Court: Police have to get a warrant to ping a cell phone - unless they have a really good emergency reason not to

And one of those reasons would be a manhunt for a man police believed had just murdered somebody with a sawed-off shotgun, the Supreme Judicial Court ruled today.

In a ruling on a 2012 murder in Brockton, the state's highest court first said that police normally would need a warrant to ask a wireless provider to "ping" a phone, which could reveal its location via GPS, because pinging constitutes the sort of a search covered by the Fourth Amendment and the equivalent section of the state constitution.

But, the justices continued, as with all other searches, there are certain "exigent circumstances" under which police can seek a ping without a warrant if they can show sufficient probable cause for the search.

At the same time, three justices said the case shows it's past time for the state legislature to pass a law that would let police seek a search warrant from a judge electronically when time is of the essence, rather than requiring a hearing in person.

In the case at question, police were looking for Jerome Almonor, whom they suspected of shooting a man in the chest with a sawed off shotgun on August 10, 2012. Within four hours of the discovery of the dying victim, police had IDed Almonor - who has yet to come to trial - as as a suspect and had obtained his cell number, which they asked his phone provider to ping, according to an SJC summary.

The results of that, coupled with other evidence led them to Almonor's former girlfriend's home, which they entered with the permission of the house's owner and found Almonor hiding behind a locked door in his former girlfriend's room. Later, with a search warrant in hand, police searched the room and found a sawed-off shotgun and a bulletproof vest.

A district-court judge agreed with Almonor's lawyer to toss the shotgun as evidence, based on the argument it was "the fruit of an unlawful search," because pinging is a form of search and police didn't ask a judge for a search warrant first.

The SJC reversed that ruling today, but agreed with the judge that police can't simply ask wireless companies to ping phones.

In their ruling, the justices first started out by considering the privacy implications of letting police have carriers ping their customers' phones:

The intrusive nature of police action that causes an individual's cell phone to transmit its real-time location raises distinct privacy concerns. When the police ping a cell phone, as they did in this case, they compel it to emit a signal, and create a transmission identifying its real-time location information. ... This action and transmission is initiated and effectively controlled by the police, and is done without any express or implied authorization or other involvement by the individual cell phone user. ... Without police direction, such data would also not otherwise be collected and retained by the service provider.

We confidently conclude that such police action implicates reasonable expectations of privacy. Indeed, society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data.

The court continued that the very ease with which police could track people by their phones is reason for caution:

The decision to obtain a cell phone .. does not in any way authorize police to independently, and without judicial oversight, invade or manipulate the device to compel it to reveal information about its user. Nor does it operate to reduce one's expectation of privacy against such action.

Manipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion. In today's digital age, the real-time location of an individual's cell phone is a proxy for the real-time location of the individual. Indeed, cell phones are "an indispensable part of" daily life and exist as "almost permanent attachments to [their users'] bodies" (citation omitted). Augustine, 467 Mass. at 245-246. Cell phones "physically accompany their users everywhere" such that tracking a cell phone results in "near perfect surveillance" of its user. Carpenter, 138 S. Ct. at 2218. Augustine, supra at 246. The Commonwealth's ability to identify a cell phone's real-time location is therefore, in essence, the ability to identify the real-time location of its user.

The fact that cell phones are now "almost a feature of human anatomy" effectively means that individuals are constantly, and often unknowingly, carrying a hidden tracking device that can be activated by law enforcement at any moment, subject only to the constraints of whether law enforcement knows the phone number and whether the cell phone is turned on (quotation and citation omitted). Carpenter, 138 S. Ct. at 2218. See Matter of an Application, 849 F. Supp. 2d at 540 ("Location data from a cell phone . . . enables law enforcement to locate a person entirely divorced from all visual observation. Indeed, this is ostensibly the very characteristic that makes obtaining location data a desirable method of locating the subject . . ."). This extraordinarily powerful surveillance tool finds no analog in the traditional surveillance methods of law enforcement and therefore grants police unfettered access "to a category of information otherwise unknowable." Carpenter, supra. Indeed, prior to the advent of cell phones, law enforcement officials were generally required, by necessity, to patrol streets, stake out homes, interview individuals, or knock on doors to locate persons of interest. See United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring) (recognizing that, "[i]n the pre-computer age," law enforcement surveillance tools were limited and thus "the greatest protections of privacy were neither constitutional nor statutory, but practical"); id. 415-416 (Sotomayor, J., concurring) ("because GPS monitoring is cheap . . . and . . . proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility" [quotation and citation omitted]). For this reason, society's expectation has been that law enforcement could not secretly and instantly identify a person's real-time physical location at will.

