Supreme Judicial Court of Massachusetts, Plymouth
Heard: November 5, 2018.
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 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
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
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
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
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.
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.
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).
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. 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.
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."
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.
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 . . .
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.
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.
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.
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.
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
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.
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
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.