Commonwealth v. Raspberry

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16-P-1636 Appeals Court

COMMONWEALTH vs. TAKII RASPBERRY.

No. 16-P-1636.

Suffolk. April 12, 2018. - July 27, 2018.

Present: Rubin, Sacks, & Singh, JJ.

Cellular Telephone. Practice, Criminal, Motion to
suppress. Search and Seizure, Emergency, Motor vehicle,
Probable cause. Probable Cause. Constitutional Law,
Search and seizure, Probable cause.

Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on April 15, 2015.

Following transfer to the Central Division, pretrial
motions to suppress evidence were heard by Catherine K. Byrne,
J.

An application for leave to prosecute an interlocutory
appeal was allowed by Kimberly S. Budd, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.

Timothy St. Lawrence for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
 2

SACKS, J. Before us is the defendant's interlocutory

appeal 1 from the denial of her motions to suppress evidence

obtained by police through (1) warrantless real-time tracking of

the defendant's whereabouts using cell site location information

(CSLI) and (2) a warrantless search of her motor vehicle,

leading to the discovery of a loaded firearm and a stun gun. 2 We

affirm.

Background. We recite the relevant facts as found by the

motion judge, supplemented where necessary by uncontroverted

police testimony, which the judge expressly credited in full.

See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C.,

450 Mass. 818 (2008). None of the judge's subsidiary findings

is challenged on appeal.

In April, 2015, as part of a joint investigation with

Federal authorities, the Boston police were conducting a wiretap

of the telephone line of one Mike Coke pursuant to a Federal

1 A single justice of the Supreme Judicial Court allowed the
defendant's motion to pursue an interlocutory appeal and ordered
it to be heard in this court.

2 The defendant is charged with unlicensed operation of a
motor vehicle, G. L. c. 90, § 10; carrying a firearm without a
license, G. L. c. 269, § 10(a); carrying a dangerous weapon (a
stun gun), G. L. c. 260, § 10(b); carrying a loaded firearm
without a license, G. L. c. 269, § 10(n); and possessing
ammunition without a firearm identification card, G. L. c. 269,
§ 10(h)(1). As to the stun gun charge, see Ramirez v.
Commonwealth, 479 Mass. 331 (2018) (absolute prohibition of
civilian possession of stun guns in G. L. c. 140, § 131J, is
unconstitutional).
 3

court order. 3 At approximately 4:30 P.M on April 14, 2015, an

officer in the "wire room" was monitoring a call from Coke to an

unidentified woman, and he heard her say: "I'm about to go

shoot up this nigga right now, I'm going to get the fucking gun,

I'm sick of this bitch ass nigga yo. He fucking took my fucking

money and don't want to give it the fuck back. I'm going to

his, I'm going right there, right now. Right fucking now, by my

fucking self . . . ." The judge, who listened to a recording of

the call, found that she sounded "angry, upset, and emotional."

The wire room officer found the call "alarming" in that the

woman on the call "intended to use a firearm to shoot someone."

He checked her telephone number in various databases and

identified her as the defendant.

The police then knew that the defendant was referring to

Alvin Dorsey, with whom she had been in "some type of romantic

relationship." The judge found that "the police were reasonable

in having grave concerns about the defendant imminently causing

serious bodily harm."

Within fifteen minutes of hearing the defendant's threat,

the officer called AT&T to initiate an "exigent request." He

stated that the Boston police had reliable information that a

person using an AT&T cellular telephone (cell phone) might have

3 The defendant has not challenged any aspect of the
wiretap.
 4

a gun and might be about to harm another person. He provided

the defendant's cell phone number and asked AT&T to perform

"emergency pings" and give the police real-time CSLI about the

approximate location of the defendant's cell phone. 4 AT&T agreed

to assist, and it began sending the results of the pings to a

designated Boston police electronic mail (e-mail) address at

approximately fifteen-minute intervals. The officer mapped the

location of each ping result as it was received and shared this

information with officers in the field attempting to find the

defendant.

The first result, received at 5:06 P.M., showed the cell

phone within a 1,880 meter radius of a cell site in Braintree.

