Looking beyond Jones: GPS surveillance in Massachusetts

Issue April 2012 April 2012 By ADAM R. WALDSTEIN

On Jan. 23, 2012, the Supreme Court published U.S. v. Jones,1 holding the warrantless attachment of a GPS tracking device to an automobile is an unconstitutional search violating the 4th Amendment.2 The Court reasoned that placement of a tracking device on an individual's effects (in this case, a car) constituted a physical intrusion for the purpose of obtaining information, and was therefore, a search.3

was distinguished from Knotts4 and Karo,5 where the placement of a tracking device was constitutional when it occurred before the defendants came into possession of the effects, and consequently, there was no trespass.6 In those cases, a reasonable expectation of privacy analysis was applied instead of the physical intrusion rationale.7

In Jones, the Court held the expansion of 4th Amendment analysis under Katz8 to include defendants' expectations of privacy did not displace the more basic principle of physical intrusion or trespass.9 For procedural reasons, the Court did not address the question whether the placement of a GPS device may nevertheless be a reasonable search under the 4th Amendment, and left open the door for Jones to be made irrelevant in the future.

Three years ago, in a case closely mirroring Jones, the Supreme Judicial Court considered the constitutionally of the use of GPS tracking devices by police in Commonwealth v. Connolly.10 While the SJC found there was a valid GPS warrant, the Court took the opportunity to decide definitively that the warrantless attachment of a GPS tracking device to a vehicle was unreasonable and violated Article 14 of the Massachusetts Constitution.11 Connolly attempted to disentangle the search and seizure analysis under the Massachusetts and U.S. constitutions.12

The Court first reviewed the case under the 4th Amendment and correctly found insufficient case law to support the conclusion that use of GPS devices was unconstitutional.13 The Court went on to decide that, unlike Jones, the placement of a tracking device was a seizure and not a search under article 14.14 The SJC determined a seizure occurred in this case when the government interfered with the defendant's property interests to obtain information for their own purposes.15 The Court indicated the separate test for searches is whether a reasonable expectation of privacy is infringed upon.16

By deciding the cases under the principles of physical intrusion and property interference, Jones and Connolly both left open the same major question: Does a reasonable expectation of privacy prevent the warrantless GPS or electronic tracking of an individual when there is no installation or placement of a tracking device? 17

Indeed, dissenting opinions have asked the very same question: What are a defendant's rights when police use electronic surveillance to track cellular phones and automobiles that come pre-equipped with GPS systems, which wirelessly transmit location and tracking data?18 Looking ahead, it seems likely that without guidance, law enforcement officers and citizens will be uncertain about the limits of legitimate police action and the extent of individual rights.

Law enforcement officers looking to obtain wireless tracking information will look to court precedents claiming no privacy interest exists in the movement of a vehicle traveling on public roadways,19 or that an individual has a limited expectation of privacy in public or in areas routinely used by others.20 Moreover, these searches do not provide any further information than officers could have obtained by visual surveillance.21 If defendants' locations were all that was implicated, the analysis might end there.

But even though defendants may not have an expectation of privacy in their physical location, they may yet have privacy in their "communications." What would actually be at issue when police intercept tracking signals is not the defendants' locations, but the communications between their cellular phones or GPS devices, which wirelessly transmit their locations to the satellites and cell towers of service providers.

Therefore, in Massachusetts, a major threshold question will be whether wireless data transmissions of locations are "communications" protected by G.L. Chapter 272, Section 99,22 the Massachusetts Wiretap Statute. There is little state case law on this question,23 and the only guidance the statute gives is the inclusion of "other like connection[s]" in the definition of "wire communications."24 However, given the strong language of the Wiretap Statute preamble, which states:

"the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth … the use of such devices by law enforcement officials must be conducted under strict judicial supervision …"25

there should be a presumption that advances in electronic surveillance unanticipated at the time the statute was passed should be subject to a warrant requirement. Determining that wireless location transmissions fall under Chapter 272, Section 99 is not dispositive in determining that police must seek a warrant. Chapter 272, Section 99 leaves open the possibility that police may intercept and access transmitted location data if a party to the communication, such as the service provider, gives "prior consent."26 Courts have been reluctant to apply this exception and have limited one-party consent by extending defendant's reasonable expectation of privacy under art. 14.27

Another exception to Chapter 272, Section 99 exists when police do not intercept or record a communication while it is being transmitted but come into possession of it after it has been conveyed and the information is stored. Courts justify this exception because individuals should have no expectations of privacy in information conveyed to other parties.28

Federal law (unlike Massachusetts, where there is no analogous statute) explicitly prohibits the use of such data under the Stored Communications Act, 18 U.S.C. Sections 2701-2712.29 Service providers may only disclose the contents of a stored electronic communication pursuant to a warrant,30 if the information deals with an emergency involving danger of death or serious injury (building in an exigent circumstances exception),31 or if the service provider believes it "pertain[s] to the commission of a crime."32 This last exception should not be seen to eviscerate the rule; location data on its face without more should not be seen as evidence of a crime.

