Commonwealth v. McCarthy

• Decision Date: 16 April 2020
• Docket Number: SJC-12750
• Citation: 484 Mass. 493,142 N.E.3d 1090
• Parties: COMMONWEALTH v. Jason J. MCCARTHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 493

142 N.E.3d 1090

COMMONWEALTH

v.Jason J. MCCARTHY.

SJC-12750

Supreme Judicial Court of Massachusetts, Barnstable..

Argued October 2, 2019.

Decided April 16, 2020.

Paul A. Bogosian for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

David R. Fox, for Digital Recognition Network, Inc., amicus curiae, submitted a brief.

Matthew Spurlock & David Rassoul Rangaviz, Committee for Public Counsel Services, Ashley Gorski, of New York, Jennifer Lynch & Andrew Crocker, of California, Jessie J. Rossman, Matthew R. Segal, & Nathan Freed Wessler, for American Civil Liberties Union & others, amici curiae, submitted a brief.

Present (Sitting at Barnstable): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

While investigating the defendant on suspicion of drug distribution, police used automatic license plate readers (ALPRs) on the Bourne and Sagamore bridges to track his movements. They accessed historical data, which revealed the number of times he had crossed the bridges over a three-month period, and also received real-time alerts, one of which led to his arrest. We must determine whether the use of ALPR technology in this case constituted a search under the Fourth Amendment to the United States Constitution or under art. 14 of the Massachusetts Declaration of Rights.

We conclude that, while the defendant has a constitutionally protected expectation of privacy in the whole of his public movements, an interest which potentially could be implicated by the widespread use of ALPRs, that interest is not invaded by the limited extent and use of ALPR data in this case.

1. Background. We draw the following from the facts found by the motion judge, reserving some facts for later discussion.

a. ALPR systems. Automatic license plate readers are cameras combined with software that allows them to identify and "read" license plates on passing vehicles. When an ALPR identifies a license plate, it records a photograph of the plate, the system's interpretation of the license plate number, and other data, such as the date, time, location, direction of travel, and travel lane. In Massachusetts, cameras owned and maintained by the State police feed this information into a database maintained by the Executive Office of Public Safety and Security (EOPSS).¹ At some point in 2015, the State police installed fixed camera readers on both sides of the Sagamore and Bourne bridges. While these cameras are not infallible,² they essentially create a comprehensive record of vehicles traveling onto or off of the Cape.

ALPR systems produce two related types of information: real-time alerts and historical data. First, individuals with user credentials can log onto the ALPR system, enter license plate numbers onto a "hot list," and choose users to be notified about any new "hits" for that plate number. If a camera in the ALPR system detects a license plate that matches a number on the hot list, the system sends an electronic mail message or text message to the specified officers. Alert recipients receive an image of the plate, along with the date, time, location, and direction of travel. Second, users can search by license plate number for any historical matches stored in the database. EOPSS currently has a one-year retention policy for ALPR data.³

The Barnstable police department has adopted the State police general order setting out various regulations for the use of ALPR information. See State police General Order No. TRF-11 (July 22, 2014) (Order TRF-11).⁴

b. The investigation. Through surveillance, several "controlled buys," and information from four confidential informants, the Barnstable police developed substantial evidence that a codefendant in this case was distributing heroin from his residence. During that surveillance, they observed a black Hyundai vehicle appear briefly at the codefendant's residence. After further surveillance, and a tip from a confidential informant, police observed the defendant driving the same vehicle, and they began to suspect that he was supplying heroin to his codefendant.

On February 1, 2017, Barnstable police added the license plate number of the black Hyundai to the ALPR hot list, and specified officers to be notified when it was detected crossing the Bourne or Sagamore bridges. On February 8, 2017, several police officers received an alert that the Hyundai had been driven over the Sagamore Bridge onto Cape Cod. Officers subsequently traveled to the codefendant's house and then followed him to Shallow Pond Road in Centerville. At the same time, another officer found the defendant after he drove onto the Cape and followed him to Shallow Pond Road. The officers watched the defendant and the codefendant meet, but no physical exchange was observed. Both vehicles left after approximately thirty seconds.

