Commonwealth v. Almonor

• Decision Date: 23 April 2019
• Docket Number: SJC-12499
• Citation: 120 N.E.3d 1183,482 Mass. 35
• Parties: COMMONWEALTH v. Jerome ALMONOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

482 Mass. 35

120 N.E.3d 1183

COMMONWEALTH

v.Jerome ALMONOR.

SJC-12499

Supreme Judicial Court of Massachusetts, Plymouth..

Argued September 5, 2018.

Decided April 23, 2019.

Jessica L. Kenny, Assistant District Attorney (Nathaniel Kennedy, Assistant District Attorney, also present) for the Commonwealth.

Matthew Spurlock, Committee for Public Counsel Services (Randall K. Power also present) for the defendant.

Jennifer Lynch & Andrew Crocker, of California, Chauncey B. Wood, Christopher T. Holding, Boston, Matthew R. Segal, & Jessie J. Rossman, for Electronic Frontier Foundation & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

KAFKER, J.

The police quickly identified the defendant as the person suspected of murdering the victim with a sawed-off shotgun. In an attempt to pinpoint the location of the fleeing suspect, the police caused the defendant's cell phone to be "pinged."¹ They did so without a warrant. The legality of that ping in these circumstances is the central legal issue in this murder case.

The police had learned the defendant's cell phone number within approximately four hours of the shooting. After receiving this information, the police contacted the defendant's cellular service provider (service provider) to request the real-time location of his cell phone pursuant to a "mandatory information for exigent circumstances requests" form. The service provider eventually "pinged" the defendant's cell phone, an action that caused the defendant's cell phone to transmit its real-time global positioning system (GPS) coordinates to the service provider. Once received, the cell phone's GPS coordinates were relayed to police, who used the coordinates, in combination with information from another witness, to identify a single address in Brockton as the defendant's likely location. Upon arriving at the Brockton address, police entered the home with the consent of the homeowner and located the defendant in an upstairs bedroom. After the defendant was arrested, police obtained and executed a search warrant for the bedroom and seized a sawed-off shotgun and a bulletproof vest as evidence of the defendant's involvement in the victim's shooting death.

The defendant moved to suppress the evidence seized by police, arguing that it was the fruit of an unlawful search under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion judge agreed, and the defendant's suppression motion was allowed. A single justice of this court allowed the Commonwealth's application to pursue an interlocutory appeal and reported the appeal to the Appeals Court. We subsequently allowed the defendant's petition for direct appellate review.

This appeal raises an issue of first impression in Massachusetts: whether police action causing an individual's cell phone to reveal its real-time location constitutes a search in the constitutional sense under either the Fourth Amendment or art. 14. For the reasons set forth below, we conclude that, under art. 14, it does. We also conclude, however, that in the circumstances of this case, the warrantless search was supported by probable cause and was reasonable under the exigent circumstances exception to the search warrant requirement. We therefore reverse the motion judge's allowance of the defendant's motion to suppress.^{2 ,3}

Background. We summarize the facts as found by the motion judge, supplemented by uncontested facts in the record implicitly credited by him. See Commonwealth v. Jones–Pannell, 472 Mass. 429, 436, 35 N.E.3d 357 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008).

At approximately 5:19 P . M . on August 10, 2012, a Brockton police officer responded to a reported shooting. When he arrived at the scene, the officer saw a black car in the driveway. He found the victim inside the car, unconscious, with a gunshot wound

to the chest. The victim was transported to a hospital, where he was pronounced dead approximately one hour later. Police immediately began investigating the shooting.

An eyewitness to the shooting was interviewed by police at approximately 8:15 P . M . The eyewitness explained that he and the victim had been sitting in the black car parked in the driveway when a second car pulled up behind them. Two men got out of the second car and entered the house, returning to the car a few minutes later. One of the men, later identified as the defendant, "engaged in an unfriendly exchange" with the victim. Following this exchange, the defendant pulled out a shotgun wrapped in tape and told the eyewitness and the victim to empty their pockets. After some arguing, the defendant shot the victim in the chest. The defendant and the other man with whom he had arrived then entered their vehicle and left the scene. The eyewitness stated that he had a clear view of the shooter, who was only approximately ten feet away at the time of the shooting. The eyewitness later identified the defendant from a photographic array.

