Commonwealth v. Estabrook

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SJC-11833

COMMONWEALTH vs. JASON ESTABROOK
(and nine companion cases1).

Middlesex. May 7, 2015. - September 28, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Cellular Telephone. Constitutional Law, Search and seizure,
Probable cause. Search and Seizure, Expectation of
privacy, Probable cause, Warrant, Affidavit, Fruits of
illegal search. Probable Cause. Evidence, Result of
illegal search. Practice, Criminal, Warrant, Affidavit.

Indictments found and returned in the Superior Court
Department on December 6, 2012.

Pretrial motions to suppress evidence were heard by Kathe
M. Tuttman, J.

Applications for leave to file interlocutory appeals were
allowed by Lenk, J., in the Supreme Judicial Court for the
county of Suffolk, and the appeals were reported by her.

George E. Murphy, Jr., for Jason Estabrook.
Daniel Beck (Susan M. Costa with him) for Adam Bradley.

1
Four against Jason Estabrook and five against Adam
Bradley.
 2

Jamie Michael Charles, Assistant District Attorney (David
Marc Solet, Assistant District Attorney, with him) for the
Commonwealth.
Andrew Sellars, for American Civil Liberties Union of
Massachusetts & another, amici curiae, submitted a brief.

BOTSFORD, J. In this case, we consider again a search of

historical cellular site location information (CSLI).2 See

Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass.

837 (2015). The defendants, Jason Estabrook and Adam Bradley,

stand indicted for murder and related crimes arising out of a

shooting that took place on July 7, 2012, in Billerica. They

moved to suppress evidence of historical CSLI pertaining to

Bradley's cellular telephone that the police initially obtained

in July, 2012, without a search warrant but in compliance with

18 U.S.C. § 2703 (2006), and then, in November, 2013,

reobtained pursuant to a warrant. The defendants also sought

2
Cellular site location information (CSLI) "refers to a
cellular telephone service record or records that contain
information identifying the base station towers and sectors that
receive transmissions from a [cellular] telephone" (quotations
and citation omitted). Commonwealth v. Augustine, 467 Mass.
230, 231 n.1 (2014), S.C., 470 Mass. 837 (2015). It is a record
of a subscriber's cellular telephone's communication with a
cellular service provider's base stations (i.e., cell sites or
cell towers) during calls made or received, id. at 237-238; this
identifies the approximate location of the "active cellular
telephone handset within [the cellular service provider's]
network based on the handset's communication with a particular
cell site." See id. at 238. Historical CSLI is "CSLI relating
to and generated by cellular telephone use that has already
occurred at the time of the order authorizing the disclosure of
such data" (quotations and citation omitted). Id. at 231 n.1.
 3

suppression of statements they each made to police in 2012,

following the receipt of Bradley's CSLI. A judge of the

Superior Court denied the motions after an evidentiary hearing;

the defendants filed these interlocutory appeals. See Mass. R.

Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).

Returning to an issue briefly touched on in Augustine, 467

Mass. at 255 n.37, we conclude that a defendant's reasonable

expectation of privacy protected under art. 14 of the

Massachusetts Declaration of Rights is not violated where the

Commonwealth requests up to six hours of historical CSLI without

obtaining a search warrant. In this case, however, because the

Commonwealth requested two weeks of historical CSLI, a search

warrant was required, even though the Commonwealth proposes to

use only six hours of the CSLI as evidence at trial.

Nevertheless, we decide that many of the defendants' statements

and Bradley's CSLI are not subject to suppression on account of

the CSLI that was first obtained unlawfully: the defendant's

statements were not made in response to being confronted by that

tainted CSLI, and the 2013 search warrant was supported by

probable cause derived from information the Commonwealth

obtained independently rather than through exploitation of the

tainted CSLI.

Background. To provide context, we summarize some of the

background facts as found by the motion judge, reserving
 4

additional facts for consideration in connection with the issues

raised in these appeals.3 At approximately 3:50 A.M. on July 7,

2012, Quintin Koehler (victim) and his brother, Ryan, were at

their home in Billerica when they heard loud noises coming from

the kitchen. According to Ryan, the two brothers went into the

kitchen where they were confronted by three to four masked men.

Each of the intruders appeared to be in his early twenties, and

at least two of them were holding firearms. One of the

intruders, whom we shall call the "first intruder," had a gun

and ordered the two brothers onto the ground. The victim

refused and hit a different intruder, whom we shall call the

"second intruder," with a tea kettle, after which a struggle

ensued between them. At that point one or two of the other

intruders shot the victim in the head and shoulder. All the

intruders then fled the scene on foot. A few minutes later,

police and emergency personnel arrived, and at 3:58 A.M. the

victim was transported to a hospital where he died of a gunshot

wound to the head. On July 10, 2012, Nicholas Cappello told

Deputy Chief Roy Frost of the Billerica police department and

State police Trooper Anthony DeLucia that he lived with the

victim, that he regularly purchased and distributed marijuana,

and that at times he purchased the drugs from a supplier in Lynn

3
The defendants do not appear to dispute the facts stated
here.
 5

named Ashley. The police learned that the supplier was Ashley

Marshall, and that the defendant Bradley was an associate of

hers.

Prior to July 25, 2012, an assistant district attorney

obtained through administrative subpoenas, see G. L. c. 271,

§ 17B, certain telephone records (call logs) of Bradley and

Marshall. The call logs associated with Bradley's cellular

telephone revealed the time and duration of incoming and

outgoing calls. They also showed the telephone numbers

associated with each call; they did not contain CSLI. These

call logs revealed, among other things, that Bradley's telephone

was in contact with Marshall's telephone often on the night of

the shooting.

