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16-P-1542 Appeals Court
COMMONWEALTH vs. STANLEY FREDERICQ.1
No. 16-P-1542.
Plymouth. December 1, 2017. - March 12, 2018.
Present: Agnes, Blake, & McDonough, JJ.
Cellular Telephone. Controlled Substances. Constitutional Law,
Search and seizure, Standing, Privacy, Probable cause.
Search and Seizure, Consent, Expectation of privacy, Fruits
of illegal search, Multiple occupancy building, Probable
cause, Warrant. Privacy. Probable Cause. Consent.
Evidence, Result of illegal search, Business record.
Practice, Criminal, Motion to suppress, Standing, Warrant.
Indictments found and returned in the Superior Court
Department on August 22, 2008.
A pretrial motion to suppress evidence was heard by Thomas
J. McGuire, Jr., J.
An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
1 In conformity with our practice, we spell the defendant's
name as it appears in the indictment.
2
Nathaniel Kennedy, Assistant District Attorney, for the
Commonwealth.
Jason Benzaken for the defendant.
BLAKE, J. As a result of information gathered in
connection with a homicide, an interstate narcotics
investigation began, which led police to discover cocaine and
cash at 220-222 Howard Street in the city of Brockton.2 This is
an interlocutory appeal by the Commonwealth from the order
allowing the defendant's motion to suppress evidence obtained as
a result of a warrantless search. We reverse in part and affirm
in part.
We set forth detailed facts and the procedural history of
this case as they are necessary to the analysis. The defendant
was indicted for trafficking in two hundred grams or more of
cocaine. He has twice filed motions to suppress. In his first
motion, the defendant argued that the search at 220 Howard
Street was conducted without a warrant and without his consent.
After a two-day evidentiary hearing, the first motion judge
denied the motion on grounds that the defendant consented to the
search. In the defendant's second, or so-called "amended"
motion to suppress, he argued that the evidence seized from 220
2 The building at this location consists of a multifamily
dwelling and has an address of 220-222 Howard Street, with the
numbers denoting two different doors at the front of the
residence. Because the witnesses primarily referred to the
building as 220 Howard Street, we will do so here.
3
Howard Street must be suppressed as the tainted fruit of the
unlawfully obtained cellular site location information (CSLI).3
The same judge denied the motion after a nonevidentiary hearing
and the defendant sought interlocutory review.
A single justice of the Supreme Judicial Court, while
retaining jurisdiction of the case, ordered an evidentiary
hearing on the motion. After the evidentiary hearing, a second
motion judge denied the motion, concluding that the defendant
lacked standing as he had no reasonable expectation of privacy
in the cellular telephone. Following receipt of the trial court
decision and the issuance of several appellate decisions
involving the police use of CSLI, the single justice again
remanded the case to for further consideration in light of
Commonwealth v. Augustine, 467 Mass. 230 (2014), and
Commonwealth v. Moody, 466 Mass. 196 (2013), as well as Riley v.
California, 134 S. Ct. 2473 (2014).
Thereafter, a third motion judge held a hearing at which no
additional evidence was presented, but the transcripts from the
3 CSLI "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) . . . ; 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.'"
Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2 (2015),
quoting from Commonwealth v. Augustine, 467 Mass. 230, 238
(2014), S.C., 470 Mass. 837 (2015). It also identifies the
subscriber of the cellular telephone number.
4
previous hearings were submitted together with additional briefs
from the parties. The third motion judge concluded that the
defendant had standing. He also reasoned that because the
police seized the cocaine "by exploiting the unlawful electronic
tracking through CSLI," and because "[t]he search and seizure
was not attenuated from the" illegal conduct, the motion must be
allowed. The Commonwealth's application for leave to appeal
from that order was granted and the case was entered in this
court.
Background. The findings of fact made by each of the three
motion judges are consistent and are not in dispute on appeal.