Subsequent results showed the cell phone to be moving toward

Boston, leading police to believe that the defendant was on her

way to locate Dorsey. Specifically, a 5:37 P.M. result showed

the cell phone somewhere in the Dorchester section of Boston,

and a 5:53 P.M. result showed the cell phone in the Roxbury

section of Boston, within a 652-meter radius of a cell site atop

a food market. In the meantime, police had learned that Dorsey

"may have been" with a girl friend who lived at a particular

address in a housing project near that market. Results received

4 See Commonwealth v. Fredericq, 93 Mass. App. Ct. 19, 27-28
(2018) (describing real-time CSLI). See also Commonwealth v.
Long, 476 Mass. 526, 530 n.3 (2017) (describing historical
CSLI).
 5

at 6:25 P.M. and 6:41 P.M. showed the cell phone in an area with

a 487-meter radius that included that housing project.

At 6:46 P.M., the officer in the wire room, still

monitoring Coke's phone calls, listened to a second conversation

between Coke and the defendant. In this call, the defendant

said, "I'm sitting right in front of her house," which the

police knew referred to the house of Dorsey's girl friend. The

defendant further stated that she was going to "shoot him and

his bitch in the face"; that she knew Dorsey was in the

apartment because he had been texting her; that she was waiting

for him; that if he did not come out, she would be back at 7:00

A.M. in a motor vehicle that he would not recognize; and that

she would jump out and "pistol whip" him. She added that if

Dorsey sent anyone to attack her, it would be a "firefight,"

which the detective understood to mean a "shootout."

At this time, a Boston police sergeant, who had been kept

informed of the defendant's threats and suspected location, was

in a motor vehicle near the market and the housing project. At

approximately 6:50 P.M., the sergeant turned onto the street

where Dorsey's girl friend lived and observed a woman sitting in

a motor vehicle parked about 100 yards away from, and with a

clear line of sight to, the girl friend's residence. The woman

was talking on a cell phone. The sergeant knew that the

defendant was on the phone with Coke at the time.
 6

The sergeant called in the motor vehicle's license plate

number and learned that the vehicle was registered to the

defendant. The sergeant then contacted a Boston police

detective who, along with two other officers, was patrolling the

area in an unmarked cruiser. The sergeant described the

defendant, her vehicle, and its plate number and location;

warned the detective that the defendant likely had a firearm and

was threatening to shoot someone; and asked the detective to

stop the defendant's vehicle.

The three officers stopped and approached the defendant's

motor vehicle on foot. The detective then asked her for her

license and registration. When she said she did not have a

license, she was ordered out of the vehicle and arrested for

operating without a license. One officer led her to the rear of

the vehicle, while the others searched the vehicle. They found

a stun gun in the defendant's purse in the passenger compartment

and a loaded gun in the trunk.

The defendant filed separate motions to suppress the fruits

of (1) the warrantless CSLI search of her location and (2) the

warrantless search of her motor vehicle. The judge ruled that

the CSLI search was justified under the emergency aid exception

to the warrant requirement, because the police had a "good

faith, reasonable belief that there was a serious and imminent

threat to human life." The judge further ruled that the search
 7

of the vehicle was justified under the automobile exception,

where the police had probable cause to believe that the vehicle

contained a loaded firearm that the defendant intended to use.

Discussion. In reviewing a ruling on a motion to suppress,

we accept the judge's subsidiary findings unless clearly

erroneous, see Commonwealth v. White, 374 Mass. 132, 137 (1977),

aff'd, 439 U.S. 280 (1978), and make an "independent

determination on the correctness of the judge's 'application of

constitutional principles to the facts as found.'" Commonwealth

v. Haas, 373 Mass. 545, 550 (1977), quoting from Brewer

v. Williams, 430 U.S. 387, 403 (1977).