On July 25, 2012, based on information gleaned from the

call logs and the police investigation, the Commonwealth filed

an application in the Superior Court seeking an order to obtain

from Bradley's cellular service provider certain records,

including historical CSLI, relating to his cellular telephone

for the period from July 1 through July 15, 2012. Pursuant to

18 U.S.C. § 2703(d), a Superior Court judge issued the requested

order (§ 2703[d] order).4 Bradley's CSLI evidence indicated that

4
Section 2703(d) of the Federal Stored Communications Act,
18 U.S.C. § 2701 et seq. (2006), allows a court of competent
jurisdiction to issue an order requiring a cellular telephone
company to disclose certain types of records of customers,
 6

at the time the shooting took place, his cellular telephone was

in the area of Burlington and Bedford and communicating with a

cell tower located three miles from the victim's home.5

On August 2, 2012, police officers interviewed Bradley, who

was not in custody and who denied involvement in the July 7

shooting, but in response to their questions, told the officers

of his cousin, the defendant Estabrook. Police then interviewed

Estabrook on August 15, during which Estabrook volunteered that

he had sought treatment for a dislocated shoulder at Salem

Hospital in the early morning hours of July 7, shortly after the

shooting had occurred. After the police conducted further

investigation, on September 26, 2012, Estabrook was arrested for

the murder of the victim. On September 27, in another interview

with the investigating officers, Estabrook detailed the facts of

including CSLI, to a governmental entity if the government
establishes that "specific and articulable facts" show
"reasonable grounds to believe" that the records "are relevant
and material to an ongoing criminal investigation."
5
In addition to the Superior Court order pursuant to 18
U.S.C. § 2703(d) (§ 2703[d] order) pertaining to Bradley's CSLI,
the Commonwealth obtained § 2703(d) orders requiring the
disclosure of CSLI associated with the cellular telephone
numbers of certain persons who are not parties to these appeals,
covering the period from July 1 to July 15, 2012. The police
had learned from previously obtained telephone records (call
logs) that the cellular telephones of some of the other
individuals were in contact with Bradley's cellular telephone
close to the time of the shooting. The CSLI obtained in
relation to some of these individuals revealed that their
cellular telephones also were in the area of the victim's home
around the time of the shooting.
 7

the July 7 home invasion and shooting and implicated himself,

Bradley, and others in the crimes. That same day, the officers

also spoke to Bradley, who again denied any personal

involvement, saying that he knew of how the incident transpired

only from what Estabrook had told him.

On December 6, 2012, a Middlesex County grand jury returned

indictments against Bradley and Estabrook, charging each with

murder in the first degree, armed home invasion, attempted armed

robbery, carrying a firearm without a license, and unlawful

possession of ammunition. On November 20, 2013, Billerica

police applied for and obtained search warrants for the same

CSLI that the Commonwealth had collected pursuant to the

§ 2703(d) orders obtained in 2012, including Bradley's CSLI

covering the period from July 1 to July 15, 2012.6

In June, 2014, Bradley and Estabrook filed separate motions

to suppress evidence of Bradley's historical CSLI on the ground

that the Commonwealth had obtained this evidence in violation of

art. 14.7 See Augustine, 467 Mass. at 232. Both motions also

6
Deputy Chief Roy Frost of the Billerica police department
submitted an affidavit in which he recited facts supporting the
search warrant applications and indicated that the police sought
the warrants in light of uncertainty as to whether Massachusetts
law required probable cause and a search warrant, rather than a
§ 2703(d) order alone, to obtain the CSLI at issue in this case.
7
Jason Estabrook did not have a cellular telephone at the
time of this investigation. Estabrook contended in his motion
to suppress that he had standing to argue for suppression of
 8

sought suppression of the defendants' statements made to police

allegedly derived from the CSLI: Estabrook argued in favor of

suppression of his August 15 and September 27 statements;

Bradley sought suppression of the statements he made on August 2

and September 27.8 After an evidentiary hearing, the motion

judge denied the defendants' motions. The judge determined that

the July 25, 2012, § 2703(d) order for Bradley's CSLI was not

supported by probable cause. She further concluded, however,

that probable cause and a search warrant were not required for

the CSLI pertaining to the six-hour period surrounding the time

of the July 7 shooting because the defendants had no reasonable

expectation of privacy in CSLI covering so brief a period. As

to the CSLI covering the periods beyond this six-hour window,

the judge ruled that suppression was not called for in light of

the fact that the police had obtained a search warrant for this

CSLI, which was supported by probable cause derived from

evidence independent of the CSLI. A single justice allowed the

defendants' applications for interlocutory review and directed

that their appeals be consolidated and heard in this court.

Bradley's CSLI because Estabrook used Bradley's telephone at
times. The motion judge assumed for argument that Estabrook did
have standing to challenge the use of Bradley's CSLI.
8
Estabrook also appears to have sought suppression of
substantially all of Bradley's statements made to police during
the investigation.
 9

Discussion. 1. Standard of review. "When reviewing the

denial of a motion to suppress, we accept the judge's findings

of fact and will not disturb them absent clear error."

Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we

undertake "an independent determination as to the correctness of

the judge's application of constitutional principles to the

facts as found." Id.

