SCOVT affirms murder conviction, holding warrantless ping search for cell phone location did not under exigent circumstances violate Article 11 of the Vermont Constitution.

State v. Murphy, 2023 VT 8 


CARROLL, J. Defendant appeals from his conviction for second-degree murder following a jury trial. He argues that the trial court erred by: (1) denying his motion for judgment of acquittal; (2) denying his motion to suppress evidence obtained as a result of a warrantless “ping” of his cell phone; (3) failing to sua sponte give a limiting instruction on evidence of flight; and (4) denying his motion for new trial. We conclude that defendant was not entitled to a judgment of acquittal. We further hold that, while defendant had a legitimate privacy interest in his realtime cell site location information under Article 11 of the Vermont Constitution, the warrantless ping was justified by exigent circumstances, and defendant’s motion to suppress was therefore properly denied. We reject defendant’s remaining arguments as well. We therefore affirm.


Neither the U.S. Supreme Court nor this Court has yet addressed whether individuals have a legitimate privacy interest in their real-time cell site location information (CSLI). We decide this case under Chapter I, Article 11 of the Vermont Constitution, which provides that “the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.”


Cellphone providers do not routinely collect the information that the police sought here. Real time CSLI is not a passive location record but data generated by an affirmative action—a ‘ping’— taken by the cell-service provider at the behest of a law enforcement officer. We agree that individuals do not reasonably expect that by using their phone, they will be sharing their real-time location information with police. They do not expect their cellphone to act as “a hidden tracking device that can be activated by law enforcement at any moment." We hold that individuals have a reasonable expectation of privacy in their real-time CSLI and that the acquisition of this information by police is a search that requires a warrant unless an exception to the warrant requirement applies.


Exigent circumstances may justify an exception to the warrant requirement if the facts, as they appeared at the time, would lead a reasonable, experienced officer to believe that there was an urgent need to take action. Police requested the ping on the day after the murder after, among other things, searching unsuccessfully for defendant at his known locations and interviewing an eyewitness who identified defendant as having probably shot the victim. Given the violent offense and an ongoing danger posed to the police and the public by a fleeing, armed, suspect accused of murdering a stranger on the street we conclude that the totality of the circumstances in this case shows that exigent circumstances justified the warrantless ping. We therefore affirm the trial court’s denial of defendant’s motion to suppress.

How cited