1. CSLI search. The parties and the judge proceeded on

the assumption that the police use of the CSLI voluntarily

provided by AT&T, in order to track the defendant's location in

real time for two hours, was a search, subject to the warrant

requirement of art. 14 of the Massachusetts Declaration of

Rights. 5 Compare Commonwealth v. Augustine, 467 Mass. 230, 255

(2014), S.C., 472 Mass. 448 (2015) ("[T]he government-compelled

production of the defendant's [historical] CSLI records

5 After this case was argued, the United States Supreme
Court decided that "accessing seven days of [historical] CSLI
constitutes a . . . search" under the Fourth Amendment to the
United States Constitution but declined to determine whether
accessing such CSLI for a more limited period might not be a
search. Carpenter v. United States, 138 S. Ct. 2206, 2217 n.3
(2018).
 8

[covering two weeks] by Sprint constituted a search in the

constitutional sense to which the warrant requirement of art. 14

applied"); Commonwealth v. Fredericq, 93 Mass. App. Ct. 19, 27-

28 (2018) (government-compelled creation and production of real-

time CSLI for more than six days was subject to art. 14 warrant

requirement). Without deciding the question, we proceed on the

same assumption. 6 And, as neither the Supreme Judicial Court nor

this court has previously determined whether an emergency might

justify a warrantless CSLI search, we begin by reviewing

emergency search cases from other contexts.

a. The emergency aid exception. In the context of a

search of a home, where constitutional protection against

unreasonable searches is at its zenith, 7 the courts have

recognized an "emergency aid" exception to the warrant and

6 The judge made two additional rulings, neither of which
the defendant challenges on appeal, and on which we therefore
express no opinion: (1) that AT&T's provision of the CSLI was
authorized by language in the Federal Stored Communications Act,
18 U.S.C. § 2702(c)(4) (2012), addressing "an emergency
involving danger of death or serious physical injury"; and (2)
that, because of the emergency circumstances, the police did not
violate G. L. c. 271, § 17B, as amended by St. 2008, c. 205,
§ 3, in obtaining the CSLI without an administrative subpoena.
See Commonwealth v. Chamberlin, 473 Mass. 653, 663 (2016)
(reserving question whether § 17B, as amended, "precludes the
government from asking a service provider to turn over customer
records voluntarily").

7 See Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018);
Selectmen of Framingham v. Municipal Ct. of Boston, 373 Mass.
783, 785 (1977); Commonwealth v. Swanson, 56 Mass. App. Ct. 459,
462 (2002).
 9

probable cause requirements of the Federal and State

constitutions. 8 See Commonwealth v. Snell, 428 Mass. 766, 774-

775, 776 n.7, cert. denied, 527 U.S. 1010 (1999); Commonwealth

v. Duncan, 467 Mass. 746, 749-750, cert. denied, 135 S. Ct. 224

(2014); Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165

(2013). "This exception 'permits the police to enter a home

without a warrant when they have an objectively reasonable basis

to believe that there may be someone inside who is injured or in

imminent danger of physical harm.'" Duncan, 467 Mass. at 749-

750, quoting from Commonwealth v. Peters, 453 Mass. 818, 819

(2009). "The need to protect or preserve life or avoid serious

injury is justification for what would be otherwise illegal

absent an exigency or emergency." 9 Snell, 428 Mass. at 774,

quoting from Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219

(1990). See Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

8 The emergency aid exception, which requires no probable
cause, is thus distinct from the "exigent circumstances"
exception, which permits a warrantless search where probable
cause exists, but circumstances such as the imminent loss of
evidence make obtaining a warrant impracticable. See
Commonwealth v. Washington, 449 Mass. 476, 480 (2007); Duncan,
467 Mass. at 750.

9 As Duncan indicates, the emergency aid exception may be
based on the need to find and assist a person who has already
been harmed, the need to prevent future harm, or both. In the
context of prevention of future harm, the label "pure emergency"
has sometimes been applied. See Duncan, 467 Mass. at 749;
Cantelli, 83 Mass. App. Ct. at 158; Cypher, Criminal Practice &
Procedure § 5.156 (4th ed. 2014); Grasso & McEvoy, Suppression
Matters Under Massachusetts Law §§ 4-2[f][1], 14-1[c][3][vi]
(2017 ed.).
 10

"The reason is plain: 'People could well die in emergencies if

police tried to act with the calm deliberation associated with

the judicial process.'" Commonwealth v. Ringgard, 71 Mass. App.