2. Warrant requirement. The defendants challenge the

motion judge's ruling that the Commonwealth did not need a

search warrant to obtain the CSLI covering the six-hour window

surrounding the July 7 shooting.9 They contend that any

suggestion in this court's decision in Augustine that a request

for CSLI for a period of six hours or less would not require a

warrant is irrelevant to this case because here the Commonwealth

requested CSLI covering a period of two weeks, thereby

subjecting the request to the warrant requirement of art. 14.

We agree.

9
Like the motion judge, we assume without deciding that
Estabrook has standing to challenge the Commonwealth's
collection of CSLI associated with cellular telephones that he
was using around the time of the shooting, such as Bradley's.
However, to the extent Bradley and Estabrook appear to claim
that they have a right to seek suppression of the CSLI of other
defendants, their claim is likely waived for lack of proper
argument, see Mass. R. A. P. 16 (a) (4), as amended, 367 Mass.
921 (1975), but in any event, we agree with the motion judge
that they do not have standing because there is no evidence that
either was using the cellular telephones of other persons who
are not parties to these appeals.
 10

In Augustine, the court held that a person has a reasonable

expectation of privacy in historical CSLI relating to his or her

cellular telephone, at least insofar as it covers a two-week

period, and that this expectation of privacy rendered the

Commonwealth's access to this information a search in the

constitutional sense, subject to the warrant requirement of art.

14.10 Augustine, 467 Mass. at 232, 255. However, we surmised

that there may be "some period of time for which the

Commonwealth may obtain a person's historical CSLI by meeting

the standard for a § 2703(d) order alone, because the duration

is too brief to implicate the person's reasonable privacy

interest." Id. at 254. Although we declined in Augustine to

announce "a temporal line of demarcation between when the police

may not be required to seek a search warrant for historical CSLI

and when they must do so," we assumed without deciding that "a

request for historical CSLI . . . for a period of six hours or

less would not require the police to obtain a search warrant in

addition to a § 2703(d) order" (emphasis added). Id. at 255

n.37. We now hold that, assuming compliance with the

requirements of 18 U.S.C. § 2703, the Commonwealth may obtain

historical CSLI for a period of six hours or less relating to an

10
In so holding, the court noted that probable cause is a
higher standard than that applicable to a § 2703(d) order.
Augustine, 467 Mass. at 236.
 11

identified person's cellular telephone from the cellular service

provider without obtaining a search warrant, because such a

request does not violate the person's constitutionally protected

expectation of privacy.11,12

It is important to emphasize that, in terms of reasonable

expectation of privacy, the salient consideration is the length

of time for which a person's CSLI is requested, not the time

covered by the person's CSLI that the Commonwealth ultimately

seeks to use as evidence at trial. See Augustine, 467 Mass. at

254. It would violate the constitutional principles underlying

11
"[P]olice, trial judges, prosecutors, and defense counsel
are entitled to as clear a rule as possible" regarding the
amount of historical CSLI that may be requested without a
warrant. See Commonwealth v. Rosario, 422 Mass. 48, 53 (1996).
Accordingly, there is value in adopting a bright-line rule that
a request for historical CSLI for a period covering six hours or
less does not require a search warrant in addition to a
§ 2703(d) order. See id. at 56 (adopting bright-line rule that
"otherwise admissible statement is not to be excluded on the
ground of unreasonable delay in arraignment, if the statement is
made within six hours of the arrest" in light of differing views
of trial court judges as to reasonableness of delays in
arraigning individual defendants). See also Commonwealth v.
Powell, 468 Mass. 272, 279-282 (2014).
12
This exception to the warrant requirement for CSLI
applies only to "telephone call" CSLI, which is at issue in this
case, and not to "registration" CSLI. "Telephone call" CSLI
indicates the "approximate physical location . . . of a cellular
telephone only when a telephone call is made or received by that
telephone." Augustine, 467 Mass. at 258-259 (Gants, J.,
dissenting). By contrast, "registration" CSLI "provides the
approximate physical location of a cellular telephone every
seven seconds unless the telephone is 'powered off,' regardless
of whether any telephone call is made to or from the telephone."
Id. at 259 (Gants, J., dissenting).
 12

our decision in Augustine to permit the Commonwealth to request

and obtain without a warrant two weeks of CSLI -- or longer --

so long as the Commonwealth seeks to use evidence relating only

to six hours of that CSLI. Cf. United States v. Verdugo-

Urquidez, 494 U.S. 259, 264 (1990), quoting United States v.

Calandra, 414 U.S. 338, 354 (1974) (Fourth Amendment to the

United States Constitution "prohibits 'unreasonable searches and

seizures' whether or not the evidence is sought to be used in a

criminal trial, and a violation of the Amendment is 'fully

accomplished' at the time of an unreasonable governmental

intrusion"); United States v. Leon, 468 U.S. 897, 906 (1984)

(wrong under Fourth Amendment is "unlawful search or seizure

itself" [citation omitted]). Because the Commonwealth

requested, and obtained, CSLI relating to Bradley's cellular

telephone covering an entire two-week period of which the six

hours at issue were just a small part, as in Augustine, see 467

Mass at 232-233, the warrant requirement applied to the entirety

of Bradley's CSLI that was requested.

This conclusion, however, does not resolve the defendants'

appeals. The statements made by Bradley and Estabrook after the

police obtained Bradley's CSLI still are admissible if they are

not the fruits of the illegal search of the CSLI. Similarly,

Bradley's CSLI is admissible if the search warrant ultimately

obtained for this CSLI was based on evidence that provided
 13

probable cause and derived from a source independent of the

tainted CSLI. We address these two issues in turn.

