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IN THB SUPIt_E--'ME COURT OF OHIO
State of Ohio, Case No. 13-0650
Appellee, On Appeal from the Butler County Court V. of Appeals, Twelfth Appellate District Aron L. Rich, Court of Appeals Appellant. Case No. CA2012-03-044
MOTION FOR. RECONSIDERATION OF APPELLANT ARON L. RICII
Martin S. Pinales (0024570) Candace C. Crouse (0072405) (COUNSEL OF RECORD) Pinales Stachler Young Burrell & Crouse Co. 455 Delta Avenue, Suite 105 Cincinnati, Ohio 45226 (513) 252-2750 Fax No. (513) 252-2751 mpinalesrpinalesstachler.com cerou seea,pinalesstachler. com
COUNSEL FOR APPELLANT, ARON L. RICH
Michael T. Gmoser (0002132) Butler County Prosecuting Attorney Michael A, Oster, Jr. (0076491) (COUNSEL OF RECORD) Assistant Prosecuting Attorney Chief, Appellate Division Government Setvices Center 315 High Street, 11'h Floor Hamilton, Ohio 45012-0515 (513) 785-5204 osterm`a butlercountyohio,org
COUNSEL FOR APPELLEE, STATE OF OHIO
::f`> .^ Cic.S;^F%i^q'^f^^;}• +^`'Y;.3:"s'^ r^^f'}: %fy ....^.^...... ,...F.,,..^ ^.. ^u^•^^.f4..5:..... _ t.l : ^ i' :.f Motion for Reconsideration of Appellant Aron Rich I. Introduction. This Court should reconsider its decision not to hear this case, State v. Aron Rich, Ohio St.3d _, 2013-Ohio-0650, because case law from other j'urisdictions issued after Mr. Rich filed his jurisdictional memorandum have rejected the State's theory in this case. In as little as three moiiths between the time Rich filed his Memoranduin in Support of Jurisdiction to when it was de.nied, both the New Jersey Supreme Court and the Massachusetts Supreme Court have both held that the use of a GPS, not just the installation, requires a warrant, Rich could not have pointed out this new development in case law in his jurisdictional memorandum because it occurred after he filed. H. Procedural History. On August 27, 2011, Detective Joseph Thompson placed a GPS on a rental car and transferred the car to a confidential informant. The car was then transferred to Aron Rich, who was not a suspect at that time, and the car was subsequently tracked. Using the information from the warrantless use of the GPS, police found large quantities of cocaine and crack-cocaine in a storage facility utilized by Rich. Rich challenged the warrantless use of the GPS tracker at trial; however, the trial court found that Rich did not have an expectation of privacy. After the trial, Rich was found guilty of one count of Trafficking in Cocaine, Complicity to Trafficking in Cocaine, and one count of Possession of Cocaine. The Tivelfth Appellate District affirmed the convictions and held that Rich did not have an expectation of privacy in the vehicle and that the good faith exception applied. 1 TII. Discussion. A. Ohio should join the other states that have weighed in on the issue of whether the use of a GPS requires a warrant. Although the Supreme Court in Unitecl States v. Joytes, _ U.S. _, 132 S.Ct, 945 (2012) suggests that the Court is leaning toward conchzding that the use of GPS technology to monitor a person's movements on public streets is a search under the Fourth Amendment, the Court did not specifically rule on the issue; instead, the Court left the issue open to the states. Justice Sotomayer, in her Jones concurrence, specifically noted that the decision in United States v. Knolts, 460 U.S. 276, 103 S.Ct. 1081 (1.983)(the warrantless use of a primitive beeper device for tracking was upheld) `'does not foreclose the conclusion that GPS 1-rionitoring, in the absence of physical intrusion, is a Fourth Amendment seatch." Id. at 956 n. 1. This issue is being challenged in courts all over the country at the state and federal levels. Since Rich filed his jurisdictional memorandum, two more states, Massachusetts and New Jersey, have weighed in and deteimined that the use of GPS technology to monitor a person's movement is a search that requires a warrant. Now is an opportunity for this Court to similarly weigh in and give guidance to the law enforcement and lower courts in Ohio as to whether a warrant supported by probable cause is required before law enforcement may use a GPS device to track a person's movements. 1. The Massachusetts Supreme Court Decision. In a decision decided on June 5, 2013, the Massachusetts Supreme Court held that a passenger in a car being tracked by a GPS has an expectation of privacy and that the use of CiPS monitoring is a search that requires a warrant. Comnntonwealtda v. Kousseau, 465 Mass. 372 (Mass.2013). In Rousseau, the police obtained a warrant to install a GPS and track an accomplice's vehicle for 15 days. Id. at 375-76. Althougl-i the warrant allowed for a tracking 2 period of 15 days, the police continued to use the device for an additional 15 days. Id. at 376. As a result of the infonnation received from the additional use of the GPS, the defendant was in-iplicated in two fires that were set during that time. Id. In deciding the issue of the use of the GPS, the court detennined that even though the defendant was a passenger in the car, he "had a reasonable expectation that his 'comings and goings will not be continuously and contemporaneously monitored except through physical surveillance, which requires a far greater investrnent of police resources and generates far less information than GPS monitoring'" Id. at 379-80 (quoting Commonwealth L. Connolly, 913 N.E.2d 356, 378 (Mass.2009)). As a result, the court held that a person may reasonably expect to not be subject to the use of GPS monitoring without judicial oversight and a showing of probable cause. See id. at 382 (emphasis added), 2. The New Jersey Supreme Court Decision. On July 18, 2013, the New Jersey Supreme Court unanimously held that the tracking of a person through cell-phone location information, even for a short period of time, is a search which requires a warrant. State v. Earls, NJ. No. A-53-1 l, 2013 DVI., 3744221 (July 18, 2013). In Earls, the police traced the defendant's phone three times in one evening after learning that the defendant had threatened to harm his girlfriend. .Id. at *2. As a result, the defendant was arrested at the location provided by the trace and was subsequently charged with multiple offenses. Id at *3. In its ruling, the court considered the expectation of privacy accorded with cell phone location infor7nation and determined that using the infoimation "is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate," Id. at *12. As a result, the court held--albeit on state constitutional grounds- that the use of a device to monitor a person's location requires a warrant. See id. at * 14. 3 B. Granting jurisdiction to this case can cure the current Ohio district split. The Fifth Appellate District has also found that GPS tracking requires a warrant. In State v. Sidlivan, 5th Dist, No. 2010-CA-52, 2011 Ohio 4967, T67 and State v. White, 5th Dist. No. 2010-CA-60, 2011 Ohio 4526, !-166, the court held that the "[u]se of GPS technology without adequate judicial supervision infringes upon the reasonable expectation of privacy." In both Sullivan and W7iite, the Fifth Appellate District pointed to the current split by stating, "[w]e respectfully disagree with our brethren in the Twelfth Appellate District.... we conclude that under the facts of this case a warrant was required before placing the GPS tracking unit on the suspect vehicle and to continuously monitor the tracking sigraal." Id. at ^,60 (emphasis added). As a consequence of the split, other districts are struggling with the issue. In State v. Allen, 11th Dist. No. 2011-L-157, 2013-Ohio-434, the Eleventh District had to consider whether or not to grant a § 2255 motion after tlle defendant's attorney failed to filed a motion to suppress coneerrrn.ing the use of a GPS. Id. at',,, 19. In its decision, the court stated that "'the Supreme Court of Ohio, nor the United State Supreme Court ha[ve] expressly addressed this issue." Id. at ^;22. Yet without any binding precedent, the Eleventh District determined the defendant's argunient had merit and rernanded the case back to the trial court. Id. at 1122, 36. IV. Conclusion This Court now has the opportunity to weigh in on the issue of whether or not the use of a GPS, not just the installation, is a search under the Fourth Amendment that requires a warrant supported by probable cause. This issue was left open by the Supreme Court in Jones and now states, including Ohio, must rule on the issue to give guidance to law enforeeynent and lower courts. 4 For the foregoing reasons, Aron Rich respectfully requests that this Court reconsider his Memorandum in Support of Jurisdiction and grant briefing and oral argument on the issues presented in his Memrandum. Respectfully submitted, Cand -e C. Cl:ou Counsel of Record A ^ ^ in S. Pi (0024570) Candace C. Crouse (00772405) Pinales Stachler Young Burrell & Crouse Co. 455 Delta Avenue, Suite 105 Cincinnati, Ohio 45226 Telephone: (513) 252-2750 Facsimilo: (513) 252-2751 mpina l esCa;pinalesstachler. com ccrouse(,^Ipinalesstachler. com Counsel for Appellant, Aron L. Rich CERTIFICATE OF SERVICE I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. mail to counsel. for appellee, Michael A. Oster, Jr, Assistant Prosecuting Attorney Chief, Appellate Division, Governrnen.t Services Center, 315 High Street, 11a' Floor, Hamilton, Ohio 45012 on August 2, 2013. andace C. e (0072405) Counsel for Appellant, Aron L. Rich IN THE SUPREME COURT OF OHIO State of Ohio, Case No. 13-0650 Appellee, On Appeal from the Butler County Court V. of Appeals, Twelfth Appellate District Aron L. Rich, Court of Appeals Appellant. Case No. CA2012-03-044 APrENvix To MOTION FOR RECONSIDERATION OF APPELLANT ARON L. RIG'H State v. Rich, 12th Dist, No. CA2012-03-044, 2013-Ohio-&57...... _ ...... A-1 Conimc3nwealth v. Rousseau, 465 Mass. 372 (I1rlass.2013)...... A-22 State v. Earls, NJ. No. A-53-11, 2013 WL 3744221 ( July 18, 2013)...... A-34 IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY STATE OF OHIO, Plaintiff-Agpellee, CASE NO. CA2012-03-044 C)PiNEON - vs - 3f1 `! /2013 ARON LAURENCE R1CH, Defendarit-App.el lant. CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-09-1434 Government Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., for plaintiff-appe.llee Services Center, 315 High Street, 11 fih Floor, Hamilton, Ohio 45011, Strauss Troy Co., LPA, Martin S. Pinales, Candace C. Crouse, Federal Reserve Bldg.,150 East Fourth Street, Cincinnati, Ohio 45202, for defendant-appeflant RINGLAND, J. {¶ 1} Defendant-appellant, Aron Laurence Rich, appeals from his conviction in the Butler County Common Pleas Court for complicity to trafficking in cocaine, trafficking in cocaine, possession of cocaine and a major drug ofFender specification. For the reasons that follow, we affirm Rich's conviction. 11[2} On August 27, 2011, Hamilton Police Detective Joey Hamilton was investigating Butler CA2012-03-044 a drug operation involving Rich and several others, including Daniel Rodriguez Rubio (R:ubio) and Santiago Ayon-Sanchez (Sanchez), when he received information from a confidential irEfarmant (Cl) that. Rubio was waiting on a drug shipment to come into the area, that Rubio wanted the Ci to.rent a vehicie to be used in a drug transaction, and that Sanchez was going to be flown in from. Los Angeles to. participate in the transaction. {T 3} Upon receiving this information, Detective Thompson rented a Chevy HHR and attached a magnetic Global-Positioning-System (GPS) tracking device underneath the vehiele's rear burriper to allow the detective to monitor the vehicle's movements via a GPS website and relay this information to his fellow police officers who would be conducting physical surveillance of the vehicle: Detective Thompsort then transferred the vehicle.to the Cl. The Cl used the HHR to pick up Rubio, and the two of them drove to the Dayton airport and picked up Sanchez, and then the three of them returned to Hamilton. The police had outfitted the Cl with a wire, and therefore his conversations with Rubio and Sanchez were recorded. 4} On August 29, 2011, Rich, along with Horacio Bernabe and Bhoj Ghale, traveied in a Chevy Aveo to the V1fal-Mart on Cincinnati-Dayton Road, Butler County, Ohio (the Butler County Wal-Mart) and went inside the store. Shortiy thereafter, Rubio and Sanchez, traveling in the HHR that Detective Thompson had provided to the Cl, arrived at the Butler County VUa{-Mart. Surveillance video from the store's parking lot shows that Rich, Bernabe and Ghale arrived at 6:11 p.m.; Rubio and Sanchez arrived nine minutes later. {¶ 5} At 6:38 p.m., Rich, Bernabe and Ghale walked back to the Aveo in which they had arrived. After the three shook hands, Bernabe and Ghale got into the Aveo, while Rich entered the HHR that had been driven there by Rubio and Sanchez. Then the two vehicles left the Butler County Wal-Mart, with Bernabe and Ghale leaving together in the Aveo and Rich leaving, alone, in the HHR. Surveillance video from inside the Butler County Wal-Mart -2- Butler CA2012-03-044 showed that Rubio and Sanchez were still in the store at the time Rich left in the HHR. {t 61 Cincinnati Police Officer Dan Kowaiski, who was wearing plain clothes and driving an unmarked vehicle, vtiias conducting physical surveillance of the suspects at the Butler County Wal-Mart. When Officer Kowalski saw Rich get iryto the HHR and drive away, he and several of his fellow officers began following Rich in the HHR and Bemabe and Ghale in the Aveo, as those two vehicles drove south into Hamilton County, Ohio and exited the highway onto Glendale-Milford Road, at which time th.e HHR and Aveo split up into different directions. {t, 7} Cincinnati Police Officer Colleen Deegan, who was also conducting physical surveilfance of the suspects, saw the HHR drive near to the V1Ia1-Mart on Glendale-Milford Road, Hamilton County, Ohio (Hamilton County Wal-Mart), and then saw the HHR execute an illegal U-turn and head in the opposite direction on 1-75 North. Officer Deegan saw that the HHR was being driven by a white male. Rich is white; Bernabe and Ghate, like Rubio and Sanchez, are Hispanic. 1^8} About 20 minutes later, Officer Deegan saw the HHR with the white male driver return to the Hamilton County Wal-Mart. The surveillance video from the Hamilton County Wal-Mart shows that at 7:17 p.m., Rich parked the HHR, got out and went inside the store. At 7:31 p.m., Rubio and Sanchez arrived at the store in Rubio's Lincoln Continental. Several minutes later, Rubio entered the HHR, which had been driven there by Rich, while Sanchez retumed to the Lincoln. Rich, Bernabe and Ghale got into the Aveo. All three vehicles left the Hamilton County Wal-Mart, and shortiy thereafter, all three vehicles were stopped by the police. {¶ 9} No drugs were found in the Lincoln, which had been driven to the Hamilton County Wal-Mart by Rubio and then was driven away from that store by Sanchez, who was driving the vehicle at the time it was stopped. However, eight kilos of cocaine were found -3- ------Butler CA2012-03-044 inside a toolbox in the back of the HHR, which was being driven by Rubio at the time it was stopped by police. An additional two kilos of cocaine were later discovered in Rich`s storage locker in a storage facility locdted on East Kem:per.Road, Hamilton County, ahio. The street value of all the. cocaine recovered was .estimated to be $1.2 miilion dollars. 11101 The police discovered the cocaine in Rich's storage locker as a result of information they gathered from the GPS tracking device attached to the HHR. The police leamed from the tracking device that after the HHR made the illegal U-turn witnessed by Officer Deegan, the vehicle traveled to the storage facility on East Kemper Road and stayed there for approximately ten minutes. The police iearned from the storage facility's manager Amberlie Lawson that Rich had the rented storage locker in 2010 and that Lawson recognized Rich because he often came to his storage locker. After a drug dog "alerted" on Rich's storage locker, the police obtained a search warrant for the locker. When the police executed the warrant, they discovered two toolboxes that contained cocaine and crack cocaine. The police also found fingerprints on one caf the toolboxes that were later determined to be Rich's fingerpdnts. {lf 11} An 11-count indictment was handed down against Rubio, Rich and Sanchez, charging them with various counts of complicity to trafficking in cocaine, trafficking in cocaine and. possession of cocaine, with a major drug offender specification attached to each count. Five of the 11 counts in the indictment were directed at Rich, who was indicted on one count of complicity to trafficking in cocaine (Count Four), two counts of trafficking in cocaine (Counts Five and Seven), and two counts of possession of cocaine (Count Six and Eight), with a major drug offender specif>cation attached to each of those five counts. Rubio and Sanchez subsequently entered into plea bargains with the state, while Rich chose to proceed to triai, 11121 Prior to trial, Rich moved to suppress the evidence seized by police as a result _4_ ------Butler CA20.12-03-044 of their v+rarrantless use of the GPS tracking device to monitor the movements of the HHR that he drove on the day in question. Rich asserted that the police's warrantless use of the tracking device v'iolated his rourth Amendment rights against unreasonable searches and seizures. {¶ 13} A hearing was held on Rich's motion to suppress, afiwhich Detective Thompson testified for the state and Rich testified for the Iimited purpose of establishing that he had standing to bring a Fourth Amendment challenge to the poiice's warrantless use of the GPS tracking device. Rich testified that he received permission to use the HHR from one of his co-conspirators, Bernabe, but acknowledged that he did not know from whom Bernabe had received permission to use the vehicle. {¶ 14} At the close of the hearing, the trial court overruled Rich's motion to suppress for two reasons;. [¶ 15} First, the triaf court, citing Rakas v. Itlinois, 439 U.S. 128, 99 S.Ct. 421 (1978), noted that a defendant must have standing in order to challenge the constitutionality of a search orseizure; that nonowners of a vehicle generally do not have standing to raise such a challenge; and that even if a defendant is legitimately present in a vehicle, that fact does not necessarily give the defendant a legitimate expectation of privacy. The trial court found that the question of whether a person has a legitimate. expectation of privacy turns on the facts and circumstances of each case, and that under the facts and circumstances of this one, Rich did not have a reasonable expectation of privacy in the HHR since he had obtained possession of that vehicle "several times removed" from the person who had rented it, i.e., Detective Thompson, {¶ 16} Second, the trial court noted that leaving aside the issue of whether or not Rich had standing to challenge the constitutionality of the police's warrantless use of a GPS tracking device, the police did not need to obtain a warrant to install and use the GPS -5- Butler CA2012-03-044 tracking device on the- HHR to track the vehicle's movements, given this court's decision in State v. Johnson, 190 Ohio App.3d 75, 2010-Ohio-5808 (12th Dist.). Following Rich's conviction, this court's decision in Johnson was vacated by the Ohio Supreme Court in State v. Johnson, 131 Ohio St:3d 301, 2012-Ohio-975. I¶ 17} Several days later, the trial court overrulec! Rich's motion to compel the state to produce "ali officer notes and summaries of actions taken in furtherance of the investigation of this matter by law enforcement.