Ct. 197, 201 (2008), quoting from Wayne v. United States, 318

F.2d 205, 212 (D.C. Cir.), cert. denied, 375 U.S. 860 (1963).

In such cases, probable cause is not required, "because the

purpose of police entry is not to investigate criminal activity.

. . . Instead, a warrantless entry 'must meet two strict

requirements. First, there must be objectively reasonable

grounds to believe that an emergency exists. . . . Second, the

conduct of the police following the entry must be reasonable

under the circumstances . . . .'" Duncan, 467 Mass. at 750,

quoting from Peters, 453 Mass. at 823. The burden of showing

reasonableness is on the Commonwealth. Cantelli, 83 Mass. App.

Ct. at 167.

"The injury sought to be avoided must be immediate and

serious, and the mere existence of a potentially harmful

circumstance is not sufficient." Commonwealth v. Kirschner, 67

Mass. App. Ct. 836, 841-842 (2006). But neither is "ironclad

proof of 'a likely serious, life-threatening' injury"

required. Commonwealth v. Entwistle, 463 Mass. 205, 214 (2012),

cert. denied, 568 U.S. 1129 (2013), quoting from Michigan

v. Fisher, 558 U.S. 45, 49 (2009). "It suffices that there are
 11

objectively reasonable grounds to believe that emergency aid

might be needed." Entwistle, supra.

"[W]hether an [emergency] existed, and whether the response

of the police was reasonable and therefore lawful, are matters

to be evaluated in relation to the scene as it could appear to

the officers at the time, not as it may seem to a scholar after

the event with the benefit of leisured retrospective

analysis." Commonwealth v. Young, 382 Mass. 448, 456 (1981).

What matters are the objective circumstances known to police

officers; their subjective motives are irrelevant. Entwistle,

463 Mass. at 214.

Thus, in Snell, the court upheld a warrantless entry into

the defendant's house because "[t]here existed objectively

reasonable grounds to believe that [the defendant's wife] might

be injured or dead inside," presenting a domestic violence

situation, "which often calls for rapid police response designed

to prevent further injury to a victim, to see whether a threat

against a victim has been carried out, or to ascertain whether

some other grave misfortune has befallen a victim." 428 Mass.

at 775. And in Cantelli, we upheld a warrantless police entry

into the defendant's apartment to allow a technician to turn off

the gas supply to the defendant's stove, where his prior erratic

conduct in allowing "explosive levels" of gas to fill his

apartment, and in refusing entry to the technician, presented
 12

"an emergency of sufficient proportions . . . to render a

warrantless entry reasonable." 83 Mass. App. Ct. at 165-166.

The emergency aid exception also applies to searches within

lawfully-entered homes. In Commonwealth v. Samuel, 80 Mass.

App. Ct. 560 (2011), the police, after entering an apartment

with a resident's consent, searched under a pillow where they

reasonably believed the defendant had hidden a loaded firearm.

The defendant had earlier told others that he would use the

firearm in a killing for hire. We upheld the search under the

emergency aid exception. Id. at 562-564.

Other decisions have applied the exception to uphold

warrantless searches of places other than homes, in order to

find and assist a victim of serious physical harm or to prevent

such harm from occurring. See Commonwealth v. Marchione, 384

Mass. 8, 11-12 (1981) (search of commercial premises where there

was reason to believe explosive liquid was stored in partially-

open containers near homemade incendiary device); Commonwealth

v. Ortiz, 435 Mass. 569, 572-573 (2002) (search of fruit store

to find missing person who police reasonably believed was inside

and injured or dead); Commonwealth v. DiMarzio, 52 Mass. App.

Ct. 746, 747-750 (2001), S.C., 436 Mass. 1012 (2002) (police

entry into warehouse office to find angry, intoxicated man who

had just threatened to come to couple's house with

shotgun); Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 594-
 13

595 (2008) (search of handbag of woman who collapsed in public

of apparent drug overdose, to find type of drug she might have

ingested in order to assist medical personnel in treating her).

