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Commonwealth v. Chamberlin

Supreme Judicial Court of Massachusetts, Bristol

February 19, 2016

Peter Chamberlin

         Argued October 6, 2015.

          Indictments found and returned in the Superior Court Department on November 21, 2007.

         Pretrial motions to suppress evidence were heard by D. Lloyd Macdonald, J., and the cases were tried before Robert J. Kane, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Merritt Schnipper for the defendant.

          Tara L. Blackman, Assistant District Attorney, for the Commonwealth.

          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.

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          Marguerite T. Grant, Assistant District Attorney, for District Attorney for the Norfolk District, amicus curiae, submitted a brief.

         Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


          [45 N.E.3d 901] Lenk, J.

          In the 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.

         The 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 therefrom.

         We conclude that G. L. c. 271, § 17B, as then in effect, did not itself preclude the government from obtaining the records at issue

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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.[1]

          Background and prior proceedings.

          On 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.[2] He pretended to be dead until the intruders left, then called for emergency assistance and was taken to a hospital.

         The 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.

         Alberto 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.

         What 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

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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.[3] 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.[4] 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 day.[5]

         As noted, the defendant's pretrial motions to suppress the records produced were ...

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