During the course of this initial investigation, two officers also located and interviewed a witness who revealed that the defendant had a former girlfriend. Police later learned that the defendant's former girlfriend lived at an address on a particular street in Brockton.

By 9:10 P . M ., two officers interviewed the man who had been in the car with the defendant. He admitted that he had been present at the shooting and knew the defendant. At some point before the conclusion of the interview, he provided police with the defendant's cell phone number. He also informed the officers that he had dropped the defendant off at an intersection not far from the scene of the shooting and that the defendant still had the shotgun.

By 11 P . M ., the police had conducted numerous witness interviews and performed multiple identifications of the defendant using photographic arrays. They learned that the shotgun was "cut down in the front." On the basis of the information they received, a police officer sent a "mandatory information for exigent circumstance requests" form to the defendant's service provider. The officer provided the defendant's cell phone number and requested several pieces of information, including the "precise location ... (GPS location)" of the defendant's cell phone.⁴ As grounds for the request, the officer wrote, "outstanding murder suspect, shot and killed victim with shotgun. Suspect still has shotgun." The service provider did not respond to the written request.

At approximately 12 A . M ., police still had not heard from the service provider. The officer called a telephone number that the service provider maintained for law enforcement use and requested the real-time latitude and longitude coordinates of the defendant's cell phone. The service provider "pinged" the defendant's cell phone, thereby causing the cell phone to reveal its real-time GPS coordinates at the time of the ping. Once its location was revealed, the service provider relayed the cell phone's GPS coordinates to the police. The officer entered the coordinates in a common computer mapping program, which identified the cell phone as being in the "general location" of a particular street in Brockton.⁵ Having already learned that the defendant's former girlfriend lived at a particular address on that street, police decided to investigate the former girlfriend's address.

Less than one hour later, multiple police officers approached the defendant's former girlfriend's house, announced their presence, and knocked on the door. The homeowner, the former girlfriend's father, opened the door. He indicated that he knew the defendant but did not believe that the defendant was at the house. He said that his daughter should be upstairs in her room, and he gave police permission to go upstairs and speak with her.

When officers reached the second floor, they eventually encountered a locked door. They knocked several times and ordered anyone inside to come out. The officers heard a male voice inside the bedroom say, "Shit." The defendant eventually opened the door, wearing nothing but boxer shorts. He was ordered to the ground and arrested. Officers thereafter conducted a protective sweep of the bedroom and observed a sawed-off shotgun and a bulletproof vest in plain view. They secured the scene while one officer requested a warrant to search the house. After receiving the warrant, police searched the house and seized, among other items, the shotgun and vest.

The defendant eventually moved to suppress the evidence seized from the bedroom, as well as his subsequent statements to police, on the grounds that they were the fruit of a warrantless search of the real-time location of his cell phone. After conducting a three-day evidentiary hearing, the motion judge concluded that the ping of the defendant's cell phone was a search under the Fourth Amendment and art. 14 and that the search was not justified by the exigent circumstances exception to the warrant requirement.

Discussion. When reviewing a ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (citation omitted). Commonwealth v. Tremblay, 480 Mass. 645, 652, 107 N.E.3d 1121 (2018). In assessing the propriety of the motion judge's decision, we must make the threshold determination whether the ping of the defendant's cell phone constituted a search in the constitutional sense under either the Fourth Amendment or art. 14. If it did, we must determine whether conducting the search without a warrant was nonetheless reasonable under the exigent circumstances exception to the search warrant requirement.⁶

1. Search. The Fourth Amendment and art. 14 protect individuals from unreasonable searches and seizures. For these constitutional protections to apply, however,...