Commonwealth v. Chamberlin

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SJC-11877

COMMONWEALTH vs. PETER CHAMBERLIN.

Bristol. October 6, 2015. - February 19, 2016.

Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy,
Botsford, Duffly, Lenk, & Hines, JJ.

Cellular Telephone. Subpoena. Practice, Criminal, Motion to
suppress, Subpoena, Warrant. Search and Seizure, Warrant.

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.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Merritt Schnipper for the defendant.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
Chauncey B. Wood, Matthew R. Segal, Jessie J. Rossman,
Kevin S. Prussia, & Caitlin W. Monahan for Massachusetts
Association of Criminal Defense Lawyers & another, amicus
curiae, submitted a brief.
Marguerite T. Grant, Assistant District Attorney, for
District Attorney for the Norfolk District, amicus curiae,
submitted a brief.
 2

LENK, J. In the aftermath of an attempted robbery in 2007,

where the victim was bound, threatened, and shot, the police

conducted an investigation seeking three attackers who had fled

the scene. As part of that investigation, a detective obtained

from a cellular telephone service provider certain subscriber

records for the defendant's telephone number. The information

thus obtained formed part of a later affidavit offered in

support of a search warrant that, in turn, ultimately yielded

several items of an incriminatory nature subsequently admitted

at trial. Before trial, the defendant without success moved to

suppress the telephone records and the physical evidence

obtained pursuant to the warrant. He was convicted of armed

robbery while masked, G. L. c. 265, § 17; kidnapping for

purposes of extortion, G. L. c. 265, § 26; and armed assault

with intent to murder, G. L. c. 265, § 18. Following affirmance

of his convictions by the Appeals Court, see Commonwealth v.

Chamberlin, 86 Mass. App. Ct. 705, 713 (2014), we allowed the

defendant's application for further appellate review, limited to

issues related to his cellular telephone records.

The basis for the defendant's challenge is the government's

failure to comply with G. L. c. 271, § 17B, the telephone

records demand statute, as then in effect. That statute in

essence authorized the Attorney General or a district attorney

on certain conditions to demand of common carriers (like the
 3

cellular telephone service provider here), by means of an

administrative subpoena, all pertinent records in the provider's

possession. There is little question that the means used here

to obtain the records -- a request made by a detective directly

to the provider for voluntary production forthwith of the

records -- was not in compliance with the formal process

contemplated in G. L. c. 271, § 17B. The defendant maintains

that G. L. c. 271, § 17B, establishes a baseline formal process

necessary to the government's gaining access to such records.

The government, on this view, having failed to comply with G. L.

c. 271, § 17B, is foreclosed from circumventing its requirements

and obtaining such records by informal means; the records

obtained should accordingly be suppressed, along with any

related evidence derived therefrom.

We conclude that G. L. c. 271, § 17B, as then in effect,

did not itself preclude the government from obtaining the

records at issue here. Although the means employed to obtain

the records also had to comply with the requirements of the

Federal Stored Communications Act, 18 U.S.C. §§ 2701 et seq.

(2006), we discern no error in the motion judge's determination

that those requirements were met in this case. Accordingly, the
 4

motions to suppress were correctly denied and we affirm the

convictions.1

Background and prior proceedings. On September 24, 2007,

three masked men held Antonio Alberto, the owner of a real

estate agency, at gunpoint in his office; they bound his hands

and ordered him to open a safe in the building. When Alberto

did not open the safe, the men threatened him, stating that they

knew where he lived and "had [his] wife." After a struggle,

Alberto was shot through the ear.2 He pretended to be dead until

the intruders left, then called for emergency assistance and was

taken to a hospital.

The following day, Alberto described the robbery to

Lawrence Ferreira, a detective of the Fall River police

department. Alberto said that he had recognized the voice of

one of the intruders as belonging to "Marco," a man who had

called him several times in the weeks before the robbery to

express interest in properties listed by his real estate agency,

and who had scheduled a meeting with him for the time of the

robbery. Alberto also informed Ferreira that the intruders had

threatened his family, but did not appear actually to know where

1
We acknowledge the amicus brief of the Massachusetts
Association of Criminal Defense Lawyers and the American Civil
Liberties Union, and the amicus letter of the district attorney
for the Norfolk district.
2
Notwithstanding the location of the gunshot wound, Alberto
suffered relatively minor injuries.
 5

he lived, despite claims to the contrary. Nevertheless,

following the robbery, Alberto had been receiving hang-up calls

at work and at home that "scared the hell out of" him.

