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Massachusetts Supreme Judicial Court Rules a Warrant is Ordinarily Required to Obtain the Real-Time Location of a Suspect’s Cell Phone

The Massachusetts Supreme Judicial Court today ruled that the police must ordinarily obtain a search warrant before obtaining the real-time location of a suspect’s cell phone.  The name of the case is Commonwealth v. Almonor

A man was shot and killed in Brockton on August 10, 2012.  An immediate police investigation commenced and eyewitnesses were able to identify the defendant as the shooter.  The cops obtained the defendant’s cell phone number and the address of his former girlfriend.  They also learned the defendant still possessed the shotgun used in the murder.  About six and a half hours after the shooting, a police officer called the defendant’s cell phone service company and requested the real-time location of his phone.  The cell phone employee “pinged” the defendant’s phone which resulted in the disclosure of its GPS coordinates.  The coordinates were passed on to the police, who learned the defendant’s phone was located in the vicinity of his former girlfriend’s home.  Within an hour, police officers went to the former girlfriend’s house and found the defendant in an upstairs bedroom.  Also found in the bedroom were a shotgun and bulletproof vest.  After being indicted for murder, the defendant filed a motion to suppress the shotgun and the bulletproof vest.  He reasoned that in obtaining the real-time location of his cellphone from his service provider, the police had engaged in an illegal warrantless search that had led to the discovery of the incriminating evidence.  It was a question of first impression in Massachusetts.  A superior court judge agreed with the defendant and suppressed the gun and the vest.  The Commonwealth appealed and the Supreme Judicial Court unanimously reversed.

The Court first concluded that “pinging” a cell phone to obtain its location constitutes a search under the state constitution (in light of this conclusion, the Court declined to analyze whether such pinging constitutes a search under federal law).  Pursuant to the state constitution, a search occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy.  What is a reasonable expectation of privacy?  A person has a subjective expectation of privacy in the object of the search coupled with society’s recognition that such an expectation is reasonable.  The Court pointed out that the pinging in this case was initiated by the police, not the phone company (and the pinging would not have occurred but for the police request).  Because society expects the cops will not be permitted to secretly manipulate our personal cell phones for any reason, including for locating us, the police conduct in this case constituted a search without a warrant.  However, the Court determined an exception to the warrant requirement allowed the police conduct in this case.  Under the exigent circumstances exception, the police are not required to obtain a search warrant if: (1) there is probable cause to believe contraband will be found in a particular location; and (2) it would have been impracticable for the police to obtain a warrant.  In this case, the defendant did not dispute the existence of probable cause.  In finding exigency, the SJC ruled it was reasonable to believe the defendant might have fled, that evidence might have been destroyed, and that the safety of the police or community members might have been endangered if the cops had been required to apply for a warrant.  Essentially, the police did not have time to apply for a warrant and it was therefore proper for officers to request that the cell phone company ping the defendant’s phone to locate him.

The case will now be returned to superior court for the defendant’s trial.

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