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The government, without securing a warrant, may use electronic devices to monitor an individual's movements in public to the extent that the same result could be achieved through visual surveillance.
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. 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 the Supreme Judicial Court of Massachusetts.
Under the circumstances, did the use of ALPR technology constitute a search under the Fourth Amendment to the United States Constitution or under art. 14 of the Massachusetts Declaration of Rights?
The Court held that the limited use of automatic license plate readers did not constitute a search within the meaning of either Mass. Const. Decl. Rights art. 14 or the Fourth Amendment because defendant's expectation of privacy was not invaded by four cameras at fixed locations on the ends of two bridges. According to the Court, because the cameras gave police only the ability to determine whether defendant was passing onto or off of Cape Code at a particular moment and when he had previously, that limited surveillance did not allow the Commonwealth to monitor the whole of his public movements or his progress on a single journey. The Court further held that the Stored Communications Act, 18 U.S.C. § 2703, did not apply because the government did not compel production of electronic communications but created and used them in the first instance. Defendant did not have target standing to challenge evidence seized from his codefendant.