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Commonwealth v. Fredericq

Supreme Judicial Court of Massachusetts, Plymouth

April 24, 2019


          Heard: November 5, 2018.

         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 Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Jason Benzaken for the defendant.

          Patrick Levin, Committee for Public Counsel Services, for Committee for Public Counsel Services.

          Jessica L. Kenny, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         After the defendant was indicted by a grand jury for trafficking cocaine in violation of G. L. c. 94C, § 32E (b), he moved to suppress the cocaine and cash seized during a warrantless search of his residence on the third floor of a multiunit house, commencing the nearly decade-long procedural journey that brought this case to our doorstep. The Superior Court judge who last ruled on this motion held that the cocaine and cash must be suppressed, concluding that they were the fruits of the unlawful police tracking of a cellular telephone through which the police obtained cell site location information (CLSI) without a search warrant based on probable cause.[2]

         We conclude that the defendant has standing to challenge the Commonwealth's warrantless CSLI search because, by monitoring the telephone's CSLI, the police effectively monitored the movement of a vehicle in which he was a passenger. We further conclude that, under the circumstances here, the seizure of the cocaine and cash was the direct result of information obtained from the illegal CSLI search; that, under the fruit of the poisonous tree doctrine of the exclusionary rule, it is irrelevant whether the defendant had a reasonable expectation of privacy in the crawl space where the cocaine was found; and that the Commonwealth has failed to meet its burden of proving that the seizure was sufficiently attenuated from the illegal search such that it should not be deemed a forbidden fruit of the poisonous tree. Specifically, we conclude that the defendant's consent to a search of his residence did not purge the seizure from the taint of the illegal CSLI search, where the consent was obtained through the use of information obtained from that search. For these reasons and as discussed more fully infra, we affirm the order granting the defendant's motion to suppress.[3]


         The complex procedural history of this case is ably described in the Appeals Court opinion. Commonwealth v. Fredericq, 93 Mass.App.Ct. 19, 20-26 (2018). Suffice it to say that the defendant's motion to suppress was initially denied by one Superior Court judge, remanded by a single justice of the county court for an evidentiary hearing, denied again by another motion judge, remanded again by the single justice, and allowed by a third motion judge.

         We summarize the facts as found by the third motion judge, who relied on the facts found by the first two motion judges at the prior evidentiary hearings. We accept the judges' subsidiary findings of fact, which we do not find to be clearly erroneous. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004) ("In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error . . .") . Where necessary and appropriate, we supplement these findings with uncontradicted witness testimony that the motion judges implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

         On June 26, 2008, a grand jury indicted Josener Dorisca for the murder of Bensney Toussaint, and a warrant issued for Dorisca's arrest. In attempting to locate Dorisca, Detective Kenneth Williams of the Brockton police department spoke with Dorisca's best friend, Cassio Vertil.[4] Cassio admitted that he had spoken with Dorisca within a day of the homicide. After Cassio gave his cellular telephone number to the police, Williams examined records connected to the telephone, which confirmed that calls had indeed been made after the shooting to a cellular telephone belonging to Dorisca.

         Williams recognized Cassio from a videotape recorded months before the homicide that showed Cassio and another person discussing the movement of drugs from Florida to Massachusetts. Williams testified that "the tape clearly displays [Cassio] . . . 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."

         On July 2, 2008, Williams spoke with Cassio's brother, Kennel, who said that Cassio was now using a different cellular telephone and provided Williams with the new telephone number. Kennel also stated that Cassio was traveling to New York in a brown Toyota RAV-4 motor vehicle with individuals nicknamed "Paco" and "Paquito." Williams knew that Paco was the defendant in this case and that Paquito was Stephen Allonce. State troopers also learned from a confidential informant that Cassio was traveling to Florida in the brown Toyota to purchase narcotics. There was little information offered at the hearings regarding the reliability or veracity of this confidential informant. State police Trooper Eric Telford testified that he had not used this informant in the past, but Williams characterized the informant as "reliable," without explaining the basis of this characterization.

         That same day, July 2, the Commonwealth sought and obtained a court order, pursuant to 18 U.S.C. § 2703(d) (2006), to require the cellular service provider to produce records for the cellular telephone that Cassio was now using. Under § 2703(d), a court may order a telephone company to produce records, including CSLI records, "if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought . . . are relevant and material to an ongoing criminal investigation." In addition to subscriber information, the court order required, for the period from July 1 through July 6 (later extended to July 8), the production of records of cell sites utilized for telephone calls, toll records for calls made or received, and "updates on the phone's location every fifteen . . . minutes."