Alberto reviewed the call log from his cellular telephone

with Ferreira, and they were able to identify a telephone number

for "Marco." Ferreira then searched for the number on a "police

related search engine" that provided him with the subscriber

information associated with that number. The subscriber

information included the defendant's name and address.

What followed was the conduct contested in this appeal: on

September 26, 2007, Ferreira sought the defendant's telephone

records directly from an employee in the cellular service

provider's law enforcement relations department. Rather than

causing the provider to be served with an administrative

subpoena or some other form of legal process, Ferreira gave the

employee over the telephone "a brief synopsis" of his

investigation, and promised that he would provide a subpoena

within forty-eight hours. On the night of September 26, 2007,

Ferreira sent the employee a letter that included the suspect's

phone number and a summary of the investigation.3 A few hours

3
The letter stated:

"On Wednesday September 26, 2007[,] I Detective
Lawrence D. Ferreira while assigned to the Major Crimes
Division investigated a shooting incident in the city of
Fall River[,] Ma. The victim, a white male[,] sustained a
 6

later, the employee provided Ferreira with the defendant's

subscriber information and a call log for the defendant's

cellular telephone number for the prior two weeks.4 The

following day, September 27, 2007, Ferreira asked the assistant

district attorney assigned to the case to send the provider a

single gunshot wound to the head area. This victim is
currently being treated by medical personnel.

"The suspect in this case is currently outstanding and
has been contacting the victim's family via cellular
telephone. This suspect has threatened the victim's family
with bodily harm. Through this investigation, Major Crimes
Detectives obtained the suspect[']s [tele]phone number to
be [(xxx) xxx-xxxx].

"I am respectfully requesting information pertaining
to the suspect[']s call log from September 16, 2007 to the
current date. I am also requesting subscriber information
as to the suspect[']s name and address.

"I will comply with a court [subpoena] with the
[forty-eight hour] window as required by [the cellular
service provider]. Please assist the Fall River Police
Department with the request."
4
The subscriber information that the law enforcement
relations officer sent to Ferreira included the defendant's
name, address, and birthday; his cellular, home, and work
telephone numbers; and his Social Security number. This
information corroborated the name and address that Ferreira had
already found using the search engine. The call log listed all
calls to and from the defendant's telephone number from
September 16, 2007, to September 26, 2007. The log included
approximately ten calls to Alberto's cellular telephone and
office numbers. Ferreira discussed the name, address, and call
log in his affidavit supporting an application for a warrant to
search the defendant's home. They were also used at trial as
evidence of the defendant's guilt.
 7

subpoena for the records. A grand jury subpoena apparently was

sent the same day.5

As noted, the defendant's pretrial motions to suppress the

records produced were denied after an evidentiary hearing. In

essence, the judge who heard the motions (motion judge)

determined both that G. L. c. 271, § 17B, was not the exclusive

means by which the government could obtain such records and that

the service provider's good faith, voluntary disclosure of the

records in exigent circumstances did not violate the Federal

Stored Communications Act. After a jury convicted the

defendant, the Appeals Court determined, inter alia, that the

defendant's motions to suppress properly were denied, see

Chamberlin, supra at 706-710, and we allowed the defendant's

application for limited further appellate review.

