Privacy protections left wanting: looking at doctrine and safeguards on law enforcement's use of GPS tracking and cell phone records with a focus on Massachusetts.

• Author: Chebaclo, Lloyd
• Position: Global positioning systems

1. Introduction

   The Fourth Amendment to the U.S. Constitution protects individuals against unreasonable searches and seizures of their "persons, houses, papers, and effects." (1) Before executing a search or seizure (arrest, placing an individual in custody, impounding personal effects, property (2)), police must obtain a warrant supported by probable cause. (3) Massachusetts has, at times, applied a more stringent standard under its constitution on search and seizure matters. (4) This Note will focus mainly on how Massachusetts courts have approached law enforcement's use of Global Positioning System (GPS) technology to apprehend a criminal suspect and subsequent prosecution and to the use of historical cell site information data--records on

   cell phone usage which police can obtain from phone providers. (5) This Note will address GPS tracking of defendants where courts required a warrant, and other circumstances under which they excepted the warrant requirement. It will also consider policies and recommendations provided by the U.S. Department of Justice (DOJ), efforts by the legislature, and implementation by the police. Legislation like the USA PATRIOT Act of 2001 has expanded the government's ability to use electronic surveillance domestically in the name of public safety. (6) The tension between our desire to preserve public safety and to maintain a sense of individual privacy, while upholding constitutional protections against abuse of surveillance measures, has raised issues because of the increased sophistication and ubiquity of consumer electronics. (7)

   Some Massachusetts lawyers have observed, after United States. v. Jones, (8) that in light of circuit splits on Fourth Amendment issues pertaining to GPS surveillance, its use as a tool for law enforcement and prosecution is ripe for the Supreme Judicial Court (SJC) to take up again. (9) Jones has not settled issues arising where GPS is intrinsic to the device for tracking, as it only addressed a situation where an external GPS device is attached. (10) The Supreme Court has left state courts and law enforcement leeway to determine how to balance GPS tracking and Fourth Amendment protections against unreasonable search and seizure. (11)

   This Note will look at Commonwealth v. Connolly, (12) the most recent case the SJC has heard on the use of GPS on a defendant's automobile, bearing some factual similarity to Jones. (13) Connolly, too, failed to make clear what the policy should be where no physical attachment of a separate device is required, such as when law enforcement utilizes an individual's cellphone, smartphone, or vehicle already equipped with the GPS device in order to track that person. (14) In such cases, police could request that telephone carriers grant access to stored information generated by their target's use of the GPS. (15) Will a warrant supported by probable cause always be required for impounding those records? What about legal issues arising where police have used more creative means like installing dummy cell towers that allow interception of a defendant's telecommunications? Are there exigent circumstances under which a warrant will not be required as in other search and seizure cases because of the risk of defeating the purpose of police pursuit, such as likely destruction of evidence or risk of violence where a defendant is armed?

   This Note will look at some of the proposals intended to protect individuals who arguably face a violation of a reasonable expectation of their privacy in terms of locational data, even when third party resources are being used to generate that data as the individuals move through public and private spaces. (16) Although legislation that would require phone carriers to retain data for only as long as it would be useful to the customer may be a promising measure, would that in turn be impractical for the carriers themselves as part of their business records? (17) There likely needs to be stronger policy that creates clarity and continuity for government agencies and law enforcement. (18) Otherwise, ubiquitous GPS technology could be more likely abused in violation of constitutional rights, where legitimately warranted and targeted surveillance slides into generalized long-term surveillance, becoming part of building probable cause itself. (19) From the prosecutorial side, there should be clarity about a jurisdiction's policy on the showing required to use GPS surveillance and how to appropriately implement it to preserve that data's admissibility into evidence rather than bar it under the Fourth Amendment exclusionary principle as "fruit of the poisonous tree," (20) in the interest of public safety and government resources. (21)

2. History

   1. Massachusetts Supreme Judicial Court

      The Massachusetts Supreme Judicial Court dealt with the surreptitious installation of a GPS tracker on an automobile as a matter of first impression in 2009, analyzing the issue separately under the Massachusetts Declaration of Rights (22) and the U.S. Constitution. (23) Police obtained a valid warrant beforehand and the court determined police complied with constitutional requirements. (24) The Court held the police's attachment and use of the GPS device constituted a seizure under the Massachusetts constitution. (25)

      The SJC cites the Stevens partial dissent in United States v. Karo, which only deals with seizure based on attaching a tracking device to the automobile. (26) Should Connolly be understood therefore as providing no guidance where there is no attachment of a device, as where GPS is already installed in a cellphone, smartphone or vehicle?