°" Rich's motion was made in response to the defense's having seen Detective Thompson refer to certain written notes during his testimony at the suppression hearing. The notes related to Detective Thomson's investigation of Rich and his co-conspirators. The trial court overruled the motion to compel, finding that the notes were "work product" and thus were exempt from disclosure under Crim.R. 16(J)(1). {¶ 18} At Rich's three-day jury trial, the state presented testimony from a number of witnesses, including Detective Thompson and his fellow officers who followed and then arrested Rich on the day in auesti:on. The state also presented testimony from its fingerprint axpert; Detective Mark Henson, who. testified that the fingerprints found on one of the toolboxes in Rich's storage locker were Rich's fingerprints. The jury acquitted Rich of one count of trafficking in cocaine and one count of possession of cocaine, but convicted him of the remaining charges and specifications. The trial court sentenced Rich to serve ten years in prison and to pay a$1(},000 fine. {¶ 19} Rich now appeals, assigning the following as error: {T 20} Assignment of Error No. 1: I¶ 21} THE TRIAL COURT ERRED BY DENYING APPELI.ANfi"S MOTION TO SUPPRESS. IT 22} Assignment of Error No. 2: {I; 23} THE TRIAL COURT ERRED IN DENYING RICH'S CRIM.R. 29 MOTION FOR ..g_ Butler CA2012-03-044 ACQUITTAL. {^ 24} Assignment of Error No. 3: J¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAiLED TO EXCLUDE THE STATE'S EXPERT WITNESS AT TRIAL. t, ^j 26} Assignmerit of Error No. 4: {¶ 27} THE TRIAL COURT ABUSED ITS DiSCRETION WHEN IT FAILED TO REQUIRE THE STATE TO TURN OVER A POLICE REPORT PRIOR TO TRIAL. {¶ 281 In his first assignment of error, Rich argues the trial court erred in denying his motion to suppress from evidence any information gathered by police through their warrantless use of the GPS tracking device they installed on the HHR. Rich asserts that contrary to what the trial court held, he did have standing to challenge the warrantless use of a GPS device to track the HHR's movements because he had permission to drive the HHR. He cites several cases in support of his argument, including State v. Brooks, 12th Dist. No. CA99-01-002 (Dec. 6, 1999); and State v. Mack; 6th Dist. No. S-95-030,1996 WL 21048, *3 (Jan. 19, 199f ), {¶ 29} Rich further argues the trial court erred when it found that even if he had standing to raise a constitutional challenge to the warrantless installation and use of a GPS tracking device on the HHR, the police still were not required to obtain a warrant prior to using the GPS tracking device to monitor.fihevehicfe's movements, given this court's decision in Johnson, 190 Ohio App.3d at 758, 2010-Ohio-5308. Rich contends that United States v. Jones, - U.S. -,132 S.Ct. 945 (2012) "suggests that the [United States Supreme) Court is leaning toward concluding that the use of GPS technology to monitor a person's movements on public streets is a search under the Fourth Amendment." (Emphasis sic.) Therefore, Rich requests that this court find that the police's warrantless use of a GPS tracking device on the HHR to track the vehicle's movements was "an unconstitutional violation of [his] Fourth -7- Butler °CA2012-03-044 Amendment rights, requiring suppression of all evidence gathered against him as'f.ruits of the poisonous tree."' 11301 In Johnson, the police attached a GPS tracking device to the undercarriage of a van owned by Johnson, a suspected drug trafficker. The.o.ffic.ers placed the GPS tracking device on JohnsonTs van while it was parked at his home. The tafflcers` use of the tracking device led to Johnson's arrest for drug trafficking. Johnson moved to suppress the evidence seized from him, arguing the warrantless installation and use of a GPS tracking device violated his Fourth Amendment rights against unreasonable searches and seizures. The trial court overruled the motion, and Johnson was convicted. {¶ 31} On direct appeal, we affirmed the trial court's denial of Johnson's motion to suppress. This court held that a criminal defendant does not have a reasonable expectation of privacy in the undercarriage of his vehicle and that "p}acing the GPS on Johnson's van and monitoring its movements did not constitute a search or seizure under either the federal or C?hio constitutions." However, our decision in Johnson was vacated by the Ohio Supreme Court, which remanded the cause to the Butler County Common Pleas Court for application of the United States Supreme Court's decision in Jones, 132 S.Ct. 945. State v. Johnson, 131 Ohio St:3d 301, 2012-4hio-975, ¶ 1. {¶ 321 In Jones, the United States Supreme Court held that the government's attachment of a GPS tracking device to a vehicle and its subsequent use of that device to monitor the vehicle's movements on public streets, consfiitutes a "search," for purposes of the Fourth Amendment. Id. at 949. Rich acknowledges that Jones cannot be viewed as controlling in this case, since Jones involved a "classic trespassory search," see id. at 954, in which the government attached a GPS device to a vehicle registered to the wife of the defendant in that case, Jones. Jones' wife who had given him permission to drive the vehicle, and the government acknowledged that Jones was the "exclusive driver" of the -8- Butler GA2012-03-044 vehicle, and the defendant was in possession of the vehicle at the time the device was attached. Id. at 948. {^ 33} In this case, by contrast, the pofice installed the GPS tracking device on the HHR before Rich took pos.sessi.on of the vehicle, and therefore there was no tres.pass in this case. Neverthelesss, Rich argues the Jones court recognized that "°trespass" is not the exclusive test for determining whethe'r a Fourth Amendment violation occurred and that under iones, situations involving merely the transmission of electronic signals without trespass remain subject to the analysis called for by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967). }¶ 34} The Katz approach to whether Fourth Amendment protections apply in a given circumstance involves a two-part inquiry: (1) whether the individual exhibited a subjective expectation of privacy, and (2) whether the individual's subjective expecfiation of privacy is one that society is prepared to recognize as reasonable. See United States v. Knotfs, 460 U.S. 276, 280-281, 103 S.Ct. 1081 (1983) (discussing Katz). {¶ 35} Rich argues he had a subjective expectation of privacy that the police would not use a GPS tracking device to track his every move and that his subjective expectation of privacy should be recognized by society as an objectively reasonable one. We disagree. The facts show that Rich received permission to use the HHR from one of his co- conspirators, Sernabe, who bad received permission to use the vehicle from another of their co-conspirators, Rubio, who had received permission to use the vehicle from the Cl, who had received the vehicle from Detective Thompson. We agree with the trial court that under these circumstances in which Rich was "several times removed" It rom the person who rented the vehicle, i.e., Detective Thompson, Rich did not have an objectively reasonable expectation of privacy in the vehicle. {¶ 36} There is an additional reason for upholding the trial courti`s ruling in this case. -9- ------Butier CA2012-03-044 In Davis v. United States, _ U.S. -,131 S.Ot. 2419, 2423-2424 (2011), the court heid that are °'searches conducted in objectively reasonable reliance on binding appellate precedent not:subject to the exclusionary rule." (Emphasis added.) In so holding, the United States Supreme Court relied on the "good faith" exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 907-921, 'f 04 S.Ct. 3405 (1984) and its progeny. Relying on Davis, will apply Davis, other courts have found that the good-faith exception, as discussed in where binding appellate precedent had previously authorized warrantless GPS monitoring. See, e.g., United States v. Aquilar, D.ldaho No. 4:11-cr-298-BLW, 2012 Wlr.1600276 (May 7, 2012); and United States v. Heath, D.Mont. No. CR 12-4-N-DVI/M, 2012 WL 1574123 (fViay 3, 2012). {T37} In this case, there was "binding appellate precedent" that previously authorized warrantless GPS monitoring in this appellate district, namely, our decision in Johnson. Our Winningham, °f st Dist. No. G- decision in Johnson was adopted by the First District in State v, 'l 10134, 2011-C)hio-0229, which like Johnson, was later vacated by the Ohio Supreme Court and remanded to the Hamilton County Common Pleas Court for application of Jones. State v. Winningham, 132 Ohio St.3d 77, 2011 -Ohio-1 998, ¶ 2. {^ 38} Rich points out that there were other appellate districts in this state that disagreed with our decision in Johnson; that the.issue of whether or not warrantless GPS monitoring was constitutional had been appealed to the Ohio Supreme Courk, and that Jones was pending before the United States Supreme Court at the time Rich was being tried in this case. However, the police in this district had both a right and a duty to follow this court's decision in Johnson until it was overruled by a higher court, which did not occur until after Rich was convicted and sentenced in this case. As a result, we find that the "good-faith" or "binding appellate precedent" exception set forth in Davis applies to this case, and therefore this case is not subject to the exclusionary rule. Accordingly,'the trial court did not err in -10- Butler CA2012-03-044 overruling Rich's motion to suppress. {J; 39} In light of the foregoing, Rich's first assignment of error is overruled. {¶ 40} !n his second assignment of error, Rich a.sserts that the trial court erred in denying his Grim:R. 29 motion for acquittal because the state failed to prove beyond a reasonable doubt that Butler County was the proper venue for trial on any of the counts with which he was charged and convicted. This argument lacks merit. I¶ 411 In reviewing a trial courf's denial of a Crim.R. 29 motion for acquittal, this court applies the same standard used for determining whether a conviction is supported by sufficient evidence, i.e., we examine the evidence admitted at trial to determine Whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Roy, 12th Dist. No. CA2009-06-168, 2C}10-C?hio-2540; ¶ 29; and State v. Hibbard, 12th Dist. Nos. CA2001-12-276, CA2001-12-286, 2003-Ohio-707, ¶ 9. "After viewing the evidence in a light most favorable to the prosecution, the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id., citing State v. Jenks, 61 Ohio St.3d 259, paragraph two of the syllabus. {¶ 42} Article !, Section 10 of the Ohio Constitution requires a criminal defendant to be tried in "the county in which the offense is alleged to have been committed." R.C. 2901.12(A) provides that venue lies in any jurisdiction in which an offense or any element thereof is committed. Although venue is not a material element ofi an offense, it is a fact that the state must prove at trial beyond a reasonable doubt unless waived. State v. Qraggo, 65 Ohio St.2d 88, 90 (1981). "For venue to be proper there must be a`significant nexus' between one or more of the elements of an offense and the county in which the charge is brought." Id. {+^^ 43} R.C. 2925.02(A)(3) prohibits a person from preparing a controlled substance for -11- Butler CA20.12 ^-^3-044 shipment. The state presehted ample evidence at trial to show that the planning and preparation for Rich's crimes of conspiracy to trafficking in cocaine, trafficking in cocaine, and possession of cocaine tookplace. in Butier County. The state's evidence showed that the HHR: Rich drove was rented in Butler County. fUloreove.r, Rich's actions.that culminated in his convictions were part of a''course of criminal conduct," under R.C. 2901.12(H). While Rich's crimes may have been finished in Hamilton County, they were started in Butler County, and therefore Butler County was a proper venue for Rich's trial. id. J,^ 44} Therefore, Rich's second assignment of error is overruled. 1145) In his third assignment of error; Rich argues the trial court abused its discretion when it permitted the state's fingerprint expert, Detective Henson, to testify at trial because the state failed to provide the defense with a"complete expert report," prior to trial, as required by Crim.R.16(K). Therefore, Rich contends, the trial court was required underthat rule to exclude DetectEve Henson's expert testimony. We find this argument unpersuasive. {¶ 461 Crim.R. 16:(K) states, in perkinent part: {K) Expert Witnesses; Repor.ts. An expert_ witness for either side' shall prepare a written report summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and sha{l incfude a surnmary ofthe expert's qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty^one days prior to trial, which period may be modified by the court; for good cause shown, which doos not prejudice any other party. Failure to disclose the Written report to opposing counsel shall preclude the expert's testimony at'tria(. {¶ 47} Prior to trial, the state provided the defense with an "Evidence Submission Form" prepared by Detective Henson, which discussed two fingerprint images taken from one of the toolboxes found in Rich's storage locker. The evidence submission form indicated that one of the fingerprint images contained seven characteristics that matched Rich's "#2" finger, and the other contained five characteristics that matched Rich's "#3" finger. The form -"t2- ------Butler CA2012-03-044 concluded that the fingerprint images "are simultaneous latent prints with 12 total matching characteristics of fingers #2 & #3, simultaneous fingers of Aaron [sic] Rch." }¶ 48} lmmediately before calling Detective Henson to the witness stand, the state provided the defense with Detective Henson's PowerPoint presentation which he intended to present to the jury. The presentation stated that one of the two latent fingerpririts found on the tooEbox actually had eight, and not just seven, matching characteristics with Rich's known fingerprint, and that a third latent fingerprint had been found on the toolbox that had at least four characteristics that matched Rich's known fingerprint. The presentation conciuded that the "[s]imultaneous latent prints [found on the toolbox] matched against the simultaneous known prints of Aaron [s3c] Rich have a total of 17+ matching characteristics." {¶ 49} Upon receiving a copy of the PowerPoint presentation, Rich requested that it be excluded from evidence because it had not been turned over to the defense as required by Crim.R.16. The trial court overruled Rich's objection, finding that Crim.R.16(K) required only a summary of the expert witness's testimony and not "the finished product or exact word for word." However, the trial court stated that if Detective Henson's testimony regarding his PowerPoint presentation contained any new information that had not been contained in the material provided to the defense during discovery, including the evidence submission form, the defense was to call that to the trial court's attention, at which time the trial court would strike any of the new information from Detective Henson's testimony. The trial court also agreed to adjourn the trial early that day following Detective Henson's direct examination so that the defense could carefully examine his PowerPoint presentation. }¶ 54} Detective Henson presented his PowerPoint presentationta the jury, informing them that two fingerprints had been found on the toolbox that had a total of 13 (and not just 12) characteristics that matched Rich's known fingerprints, and that a third fingerprint was also found on the toolbox that had at least four characteristics that matched Rich's known -13- f3utler CA2O'f 2-03Q44 fingerprint, for a totaf of 17-plus (andnot just 12) eharacterlstics that matched'Rfolf`s knovvn fingerpr;nts. {^- 51} The followirig day, the defense renewed its ofjjectiori to not recefving Dete.ctive Hensor7`s PavorerPoint preseritatfon oofore trial. When the trial court asked the defense if Dtective Herison had testffled to anythirig that had not beert contained in the mater^ial that had been piovidee^ fio them prfor to t"rial, includfngthe evidence sukimissi^in farm; the ^iefense responded ffiat Detective Henson had te^stifed "[m]ore completely" in that hetestified with . h'is arialysis and how he reached it, and it is the ar`aiysis that is coritaine'd in [tfie PovverPOint presentation]." When the trial court asked the defense if there was anytiifng slse, the defense respondetj, "no," 52} fn supporf; of his assertion that the state vioCated Crfm,R,. 16(K) by failing to provide him wfth "a cormplete expeft re^iort[,]" Rich calfs to ou^r attentlon tfiat Detoctfve Henson's PbwerPoint presentation contained new inforrtiatfon that # iad not been coritained in the evidence sufjmissiori form, naniely, that there were three f ngerpririts. uncovered from the toolbox, anef not just two, vuftfi 17-pfus total cf7aracterfstics, and not just 12, that rriatciied Rich':s known fing'erpriCits: Howover, Rich is ignoring the trial courE's instruction to the defertse to bring to its atteiition any new, information contained in Detective Hensori°s testfrriony at trial regar^ipg his f^o^nterf'Qint presentation that had not been contafried in the material provided to the defense faefore trial, includir,g the evidence suf.?mission form: Rich is also ignoring the trial court's offer to sti°ifse any such new information from Detective Hensoii's testimony if the defense brought it to the trial court°s attention. However, the only objection the deferise. rafsed,to Detective Hensoii's testimon:y was tr8t Detective f^-Jenson had testified "(mjore cormpletely[,l" in thatf^e testified as to his arialysis ^nd how he arrfved at it. {¶ 53} Therefore, thO only issue properly before us is R1Ch'S argumerit that Detective f-fenson's expert reporf: regarding the fingerprints found on the toolbox should have been -14- ------Butler CA201 2-0'3 U44 „more comple#e." What Rich means by this is, while the state provided him v+rith a s.ummay the state failed to provide him with a sumiiriary of of Detective Henson's cqnclusions; and therefbre the trial court was obligated under CrirnR.. 16(K} Detective Henson's analys1 s, fo exc(ude 'Detective Henson's testimon y for this reason, Uve find this argumerit unper.suasive: {t 54} C rim..R. 16(K) requires an expert witness for either side fo "prepare a written #he expert witness's #estimony; findings, ai^alysis; conclusions, ar report surrirnarizlrig opiniori[.1" (Ermphasis adctecl.) Rich is essentially asking this court to interpret Crim.R. 16(K) summary of the expert's to require eXpert witries^ses to provide a writtert repork with a of the expert's analysisa a of the expert's finding.s; a summary testlrr►ony; a surrtrnary of the expert's opinion; However; Rich of the expert's conclusions, and a surnmary sumrr►ary has faile d tO cite any case faw that supports his suggested interpretation of Crirri.R..16(K), rior are we bware af any. V1le conelude th"at tfie state complied with Crirr^.R: 16(i^) wlien, during pretrial discovery, it provided the defense With ttie evider^ce subrriission forrn prepared gs arid y®etective Herison which. contained a sumrnary of Detective Hertson's findir► b conelusions that the fingerpi°irits found on the toolbox were.Ricli`s fingerprints. 55} Furthermore, the state's purpose in aoniitting Detective Henson's fingerpr,n export testimony was to provide additional circumstantial evidence that tied. Rich to the cocaine found in his starage locker: However, this testimonywas merely cumulative to other overwhelming circumstantial evidence that the state presented that tied Rich to his storage locker in wllTCh a large amourit of cocaine was discovered in the toolboxes located there, Included in this other circumstantial evidence is the fact that the storage locker had been rented by Rich in June 2010, the manager of the storage facility, Lawson, was able to identify Rich at triaE because Rich had come to his storage locker ofien, and that, on the day in question, Rich's storage locker was accessed at the same tirrie he was observed driving to - .15- B:utler CA20'1Z(}3-044 and from the area where the storage facility was located. 