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Commonwealth v. Connolly

Concerning GPS Tracking of a Vehicle as a “Search and Seizure”

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  • Massachusetts Court Upholds Privacy Protection for Location Records: In Commonwealth v. Augustine, the Massachusetts Supreme Judicial Court ruled that an individual has a reasonable expectation of privacy in cell phone location records held by a company. Article 14 of the Massachusetts Constitution, similar to the Fourth Amendment, provides that individuals should be free from "unreasonable searches, and seizures." The court held that obtaining two weeks of phone location records was a search, requiring a warrant. EPIC filed "friend of the court" briefs in Commonwealth v. Connolly, a similar case in Massachusetts concerning warrantless GPS tracking, and State v. Earls, a case in which the New Jersey Supreme Court held that location data is protected under the state constitution. EPIC also filed a brief in In re U.S. Application for Historical Cell Site Data, where an appeals court held that users have no reasonable expectation of privacy in location records under the Fourth Amendment. The Massachusetts Supreme Court considered all three cases. For more information, see EPIC: Location Privacy. (Feb. 20, 2014)
  • Massachusetts High Court Allows Limited Warrantless Search of Cellphone Call Logs: The Supreme Judicial Court of Massachusetts has ruled that no search warrant is required to check the recent call list of a flip phone seized during a lawful arrest. However, the Court in Commonwealth v. Phifer emphasized that the ruling is narrow and fact-specific. Different facts, a more invasive search, or a more complex phone could result in a different outcome, said the Massachusetts high court. In the case, police witnessed a drug deal, arrested the dealer, and then checked the phone's call log for evidence of recent drug sales. The Massachusetts Court analogized searching the phone in these circumstances to searching a container that could contain contraband. The Supreme Judicial Court issued a similar ruling in a contemporaneous companion case, Commonwealth v. Berry. In a previous Massachusetts case in which EPIC filed a "friend of the court" brief, the Supreme Judicial Court ruled that sensitive data obtained from GPS tracking requires a search warrant. For more information, see EPIC: Locational Privacy and EPIC: Commonwealth v. Connolly. (Dec. 6, 2012)
  • Federal Judge: Locational Data Protected Under Fourth Amendment: A Federal judge has ruled that to law enforcement officers must have a warrant to access cell phone locational data. Courts are divided regarding whether or not this type of data should be protected by a warrant requirement. Judge Garaufis of the Eastern District of New York, found that "The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected…In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records." EPIC has filed amicus briefs in several related cases. For more information see: EPIC: Commonwealth v. Connolly, EPIC: US v. Jones, and EPIC: Locational Privacy. (Aug. 25, 2011)
  • High Court To Decide Major GPS Tracking Case: The Supreme Court will decide if warrantless locational tracking violates the Fourth Amendment. The Court granted review of a District of Columbia Circuit Court of Appeals opinion on two legal questions. The first is whether police need a warrant to monitor the movements of a car with a tracking device. The second is whether policy can legally install such a device without their target's consent, and without a valid warrant. EPIC previously filed an amicus brief in Commonwealth v. Connolly, a Massachusetts case which established that the state Constitution prohibited warrentless GPS tracking. The Massachusetts Supreme Judicial court imposed time limits on GPS monitoring, ruling that warrants will expire fifteen days after they are issued. For more information, see EPIC: US v. Jones and EPIC: Locational Privacy. (Jun. 27, 2011)
  • Solicitor General to Supreme Court: Review GPS Tracking Cases: The Solicitor General filed a petition with the Supreme Court about the growing dispute in the federal courts over warrantless locational tracking. There is a split among the appellate court about GPS tracking by police agencies. The petition appeals a decision from the DC Circuit which held that the warrantless tracking of a motor vehicle violates the Constitutional right against unlawful searches. Earlier, EPIC filed an amicus brief in the Massachusetts Supreme Judicial Court case that also held that a warrant is required for the use of a GPS tracking device. For more information, see EPIC - Commonwealth v. Connolly and EPIC - Locational Privacy. (Apr. 18, 2011)
  • Delaware Court Strikes Down Warrantless GPS Tracking: The Delaware Superior Court has ruled that police must obtain a warrant before using GPS devices to monitor vehicles. The Court said that the Delaware Constitution protects its citizens' reasonable expectation of privacy from "constant surveillance." "Everyone understands there is a possibility that on any one occasion or even multiple occasions, they may be observed by a member of the public or possibly law enforcement," the Court reasoned, "but there is not such an expectation that an omnipresent force is watching your every move." In a related case, the Massachusetts Supreme Court held that a warrant is required for the use of a GPS tracking device. EPIC filed an amicus brief in that case. For more information, see EPIC: Commonwealth v. Connolly and EPIC: Locational Privacy. (Dec. 17, 2010)
  • Virginia Court of Appeals Authorizes Warrantless GPS Tracking: In Foltz v. Virginia, the Virginia Court of Appeals held that law enforcement may place a GPS tracking device on a vehicle without violating the Fourth Amendment. The Court found that the defendant did not have an expectation of privacy, and therefore attaching the tracking device to the bumper did not require a warrant. The court distinguished its ruling from Commonwealth v. Connolly, a recent Massachusetts case, which held that police must obtain a warrant before using GPS devices to monitor vehicles. The Virginia court explained that Connolly was unpersuasive because the Virginia Constitution is co-extensive with the federal Fourth Amendment while the Massachusetts Constitution is more expansive. EPIC filed an amicus brief in Connolly, urging the court to adopt a warrant requirement. For more information, see EPIC: Commonwealth v Connolly. (Sep. 17, 2010)
  • Federal Appeals Court Requires Warrant for GPS Tracking: The D.C. Circuit Court ruled that police must obtain a warrant before using GPS devices to monitor vehicles. GPS tracking constitutes a seizure under the U.S. Constitution because "prolonged GPS monitoring reveals an intimate picture of the subject‘s life that he expects no one to have," the Court held. In a related case, the Massachusetts Supreme Court recently held that a warrant is required for the use of a GPS tracking device. EPIC filed an amicus brief in that case. For more information, see EPIC Commonwealth v. Connolly. (Aug. 6, 2010)
  • Federal Appeals Court Hears Arguments in Location Privacy Case: The Third Circuit Court of Appeals considered this week whether the government must obtain a warrant prior to obtaining location data from an electronic communications service provider. The case centers on access to cellphone records that were used to help crack a bank robbery investigation In a related case, the Massachusetts Supreme Court recently held that a warrant would be required for the use of a GPS tracking device. EPIC filed an amicus brief in that case. For information see EPIC Commonwealth v. Connolly. (Feb. 13, 2010)
  • Massachusetts Supreme Court Requires Warrant for GPS Tracking: Today, the Massachusetts Supreme Judicial Court ruled that police must obtain a warrant before using GPS devices to monitor vehicles, as it constitutes a seizure under the Massachusetts Constitution. The court also imposed time limits on GPS monitoring, ruling that warrants will expire fifteen days after they are issued. A concurring opinion raised the issue of whether the use of a GPS is a "seizure" or a "search." EPIC filed a “friend of the court” brief (pdf) in the case, urging the court to adopt a warrant requirement. For more information, see EPIC Commonwealth v. Connolly. (Sep. 17, 2009)