Discussion. Because the defendant does not raise any

constitutional claims,6 our inquiry is limited to whether

Ferreira was permitted to request the defendant's telephone

5
The subpoena itself was not in evidence and is not in the
record.
6
See Smith v. Maryland, 442 U.S. 735, 743-745 (1979)
(telephone subscribers have no reasonable expectation of privacy
in telephone records under Fourth Amendment to United States
Constitution); Commonwealth v. Vinnie, 428 Mass. 161, 178, cert.
denied, 525 U.S. 1007 (1998) (telephone subscribers have no
reasonable expectation of privacy in telephone records under
art. 14 of Massachusetts Declaration of Rights). But see
Commonwealth v. Augustine, 467 Mass. 230, 244-255 (2014), S.C.,
472 Mass. 448 (2015).
 8

records directly from the service provider without first

complying with at least the formal process set out in G. L.

c. 271, § 17B. "[W]hen reviewing a motion to suppress, we

accept the judge's subsidiary findings of fact absent clear

error, but independently review the judge's ultimate findings

and conclusions of law" (quotation and citation omitted).

Commonwealth v. Jewett, 471 Mass. 624, 628 (2015). In light of

its text and legislative history, we conclude that G. L. c. 271,

§ 17B, as in effect in 2007, did not preclude the government

from asking a service provider to disclose customer records

voluntarily.7 Nonetheless, under the Federal Stored

Communications Act, service providers are permitted to disclose

those records voluntarily only in certain limited circumstances.

See 18 U.S.C. § 2702(c)(1)-(6). Because we discern no error in

the trial court judge's determination that one such set of

circumstances existed here, we affirm.

7
Although some formal process appears to have been provided
in this case eventually in the form of a grand jury subpoena,
formal process generally cannot be an afterthought. See
Commonwealth v. Benoit, 382 Mass. 210, 219 (1981), S.C., 389
Mass. 441 (1983) ("We can find no authority for applying the
'inevitable discovery' rule to cure an illegal warrantless
search on the basis that it was inevitable that a warrant would
be obtained"). We assume without deciding that the grand jury
subpoena that was eventually provided was not sufficient on its
own to overcome the defendant's motion to suppress. Cf. Vinnie,
428 Mass. at 178 (telephone records obtained by means of
procedurally insufficient subpoena may be suppressed).
 9

1. Statutory overview. General Laws c. 271, § 17B, was

first enacted in 1966, apparently as part of a broader effort to

combat the use of landline telephones in illegal gaming

operations. See, e.g., 1966 House Doc. No. 3610 (summarizing

bills targeting illegal telephone gaming operations). As

originally enacted, the statute provided that the Attorney

General or a district attorney could demand customer records

from a service provider whenever there were reasonable grounds

to believe that a subscriber to that provider's service was

using the service for an unlawful purpose. G. L. c. 271, § 17B,

as inserted by St. 1966, c. 352. By allowing the government to

compel service providers to disclose customer records in the

early stages of an investigation even when there was not yet

probable cause for a warrant, the statute thus supplied "an

investigatory tool, not as invasive as a house search or a

wiretap, but nevertheless probing at the edges of privacy."

Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 728 (1997).

As we emphasized, "the statute [did] not provide the district

attorney with a free hand to issue routine administrative

subpoenas." Commonwealth v. Vinnie, 428 Mass. 161, 178, cert.

denied, 525 U.S. 1007 (1998). If the Attorney General or a

district attorney had "no reasonable grounds for belief that the

target was using the telephone for an unlawful purpose," the

telephone records could be suppressed. Id. General Laws
 10

c. 271, § 17B, remained essentially unchanged until 2008. See

St. 2008, c. 205, § 3.8

Twenty years after the Legislature enacted G. L. c. 271,

§ 17B, in 1966, the United States Congress enacted the Federal

Stored Communications Act. See Pub. L. 99-508, 100 Stat. 1860

(1986). The Federal Stored Communications Act aims "to protect

the privacy of users of electronic communications" during

government investigations (citation omitted). Commonwealth v.

Augustine, 467 Mass. 230, 235 (2014). It achieves that aim, as

relevant here, by exposing to civil liability service providers

that improperly disclose customer records to the government.

See 18 U.S.C. §§ 2707-2708.9 Service providers are permitted and

indeed required to disclose customer records to a "governmental

entity" when that entity has complied with one of the limited

number of formal processes for making a demand, such as a

warrant, a court order, or an administrative subpoena, as set

forth in the act.10 See generally 18 U.S.C. § 2703(c).

