Exclusionary Rule Safe in Massachusetts – For Now

Last week, the Supreme Judicial Court reaffirmed that in Massachusetts, evidence unlawfully obtained from a police search will be excluded in criminal trials even in cases in which the police had good reason to believe the search was legal. That ruling buttresses a longstanding difference between federal law and Massachusetts law. In federal court, prosecutors can insulate police errors by arguing the police had a good faith basis to use an illegal tactic, and therefore evidence should not be suppressed. Not so in Massachusetts – at least for now.

In Commonwealth v. Fredericq, police used cellphone data to track the defendant from Florida to Massachusetts. Police had received information that the defendant might be trafficking drugs and they obtained a court order allowing them to take an initial look at his cellphone records. Those records indicated that a phone owned by the defendant had indeed gone to Florida, although the defendant’s friend, not the defendant, was actually using the phone.

But police did not take a critical, additional step; they did not obtain a warrant to continue to track the phone after that initial look so they could follow the defendant’s movements. Specifically, police did not obtain a court order allowing them to receive a real-time report about the phone’s cell site location information (CSLI) data, which reports a phone’s approximate location each time it “pings” a nearby cellphone tower. At the time, it was not entirely clear that they needed such a warrant; that issue was decided years later in a pair of cases that held that police could not track CSLI data prospectively for an unlimited amount of time without proving they had probable cause to investigate a crime and getting a court’s blessing to do so. Thus, unaware that their actions might be illegal, police had the company provide them with a continuous tracking report. That allowed them to knock on the defendant’s door as soon as he returned to Massachusetts. The defendant consented to a search, and police found cocaine in the crawl space near his bedroom. Based on that evidence he was charged with a crime.

The defendant moved to suppress those drugs as “fruits of the poisonous tree” – in other words, as evidence obtained only after police had done something illegal to zero in on the defendant in the first place. The trial court granted the motion, and after the Appeals Court weighed in, the Supreme Judicial Court upheld the decision. The Court held that the search of the phone tainted the search of defendant’s room. The Court reasoned that the police would never have arrived at the defendant’s doorstep if they had not been illegally tracking his movements. That meant that evidence gathered during the search of the defendant’s home was a product of that fateful error.

Critically, the Court reached that conclusion even though police had two reasons to believe that they had every right to search defendant’s home: At the time of the search, no court had ever held that using CSLI data to track defendants without a warrant was unconstitutional. And, if that weren’t enough, the defendant consented to the search of his home. Nevertheless, the Court held that neither of those facts could shield the police from their illegal conduct. In particular, the Court held that Massachusetts does not, as of now, recognize a “good faith exception” to the warrant requirement. In federal court, prosecutors may use illegally obtained evidence if police had a reasonable, good faith belief that they were acting according to legal authority. The Supreme Judicial Court explained that in Massachusetts, if the Commonwealth wants to use evidence after illegally obtaining information, the Commonwealth must prove “attenuation,” in other words, some break in the “causal chain of events” between the police’s illegal tactic and the evidence they found. One thing that might break such a chain is some intervening event that puts distance between the bad act and the search (like, for example, a long time period between the illegal tactic and the moment police discovered evidence). Proof of attenuation depends on multi-factor test and the trial court concluded that the Commonwealth had not proved attenuation in this case.

Fredericq thus reaffirmed the Supreme Judicial Court’s commitment to a broad exclusionary rule. A partial dissent and concurrence, however, indicated that at least two members of the court were open to revisiting “the good faith exception” in the future. Justice Cypher’s partial dissent pointed out that a case such as this was a classic example of why a good faith exception makes sense – the police thought they were obeying the letter of the law, both because they obtained a court order allowing them to track the defendant’s cell phone and then because the defendant consented to having his home searched. The dissent urged the court to adopt the federal rule that would have allowed the evidence to come in. Justice Lowy’s concurrence recognized that while the majority opinion was legally correct, there would be “potential benefits” to adopting a good faith exception to the exclusionary rule. And the majority conceded that if the case had wound its way through the courts in a different way it might have been appropriate to consider an argument about the good faith exception (the majority stated that the Commonwealth had failed to properly raise and preserve this issue on appeal). Thus, Fredricq may be a pyrrhic victory for defendants in the future as it very well may open the door for harsher rules down the road.