In Massachusetts, Chapter 272, Section 99 requires law enforcement officers to use traditional investigative techniques before resorting to wiretapping unless it is reasonably likely to fail.33 This should help encourage state officers and courts to seek warrants for traditional GPS tracking methods before allowing access to wireless location communications.

Despite the morass of legislation and case law, which would be needed to anticipate rights that should be fundamentally constitutional, the high courts seem reluctant to more clearly define the contours of an individual's reasonable expectation of privacy. Instead, courts continue to push legislators to protect our 4th Amendment rights.34

Even if the Supreme Court does sketch out boundaries in the future, Massachusetts courts need not be tied to their decisions in determining expectation of privacy in this state. When the courts examine expectation of privacy questions under article 14, they do not necessarily have to reach the same result as under the 4th Amendment.35 Article 14 provides individuals more substantive protection than under the U.S. Constitution,36 and provides a greater expectation of privacy.37

ADAM R. WALDSTEIN is a solo practitioner focusing in criminal defense. He has interned at the Rhode Island Office of the Public Defender, and attended Boston University School of Law. He can be reached at [e-mail adam].

1.    United States v. Jones, 565 U.S. ___, No. 10-1259 (Jan. 23, 2012)
2.    Id. at 3-4
3.    Id., at 4
4.    United States v. Knotts, 460 U.S. 276 (1983)
5.    United States v. Karo, 468 U.S. 705 (1984)
6.    Jones, at 8-9
7.    Jones, at 8-9.
8.    Katz v. United States, 389 U.S. 347 (1967).
9.    United States v. Jones, 565 U.S. ___, No. 10-1259, at 8 (Jan. 23, 2012) (Sotomayor, J., concurring at 2).
10.    Commonwealth v. Connolly, 454 Mass. 808, (2009).
11.    Id. at 811; Mass. Declaration of Rights, art. 14.,
12.    Connolly, at 819.
13.    Id. at 819-821.
14.    Id. at 822-823.
15.    Id. at 823.
16.    Commonwealth v. Connolly, 454 Mass. 808, 819 (2009).
17.    The SJC dodged the question completely, while the Supreme Court said: "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question." United States v. Jones, 565 U.S. ___, No. 10-1259, at 12 (Jan. 23, 2012)
18.    Jones, at 9-11 (Alito, J. concurring); Connolly, at 835 (Gants, J. concurring).
19.    Knotts at 281-283, Connolly at 819.
20.    Commonwealth v. Welch, 420 Mass.  646, at 654, (1995) (quoting Commonwealth v. Pina, 406 Mass. 540, 544-546 (1980)).
21.    Knotts, at 282; Connolly at 820.
22.    See Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C §§ 2510-2520 (West 2012). The federal statute explicitly includes "any communication from a tracking device" under 18 USC § 2510(12)(c), and defined under 18 USC § 3117.
23.    See Dist. Attorney for the Plymouth Dist. v. New England Tel. and Tel. Co., 379 Mass. 586, (1980) (holding a broader definition of communication under 272, § 99 than merely oral communications, including transmission of identity and phone numbers).
24.    Mass. Gen. Laws ch. 272, § 99(B)(1) (West 2012).
25.    Id., § 99 pmbl.
26.    Id., § 99 B 4.
27.    Commonwealth v. Penta, 423 Mass. 546, at 552-553 (1996) (while one party consent is allowed under 272, § 99 a warrant must still be sought under 276, § 1 and the common law under art 14); See also Commonwealth v. Blood, 400 Mass. 61 (1987).
28.    Commonwealth v. Rivera, 445 Mass. 119 (2005) (where videotape recording were handed over to police); see also Commonwealth v. Cote, 407 Mass. 827 (1990) (holding there was no expectation of privacy in messages left on a phone service); United States v. Miller, 425 U.S. 435 (1976) (no expectation of privacy in records held by another).
29.    For the distinction between intercepted and stored data,   see United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) and United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010).
30.    18 U.S.C § 2703(a) (West 2012).
31.    18 U.S.C § 2702(b)(8) (West 2012).
32.    18 U.S.C § 2702(b)(7)(A)(ii) (West 2012).
33.    Mass. Gen. Laws ch. 272, § 99(E)(3) (West 2012),see Commonwealth v. Henderson, 410 Mass. 82, 83-84 (1991).
34.    United States v. Jones, 565 U.S. ___, No. 10-1259, at 11 (Jan. 23, 2012) (Alito, J., concurring) (citing Olmstead v. United States, 277 U.S. 438, at 465-466 (1928)).
35.    Commonwealth v. Panetti, 406 Mass. 230, 234 (1989).
36.    Commonwealth v. Blood, 400 Mass. 61, at 68 n.9 (1987).
37.    Panetti at 234