also has a camera, a calendar, maps, contacts, email, text messages, and can even contain a user’s flight information and purchase information.  It is obvious that this kind of information would be of great interest to law enforcement officials.  Flight information and maps could quickly show a police officer the recent whereabouts of a suspect, while purchase information could reveal additional evidence.

Another example of technology’s unrestricted potential is Apple’s iCloud service.  ICloud is a storage system that allows a user to access his or her music, email, contacts, and word-processing documents on several different devices.  Information on the iCloud system exists on Apple’s computer servers outside the jurisdiction of the Commonwealth’s courts.  Will police be able to seize a cell phone and access information that exists across multiple jurisdictions through iCloud?

A common criticism of warrantless searches of cell phones is that police can wait to obtain a warrant.  The argument goes that a cell phone is different from an automobile, whose mobility means that evidence can be lost quickly.  Automobiles therefore are the proper subject for warrantless searches while cell phones are not; an officer, in possession of a cell phone, can put it away and all of the incriminating material on it is safe until he obtains a warrant.   But that argument ignores the current technology. As Courts have already warned, the data on cell phones can be destroyed remotely.  United States v. Valdez, 2008 WL 360548, *3 (E.D. Wis. Feb. 8, 2008); United States v. Dinwiddie, 2008 WL 4922000, *12 (E.D. Mo. Jan. 29, 2008).

Thus, by the time a police officer obtains a search warrant, even though the cell phone has been safely stored in an evidence locker, the incriminating evidence on that phone could be gone.  Law-enforcement officials caution that this scenario could present significant problems in fighting crime.

Perhaps acknowledging that time can be of the essence in these searches, some courts rely on the exigent circumstances exception to the warrant requirement, rather than the search incident to arrest exception.   United States v. Lottie, 2008 WL 150046, *3 (N.D. Ind. Jan. 14, 2008); United States v. Parada, 289 F. Supp. 2d 1291, 1303 (D. Kan. 2003).  Indeed, in contrast to the SJC, other courts have disapproved of searches that are “incident to arrest” but separate in time from the arrest.  See, e.g., United States v. Gibson, 2012 WL 1123146, *10 (N.D. Cal. Apr. 3, 2012); see also, United States v. Valdez, 2008 WL 360548, *3 (E.D. Wis. Feb. 8, 2008); State v. Isaac, 2009 WL 1858754, *5 (Kan.Ct. App. June 26, 2009).

The search incident to arrest doctrine raises concerns of its own.  While the Phifer and Berry courts suggested that a search conducted at booking is still a search incident to arrest, other courts have interpreted the exception literally – any search later in time from the actual arrest is not a search incident to arrest.  Practically speaking, police officers will not be able to search much of a cell phone at the exact time of arrest.  Depending on how the search incident to arrest exception is applied going forward, a police officer might be able to get through only  a small part of a suspect’s address book or recent call history before the arrest is completed.  Then, police would presumably be required to obtain a search warrant for the rest of the cell phone.  Police would then have to contend with the reality that they may not yet have seen the most damning evidence and that this relevant evidence could be destroyed remotely.

In fact, the developing law leaves undefined the limits on the scope of a search of cell phones incident to arrest.  Should police officers be able to search any phone the defendant possesses for information or files related to the crimes that they are investigating?  Or should police only be allowed to search a phone that is, itself, connected to the crime being investigated?  One court has answered the second question affirmatively, finding that police were not warranted in searching a cell phone while arresting an individual for public intoxication and neglect because the phone could not be tied to those particular crimes.  Kirk v. State, 974 N.E.2d 1059, 1071 (Ind. Ct. App. 2012).

One thing the cases make clear is that the law is not developing at a rate that keeps pace with technology.  As the cases above indicate, courts disagree about how long a search may take place after arrest and still be “incident to arrest,” and there has been little consideration of how closely such a search must be tied to the crime being investigated.  Ruling that the search is required by exigent circumstances also has its pitfalls – most obviously, the argument that, once seized and secured, a cell phone may properly by searched pursuant to a warrant.  A Supreme Court concurrence offers one potential avenue for lawyers to explore in trying to explain the need for cell phone searches at the time of arrest.  In the 2004 case of Thornton v. United States, 541 U.S. 615, 629-30 (2004), Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, argued in a concurring opinion that, instead of its traditional justifications, search incident to arrest could be understood as an “evidence-gathering” tool used to compile, at the time of arrest, any evidence related to the crime charged.  This conception of search incident to arrest could better be suited to the search of cell phones given the uncertainty over whether data on a cell phone can be or will be destroyed remotely.

As the SJC recognized in both Phifer and Berry, the law on cell phone searches is in its infancy.  This body of law will likely force a significant development in Fourth Amendment jurisprudence.  No longer is it the search of a glove box or a gym bag.  Indeed, the rapid pace of innovation appears to prevent the establishment of any clear guiding principles for cell phone searches.  Courts must carefully assess how traditional search and seizure principles should be applied to cell phones and how those principles could be altered to reach a common-sense approach that is constitutionally sound.  The Legislature would be wise to consider these same questions in order to provide much-needed guidance to courts, and practitioners would be well advised to educate courts about the relevant technology where a cell phone search is at issue.

John T. Mulcahy is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office.  ADA Mulcahy graduated from Boston College in 2003 and Boston College Law School in 2007.  The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office.  The author wishes to thank his wife, Evelyn M. Mulcahy, for her love and support.