3. The defendants' statements. The defendants assert that

their statements to the police must be suppressed as a result of

the initial illegal search of Bradley's CSLI.13 Their claim is a

general one: because the police obtained Bradley's CSLI before

any of the several interviews of Estabrook and Bradley,

everything the defendants stated during those interviews must be

suppressed as tainted fruits of the unlawfully obtained CSLI.

We disagree; the inquiry is more individualized. The "crucial

question" regarding whether a particular statement must be

suppressed as the fruit of the initial illegal search of

Bradley's CSLI is whether that statement "has been come at by

exploitation of . . . [the illegal search] or instead by means

sufficiently distinguishable to be purged of the primary taint."

See Commonwealth v. Bradshaw, 385 Mass. 244, 258 (1982), quoting

Wong Sun v. United States, 371 U.S. 471, 488 (1963). With this

in mind, we examine the statements at issue.

a. Bradley's interview on August 2. The motion judge

implicitly found that the police were investigating Bradley's

13
Although the point is far from clear in their briefs, we
will assume that both defendants argue for suppression of all of
their various statements to the police.
 14

involvement in the shooting prior to obtaining his CSLI,14 as

demonstrated by her finding that the Commonwealth sought and

obtained through an administrative subpoena Bradley's call logs

before seeking and securing the § 2703(d) order for Bradley's

CSLI.15 When Frost and DeLucia interviewed Bradley on August 2,

before the officers confronted Bradley with any information

derived from the tainted CSLI, he identified Estabrook as

someone who occasionally used his cellular telephone.16

14
As stated in Frost's affidavit, the Commonwealth secured
§ 2703(d) orders for CSLI, including that associated with
Bradley's cellular telephone, on July 25, 2012, and obtained
Bradley's CSLI on July 31, 2012, pursuant to those orders.
15
It is true that Frost also said at the motion to suppress
hearing that Bradley's CSLI was the "strongest" piece of
information suggesting his involvement in the shooting at the
time Bradley spoke to police on August 2, 2012. Nevertheless,
the thrust of Frost's testimony is that the police focused on
Bradley as a suspect soon after the shooting and were interested
in interviewing him prior to obtaining his CSLI.
16
State police Trooper Anthony DeLucia asked Bradley
whether anyone else had used his telephone in the past. We do
not view this question as exploiting Bradley's CSLI because he
already had confronted Bradley with his call logs that revealed
multiple calls having been placed from Bradley's telephone to
Ashley Marshall's telephone on the night of the shooting. The
basis for DeLucia's questions, therefore, had a source, the call
logs, that was independent of and indeed existed prior to the
CSLI.

Furthermore, to the extent that the motion judge concluded
that Bradley led investigators to Estabrook only after being
confronted with the illegally obtained CSLI, we disagree.
Although Bradley only described Estabrook's allegedly violent
tendencies after being confronted with the CSLI, see note 17,
infra, Bradley volunteered Estabrook's name as his cousin who
used his cellular telephone before the CSLI came into play in
 15

Accordingly, Bradley's statement did not result from the police

exploiting Bradley's CSLI and was not a fruit of the illegal

search of that CSLI. See Bradshaw, 385 Mass. at 258.

Suppression of this statement is not required.17

b. Estabrook's interviews on August 8 and August 15. Soon

after Bradley's August 2 interview, the police began

investigating Estabrook's involvement in the shooting and

Bradley's August 2 interview. Given that Bradley told police
that Estabrook occasionally used his telephone and that the
police knew from the call logs that Bradley's telephone made and
received numerous calls immediately around the time of the
shooting, it is reasonable to assume that the police would have
investigated Estabrook even absent the information from Bradley
describing Estabrook's alleged propensity for violence. Frost
indicated as much in his testimony at the evidentiary hearing on
the motion to suppress.
17
In Bradley's August 2 interview, DeLucia and Frost
"exploited" his CSLI for the first time by asking Bradley, "[I]s
there any reason why [your] phone would not be in Lynn [on the
night of the shooting] and somebody would be on it outside of
Lynn?" In response, Bradley again mentioned Estabrook,
described Estabrook as a person who is "crazy" and "likes to rob
people," and later added that Estabrook is "capable" of
committing murder. Independent of whether these statements were
the fruit of the illegal CSLI, Bradley's statements of opinion
about Estabrook's supposed character and propensities would be
inadmissible at trial on the ground that Bradley's opinion on
such issues is irrelevant.

Bradley also mentioned, at some point after being
confronted with his CSLI, that Estabrook had a cut on his head
in July, 2012. Bradley was unable to say with any certainty,
however, whether Estabrook had the cut around the time of the
shooting. We leave for the motion judge on remand to determine
whether Bradley's statement regarding Estabrook's cut was
sufficiently connected to any confrontation with CSLI to warrant
suppression.
 16

learned that his large physical build was consistent with the

description of the second intruder, and that he, like Bradley,

had a history of convictions for offenses involving violence and

firearms. The police first interviewed Estabrook on August 8.