We mention two other cases that illustrate the reach of the

emergency aid exception. In Duncan, the court extended the

exception to protect nonhuman animal life. 467 Mass. at 753.

And in Commonwealth v. Hurd, 29 Mass. App. Ct. 929 (1990), we

applied the exception to uphold police officers' stop of a motor

vehicle with New Hampshire license plates approaching the

entrance to a highway, based on an anonymous tip that the driver

was intoxicated and had three small children with him. "The

police, having reasonable grounds to believe that an exigency

existed, acted appropriately in stopping the automobile to see

if, in fact, the driver was intoxicated. Such action was

reasonably necessary to protect the children and the public from

'unnecessary exposure to risk of injury.'" Id. at 930-931,

quoting from Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301,

306 (1986).

b. Application of emergency aid exception. The defendant

does not contend that the emergency aid exception could never

justify warrantless real-time CSLI tracking; rather, she argues

only that the exception's requirements were not met here.

Therefore, assuming without deciding that this was a search, we

will also assume without deciding that it would have been
 14

permissible if the exception's requirements were met. 10

Accordingly, we examine whether the Commonwealth has met its

"burden of showing that authorities had a reasonable ground to

believe that an emergency existed and that the actions of the

police were reasonable in the circumstances." Commonwealth

v. Knowles, 451 Mass. 91, 96 (2008).

We have no difficulty concluding that these standards were

met here. The police overheard a phone call in which an angry,

upset individual said she was "going to get the . . . gun" and

was "about to go shoot up [someone] right now . . . . I'm going

to his, I'm going right there, right now." The police

identified the person making the threat as the defendant and

thus inferred that she was likely talking about shooting Dorsey.

The judge, after listening to a recording of the call, found

that "the police were reasonable in having grave concerns about

the defendant imminently causing serious bodily harm," and we

see no basis for rejecting that finding. See DiMarzio, 52 Mass.

App. Ct. at 747-751 (emergency aid exception applied where

10Several courts have concluded that the emergency aid
exception justified real-time CSLI tracking in particular
circumstances. See United States v. Gilliam, No. 11 Crim. 1083
(S.D.N.Y. Sept. 12, 2012); United States v. Takai, 943 F. Supp.
2d 1315, 1323 (D. Utah 2013); United States v. Caraballo, 963
F. Supp. 2d 341, 363–364 (D. Vt. 2013), aff'd, 831 F.3d 95 (2d
Cir. 2016), cert. denied, 137 S. Ct. 654 (2017). See also
Carpenter v. United States, 138 S. Ct. at 2223 (although
government generally needs warrant to access CSLI, there may be
exceptions for exigencies such as "the need to . . . protect
individuals who are threatened with imminent harm").
 15

police reasonably believed that angry, intoxicated person had

just threatened to come to couple's house with shotgun); Samuel,

80 Mass. App. Ct. at 563-564 (exception applied where police

reasonably believed that person had concealed loaded gun under

pillow and announced that he had been hired to kill someone).

Although the defendant here argues that the police had no basis

other than her own statement for believing she had access to a

firearm, such a statement was found sufficient in DiMarzio, 52

Mass. App. Ct. at 748-749, and it was sufficient here.

What police did not know here, at the time of the call, was

the whereabouts of the defendant. In the circumstances, it was

objectively reasonable for the police to request real-time CSLI,

in order to determine the defendant's current location and the

direction in which she was moving, and thus to find and

intercept her before she could shoot Dorsey.

The defendant points out that when AT&T, in response to the

"exigency request," sent the police her subscriber information

as well her real-time CSLI information, the police learned her

home address in Braintree. She argues that at that point, the

police could have asked their counterparts in Braintree to look

for her at her home, instead of tracking her using CSLI. But

this ignores, among other factors, that the police had no

information suggesting that she was actually at her home or

would still be there when police arrived. Indeed, the police
 16

had just heard her say that she was "going to get the . . . gun"

and "going to his . . . going right there, right now" to shoot

the intended victim, thus indicating that she was leaving

wherever she was and going to wherever she believed Dorsey was.

