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12-P-1292 Appeals Court
COMMONWEALTH vs. PETER CHAMBERLIN.
No. 12-P-1292.
Bristol. September 9, 2014. - December 5, 2014.
Present: Kantrowitz, Grainger, & Hanlon, JJ.
Cellular Telephone. Subpoena. Practice, Criminal, Motion to
suppress, Subpoena, Warrant. Grand Jury. Search and
Seizure, Warrant, Plain view. Due Process of Law.
Evidence, Voice identification. Identification.
Indictments found and returned in the Superior Court
Department on November 21, 2007.
Pretrial motions to suppress evidence were heard by D.
Lloyd Macdonald, J., and the cases were tried before Robert J.
Kane, J.
Merritt Schnipper for the defendant.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
GRAINGER, J. A jury of the Superior Court found the
defendant guilty of armed robbery while masked, G. L. 265, § 17,
kidnapping for purposes of extortion, G. L. c. 265, § 26, and
armed assault with intent to murder, G. L. c. 265, § 18(b). The
2
convictions were based on the armed invasion of a real estate
agency following telephone conversations between the defendant
and the agency's owner during which the defendant made an
evening appointment for the ostensible purpose of discussing one
or more properties of interest to him. The defendant appeals,
asserting numerous procedural and evidentiary errors that we
consider in turn, referring to the undisputed factual background
as necessary to inform our discussion.
1. Production of telephone records. The victim told the
police that although the defendant was masked, his voice was
recognizable as belonging to an individual who identified
himself as "Marco" during several telephone calls that
culminated in an evening appointment at the victim's office for
the time of the robbery. The victim reported that the defendant
spoke repeatedly during the robbery, making threats to the
victim and referring to the victim's wife. In the course of
investigating the robbery, Fall River police Detective Lawrence
Ferreira examined the victim's phone, retrieving a voicemail
message from "Marco." After obtaining call records from the
victim's cellular telephone carrier, Detective Ferreira linked
the defendant to the only number on the call list that the
victim did not recognize. Ferreira then contacted the carrier,
T-Mobile, and requested call records associated with that
number. Ferreira informed the T-Mobile law enforcement
3
relations officer, Ronald Witt, that the defendant's phone was
being used to contact the victim's family and that the "suspect
has threatened the victim's family with bodily harm."1
The defendant's phone records were produced by T-Mobile
voluntarily and without the issuance of an administrative
subpoena, G. L. c. 271, § 17B, although T-Mobile accompanied the
production with a request for a subpoena within forty-eight
hours. The record indicates that the assistant district
attorney in charge of the case sent a grand jury subpoena to
Witt the day following T-Mobile's production; that subpoena was
not in evidence and is not in the record.
a. General Laws c. 271, § 17B. The defendant asserts that
the phone records produced by T-Mobile were obtained in
violation of G. L. c. 271, § 17B, and that this violation
warrants suppression of those records. Neither party contends
that the defendant has a constitutional expectation of privacy
in his phone records. Indeed, the defendant could not make such
a claim. See Commonwealth v. Augustine, 467 Mass. 230, 244
1
Witt characterized his understanding of the case as
"murder suspect, threat to family," and testified that this
understanding was based on "what the police would have told me."
Detective Ferreira denied describing the case as one involving
murder. The inconsistency does not affect our analysis.
4
(2014).2 Therefore, the question before us is one of a statutory
or procedural, not constitutional, violation.
First, we conclude that an administrative subpoena pursuant
to G. L. c. 271, § 17B, was not required in this case. This
issue appears to be one of first impression. While the Supreme
Judicial Court and this court have addressed the use of the
§ 17B procedure, neither court has addressed whether a § 17B
subpoena is required to obtain phone records in all instances.
The defendant's reliance on Commonwealth v. Vinnie, 428 Mass.
161, cert. denied, 525 U.S. 1007 (1998), and Commonwealth v.
Feodoroff, 43 Mass. App. Ct. 725 (1997), is unavailing on this
question, as neither case suggests that § 17B is the exclusive
procedure by which the Commonwealth may obtain phone records.3
We first look to the language of the statute itself to determine
whether a § 17B subpoena is the exclusive means by which to
obtain phone records. Commonwealth v. Boe, 456 Mass. 337, 347
(2010).
2
The judge also found that both the police and T-Mobile
followed the carrier's procedures in good faith and that
consequently, also as a factual matter, there was a very limited
expectation of privacy in these records that revealed only
numbers contacted by the defendant's phone (contents of
conversations are not at issue here).