In the August 8 interview, Frost told Estabrook, "[W]e had

this incident . . . on that Saturday, early morning hours, and,

you know, we have some information that puts you there." Almost

immediately thereafter, however, State police Trooper Kevin

Baker said to Estabrook, "[W]e know that there was a group of

people there. We have some good information on the reason they

were there and what was going on and how things went down and

what those people look like and . . . what their appearance was

and where they and how they fled," and that Estabrook's name

"continually keeps coming up." Here, an argument could be made

that the police officers were exploiting Bradley's illegally

obtained CSLI because Frost had been told by Bradley that

Estabrook occasionally used Bradley's telephone and Bradley's

CSLI placed the telephone close to the scene of the shooting at

the time it occurred. We conclude that it is more probable that

the police officers' statements reflect the results of the

continuing investigation into the shooting that they were

conducting independent of Bradley's CSLI. At this time the

police did not have any information about whether Bradley or

Estabrook had Bradley's telephone at the time of the shooting.
 17

Furthermore, Bradley had given Estabrook's name to investigators

prior to being confronted with the tainted CSLI, and the police

then determined, necessarily independent of any CSLI, that

Estabrook matched the physical appearance of the second intruder

who had been described by the victim's brother shortly after the

shooting. See Commonwealth v. Watkins, 375 Mass. 472, 483 n.9

(1978) (defendant's statements were not fruit of earlier

illegality where "statements came to light by means independent

from" illegality).

As for Estabrook's August 15 statements, it appears that

this interview of Estabrook was not recorded, and the undisputed

testimony of Frost was that the police did not confront

Estabrook with any information related to the CSLI.

Accordingly, suppression of evidence of Estabrook's statements

made on August 8 and August 15 is not called for. See

Commonwealth v. Shipps, 399 Mass. 820, 829 (1987) ("improper

conduct unrelated to the statements does not compel suppression

of the statements").

c. Estabrook's interview on September 27. Unrelated to

any exploitation of Bradley's CSLI, the police discovered from

Estabrook during his August 15 interview that he had sought

treatment at Salem Hospital on the night of the shooting.

Police obtained copies of Estabrook's medical records and

gleaned from the hospital surveillance videos that he had
 18

arrived at the hospital shortly after the shooting wearing

clothes substantially matching those of the second intruder, and

told medical staff that he was "hit in the head with a tea

kettle." Because Estabrook's statement was consistent with the

victim's brother's account of what happened to the second

intruder at the scene of the shooting, the police arrested

Estabrook, and advised him of the Miranda rights. He agreed to

speak with the police. During that interview, Estabrook

implicated himself, Bradley, and others in the shooting. These

statements also are not required to be suppressed.18 See

Commonwealth v. Nickerson, 79 Mass. App. Ct. 642, 649 (2011)

(police misconduct "cannot deprive the [Commonwealth] of the

opportunity to prove [the defendant's] guilt through the

introduction of evidence wholly untainted by the police

misconduct" [citation omitted]).

18
The record indicates that Estabrook made incriminating
statements in the interview after Frost twice told him that he
knew Estabrook was in the house when the shooting occurred.
However, what Frost told Estabrook was not, in our view, an
exploitation of Bradley's tainted CSLI. It is more likely that
Frost's statement that Estabrook was at the scene of the
shooting was derived from Estabrook's appearance at the hospital
right after the shooting, in attire substantially matching that
of the second intruder, and from Estabrook's statement to his
treatment providers that he had been hit with a tea kettle. All
that Bradley's CSLI did, after all, was locate his cellular
telephone and its user -- whether Bradley or Estabrook -- within
three miles of the victim's home in Billerica; the CSLI did not
place the telephone in the house itself.
 19

d. Bradley's interview on September 27. Frost and DeLucia

interviewed Bradley again on September 27, 2012, following their

postarrest interview of Estabrook.19 As he had on August 2,

Bradley denied involvement in the shooting, and stated

repeatedly that Estabrook had informed him of the shooting

incident. Specifically, Bradley said that Estabrook told him

that he, Estabrook, had been hit in the head with a pot; that

another individual, Gabriel Arias, shot the victim; and that a

third individual, Peter Bin, also was present in the house for

the shooting. Bradley said that, according to Estabrook, Bin

carried a .45 caliber pistol and Arias had a nine millimeter

handgun during the home invasion.

Suppression of these statements is not required.

Throughout this interview, Frost and DeLucia confronted Bradley

with information they had just learned from Estabrook,

independently of the CSLI.20 To the extent the police told

Bradley during the interview that they knew he was involved in

the shooting, their questions and statements made clear that

they had obtained this information through Estabrook's untainted

19
At the time of this interview, Bradley was also under
arrest, but in connection with an unrelated matter.
20
During the interview the investigators asked Bradley who
had his telephone on the night of the shooting and told him that
his "phone was in Billerica." As discussed infra, Bradley's
responses to these questions are inadmissible.
 20

confession and other independent sources, rather than by

exploiting the CSLI.21

Although the defendants challenge the admissibility of all

their statements as tainted by the previously obtained CSLI for

Bradley's cellular telephone. We have rejected that approach.

Rather, we have focused primarily on the statements that were

included in the affidavit and that support probable cause

independent of the earlier, unlawfully obtained CSLI. The

motion judge relied on Brown v. Illinois, 422 U.S. 590, 603-604

(1975), to conclude that none of the statements of Estabrook or

Bradley needed to be suppressed because they were sufficiently

attenuated from the illegal search of Bradley's CSLI. We agree

with the judge insofar as her decision applies to Estabrook's

statements, because we are persuaded that none of his statements

was the product of the police confronting him with evidence of

21
Furthermore, we are not persuaded by Bradley's contention
that his September 27 statements must be suppressed under the
"cat-out-of-the-bag" rule. See Commonwealth v. Mahnke, 368
Mass. 662, 686 (1975), cert. denied, 425 U.S. 959 (1976) ("The
cat-out-of-the-bag line of analysis requires the exclusion of a
statement if, in giving the statement, the defendant was
motivated by the belief that, after a prior coerced statement,
his effort to withhold further information would be futile and
he had nothing to lose by repetition or amplification of the
earlier statements"). We have concluded that the bulk of
Bradley's statements in his first interview on August 2 are
admissible. In any event, Bradley's statements in the August 2
interview did not include any sort of admission of guilt or
indication that Bradley knew about the details of the shooting.
In the circumstances, there was no reason for Bradley to think,
based on his statements of August 2 that it would be "futile" to
withhold details of the shooting on September 27.
 21

