Massachusetts High Court Issues Rulings Defining Contours Of Constitutional Protection For Cell Phone Location Data

The Supreme Judicial Court of Massachusetts issued two rulings last week addressing law enforcement access to and use of cell phone location data. In the first, the court found that pinging a cell phone's real-time location constitutes a search in the constitutional sense. In the second, the court held that warrantless location tracking was an unlawful search and that information obtained as a result of that tracking was "fruit of the poisonous tree" that the defendant could suppress. The rulings acknowledge the challenges inherent in adapting age-old legal concepts to new technology, but also show that some invasions of privacy may be permissible depending upon the circumstances. While the court's decisions addressed Article 14 of the Massachusetts Declaration of Rights rather than the Fourth Amendment to the U.S. Constitution, the analytical decisions may offer guidance as to how other courts may rule on similar issues in the absence of on-point precedent from the U.S. Supreme Court.

Commonwealth v. Almonor

On April 23, 2019, the court ruled that law enforcement compelling a suspect's wireless service provider to ping the suspect's cell phone, revealing its GPS coordinates, was a constitutional search for purposes of Article 14 of the Massachusetts Declaration of Rights, which states, in relevant part, that "[e]very subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions." However, after deciding that issue of first impression, the court found the warrantless search was adequately supported by probable cause and was thus reasonable under the exigent circumstances exception to the warrant requirement.

In Almonor, the defendant was suspected of murder. After the police learned Almonor's phone number, they requested real-time location of his cell phone from his wireless service provider. The provider pinged the phone, and police used the resulting GPS coordinates to find the defendant and subsequently seized a sawed-off shotgun and bulletproof vest from his hiding place pursuant to a search warrant. Almonor successfully moved to suppress the evidence as fruit of an unlawful search, and the government appealed.

In reversing the grant of the suppression motion, the court focused on whether Almonor had an objectively reasonable expectation of privacy in his cell phone's real-time location information. First, the court stated that the "intrusive" nature of...