Police also generated a spreadsheet indicating every time that the Hyundai had passed over the Bourne and Sagamore bridges between December 1, 2016, and February 12, 2017. The spreadsheet contained the dates, times, directions, and specific lanes that the Hyundai had traveled on the bridges. The ALPR spreadsheet showed that the vehicle traveled onto Cape Cod on eight days in February, twenty-one days in January, and nineteen days in December. On multiple of these days, the defendant made more than one trip on the same day. This appeared consistent with the police theory that the defendant routinely was bringing heroin onto the Cape for distribution by his codefendant.

On February 22, 2017, Barnstable police received another alert that the Hyundai had traveled over the Sagamore Bridge onto Cape Cod. Police again followed both the defendant and the codefendant as they drove to Shallow Pond Road. The officers observed a meeting, but did not see an exchange of objects. Both vehicles departed thirty seconds later. This time, police stopped both vehicles on suspicion that a drug transaction had taken place.

After stopping the codefendant, police handcuffed him, read him his Miranda rights, and questioned him at the side of the road. He made incriminating statements, and officers found heroin on his person. Police also ordered the defendant out of his vehicle, handcuffed him, and read him his Miranda rights. The motion judge found that the defendant was under arrest at the moment that he was ordered out of the Hyundai and handcuffed.

At the police station, the defendant waived his Miranda rights and made various incriminating statements. Officers also seized two cellular telephones and United States currency from the defendant's person. The defendant's brother brought more money to pay the bail for the defendant, but police seized almost all of the cash on the belief that it was the proceeds of illegal drug activity.

The defendant filed motions to suppress the ALPR data and the fruits of the arrest. A Superior Court judge held an evidentiary hearing and then denied the motions. The defendant then filed an application for leave to pursue an interlocutory appeal in the county court, pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 474 Mass. 1501 (2016); the single justice allowed the appeal to proceed in this court.

2. Discussion. "In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law" (quotations and citation omitted). Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). Here, reviewing the judge's conclusions of law requires us to determine, among other things, whether the use of ALPR technology by police constitutes a search under the Fourth Amendment or art. 14.

a. ALPRs and constitutional search protections. Under both the Fourth Amendment and art. 14, a search implicates constitutional protections when the government "intrudes on a person's reasonable expectation of privacy" (citation omitted). Commonwealth v. Almonor, 482 Mass. 35, 40, 120 N.E.3d 1183 (2019). "An individual has a reasonable expectation of privacy where (i) the individual has manifested a subjective expectation of privacy in the object of the search, and (ii) society is willing to recognize that expectation as reasonable" (quotations and citation omitted).⁵

Commonwealth v. Johnson, 481 Mass. 710, 715, 119 N.E.3d 669, cert. denied, ––– U.S. ––––, 140 S. Ct. 247, 205 L.Ed.2d 138 (2019). See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

The constitutional jurisprudence governing the technological surveillance of public space has developed rapidly in the last decade. To place the current situation in the proper context, it is necessary to review these developments and their underlying reasoning at some length.

i. Expectations of privacy and technology. As this court and the United States Supreme Court interpret society's reasonable expectations of privacy over time, the courts' overarching goal is to "assure [the] preservation of that degree of privacy against government that existed when the Fourth Amendment [and art. 14 were] adopted." Almonor, 482 Mass. at 54, 120 N.E.3d 1183 (Lenk, J., concurring), quoting Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2214, 201 L.Ed.2d 507 (2018). We have recognized the difficulty of this enterprise as developing technology places "extraordinarily powerful surveillance tool[s]" in the hands of police. Almonor, supra at 46, 120 N.E.3d 1183. See Johnson, 481 Mass. at 716, 119 N.E.3d 669. While acknowledging the usefulness of these tools for crime detection, "both this court and the United States Supreme Court have been careful to guard against the ‘power of technology to shrink the realm of guaranteed privacy’ by emphasizing that privacy rights ‘cannot be left at the mercy of advancing technology but rather must be preserved and protected as new technologies are adopted and applied by law enforcement.’ " Almonor, supra at 41...