         On July 2, the cellular service provider furnished Williams with records showing that the defendant was the subscriber for this cellular telephone, and that the defendant resided in an apartment in Brockton (residence). The cellular service provider used "ping" technology to send radio signals to the cellular phone and record the approximate location of the cell sites or cell towers with which the telephone communicated, and sent the resulting CSLI records by e-mail to Williams. Those records indicated that the telephone had traveled south from Randolph and eventually had come to a stop in Sunrise, Florida.

         Williams then requested the assistance of the local police in Florida, who used the CSLI data to track down the brown Toyota vehicle and observed Cassio, the defendant, and Allonce staying together at a motel. The local police did not identify any of the men as Dorisca.

         On July 7, 2008, the CSLI records indicated that the cellular telephone was traveling north toward Massachusetts. In response, the police began surveillance at the defendant's residence and also at Cassio's home in Randolph. At approximately 2:15 £.M. on July 8, the police observed the brown Toyota vehicle parked at the defendant's residence and saw Cassio standing outside with another person who appeared to match the description of Dorisca. Cassio then drove away in the vehicle with Allonce as a passenger. Two State police troopers followed them and stopped the vehicle after it had traveled a few blocks; they observed that the vehicle contained clothing, luggage, and a cooler. Cassio told the troopers that he had just left Paco's house and was heading to the police station in Brockton to meet with Williams regarding the homicide. Cassio and Allonce then drove to the Brockton police station; the last report of the cellular service provider regarding the cellular telephone's location at approximately 3:47 £.M. that day indicated that the telephone was located inside the vehicle at the Brockton police station.

         The State police troopers returned to the residence to look for Dorisca and speak to the defendant. After approaching the building, they encountered two residents of the first-floor apartment. The troopers stated that they were looking for a homicide suspect, and the residents consented to a search of their unit. After the troopers looked through the unit, they left through a back door into a rear entry area and walked up the stairs to the second floor. The resident of that unit also consented to a search of her unit. The troopers then continued up the rear stairway to the third floor, which led to an open landing area with several doors that led to two bedrooms, a storage area, and a crawl space. All but one of the doors were open.

         The troopers knocked on the closed door and the defendant answered, identifying himself as "Paco." He stated that he resided in one of the third-floor bedrooms and paid $400 per month in rent to use that space. Trooper Francis Walls informed the defendant that police were investigating a homicide and that the murder suspect might be in the building. He also said that the investigation involved illegal narcotics.

         Telford advised the defendant of his Miranda rights and explained that they were looking for a homicide suspect, and had information that the defendant "had just gone down to Florida and purchased a large amount of narcotics and . . . [was] possibly storing it there." The defendant said that he had just driven back from Florida with some friends, denied possessing drugs, and signed a form giving his consent for a search. During that search, the police found $2, 200 in cash in the defendant's bedroom and, after the arrival of a narcotics-trained dog, a pillowcase in the attic crawl space across from the defendant's bedroom containing two "bricks" of cocaine. After the defendant was indicted, he moved to suppress the fruits of the search.

         The third motion judge determined that the defendant had standing to challenge the CSLI tracking of the cellular telephone because, although the telephone was used by Cassio, the police knew that the defendant was traveling with Cassio, and "[t]hey intended to track the movements of all three occupants of the vehicle because they had information that the purpose of the trip was to obtain cocaine for distribution in Massachusetts." The judge also concluded that the cocaine seized during the search of the defendant's residence "was found as a result of the unlawful electronic tracking," and "[t]he search and seizure was not attenuated from the unlawful tracking by lapse of time, intervening circumstances or by another legitimate police purpose in conducting the search." The judge therefore ruled that the evidence obtained during the search must be suppressed as "fruit of the poisonous tree."

         A single justice of this court granted the Commonwealth's motion for an interlocutory appeal and reported the appeal to the Appeals Court pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The Appeals Court agreed with the motion judge's conclusions on both standing and attenuation, but ultimately held that the warrantless search of the crawl space where the cocaine was found was permissible because the defendant had no reasonable expectation of privacy in that area. Fredericq, 93 Mass.App.Ct. at 30-31. On this ground alone, the Appeals Court reversed the allowance of the motion to suppress with respect to the cocaine, and affirmed it in all other respects. Id. at 32. We granted the defendant's motion for further appellate review.

         D ...

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