56} Given the foregoing, Rich's third assignmerit of error is overruled. {^( 57} In his fourth assigriment of error, Rich argues the trial court abused its .discretion when it refused. to compe( the state,to turh over to kiim, prior to trial, D`e#ec#ive Thompson's written investigative notes, tPie existence of which cameto liht`at g the hearin;g held on Ricli's motion to suppress. Rich asserts that these riotes constitute a°'police report," for purposes of Crtm; M.R. 16(B){6j, and ttiatthe triai court comm9tted roversible 6rror in refusirig to order the state to disclose thern to the defense. We disagree. {¶ 5^-^ Detective Thompsori`s written notes sui'rimarize the conversations that®ccurred between the Cl, Rubio and Sanchez on their August 27; 2g11 trip to bnd fram the Dayton Airport The. notes also record the rrjovernents of Rich, Rubio, Sanchez, Bernabre ahd Ghg(e from 6:00 P.M. to 7:48 p.r^. on August 29, 2011, ahd the observations of the suspects' moverr^ents made by Detective Thompsort's feilow officers that day, During his te5timony at the suppression hearirig? Detective Thorripson referred to the hotes in question to refresh his memory of the events surrounding his investigation of Rich. Rich's counsel argued that Detectlve Thompson's notes constituted a police "report,n for purposesof Crirm;R. 16{B}(6), and therefore ttie state was obiigated under that rule to turn them overto the defens.e during dsscovery S.everal days later; Rich's counael filed a motion to compel production of Detective Thompson's notes., The trial court overruled Rich's motion to compel on the basis that the notes he sought constituted "work product" and therefore did not need to be disclosed uryder Crim.R. 16(,1)(1); {¶ 59) We note, parentheticaiiy, that Ricii's defense ooursseD failed to ask thetria! court to order the state to produce Detective Thompson's written investigative notes under Evid.R. 612. That rule providesthat if a witness uses a writing to refresh his memory for purposes of testifying, the adverse party is entitled to ask the trial court to order the writing to be produced -16- Butler C:A2L11;2-a3-044 so thatthe adverse party can inspect the writing and cross{examine the witness about it. Id. The trial court may order the writing to be produced if tho firial court determines it is _ necessary and iriEie 'iriterests of justioe to do so. H^d Rich requested the triai eourf to order that:Deef'ive Thompson's nofies.tae produced under Evid.R. 612, Rich wauld have been entiti'ed ta; atleast, ask the trial co.urt to determine that it wss necessary and in the interests of justice to require the state to produce the notes so that he couid inspect thein, cross" exarnine Detective Thompson about them, arid introduce into evidence any pori:ion of them relating to Detective Thompson's testimony. Id. ]¶ 60} Crim.R: 16, Which was amended in 2010, provides.in relevarrt part; (B) iscovery. R'ight to Copy or F'hotograph. Upon receiptefa written demand for discovery by the defendant, and exeept as provided in division (C), (D),.(E), (F), or (;!) of this ru3e, the prosecutir^g attorney shall provide copies orphotoc^rapbs, or permit counsel for tho defendant to copy or photcgraph, the fol[owing items reiated to the pafficular case indictment, inforrriation, or complaint; and ,which are material to tho preparation of adefense, or are intended for Yse b.y tho prosecutiiig attorney as eviderice at the trial, or were obtainod from or belorig.to the defendsnt, within the possessiori of, or roasonabiy avai)able to the state, subject to the provisions of this * ** (6) A(I reports from peace officers * * * [.1 (J) Information Not Subject to Disclosure. The folloWing iterris are not subject to disclosure under this rule: (1) llllateria)s subject to the work product protaction. Work product includes, but is not limited to, reports, memoranda, or other internal docurnents rnade by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense of the case[J" {¶ 61} The 2010 Staff Notes to Crim.R. 16 state that division (8) "expands the State's duty to disclose [prior to trial] materials and information beyond what was required under the -17- i3utler .CA2012-03-Q44 prior rule" arid that division (J) "clarifies what information is not subject to disclosure by either party for reasons of confideritiality, privilege, or due to thelr classification as documerit's deterrriined to be vvork product," {¶ 62} Prior to.2010, Crim,R. 16 stated, in pertinent part: 0)(2) Except as prQVided in subsection (E.i)(1)(a), (fj), (ID), and {y), tliis rule does not authorize the discovery or inspection of reports; rnerrioranda, or other internal documents made by the prasecotirig attarney or his agerits in conriection with the inVestigation oi°prosecutiorf of the case, or of the statements made by the witnesses or prospective witnesses to state agents. {t 63} in State v. Cartiallo, ! 2th Oist. No. CA88-02-000, 198.9 WL 121077, *2-3 (Qcfi. 16, 1989); this court held that a police officer's notes and surveillance log vf a defendant's , activities were police investigation materials thatfell within formerCrim:R. 16(^)(2), and thus were not discoverabie ijy the defense. SOe alsv State vLusarre, 8th Dist, No: 42048, 198Q WL 355359;*4 (Dec. 11, 1980) (trial court properly refuseo to order that a police rep^ort be inc(uded in the record, since "[t]he prosecution has rio duty to "reveal, and the jtrialj court has no authority to corrmpel the prosecution to reveal, the work-product of the police"). However, Carballo an-d Lusene were both decided before the current version of Crim.R. 16 became effecf'ive in 2010: Crim:R: 'f G(B)(6) now requ.ires "[a][i reports" fro'rrt "peace officers" like L?etective TYiompson to be disclosed to criminal defendants {ike Rich upon writferi derriano, {^ 64} The first quest'iori that must be addressecl is whether Detectivc Thompsori's notes are a police "report" for purposes of Crim.R. 16(B)(6). Rich asserts that Detective Thompson's notes should be deemed to be a police "report" underCrim:R. 16(B)(6), because Detective ThQmpson used his notes "just like a police report, in that he referred to them du "ring his testimony at the suppression hearing in order to refresh his reco{lection regarding the facts of the case." Rich further asserts that allowing the state to label all such reports as "informal" or "personal notes" would render Crim.R. 16(B)(6)'s requirement of turning over -18- B-utier CA2012-03-044 "'[aIfl reports firom peace officers" meaningiess. I¶ 65} The state argues that only "official" reports, such as the initial reports of an offense, repor^s of an iricider^t takei^ at the scene and arrest reports; are the.type of reports fh,at riiust be provided in'discovory under Crirri:R. 16(B)(6}. The state asserts that a police officer's riotes are nct a"report,i` under Crim:R. 7^(13)(6); because "logie" dictates thi^t 16(5)(6) only iriterided to inclucle systemati:c; pre=existirrg forrrms created in conjunction with incidents and arrests." (Emphasis sic): The problem witfi this 8trgument is tftat if the drafters of Crim.R: 16(B)(5)had interided such an interpretation, it is difficult to understand why they wauld riot have eXpressly said so. {t 661' The sfiate arguas, in the alternative, that a police office"r's notes are erititled to "work pra^uct'` protection^ under Crirri:R. '16(J)(1), iwhich; the state contends, i5 virtu^fly ideritical" to former Crirr>>R. 16(B)42). Reh counters that the work product exception setfarth in Crim.R. 16(J)(1) does not apply to police reports since the police are not the "agents" of fhe.prosecuting attarney. Horniever, Rich's argu"ment ignores the lahguege in Crim.R: 16(:1)(:'! } that states, `°[w]ork product 'includes, but IS nqt Iimited to We conclud® that the vvork product protection ciause in Crim.R; 16(J)(1) cen apply to the'`work product" of the po[ice; as well as to that of prosecutors, defense attorneys or their agents. The question that remains is whether Detective Thompson's notes constitute „work product" that is entitled to protection under Crirri:R. 16(J)(1). {^i 67} "Work product;,, as used in connection with the contents of police reports; has beeh traditionafly defined as those portions of the report thet contain "'the a`fficer's ir7vestigative decisions, interpretations and inrerpoiations[.]"' State v. vunningham,105 O;°qio St:3d 197, 2004-Ohio=7007, ¶ 43, quoting State v, Jenkins, 15 Ohio St.3d 164, 225 (1984). The portions of a police report that are found to constitute work product are "'privileged and excluded from discovery under Crim.R. 1 Oj.J" Cunningham, quoting Jenkins. -19_ Butler CA^1012-03-U^4 {¶ 68} The ir^forrr^atiori in Detecti^ie Thpmp^son's riafes couid be ir►^erpreted as contairung ma teriai related to the "irivestiga$ive decisio'ns" of D.etective Them. pson and his fellow officsrs. Even if they coufd not, we still v^r-ultl firtd an}r error:the trial co^rt may have cUmriiitted iri not o'r^ierin the state to clisclc^8e ^ne notes tc^ F^ich fo have been harmCess. NMost, ifi not aii of the informatfan coritained in th^ notes carrieout during the trial, none cif the irifiormatibn in the notes livas exculpatory, ahd none.of tho informafiion v+roulu have been ot material assistancs f^^ Rich in preparing his defE.nse. See Crbm.R ^°4 f?(B): l^ev^rthefe`ss, vue virould calf ta the state's attention the language in the 2010 5taff Notes to Crim.R. 16(A), vvhich state. s that "[riJothing in this rule shall inhibit the parties from exchanging greater ciiscovery beyand the scape of this ru1e." The material the state refused to disclose to Rich ap.pears to be uriremar{caf^les and it..is puzzling to this courf as to why tiie.state would rask reversal by ricat disclosing such Enformation. {¶ 69} Iri ligli"t of ttie f^aregoirig Rich's fourfih assignmeiit o^f error 'is ®verruled. {.t 101 Judgment affirmed: HENDRICKSON, P.J., and N!, POWELL, J., concur. -20- , N 1N THE COURT OF irPl^^A^ x^ .,. TWELFTH APPELL.A`ffi^10,T ^lfiTpQF^OHiO 13uT1rER 0Y_^ ^} t^-:rL..^\ ^,:M1'^^ ^.^^,,ti^^ STATE OF OHIO,O®eo o^ Npp^. ^ Plaintiff-Appellee, CASE NO. CA2012-03-044 JUDGMENT ENTRY - vs - ARON LAURENCE RICH, Defendant-Appellant, The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed. It is further ordered that a mandate be sent to the Butler County Court of Common Pleas for execution upon this judgment and that a certified copy of this Judgment Entry shall constitute the mandate pursuant to App.R. 27, Costs to be taxed in compliance with Robert A. Hendrickson, Presiding Judge ^------_.t -..,` Robert P. Ringiand, Judge _ Michael E. Powell, Judge Corra. v. Rorasswau, --- KE.2d .._- (20I3) ._, .., ,...... 465 Mass. . 372 Affirmed and remanded. 465 Mass. 372 Supreme Judicial Court of Massachusetts, Attorneys and Law Firnas Worcester. Bratidon L. Campbell for Johti. Rousseau. Andrew S. COMMDNWF,AI,T H Crouch for Michael Dreshnski. V. John ROUSSEAU. Eileen M. O'Brien & Jennifer L. Sullivan, Assistant Commonwealth Attorneys General, for the Comzztonwealtll. V. Michael Dreslinski. I3ethL. Eisenberg, Cotnmittee for Public Counsel Services, & Matthew R. Segal & John Reinstein, for SJC-11227, SJC-11228. I Submitted Feb. 7, 2013. ^ Cotnmittee for Public Counsel Services & another, aniici Decided June 5, 20i3. curiae, submitted a brief. Synopsis Kit Walsli, for Electronic Frontier Foundation, amieus Bacl:ground: In separate trials, two defendants were curiae, submitted a brief. convicted in the Superior Court Depart nent, Worcester ► Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, County, Robert C. Cosgrove and John S. McCann, JJ., of GANTS, DUFFLY, & LENK, JJ. arson, breaking and entering, malicious destruction of propeity, and malicious injury to a railroad. Defendants Opiarion appealed. CORDY, J. Holdings: On transfer fi•om the Appeals Court, the *373 In separate trials, Jolin Rousseau and Michael Supreme Judicial Court, Cordy, J., held that: Dreslinski were each convicted of four indictments cliarging arson, G.L. c. 266, § 2; one indictment charging f'7 defendants, one the owner and onea merepassenger of breaking and entering in the nighttime with intent to vehicle subject to global positioning system (GPS) commit a felony, G.L. c. 266, § 16; one indictment surveillance, had standing to cliallenge validity of warrant charging malicious destruction of property over $250, G.L. authorizing extended GPS tracking; c, 266, § 127; and one indictment charging malicious injury to a railroad. G.L. c. 160, § 225. The convictions 121 GPS warrant was supported by probable cause; arose out of their participation in a series of criminal *374 acts involving the burning and vandalizing of four different t3j evidence supported convictions; properties during the summer of 2007. The defendants appealed, and we transferred tiie cases to this eourt on our [41 challenged evidence was relevant and adnlissibl.e; own motion. tst condition of p -obation that defendant not have use of ► On appeal, both defendants argue that a warrant secured by computers while in the state prison system was overbroad; the State police for the purpose of attaching a global positioning system (GI'S) device to Dreslinski's vehicle, t5' news photographer's testimony rega ►-ding out-of-court and then tracking its location over a thirty-one-day period, statements of an accomplice were nothearsay; and was not supported by probable cause and was overly broad, and therefore violated the Fou -th Amendment to the t71 trial court's improperly modified ► DiGianzbattista United States Constitution and art. 14 of the Massachusetts instruction was notprejudicial error. Declaration of Rights. Although the Comtnonwealth contended below that neither defendant has standing to challenge the sufficiency of the warrant because they did A- 22 Ccaaa:. v. Rousseau, ... N.E.2d °°-- (2093) ,...... __ ...e. _.M _ ..»A ._.w_. 465 Mass. 372 not eniov a reasonable expectation of privacy in the vehicle an ongoing criminal enterprise. And, although we have or its location, on appeal it essentially concedes that reservations about the judge's use of the word "waiver" in Dreslinski has standing, but contends that Rousseau, a his modified Di^'rirrinbattista instruction, we do not "mere passenger" in the vehicle, does not. conclude that its use in the circumstances presented here was error requiring a new trial. Accordingly, we affirm the Rousseau separately asserts that the evidence at his trial defendatats' convictions.' was insufficient to prove beyond a reasonable doubt that he participated in the charged offenses, and that the trial judge Backgrouncl. In early 2007, State police commenced an abused his discretion by admitting prejudicial character investigation into the activities of Rousseau and evidence. Ide also contends that the conditions of probation Dreslinski, close friends living in Clinton. On July 19, imposed at sentencing, which prevent him from using any 2007, the State police applied for a warrant to place a GPS computer wi-tile in prison, violate his constitutional right of device on Dreslinski's pickup truck. The warrant access to the courts under the First, Sixth, and Pourteenth application was supported by an affidavit sworn by Amend:meiTts to the Uni:ted States Constitution and ai-ts. 12 Trooper Carla B. Pivero, based on her "direct investigation and 16 of the Massachusetts Declaration of Rights. and information [she] received fromfellow officers," as well as information provided by a'cooperating witness." Dreslinski does not challenge the sufficiency of the The affidavit alleged that "the crimes [of] arson, larceny, evidence at his trial, but clairns that the judge erred by breaking and entering, and impersonating a police officer admitting out-of-court statements made by Rousseau to a have been, are being, and/or are about to be committed" by third party, a news photographer, under the joint venturer Rousseau and Dreslinski, and that the pickup truck was an exception to the hearsay rule. Dresliiiski also argues that instrument of that eriminality. the judge erired in modifying the cautionary instruction set forth in Conamonivealtlc v, .DiGiambuttista, 442 Mass, 423, Based on the infoiznation provided in the affidavit, a 447-449, 813 N.E.2d 516 (2004) (DiGiambattista ), by Superior Court judge issued a warrant authorizing the State informing the jury that they could consider evidence that police to *376 "install, test, maintain and remove a GPS Di•eslinski "waived" his right to have his police tracking device" on Dreslinski's pickup truck at "[a]ny interrogation recorded, in assessing the significance of the such location where said vehicle ... may be found ... [in] lack of a recording. Massachusetts" and to monitor the tracking information for aperiod of fifteen days. State police successfully installed With respect to the defendants' cliallenge to the GPS the GPS on July 20, 2007, and collected tracking warrant, we conclude that Dreslinski has standing as the information until August 19, 2007.'During this period, owner and operator of the vehicle and that Rousseau, as a infoi-mation obtained from the GPS device showed that passenger in the *375 vehicle, also has standing because he Dreslinski's truck was at or near the scene of fires set in had a reasonable expectation that his movements would four separate locations ai-ound the time they were set, on not be subjected to extended electronic surveillance by the July 29 and 30, and August 12 and 13.' government through use of GPS monitoring. We also conclude that the affidavit submitted in support of the The defendants were arrested on August 19, 2007. A warrant application contained sufficient information on search warrant executed at Dreslinski's residence revealed which a Cnding of probable cause could be made. We fire call boxes, light bars, tools, police radios, and a list of rejectRousseau's arguments concerning the sufficiency of frequencies. Also seized were items of clothing including the evidence and the judge's admission of allegedly black battle dress uniforins (BDUs) (which tested positive prejtidieial evidence. We conclude, however, that the for the presence of gasoline), a police "duty belt," T-shirts, conditions of Rousseau's po-obation violate his and gloves, which were consistent with clothing worn by constitutional right of access to the coui-ts by effectively the defendants in surveillance footage on the evenings of denying hini access to research and legal ntaterials the fires. An examination of Dreslinski's computer otherwise available to prison inmates and that he is entitled o-evealed directions to and photographs of one of the to a modification of the condition. locations, and also revealeci that Dreslinski had initiated Internet searches relating to the fires. A search of Regarding Dreslinski's separate claims, we atftrm the trial Dreslinski's truck uncovered newspaper articles about the judge's admission in evidence of Rousseau's out-of-court fires, a"coahniner's [head]lanip," a radio scannei- and a list statements given that they were made during the course of of radio scanner frequencies, bolt cutters,° a pry bar,5 A- 23 Corn: ;, Rorssseari, --w N.E.2d ®--- (2013) .. . . --. .... _...... ^ ...... 