Introduction

In Commonwealth v. Connolly, the Massachusetts police searched the defendant’s vehicle and found cocaine. Police had previously installed a Global Positioning System (GPS) tracking unit to Connolly's vehicle without a warrant. This allowed the vehicle to be tracked on the highway by the police. Connolly asked the trial court to supress the evidence, arguing that police must get a warrant prior to installing a GPS tracker and using it for surveillance. Connolly's motion to suppress the evidence was denied at trial, and he was subsequently convicted of cocaine distribution and trafficking. Connolly appealed. On September 17, 2009, the Massachusetts Supreme Judicial Court ruled that "the use of a GPS tracking device requires a warrant for purposes of art. 14 of the Massachusetts Declaration of Rights," and "the installation and use of the GPS tracking device in this case was a seizure." In a concurring opinion, Judge Gants warned "without judicial oversight based on a finding of probable cause, the police potentially could engage in GPS monitoring of any individual and, through this device, learn what otherwise could be learned only through physical surveillance conducted seven days per week, twenty-four hours per day."

Government GPS Tracking

GPS is a space-based radio positioning system that consists of a minimum of 24 satellites configured to provide navigation and timing information worldwide on a constant 24 hour per day basis. As of March 9, 2009, there are 31 satellites in the GPS constellation. The satellites and ground stations comprising the GPS network are run by the U.S. Air Force Global Positioning Systems Wing. GPS satellites are designed to transmit three-dimensional location data (longitude, latitude and altitude) as well as precise velocity and timing information to an unlimited number of users simultaneously. A GPS receiver is all that one needs to access the service.