Bradley's CSLI. Certain of Bradley's statements are another

matter. At times during their interviews of Bradley, and

particularly in the August 2 interview, the police officers

asked questions based directly on the tainted CSLI. The

Commonwealth argues that all of Bradley's statements, including

the responses to direct CSLI challenges, are admissible because,

like Estabrook's, they were attenuated from the initial illegal

search of the CSLI. We disagree. Even though the Commonwealth

requested Bradley's CSLI on July 25 and obtained it on July 31,

Bradley was not confronted with any question based on his CSLI

until he was interviewed on August 2 and September 27.22 Thus,

the circumstances here are materially different from cases,

relied upon by the Commonwealth, in which a defendant's

statements made hours after he was illegally arrested or after

his home was illegally searched -- and, thus, made hours after

he became aware of the arrest or the search -- were too

attenuated from the arrest to be suppressed. See Commonwealth

v. Sylvia, 380 Mass. 180, 183-185 (1980), citing Commonwealth v.

Fielding, 371 Mass. 97, 113-114 (1976). Insofar as Bradley is

concerned, his statements in direct response to confrontation

with evidence of his CSLI were made in close proximity to the

22
The Commonwealth's access to Bradley's CSLI prior to
these interviews had been without his knowledge: the § 2703(d)
order pertaining to Bradley's CSLI explicitly prohibited
disclosing it to him.
 22

illegality, and there were no intervening circumstances between

the police questions based on the CSLI and Bradley's responses

thereto. See Commonwealth v. Damiano, 444 Mass. 444, 456

(2005). The statements must be suppressed. See Commonwealth v.

Keefner, 461 Mass. 507, 518 (2012) (direct product of unlawful

search must be suppressed); Commonwealth v. Porter P., 456 Mass.

254, 275 (2010) (suppression required of juvenile's statement

about gun, made immediately after search of juvenile's room, and

juvenile's removal from room; statement was not so distant in

time from illegal search to dissipate taint). We now turn to

the CSLI itself, which was the subject of the 2013 search

warrant.

4. Search warrant for CSLI. Even though the exclusionary

rule generally bars from admission evidence "obtained during an

illegal search as fruit of the poisonous tree, evidence

initially discovered as a consequence of an unlawful search may

be admissible if later acquired independently by lawful means

untainted by the initial illegality" (quotation omitted).

Commonwealth v. DeJesus, 439 Mass. 616, 624 (2003). Accord

Commonwealth v. Frodyma, 393 Mass. 438, 441 (1984); Commonwealth

v. Benoit, 382 Mass. 210, 216-217 (1981), S.C., 389 Mass. 411

(1983). See Nix v. Williams, 467 U.S. 431, 443 (1984); United

States v. Silvestri, 787 F.2d 736, 740 (1st Cir. 1986), cert.

denied, 487 U.S. 1233 (1988). Accordingly, the appropriate
 23

inquiry here is whether, given the "primary illegality" of the

Commonwealth's access to Bradley's CSLI pursuant to a § 2703(d)

order, the 2013 search warrant for the same CSLI was secured "by

exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint." See

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392

(1920); Frodyma, supra, quoting Wong Sun, 371 U.S. at 488;

Commonwealth v. Forbes, 85 Mass. App. Ct. 168, 176 (2014). See

generally J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters

Under Massachusetts Law § 20-3[a], at 20-10 (2014). The

Commonwealth bears the burden of showing by a preponderance of

the evidence the absence of taint, i.e., that the Commonwealth

obtained information supplying the requisite probable cause

through an independent source.23 See Commonwealth v. Fredette,

396 Mass. 455, 459 (1985).

23
The defendants urge this court to require the
Commonwealth to establish an independent source by clear and
convincing evidence. They note that the clear and convincing
evidence standard governs circumstances in which the
Commonwealth seeks to establish that a witness's in-court
identification is derived from a source independent of a prior
suppressed identification. See Commonwealth v. Bell, 356 Mass.
724, 724-725 (1969). The independent source rule applied in
this case, however, is more akin to the inevitable discovery
rule, to which we have applied the preponderance of the evidence
standard. See Commonwealth v. O'Connor, 406 Mass. 112, 117
(1989) ("the Commonwealth has the burden of proving the facts
bearing on inevitability by a preponderance of the evidence").
See also Nix v. Williams, 467 U.S. 431, 444 (1984) (rationale of
independent source rule is "wholly consistent" with inevitable
discovery rule); Commonwealth v. Benoit, 382 Mass. 210, 217
 24

It is well settled that the court looks to the "four

corners of the affidavit" to determine whether a search warrant

application establishes probable cause. See, e.g., Commonwealth

v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v.

Villella, 39 Mass. App. Ct. 426, 428 (1995). The defendants

concede that on its face Frost's affidavit filed in support of

the warrant established probable cause to search Bradley’s CSLI.

They argue, however, that, contrary to the determination of the

motion judge, much of the information set forth in the affidavit

was obtained as a result of Bradley's unlawfully obtained CSLI.