We summarize the findings relevant to the issues raised in this
appeal, supplemented where necessary with undisputed evidence
that was implicitly credited by the particular judge ruling on
the motion. See Commonwealth v. Jones-Pannell, 472 Mass. 429,
431 (2015).
On June 8, 2008, there was a shooting that resulted in the
death of Bensney Toussaint. A few days later, on June 10, 2008,
police officers obtained an arrest warrant for Josener Dorisca.
Dorisca, for all relevant time periods relating to this matter,
was a fugitive from justice. On June 26, 2008, an indictment
was returned against Dorisca, charging him with murder.
During the homicide investigation, Detective Kenneth
Williams of the Brockton police department identified Cassio
5
Vertil4 as Dorisca's best friend. Detective Williams spoke to
Cassio; he was not cooperative, but he gave the detective his
cellular telephone number. Detective Williams obtained the
cellular telephone records for the number provided by Cassio,
which showed that "Bill Desops" was the subscriber. The records
also showed that telephone calls were made within moments of the
shooting to a cellular telephone number that police identified
as belonging to Dorisca. Thereafter, Detective Williams spoke
to Cassio again, but was unsuccessful in eliciting information
about the nature of those telephone calls or Dorisca's location.
During the interview, Detective Williams recognized Cassio from
a videotape that he had seen.5
As the second judge found, that videotape, recorded several
months before the homicide, captured Cassio, "a person named
Rinaldi Lauradin, and others flashing large sums of money and
discussing the movement of drugs from Florida to Massachusetts."
A gun could also be seen in the footage. Detective Williams
testified that "the tape clearly displays [Cassio] and other
members engaged in what seems to be very lucrative drug
dealings. . . . And bragging and boasting of going to Florida
4 As Cassio Vertil shares a surname with another witness,
his brother, Kennell Vertil, see infra, we use their first names
to avoid confusion.
5 The videotape was admitted in evidence at the suppression
hearing.
6
to obtain more drugs. And they're flashing tens of thousands of
dollars on this tape."
About one month after the homicide, Detective Williams
spoke to Cassio's brother, Kennell. Kennell reported that
Cassio was now using a different cellular telephone number, and
that Cassio was on his way to New York with "Paco" and
"Paquito." Further investigation revealed that Paco was the
defendant and Paquito was Stevenson Allonce. After speaking
with Kennell, the Commonwealth sought and obtained an order
pursuant to 18 U.S.C. § 2703(d) (2006) requiring the cellular
telephone carrier to provide the records and the so-called
"running location" of that different telephone, going forward,
to assist in finding Dorisca and to investigate Cassio.6 The
carrier was required to provide Detective Williams with the
cellular telephone's location every fifteen minutes
prospectively. The carrier "pinged" the telephone at fifteen-
minute intervals, an action that is not routinely undertaken by
6 The motion, the affidavit, and the § 2703(d) order were
admitted as an exhibit at the hearing. The second motion judge
referred in some detail to the facts recited by Detective
Williams; however, neither party has included a copy of the
exhibit in the record appendix for us to determine whether the
judge properly recited the facts therein. Accordingly, we
exercised our discretion and obtained the exhibit sua sponte.
See Mass.R.A.P. 9(b), as amended, 378 Mass. 935 (1979);
Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). Cf.
Iverson v. Board of Appeals of Dedham, 14 Mass. App. Ct. 951,
951-952 (1982).
7
cellular telephone carriers.7 The defense expert explained that
the "ping" sends a communication signal to the cellular
telephone and requires the cellular telephone to communicate
with the nearby cell tower. See generally Commonwealth v.
Augustine, 467 Mass. at 237-238. The carrier can identify the
location of the cell tower by coordinates of longitude and
latitude. The carrier then sends, in this case to Detective
Williams, this information and the maximum distance the cellular
telephone can be from that cell tower, based on the strength and
location of nearby cell towers.