   2. U.S. Supreme Court

      Past cases have analyzed the use of trackers hidden in items that police anticipated would enter a defendant's custody without his knowledge. (27) The court held that constitutionally it was enough that the party with possession of the item, prior to the defendant, had voluntarily allowed the tracker to be hidden inside it. (28) The defendant could not claim an expectation of privacy about his subsequently traced movements leading to his arrest. (29)

      In past cases discussed below, the Supreme Court held it was not unconstitutional for law enforcement to place a tracking device on a defendant's effect, some property of which he takes possession, to track him without his knowledge. (30) In United States v. Knotts, a "beeper" was placed in a container of chloroform and used to track its location. (31) The beeper was placed in the container with the consent of the then-owner before it came into the defendant's possession. (32) The Court held the defendant had no reasonable expectation of privacy in his movements tracked principally in public streets. (33)

      In Karo, (34) the Federal Drug Enforcement Agency (DEA) acted on a tip that the defendant was buying canisters of ether as part of a drug smuggling operation. (35) With the seller's consent, agents placed an electronic device in a canister included in the sale to the defendant. (36) They followed signals received from the device and tracked him from various locations including his private home. (37) The Court held installing the beeper in the canister was not a seizure because the informant consented to the beeper being hidden among the canisters later sold to the defendant. (38) The Court further concluded the transfer of the canister bearing the hidden beeper to the defendant neither infringed a privacy interest nor constituted a seizure. (39) The government could not, however, monitor the beeper without a warrant and without probable cause or reasonable suspicion in private residences. (40)

      In Katz v. United States, (41) government agents wiretapped and recorded the defendant while he was making a call in a phone booth. (42) The Court determined this conduct violated the defendant's reasonable expectation of privacy. (43) Justice Harlan's concurrence reiterated a test for determining whether a defendant has a reasonable expectation of privacy: whether the individual exhibited an actual expectation of privacy, a subjective inquiry, and secondly, whether society would recognize that expectation as reasonable, an objective inquiry. (44) Justice Stewart stressed the importance of antecedent justification of law enforcement's actions to Fourth Amendment protections and a procedural requirement for the electronic surveillance in this case, rather than justifications after the fact. (45)

      In United States v. Davis, (46) the Supreme Court stated that where police conduct exhibits "'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights" during surveillance, it will exclude the evidence gathered by the offending techniques to deter future violations of the Fourth Amendment. (47) However, Davis recognized an exception to this exclusionary rule for law enforcement acting on a reasonable, good faith belief that they were acting consistent with legal authority by relying on a search warrant, later found to be legally defective. (48) Justice Breyer expressed concern in his dissent that the "'good faith' exception will swallow the exclusionary rule." (49)

3. Facts

   1. GPS

      In Jones the Supreme Court held attaching a GPS tracker to a defendant's vehicle was a search, but did not decide on whether using data from a GPS device already embedded in defendant's property such as in a cell phone would be implicated under the Fourth Amendment. (50) A warrant issued to law enforcement to install a GPS tracker on the defendant's vehicle within ten days in the District of Columbia on suspicion of narcotics trafficking. (51) Police attached the device to the undercarriage of the defendant's wife's vehicle outside the scope of the warrant by doing so on the eleventh day, a day after the warrant expired. (52) The GPS was attached outside the warrant's jurisdiction since it was done while the vehicle was in Maryland rather than the District of Columbia.. (53) Law enforcement then used the GPS to...