October 6, 2015.
Indictments found and returned in the Superior Court
Department on November 21, 2007.
motions to suppress evidence were heard by D. Lloyd
Macdonald, J., and the cases were tried before
Robert J. Kane, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Merritt Schnipper for the defendant.
L. Blackman, Assistant District Attorney, for the
Chauncey B. Wood, Matthew R. Segal, Jessie J. Rossman, Kevin
S. Prussia, & Caitlin W. Monahan for Massachusetts
Association of Criminal Defense Lawyers & another, amici
curiae, submitted a brief.
Marguerite T. Grant, Assistant District Attorney, for
District Attorney for the Norfolk District, amicus curiae,
submitted a brief.
(Sitting at New Bedford): Gants, C.J., Spina, Cordy,
Botsford, Duffly, Lenk, & Hines, JJ.
N.E.3d 901] Lenk, J.
aftermath of an attempted robbery in 2007, where the victim
was bound, threatened, and shot, the police conducted an
investigation seeking three attackers who had fled the scene.
As part of that investigation, a detective obtained from a
cellular telephone service provider certain subscriber
records for the defendant's telephone number. The
information thus obtained formed part of a later affidavit
offered in support of a search warrant that, in turn,
ultimately yielded several items of an incriminatory nature
subsequently admitted at trial. Before trial, the defendant
without success moved to suppress the telephone records and
the physical evidence obtained pursuant to the warrant. He
was convicted of armed robbery while masked, G. L. c. 265,
§ 17; kidnapping for purposes of extortion, G. L. c.
265, § 26; and armed assault with intent to murder, G.
L. c. 265, § 18. Following affirmance of his convictions
by the Appeals Court, see Commonwealth v.
Chamberlin, 86 Mass.App.Ct. 705, 713, 20 N.E.3d 954
(2014), we allowed the defendant's application for
further appellate review, limited to issues related to his
cellular telephone records.
basis for the defendant's challenge is the
government's failure to comply with G. L. c. 271, §
17B, the telephone records demand statute, as then in effect.
That statute in essence authorized the Attorney General or a
district attorney on certain conditions to demand of common
carriers (like the cellular telephone service provider here),
by means of an administrative subpoena, all pertinent records
in the provider's possession. There is little question
that the means used here to obtain the records -- a request
made by a detective directly to the provider for voluntary
production forthwith of the records -- was not in compliance
with the formal process contemplated in G. L. c. 271, §
17B. The defendant maintains that G. L. c. 271, § 17B,
establishes a baseline formal process necessary to the
government's gaining access to such records. The
government, on this view, having failed to comply with G. L.
c. 271, § 17B, is foreclosed from circumventing its
requirements and obtaining such records by informal means;
the records obtained should accordingly be suppressed, [45
N.E.3d 902] along with any related evidence derived
conclude that G. L. c. 271, § 17B, as then in effect,
did not itself preclude the government from obtaining the
records at issue
here. Although the means employed to obtain the records also
had to comply with the requirements of the Federal Stored
Communications Act, 18 U.S.C. § § 2701 et seq.
(2006), we discern no error in the motion judge's
determination that those requirements were met in this case.
Accordingly, the motions to suppress were correctly denied
and we affirm the convictions.
Background and prior proceedings.
September 24, 2007, three masked men held Antonio Alberto,
the owner of a real estate agency, at gunpoint in his office;
they bound his hands and ordered him to open a safe in the
building. When Alberto did not open the safe, the men
threatened him, stating that they knew where he lived and
" had [his] wife." After a struggle, Alberto was
shot through the ear. He pretended to be dead until the
intruders left, then called for emergency assistance and was
taken to a hospital.
following day, Alberto described the robbery to Lawrence
Ferreira, a detective of the Fall River police department.
Alberto said that he had recognized the voice of one of the
intruders as belonging to " Marco," a man who had
called him several times in the weeks before the robbery to
express interest in properties listed by his real estate
agency, and who had scheduled a meeting with him for the time
of the robbery. Alberto also informed Ferreira that the
intruders had threatened his family, but did not appear
actually to know where he lived, despite claims to the
contrary. Nevertheless, following the robbery, Alberto had
been receiving hang-up calls at work and at home that "
scared the hell out of" him.
reviewed the call log from his cellular telephone with
Ferreira, and they were able to identify a telephone number
for " Marco." Ferreira then searched for the number
on a " police related search engine" that provided
him with the subscriber information associated with that
number. The subscriber information included the
defendant's name and address.
followed was the conduct contested in this appeal: on
September 26, 2007, Ferreira sought the defendant's
telephone records directly from an employee in the cellular
service provider's law enforcement relations department.
Rather than causing
the provider to be served with an administrative subpoena or
some other form of legal process, Ferreira gave the employee
over the telephone " a brief synopsis" of his
investigation, and promised that he would provide a subpoena
within forty-eight hours. On the night of September 26, 2007,
Ferreira sent the employee a letter that included the
suspect's telephone number and a summary of the
investigation. A few hours later, the employee [45
N.E.3d 903] provided Ferreira with the defendant's
subscriber information and a call log for the defendant's
cellular telephone number for the prior two
weeks. The following day, September 27, 2007,
Ferreira asked the assistant district attorney assigned to
the case to send the provider a subpoena for the records. A
grand jury subpoena apparently was sent the same
noted, the defendant's pretrial motions to suppress the
records produced were ...