The CSLI records showed that the defendant, not Desops, was
the subscriber of the cellular telephone that Cassio was then
using. The billing address on those records was 220-222 Howard
Street, apartment 2. The records also reflected that the
defendant had yet another cellular telephone number.
State police Trooper Eric Telford assisted in the homicide
investigation. He knocked on doors, spoke to family members,
7 A cellular telephone will regularly send a signal to
nearby cell towers or cell sites to insure that service is
maintained. Commonwealth v. Augustine, 467 Mass. at 237-240.
There is a second type of "historical CSLI" identified in
Augustine as "registration CSLI" but that type was neither at
issue in Augustine, nor is it at issue in this case. Id. at 238
n.18. Registration CSLI is created when cellular telephones
"regularly identify themselves to the nearest cell site with the
strongest signal, through a process known as 'registration.'
Registration is automatic, occurring every seven seconds."
Ibid.
8
and tried to obtain information about individuals close to
Dorisca. On the evening of July 2, 2008, Trooper Telford was
contacted by a confidential informant. The informant told
Trooper Telford that Cassio was headed to Florida in a brown
Toyota RAV4 sport utility vehicle (SUV) rental to pick up a
large quantity of narcotics. As a result, Trooper Telford
thought that Dorisca may intend to hide out in Florida.
From July 2 to July 8, 2008, Detective Williams confirmed,
through CSLI data, that Cassio, Allonce, and the defendant made
a trip to Florida. The CSLI data also showed that the cellular
telephone was traveling south toward Florida and came to a stop
in Sunrise, Florida. When the signal was stationary in Sunrise,
Detective Williams contacted the local police. Using the CSLI
data, the Sunrise police found a brown Toyota, with a
Massachusetts registration, and through additional surveillance
and communication with Massachusetts police, identified Cassio,
Allonce, and the defendant as the three individuals using the
Toyota. On July 7, 2008, the CSLI data indicated that the
cellular telephone was moving north. When the telephone was
shut off for a period of time during the trip, Detective
Williams could not track it.
On July 8, 2008, Detective Williams again began receiving
CSLI information as the Toyota approached the Massachusetts
9
border. He alerted the Brockton and the Randolph8 police that
the Toyota was returning to the area. At 2:15 P.M., Detective
Williams was notified that the telephone pinged at or near
Howard Street. Trooper Telford and State police Trooper Francis
Walls, together with other officers, arrived at 220 Howard
Street shortly after this ping was received.
Trooper Telford observed Cassio standing in front of the
Howard Street building with an individual who matched Dorisca's
description. He watched Cassio and the other individual get
into the Toyota and drive away. Troopers Telford and Walls
followed. When the driver made a left turn without using a
directional signal, the troopers stopped the Toyota. The driver
was identified as Cassio and the passenger was identified as
Allonce, not Dorisca. The two stated that the defendant had
been traveling with them, that they had just come from his
house, and that they were going to the Brockton police
department to speak to Detective Williams about the homicide.
The Toyota was filled with clothing, luggage, a pillow, a
cooler, and other items. Trooper Telford had the two occupants
step out of the Toyota so they could check for Dorisca. When
Trooper Telford confirmed Dorisca was not hiding in the Toyota,
he permitted Cassio and Allonce to continue on their way. Ping
8 Cassio lived in Randolph.
10
data that Detective Williams received showed that the cellular
telephone came to rest near the Brockton police station at about
3:45 P.M. on July 8, 2008.
Troopers Telford and Walls returned to 220 Howard Street to
look for Dorisca, to find and speak to the defendant, and to
investigate the possible drug connection to the property.
Trooper Telford directed other officers to that location to
assist him. When Troopers Telford, Walls, and Jackson arrived,
they approached a man on the front porch. As Trooper Walls
began to speak to him, a female and a male came out of the
first-floor apartment. While Trooper Telford walked around to
the rear of the house, Trooper Walls explained to the couple
that the police were looking for a homicide suspect and that
they thought that he might be inside their apartment. The
couple agreed to allow both troopers inside and walked them
through every room of their apartment. The troopers were taken
through the back door to the exit, which opened into a common
rear entry area. There was a door to the outside from that
common area, as well as stairs to the second and third floors.
