Filed Date December 30, 2015
MEMORANDUM AND ORDER ON DEFENDANTS MOTION TO SUPPRESS CERTAIN INFORMATION REGARDING A CELL PHONE
Kenneth W. Salinger, Justice
The Boston Police obtained information from Michael Jordan's cell phone service provider regarding the use of his phone over a six-week period. The police sought this information pursuant to a search warrant, as part of an ongoing murder investigation. Jordan moves to suppress all of this information.
The Court must allow the motion to the extent it seeks to suppress cell site location information (" CSLI"), incoming or outgoing text messages, and contact information. The Court concludes that Jordan has a reasonable expectation of privacy not only in historic " telephone call" CSLI, but also in his so-called registration CSLI, text messages, and contact list. Jordan has a constitutionally protected interest in that information even though it was stored in the Cloud by the service provider, rather than saved only on Jordan's phone. The Court also concludes that the search warrant affidavit did not establish probable cause to believe that any of this information would provide evidence of who committed this murder, or aid in apprehending someone whom the police had probable cause to believe had committed this murder. The statements by a confidential informant that someone told the C.I. that " Michael" had killed the victim over drug dealing could not be considered because the affidavit did not establish any basis for the C.I.'s knowledge, demonstrate that the C.I. was reliable, or show that the police had corroborated any of this information. Without the C.I.'s statements, there was nothing to link Jordan to the eyewitness descriptions of the killer and his vehicle.
In contrast, Jordan had no reasonable expectation of privacy in information identifying the person who subscribed to service for this cell phone number or in telephone call details such as date, time, and numbers involved. The Court will therefore deny the motion to the extent that it seeks to suppress this additional information.
1. Background--Search Warrant and Affidavit
On December 30, 2013, a Boston Police detective applied for and obtained a search warrant authorizing the police to obtain location and other information for a particular cell phone number over a six-week period. The warrant authorized the collection of the following information: " cell site tower locations, call details, incoming/outgoing text messages, subscriber information, cell sites and GPS records regarding [Jordan's] cellular phone number . . . from August 1, 2013 through September 12, 2013." A police officer or detective filed a return on January 15, 2014, stating that the police had obtained all of this information from MetroPCS in electronic form.
The affidavit submitted in support of this search warrant application was signed under the pains and penalties of perjury by Boston Police Detective Melvin Ruiz, who was assigned to the Boston Police Homicide Unit. Det. Ruiz provided the following information in his affidavit.
1.1. Eye Witness Reports of Shooting
The Boston Police were investigating the murder of Mr. Ahmir Lee, who was shot in the chest and killed just after 11:00 p.m. on August 22, 2013. This shooting took place on Boylston Street, between Clarendon and Dartmouth Streets and next to Copley Square in the Back Bay neighborhood of Boston.
Five witnesses provided the police with somewhat contradictory information about the appearance of the apparent assailant. Four of the five described this man as stocky or heavy, and they all agreed that he appeared to be black or Hispanic. But their actual descriptions varied widely.
The first witness heard three loud gunshots and then saw a man walk really fast from Boylston Street to a car parked on Clarendon Street, and then drive off quickly. She described the suspect as a light skinned black man, who was stocky and around five feet, seven inches to five feet, eight inches in height, had a shaved head, and was wearing a baggy baby blue shirt with designs and oversized jean shorts.
The second witness heard three or four gunshots and then saw a man place something in his waistband and walk away toward Trinity Church. He described the suspect as a white Hispanic man in his mid-thirties, who was heavy and around five feet, one-inch to five feet, two inches tall, and was wearing a blue baggy shirt and jean shorts down to his knees.
The third witness heard several pops and then saw a man run from the scene. He described the suspect as a black man, who was stocky and only about four feet, nine inches tall, and was wearing a bright blue, baseball style, short-sleeved shirt.
The fourth witness heard a shout, looked up, saw and heard a man fire three or four gunshots and then saw him run toward Clarendon Street. He described the suspect as a black Hispanic man, with the " skin complexion of the baseball player A-Rod from the New York Yankees, " who was fat and around five feet, six inches to five feet, seven inches tall, had a " wiffle [sic] short hair cut, " and was wearing a light blue tee shirt and baggy dark blue shorts."
The fifth witness saw and heard three gunshots and then saw the shooter jog toward Clarendon Street. He described the suspect as a light skinned Spanish person, of unspecified gender, who was around five feet, seven inches to five feet, eight inches tall.
So, based on these descriptions the police were looking for a man who is somewhere between four feet, nine inches and five feet, eight inches tall, either Hispanic or African-American, with relatively light skin color, who either shaves his head or wears his hair cut very short, and at the time of the murder ...