Commonwealth v. Carrasquillo

• Decision Date: 07 February 2022
• Docket Number: SJC-13122
• Parties: COMMONWEALTH v. Averyk CARRASQUILLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 N.E.3d 1104

COMMONWEALTH

v.Averyk CARRASQUILLO.

SJC-13122

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 8, 2021.

Decided February 7, 2022.

Suzanne Renaud, for the defendant.

Ian MacLean, Assistant District Attorney (Caitlin Fitzgerald, Assistant District Attorney, also present) for the Commonwealth.

Sara E. Silva, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GAZIANO, J.

In this case we confront the novel question whether the defendant had a constitutionally protected expectation of privacy in social media content that he shared, albeit unknowingly, with an undercover police officer.

After accepting a "friend" request from the officer, the defendant published a video recording to his social media account that featured an individual seen from the chest down holding what appeared to be a firearm. The undercover officer made his own recording of the posting, which later was used in criminal proceedings against the defendant. A Superior Court judge denied the defendant's motion to suppress the recording as the fruit of an unconstitutional search, and the defendant appealed. We transferred the matter to this court on our own motion.

Among other arguments, the defendant suggests that because his account on this particular social media platform was designated as "private," he had an objectively reasonable expectation of privacy in its contents. The Commonwealth contends that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content. Given the rapidly evolving role of social media in society, and the relative novelty of the technology at issue, we decline both the defendant's and the Commonwealth's requests that we adopt their proffered bright-line rules. Rather, as with other questions of a reasonable expectation of privacy, each case must be resolved by carefully considering the totality of the circumstances, bearing in mind the privacy interests that the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights were designed to protect.

In the circumstances here, we conclude that the defendant did not have a reasonable expectation of privacy in the content that he shared with the undercover officer, and thus that no search in the constitutional sense occurred. Accordingly, we affirm the denial of the defendant's motion to suppress.¹

1. Background. a. Snapchat. In order to analyze the particular circumstances in this case, where the defendant's arguments rely upon properties of the specific technology employed, some understanding of Snapchat, the social media application the defendant used to publish the video recordings at issue, is necessary. Snapchat allows users to share text, photographs, and video recordings, collectively known as "snaps." See B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170, 175 n.1 (3d Cir. 2020), aff'd, ––– U.S. ––––, 141 S. Ct. 2038, 210 L.Ed.2d 403 (2021). Snaps may be shared either as "direct snaps" or as "stories." See Note, #NoFilter: A Critical Look at Physicians Sharing Patient Information on Social Media, 16 Ind. Health L. Rev. 325, 329 (2019). Direct snaps are sent directly to another user's inbox, remain visible for ten seconds or less after they are opened, and can be viewed only once. See Magill, Discovering Snapchat: How Will Snapchat and Similar Self-Destructing Social Media Applications Affect Relevance and Spoliation Under the Federal Rules of Civil Procedure?, 9 Charleston L. Rev. 365, 372-373 (2015) (Magill). Stories, on the other hand, by default are shared with a larger audience, remain visible for up to twenty-four hours, and can be continuously replayed. Id. at 374. Either type of snap can be preserved if the recipient takes a screenshot² or otherwise records the content by some other technology external to Snapchat. Id. at 373.

Snapchat accounts can be configured as either "public" or "private." See J.E. Grenig & W.C. Gleisner, III, eDiscovery and Digital Evidence § 3:39 (Nov. 2021 update). When users initially create a Snapchat account, by default it is private, and the user must explicitly choose to make it public. See Ceres, How to Use Snapchat: Critical Tips for New Users, Wired, Oct. 2, 2018, https://www.wired.com/story/how-to-use-snapchat-filters-stories-stickers [https://perma.cc/NW6F-NKK3].