Troopers Walls and Jackson used the rear stairs to go to
the second-floor apartment, where the occupant of that apartment
met them in the hallway. They repeated their request and were
again granted permission to look for Dorisca in that apartment.
Finding nothing, both troopers continued to the attic. At the
11
top of the stairs there was a large open landing area, without
any door. Off of the landing area, there were four doors, which
led to two bedrooms, a storage area, and a crawl space. The
only way to secure the attic would be to lock the entry door
located in the common area on the first floor. Three of the
four doors in the attic were open and the troopers looked in
each space. A television was in the front bedroom, and junk was
piled in the storage room. There was no bathroom or shower on
this floor.
The troopers knocked on the closed, fourth door several
times before the defendant opened it and came into the landing
area. They asked the defendant his name and, when he told them,
they asked if he had a nickname; he said it was Paco. Because
Trooper Walls knew Paco was a name related to the drug
investigation Trooper Telford was working on, he contacted
Trooper Telford and asked him to come up to the attic. In the
meantime, Troopers Jackson and Walls explained that they were
looking for Dorisca. They obtained the defendant's verbal
permission to do a quick walk-through of the defendant's room,
which turned up nothing significant. The defendant said he
lived there and was paying $400 in rent per month.
Trooper Telford, who had been outside, walked through the
rear entry door to the common hallway and came up the back
stairs to the attic. Trooper Telford read the defendant his
12
Miranda rights and explained to him why the troopers were there.
The defendant said that he had gone to Florida with his friends
to attend a family reunion for Allonce. The defendant denied
having any drugs in his room and signed a consent to search
form.
During the subsequent search, police found about $2,200 in
a cupboard in the defendant's bedroom. After a narcotics-
trained dog arrived in the attic, police located a pillowcase in
the crawl space that contained about two kilograms of what
police believed to be cocaine. That pillowcase matched a
pillowcase found in the Toyota. The defendant denied any
knowledge of the contraband.
Based on this evidence, the third motion judge ruled that
the defendant had standing to challenge the search because the
tracking continued while the police searched 220 Howard Street.
The judge also determined that the defendant's reasonable
expectation of privacy under art. 14 of the Massachusetts
Declaration of Rights was violated where the police tracked his
"movements for seven days through the collection of CSLI
obtained from a cell phone registered to him but used by
[another]." With respect to the search, the judge agreed with
the Commonwealth that no warrant was required to obtain
subscriber information from the carrier. However, the judge
determined that under Commonwealth v. Augustine, 467 Mass. at
13
257, the failure of the Commonwealth to acquire a warrant for
the CSLI rendered that evidence illegally obtained. The judge
found that because the police learned, only through the unlawful
CSLI, that the cocaine was likely brought to Howard Street,
their seizure of the cocaine was the result of "exploiting the
unlawful electronic tracking through CSLI." The judge further
found that "[t]he search and seizure was not attenuated" from
the illegality and thus "[t]he evidence obtained during that
search must therefore be suppressed."
Discussion. In reviewing a judge's ruling on a motion to
suppress, "we accept the judge's subsidiary findings of fact
absent clear error 'but conduct an independent review of his
ultimate findings and conclusions of law.'" Commonwealth v.
Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002).
1. Standing. On appeal, the Commonwealth does not dispute
that the CSLI was illegally obtained. Rather, the Commonwealth
argues that the defendant does not have standing to challenge
the search of the cellular telephone.
