Heard: May 9, 2017.
found and returned in the Superior Court Department on
February 20, 2015. A pretrial motion to suppress evidence was
heard by Kenneth W. Salinger, J.
application for leave to prosecute an interlocutory appeal
was allowed by Robert J. Cordy, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported
by him to the Appeals Court.
M. Campbell, Assistant District Attorney, for the
Lefteris K. Travayiakis for the defendant.
Present: Agnes, Massing, & Lemire, JJ.
Lee was shot to death on Boylston Street, near Copley Square
in Boston, on the night of August 22, 2013. The investigation
of the murder focused on the defendant, Michael Aaron Jordan.
On December 30, 2013, the police obtained a search warrant
directing the defendant's cellular telephone service
provider, Metro PCS (provider), to produce "records
regarding cell site tower locations, call details,
incoming/outgoing text messages, subscriber information, cell
sites and GPS records" associated with the
defendant's telephone number for the six-week period
surrounding the date of the homicide.
one year later, a grand jury issued an indictment charging
the defendant with murder, G. L. c. 2 65, § 1, and
carrying a firearm without a license, G. L. c. 269, § 10
(a.) . Acting on the defendant's motion to suppress, a
Superior Court judge entered an order suppressing all cell
site location information (CSLI),  text messages, and contact
information obtained from the provider. The judge reasoned
that the affidavit in support of the search warrant failed to
establish probable cause that the defendant committed the
murder or that any information from the defendant's
cellular telephone would provide evidence of the murder. The
judge denied the motion insofar as it sought the suppression
of "subscriber information" and "call details,
" noting that such information does not implicate
constitutionally protected privacy interests. The
Commonwealth obtained leave to pursue an interlocutory appeal
from the suppression order. See Mass.R.Crim.P. 15(a)(2), as
appearing in 422 Mass. 1501 (1996). We affirm in part and
reverse in part.
review of whether an affidavit in support of a search warrant
established probable cause is restricted to the "four
corners" of the affidavit. Commonwealth v.
O'Day, 440 Mass. 296, 297 (2003); Commonwealth
v. Perez, 90 Mass.App.Ct. 548, 551 (2016). Accordingly,
we recite the facts set forth in the affidavit of Boston
police Detective Melvin Ruiz.
police officers were called to 553 Boylston Street at 11:09
P.M. on August 22, 2013. The victim was lying on his back,
unresponsive and bleeding from the chest. He was pronounced
dead minutes later at the Boston Medical Center. A medical
examiner determined that the victim died of a gunshot wound.
number of witnesses were interviewed at Boston police
headquarters. Two employees of a nearby restaurant heard
three gunshots as they were leaving work. One employee, who
was walking toward Boylston Street, saw a man "walking
really fast" toward a car parked at the intersection of
Clarendon and Boylston Streets. She described him as
"short, [five feet, seven inches or five feet, eight
inches tall], stocky build, shaved head, light skin black
male, baggy baby blue shirt with designs and oversized jean
shorts." This witness saw the man get into an
"older car, gray in color, leather top, boxy style"
and then drive down Clarendon Street "really fast"
toward "Saint James Street." Her coworker, the
second witness, was crossing the street toward Trinity Church
when he saw a person holding a grey or silver gun walking
toward him. The witness turned the other direction and was
unable to describe the person; however, he then saw an older
model car (1989-1992), possibly a Cadillac Eldorado, with a
"leather or ragtop roof, cream/beige in color, "
driving "really fast" on Clarendon Street.
witness, who had parked his car in front of a fast food
restaurant on Boylston Street, heard an argument, then three
or four gunshots. He saw the victim run across the street and
fall to the ground and another man walk away in the direction
of the church. This witness described the man as "a
white Hispanic male, [mid-thirties], . . . [five feet, one
inch or five feet, two inches tall], 200 [pounds], heavy
build, wearing a blue baggy shirt and jean shorts down to the
other witnesses, a father and his son, were hanging banners
on Boylston Street at the time of the incident. The son
observed three men talking on the benches in the park across
the street. He heard a shout and then three or four gunshots;
he also saw a man holding something in his right hand and saw
flashes coming from the object. The son described the man as
a "short fat guy, black Hispanic male, skin complexion
of the baseball player A-Rod (Alex Rodriguez) from the New
York Yankees, between [five feet, six inches to five feet,
seven inches tall], heavy build, 250 [pounds], in his
[mid-twenties or mid-thirties], wiffle short haircut, wearing
a light blue tee shirt, and baggy dark blue
shorts." The father heard "pops" and saw
the victim being chased across the street. He also saw a man
on the sidewalk, whose right arm was raised, run toward
Clarendon Street. The father described the suspect as a
"black male, short, [four feet, nine inches tall],
stocky build, medium build, wearing ... a bright blue,
baseball short sleeve shirt. "
sixth witness was a man who knew the victim as "Dough
Boy." On the night of the shooting, this witness saw the
victim at the benches near Clarendon and Boylston Streets,
then heard three gunshots. The witness said that the victim
ran toward him, then crossed Boylston Street and fell to the
ground. This witness saw a man shooting in his direction,
whom he described as "short, light skin, Spanish . . .
between [five feet, seven inches, and five feet, eight inches
on a tip,  the investigation focused on the
defendant, who was twenty-six years old, five feet, four
inches tall, and weighed 200 pounds. The defendant was the
registered owner of a brown, 1991 Chrysler New Yorker.
Surveillance video recordings, made near the defendant's
residence on Blue Hill Avenue in the Roxbury section of
Boston four hours before the murder, showed a man
"wearing a long blue shirt with light colors on the back
of the shoulder and dark pants, who matched the physical
description of the suspect" coming from the direction of
the defendant's address and getting into a
"tan/beige boxy type motor vehicle" parked across
the street. The car appeared to be a Chrysler New Yorker with
a vinyl or leather half-top. Other surveillance recordings
show the same car parked across the street from the
defendant's address on a regular basis during the ten-day
period before the murder. After the murder, the car was no
longer seen in the area; its registration was revoked about
one and one-half months after the ...