Stories posted to public accounts are visible to all members of the public, whereas stories posted to private accounts by default are visible only to individuals that the user chooses to add as "friends."³ Id.⁴ A user can add friends in one of three ways: "(1) by allowing Snapchat to access his or her phone's address book and add users who have registered using that contact information; (2) by manually inputting his or her friends’ usernames; or (3) by approving other users who have requested to add the user." Magill, 9 Charleston L. Rev. at 371.

b. Factual background. We summarize the facts as found by the motion judge, "supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge" (citation omitted). See Commonwealth v. Leslie, 477 Mass. 48, 49, 76 N.E.3d 978 (2017), quoting Commonwealth v. Warren, 475 Mass. 530, 531, 58 N.E.3d 333 (2016). Sometime in April of 2017, Boston police Officer Joseph Connolly sent a friend request to a private⁵ Snapchat account belonging to the username "Frio Fresh." Connolly sent the request from an "undercover" account that he created to aid in his investigations; the username for that account was a pseudonym chosen at "random," without regard for anyone Connolly "thought [he] might be following." The "profile picture"⁶ associated with the account was a default picture assigned by Snapchat.

Once Frio Fresh accepted Connolly's friend request, Connolly was able to view stories posted to that account and would have been able to receive any direct snaps sent to him. After viewing multiple video recordings, Connolly came to believe that the Frio Fresh account belonged to the defendant. Connolly was familiar with the defendant through his work with the youth violence strike force and knew that the defendant was prohibited from carrying a firearm due to prior criminal convictions.

On May 10, 2017, Connolly viewed a story on the Frio Fresh account⁷ that depicted an individual from the chest down wearing distinctive clothing and displaying what appeared to be a silver revolver. Approximately thirty minutes later, Connolly viewed another story on the account that showed the defendant inside what Connolly recognized as a weightlifting gym in the Dorchester section of Boston. Using a separate device, Connolly made a recording of the first story but was unable to record the second before it was deleted. He then notified other members of the youth violence strike force of his discovery, and officers established surveillance near the gym. Shortly thereafter, officers saw the defendant in that area, wearing the same distinctive clothing as the individual in the Snapchat recordings. They pursued and eventually seized the defendant, recovering a revolver from his right pants pocket. The defendant was arrested and charged with multiple firearms offenses.⁸

Arguing that Connolly's actions effectuated an unconstitutional search in violation of the Fourth Amendment and art. 14, the defendant sought to suppress the video recordings and all evidence derived from them.⁹ At an evidentiary hearing on the motion to suppress, both Connolly and the defendant testified. The motion judge concluded that the defendant had not established that he had had a subjective expectation of privacy in the video recordings. She also decided that, even if the defendant had had a subjective expectation of privacy in those recordings, such an expectation would not have been reasonable. Accordingly, the judge concluded that no search in the constitutional sense occurred, and denied the defendant's motion. The defendant subsequently entered into a conditional plea arrangement, reserving his right to pursue an appeal from the denial of his motion to suppress.¹⁰

c. Privacy interests. The Fourth Amendment and art. 14 guarantee the right to be free from unreasonable searches. Commonwealth v. Almonor, 482 Mass. 35, 40, 120 N.E.3d 1183 (2019). In interpreting these constitutional protections, we bear in mind "the circumstances under which [they were] framed, the causes leading to [their] adoption, the imperfections hoped to be remedied, and the ends designed to be accomplished." Jenkins v. Chief Justice of the Dist. Court Dep't, 416 Mass. 221, 229, 619 N.E.2d 324 (1993), quoting General Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 158, 193 N.E. 799 (1935). See United States v. Jones, 565 U.S. 400, 405-406, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (considering historical purpose of Fourth Amendment in determining whether search occurred). As society continues to change in the face of evolving technologies, we seek to assure the same level of privacy against government intrusion that existed when the Fourth Amendment and art. 14 were adopted. See Commonwealth v. McCarthy, 484 Mass. 493, 498, 142 N.E.3d 1090 (2020).

Given the substantial differences between the physical world in which our constitutions were adopted and the electronic world that we now navigate, this task is delicate and at times fraught. See Jones, 565 U.S. at 420, 132 S.Ct. 945 (Alito, J., concurring) ("it is almost impossible to think of late-18th-century situations that are analogous to" electronic surveillance); Commonwealth v. Mora, 485 Mass. 360, 374, 150 N.E.3d 297 (2020) (same). We also are mindful that we cannot know the ways in which technology inevitably will change in years to come, and we do not wish to "embarrass the future" by adopting bright-line rules or drawing analogies that might prove...