Where a defendant claims the search of the cellular
telephone violated his rights under art. 14 and the Fourth and
Fourteenth Amendments to the United States Constitution, we must
determine initially whether the defendant has "standing to
contest the search and then whether [he] had an expectation of
14
privacy in the area searched." Commonwealth v. Williams, 453
Mass. 203, 207-208 (2009). "Although the two concepts are
interrelated, we consider them separately. . . . A defendant
has standing either if [he] has a possessory interest in the
place searched or in the property seized or if [he] was present
when the search occurred." Id. at 208. Here, regardless of
whether the defendant allowed Cassio to use the cellular
telephone, because the defendant was the registered owner of the
telephone and the billing address was his, he had a possessory
interest in the telephone sufficient to grant him automatic
standing. He also had actual standing because his movements
were being tracked when the telephone was pinged by the carrier
during the trip he took with Cassio to Florida.
There also was a search in the constitutional sense. The
defendant has a reasonable expectation not to be subjected to
extended CSLI tracking by the government, even if he is merely a
passenger in a vehicle controlled by the primary suspect. The
government's monitoring of the defendant's movements -- for more
than six days -- is sufficient to establish that he has standing
to challenge the validity of the search of the cellular
telephone. Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013).9
9 The second motion judge, who denied the suppression motion
on grounds that the defendant lacked standing because he had no
reasonable expectation of privacy in the cellular telephone, did
not have the benefit of Rousseau which was subsequently decided.
15
2. Exclusionary rule. The Commonwealth argues
alternatively, that the CSLI information was so attenuated from
the seizure of the inculpatory evidence that suppression is not
required. Specifically, the Commonwealth argues that the
evidence subsequently seized from the Howard Street attic ought
not to be excluded because it is too attenuated from the
illegality. The Commonwealth's concession is based on
Augustine, where the court held that government-compelled
production of CSLI data by cellular telephone carriers is a
search in the constitutional sense, requiring a warrant under
art. 14. 467 Mass. at 252-255.
We pause to note that the CSLI ordered to be produced in
Augustine involved historical CSLI, which was generated from
telephone calls already made to or from the cellular telephone
in question. The related records, which show the cell towers
from which connection to telephone calls were made, and through
which the locus of the cellular telephone's location can be
pinpointed, are maintained by the carrier in the ordinary course
of business. Id. at 239-240 & n.24. The § 2703(d) order
obtained in this case required the carrier to create CSLI that
was not routinely created or retained. That is, the carrier was
Rousseau addressed, for the first time, privacy expectations of
a passenger in a motor vehicle when the driver is being
monitored by the government.
16
required to prospectively ping a cellular telephone every
fifteen minutes for more than six days, solely for the purpose
of finding and providing location information for the police.
There is no question that under the rationale of Augustine, a
warrant was also required in this case, where the carrier not
only was compelled to turn over CSLI data, but to create
particular prospective CSLI that it otherwise would not have
created. See id. at 240 n.24 ("The privacy interest raised by
historical CSLI may be the same as prospective, or 'real-time,'
CSLI").
Because a warrant for the particular evidence from the
cellular telephone registered to the defendant was required but
not obtained, the "crucial question" regarding whether the
evidence must be suppressed as tainted fruit is whether it came
"by exploitation of . . . [the illegal search] or instead by
means sufficiently distinguishable to be purged of the primary
taint." Commonwealth v. Estabrook, 472 Mass. 852, 860 (2015)
(citation omitted). See Commonwealth v. Bradshaw, 385 Mass.
244, 258 (1982), citing Wong Sun v. United States, 371 U.S. 471,
488 (1963). Relying on these principles, we consider the
evidence at issue.
