On Jan. 23, 2012, the Supreme Court published U.S. v.
Jones,1 holding the warrantless attachment of a GPS
tracking device to an automobile is an unconstitutional
search violating the 4th Amendment.2 The Court
reasoned that placement of a tracking device on an individual's
effects (in this case, a car) constituted a physical intrusion for
the purpose of obtaining information, and was therefore, a
Jones was distinguished from Knotts4 and
Karo,5 where the placement of a tracking device
was constitutional when it occurred before the defendants came into
possession of the effects, and consequently, there was no
trespass.6 In those cases, a reasonable expectation of
privacy analysis was applied instead of the physical intrusion
In Jones, the Court held the expansion of 4th Amendment
analysis under Katz8 to include defendants'
expectations of privacy did not displace the more basic principle
of physical intrusion or trespass.9 For procedural
reasons, the Court did not address the question whether the
placement of a GPS device may nevertheless be a reasonable search
under the 4th Amendment, and left open the door for Jones
to be made irrelevant in the future.
Three years ago, in a case closely mirroring Jones, the
Supreme Judicial Court considered the constitutionally of the use
of GPS tracking devices by police in Commonwealth v.
Connolly.10 While the SJC found there was a valid
GPS warrant, the Court took the opportunity to decide definitively
that the warrantless attachment of a GPS tracking device to a
vehicle was unreasonable and violated Article 14 of the
Massachusetts Constitution.11 Connolly
attempted to disentangle the search and seizure analysis under the
Massachusetts and U.S. constitutions.12
The Court first reviewed the case under the 4th Amendment and
correctly found insufficient case law to support the conclusion
that use of GPS devices was unconstitutional.13 The
Court went on to decide that, unlike Jones, the placement
of a tracking device was a seizure and not a search under
article 14.14 The SJC determined a seizure occurred in
this case when the government interfered with the defendant's
property interests to obtain information for their own
purposes.15 The Court indicated the separate test for
searches is whether a reasonable expectation of privacy is
By deciding the cases under the principles of physical intrusion
and property interference, Jones and Connolly both left
open the same major question: Does a reasonable expectation of
privacy prevent the warrantless GPS or electronic tracking of an
individual when there is no installation or placement of a tracking
Indeed, dissenting opinions have asked the very same question:
What are a defendant's rights when police use electronic
surveillance to track cellular phones and automobiles that come
pre-equipped with GPS systems, which wirelessly transmit location
and tracking data?18 Looking ahead, it seems likely that
without guidance, law enforcement officers and citizens will be
uncertain about the limits of legitimate police action and the
extent of individual rights.
Law enforcement officers looking to obtain wireless tracking
information will look to court precedents claiming no privacy
interest exists in the movement of a vehicle traveling on public
roadways,19 or that an individual has a limited
expectation of privacy in public or in areas routinely used by
others.20 Moreover, these searches do not provide any
further information than officers could have obtained by visual
surveillance.21 If defendants' locations were all that
was implicated, the analysis might end there.
But even though defendants may not have an expectation of privacy
in their physical location, they may yet have privacy in their
"communications." What would actually be at issue when police
intercept tracking signals is not the defendants' locations, but
the communications between their cellular phones or GPS
devices, which wirelessly transmit their locations to the
satellites and cell towers of service providers.
Therefore, in Massachusetts, a major threshold question will be
whether wireless data transmissions of locations are
"communications" protected by G.L. Chapter 272, Section
99,22 the Massachusetts Wiretap Statute. There is little
state case law on this question,23 and the only guidance
the statute gives is the inclusion of "other like connection[s]" in
the definition of "wire communications."24 However,
given the strong language of the Wiretap Statute preamble, which
"the uncontrolled development and unrestricted use of
modern electronic surveillance devices pose grave dangers to the
privacy of all citizens of the commonwealth … the use of such
devices by law enforcement officials must be conducted under strict
judicial supervision …"25
there should be a presumption that advances in electronic
surveillance unanticipated at the time the statute was passed
should be subject to a warrant requirement. Determining that
wireless location transmissions fall under Chapter 272, Section 99
is not dispositive in determining that police must seek a warrant.
Chapter 272, Section 99 leaves open the possibility that police may
intercept and access transmitted location data if a party to the
communication, such as the service provider, gives "prior
consent."26 Courts have been reluctant to apply this
exception and have limited one-party consent by extending
defendant's reasonable expectation of privacy under art.
Another exception to Chapter 272, Section 99 exists when police do
not intercept or record a communication while it is being
transmitted but come into possession of it after it has been
conveyed and the information is stored. Courts justify this
exception because individuals should have no expectations of
privacy in information conveyed to other
Federal law (unlike Massachusetts, where there is no analogous
statute) explicitly prohibits the use of such data under the Stored
Communications Act, 18 U.S.C. Sections 2701-2712.29
Service providers may only disclose the contents of a stored
electronic communication pursuant to a warrant,30 if the
information deals with an emergency involving danger of death or
serious injury (building in an exigent circumstances
exception),31 or if the service provider believes it
"pertain[s] to the commission of a crime."32 This last
exception should not be seen to eviscerate the rule; location data
on its face without more should not be seen as evidence of a
In Massachusetts, Chapter 272, Section 99 requires law enforcement
officers to use traditional investigative techniques before
resorting to wiretapping unless it is reasonably likely to
fail.33 This should help encourage state officers and
courts to seek warrants for traditional GPS tracking methods before
allowing access to wireless location communications.