465 Mass 372 leather gloves, and a video camera labeled with the name surveillance on a public way.fi Consequently, neither "Rousseau." defcndant had standing to challenge the validity of the GPS warrant. Finally, the judge reasoned that even assuniing the A search warrant executed at Rousseau's house revealed defendants had standing, the affidavit, properly excised, similar BDiI-style pants, a reflective raincoat, a hat and still alleged facts sufficient to establish probable cause and, gloves, radios, a police duty belt, a security badge, therefore, was not defective. electrical meters, radio frequencies, postings of local police call signs and radio frequencies, andan industrial On appeal, the defendants renew their challetige to the railroad lock. During the search *377 of the backyard, validity of the GPS warrant in light of our subsequent police also discovered a "fire pit" with a can of flammable decision in Commonwealth v. Connolly, 454 Mass. 808, liquid 7zearby, a simulated electrical transformer, and fire 818, 913 N.E.2d 356 (2009) (Connolly ) (installation and call boxes. A search of Rousseau's computer revealed police use of GPS to track defendant's vehicle constituted Internet searches of the fir•e locations. "seizure" under art. 14), and the United States Supreme C'ourt's decision in United States v. lones, --U.S. On Deceinber 21, 2007, the defendants were indicted by a 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Jortes) Worcester County grand jury for their involvement in fires (attachment of GPS and its use to track vehicle is "search" set in Sterling and Holden, and on September 2, 2009, the witt7in meaning of Fourth Amendment). defendants were indicted by a Franklin County grand jury in connection with fires set in the towns of Florida and b. Stancling. In this case, there is no possessory element to Erving. See note 3, supra. The indictYnents were any of the charged offenses that would trigger the doctrine consolidated for trial in the Worcester Superior Court, of automatic standing as we have applied it. See where the defendants were tried and convicted by separate Conimonwecrlth v. Mnhdi, 456 Mass. 385, 391-394, 923 juries. N.E.2d 1004 (2010), and cases cited. Thus, our discussion is directed to whether Dreslinski and Rousseau have Discussion. 1. Volidity qf GPS svarf-ant, a. Motion to standing basecl on their right to be free from unreasonable srsppyess. In July, 2008, an evidentiary liearing was lleld on government intrusions on their property or their reasonable the defendants' ntotions to suppress all evidence flowing expectation of privacy.' from the issuance of the GPS warrant. The defendants argued that Trooper Pivero's affidavit, which included a In ConnUlly, supra at 818, 913 N.E.2d 356, we considered summary of an incriminating recorded conversation that whether the "use *379 of a GPS device [was] either a took place on July 9, 2007, between a cooperating witness search or a seizure" under art. 14. In that case, police and the defendants.' overstated Rousseau's participation in obtained a warrant to install a GPS device on the the conversation and atnounted to a deliberate falsehood or defendant's minivan for a period offi$een days. Id: at 811, slxrwed deliberate disregard for the truth: See 913 N.E.2d 356. Relying, in part, on information obtained Cotramonwealtlt v. Long, 454 Mass. 542, 552-553, 911 from the GPS device, police secured a search wan•ant for N.E.2d 174 (2009). They argued that once the summary of the ininivan and, on exeeution, discovered a large quantity that conver-sation was excised from the affidavit it would of crack cocaine. Icl. at 812, 913 N.E.2d 3S6. The contain insufficient information on which to base a finding defendant challenged the search, arguing that police llad of probable cause,' In response, the Commonwealth argued continued to utilize the GPS device after the GPS warrant that neither Rousseau nor *378 Dreslinski had standing to had expired. Id. at 818, 913 N.E:2d 356. challenge the constitutional validity of the GPS warrant: Although rejecting the defendant's claim that the GPS The motion judge concluded that "Rousseau had no warrant had expired, the court went on to discuss, as a reasonable expectation of privacy in either Dreslinski's matter of first impression, the constitutional significance of driveway or his unattended truck" and that he could not the attachment and use of a GPS device on thedefendant's "vicariously assert any rights that Dreslinski rnight enjoy." vehicle. It concluded that both "the initial installation of The judge further coneluded that rteither "attaching the the [GPS] device" on the defendant's min%van and "the GPS device ... [nor] monitoring the GPS device's signals" police use of the defendafit's minivan to conduct GPS infringed on Dreslinski's reasonable expectation of monitoring for their own purposes constituted a seizure " privacy because the former was minimally invasive, and uaider art. 14 (etnphasis added). Id, at 822-823, 913 N.E.2d the latter was even less intrusive than traditional police 356. In so concluding, the court reasoned that "[w]hen an A- 24 Com. v. Rousseau, -m- N.E.2d ---- (2013) ...... _: ^. ^__.^.. v....,...... 465 Mass. 372 electronic surveillance device is installed in a motor property-based rubric as the majority in Corznollv. See vehicle . .. the government's control and use of the Jones, supra at 949. Even so, the Couit sti-essed that defendant's vehicle to track its movements interfereswith trespass was not the exclusive test for determining whether the defendant's interest in the vehicle notwithstanding that a''search" had occurred and that "situations involving he maintains possession of it" (emphasis added). Id at 823, merely the transmissian of electronic signals without 913 N.E.2d 356. "fhus, the court's decision focused on the trespass would remain subject to [tiie reasonable govermnent's physical trespass on and use of the vehicle expectation of privacy] analysis" (emphasis in original). without the defendatat's perinission. Jones, supra at 953. See id. at 954-955 *381 Sotomayor, J., concurring), quoting Kyllo v. United States, 533U.S. In a concur-ring opinion, three Justices postulated that the 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ("even in appropi7ate constitutional concern regarding the the absence of a trespass, `a Fourth Amendment search installation and use of GPS monitoring by the police was occurs when the government violates a subjective "not the protection of property but rather the protection of expectation of privacy that society recognizes as the reasonabie expectation of privacy." Id. at 833, 913 reasonable' "). As such, five Justices concluded that the N.E.2d 356 (Gants, J., concurring). Thc concurring reasonable expectation of privacy test formulated in Katz Justices concluded that the defendant had a reasonable v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 expectation that his "comings and goings will not be L.Ed.2d 576 (1967) (Harlan, J., concurring), "augmented, continuously and contemporaneously monitored except but did not displace or diminish, the common-law tlirough physical surveilla»ce, *380 which requires a far trespassory test" recognized in Olmstead v. United States, greater investment of police resources and generates far 277 U.S. 438, 464-466, 48 S.Ct. 564, 72L.Ed. 944 (1928). less information than GPS monitoring," Id. at 835, 913 Jones, supra at 955 (Sotomayor, J., concurring). N.E.2d 356 (Gants, J., concurring). Based on this rationale, the concurring Justices reasoned that the defendant had In a concurring opinion, Justice Alito, joined by three other been subjected to a search witbin the meaning of art. 14. Justices, agreed witli Justice Sotomayor's conclusion that "longe• term GPS monitoring" of the defendant's public Following our decision in Connolly, the United States movenxents'°violated the defendant's reasonable Supreine Court decided Jones, supra at 948, which expectation of privacy, without i-egard to whether there involved the installation of a GPS device oji the was a physical trespass. Jones, supra at 964 (Alito, J., undercarriage of a defendant's vehicle beyond the period concurring); id. at 955 (Sotomayor, J., concurring).'3 authorized in a search warrant. The defendant, who was Justice Sotomayor and the separately concurring justices "tlie exclusive driver" of the vehicle,10 argued that the concluded that the "unique attributes of GPS surveillance" attachment of the GPS device constituted a search or are of particular concern, as it can generate a seizure under the Fourth Amendment, and was illegal coniprehensive record of a person's public dnovements at a without a valid warrant supported by probable cause. Id. at cost far below conventional techniques, such that it may 948 & n. 2. The government argued that a warrant was not "evade[ ] the ordinary checks that constrain abusive law required. Id. at 950. All nine Justices agreed that the enforcement practices." Id. at 955-956 (Sotomayor, J., govertiment's GPS monitoring of the defeudant's vehicle concurring). See id. at 963-964 (Alito, J., concurring). In constituted a seareb under the Fourth Amendment, addition, pervasive monitoring "chills associational and although they reached the result through two different expressive fr•eedom" and allows the goverament "to rationales. Id. at 949; id. at 954 (Sotomayor, J., assemble data that reveal pi-ivate aspects of identity," concurring); id. at 958 (Alito, J., concurring). potentially "alter[ing] the relationship between citizen and government in a way that is inimical to democratic Between Justice Scalia's opinion for the Courtand Justice society." Xd. at 955--956 (Sotomayor, J., concurring), Sotomayor's concurrence, five of the Justices concluded quoting United States v. Cuevas--Perez, 640 F.3d 272, 285 that where the government obtains information by (7th Cir.2011) (Flaum, J., concurring), cert. granted, - physically intruding or trespassing on a privately owned U.S. , 132 S.Ct. 1534, 182 L.Ed.2d 151 (2012). See vehicle" in order to nionitor the vehicle's movements, it .Iones. supra at 963-964 (Alito, J., concurring). In this has conducted a search, Id. at 949, 950 n. 3; id: at 954-955 manner, the rationales of the concurring Justices in Jones (Sotomayor, J., concurring). In this manner, despite were largely *382 consistent with the reasoning expressed referring to the police intrusion as a"search," the Court in the concurrhig opinion in Connolly. analyzed the government's actions under the same A- 25 Ct"sm. v. Rousseau, --m N.E.2e1---- (2013) ^_ . .... __._. ^ _. ^.^...... ^ ^_. 465 Mass. 372 t'i With these decisions in mind, we now proceed to "[W]arrants for GPS monitoring of determine whether Dreslinski and Rousseau have standing a vehicle may be issued under the to challenge the GPS warrant. As to Dreslinski, whether courts' common-law authority, in we characterize the government's intrusion as a "seizure" cireuiiYstances ... where [there is] under Conpaolly or a "search" under Jones, by attaching a probable cause to believe that a GPS device to his vehicle and tracking its movements, the particularly described offense has government invaded Dreslinski's property and been, is being, or is about to be "controll[ed] and use[d]" it for its own purposes. Connolly, committed, and that GPS supra at 823, 913 N.E.2d 356. See Jones, stcpYa at 949, 950 monitoring of the vehicle will n. 3. C.onsequently, he llas standing under both the Fourth produce evidence o€such offense or Amendment and art. 14 to challenge the GPS warrant. will aid in the apprehension of a person who the applicant has 12J The harder question, not directly considered in Connolly probable cause to believe has or Jones, is whether Rousseau has standing to make a conunitted, is committing, or is similar challenge given that he was a "mere passenger" about to cofnmit such offense." having no possessory interest in Dreslinski's pickup truck. With respect to Rousseau, the government's actions are Connolly, supra at 825, 913 N.E.2d 356. Here, even neither a "seizure" of his property under art. 14, because assuming, as the defendants argue, that T'rooper Pivero's the police did not "control and use" Rousseau's vehicle, affidavit overstated Rousseau's participatiots in the Connolly, supYa at 823, 913 N.E.2d 356, nor a search of an conversation recorded on July 19, and that such hyperbole "effect" in which he had a property interest protected by must be excised, Ccmamonwealth v. Long, 454 Mass. 542, the Fourth Amendment. Jones, supr•a at 949. 552-553, 911 N.E.2d 174 (2009), we conclude that the reniaining information was more th,ap sufficient to J31 Thus, we must decide whether our property-based establish probable cause to issue the GI'S warrant. analysis in Connolly represents the outer limits of the protections afforded by art. 14 or whether, even in the The affidavit set for-tli Rousseau's and Dreslinski's absence of a property interest, the government's extensive eriminal histories," as well as the details of a contemporan.eous etectronic monitoring of one's cofnings 2003 police investigation of the two men involving arson and goings in public places invacies one's reasonable and impersonating a police officer." The affidavit also expectation of privacy. We conclude that under art. 14, a provided information obtained in 2007 from a cooperating person may reasonably expeet; not to be subjected to witness who told police that *384 Rousseau and Dreslinski extended GPS electronic stirveillance by the government, "personally informed him of crimes they [had] targeted at his movements, without judicial oversight and a committed," including setting several fires," stealing and showing of probable cause. See Jones, sirpi•a at 954--955 using policei-adios and other emergency equipment,'' and (Sotomayor, J., concuzring). See, e.g., People v. Weaver, breakingintothe Massachusetts Ilighway Department and 12 N.Y.3d 433, 444-447, 882 N.Y.S.2d 357, 909 N.E.2d the Department of Conservation and Recreation to steal 1195 (2009) (defendant had reasonable expectation of vehicle parts and accessories. The affidavit further privacy in location of vehicle, and placing GPS device on included statements made by Dreslinski to the cooperating vehicle constituted search under art. I, § 12, of Constitution witness, in Rousseau's presence, about how Dreslinski had of State of New York). Although we need not decide how made multiple visits to a business in Marlborough to broadly such an expectation miglit reach and to what extent "[check] it out" and how he was "getting things ready" to it may be protected, the fact that police monitored "do it soon." The affidavit also described the state of the Rousseau over a thirty-one-day period is sufficient to then-existing investigation, including statementsby establish that he has standing to challenge the validity of witnesses wlio observed two men in a pickup truck, the warrant. matching a description of Dreslinski's vehicle, driving away at a high rate of speed from the scene of a fire in 1411st *383 c. Probable cause: Tnlight of what we have said, Rutland on 1uly 15, 2007." we consider whether the affidavit in support of the GPS warrant contained sufficient infor-niation to support the "' «' "In dealing with probable cause, ... we deal with judge's fnding ofprobable cause. probabilities. These are not technical: they are the factual and practical considerations of eveiyday life on which A-26 4",om. v. Roaass€;aEa, --4 N.E.2d .m.. (2013) 81M ..- 46 ass 372 reasonable and prudent men, not legal technicians, act.... *386 The second fire, at the Usher Paper Mill located in Probable cause exists where `the facts and circumstances Erving, occurred early the next monrting on July 30, 2007.=1 within their [the officers'] knowledge and of which they After Dreslinski's truck left the communications had reasonably trustworthy information [are] sufficient in bungalow, the C'rPS tracked it traveling to the mi.ll,'' where ttiemselves to warrant a man of reasonable caution in the it arrived at 12:05 A.M.'' It remained there for seventeen belief that' an offense has been or is *385 being muiutes before departing at 12:21 A.M. Shortly thereafter, committed...." L'ommonwealth v. Iti'atczak; 463 Mass. 808, at approximately 12:51 A.M., a tnotot-ist noticed flames 848, 979 N.E.2d 732 (2012) (Spina, J., concurring in part coming fr-om the mill and telephoned 911. Meanwhile, and dissenting in parC), quoting Brinegar v. Unitea States, Dreslinski"s truck traveled to a coffee shop in Greenfield, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 arriving at 12:50 A.M. There, surveillance footage shows (1949). Based on this standard, the infor-mation contained Rousseau and Dreslinski both present and buying food. in Trooper Pivero's affidavit is sufficient to support a Thet-eafter, the truck returned to the mill, and at fixding of probable cause. apps-oximately 1:18 A.M. Rousseau started contacting news outlets. The State police later determined that the fire 181 2. Rousseau's trial. a. Sufficiencv of the evide.race. had been intetationally set in two separate locations using Rousseatr argues that the evidence adduced at his trial was an accelerant such as gasoline, and was not caused by any insufficient to prove beyond a xeasonable doubt that he electrical source. committed the offenses of which he was convicted."' In particular, he contends that there was no proof that he was The third fire occui-red two weeks later on August 12, at tl-ie scene of the fires when they were started. In 2007, and involved the llistoric Mary Elizabeth Sawyer reviewing the sufficiency of the evidertce, we consider House (Sawyer House) in. Sterling. At approximately 3 "whether, after viewing the evidence in the light most A.M. Dreslinski's truck was tracked driving toward favorable to the prosecution, any rational trier of fact could Sterling and stopping at a gasoline station in Hudson, have found the essential elements of the crime beyond a where a surveillance camera shows Rousseau getting out reasonable doubt." Comrnonwealth v. Latimore, 378 Mass. of the truck, entering the store, making a purchase, and 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. returning to the trttek, The truck then proceeded to the hirginiu, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 Sawyer House,-'? arriving at 3:43 A.M. It remained at the L.Ed.2d 560 (1979). We set forth the relevant evidence. house for about three minutes and then left. At approximately 4:30 A.M. a witness spotted flames coming 191 The fit-st fire occurred on July 29, 2007, and involved the from the house and telephoned 911, Later that afternoon, Boston & Maine Railroad communications bungalow Rousseau went to the Sterling police station, where he told located in Florida. On that date, the GPS device indicated the dispatcher that an off-duty Rutland police officer had that Dreslinski's vehicie briefly stopped at a convenience told him the Sterling police were looking for liim. The store in North Adams at approximately 9:15 P.M. dispatcher foundno evidence of Rousseau's claim in the Surveillance footage at that location captured the report log. Rousseau then went to the Rutland police defendants wearing portable radios on their waists with station and *387 filed a written request that he be given a shoulder microphones, and a receipt from the store police radio frequency, but he soon became agitated and indicates that the defendants purchased gasoline. left.'' He proceeded to contact Terry McNamara, a news Dr-eslinski's vehicle then traveled to the communications photographer with a local television station, and attempted bungalow; arriving at approximately 10 P.M. whet-e it to convince his station to report on the fire. State police remained for approximately forty-five minutes. At 10:15 later determined that the fire at the Sawyer House had been P.M. the remote radio at the railroad bungalow became deliberately set using a petroleum accelerant. inoperable and was unable to transmit. It was later discovered that the lock securing the bungalow was The final fire occurred early the next morning, August 13, missing, and inside, the coaxial cables had been cut; the 2007, at the Sandstrom Dairy Farm in Holden. At electrical circuit breaker panel had been smashed, and a approximately I A.M., surveillance footage shows the fire had damaged other equipment. The State police defendants stopping at a gasoline station in West Boylston, determined that the fire had been set intentionally, wvhere they purchased fliel. The GPS then tracked although there was no iirdication that accelerants were Dreslinski's truck to the farm, arriving at 2:41 A.M. and used. leaving at 2:47 A.M. Less than twenty"minutes later, an off-duty Rutland police officer reported flames coming A- 27 ^rsm. ^,. ^,^aa from the barn at the farm. It was subsequently determined Evid. § 401 (2012). Such "evidence is admissible unless thaYthe fire was caused by open flarne applied to available unduly prejudicial, and, `(i]n weighing the probative value combustible materials. s'I`he fire destroyed part of the bai-n of evidence against any prejudicial effect it might have on as well as some equipment. a jury, we afford trial judges great latitude and discretion, and we upliold a judge's decision in this area unless it is Based on the GPS tracking information placing palpably wrong.' " C'otnmonweulth v. 14rroyo; 442 Mass. Dreslinski's truck at each scene near the time the fires were 135, 144, 810 N.E.2d 1201 (2004), quoting set, and the surveillance footage capturing Rousseau and Comnaonwealth v. Sicari, 434 Mass. 732, 752, 752 N.E.2d Dreslinski together, getting in and out of the truck before 684 (2001), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096, and after the fires, there was ample evidence to support the 151 L.Ed.2d 993 (2002). inference that Rousseau was in the truck when the fires were started. Additionally, Rousseau's telephone calls to 1161 Ilere, all the challenged evidence was relevant. various news outlets strongly support the inference that he Dispatcher Licata testified that the clothing tbe defendants was complicit in the fires. Further, ltis appearances at the wore when they came to the Greenfield police station on Sterling and Rutland police stations are highly probative of July 29, just prior to the fire at the communications his consciousness of guilt. Finally, Rousseau was tied to bungalow, was unusual for nonpolice personnel and that the scenes by evidence found at his house, including Rousseau was more talkative than Dreslinski.'1 Thus, the clothing worn on the evenings the fires were set that made fact that he had met the defendants before *389 that him appear to be a law enforcement or security officer; encounter and had seen their photograplis was relevant in maps of the area; postings of local law enforcement call establishing his basis of knowiedge and his identification signs and radio frequericies; and other fire-related of them. Similarly, Dispatcher Hubert's report that equipment. Based on this circuinstantial evidence, a Rousseau was "digging" for information and Dffieer rational juror could have concluded beyond a reasonable Chauvin's testimony that Rousseau requested a fictitious doubt that Rousseau participated with Dreslinski in setting radio frequency were probative of his motive and intent as the fires. the events occurred one day prior to the fire at the Sandstrom Dairy Farm. See note 24, satpra. 