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Commonwealth v. Jones

Superior Court of Massachusetts, Middlesex

July 25, 2017

Dennis Lee Jones

          Filed July 26, 2017


          Peter B. Krupp, Justice

         Defendant Dennis Lee Jones is charged with trafficking a person for sexual servitude in violation of G.L.c. 265, § 50(a), and deriving support from the earnings of a prostitute in violation of G.L.c. 272, § 7. On June 26, 2017, I held a hearing and took under advisement the Commonwealth's Motion for an Order Requiring Production of a PIN (Personal Identification Number) Access Code (Docket #14) to unlock a cellular telephone under Commonwealth v. Gelfgatt (" Gelfgatt "), 468 Mass. 512, 11 N.E.3d 605 (2014). The next day, the Commonwealth filed a Motion to Reopen Evidence in Motion Hearing to Compel Defendant to Produce PIN Code for Cellular Telephone Seized Pursuant to Search Warrant or/in the Alternative Request for Reconsideration Upon Denial of Commonwealth's Motion to Compel (Docket #17)[1] seeking to file an affidavit by Woburn Police Sgt. Det. Brian McManus.[2] After further hearing on July 19, 2017, the motion to reopen is ALLOWED and the motion to compel is DENIED .

         I. The Motion to Reopen

          The trial court has considerable discretion to determine whether to permit additional evidence after a hearing and even after a motion has been decided. See, e.g., Mass.R.Crim.P. 13(a)(5) (where " substantial justice requires, the judge . . . may permit a pretrial motion which has been heard and denied to be renewed"); Commonwealth v. Pagan, 73 Mass.App.Ct. 369, 374-75, 897 N.E.2d 1250 (2008). It is in the interest of substantial justice that the issue presented in the Gelfgatt motion be decided on the most complete and accurate record available. The motion raises an important question about whether the Commonwealth will be able to access potentially relevant information from a cellular telephone believed to belong to defendant. Even if I were to decide the question on the factual record as it existed on June 26, 2017, nothing would prevent the Commonwealth from seeking to renew its motion in the interest of " substantial justice."

         Defendant has not demonstrated that he will be prejudiced if I were to consider the additional information. None of the material additional information was new to the defendant. Defendant has had an opportunity to address the Commonwealth's additional factual submission both by a responsive factual submission and orally. With Defendant's Opposition to Commonwealth's Motion to Re-Open Evidence and/or Motion for Reconsideration (July 18, 2017), defendant filed a series of documents which go beyond the materials previously submitted. At the hearing on July 19, 2017, the Commonwealth presented an affidavit by Det. Mark Shaughnessy, which responded to one of the arguments advanced by defendant and which defendant had the opportunity to address at argument.

         I find that defendant has not shown prejudice from the Commonwealth's late factual submissions and that substantial justice compels me to consider the Gelfgatt motion on the fullest possible record. I therefore allow the Commonwealth's motion to reopen and will consider the new affidavit from Sgt. Det. McManus, the additional factual materials attached to defendant's opposition to the motion to reopen, and the affidavit of Det. Shaughnessy filed on July 19, 2017.

         II. The Motion to Compel under Gelfgatt

         A. Factual Background

         This case resulted from a short police investigation. On December 20, 2016, the Woburn Police received a call for a stolen purse at the Red Roof Inn in Woburn. When they responded, Vanessa Fortin (" Fortin") reported that defendant had stolen her purse, had left in a black Nissan, and had been using the Nissan to transport her to different locations to engage in prostitution. She said she had known defendant since December 1, 2016 and communicated with him by phone and text message using telephone number 978-478-7119 (" the 7119 Number"), which she said was defendant's number. According to Fortin, she was first in a dating relationship with defendant, but she soon lost her housing and defendant offered to provide housing if she worked as a prostitute. Fortin told the police about ads displaying her and another woman, Shanaisha McNeill (" McNeill"), as escorts. These ads were " associated with" the 7119 Number and with 978-223-0880, which Fortin said was her phone (" Fortin's Phone").

         Fortin said that the 7119 Number was used to conduct prostitution using the ads. According to Fortin, defendant would respond to customer text messages to the 7119 Number, but McNeill would answer as the female voice when voice calls would be received at the 7119 Number. The Commonwealth's affidavits do not indicate that Fortin told the police what type of phone was associated with the 7119 Number, described any physical characteristics of the phone, or said she had witnessed defendant physically accessing the LG Phone or putting a PIN or other access code into the phone.[3]

         The police examined Fortin's Phone. They observed several communications from the 7119 Number relating to prostitution, including " screenshots" of customer communications in response to ads, messages trying to get Fortin to return to defendant, and messages in which defendant was apologizing for his behavior. Fortin's Phone listed the 7119 Number as associated with a contact labeled " Dennis." Sgt. Det. McManus located a number of different ads that either used Fortin's Phone or the 7119 Number as the point of contact for Fortin's services.

         Later on December 20, 2016, defendant contacted the Woburn police to arrange to return Fortin's purse. He called from telephone number 857-212-8631 (" the 8631 Number").

         On December 21, 2016, defendant was arrested in the parking lot of the Red Roof Inn in Woburn. Two cellular telephones were recovered from Mr. Jones: a Kyocera phone with the 8631 Number, and an LG phone (the " LG Phone"). The LG Phone was found in the right pocket of Mr. Jones' pants.[4] After the seizure, Sgt. Det. McManus was able to verify that the 7119 Number belonged to the LG Phone by dialing the 7119 Number and observing the LG Phone receive his incoming call. According to records from Verizon Wireless, there is no subscriber name associated with the 7119 ...

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