MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION
Robert J. Kane, Justice of the Superior Court.
Before the court is the defendant's motion to reconsider the denial of his motion to suppress historical cell site location information (" CSLI") obtained by the Commonwealth pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d) (the " SCA"). The defendant argues that the recent Supreme Judicial Court case, Commonwealth v. Augustine, 467 Mass. 230, 4 N.E.3d 846 (2014), requires the Commonwealth to obtain a warrant based on a finding of probable cause in order to acquire the defendant's CSLI records. For the reasons hereinafter stated, the defendant's motion to reconsider is allowed, and after reconsideration, the denial of the motion to suppress stands.
The following information was provided in the Commonwealth's affidavit in support of the § 2703(d) order. The affidavit described the attempted robbery and fatal shooting, Corey Princiotta's and Mark Goulart's involvement in planning and carrying out the attempted robbery and killing, and their actions and appearances before and after the commission of the crimes. The defendant was subsequently charged with armed assault with intent to rob and first-degree murder arising out of the aborted robbery and fatal shooting at the Petro-Mart, located at 171 Coggeshall Street, New Bedford, Massachusetts.
The Robbery and Shooting
On June 20, 2009, the shooter entered the Petro-Mart at approximately 8:33 p.m. He was described as 5' 10" to 6' 2" tall, very skinny and weighing approximately 160 pounds. He appeared to be Hispanic and was speaking in street slang. He was wearing a gray hooded sweatshirt with the hood tied tightly over his head. After he purchased a beverage from the clerk, another customer, John Martin, entered the store. The shooter drew a black firearm from his waistband, pointed it at the store employee and demanded money while declaring that a robbery was occurring. At that time, Martin confronted the shooter and unsuccessfully attempted to grab the firearm. In response, the shooter fired and hit Martin in the right temple, killing him.
Corey Princiotta and Mark Goulart
The New Bedford Police and the Massachusetts State Police investigated Martin's death. Investigators concluded that the defendant and Goulart planned to rob the Petro-Mart to repay a drug debt. After consulting photo arrays, several witnesses identified Corey Princiotta, the defendant, as a friend of Mark Goulart. Goulart's residence, twenty-three Bentley Street, is within a few city blocks of the Petro-Mart.
Conduct Before and After the Homicide
Witnesses described Goulart leaving his apartment with the defendant on the night of the robbery and shooting. The defendant wore a gray hooded sweatshirt with the hood tied tightly around his face. A witness also reported that Goulart owned a similar hooded sweatshirt, but Goulart had disposed of it around the time of the crimes. The two men were seen leaving the apartment building at the same time but they departed in different directions. After the robbery and shooting, the defendant and Goulart returned to Goulart's apartment, but the defendant was no longer wearing the gray hooded sweatshirt. Approximately ten minutes after the aborted robbery and shooting, both men appeared to be scared and started to argue about the location of the gray sweatshirt. The defendant stated that he took the sweatshirt off, folded the gun inside of it and hid the items under a car on Sawyer Street.
Eyewitnesses corroborated the Sawyer Street location as consistent with the shooter's path of travel after fleeing the Petro-Mart. They also told investigators that the defendant was concerned about leaving DNA evidence in the sweatshirt, and that Goulart planned to recover the sweatshirt.
Cell Phone Order
Upon arrest, the defendant gave police his cell phone number--(774) 444-4766. The defendant's probation officer confirmed that the number given to police was the defendant's number. Investigators reviewed the defendant's and Goulart's telephone records and discovered that the defendant had called Goulart's number at least three times before the shooting and at least five times after the shooting. ...