8
The two other amendments to G. L. c. 271, § 17B, were
minor changes in wording that have no bearing on the outcome of
this case. See St. 1997, c. 164, § 292; St. 2008, c. 169, § 80.
9
See Kerr, A User's Guide to the Stored Communications Act,
and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev.
1208, 1241-1242 (2004) (noting shortcomings of civil liability
enforcement scheme).
10
A "governmental entity" is defined as "a department or
agency of the United States or any State or political
subdivision thereof." 18 U.S.C. § 2711(4) (2006).
 11

Providers are permitted to disclose those records voluntarily to

the government, however, only in limited circumstances. See 18

U.S.C. § 2702(c)(1)-(6). One such circumstance is when "the

provider, in good faith, believes that an emergency involving

danger of death or serious physical injury to any person

requires disclosure without delay of information relating to the

emergency." 18 U.S.C. § 2702(c)(4).

Hence, in 2007, when the records at issue in this case were

requested, the government was required to comply with the

applicable provisions of the Federal Stored Communications Act.11

See Telecommunications Regulatory Bd. of P.R. v. CTIA-Wireless

Ass'n, 752 F.3d 60, 68 (1st Cir. 2014) (Puerto Rico statute

requiring service providers to disclose subscriber information

without formal demand preempted by 18 U.S.C. § 2702[c]).

Nevertheless, the Federal Stored Communications Act creates only

a minimum set of privacy protections that States are free to

supplement. See Lane v. CBS Broadcasting Inc., 612 F.Supp.2d

623, 637 (E.D. Pa. 2009) ("Congress expressly authorized states

11
The defendant does not dispute that, had the prosecutor
rather than Ferreira issued to the service provider a timely
administrative subpoena, that demand and the same documents as
were provided here would have been compliant with both G. L.
c. 271, § 17B, and the Federal Stored Communications Act, 18
U.S.C. §§ 2701, et seq. (2006). Given what Alberto told
Ferreira, it is not contested that the requisite reasonable
grounds existed for belief that the defendant's telephone number
was being used for an unlawful purpose.
 12

to legislate in this field").12 Thus, regardless of whether a

service provider is permitted to disclose a customer's records

voluntarily under the Federal Stored Communications Act, State

law may prohibit the government from informally requesting such

disclosure. The question before us is whether G. L. c. 271,

§ 17B, as in effect in 2007, prohibited the government from

making such an informal request.

2. Minimum formal process under G. L. c. 271, § 17B. The

defendant contends that G. L. c. 271, § 17B, as enacted in 1966

and in effect in 2007 when the records at issue in this case

were obtained, established a minimum formal process that the

government must comply with in all circumstances. To support

this view, he argues that St. 2008, c. 205, § 3, amending G. L.

c. 271, § 17B, should guide our understanding of the statute as

originally enacted.

"A fundamental tenet of statutory interpretation is that

statutory language should be given effect consistent with its

plain meaning and in light of the aim of the Legislature unless

to do so would achieve an illogical result." Custody of

Victoria, 473 Mass. 64, 73 (2015), quoting Sebago v. Boston Cab

Dispatch, Inc., 471 Mass. 321, 339 (2015). Neither the plain

12
See also U.S. Internet Service Provider Association,
Electronic Evidence Compliance -- A Guide for Internet Service
Providers, 18 Berkeley Tech. L.J. 945, 983 (2003) ("since the
original wiretap law in 1968, it has been clear that a state may
have stricter [but not more lenient] requirements").
 13

text of G. L. c. 271, § 17B, nor the context of its enactment

supports the defendant's construction of the statute.

We consider the language of the statute in effect when the

records at issue in this case were obtained. See Commonwealth

v. Bradley, 466 Mass. 551, 560-561 (2013). The statute

provided, in relevant part:

"Whenever the [A]ttorney [G]eneral 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 [A]ttorney [G]eneral or
district attorney all the records so demanded" (emphasis
supplied). G. L. c. 271, § 17B, as enacted by St. 1966,
c. 352.