The defendant's second-guessing approach contravenes the

principle that the reasonableness of the police response is "to

be evaluated in relation to the scene as it could appear to the

officers at the time . . . ." Young, 382 Mass. at 456.

The same is true of the defendant's argument that the

police, once they formed a belief that her target was Dorsey and

that he might be at his girl friend's address, could simply have

gone to that address instead of tracking her using CSLI. Even

assuming (although the record does not show it) that the police

formed this belief about Dorsey's whereabouts before they

obtained any CSLI, their belief was merely that Dorsey "may have

been" at that address. It was reasonable for the police to

believe that a more direct and sure way of preventing the

defendant from shooting Dorsey was to find and intercept the

defendant herself. See DiMarzio, 52 Mass. App. Ct. at 748

(where defendant left couple's house but threatened to return

with a shotgun, "[i]t was reasonable for the police to go

looking for the defendant to gather further information").

The defendant makes no other argument that the police

lacked reasonable ground to believe that an emergency existed or
 17

that their actions were unreasonable in the circumstances. The

police tracked her location using CSLI for a brief period,

apparently not exceeding two hours, and intercepted her

immediately after hearing her say, in a second phone call, that

she was "sitting right in front of [the girl friend's] house,"

and was going to "shoot him and his bitch in the face." We

conclude that the police use of the CSLI voluntarily provided by

AT&T, assuming without deciding that it was a search that could

in principle be justified by the emergency aid exception, was

justified on these facts.

2. Search of motor vehicle. The judge upheld the search

of the defendant's motor vehicle based on the automobile

exception to the warrant requirement. 11 That exception "applies

to situations where the police have probable cause to believe

that a motor vehicle parked in a public place and apparently

capable of being moved contains contraband or evidence of a

crime." Commonwealth v. Dame, 473 Mass. 524, 536 (quotation

omitted), cert. denied, 137 S. Ct. 132 (2016). The exception

extends to a vehicle's trunk, if the item(s) sought may

reasonably be thought to be there. See Commonwealth v. Garden,

451 Mass. 43, 51-52 (2008); Commonwealth v. Hernandez, 473 Mass.

11The judge did not address whether the search was valid as
an inventory search incident to an impoundment of the vehicle.
We therefore need not address the defendant's argument on appeal
that the police lacked a valid basis for impoundment. See
Commonwealth v. Gouse, 461 Mass. 787, 792 n.7 (2012).
 18

379, 383-384 (2015). The judge here concluded that police had

probable cause to believe that "the defendant's car contained a

loaded firearm and that she intended to use it."

On appeal the defendant argues that the automobile

exception was inapplicable only because the police lacked

probable cause to search the trunk for a gun. 12 She contends

that, although her statements to Coke gave reason to "suspect

that she was carrying a gun, . . . once the stun gun was located

in [her] purse, the force of those statements as evidence that

she had some other type of gun was greatly diluted" and fell

below the level of probable cause.

Even assuming that the stun gun was found first (an issue

on which the evidence was unclear and the judge made no

finding), we disagree. The defendant stated in the first call

that she was going to "get the fucking gun" and "shoot up" the

intended victim. She stated in the second call, from outside

12Because the defendant does not contend otherwise, we
assume that the search was lawful if, as the judge concluded,
there was probable cause to believe that the defendant intended
to use the gun to shoot someone, i.e., that she was about to
commit a crime. The United States Supreme Court "repeatedly has
explained that 'probable cause' to justify an arrest means facts
and circumstances within the officer's knowledge that are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The
defendant does not argue that art. 14 imposes any stricter
standard in this regard. See Commonwealth v. Fulgiam, 477 Mass.
20, 33, cert. denied, 138 S. Ct. 330 (2017).
 19

his girl friend's residence, that she was going to "shoot him

and his bitch in the face," that she was prepared to "pistol

whip" him, and that if he sent anyone to attack her, it would be

a "firefight." These statements furnished ample objective

grounds -- in no way weakened by the discovery of a stun gun in

her handbag -- to believe that the defendant possessed and was

prepared to use a loaded firearm, and that it was somewhere in

the motor vehicle.

Order denying motions to
suppress affirmed.