Commonwealth v. McCarthy

Court

Massachusetts Supreme Judicial Court

Decided

April 16, 2020

Citation

484 Mass. 493 (2020)

Docket

SJC-12750

Binding in

Massachusetts

Status

Fact-specific

Read the opinion (Decided April 16, 2020)

The question

Was police use of automatic license plate reader data, both historical records and real-time alerts, a search under the Fourth Amendment or Article 14 of the Massachusetts Declaration of Rights?

The facts

Investigating Jason McCarthy for suspected drug distribution, police used ALPRs that State police had installed on both sides of the Bourne and Sagamore bridges, the routes onto and off of Cape Cod. Police reviewed historical data showing how often his vehicle crossed the bridges over about three months, and put his plate on a hotlist for real-time alerts. One alert led to his arrest. He moved to suppress the evidence, the trial judge denied the motion, and the case went to the Supreme Judicial Court before trial.

What the court held

In an opinion by Justice Gaziano, the court affirmed the denial of the motions to suppress. It concluded 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.”

The court identified four ways ALPRs differ from an officer watching traffic:

1. the policy of retaining the information for at least a year
2. the ability to record the plate of nearly every passing vehicle
3. continuous, 24-hour surveillance
4. the link between each plate and the location where it was seen

But it held that the number and placement of cameras also matter. These cameras only showed whether McCarthy was going onto or off of the Cape at a given moment, so they did not reveal “the whole of [his] physical movements.” The court said: “While we cannot say precisely how detailed a picture of the defendant’s movements must be revealed to invoke constitutional protections, it is not that produced by four cameras at fixed locations on the ends of two bridges.”

Chief Justice Gants concurred, raising questions about when police should need a warrant to retrieve stored ALPR data about a targeted individual.

Why it matters for license plate readers

This is one of the most detailed state high court analyses of ALPRs. Several points can matter beyond Massachusetts:

• Network size and placement matter. The court warned that with cameras “in enough locations,” real-time alerts and historical data could invade a reasonable expectation of privacy, making ALPRs “the vehicular equivalent of a cellular telephone ‘ping.’”
• The record matters. The court said it “need not, and indeed cannot,” decide how pervasive a system must be, because the record didn’t show how many cameras existed or detected the defendant. Evidence about the actual network, and which cameras captured a vehicle, can shape the analysis.
• Some alert uses may be permissible regardless. The court noted that the exigency exception could apply to hotlist alerts, and that using ALPRs to find a vehicle reported stolen would not be impermissible.

A Flock deployment can involve far more cameras than the four in this case. How a court would treat a dense network is the question McCarthy left open.

What it didn’t decide

• How many cameras, in what locations, would make ALPR use a search. The court declined to set a bright-line rule.
• Anything binding outside Massachusetts. Courts elsewhere may find it persuasive but aren’t required to follow it.

Later history

The court affirmed the trial judge’s denial of the motions to suppress, and the case returned to the trial court. We have not identified any later decision reversing or limiting McCarthy’s ALPR holding. We don’t have access to a commercial citator, so we can’t confirm every later case that has cited it. Check with an attorney before relying on it.