On its face, G. L. c. 271, § 17B, set out an "investigatory

tool" by which the government "may" obtain telephone records

during an investigation. See Feodoroff, 43 Mass. App. Ct. at

728. The use of the word "may" in a statute generally

"reflect[s] the Legislature's intent to grant discretion or

permission to make a finding or authorize an act." Commonwealth

v. Dalton, 467 Mass. 555, 558 (2014). By using the word "may"

here, the Legislature indicated no more than that the government

may, but need not, obtain telephone records by using this tool.

The defendant would read the Legislature's silence as to

any other means available to the government as limiting the

government only to formal processes such as a search warrant or
 14

a grand jury subpoena. However, we discern nothing in the

language of the statute that imposed such constraints, and we

must "not read into the statute a provision which the

Legislature did not see fit to put there" (quotation and

citation omitted). See Chin v. Merriot, 470 Mass. 527, 537

(2015).13 That the Legislature supplied prosecutors with a

statutory means to compel disclosure accordingly has no bearing

on whether the government could also seek voluntary compliance

from telephone companies in turning over customer business

records.14

The legislative history of G. L. c. 271, § 17B, is

consistent with this construction of the statutory text. It

contains no suggestion that the Legislature intended to prevent

the government from asking service providers to disclose

customer records voluntarily. When G. L. c. 271, § 17B, was

originally enacted, see St. 1966, c. 352, the law was just one

13
See also Charbonneau v. Presiding Justice of the Holyoke
Div. of the Dist. Court Dep't, 473 Mass. 515, 519 (2016),
quoting Sellers's Case, 452 Mass. 804, 810 (2008) (interpreting
statutory silence in context of legislative purpose).
14
Prior decisions of this court have recognized the
possibility that extrajudicial process might be available to
obtain "investigative materials." See Commonwealth v. Odgren,
455 Mass. 171, 186 n.26 (2009), quoting Commonwealth v.
Mitchell, 444 Mass. 786, 791-792 n.12 (2005) ("[a]ny informal
extrajudicial process that exists . . . by which a party
involved in litigation may successfully obtain investigative
materials that may be of help in preparing for trial, or may be
useful during trial, is beyond the scope of this case").
 15

of several contemporaneous bills that sought to address the

possibility of collusion between landline telephone service

providers and illegal bookmaking operations. See, e.g., 1966

House Doc. No. 1494 (creating special commission to investigate

alleged aid to bookmakers by service providers); 1966 House Doc.

No. 1497 (prohibiting service providers from providing service

to illegal gaming operations); 1966 House Doc. No. 3610

(summarizing bills aimed at service provider collusion with

illegal bookmakers). The "investigatory tool" that the

Legislature created in G. L. c. 271, § 17B, thus apparently

provided a means to combat illegal bookmaking when voluntary

disclosure by a telephone service provider was not forthcoming

or otherwise possible. Notwithstanding the Federal Stored

Communications Act's later concern about voluntary disclosure of

telephone customer records by service providers, there is no

evidence that the Legislature in 1966 had in mind any constraint

on voluntary disclosure of this sort.

Recognizing the law's silence with respect to voluntary

disclosure, the defendant urges us to understand the version of

G. L. c. 271, § 17B, in effect when the records at issue in this

case were obtained in light of St. 2008, c. 205, § 3 (2008

amendment). However, "the views of a subsequent [Legislature]

form a hazardous basis for inferring the intent of an earlier

one." Mass. Comm'n Against Discrimination v. Liberty Mut. Ins.
 16

Co., 371 Mass. 186, 194 (1976), quoting United States v. Price,

361 U.S. 304, 313 (1960). Although the Legislature "may amend a

statute simply to clarify its meaning," amendments typically

presume a change in the law. See Cook v. Patient Edu, LLC, 465

Mass. 548, 554 (2013), quoting Boyle v. Weiss, 461 Mass. 519,

525 (2012).