1101 1111 1721 113I *388 b. Irrelevatrt and pre,judicicr^^l evidence. Commonwealth v. Mullane, .cupra at 708-709, 8401s1.E.2d Rousseau argues that the trial judge erred in admitting 484. Finally, the evidence found at Rousseau's home went certain testimony and physical evidence because it was to his knowledge about, aud ability to set, fires and irrelevant and amounted to prejudicial charaeter evidence. dispated his claim that he was an innocent bystander. Id. Commotawealth v. 1V7irlltnae; 445 Mass. 702, 708, 840 N.E.2d 484 (2006). In particular, Rousseau cites (1) the Nor do we think the probative value of any of this evidence testimony of a Greenfield police dispatcher, Nicholas was outweighed by the risk that the jury might interpret the Licata, that Licata had met Dreslinski and Rousseau on evidence as proof'of Rousseau's propensity to commit the several occasions and had also seen pliotographs of them; crimes charged. Instead, the evidence represented (2) the testimony of a Sterling police dispatcher, Joshua instances of conduct that were part of a larger continuum of Hubert, that Rousseau was trying to obtain information at taehavior constituting a single criminal enterprise. the police station; (3) the testimony of a Rutland police Conrmon}vealth v. Kohidoux, 450 Mass. 144, 158, 877 officer, Troy Gllauvin; that a fictitious radio frequency was N.E.2d 232 (2007), quoting Gomrraonwealth v, iVarrero; created because the police believed that individuals were 427 Mass. 65, 67, 691 N.E.2d 918 (1998) (prosecution monitoring and interfering with the police transtnissions entitled to present as full picture as possible of events and that Rousseau had requested the fi•equency; and (4) surrounding incident itself). The judge did not abuse his evidence, including a police badge, a cup with firecrackers, discretion in admitting the evidence. a light bar for a police cruiser, police crime scene tape, and 1171 t1e1 a can of flammable liquid, that police found at Rousseau's c. Probationary condition. Rousseau argues that the pr-emises. judge's sentencing order, that "[t]he [d]efendants are not to have the use of computers while in the state prison [14[ [151 "`Relevant evidence' is evidence having any system," violated his right of access to the courts under the tendency to make the existence of anv fact that is of First, 5ixth, and Fourteenth Amendments and arts. 12 and consequence to the determination of the action more or less 16. Following sentencing, Rousseau inoved that the probable than it would be without the evidence." Mass. G. condition of probation be amended so that he could use a-28 Com, v. Rousseau, ..,.._._ _:_:_....__._ 465 Mass 372 computers while incarcerated "for purposes of legal research and other activity related to his case. However, research and for educational and rehabilitative purposes." Rousseau can be barred from using the library conzputers In support of his motion, the defendant inchtded evidence for any other purpose. that the Department of Correetion had switched to cotnputerized law library access. The judge denied 1231 3. Dr•eslinski's trial, a. Rousseau's o7tt-of=coarrt Rousseau's niotion. statements. Dreslinski argues that the trial judge erred in allowing news photographer Teiry McNamara to testify t19I t2" In determining a sentence, a judge is authorized to about Rousseau's out-of-court telephone statements to him place a defendant on probation and to impose any after the fire at the Sawyer House on August 12. In their conditions that the judge deems proper. G.L. c. 276, § 87. conversation, Rousseau told McNamara about the fire and Judges are permitted significant latitude in imposing asked McNamara whether his television station would be conditions ofprobation, Comnronwealth v. Pike, 428 Mass. covering the fire. 393, 402, 701 N.E.2d 951 (1998), citing Commonwealth v. Power•, 420 Mass. 410, 413-414, 650 N.E.2d 87 (1995), *391 Hearsay is an out-of-court stateinent offered by a cert. *390 deriied, 516 U.S. 1042, 116 S.Ct. 697, 133 witness at trial or hearing to prove the truth of the matter L.Ed.2d 655 (1996), and "[a] probation condition is not asserted. Mass. G. Evid. §$01(c) (2012). Ilere; the necessarily invalid simply because it affects a out-of-eourt stateinents were uttered by Rousseau in an probationer's ability to exercise constitutionally protected attempt to publicize the fire at the Sawyer House shortly rights." Commonwealth t=; Power; supra at 415, 650 aftei- the fire had been set; consequently, we agree that the N.E.2d 87, quoting United States v. Tonry, 605 F.2d 144, statenients were part of the defendants' ongoing criminal 148 (5th Cir.1979). "A probation condition that infringes enterprise and, thus, qualify as admissions of a` joint on constitutional rights must, however, be `reasonably venturer made during the pendency of [a] cooperative related' to the goals of sentencing and probation;" effort and in fttrtherance of its goal.,.." Mass. G. Evid., Coxnmonwealth v. Tike, sirpra at 403, 701 N.E. Here, the sentencing judge imposed the condition of b. DiGiambattista instruction. Following his arrest, and probation because he was concerned that the defendants after obtaining a valid Miranda waiver, police interrogated might "use prison facilities, such as computers, to enhance Dreslinski. Prior to commencing the iiiterview, police the inlage of themselves or their past acts of arson." In light asked Dreslinski for permission to record it, but he refused of the evidence presented at trial that Rousseau and orally and in writingby initialing his refusal on his Dreslinskiactively sought to publicize their criminal acts, Miranda waiver form, also admitted in evidence. The we think that such a probationary condition is reasonably interrogation was not recorded. An audio recording of related to the goal of curtailing this type of Dreslinski's decision not to have the conversation recorded attention-seeking behavior. was played for the jury and admitted in evidence. However, given that the Department of Correction lZas 1221 At triai, Dreslinsk'r requested that the juty be given a digitized its law library, we agree that the breadth of the cautionary instruction based on our decision in probationary condition would have the practical effect of DiGiambattista, supra at 447-449, 813 N.E.2d 516, denying Rousseau access to the courts. Although applicable in iit.stanees where the police do not record their impingenient on a constitutional right does not necessarily custodial inteirogation of a defendant. In such instances, invalidate a condition of probation, C'ommontivealth v. "the defendant is entitled (on request) to a jury instruetion Potiver, supra, this particular condition is overly broad. advising that the State's highest court has expressed a 'I'hus, we conclude that Rousseau is entitled to a preference that such interrogations be recorded whenever modification, permitting hin-i to use the prison library practicable, and cautioning the jury that, because of the computers for the limited purpose of conducting legal absence ofany *392 recording of the interrogation in the A- 29 Corti. v. Rousseau, --. N.E.2zi A n 120131 ,-...... ,...:...... 465 Mass 372 ...... ,...... case before them, they should weigh evidence of the the lines laid out in DiGiambattista." Comnconwealth v. defetidant's alleged statement with great caution and care." Robinson, 78 Mass.App.Ct. 714, 722, 942 N.E.2d 980 Id. at 447-448, 813 N.E.2d 516. This instruction is (2011) (afl'7rming trial judge's DiGiarnbattista instruction rectuired even when a defendant has refitsed a recording of that informed jury that "[y]ou may consider whether or not his custodial interrogation. See Cornmonwe,crlth v. 7avares, the defendant indicated that he wished to ... not be 81 Mass.App.Ct. 71, 73, 959 N.E.2d 449 (2011), recorded"). The additional instruction merely alerted the jury to a factor they were entitled to consider in *393 f3 ere, the tr.ial judge instructed the juxy: assessing why the conversation was not recorded, while leavipg intact the instruction's cautionary force. See "You have heard some evidence Comnaonwealth v. Drummond, ', 6 Mass.App.Ct. 625, 629, that there was no recording of the 925 N.E.2d 34 (2010) ("Partictilar reasons why an complete interrogation of the interrogation was not recorded ai-e for the jitry to weigh defendant conducted while he was when they consider, after hearing the instruction, evidence in police custody. TheSupreEne of what the Commonwealth contends the defendant said to Judicial Court, which is our state's police"). highest court, expressed a preference that such interrogations 1211 jz4t However, while the use of an additional instruction be recorded whenever practicable. such as given here is permissible, the use of the term Since there is no complete recording "waived" is problematic. It suggested that the judge had of the interrogation in this case, you already concluded that Dreslinski had "waived" his right to shoulcl weigh evidence of the have his interrogation recorded. Whether a defendant has defendant's alleged stateinent with knowingly and voluntarily waived his right to have his or great caution and care. The reason is her interrogation recorded is properly left to the jury as the that the Commonwealth may have fact finders. Cf. DiGiambattista, satpYa at 448, 813 N.E.2d had the ability to reliably record the 516 ("Where voluntariness [of a confession] is a live issue total circumstances upon which it :.., the jury should also be advised that the absence of a asks you to determine beyond a recording permits [but does not compel] them to conclude reasonable doubt that the that the Commonwealth has failed to prove voluntariness defendant's statement was [of the defendant's confession] beyond a reasonable voluntary, but instead is asking you doubt"). Here, however; given that the defendant's election to rely on a summary of those not to have his interview recorded was made both orally circumstances drawn from the and in writing, and was itself tape recorded and presented possibly fallible or selective as such to the jury, we conclude that the defendant was not memory of its witnesses. In prejudiced by this language. evaluating the sign^ficance of the lack of a recordirig in this case, yox 1251 In future cases, the judge should abstain from using the rnay also consicler' the evidence that word "waived" when referring to the factual eircunistances the defendant was given an surrounding the defendant's decision not to have his opportacnity to have his interrogation recorded. A slight modifieation of the _judge's interrogation recorded, and ivaived instruction provided in this case is all that would be that riglit bothorallv und in required. For example, the judge miglit instruct th.e jury writing." (Emphasis added.) that "in evaluatiug the significance of the lack of a recording in this case, you may also consider the evidence The defendant contends that the emphasized portion of the coneerning whether the defendant was given an above instruction vitiated the DiGiambattista instruction opportunity to have his interrogation recorded, and by informing the jury that they could consider the fact that whether the defendant voluntarily elected not to have his the defendant was given the opportunity to have the interrogation recorded." interrogation recorded, but declined. ConclLtsion. Although the defendants have standing to As an initial matter, we find nothing wrong with the gist of challenge the constitutional sufficiency of the GPS the judge's additional language, which we thiiik "hews to warrant, the warrant was adequately supported by probable A- 30 C>`ortt. v. Rots^sea:r, - N.E.2d -- (2013) ,.,.._. -...... _,_..^..^. 465 Mass 372 cause, and none of the fruits flowing from the issuance of modification of his probationary terms. the warrant must be suppressed. We reject Rousseau's argument concerning the sufficiency *394 of the evidence So ordered. and his objection to the admission of prejudicial character evidence. We do, however, agree that the conditions of Rousseau's probation should be niodifed in a niattner consistent with this opinion. Finally, we reject Dreslinski's Parallel Citations objection to the admission of Rousseau's out-of-court stateinents as well as his argument that the judge's 2013 WL 2402513 (Mass.) modified DiGianibattista instruction constituted prejudicial error. The defendants' convictions are affirmed, and Rousseatt's case is retnanded for Footnotes t We acknowledge the airzicus brief of the Committee for Public Counsel Services and the American Civil Liberties Union of Massachusetts as well as the amicus brief of the Electronic Fsontier Foundation. 2 The global positioning system (GPS) warrant was renewed on August 3, 2007, for fifteen additional days; and again on August 17, for seven additional days. 3 The fires occurred at the following Massachusetts locations: (1) the Boston & Main Railroad communications bungalow in Florida; (2) the Usher Paper Mill in Erving; (3) the Mary Elizabeth Sawyer liouse in Sterling; and (4) the Sandstronr Dairy Fartn in Holden. 4 At both trials, there was expert testimony regarding .siinilarities between the bolt cutters and damage done to property at one of the fires. S There was also expert testimony that the pry bai- could have been used to gain access to one of the buildings set on fire. 6 Trooper Pivero averred that the recording of this conversation had previously been authorized by a warrant. 7 The defendants also argued that the GPS warrant was essentially an anticipatory warrant, and that the affidavit was defective because it did not specify a triggering event. See L'nited States v. Crrubbs; 547 U.S. 90, 94-99, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). The defendants' argutnent, whictl they renew here, is unpersuasive, however, because there was a sufficient nexus between the defendants' ongoing criininal enterprise and Dreslinski's vehicle to conclude that GPS nionitoring of the vehicle would produce evidence that Nvas relevant to the future prosecution of the defendants' criminal activity. Commonwealth v. Connolly, 454 Mass. 808, 825-826, 913 N.E.2d 356 (2009) (Connolly ), Dreslinski separately argued that the warrant was defective because it was not executed within seven days. This argument, which Dreslinski renews here, fails in light of'our decision in Connolly, snpra at 825, 913 N.E.2d 356, where we held that GPS warratits are issued under the court's common-law authority, and that a fifteen-day period of surveillance, measured froni the date of issuance, is reasonable. Here, police ntonitored Dreslinski's vehicle for fiifieen days, whercupon they applied for, and were granted, two extensions. Thus, at no point did police monitor the vehicle outside the successive fifteen-day periods authorized by those warrants. The judge reasoned that police officers monitoring a GPS device were limited to inferences based on tlie location of the vehicle, wbereas traditional surveillance gave a "detailed picture of one's life." Rousseau alludes to the possibility that he has standing to challenge the GPS warrant based on the language of the wiretap statute, G,L. c. 272, § 99 P, yvhich states that "[ainy person who is a defendant in a criminal trial .., tnay move to suppress the contents of any intercepted wire or oral comniunicatiott or evidence derived therefrom." However, in Connolly, satpra at 825, 913 N.E.2d 356, we conclusively stated that "[djata from GPS devices ... does not fall within the language of the wiretap statute, G.L. c. 272, § 99." Rousseau's argument is unavailing. 10 In United States v. Jones, ------U.S. -, 132 S.Ct. 945, 949 n. 2, 181 L.Ed.2d 911 (2012) (.Iones ), the defendant did not own the vehicle in question; it was registered to his wife. However, ttie Court noted thatthe defendant was "the exclusive driver" and "had at A- 31 Com. v. Rousseau, ..., N.E.2d .--- (2013) 465 Mass. 372...... _ least the property rights of a bailee." Id. 1 i Justice Scalia concluded that avetiicle is plainly an "effect" subject tc) theprotection of the Fourth Amendment. Jones, supra at 949. 12 Theconcurring opinions did notdefiae the limits of wbat"longer term" tnortitoring miglrt be. 13 Justice Alito indicated he would abandon altogether the property-based trespass analysis relied on by Justice Scalia, and look exclusively to whether the defendant's °reasonable expectation of privacy [was] violated by the long tern2 monitoring of the vehicle he drove." Id. at 957-958 (Alito, J., concurring). 14 Accerding to the affidavit, Rousseau previously had been convicted of multiple "arson and larceny related offenses," including knowingly receiving stolen property; breaking and entering in the daytime with the intent to commit a felony; larceny over $250; breaking and entering in thenighttime with theintent to comtnit a felony; three convictions of burning personal property; malicious destiuction of property; cruelty to aninla1s; tampering with a fire call box; two convictions of larceny over $250; possession of burglarious tools; and conspiracy. Dreslinski had previously been cottvicted of inultiple "similar offenses," including two separate convictiotis of bceakirtg and entering in the nighttime with the intent to commit a felony; breaking and entering in the nighttime; three convictions of larceny over $250; two convictions of burning personal property; malicious destruction of property; tampering with a fire call box; and conspiracy. 