3
Feodoroff holds that an officer of the court, and not a
police official, may issue a § 17B subpoena, 43 Mass. App. Ct.
at 727-728; Vinnie provides that suppression is an appropriate
remedy for a violation of § 17B, 428 Mass. at 178.
5
The language of § 17B4 is permissive, not mandatory, and is
entirely silent with respect to the voluntary production of
documents by a third-party phone company. The Supreme Judicial
Court has recognized that, while many mechanisms exist to obtain
documents through judicial process, documents can also be
obtained by law enforcement personnel through informal,
extrajudicial process for investigative purposes. See
Commonwealth v. Odgren, 455 Mass. 171, 186 n.26 (2009), citing
Commonwealth v. Mitchell, 444 Mass. 786, 791-792 n.12 (2005).
Nothing in the language of § 17B changes that reality. While
§ 17B may be the only available mechanism in certain
circumstances, neither statute nor case law renders it the
exclusive method by which to obtain third-party records.
b. Stored Communications Act. Moreover, we discern no
provision of the Federal Stored Communications Act (the act), 18
4
General Laws c. 271, § 17B, as in effect in September,
2007, see St. 1966, c. 352, reads, in pertinent part:
"Whenever the attorney general or a district attorney
has reasonable grounds for belief that the service of a
common carrier . . . is being or may be used for an
unlawful purpose he may, acting within his jurisdiction,
demand all the records in the possession of such common
carrier relating to any such service. Such common carrier
shall forthwith deliver to the attorney general or district
attorney all the records so demanded." (Emphasis
supplied.)
Section 17B was subsequently amended in 2008. See St.
2008, c. 205, § 3. That revised version is not applicable here;
the differences are not material to our analysis.
6
U.S.C. §§ 2701 et seq. (2006), that compels a different
conclusion. The act "directs how governmental entities may
obtain communication records from third-party providers of
electronic communication services." Commonwealth v. Augustine,
467 Mass. at 235. The section of the act at issue here is
§ 2702, entitled "Voluntary disclosure of customer
communications or records" (emphasis added). We are not aware
of any reported cases in Massachusetts which interpret § 2702 of
the act,5 and the act's plain language contemplates the voluntary
disclosure of records in certain circumstances. One such
circumstance, relevant here, is when the custodian believes in
good faith, that there are exigent circumstances. 18 U.S.C.
§ 2702(c)(4) (2006).6
The motion judge found that a § 17B subpoena was not
required because there was no demand for the records; they were
voluntarily produced to Detective Ferreira after what amounted
to no more than an inquiry to T-Mobile. We accept the motion
judge's findings of fact absent clear error. See Commonwealth
v. Watson, 36 Mass. App. Ct. 252, 257 (1994), citing
5
The only reported Massachusetts cases discussing the act
interpret § 2703, which governs compelled disclosure of phone
records. See Commonwealth v. Augustine, 467 Mass. 230 (2014).
See also Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810,
818-819 (2013).
6
Congress has also decreed that suppression is not a remedy
for violation of the act absent a constitutional violation. 18
U.S.C. §§ 2707, 2708 (2006).
7
Commonwealth v. Harmon, 410 Mass. 425, 428-429 (1991). Finding
no error, we conclude for purposes of our analysis that T-Mobile
produced the records voluntarily after inquiry by the Fall River
police.
While, as stated, the Commonwealth was not required to use
a § 17B administrative subpoena, the voluntary disclosure of
phone records here was only proper under Federal law if there
were exigent circumstances. 18 U.S.C. § 2702(c)(4) (2006). The
motion judge found that exigent circumstances did exist at the
time T-Mobile produced the records. That factual determination
is again reviewed under an abuse of discretion standard and,
again, we find none. In doing so, we refer particularly to the
violent nature of the crime and the perceived ongoing threat to
the victim and his family.7 The denial of the motion to suppress
was proper.
7
During the robbery the defendant repeatedly told the
victim, "I know where you live." The defendant ascribes
significance to the fact that in the delivery of this threat the
robber recited an incorrect address, leading the victim to
reply, "Sir, you have the wrong guy." We do not agree that the
police were required to rely on this mistake and therefore
required to conclude that the defendant's threats were not
serious, especially in light of the robber having shot the
victim point blank in the head, having instructed an accomplice
to "plug" the victim some more, and the subsequent anonymous
calls to the victim's actual residence. It is undisputed that
the robbery was undertaken in a very violent manner including
the attempt to murder the victim in cold blood while he was
bound and on the floor.