But all that - and more - having been said, the court continued that in this particular case, police met the exceptions that would apply to any other warrantless searches.

The police had probable cause to find Almonor based on statements from several witnesses who IDed him as the shooter by picking him out of photo arrays, the court ruled. And police had a very good "exigent circumstance" to seek to do a warrantless search via a ping request: The high probablity that Almonor would flee:

As to the risk of flight in this case, there were reasonable grounds to believe that the defendant would have been aware that police would be looking for him. He had shot the victim in the daytime in the presence of others, and thus he likely knew that his crime was likely to attract the attention of authorities. He was also undoubtedly aware that there were at least two witnesses who could identify him: the second person in the defendant's vehicle and the second passenger in the victim's vehicle. ...

The suspect was already on the run after fleeing the scene, and there was a risk that, with the passage of time, he would take further precautions to effectuate his escape if police did not locate him.

Also:

As to the risk of destruction of evidence, the record reflects that police learned that the defendant still possessed the sawed-off shotgun at the time he fled the scene of the shooting. Because a sawed-off shotgun is per se illegal, it requires ongoing concealment from authorities. ...

Finally, police also had reasonable grounds to believe that the defendant posed an immediate risk to the safety of police and others. The suspect possessed a sawed-off shotgun, a dangerous and per se illegal weapon.

And so:

With these considerations in mind, we conclude that under the circumstances at the time the defendant's cell phone was pinged, the police had reasonable grounds to believe that obtaining a warrant would be impracticable because taking the time to do so would have posed a significant risk that the suspect may flee, evidence may be destroyed, or the safety of the police or others may be endangered.

The decision was not unanimous. Justice Barbara Lenk and Chief Justice Ralph Gants wrote that while they agreed with the overall ruling - that a warrantless search was permissible in this case - the majority ruled that way for the wrong reason, based primarily on property rights, rather than privacy rights.

In Lenk's and Gants's view, the majority came to its conclusion based on the manipulation of a cell phone - a piece of property - to give away its location, rather than on the right of privacy, to be left alone.

A search does not require governmental manipulation of an individual's property. Concluding so would carve out a gaping exception for violations of an individual's privacy that do not rest on government interference with an individual's property. Federal law, and this court's more recent jurisprudence, have moved beyond a focus on the nature of the government's physical intrusion in determining whether a search has occurred. It is rather the right to be let alone, including and especially within the home, that mandates that the government obtain a search warrant, supported by probable cause, before it may locate a person through a ping of a cellular telephone. ...

The ability of the government to know where anyone is at any moment poses a profound threat to the right to be let alone. A real-time ping permits police not merely to observe an individual's movements after the fact but to confront an individual wherever he or she may be. When police act on realtime information by arriving at a person's location, they signal to both the individual and his or her associates that the person is being watched. "Awareness that the Government may be watching chills associational and expressive freedoms." See United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring). To know that the government can find you, anywhere, at any time is -- in a word -- "creepy." United States v. Pineda-Moreno, 617 F.3d 1120, 1126 (9th Cir. 2010) (Kozinski, J., dissenting), judgment vacated, 565 U.S. 1189 (2012). "It is a power that places the liberty of every [person] in the hands of every petty officer" (citation omitted), Blood, 400 Mass. at 71, and risks "alter[ing] the relationship between citizen and government in a way that is inimical to democratic society" (citation omitted), Jones, supra at 415–417.