Accordingly, our task in evaluating the defendants' claim is to

determine whether there are enough facts in the affidavit

traceable to sources independent of the illegally obtained CSLI

to establish probable cause for the search warrant. See

Commonwealth v. Tyree, 455 Mass. 676, 692 (2010) (evidence

obtained during search pursuant to warrant obtained after

illegal entry would be admissible if search warrant affidavit

contained information supplying probable cause obtained from

independent, untainted source). Cf. Commonwealth v. Long, 454

Mass. 542, 552-553 (2009) (under Franks v. Delaware, 430 U.S.

154 [1978], where defendant shows affidavit supporting warrant

(1981), S.C., 389 Mass. 411 (1983) (inevitable discovery rule is
extension of independent source doctrine). We decline the
defendants' invitation to apply the clear and convincing
evidence standard here.
 25

includes affirmative misstatement, judge considers whether

"affidavit purged of false material, establishes probable

cause"). Cf. also Commonwealth v. James, 620 Pa. 465, 481

(2013) (court may look beyond affidavit supporting search

warrant where objective of inquiry is "to determine whether a

fact in the affidavit would be included or stricken when

determining probable cause").

Frost's affidavit describes the following: an eyewitness

account (provided by the victim's brother) of the shooting;

police investigation into drug distribution from the victim's

home and into the ultimate supplier of these drugs;

identification of Bradley as a suspect and obtaining his call

logs through an administrative subpoena; Bradley's statement

giving Estabrook's name to police on August 2; Estabrook's

statement on August 15, regarding his treatment at an area

hospital in the early morning of the shooting, and review of his

hospital record; Estabrook's statement on September 27,

implicating himself and Bradley in the shooting; Marshall's

grand jury testimony implicating Bradley in the robbery scheme;

and forensic evidence linking Bradley to the shooting. Frost

avers in his affidavit that he "specifically avoided" including

information obtained pursuant to the § 2703(d) orders in

delineating this evidence. Our review of the record persuades

us that Frost succeeded in doing so.
 26

The following information included in the affidavit was

gathered before the Commonwealth initially obtained Bradley's

CSLI without a search warrant, and therefore by definition was

discovered independently of it. At approximately 3:55 A.M. on

July 7, the victim was shot in his home. The victim's brother,

who witnessed the shooting, told the police that three to four

masked men in their early twenties had entered the home by

kicking in a door to the kitchen; two of these intruders had

firearms. One of them, the first intruder, was a white male

with blue eyes and blonde hair. He was carrying a nine

millimeter handgun, and ordered the victim and his brother to

"get down on the ground." The victim refused, and hit the

second intruder with a tea kettle. The second intruder was a

heavyset white male dressed in a red shirt and black shorts with

blue stripes. While the victim struggled with the second

intruder, the first intruder, and perhaps another intruder as

well, shot the victim. The intruders left the scene in a small

sedan; the victim later died of a gunshot wound to the head.

When police executed a search warrant for the victim's

residence that same day, they found more than $10,000 in cash in

the victim's bedroom, more than one pound of marijuana, and what

appeared to be drug ledgers. On July 10, 2012, Cappello told

Frost and DeLucia that he lived with the victim, and that he

regularly purchased and distributed marijuana. He also said
 27

that he had purchased multiple pounds of marijuana from a

supplier in Lynn named Ashley in the past, but that he had not

done so since May, 2012, because when he last purchased

marijuana from Ashley she was accompanied by a "scary" man

introduced to him as the "thug." According to Cappello, the

"thug" had many tattoos, including one on the back of his head

that read "LYNN, MASS." Cappello believed that the "thug"

provided security to Ashley's boy friend.

Frost and DeLucia obtained Ashley's telephone number from

Cappello, and investigators learned through further

investigation that "Ashley" was Ashley Marshall, and the "thug"

was Bradley, who has a "LYNN, MASS" tattoo on the back of his

head. Bradley's race and blue eyes were consistent with the

description of the first intruder, and his probation record

revealed a history of charges involving violence and firearms.

During the police investigation, the district attorney's office

obtained through administrative subpoenas call logs associated

with the cellular telephones of Bradley, Bin, and Marshall.24

These records revealed that at various intervals between 8 P.M.

24
The defendants do not challenge the Commonwealth's
obtaining or use of these records.
 28

on July 6 and 6 A.M. on July 7, these individuals were in

regular contact with one another.25

On July 25, the Commonwealth requested and obtained

§ 2703(d) orders, and as a result received the CSLI of Bradley

and others soon thereafter. (See notes 5 & 14, supra.) The

lettered list that follows summarizes information contained in

Frost's affidavit that was obtained by the police after they had

received Bradley's CSLI, but without exploiting the tainted

CSLI.26 See Frodyma, 393 Mass. at 442.

a. Bradley's interview with Frost and DeLucia on August 2.

Bradley admitted to knowing Marshall and her boy friend, and

stated that Estabrook occasionally used his cellular telephone.