15 The 2003 investigation involved a fire at 817 Ivlain Street in the defendants' hometown of Clinton. Following the investigation, Rousseau was charged with four counts of arson of a dwelling, one count of arson of a building, one count of burning personal property, and one count of inlpersonating a police officer. The arson-related charges were dismissed, but Rousseau was convicted of impersonating a police officer and received a sentence of 222 days. 16 The informant, CB, described one instance where Rousseau admitted to setting a fire behind his house on April 24, 2007, and a second instance on the same date, when CB encountered Rousseau attd Dreslinski immediately after they had set fire to woodlands behind a wastewater treatment plant in Clinton. Both instances were corroborated by reference to the Clinton fire depattnient records. CB also stated that Rousseau adinitted that he and Dreslinski had broken into DKD Foundations, Inc., and burned construction vehicles, an incidentalso cotroborated by records of the State fire tnarshal's oftice, 17 Drestinski told CB that on June 28, 2007, he and Rousseau had stripped a Leominster police cruiser of all its emergency and radio equipment. 'fhis was corroborated by Detective Lieutenant Pellechia of the Leominster police department. 18 As permitted by Cdrrcrraonwecrlth v. Lorcg, 454 Mass. 542, 553, 911 N.E.2d 174 (2009), the motion judge also watohed the videotape of the July 9 conversation that was summarized in the affidavit and properly considered some of the "damning" statemetlts made by Dreslinski and Rousseau during that conversation, apart from the portion of the summary that he excised. 19 The evidence admitted at both trials was essentially the satne except for Dreslinski's statements to police following his arrest, which were admitted only atDresliirski's trial. 20 There was testimony that the niill had not been in active use since approximately 1993 and was uniiisured; that all the equipment had been removed; and that tlicre was no electrical service into the building. 21 Before lieading to the Usher Paper Mill, the truck briefly stopped at a coffee shop, where video surveillance shows Rousseau entering the store to use the restroom and then retuming to the truck outside. 22 A volunteer fire fighter, who was at a house adjacent to the Usher Paper Mill at approximately 11:45 P.M., testified that there were no signs of any fire at the mill. 23 There ivas testitr.ony that the Mary Elizabeth Sawyer I-Iouse was unoccupied and without electrical service or a heat source. 24 The radio frequency Rousseau requested was a fictitious one police had created because they suspected the arsonist was tnonitoring their freyuencies; A- 32 Corn. v. Rousseau, v.w N..E.2d a - (2`=13) 465 ^.^...... Mass372 ...... 25 There was testimony by James Sandstrom, the owner of the farm, that there were no flammable chemicals located in the barn, and that electrical power was turned off at the time ofthe fire. 26 On July 29, 2007, prior to driving to the Boston & Maine Railroad communications bungalow, Dreslinski and Rousseau stopped at the Greenfield Police station and requested copies of a police report. There was testimony tllat the defendants were wearing BDLi-style paiits and carrying portable two-way radios. 27 In light of GPS tracking data placing Dresiinski's truck at the scene of'the fire aroutid the time it started; surveillance footage at a gasoline station in Sterling showing Rousseau getting out of Dreslinski's truck immediately before and after the fire; and the equipment, supplies, and other materials found at the defendants' respective houses, we conclude that a preponderance of admissible evidence, independent of'the telephone call to McNamara, established that a joint criminal venture existed between Rousseau and Dreslinski. Commonwealth v. Bongarzane, 390 Mass. 326, 340, 455 N^B.2d 1183 (1983). See Commonwealtl,v. Silanskas, 433 Mass. 678, 692-693, 746 N.E,2d 445 (2001). ^...... ;li..,,, ..,.,( . .l,.^C€ ..,? ...... ^, .... ,. _... . i, ..1:` .FF.:.. A- 33 A.:;;<: m -_ (2013) cause for respondent (Jeffrey S. Chiesa, Attorney General of New Jersey, attomey). 2013 WI, 3744221 Only the Westlaw citation is currently available Rubin M. Sinins argued the cause for amici curiae The Supreme Court of New Jersey. American Civil Liberties Union of New Jersey ST'ATE of N ew Jersey, Plaintiff--Responclent, F'oundation and The Association of Crirninal Defense Lawyers of New Jersey (Edward L. Barocas, Director, V. 'I'homas W. EARLS, Defendant-Appellant. attorneys; Mr. Sinins, Mr. Barocas, Alexander R. Shaloni, Jeanne M. LoCicero, and Jeffrey S. Mandel, on the Argued Oct. 22, 2012. 1 Reargued Jan. 29, 2013. bri.efs). Decided July 18, 2013. Grayson Barber and Alan Butler, a member of the Califortiia bar, argued the cause for amicus curiae Electronic Privacy Information Center (Ms. Barber, Synopsis attorney; Ms. Barber, Mr. Butler, and Marc Rotenberg, a member of the Massachusetts and District of Columbia bars, and the United States Court of Appeals, on the SY1?OPSIS briefs). Background: Defendant pleaded guilty and was Opinion convicted in the Superior Court, Law Division, Monmouth County, of burglary and theft. Defendant Chief Justice RABNER delivered the opinion of the appealed. After defendant's sentence was affirmed, Court. defendant filed motion to reopen appeal. The Superior Court, Appellate Division, 420 N.J.Super. 583, 22 A.3d 114, affirmed. Defendant petitioned for certification. *1 Advances in technology offer great benefits to society in many areas, At the same time, they can posesigni6cant risks to individual privacy rights. T'his case highlights both principles as we consider recent strides in cell-phone Holdings: The Supreme Court, Rabner, C.J., lield that: technology. New improvements not only expand our ability to coniniunicate with one another and access the (" on an issue of first impression, police were required to Internet, but the cell phones we carry can also serve as obtain search warrant in order to obtain information from powerful tracking devices able to pinpoint our movements defendant's cellular telephone service provider, and with remarkable precision and accuracy. E21 rule would be applied prospectively only. In this appeal, we consider whether people have a constitutional right of privacy in cell-phone location information. Cell phones register or identify themselves Reversed and remanded. with nearby cell towers every seven seconds, Cell providers collect data from those contacts, which allows carriers to locate cell phones on a real-time basis and to On certification to the Superior Court, Appellate Division, reconstruct a phone's movement from recorded data. whose opinion is reported at 420 N.J.Sirper. 583 (2011). Those developments, in turn, raise c}uestions about the Attorneys and Law Firms right to privacy in the location of one's cell phone. Alison S. Perrone, Designated Counsel, argued the cause Historically, the State Constitution has offered greater for appellant (Joseph E. Krakora, Public Defender, protection to New Jersey residents than ttie Fourth attorney). Amendment. Under settled New Jersey law, individuals do not lose their right to privacy simply because they have Brian J. Uzdavinis, Deputy Attorney General, argued the to give information to a third-party provider, like a phone A-34 v. A.3d .,de (2013) company or bank, to get service. See State v. Reid, 194 of privacy in his cell-phone location infoi-ination and that N..I. 386, 399, 945 A.2d 26 (2008). In add.ition,New the police lawfully seized evidence in plain view. The Jeisey case law continues to be guided by whetlier the pattel had no reason to coiisider the emergency aid govertiment has violated an individual's reasonable doctrine. expectation of privacy. Because we find that cell-phone users have a reasonable Applying those principles here, we note that disclosure of expectation of privacy in their cell-phone location cell-phone location information, which cell-phone users information, and that police must obtain a search warrant must provide to receive service, can reveal a great deal of before accessing that information, we reverse the personal information about an individual. With increasing judgment of the Appellate Division. To determine accuracy, cell phones can now trace our daily movements whether the emergency aid doctrine or some other and disclose not only where individuals are located at a exception to the warrant requirement applies to the facts point in time but also which shops, doctors, religious of this case, we remand the matter to the Appellate services, and political events they go to, and with whom Division for further proceedings. they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of theii- cell phones 1. under the State Constitution. We draw the following facts from testimony at the We also recognize that cell-phone location information suppression hearing in this case. In January 2006, can be a powerful too] to fight crime. That data will still Detective William Strohkirch of the Middletown be available to law enforcement officers upon a showing Township Police Departmentwas investigating a series of of pi-obable cause. To be clear, the police will be able to residential burgiaries. Afler a victim told Strohkirch that a access cell-phone location data with a properly authorized cell phone stolen from his home was still active, a search warrant. If the State can show that a recognized court-ordered trace of the phone led the police to a bar in exception to thewarrant requirement applies, sucli as Asbury Park. Strohkirch and two other officers found an exigen.tcircumstances, then no warrant is needed. individual at the bar with the phone, and they arrested him. Ile told the police that his cousin, defendant Thomas Having a clear set of rules serves two key goals. It Earls, had sold him the phone. He added that defendant protects legitiniate privacy interests and also gives had been involved in reside-itial burglaries and kept the guidance to law enforcement officials who carry out proceeds in a storage unit that either defendaiit or his important public safety responsibilities. Because today's former girlfriend, Desiree Gates, had rented. decision creates a new rule of law that would disrupt the administration of justice if applied retroactively, the rule The police found Gates the next day at her cousin's liome, will apply to this defendant and prospective cases only. and Gates agreed to cooperate in the investigation. Gates confirmed that she had leased a storage facility in *2 The issue befoi•e the Court arises in the case of a Neptune, which defendant had paid for, and the trial court burglary investigation. In an effoz-t to locate the target and found that she consented to a search of the unit. That issue his girlfriend, whose safety was in question, the police is not before us. obtained cell-phone location inforination froni T-Mobile on three occasions during the same evening--without first Several detectives accompanied Gates and her cousin to getting a court order or a warrant. the storage unit. Because defendant had the only key to the unit, the officers cut the lock. Inside, the police found The trial court found that defendant had a reasonable various items they believed were stolen, includiag golf expectation of privacy in his cell-phone location clubs; flat-screen televisions, expensive jewelry, and information but admitted the evidence under the sports memorabilia. Gates denied any knowledge of the emergency aid exception to the warrant requirement. The items, Appellate Division affirmed on different grounds. It concluded that defendant lacked a reasonable expectation Strohkirch spoke with Gates's cousin the following day, A-35 State v. Earls, ..,- A.3e1-..., (2013) Jamaary 26, 2006. She said that she had not seen Gates testified that he did not believe that two officers could since the visit to the storage tmit and was concerned about safely apprehend defendant. Gates's safety, According to the cousin, defendant learned about Gates's cooperation and threatened to harm her. At about 3:00 a.m., two houi-s after Strohkirch and Tlie cousin also relayed that defendant and Gates had Deickman first arrived at the motel, two police officers "some domestic violence situations" in the past. from Mddletown arrived. At that point, Deickman spoke Strohkirch was able to locate ati Asbury Park police with a clerk in the motel office who confirined where report from December 2005, wliich outlined an allegation Gates and defendant were staying. Deickman called their by Gates that defendant had assaulted her. room froni the clerk's office to ask Gates to come outside. When defendant and Gates opened the door, the police *3 At some point on January 26, 2006, the police filed a arrested him. The police saw a flat-screen television and complaint against defendant for receiving stolen property sevec-al pieces of luggage on the tloor of the room. Inside attd obtained an arrest wareant. Strohkirch then began to a closed dresser drawer, the police found a pillowcase tied search for defendant and Gates to ensure her safety and to in a knot. execute the warrant. The police brought defendant and the items to In an effort to locate them, the police contacted headquarters, where defendant signed consent-to-search T-Mobile, a cell-phone service provider, at about 6:00 forms. Inside the luggage, the police found stolen p.m. At three different times that evening, T-Mobile property and marijuana. The pillowcase contained stolen provided information about the location of a cell phone jewelry. the police believed defendant had been using. First; at around 8.00 p.m., T-Mobile told the police that the cell A Monmouth County Grand Jury returned an indictment phone in question was in the "general location" of against defendant charging him with third-degree Ilighway 35 in Eatontown' The police searched the area burglary, N.J.S.A. 2C:1$-2, third-degree theft, N.J.S.A. but did not find defendant or Gates. 2C:20-3a, third-degree receiving stolen propertv, N.J.S.A:. 2C:20-7a; and fourth-degree possession of a controlled Second, at about 9:30 p.m., the police agaiii contacted dangerous substance (marijuana), N.J.S.A. 2C:35-10a(3). T-Mobile; which reported that the cell phone was being used in the area of Routes 33 and 18 in Neptune. The *4 Defendant filed a inotion to suppress. On April 27, police searclied that area in response but did not find 2007, after a three-day hearing, the trial court upheld the defendant. Finally, after the police called T-Mobile at seizure of evidence from the storage unit and the motel around 11:00 p.m., the carrier reported that a cell-site room, except for the contents of the pillowcase. The coui-t tower in the area of Route 9 in Howell had been used. At also denied defendant's motion to suppress evidence no point clid the police seek a warrant for the three traces. seized from his car and apartment. Our focus in this appeal is on defendant's arrest, based on the location of Local police departments assisted Strolikirch throughout the cell phone, and the resulting consequences. the evening. At around midnight, the Howell Police Department located defendant's car at the Caprice Motel The trial court found that defendant had a reasonable on Route 9 in Howell. A local officer stayed in the area to expectation of privacy in the location of his cell phone watch the car. Meanwhile, Strolikirch and Detective under State law and that the police should have obtained a Deickman of the Middletown Police drove to the inotel warrant before tracking defendant via cell-tower together. When they arrivedat about 1:00a.m.; the officer information from T--Mobile. Nonetheless, the court on site reported that he had not seen any inovement and concluded that the emergency aid exception to the warrant that all of the motel roonis were dark. requirement applied. In the trial court's judgment, recent events-including Gates's cooperation with the police, The officers decided to call for backup from the Howell defendant's threat to harm her, her absence, and her prior Police Department out of concern for a potential hostage domestic-violence complaint against situation. At about 1:30 a.m., additional officers arrived, defendant-provided an objectively reasonable basis to but they left the scene because of an emergency elsewhere believe that Gates was in physical danger. The trial court in Howell. Strohkirch and Deickman remained and called also found that the television and luggage in the motel for additional officers from their department. Strohkirch room were lawfully seized in plain view, that the State A-36 State v. Ear;:>; a.:, A3d -m-- (2013) had not established that defendant or Gates orally reasonable expectation of privacy in modem cell phones. consented to a search of the motel room, and that The case was reargued on January 29, 2013. defendant gave written consent at headquarters to search the luggage. Defendant pled guilty on September 28, 2007 to third degree burglary and third-degree theft. On II. 1V'ovember 2, 2007, the court sentenced defendant in accordance with a plea agreement to an aggregate, Defendant argues that he had a reasonable expectation of extended term of seven years' imprisonment with tllree privacy in his cell-phone location information and that a years of parole ineligibility. The Appellate Division wari-atlt was therefore needed before law enforcement affirmed defendant's sentenee on June 23, 2009, and later officials could access that infornt:ation. He submits that alloNved defendant to reopen his appeal to challenge the technology now allows law enforcement to track the suppression ruling. location of cell phones in an intrusive, continuous manner and thereby threatens to erode protected privacy rights. In a published opinion, the Appellate Division affirmed Defendant argues that the traditional distinction between the trial court's order for different reasons. State v. Earls, public and private t-ealms is no longer valid because 420XJ.Su^ner. 553, 591 (h.pp.Div.2011). The appellate cell-phone trackiiig monitors a person's movements in panel "conclude[d] that defendant had no constitutionally and out of both areas. protected privacy interest in preventing T-Mobile from disclosing information concerning the general location of In a supplemental brief, defendant maintains tha.t it would his cell phone." Ibid. 'rhe courC explained that indiviciuals he a logical extension of existing precedent to require bave "no reasonable expectation of privacy in their police to get a warrant before they can request cell-phone movements on public highways or the general location of location data. Such an approach, he claims; would not their cell phone." Id. at 599. As a result, the panel had no constitute a new rule of law and should be applied reason to consider whetlaer the emergency aid doctrine retroactivelv. applied in this case. Id. at 591. The panel did find that the television and luggage in the motel room were properly The Attorney General claims that defendant had no seized under the plain view exception to the warrant reasonable expectation of privacy in the generalized requirement. Id: at 591, 600. location of his cell phone. The State contends that the non-specific information it obtained during a brief period We granted defendant's petition for certification"limited of time directed officers to public areas and differed from to the issues of the validity of defendant's arrest based on today's more sophistica,ted and precise tracking data. The law enforcement's use of information from defendant's State acknowledges that location information available cell phone provider about the general location of the cell today could raise constitutional concerns and that, unless phone and the application of the plain view exception to there is an emergency, police now typically obtain the warrant requirement." 