The 2008 amendment updated the 1966 statute that was

originally enacted to combat illegal telephone gaming operations

to take into account electronic communications services that

later came into widespread use.15 In addition, it substantively

altered the standard that the Attorney General or a district

attorney must meet in order to compel service providers to

15
The 2008 amendment provided, in relevant part:

"Except as otherwise prohibited under [18 U.S.C.
§ 2703], whenever the [A]ttorney [G]eneral or a district
attorney has reasonable grounds to believe that records in
the possession of: (i) a common carrier . . . . ; or (ii) a
provider of electronic communication service as defined in
[18 U.S.C. § 2710(15)]; or (iii) a provider of remote
computing service as defined in [18 U.S.C. § 2711], are
relevant and material to an ongoing criminal investigation,
the [A]ttorney [G]eneral or district attorney may issue an
administrative subpoena demanding all such records in the
possession of such common carrier or service, and such
records shall be delivered to the [A]ttorney [G]eneral or
district attorney within [fourteen] days of receipt of the
subpoena. . . . Nothing in this section shall limit the
right of the [A]ttorney [G]eneral or a district attorney to
otherwise obtain records from such a common carrier or
service pursuant to a search warrant, a court order or a
grand jury or trial subpoena."

St. 2008, c. 205, § 3.
 17

disclose customer records.16 These changes were more than simple

clarifications. Accordingly, neither the text of the 2008

amendment nor its legislative history affects our construction

of the statute in effect in 2007.

We leave for another day whether G. L. c. 271, § 17B, as

amended by St. 2008, c. 205, § 3, precludes the government from

asking a service provider to turn over customer records

voluntarily. As noted above, the Legislature is free to

supplement the statutory baseline provided in the Federal Stored

Communications Act with additional privacy protections. Neither

the text nor the legislative history of G. L. c. 271, § 17B, in

effect in 2007, however, supports the conclusion that the

Legislature had already done so before the records at issue in

this case were obtained.

3. Compliance with Federal Stored Communications Act.

Although the government was not prohibited from asking the

service provider to disclose the defendant's records, the

service provider was only free to provide that information to

the government if one of the statutory exceptions set out in the

16
Where previously prosecutors had needed "reasonable
grounds for belief that the service of a common carrier . . . is
being or may be used for an unlawful purpose" in order to demand
customer records, see G. L. c. 271, § 17B, as amended through
St. 1997, c. 164, § 292, after the 2008 amendment they only need
reasonable grounds for belief that those records are "relevant
and material to an ongoing criminal investigation." St. 2008,
c. 205, § 3.
 18

Federal Stored Communications Act was met. See 18 U.S.C.

§ 2702(c)(1), (4). The motion judge considered specifically

whether the service provider's disclosure in this case satisfied

the exigent circumstances exception, 18 U.S.C. § 2702(c)(4).

Under that exception, a service provider may disclose customer

records voluntarily to the government if the service provider

believes in good faith that an "emergency involving danger of

death or serious physical injury . . . requires disclosure

without delay of information relating to the emergency." 18

U.S.C. § 2702(c)(4).

We defer to the findings of the motion judge unless they

were clearly erroneous. See Jewett, 471 Mass. at 628. The

judge found that the service provider produced the defendant's

records to the government voluntarily and in good faith, and did

not violate the Federal Stored Communications Act. The judge

further found that exigent circumstances existed at the time the

information was sought.

The record provides ample support for the judge's findings.

Ferreira provided an employee in the service provider's law

enforcement relations department with "a brief synopsis" of his

investigation over the telephone, sent the employee a letter

stating that the defendant, a customer of the service provider,

was a suspect in a shooting incident and had threatened the

victim's family, and promised that he would provide a subpoena
 19

within forty-eight hours. Although Ferreira's letter apparently

misstated some of the facts of the investigation,17 the service

provider had a good faith belief that exigent circumstances

justified disclosing the defendant's records to Ferreira, and

disclosed those records voluntarily. There was no error.

Judgments affirmed.

17
For example, the letter stated that the defendant had
"been contacting the victim's family via cellular telephone."
There is no indication in the record that the hang-up calls to
the defendant's home were made by a cellular telephone.
Nonetheless, the judge who heard the motions to suppress
determined that the police acted reasonably at the time they
requested the defendant's records. Cf. 18 U.S.C. §§ 2707-2708
(providing civil remedy for knowing or intentional violation of
Federal Stored Communications Act).