Press Release  McCarthy Press Release

Cape and Islands District — RE: Commonwealth v. Jason McCarthy, SJC Affirms Denial of Motion to Suppress

Cape & Islands District Attorney Michael O’Keefe announced today that the Massachusetts Supreme Judicial Court affirmed the denial of a motion to suppress data of Jason McCarthy (DOB 9/13/79) obtained from automatic license plate readers (ALPR) installed on the Bourne and Sagamore bridges.   

In August 2017, the defendant was indicted by a Barnstable County grand jury for one count of  Distribution of a Class B Substance, Subsequent Offense, in violation of G.L. c. 94C,  §32A(b).

From December 2016 to February 2017, Barnstable Police conducted an investigation of Jason McCarthy for drug distribution.  During this investigation, the Barnstable Police surveilled the defendant and also used ALPR’s  installed on the Bourne and Sagamore bridges to take images of his license plate. The police accessed historical data, which revealed the number of times he had crossed the bridges over a three-month period. The police received real-time alerts.  One of the alerts was used to execute the stop of his vehicle and his arrest.

The defendant filed a motion to suppress in the Barnstable Superior Court, alleging that his expectation of privacy was violated by both the historical and real-time alerts from the ALPR readers.  After an evidentiary hearing, the Honorable Robert C. Rufo denied the defendant’s motion to suppress.  The defendant filed an application for interlocutory review, and a single justice of the Supreme Judicial Court ordered the case to proceed in the Supreme Judicial Court.

On appeal, the defendant argued that the historical and real-time alerts of his license plate on the bridges violated his expectation of privacy.  The Commonwealth argued that the limited use of the cameras on the two Cape Cod bridges did not violate the defendant’s expectation of privacy.  In a sidenote this case was argued in October of 2019 when the SJC sat here in Barnstable. 

In a forty page decision, the Supreme Judicial Court rejected McCarthy’s argument that his expectation of privacy was violated by the use of the ALPR readers. Several other arguments advanced by the defense were found without merit. The Court found “while the defendant has a constitutionally protected expectation of privacy in the whole of his public movements, an interest which potentially could be implicated by the widespread use of ALPRs, that interest is not invaded by the limited extent and use of ALPR data in this case.”

District Attorney O’Keefe said, “there will come a time in our country when, as in some European countries now, the government will have the ability to track the movements of its citizens in real time.  When that point arrives we as a society will have to make some decisions with respect to how much privacy we are willing to sacrifice for security.  This case authorizes a limited and appropriate use of license plate reader data by police.”

The case was investigated by the Barnstable Police Department using the technology of the Massachusetts State Police. The motion to suppress was argued by Assistant District Attorney Jennifer Bright. The appeal was briefed and argued by Assistant District Attorney Elizabeth Sweeney.

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