25
According to the affidavit, the telephone calls between
Bradley's telephone and Marshall's telephone included the
following: seven calls between 8:42 P.M. and 11:58 P.M. on
July 6; four calls around the time of the shooting, from 3:50
A.M. to 3:58 A.M. on July 7; and six calls between 4:34 A.M. and
5:18 A.M. Bin and Gabriel Arias also exchanged telephone calls
moments before the shooting occurred, and a call was placed from
Bradley's telephone to Bin's telephone at 3:59 A.M.
26
Although the discovery of certain information before the
illegal search of Bradley's CSLI is sufficient to establish that
information's independence from the illegality, see Commonwealth
v. Frodyma, 393 Mass. 438, 441-442 (1984), the Commonwealth also
may rely on evidence obtained after the illegal search if it can
show that the evidence was independently obtained. Holding
otherwise would contravene "the principle of the independent
source doctrine that 'the interest of society in deterring
unlawful police conduct and the public interest in having juries
receive all probative evidence of a crime are properly balanced
by putting the police in the same, not a worse, position [than]
they would have been in if no police error or misconduct had
occurred'". See id. at 443, quoting Nix, 467 U.S. at 443.
 29

b. Frost's August 15 interview of Estabrook. Estabrook

volunteered that on the night of the shooting he had dislocated

his shoulder at a party in Salem and had been treated at Salem

Hospital at 4:15 A.M. -- a time that was shortly after the

shooting had occurred. The hospital's surveillance videotape

revealed that Estabrook appeared in the hospital lobby at

approximately 5:15 A.M. on July 7, wearing a red T-shirt and

black shorts, consistent with the description of the second

intruder except for the lack of stripes on the shorts. Medical

records, obtained from the hospital through a grand jury

subpoena, indicated that Estabrook was admitted at approximately

5:20 A.M., on July 7, and that he told those treating him that

he had been "hit in the head with a tea kettle."

c. Estabrook's recorded interview with Frost and DeLucia

on September 27. He told the investigators that the robbery of

the victim was Bradley's idea, and that Bradley had lured him

into the robbery scheme with the promise that they could steal

some $40,000 from the victim. He also identified other

individuals involved in the crimes, including Bin, Arias, Steven

Touch, and Sophan Keo. Further, he stated that the group

entered the victim's home with two firearms -- a nine millimeter

handgun and a .45 caliber pistol; that while Bradley, Keo, and

Touch waited outside, he, Arias, and Bin entered the home where

Arias shot the victim in the head; that members of the group who
 30

had been wearing latex gloves discarded the gloves as they fled

the scene; and that later that morning, Estabrook, Bradley, Bin,

Touch, and Arias met and urged one another to keep the details

of the shooting a secret from the authorities.

d. The November 15, 2012, grand jury testimony of

Marshall, who had been granted immunity.27 Marshall stated that

Bradley had asked her a few weeks before the shooting for a

target to rob; that, on the evening of July 6, she suggested

that he rob Cappello and showed Bradley photographs of what she

believed to be Cappello's home; and that Bradley then left with

a group of Asian males.28 When Bradley spoke to Marshall one or

two weeks after the incident, he denied having entered the

victim's home himself, but told her that other individuals had

done so, and said words to the effect of, "What's done is done."

e. Details concerning a latex glove. On the day of the

shooting police found a latex glove on a road approximately one

quarter mile from the victim's home, and determined that Bradley

27
Bradley argues that Marshall's grand jury testimony is
tainted by the CSLI because, he contends, Marshall was given
immunity on account of the fact that her own illegally obtained
CSLI showed she was not in or near Billerica at the time of the
shooting. Bradley has no standing to challenge Marshall's grand
jury testimony, and in any event, his argument is based on pure
speculation: the record offers no basis on which to reach any
conclusion about why Marshall was granted immunity.
28
According to Frost's affidavit, Steven Touch, Bin, and
Sophan Keo are Asian males.
 31

was a potential contributor to the glove's deoxyribonucleic acid

(DNA) profile, and that the chances of the DNA of a randomly

selected Caucasian male matching the DNA profile of the glove

was 1 in 1.875 quadrillion. In addition, the glove contained

gunshot residue, indicating that the person wearing the glove

fired a gun or was near a gun at the time it was fired.

An affidavit in support of a search warrant for CSLI must

demonstrate "probable cause to believe [1] 'that a particularly

described offense has been, is being, or is about to be

committed, and [2] that [the CSLI being sought] will produce

evidence of such offense or will aid in the apprehension of a

person who the applicant has probable cause to believe has

committed, is committing, or is about to commit such offense.'"

Augustine, 467 Mass. at 256, quoting Commonwealth v. Connolly,

454 Mass. 808, 825 (2009). The information just summarized, all

contained in Frost's affidavit and all of which had a source

separate and apart from the tainted CSLI, meets this two-pronged

test. As to the first prong, certainly the affidavit supplies

probable cause to believe that the criminal offenses of murder

and home invasion, among others, were committed at the victim's

home, given that the victim's brother witnessed the incident and

Estabrook confessed to details of the crimes. With respect to

the second prong, the independently obtained facts in Frost's

affidavit (including Estabrook's September 27 statements to the
 32

police detailing his and Bradley's involvement, and Bradley's

DNA on the latex glove) provide probable cause to believe that

Bradley and Estabrook were part of the group who perpetrated the

home invasion and murder of the victim. Accordingly, the

affidavit establishes probable cause to believe that the CSLI

would "produce evidence" of these offenses by indicating whether

Bradley's cellular telephone, which also may have been used by

Estabrook, was located near the victim's home on the night of

the shooting and, therefore, whether Bradley (or Estabrook) was

in the area of the shooting when it occurred. Given that the

2013 search warrants for the CSLI were supported by probable

cause based on evidence independent of the illegally obtained

CSLI, suppression of evidence relating to Bradley's CSLI is not

warranted. See Frodyma, 393 Mass. at 440-441.

Conclusion. The order of the Superior Court is affirmed

with respect to the denial of the defendants' motions to

suppress evidence of Bradley's CSLI. The order is vacated with

respect to the denial of the defendants' motions to suppress all

statements, and the case is remanded to the Superior Court for

further proceedings consistent with this opinion.

So ordered.