Heard: December 1, 2017.
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.
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
Benzaken for the defendant.
Present: Agnes, Blake, & McDonough, JJ.
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. 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.
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).The same judge
denied the motion after a nonevidentiary hearing and the
defendant sought interlocutory review.
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).
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.
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) .
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
the homicide investigation, Detective Kenneth Williams of the
Brockton police department identified Cassio
Vertil 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.
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
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. 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. 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.
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 ...