In this case, the troopers first spoke to the defendant
when he responded to their repeated knocking by opening the only
17
closed door in the attic and entering the landing area.10 After
the defendant gave permission to Troopers Walls and Jackson to
do a quick walk-through of his room for Dorisca, Trooper Telford
arrived and spoke to the defendant. He read the defendant his
Miranda rights and then "explained to him that [they] were there
searching for [Dorisca], who was a homicide suspect, and that
[they] also had information that he, and Mr. Azario [sic], and
the other defendant there, Allonce, had just gone down to
Florida and purchased a large amount of narcotics and they were
possibly storing it there." This statement was based directly
on the tainted CSLI and while it was intertwined with other
10Contrary to the defendant's claim on appeal, the arrival
of the police at 220 Howard Street did not result from
exploiting the CSLI. Troopers Telford and Walls had stopped the
Toyota when it failed to signal before turning. Regardless of
whether the police were in a position to observe the traffic
infraction because of the illegally obtained CSLI, "the stop is
valid 'so long as the police are doing no more than they are
legally permitted and objectively authorized to do.'"
Commonwealth v. Santana, 420 Mass. 205, 209 (1995) (citation
omitted). See Commonwealth v. Buckley, 478 Mass. 861, 866-867
(2018) (Examining "police's underlying motives for conducting
the stop" would "require that courts discern not only whether
the police initially possessed some underlying motive that
failed to align with the legal justification for their actions,
but also whether the police were acting on that 'improper'
motive"). Here, the police observed a traffic infraction and
were permitted to stop the vehicle. See Commonwealth v. Bacon,
381 Mass. 642, 644 (1980).
The police established a sound basis to return to 220
Howard Street to speak with the defendant once they identified
Cassio and Allonce in the Toyota, and Cassio confirmed the
information independently acquired from the CSLI.
18
independent evidence, the inquiry exploited the improperly
obtained CSLI. Commonwealth v. Estabrook, supra at 864-865.
Specifically, the police knew from a somewhat dated
videotape that existed prior to the CSLI that Cassio had
traveled to Florida to buy large amounts of narcotics. In
addition, they had statements from Kennell that Cassio was
traveling to New York with the defendant and Allonce. They also
had statements from an informant (who Trooper Telford had not
previously used) that Cassio (without reference to any other
individuals) was going to Florida to buy narcotics in a brown
Toyota. They also knew from Kennell that Cassio was using a
cellular telephone number that was registered to the defendant
and was billed to 220 Howard Street. The CSLI, however,
provided the only direct and reliable evidence that the
defendant had "just" participated in a trip to Florida. Indeed,
Massachusetts authorities used the CSLI to direct police in
Sunrise, Florida, to the location where the cellular telephone
came to rest, and from where, through surveillance,
identification details from the Toyota and its occupants were
relayed back.
The Commonwealth argues that the defendant's statements and
the subsequent discovery of the evidence are admissible because
they were attenuated from the initial illegal search of the
CSLI. We disagree for the reasons stated in Commonwealth v.
19
Estabrook, supra. The defendant was not confronted with any
question based on his CSLI until he spoke with Trooper Telford,
after the defendant answered the knock on his attic room door.
Indeed, when Trooper Telford confronted the defendant with
evidence of this tainted CSLI, including that the information
that the defendant had just returned from Florida, there is no
evidence that the defendant was aware that the police knew he
had traveled to Florida. Insofar as the defendant is concerned,
his statement and his consent to search, given "in direct
response to confrontation with evidence of his CSLI[,] were made
in close proximity to the illegality, and there were no
intervening circumstances between the police questions based on
the CSLI and [the defendant's] responses thereto."11 Ibid. The
defendant's statements therefore must be suppressed. "[T]he
connection between the illegality and the granting of consent
was 'sufficiently intimate' that the consent cannot be found to
have been so attenuated from the [exploitation of the CSLI] as
to be purged from its taint." Commonwealth v. Gentile, 466
Mass. 817, 831 (2014).
11Although the third motion judge did not specifically
reference the defendant's statements when he ordered suppression
of the evidence obtained during the search, he concluded by
allowing "[t]he defendant's Amended Motion to Suppress Evidence
II," which included a request to suppress the defendant's
statements.
20
As for the cash found in the cupboard in the defendant's
bedroom, there is certainly some question that the defendant was
not being truthful when he said the room was his home,
particularly given the lack of a bathroom or a shower.