A GPS receiver is the device that is commonly available through commercial retailers, and used by the general public to assist in navigation. The civilian GPS receivers deliver precise velocity and timing information, and very accurate location information. This device by itself does not transmit the data received from the satellite network to remote locations, nor is it typically capable of storing data regarding its long-term historical movements.

GPS tracking units of the type utilized by the Massachusetts State Police are different. The units are comprised of three distinct devices that when combined allows for the constant monitoring of a tracked vehicle from a remote computer.  First, as previously described, there is the GPS receiver unit that is used by members of the general public. This device decodes the GPS satellite data and details one’s location. Second, the GPS receiver unit is connected to a cellular phone or other type of cellular radio transmitter that is capable of transmitting the GPS data to interested parties such as law enforcement. This second device is what allows for “tracking” to take place. Third, the transmitted GPS data is received by a computer with mapping software that is capable of both real-time tracking as well as the storage of historical data concerning past movements at any given time on a detailed map. This data can be stored indefinitely on the computer’s hard drive and raises data retention concerns.

In summary, GPS tracking is not just a sophisticated or advanced “beeper” as was utilized by law enforcement in decades past. A beeper is a very different technology that assists law enforcement to monitor a suspect. GPS monitoring, on the other hand, is not an aid to visual surveillance, but a replacement. It allows a law enforcement agent to determine the location of the vehicle 24 hours per day from a remote computer work station. The location data of a person can be stored indefinitely, and details a range of private activities to law enforcement – where and when one works, shops, worships, socializes or volunteers. In sum, it is capable of monitoring and retaining data on every facet of an individual’s existence. This technology by allowing pervasive surveillance has the potential for abuse absent the monitoring of its use by a detached judicial magistrate.

Electronic Tracking Can Violate the Constitution

The U.S. Supreme Court has held that the electronic tracking of an object can constitute an “unreasonable search” when done without a valid search warrant. See United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 1250 (1984). The Court has not yet specifically addressed the issue of GPS tracking of a vehicle. However, lower federal courts have discussed the fact that the U.S. Supreme Court may, in the future, find these kinds of devices to be unreasonable searches. See, e.g. United States v. Berry, 300 F. Supp. 2d 366 (D. Md. 2004). In State v. Jackson, 76 P.3d 217 (Wash. 2003), Washington State’s high court recently found that the installation of a GPS device on a suspect’s vehicle constitutes a search and seizure requiring a warrant. In Connolly, The Massachusetts Supreme Judicial Court ruled that warrantless GPS tracking of a vehicle is an unreasonable search and seizure that violates Article XIV of the Massachusetts Declaration of Rights.

EPIC’s Interest

EPIC highlighted the dangers of location-tracking technology in People, Not Places, A Policy Framework for Analyzing Location Privacy Issues. EPIC closely monitors and provides information about privacy-invasive technology, especially by the government.
The Massachusetts Supreme Judicial Court specifically solicited the following privacy issues for amicus briefing:

  1. Whether GPS tracking constitutes a search or seizure within the meaning of the Fourth Amendment or Article XIV of the Massachusetts Declaration of Rights?
  2. Whether the defendant lacked a reasonable expectation of privacy in the movements of his van on a public way?

It is important to note that in the future, it is likely that GPS tracking devices will become ever more prevalent as states look for new ways to tax vehicle movements based on a mileage tax as gasoline taxes decrease. For this reason it is all the more important to have a detached neutral magistrate interposed between the citizenry and police officials desirous of unlimited monitoring. For example, a report by the Oregon Department of Public Transportation, published in November 2007, said a pilot program studying the issue found that a vehicle mileage tax is “viable.” A draft transport plan prepared for the Governor of Massachusetts, Deval Patrick, “says implementing a Vehicle Miles Traveled system to replace the gas tax makes sense,” and would be levied based on GPS monitoring. Warrantless GPS tracking threatens to create a system of pervasive mass surveillance, enabling law enforcement to constantly track and profile citizens who are suspected of no crime, and saving the information in large computer databases that flag “suspicious” driving behavior. A warrant requirement requires law enforcement agents to demonstrate probable cause for a search before commencing GPS tracking.

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