209 N.J. 97 (2011). We also wari-ants before seeking that type of data. To the extent granted motionsfrom. the American Civil Liberties Union defendant had a privacy interest in. the location of his cell of New Jersey (ACLU) and the Association of Criminal phone, the Attorney General asserts that the emergency Defense Lawyers (AC`DL), who filed a joint application3 aid exception to the warrant requirement would apply and the Electronic Privacy Information Center (EPIC) to here. participate as amici curiae. In its supplemental brief, the State submits that imposing *5 We heard oral arguments on October 22, 2012. a warrant requirement would amount to a new rule of law Afterward, we asked the parties and amici to address that should apply prospectively only. whether a determination that a warrant is required to obtain cell-phone location data would constitute a new 7'he arguments of amici ainplify defendant's position on rule of law and whether such a ruling should be applied the constitutional issue. The ACLU and ACDL, in a joint retroactively. We also requested information about the brie£ contend that there is a reasonable expectation of current state of technology relating to cell-phone location privacy in cell-phone locationinformation under the State tracking and whether cell-phone users today have a Constitution. According to the two amicus groups, such A-37 State v. Earls, --° A.3d ---- (2013) information can reveal intimate details about one's affairs signal strength weakens, even when no calls are made. and intrude upon the constitutional right of association. See In r•e Pen Register & TrapfTrace Device, with. Cell The groups thet-efore argue that law enforcement must get Site Location Aaith., 396F.Supp.2d 747, 750 a warrarit supported by probable cause before it can (S.D.Tex,2005). gather such information. Absent a warrant, they argue that the exclusionary rule should apply. Cell phones can be tracked when they are used to make a call, send a text message, or connect to the Internet--or in their supplemental brief, the ACLU and ACDL when they take no action at all, so long as the phone is not contend that a warrant requirement does not constitute a tuixied off. See Blaze Testimony, supra, at 13-14. Today, new rule of law. They coneede that if this Court rules cell-plione providers can pinpoint the location of a otherwise, the issue of retroactivity is a close question: person's cell phone with increasing accuracy. Iii some areas, carriers can locate cell-phone users within *6 EPIC also maintains that individuals have a reasonable buildings, and even within "individual floors and rooms expectation of privacy in the location of their cell phones. within buildings." Id. at 25. EPIC argues that real-time cell-phone location tracking can be more invasive than Global Positioning System The degree of accuracy in tracking a cell phone depends (GPS) tracking and involves a level of intrusion that a on the type of mobile device, the type of tracking method, reasonable person would not anticipate. In its the service provider, and other factors. We consider two supplemental brief, EPIC offered helpful details about the main types of inobile phone devices: cell phones and current state of cell-phone teclmology. smartphones. Smartphones are an advanced version of basic cell phones that can be used not only to make calls and send text messages but also to connect to the Internet, ainong other features. See Stephanie K. Pell & Christopher Soglioian, Can You See1VIe Nntiv? Toward III. Reasonable Staradards for Law Enforcement Access to Location Data 77aat Congress Ccaaild Enact; 27 Berkeley For a better understanding of the issues presented, we Tech. L.J. 117, 129 (2012). Those connections create begin by examining how cell phones function. We draw countless cell-site records that facilitate tracking. See id. on congressional testimony by Professor Matt Blaze of at 130; Blaze Testimony, supra, at 27. the University of Pe3msylvania, see ECPA R.eform and the Revolution in Location Based Technologies and *7 There are two primary methods to track mobile SerNices: Ilearing Before the Subcomm. on the devices: network-based (cell-site) and handset-based Constitution, Civil Rights, and Civil Liberties of the H. (GPS). Blaze Testimony, stipra, at 20-21. Comm. on the Judiciary, Z 11th Cong. 12-30 (2010) (statement of Prof. Matt Blaze) ("Blaze Testimony"), and Network-based location tracking relies on the network of other sources. cell sites and antennas described above. As mobile devices register with a cell site, tnake a call, or download A basic cell phone operates like a scanning radio. Cell data, they "communicate" with a station through radio phones use radio waves to commtrnicate between a user's signal data that is collected and analyzed at the provider's handset and a telephone network. Id, at 20. To connect cell towers. Id. at 22. That process enables carriers to with the local telephone network, the Tnternet, or other identify "the position of virtually every handset aetivein wireless networks, cell-phone providers maintain an the network at all times." Ibid. The information is extensive network of cell sites, or radio base stations, in typically created and stored in a database. Id. at 27. A log the geographic areas they serve. In re U.S. Historical Cell is also ordinarily created each time a call is made or data Sate Data, 747 F.Supp.2d 827, 831 (S.D.Tex.2010). downloaded. Ibid.; Pell & Soghoian, stapra, 27 Berkeley Iech..L..J, at 128. Whenever a cell pboneis turned on, it searches for a signal and automatically registers or identifies itself with 'fhe accuracy of the location information depends in part the nearest cell site-the one with the strongest signal. on the size of the "sector"-the area served by the cell Blaze Testimony, stcpra, at 20. The process is automatic. tower. Blaze Testimony, supra, at 23-24. That area can Cell phones re-scan every seven seconds, or whenever the range from miles to meters. Id. at 25. As the number of A-38 State v. Earls, ... A.3ct ---- (201 3) cell towers or base stations increases, the size of the Ei7hanced 911 (2013), sector shrinks and tracking becomes more precise. Id. at http :/r ab ou til s. ve ri zon wi rel ess . conVco mmit m ent/ s afety_s e 24-25. curity!. From 2000 to 2012, as cell phones became more popular, Each carrier has its own practice to collect and retain the number of cell towers in the United States increased location data. Blaze 'I'estimony, supra, at 27. With more from 104,288 to 301,779. CTIA----The Wireless Ass'n, accurate information available, carriers can now collect YVireless Industfy Survej, Results (Dec.2012), http: // more precise data about the location of cell pliones that fles.CTltl.orgtpdf/CTIA_Survev_YE_2012 Graphics-FI their customers use. Ibid.; Historical Cell Site Data, NAl,:pdf. As a direct consequence, not only are carriers supra, 747 P.Supp.2d at 833--34. able to accommodate new customers and provide better reception, but they can also locate cell phones with The number of users has increased steadily as well. From greater precision. In dense urban areas and environments 2000 to 2012, the estimated number of wireless devices in that use "microcells"-newer, sinaller cellular base the United States grew from 109.4 tnillion to 326.4 stations---a sector`s coverage area can be "quite small million. CTIA, supra. As of May 2013, the Pew Research indeed." Blaze Testimony, supra, at 25 (explaining that Center reported that 91 percent ofArnerican adults have a microcells can "sometimes effectively identify[ ] ... cell phone and 56 percent have a smartphone. Pew individual floors and rooms within buildings"); Historical Research Ctr., Pew Internet: Mobile (June 6, 2013), Cell Site Data, supra, 747 F.Supp.2d at 833 (noting http://pewi nter-net. org/Comtt3.e 'Sricrocell has a range of 40 feet" (citations omitted)). nt ary/2012 /Feb ru ary.%Pew-Int e rnet-Mob i l e. aspx. New Jersey, of course, is the most densely populated state in the nation. See U.S. Census Bureau, Resident Populatiota Data; Population Density (2010), http:// www.census.gov,12010censusi'data/appoi-tionment-deiis-te xt.php. IV. We turn next to relevant federal and state law relating to Ilandset-based tracking uses GPS technology to locate location information. cell users. Blaze Testimony, supra, at 21. The GPS system is cotnprised of "orbiting satellites that provide navigation data to military and civilian users" throughout the world. U.S. Air Force, Global Pnsitionirig Systern Factsheet (Sept. 15, 2010), A. http: //www.af.mil/information/factsbeets/factslieet.asp?id =119. Most modern phones contain GPS receivers, see The United States Constitution guarantees "[t]he right of Jagdish Rebeilo, Four Out of Five Cell Phones to the people to be secure in their persons, houses, papers, Integrate, GPS bv End of 2011 (July 16, 2010), and effects, against unreasonable searches and http://www.isuppli.co seizures.... " U.S. Const. amend. IV. To determine whether m/Mobi le-and-W ireless-Communi cations/News.fPages/ a violation of the Fourth Amendment had occurred, P'our-out-of-Fi ve--Cell-Phones--to-lntegrate-G P S-by-E earlier cases focused on whether the government had nd--of--2011.aspx, and "the user's phone calculates its violated an individual's reasonable expectation of own location" with "GPS satellite receiver hardware built privacy. See, e.g., Kyllo v. United States, 533 U:,S. 27, in to the handset," Blaze Testitnony, supra, at 20-21. 31-33, 121 S'.Ct. 2038, 2042-43, 150 L. Ed.2d 94, 101-02 GPS teclinology works reliably outdoors, id. at 22, and (2001) (discussing Justice Harlan's frequently quoted "can precisely locate something to within about 10 meters coneurrence in Katz v, United States, 389 U.S. 347, 360, of accuracy," id at 14. 88 S.O. 507, 516, 19 L. Ed.2d 576, 587 (1967) (Harlan, J., concurring)). *8 Many modern cell phones contain a GPS chip that can be used for emergency tracking. For exan-iple, new Two cases after Katz addressed the government's use of handsets sold by Verizon Wireless since December 31, beepers or electronic tracking devices. See United States 2003 have a chip in the phone that helps provide location v. Knotts, 460 U.S. 276, 103 S.Ct: 1081, 75 L. Ed.2d 55 information. See Verizon tiVireless. Wireless Issues' A-39 State v. Earls, --- A.3d ....,. {2013} (1983); United States v. Karo, 468 U5: 705, 104 S:Ct. automatically recorded and stored. Also, radio signals 3296, 82 L. Ed,2d 530 (1984). In Knotts, supra, the travel to cell towers from both public and private United States Supreme Court upheld the warrantless locations. monitoring of a beeper that law enforcement had placed in a container of cliloroforin: 460 US at 285, 103 S.Ct. at Decisions that have applied Knotts and/or Kar-o to 1087, 75 L. Ed.2d at 64. The decision relied heavily on cell-site data are divided. Some have found that the the public nature of the target's activities. Police followed government's use of cell-site information to get a genei-a1 the target's car, where the container had been placed, as it location does not violate the Fourth Amendment. See, traveled on public streets and highways. Id. at 281, 103 e.g., United States v. Skinner, 690 F.3d 772, 777-78 (6th S.Ct, at 1085, 75 L. Ed.2d at 62. They maintained visual Cir.2012); United States v. .F'orest, 355 F.3d 942, 950-52 contact with the car and used a monitoring device located (6th Cir.2004), renacanded on unrelated senteneifzg in a helicopter when they lost the signal from the beeper. grounds by 543 U.S. 11.00, 125 S.Ct. 1050, 160 L. Ed.2d Id. at 278, 103 S.Ct. at 1083, 75 L. Ed.2d at 60. Because 1001 (2005); United States v. Navas. 640 F.Supp.2d 256, the Court concluded that the defendant had no reasonable 263-64 (S.D.N.Y.2009), rev'd on other grounds, 597 expectation of privacy in his car's movement on public F.3d 492 (2d Cir.2010); Deveg-a v. State, 286 Ga. 448, roads, id: at 281-82, 103 S.Ct. at 1085-86, 75 L. Ed.2d at 689 S:E.2d 293, 304--01 (Ga.2010). Other courts have 62, no warrant was required. If "dragnet-type law found that the Fourth Amendment requires that police get enforcement ptactices" occur in the future, the Court a warrant to obtain cell-site data. See, e.g„ In re U.S. for observed, "therewill be time enough then to determine Order Authorizifag Release of Historicat Cell--Site Info., whether different constitutional principles may be 809 F.Supp.2d 113, 119-20 (F.D.N.Y.201.1) (seeking applicable." Id. at 284, 103 S.Ct. at 1086, 75 L. Ed.2d at long-tei-ni, historical information); Nistorical Cell Site 63. Data, supra, 747 F.Supp.2d at 846 (same); see also Irt re U.S. for Order Directing Provider of ,Clec°, Commc'ii *9 In Karo, sttpra, by contrast, the Supreme Court Serv. to Disclose Records to Gov't, 620 F.3d 304, 313, reviewed the warrantless monitoring of a beeper that 319 (3d Cir.2010) (allowing government to obtain "reveal[ed] information that could not have been obtained cell-site location information on showing of less than through visual swveillance." 468 U.S. at 707, 104 S.Ct: at probable cause but recognizing niagistrate judge's 3299, 82 L. F,d.2d at 536. The police had placed a beeper discretion to require warrant to protect privacy interests).z in a eontainer of ether, which the target transpor-ted on public roads bL3t also stored in private homes. Id. at *10 A recent decision of the United States SupremeCourt 708-09, 104 S.Ct. at 3299-300, 82 L. Ed:2d at 537. The that rests on principles of trespass has altered the Court found that the monitoring violated ]ustifzable landscape somewhat. See United States v. Jones; 565 U.S. Fourth Amendment interests in the privacy of a home. Id. 945, 132 S.Ct. 945, 181 L. Ed.2d 911 (2012). .Iones held at 714, 104 S:Ct. at 3303, 82L, Ed.2d at 541. As the Court that the physical installation of a GPS device on a car explained, '[e]ven if visual surveillance has revealed that amounted to a Fourth Amendment search and required a the article to which the beeper is attached has entered the wai-rant. Id. at , 132 S.Ct, at 949181 L. Ed.2d at 918. house, the later monitoring not only verifies the officers' Federal officers laad attached a GPS tracking device to a observations but also establishes that the article remains car, without a valid warrant, and pinpointed the car's on the premises:" Id. at 715, 104 S:Ct. at 3303, 82 L. movenients to within 50 to 100 feet foi- nearly one month. Ed,2d at 541. Read together, the cases fonnd no Id. at --, 132 S.Ct. at948181 L.Ed.2d at916-17. reasonable expectation of privacy in the monitoring of tracking devices in public, as opposed to private, areas. Tlie Court unanimously found a violation of the Fourth Amendment but split on the underlying basis. The By recent standards, the devices used were relatively majority opinion by Justice Scalia, joined by Chief Justice primitive. The beeper in Knotts, szrpra; had a limited Roberts and Justices Keiinedy; Thomas, and Sotomayor, range and required physical surveillance so that law held that the installation of the device constituted a enforcement would be closeenough to receive a signal. trespass on private property. Id. at . 132 S.Ct. at 460 U.S. at 278, 103 S.Ct. at 1083, 75 L. Ed.2d at 60. That 949-54181 L. Ed.2d at 918-23. The decision did not is no longer the case. With more modem cell phones, as address whedrer the defendant had a reasonable discussed above, data is collected remotely by way of expectation of privacy that was violated when the police contacts with cell towers, and the inforination is monitored the device. Id. at ------, 132 S.Ct. at 950181 L. A-40 :;tata v. Earls, k3d --.- (2093) Ed.2d at 919. 952 (1982). On a numbei- of occasions, this Court has found that the State Constitution provides greater Yet five members of the Court discussed expectation of protection. against unreasonable searches and seizures privacy concei-ns. Justice Alito, in a coneurring opinion than the Fourth Amendment. See, e.g., Reid, supra. 194 joined by Justices Ginsburg, Breyer, and Kagan, would X.J. at 389, 945 A.2d 26 (recognizing reasonable have analyzed the case under Katz. See id. at , 132 expectation of privacy in Internet subscriber information); S.Ct. at 958181 L. Ed.2d at 927 (Alito, J., concurring). In State v. McAllister, 184 X.J. 17, 19, 875 A.2d 866 (2005) light of modern cell phones and other wireless devices (finding reasonable expectation of privacy in bank that "permit more precise tracking," and allow carriers to records); State v. AIollica, 114 N.J. 329, 344-45, 554 A.2d "record the location of users," Justice Alito would Izave 1315 (1989) (finding privacy interest in hotel-room asked "whetller the use of GPS tracking in a particular telephone toll billing records); State v. s'Vovenabrino, 105 case involved a degree of intrusion that a reasonable N.J. 95, 159, 519 A.2d 820 (1987) (declining to find person. would not have anticipated." Id: at , 132 S.Ct. good-faith exception to exclusionary rule); Ilant, supra, at 963---64181 .L. Ed,2d at 933---34. In his view, "relatively 91 N.J. at 345, 450 A.2d 952 (finding privacy interest in short-terni monitoring of a person's movements on public telephone toll billing records). streets accords with expectations of privacy that our society has recognized as reasonable"; "[b]ut the use of At the outset, we note that an individual's privacy interest longer term GPS nionitoring in investigations of most under New Jersey law does not turn on whether he or she offenses impinges on expectations of privacy." Irl. at is required to disclose information to tliird-party providers 132 S.Ct. at 964181 L. Ed.2d at 934 (citation to obtain service. See Reicl, supra, 194 N.J. at 399, 945 omitted). A.2d 26; t1lcAlli.ster, sFrpra; 184 X.I. at 31, 875 A.2d 866; IHifnt; supra, 91 N..I. at 347. 450 A.2d 952. Just as Jtistice Sotomayor joined the majority opinion. In a customers must disclose details about their per-sonal concurrence, though, she also agreed with Justice Alito finances to the bank that manages their checking that longer term tracking impinges oti expectations of accounts, celt-phone users have no ehoice but to reveal privacy. Id. at -, 132 SCt, at 955181 L. Ed.2d at 925 certaiui information to their cellular provider. That is not a (Sotomayor, J., concurring). "[E]ven short-teim voluntary disclosure in a typical sense; it can only be monitoring," she cautioned, "will require particular avoided at the price of not using a cell phone. attention" because "'GPS monitoring generates a precise, cornprehensive record of a person's public niovements When people make disclosures to phone companies and that reflects a wealth of detail about ... familial, political, other providers to use their seivices, they are not professional, religious; and sexual associations." Ibid. promoting the release of personal infortnation to others. (citation omitted). See Reid, supra, 194 N.J. at 399, 945 A.2d 26; AlcAllister, szapra. 184 N.J. at 31, 875 A.2d 866; Hunt, su,lnra, 91 X.I. Both concurring opinions also noted that moderrt tracking at 347, 45014..2d 952. Instead, they can reasonably expect devices offer an inexpensive alternative to traditional that their personal information will rernain private. For physical surveillance, which could only have been those reasons, we have departed from federal case law accomplished with a large group of agents. Id. at that takes a dif€erent approach. See Sntitle v. !1 dial] in the privacy of [their] home will be recorded solely In other words, details about the location of a cell phone for the telephone company's business purposes" and not ean provide an intimate picture of one's daily Iife. for law enforcement. 