Nonetheless, the defendant kept it locked and he was inside when
the police arrived. For the reasons discussed supra, we
conclude that the defendant's consent to search was tainted by
the police exploitation of the illegally obtained CSLI and
therefore, his statement to police before the search and the
cash found in his bedroom must be suppressed.
With respect to the search of the crawl space, however, the
defendant's consent was not required. The facts regarding the
access to, use, and layout of the attic were carefully developed
during the evidentiary hearings. The crawl space was accessible
to any tenant by entering through the ground level exterior door
in the rear of the dwelling, which was apparently left unlocked,
and walking up the stairs to the attic. There, off of the main
landing, were several rooms or areas with open doors, including
the crawl space. Items found in the rooms with open doors
suggested that tenants stored or disposed of possessions they
did not need or want in that location. The cocaine was found in
a pillowcase in that attic crawl space. Because the crawl space
was within this common area in a multiunit building, there is no
reasonable expectation of privacy in items left there. See
21
Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971);
Commonwealth v. Montanez, 410 Mass. 290, 302 (1991);
Commonwealth v. Holley, 79 Mass. App. Ct. 542, 551-552 (2011).
See also Commonwealth v. Connolly, 356 Mass. 617, 624, cert.
denied, 400 U.S. 843 (1970) ("Since the basement was a common
area freely available to all the tenants, one tenant could give
permission to its search"). As a matter of law, the police were
permitted to search the crawl space without the defendant's
consent and without a warrant. See, e.g., Commonwealth v.
Williams, 453 Mass. at 209 (Because defendant had no reasonable
expectation of privacy in space searched, he "cannot challenge
the police action that occurred there"). The cocaine therefore,
need not be suppressed.
We address one outstanding issue. When this case was
remanded in 2015 by the single justice, it was with the
instruction to consider the defendant's motion to suppress in
light of several recently decided cases, specifically
Commonwealth v. Augustine. Despite this instruction, neither
the Commonwealth nor the third motion judge addressed that
portion of Augustine in which the court considered whether the
§ 2703(d) application provided probable cause to obtain the CSLI
and, if so, the failure to seek a warrant to obtain CSLI would
not require suppression of that evidence. 467 Mass. at 255-256.
Nor did the Commonwealth raise the issue in its brief on appeal,
22
although the matter was briefly touched on at oral argument,
over the defendant's objection. Because of the lengthy and
somewhat unusual procedural posture of this case and the
specific instruction from the single justice to consider
Augustine, we address the issue in the interest of judicial
economy. See Commonwealth v. Beale, 434 Mass. 1024, 1024 n.1
(2001).
Here, the only detailed statement in Detective Williams's
affidavit accompanying the § 2703(d) application for the CSLI
reads: "The current and recent location of Cassio Vertil is
necessary and important to my investigation because other
witnesses and obtained phone records indicate that Cassio Vertil
has been, and continues to provide aid and support to the
indicted Josener Dorisca." The statement fails to identify the
witnesses and does not identify the requisite basis for
assessing their reliability or their veracity. See Commonwealth
v. Burt, 393 Mass. 703, 710 (1985) (discussing various kinds of
informers and witnesses). Similarly, the particular "phone
records" are not identified and Detective Williams did not
articulate how those records reveal that Cassio provided aid and
support to Dorisca. Contrast, e.g., Commonwealth v. Lopes, 455
Mass. 147, 164-165 (2009). This conclusory statement is so
bereft of the factual details required to establish probable
cause that, unlike the situation presented in Augustine, we need
23
not remand the matter to the trial court for further findings.
See, e.g., Commonwealth v. Moran, 353 Mass. 166, 169-170 (1967)
(distinguishing between facts and conclusions).
Conclusion. So much of the order as allowed the
defendant's motion to suppress with respect to the cocaine is
reversed. In all other respects, the order is affirmed.
So ordered.