MA: No REP in MBTA fare card information and station videos that put def near scene of murder

The third-party doctrine should not be mechanically applied to MBTA (CharlieCard) fare card information under this court’s precedents. Nevertheless, there was no subjective reasonable expectation of privacy in the information. It only tracked his movements on the transit system, not everywhere like a cell phone. Here, the fare card led to train station videos that put defendant near the scene of a murder. Also, the affidavit for the search warrant for his cell phone showed a reasonable inference that the phone was used by conspirators to the murder. Commonwealth v. Henley, 2021 Mass. LEXIS 446 (Aug. 5, 2021):

In the digital age, the technology of real-time monitoring has become commonplace. Before electronic monitoring, “law enforcement might have pursued a suspect for a brief stretch, but doing so ‘for any extended period of time was difficult and costly and therefore rarely undertaken.'” Carpenter, 138 S. Ct. at 2217, quoting United States v. Jones, 565 U.S. 400, 429 (2012). Today, real-time monitoring can “provide[] an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.'” Carpenter, supra, quoting Jones, supra at 415. “[I]t is objectively reasonable for individuals to expect to be free from sustained electronic monitoring of their public movements.” Commonwealth v. McCarthy, 484 Mass. 493, 503 (2020). See Jones, supra at 417 (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks” [citations omitted]). Accordingly, we decline to “mechanically apply[] the third-party doctrine,” and we reject the doctrine as applied to this case, where the data at issue has no connection to the limited purpose for which an individual uses a CharlieCard. Carpenter, supra at 2219.

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Here, we conclude that the limited extent and use of the MBTA data does not implicate the defendant’s expectation of privacy in the whole of his public movements. See Estabrook, 472 Mass. at 858. See also Commonwealth v. Johnson, 481 Mass. 710, 726-727, cert. denied, 140 S. Ct. 247 (2019). The data garnered from a CharlieCard is generated only when an individual pays a fare to enter the MBTA system. Once an individual is traveling within the MBTA system, a CharlieCard does not track his or her movements. In addition, as the Commonwealth notes, surveillance cameras are present in plain view everywhere a CharlieCard transaction can occur. Zachery did not have a reasonable expectation in his MBTA travel history for two isolated days. The data that the Commonwealth received from those two days was a far cry from the months of uninterrupted monitoring in Mora, 485 Mass. at 373-374. This short time period and the limited data generated by Zachery’s CharlieCard did not constitute an aggregation of data points that revealed extensive detail about Zachery’s movements, much less a profile of his life. See id. at 375. See also United States v. Hammond, 996 F.3d 374, 389 (7th Cir. 2021), quoting Carpenter, 138 S. Ct. at 2217 (“the record of [the defendant’s] movements for a matter of hours on public roads does not provide a ‘window into [the] person’s life, revealing . . . his familial, political, professional, religious, and sexual associations’ to the same, intrusive degree as the collection of historical CSLI”). Zachery’s CharlieCard generated far less data than other types of location tracking, such as global positioning system monitoring or CSLI gathered from a cell phone. Thus, under the mosaic theory, the police investigation of Zachery’s CharlieCard travel history did not constitute a search.

Because we conclude that the government’s use of MBTA data did not constitute a search in the constitutional sense, the Commonwealth’s use of the surveillance video footage coinciding with the data from Zachery’s CharlieCard was lawful.

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