Despite the morass of legislation and case law, which would be
needed to anticipate rights that should be fundamentally
constitutional, the high courts seem reluctant to more clearly
define the contours of an individual's reasonable expectation of
privacy. Instead, courts continue to push legislators to protect
our 4th Amendment rights.34
Even if the Supreme Court does sketch out boundaries in the
future, Massachusetts courts need not be tied to their decisions in
determining expectation of privacy in this state. When the courts
examine expectation of privacy questions under article 14, they do
not necessarily have to reach the same result as under the 4th
Amendment.35 Article 14 provides individuals more
substantive protection than under the U.S.
Constitution,36 and provides a greater expectation of
ADAM R. WALDSTEIN is a solo practitioner
focusing in criminal defense. He has interned at the Rhode Island
Office of the Public Defender, and attended Boston University
School of Law. He can be reached at
1. United States v. Jones, 565 U.S. ___, No.
10-1259 (Jan. 23, 2012)
2. Id. at 3-4
3. Id., at 4
4. United States v. Knotts, 460 U.S. 276
5. United States v. Karo, 468 U.S. 705
6. Jones, at 8-9
7. Jones, at 8-9.
8. Katz v. United States, 389 U.S. 347
9. United States v. Jones, 565 U.S. ___, No.
10-1259, at 8 (Jan. 23, 2012) (Sotomayor, J., concurring at
10. Commonwealth v. Connolly, 454 Mass. 808,
11. Id. at 811; Mass. Declaration of Rights,
12. Connolly, at 819.
13. Id. at 819-821.
14. Id. at 822-823.
15. Id. at 823.
16. Commonwealth v. Connolly, 454 Mass. 808, 819
17. The SJC dodged the question completely,
while the Supreme Court said: "It may be that achieving the same
result through electronic means, without an accompanying trespass,
is an unconstitutional invasion of privacy, but the present case
does not require us to answer that question." United States v.
Jones, 565 U.S. ___, No. 10-1259, at 12 (Jan. 23, 2012)
18. Jones, at 9-11 (Alito, J. concurring);
Connolly, at 835 (Gants, J. concurring).
19. Knotts at 281-283, Connolly at 819.
20. Commonwealth v. Welch, 420 Mass. 646,
at 654, (1995) (quoting Commonwealth v. Pina, 406 Mass. 540,
21. Knotts, at 282; Connolly at 820.
22. See Wire and Electronic Communications
Interception and Interception of Oral Communications Act, 18 U.S.C
§§ 2510-2520 (West 2012). The federal statute explicitly includes
"any communication from a tracking device" under 18 USC §
2510(12)(c), and defined under 18 USC § 3117.
23. See Dist. Attorney for the Plymouth Dist. v.
New England Tel. and Tel. Co., 379 Mass. 586, (1980) (holding a
broader definition of communication under 272, § 99 than merely
oral communications, including transmission of identity and phone
24. Mass. Gen. Laws ch. 272, § 99(B)(1) (West
25. Id., § 99 pmbl.
26. Id., § 99 B 4.
27. Commonwealth v. Penta, 423 Mass. 546, at
552-553 (1996) (while one party consent is allowed under 272, § 99
a warrant must still be sought under 276, § 1 and the common law
under art 14); See also Commonwealth v. Blood, 400 Mass. 61
28. Commonwealth v. Rivera, 445 Mass. 119 (2005)
(where videotape recording were handed over to police); see also
Commonwealth v. Cote, 407 Mass. 827 (1990) (holding there was no
expectation of privacy in messages left on a phone service); United
States v. Miller, 425 U.S. 435 (1976) (no expectation of privacy in
records held by another).
29. For the distinction between intercepted and
stored data, see United States v. Councilman, 418 F.3d
67 (1st Cir. 2005) and United States v. Szymuszkiewicz, 622 F.3d
701 (7th Cir. 2010).
30. 18 U.S.C § 2703(a) (West 2012).
31. 18 U.S.C § 2702(b)(8) (West 2012).
32. 18 U.S.C § 2702(b)(7)(A)(ii) (West
33. Mass. Gen. Laws ch. 272, § 99(E)(3) (West
2012),see Commonwealth v. Henderson, 410 Mass. 82, 83-84
34. United States v. Jones, 565 U.S. ___, No.
10-1259, at 11 (Jan. 23, 2012) (Alito, J., concurring) (citing
Olmstead v. United States, 277 U.S. 438, at 465-466 (1928)).
35. Commonwealth v. Panetti, 406 Mass. 230, 234
36. Commonwealth v. Blood, 400 Mass. 61, at 68
37. Panetti at 234