8
c. Grand jury subpoena. Finally, while we conclude the
Commonwealth was not required to use a § 17B administrative
subpoena, we agree with the defendant that the Commonwealth's
use of a grand jury subpoena was procedurally improper. The
grand jury subpoena issued here was issued at the request of the
phone company after the records had already been produced to the
police. The records could not have been intended to be produced
at a grand jury, as none had been convened at the time. This is
a statutory or ethical violation, not a constitutional one. See
Commonwealth v. Mitchell, 444 Mass. at 798 n.17. Suppression is
not the appropriate remedy absent a showing of prejudice to the
defendant. See Commonwealth v. Smallwood, 379 Mass. 878, 887-
888 (1980); Commonwealth v. Cote, 407 Mass. 827, 832-833 (1990).
We note that the defendant appropriately conceded at oral
argument that there was no prejudice flowing from the improper
use of the grand jury subpoena.
2. "No-knock" search warrant: reappraisal. The defendant
asserts that evidence seized in his residence should have been
suppressed because the police failed to conduct a threshold
reappraisal to ensure the necessity of the no-knock entry
authorized by the search warrant. We do not agree.
The defendant does not argue that the inclusion of the no-
knock provision in the warrant was itself improper, and such an
argument would be unavailing under the circumstances we have
9
already recited relating to the violent nature of the crime and
the threats uttered during its commission. See note 7, supra.
Rather, the argument made to the motion judge and pressed on
appeal is that a reappraisal is required in all cases, and that
the failure to engage in one renders the search invalid. Our
case law does not apply such a categorical rule. Commonwealth
v. Scalise, 387 Mass. 413 (1982), on which the defendant relies,
is a case in point: "We recognize that the facts existing at
the time the warrant is issued may no longer exist at the time
the warrant is executed. In those instances, the officers would
be required to knock and announce their purpose." (Emphasis
added.) Id. at 421. Reappraisal is not a formalistic exercise
mandated in all circumstances -- it is a recognition that the
provisions of a warrant are conditioned on the continued
existence of the sworn facts justifying the abrogation of
constitutional rights until the warrant is executed.8
Circumstances commonly justifying a failure to knock were
present here. In the context of the all-important consideration
of officer safety, we refer again to the violent nature of the
crime and the demonstrated disregard for life shown by the
8
In applying a flexible approach, the Supreme Judicial
Court has also recognized the converse -- that an unannounced
entry may be justified by circumstances at the time of
execution, even though the warrant itself does not contain a no-
knock provision. Commonwealth v. Jimenez, 438 Mass. 213, 217
(2002), citing Commonwealth v. Scalise, 387 Mass. at 422 n.8.
10
suspect.9 With reference to preservation of evidence, the
articles enumerated in the warrant included gloves, checks, zip
ties, and ammunition casings; such items are in many cases small
and capable of concealment or destruction. These factors,
clearly, remained unchanged from the time of issuance until
execution of the warrant.
The defendant argues that because the police were spotted
by the defendant's wife prior to entry, and then engaged in
conversation with her, a reappraisal was mandated. The loss of
the element of surprise, however, is a factor that justifies a
prompt unannounced entry, rather than the contrary.
Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 836-837 (1989),
and cases cited therein. As several police witnesses pointed
out in testimony at the suppression hearing, the entry team was
faced with the possibility that the defendant had been alerted
by his wife to the police presence, and that she was seeking to
delay their access at his behest.10
9
The defendant characterizes the motion judge as having
adopted a per se rule that a threshold reappraisal is not
possible when the suspect of a violent crime remains at large.
We find no such holding, explicit or implied, in the record.
10
In the sensible words of one of the officers, challenged
to explain why being seen by the defendant's wife, who then
promised to open the door for the police, was not a reason to
reappraise: "Well, we get lied to a lot, yeah."
11
The defendant also asserts a violation of his due process
rights because the motion judge did not allow him to compel the
testimony of three additional members of the police entry team
after three officers had already testified. The defendant has
failed to specify the relevant issue that the additional
testimony would cover, or to make a proffer of the evidence he
was anticipating.11 The Commonwealth stipulated to the affidavit
provided by the defendant's wife for purposes of determining
whether additional witnesses were needed and whether the warrant
was properly executed. The motion judge was well within his
discretion in ruling that additional witnesses would not be
called. See Commonwealth v. Carroll, 439 Mass. 547, 552-553
(2003) (trial judge's discretion to exclude cumulative
testimony).
