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Commonwealth v. Fredericq

Appeals Court of Massachusetts, Plymouth

March 12, 2018


          Heard: December 1, 2017.

         Indictments found and returned in the Superior Court Department on August 22, 2008. A pretrial motion to suppress evidence was heard by Thomas J. McGuire, Jr., J.

         An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth.

          Jason Benzaken for the defendant.

          Present: Agnes, Blake, & McDonough, JJ.

          BLAKE, J.

         As a result of information gathered in connection with a homicide, an interstate narcotics investigation began, which led police to discover cocaine and cash at 220-222 Howard Street in the city of Brockton.[2] This is an interlocutory appeal by the Commonwealth from the order allowing the defendant's motion to suppress evidence obtained as a result of a warrantless search. We reverse in part and affirm in part.

         We set forth detailed facts and the procedural history of this case as they are necessary to the analysis. The defendant was indicted for trafficking in two hundred grams or more of cocaine. He has twice filed motions to suppress. In his first motion, the defendant argued that the search at 220 Howard Street was conducted without a warrant and without his consent. After a two-day evidentiary hearing, the first motion judge denied the motion on grounds that the defendant consented to the search. In the defendant's second, or so-called "amended" motion to suppress, he argued that the evidence seized from 220 Howard Street must be suppressed as the tainted fruit of the unlawfully obtained cellular site location information (CSLI).[3]The same judge denied the motion after a nonevidentiary hearing and the defendant sought interlocutory review.

         A single justice of the Supreme Judicial Court, while retaining jurisdiction of the case, ordered an evidentiary hearing on the motion. After the evidentiary hearing, a second motion judge denied the motion, concluding that the defendant lacked standing as he had no reasonable expectation of privacy in the cellular telephone. Following receipt of the trial court decision and the issuance of several appellate decisions involving the police use of CSLI, the single justice again remanded the case to for further consideration in light of Commonwealth v. Augustine, 467 Mass. 230 (2014), and Commonwealth v. Moody, 466 Mass. 196 (2013), as well as Riley v. California, 134 S.Ct. 2473 (2014).

         Thereafter, a third motion judge held a hearing at which no additional evidence was presented, but the transcripts from the previous hearings were submitted together with additional briefs from the parties. The third motion judge concluded that the defendant had standing. He also reasoned that because the police seized the cocaine "by exploiting the unlawful electronic tracking through CSLI, " and because "[t]he search and seizure was not attenuated from the" illegal conduct, the motion must be allowed. The Commonwealth's application for leave to appeal from that order was granted and the case was entered in this court.


         The findings of fact made by each of the three motion judges are consistent and are not in dispute on appeal. We summarize the findings relevant to the issues raised in this appeal, supplemented where necessary with undisputed evidence that was implicitly credited by the particular judge ruling on the motion. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015) .

         On June 8, 2008, there was a shooting that resulted in the death of Bensney Toussaint. A few days later, on June 10, 2008, police officers obtained an arrest warrant for Josener Dorisca. Dorisca, for all relevant time periods relating to this matter, was a fugitive from justice. On June 26, 2008, an indictment was returned against Dorisca, charging him with murder.

         During the homicide investigation, Detective Kenneth Williams of the Brockton police department identified Cassio Vertil[4] as Dorisca's best friend. Detective Williams spoke to Cassio; he was not cooperative, but he gave the detective his cellular telephone number. Detective Williams obtained the cellular telephone records for the number provided by Cassio, which showed that "Bill Desops" was the subscriber. The records also showed that telephone calls were made within moments of the shooting to a cellular telephone number that police identified as belonging to Dorisca. Thereafter, Detective Williams spoke to Cassio again, but was unsuccessful in eliciting information about the nature of those telephone calls or Dorisca's location. During the interview, Detective Williams recognized Cassio from a videotape that he had seen.[5]

         As the second judge found, that videotape, recorded several months before the homicide, captured Cassio, "a person named Rinaldi Lauradin, and others flashing large sums of money and discussing the movement of drugs from Florida to Massachusetts." A gun could also be seen in the footage. Detective Williams testified that "the tape clearly displays [Cassio] and other members engaged in what seems to be very lucrative drug dealings. . . . And bragging and boasting of going to Florida to obtain more drugs. And they're flashing tens of thousands of dollars on this tape."

         About one month after the homicide, Detective Williams spoke to Cassio's brother, Kennell. Kennell reported that Cassio was now using a different cellular telephone number, and that Cassio was on his way to New York with "Paco" and "Paquito." Further investigation revealed that Paco was the defendant and Paquito was Stevenson Allonce. After speaking with Kennell, the Commonwealth sought and obtained an order pursuant to 18 U.S.C. § 2703(d) (2006) requiring the cellular telephone carrier to provide the records and the so-called "running location" of that different telephone, going forward, to assist in finding Dorisca and to investigate Cassio.[6] The carrier was required to provide Detective Williams with the cellular telephone's location every fifteen minutes prospectively. The carrier "pinged" the telephone at fifteen-minute intervals, an action that is not routinely undertaken by cellular telephone carriers.[7] The defense expert explained that the "ping" sends a communication signal to the cellular telephone and requires the cellular telephone to communicate with the nearby cell tower. See generally Commonwealth v. Augustine, 467 Mass. at 237-238. The carrier can identify the location of the cell tower by coordinates of longitude and latitude. The carrier then sends, in this case to Detective Williams, this information and the maximum distance the cellular telephone can be from that cell tower, based on the strength and location of nearby cell towers.

         The CSLI records showed that the defendant, not Desops, was the subscriber of the cellular telephone that Cassio was then using. The billing address on those records was 220-222 Howard Street, apartment 2. The records also ...

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