91 N.J. at 347, 450 A.2d 952. As the Court explained, a list of phone numbers dialed "`easily Modern cell phones also blur the historical distinction could reveal the identities of the persons and the places between public and private areas because cell phones emit called, and thus reveal the most intimate details of a signals froin both places. In this case, defendant was person's life.' " Ibirl. (quoting Srriith, supra, 442 US. at located in a motel room, not on a public highway. Yet law 748, 99 S.Ct, at 2584, 61 L. Ed.2d at 231 (Stewart, J., etrforcement had no way of knowing in advance whether dissenting)). defendant's cell phone was being monitored in a public or private space. Cf. 7{yllo, supra, 533 U.S. at 38-39, 121 *12Similarly in McAllister, supra, the Court noted that S: Ct: at 2045-46, 150 L. Ed.2d at 104-05 (finding it bank records "`reveal[ ] many aspects of [a depositor's] impractical to bar only thermal imaging of "intimate personal affairs, opinions, habits and associations. Indeed, details" becaitse police could not know in advanee what the totality of bank records provides a virtual current through-the-wall surveillance would detect). Cell-phone biography.' " 184 N.J. at 30-31, 875 A.2d 866 (citation location information, thus, does more than simply otnitted). augment visual surveillance in publie areas. See Knotts, supra, 460 U.S. at 282, 103 S. Ct. at 1086, 75 L. F,d.2d at More recently, in Reid, supra, we found that Internet 63. "subscriber information alone can tell a great deal about a person. With a complete listing of IP addresses, one can *13 Finally, cell-phone use has become an indispensable track a person's Internet usage" and learn where they part of modern life. The hundreds of ntillions of wit-eless sliop, what political organizations they find interesting, devices in use each day can often be found near their their health concet-ns, and more, 1941V:J. at 398, 945 A.2d owners-at work, school, or home, and at events and 26 (citation omitted). gatheriuags of all types. And wherever those mobile devices may be, they continuously identify their location We also noted how integrally connected all three areas are to nearby cell towers so long as they are not turned off. to essential activities of everyday life, Ibid. As to each, we found that tbe State Constitution protects the privacy interest at stake. Id at 399, 945 A.2d 26; McAllister, supra, 184 N.J. at 32-33, 875 A.2d 866; Hurtt, sztpra, 91 N.J. at 347, 450 A.2d 952. C. We analyze those considerationsunder the State's We consider the expectation of privacy that should be accorded the location of a cell phone in that context. search-and-seizure jurisprudence. We are required to focus on reasonable expectatiort of privacy concerns. LJsing a cell phone to detertnine the location of its owner can be far more revealing than acquiring toll billing, bank, As a general rule, the more sophisticated and precise the or Internet subscriber records. It is akin to using a tt-acking; the greater the privacy concern. The question tracking device and can function as a substitute for 24/7 before theCourt, then, is informed by changes in surveillance without police having to confi-ort the linsits technology, because they affect the level of detail that of their resources. It also involves a degree of intrusion telephone companies can relay to law enfo-cement. To be that a reasonable person would not anticipate. See Jones, sure, the degree of information available through strpra, 565 U.S. at 945, 132 5` Ct. at 964, 181 L. Ed.2d at eell-phone tracking has grown with each passing year. As 934 (Alito, J., concurring). Location information gleaned discussed above, in 2006, cell phones could be tracked to from a cell-phorte providet- can reveal not just where within a one-mile radius or less of the nearest cell tower. people go-which doctors, religious services, and stores Today, that distance has narrowed to the point that cell they visit-but also the people and groups they choose to phones can be pinpointed with great precision-to within affiliate with and when they actually do so. That feet in some instances. Tliat information is updatecl every information cuts across a broad ratige of personal ties seven seconds through interactions with cell towers; with family, friends, political groups, health care whether the phone is in public or- private space. As noted, providers, and others. See id. at , 132 S.O. at that continuous process can reveal a great deal of private 955-56181 L. Ed.2d at 925 (Sotomayor, J., concurring). A-42 State v. Earls, -.. A.3c1 -_d- (2013) information about a person's life. obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to Viewed from the perspective of a reasonable expectation obtain tracking information through the tise of a cell of privacy, what was problematic in 2006 is plainly phone. iuvasive today. We are not able to draw a fine line across that spectrum and calculate a person's legitimate By providing greater clarity to the law in this area, we expectation of privacy with mathematical strive to meet two aims: to protect the reasonable cei-tainty-noting each slight forward advance in expectation of privacy that cell-phone users have and, at technology. Courts are not adept at that task. Instead, our the same time, to offer clear guidance to law enforcetnent focus belongs on the obvious: cell phones are not meant officials so they may carry out important tasks in the to serve as tracking devices to locate their owners interest of public safety. Both the public atid the police wherever they may be. People btty cell phones to will be bettei• served by a clear set of rules. To be sure, communicate with others, to use the Internet, and for a law enforcement officials will still be able to turn to growing number of other reasons. But no one buys a cell cell-phone providers to obtain location information, as phone to share detailed hiformation about their long as such requests are accompanied by a warrant whereabouts with the police. That was true in 2006 and is issued by a neutz-al tnagistrate and supported by probable equally true today. Citizens have a legitimate privacy cause. We emphasize that no warrant is required in interest in such information. Although individuals may be emergency situations or when some other exception to the generally aware that their phones can be track.ed, most warrant requirement applies. people do not realize the extent of modem tracking capabilities and reasonably do not expect law Our ruling today is based solely on the State C'onstitution, enfhrcement to convert their phones into precise, possibly We recognize that Jones and Smitfr, to the extent they continuous tracking tools. apply, would not require a warrant in this case. Law and practice have evolved in this area in response to changes in technology. In 2010, a new statute required that police get a court order for cell-site information on a showing of less than probable cause: "specific and V. articulable facts showing that there are reasonable grounds to believe that the record or other information ... 121 This opinion announces a new rule of law by iinposing is relevant and material to an ongoing criminal a warrant requirement. Since 2010, the law has required investigation." lV:J. SA. 2A:156A.-29e. The statute that police get a court order for cell-site information based contains an exception for location information for mobile on less than probable cause. See AjJ.S.A. 2A:156A-29e. devices when a "law enforcement agency believes in good Ttius, even before today, there was some expectation of faith that an emergency involving danger of death or privacy as to cell-phone location information, and the serious bodilyinjui-y to the subscriber or customer" exists. police needed a form of judicial authorization to obtain N.J.S.A. 2A:156A-29c(4). Moreover, as discussed further that data. below, the Attorney General reports that in recent years, many law enforcement officers have obtained warrants No case law before 2010 specifically addressed based on probable cause before gathering informatioci cell-phone location information. See Reid, supra, 194 N.J. about the location of a cell phone. We credit the Attorney at 389, 945 A.2d 26 (requiring grand jury subpoena for General's office for that approach. Internet subscriber records); Stcrie v. Dqniicz, 188Ad. 285, 297, 907 A.2d 395 (2006) (same for utility records); *14 For the reasons discussed, we conclude that Article Z, McAllister, sarpra, 184 N.J. at 36, 875 A.2d 866 (same for Paragraph 7 of the New Jersey Constitution protects an bank records); rVollica, supra, 114 N.J. at 345, 554 A.2d individual's privacy interest in the location of his or her 1315 (requiring search warrant for hotel-room telephone cell phone. IJsers are reasonably entitled to expect toll billing recoa-ds). Although the parties dispute wha confidentiality in the ever-increasing level of detail that might have been gleaned from earlier decisions, neither cell phones can reveal about their lives. Because of the our case law nor the statute required a warrant for nature of the intrusion, and the correspondi:ng, legitimate cell-phone location information. We conclude that the privacy interest at stake, we hold today that police must police could not have reasonably anticipated that a A-43 State v. Earls, -_- A.3sl --°° (2013) warrant based on probable cause was needed, particularly period in 2012. The limited information the State obtained in light of a statute that instructed otherwise. revealed that in eighty-five percent of the 600 cases surveyed, wai-rants were obtained. Local or municipal 131 Because today's holding "`is sufficiently novel and police departments handled about sixty cases in which no unanticipated,' " State v. Knight, 145 N.J. 233, 251, 678 warrants were sought. A.2d 642 (1996) (quoting State v. Lark, 1I7 N.J. 331, 339, 567 A.2d 197 (1989)), we must determine whether it The State notes that this incomplete data requires further should be applied retroactively. To do so, we consider analysis. kor the most part, the data covers investigations three factors; "`(1) the purpose of the rule and whether it by county prosecutor's offices, not local police would be furthered by a retroactive application, (2) the departments. The Attorney General reports that since degree of reliance placed on the old iule by those who 2006, it has trained members of both the Division of administered it, and (3) the effect a retroactive application Criminal Justice and strike forces from the county would have on the administration of justice.' " Ibid. prosecutor's offices to obtain warrants based on probable (quoting State v. Nash, 64 N.J. 464, 471, 317 A.2d 689 cause when seeking GPS-based location information. (1974)). That training did not include members of local police forces. Nor did it extend to requests for more general *15 141 We can apply a new rule in one of four ways cell-site location information. Also, when cell-site information was sougllt as part of a broader (1) "purely prospectively ... to cases in which the application-for example, as part of a request for operative facts arise after the new rule has been GPS-tracking information, stored electronic announced"; (2) "in future cases and in the case in communications, or toll billing records----- law enforcement which the ruleis announced, but not in any other used the higher probable cause standard for the combined litigation that is pending or has reached final judgment application. at the time the new ntle is set forth"; (3) "`pipeline retroactivity,' rendering it applicable in all futtu•e cases, We discern two points from the information presented. the case in which the rule is aniiounced, and any cases First, the State cannot provide a complete set of data for still on direct appeal", and (4) "complete retroactive the period from 2006 to the present. Second, the data it effect .,. to all cases ." has supplied may overstate the number of cases in which the State specifically sought warrants for cell-site [State v. Henderson, 208 N.J. 208, 301-02 (2011) information. In any event, it is apparent that the results in (quoting Knight, supra, 145 N.J. at 249, 678 A.2d a substantial number of cases would be jeopardized if the 642).] Court applied its holding retroactively. That could cause extensive disruptioninthe administration of justice. We consider each of the retroactivity factors in turn. As to the first factor, the purposes of the new ritle are to protect *16 In light of all three factors, we apply today's holding privacy interests and deter iinproper police conduct. to defendant Earls and future cases only. As to fiiture Today's decision requires a heightened standard for cases, the warrant requirement will take effect thirtv days disclosure of cell-phone location information. It does not trom today to allow the Attorney General adequate time preclude untrustworthy evidenee that could underrnine the to circulate guidance to all state and local law reliability of the trial process. See State v. Burstein, 85 enforcenrent officials. N.J. 394, 406-08, 427 A.2d 525 (1981). Also, deterrence is rarely a basis to apply a new rule retroactively. See For prior cases, the requirement in place at the time an Knight, sxepra, 145 N.J: at 251, 678 A.2d 642; State v. investigation was conducted remains in effect. Starting Catania, 85 N.J. 418, 447, 427 A.2d 537 (1981). January 12, 2010, law enforcement officials had to obtain a court order to get cell-site information under N.J.S.A. As to the remaining two factors, the Attorney General 2A:156A-29e. Failure to abide by that requirement can be reports that in recent years, law enforcementofficers have ehallenged under the law as it existed at the t.ime. obtained warrants in many cases when they sought cell-phone locationdata. In response to this Court's request for additional information, the State surveyed the twenty-one county prosecutor's offices for a six-month A-44 State v. Earls, .E. A3d m__, (2013) VI. Fr•anb:el, supra, 179 N.J. at 600, 847 A.2d 561). Consistent with this Court's recent decision in Edmonds "I ibl We briet'ly touch on two other issues. The Appellate and recent federal precedent, we no longer consider the Division concluded that the plain view exception to the officer's motivation for entry into the home. Id, at warrant requirement applied to the seizure of the 131-33. television and luggage in the motel room. Earls, supra, 420 1V.J.SupeY. at 600. For the exception to apply, the *17 Because the Appellate Division found that defendant State must sbow that (1) the offieer- was °`lawfully in the had no privacy interest in his cell-phone location viewing area," (2) the officer discovered the evidence " information and that the plain view doctrine applied, the `inadvertently,' meaning that he did not know in advance panel had no reasoil to consider the emergency aid where the evidence was located nor intend beforehand to doctrine. We note that defendant did not present written seize it," and (3) it was "immediately apparent" that the argument directly to this Court on the point and that the items "were evidence of a crime, contraband, or otherwise State's subtnissions rely on the outdated three-part test subject to seizure>" State v. Mann, 203 N.J. 328, 341 that Edmonds revised. (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236, 463 A.2d 320 (1983), cert: denied, 465 FLS . 1030, 104 S.Ct. For all those reasons, we remand the matter to the 1295, 79 L. Ed.2d 695 (1984)), Appellate Division to determine whether the emergency aid docttine applies to the facts of this case under the The police located defendant in his motel room based on newly restated test. cell-site data they obtained without first getting a warrant. The State cannot show that the officers were lawfully in the motel room because their presence tlowed directly from a warrantless search of T-Mobile's records. vII. 171 The State also argues that another exception to the warrant requirement, the emergency aid doctrine, applies For the reasons set forth above, we reverse the judgment here. The doctrine applies when "'exigent circumstances of the Appellate Division and remaud the matter there for ... require public safety officials, such as the police, further proceedings consistent with this opinion. firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protectivig or preserving life, or preventing serious injury.' " State v. Edmonds, 211 N.J. 117, 130 (2012) (quoting State v. rrankel, 179 N.J. 58fi; Justices LaVECCHIA, ALBIN, HOENS, and 598, 847 A.2d 561, cert. denied, 543 U.S. 876, 125 S.Ct: PATTERSON and Judges RODRIGUEZ and CUFF (both 108, 160 L. Ed.2d 128 (2004)). temporarily assigned) join in Chief Justice RABNER's opinion. 181 The emergency aid exception to the warrant requirement now involves a two-part test. Id. at 131-32. Opposed--None. To justify a warrantless searcli under the doctrine, the State must prove that (1) "the officer had 'an objectively For reversal and remandrnent-Chief Justice RABNER reasonable basis to believe that an emergency require[d] and Justices LaVECCHIA, ALBIN, HOENS, that he provide immediate assistance to protect or PATTERSON, RODRIGUF,Z, (t/a), CUFF (tla)-7. preserve life, or to prevent seriousinjury,' " and (2) "there was a`reasonable nexus between the emergency and the area or places to be searched..' " Id, at 132 (qttoting Footnotes Strohkireh testified as follows: "We Ieatned that the cell tower site that was ... being used ... was in the ... Eatontown area. They would give us a genej'al location of Highway 35 in Eatontowtt." (Emphasis added). In the trial court's fhctual qndings. it noted that "the Middletown Police Department was contacted by T-Mobile and informed that the cell phone was being used within a one-rnile radius of the cetl tower located at the intersectionof'Highway 35 and 36 in Eatontown" (Emphasis added). A-45 State v. Earls, --- A.3d w.... ^209 We cannot find suffiicient credible support in the record for the factual finding that the cell-site infor-mation was accurate within a one-mile radius. SeeState v. Rockford, 213 N..T 424, 440 (2013); State uv. Minitee, 210 N.-J. 307, 317 (2012). No one suggests the area exceeded a one-tnile radius, but we cannot determine how narrow the area of coverage was-for example, whether it was less than a mile radius-from the evidence in the record before us. For purposes of this decision, we assume that the area was one rnile at inost, A rrumber of federal courts have considered whether a warrant is required to obtain cell-site information under the federal pen register statute, see 18 II.S.C.A. § 3122, and the Stored Communications Act, see 18 U.S.C.A. § 2703. Some have required a warrant. See, e.g., In re US, for Order Relating to Target Phone 2, 733 F.Supp.2d 939, 941 (N.D.111.2009) (citing cases); In re US. for Orders Azrthorizing Installation & Use qf Pen Registers & Cztller ldentification Devices on Tel: Nos. ISea[ed] & jSealedJ, 416 F.Supp.2d 390, 396-97 (I)A4d.2006); see also In re U.S. for Order Authorizing (1) Installation & Use of Pen Register & Trap & Trace Device or Process, (2) Access to Customer Records, & (3) Cell Phone Trac>Lzng, 441 F.Supp:2d 816, 837 (S.D.Tex.2006) (requiring rnore than court or(ler). Others have not required a warrant. See, e,g., United Slates v. Gt-aham; 846 F.SuPp:2d 384; 403-04 (D.Md.2012), appeal docketed, No. 12-4659 (4th Cir. Aug. 22, 2012); In re U.S. for Order Aarthorizing Use of Two Pen Register & Trap & Trace Devices, 632 F.Supp.2d 202, 206-07 (E.D.N.Y.2008); In re U.S. for Order: (I) Authorizing ltistallation & Use of Pen Register & Trap & Trace Device, &(2) Authorizing Release of Subscriber & Other hifo., 433 F.Supp.2d 804, 806 (S.D.Tex.2006); hi re U.S. for Order: (1) Authorizing Installation ig Usc nf Pen Register & Trap & Trace Device; & (2) Authorizing Release o/ Subscriber Iii{o. &/or Cell Site Info., 411 F.Supp.2d 678, 682 (W.D.La.2006). Arnong other factors, the cases considered the scope of the information requested. ...... ,.; _. ,.