3. Plain view exception to the warrant requirement:
inadvertence. During their search of the defendant's home the
police seized the defendant's computer containing, among other
evidence, Fall River real estate listings that had been sent by
electronic mail message (e-mail) to the defendant after he
feigned interest in purchasing property so that he could gain
11
We do not consider the defendant's reference to a
discrepancy on the subject of any possible prior interaction
between any of the officers and the defendant's wife to raise a
relevant issue. Regardless of whether or not the officers had
had previous contact with the defendant's wife, they were not
required to accept assurances from her that she was alone or
that she would provide prompt access.
12
entrance to the victim's office. They also discovered printouts
of such listings. Neither the computer nor the hard copy
listings were identified in the search warrant and they are not
mentioned in the supporting affidavit. The defendant argues
that the police had probable cause to anticipate the presence of
both the computer and the real estate listings and that,
therefore, the requirement of inadvertence for seizure of items
in plain view mandates their suppression.
We do not agree with the defendant that the police had
probable cause to anticipate finding printed real estate
listings at his residence. They were informed by the victim
that e-mail messages containing requested real estate listings
had been sent to the defendant. The evidence on which the
police investigation was based led to the conclusion that the
defendant had no genuine interest in Fall River real estate. He
requested the listings merely as a pretense to gain access to
the office he planned to rob. The police had no reason to
anticipate that the defendant would print and retain listings of
seven different properties in which he had no interest, and that
these would be kept at his residence.
"The anticipation of finding some additional contraband or
other evidence of criminality is not the same as having probable
cause to believe that specific items of evidence will be present
at the location to be searched. Such generalized anticipation
13
undoubtedly exists in conjunction with almost every search, and
to conclude that its presence negates inadvertence would stretch
that requirement beyond its intent and limited purpose."
Commonwealth v. Balicki, 436 Mass. 1, 14 (2002).
Under these circumstances we do not need to address the
seizure of the computer. Even were we to agree with the
defendant's argument, we would be hard pressed to deem the
resulting evidence prejudicial. The real estate listings found
on the computer are duplicative of the printouts, which were in
plain sight and not subject to the inadvertence exception. To
the extent the defendant claims that other evidence was seized
in error, we discern no prejudice in light of the overall
strength of the Commonwealth's case involving, as it did,
eyewitness voice and facial identification, phone records, real
estate listings, and the defendant's incriminating statements.
4. Voice identifications. Finally, the defendant
complains that the trial judge improperly admitted the voice
identification of the defendant by two witnesses. The gravamen
of this assertion is that the procedures used were one-on-one
rather than including the defendant's voice among others, that
the police officers specifically mentioned the defendant to the
witnesses before the identifications, and that the
identifications were not performed until several years after the
witnesses had last spoken with the defendant.
14
This complaint overlooks the long association between the
witnesses and the defendant,12 a factor that renders these
alleged defects nonsuggestive. Suggestiveness is typically an
issue when the police are seeking an identification from a
witness who has had a single, perhaps brief, exposure to a
suspect. In such a case a prompt opportunity to make an
identification under neutral conditions provides assurance that
the result is not unduly influenced by extraneous factors such
as a deteriorated memory and a perception of undisclosed
additional police knowledge. See, e.g., Commonwealth v.
Leaster, 395 Mass. 96, 102-104 (1985) (discussing factors
creating suggestiveness in a show-up identification). In
reviewing a claim that a voice identification was unduly
suggestive we look to a totality of the circumstances. See
Commonwealth v. Saunders, 50 Mass. App. Ct. 865, 874 (2001),
S.C., 435 Mass. 691 (2002) (discussing circumstances of voice
identification in the context of five-prong test set forth in
Commonwealth v. Marini, 375 Mass. 510, 516-517 [1978]). See
generally Mass. G. Evid. § 901(b)(5) (2014).
"In the discretion of a trial judge, a voice identification
may be considered by a jury as long as the witness expresses
12
Each witness had known the defendant for about twenty
years; one was a good friend, and the other had a child with
him.
15
some basic familiarity with the voice he or she claims to
identify." Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522,
527 (1988). We conclude under these circumstances that the
judge did not abuse his discretion.13
Judgments affirmed.
13
Even were we to assign error, we would be hard pressed to deem
the voice identification testimony prejudicial in light of the
overall strength of the Commonwealth's case.