Commonwealth v. Fredericq

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SJC-12572

COMMONWEALTH vs. STANLEY FREDERICQ.1

Plymouth. November 5, 2018. - April 24, 2019.

Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

Cellular Telephone. Controlled Substances. Constitutional Law,
Search and seizure, Standing to question constitutionality,
Privacy. Privacy. Search and Seizure, Expectation of
privacy, Fruits of illegal search, Consent. Practice,
Criminal, Motion to suppress, Standing.

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 Lenk, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. After review by the Appeals Court, the
Supreme Judicial Court granted leave to obtain further appellate
review.

Jason Benzaken for the defendant.

1 The defendant's name is spelled in various court documents
as "Fredericq" or "Frederico." In accordance with our usual
practice, we will use the spelling as it appears in the
indictment.
 2

Patrick Levin, Committee for Public Counsel Services, for
Committee for Public Counsel Services.
Jessica L. Kenny, Assistant District Attorney, for the
Commonwealth.

GANTS, C.J. After the defendant was indicted by a grand

jury for trafficking cocaine in violation of G. L. c. 94C,

§ 32E (b), he moved to suppress the cocaine and cash seized

during a warrantless search of his residence on the third floor

of a multiunit house, commencing the nearly decade-long

procedural journey that brought this case to our doorstep. The

Superior Court judge who last ruled on this motion held that the

cocaine and cash must be suppressed, concluding that they were

the fruits of the unlawful police tracking of a cellular

telephone through which the police obtained cell site location

information (CLSI) without a search warrant based on probable

cause.2

We conclude that the defendant has standing to challenge

the Commonwealth's warrantless CSLI search because, by

monitoring the telephone's CSLI, the police effectively

2 The term "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) and 472 Mass. 448 (2015). It may be used
to identify the approximate location of the cellular telephone
based on the telephone's communication with a particular cell
site. See id. at 238.
 3

monitored the movement of a vehicle in which he was a passenger.

We further conclude that, under the circumstances here, the

seizure of the cocaine and cash was the direct result of

information obtained from the illegal CSLI search; that, under

the fruit of the poisonous tree doctrine of the exclusionary

rule, it is irrelevant whether the defendant had a reasonable

expectation of privacy in the crawl space where the cocaine was

found; and that the Commonwealth has failed to meet its burden

of proving that the seizure was sufficiently attenuated from the

illegal search such that it should not be deemed a forbidden

fruit of the poisonous tree. Specifically, we conclude that the

defendant's consent to a search of his residence did not purge

the seizure from the taint of the illegal CSLI search, where the

consent was obtained through the use of information obtained

from that search. For these reasons and as discussed more fully

infra, we affirm the order granting the defendant's motion to

suppress.3

Background. The complex procedural history of this case is

ably described in the Appeals Court opinion. Commonwealth v.

Fredericq, 93 Mass. App. Ct. 19, 20-26 (2018). Suffice it to

say that the defendant's motion to suppress was initially denied

by one Superior Court judge, remanded by a single justice of the

3 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
 4

county court for an evidentiary hearing, denied again by another

motion judge, remanded again by the single justice, and allowed

by a third motion judge.

We summarize the facts as found by the third motion judge,

who relied on the facts found by the first two motion judges at

the prior evidentiary hearings. We accept the judges'

subsidiary findings of fact, which we do not find to be clearly

erroneous. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004)

("In reviewing a ruling on a motion to suppress, we accept the

judge's subsidiary findings of fact absent clear error . . .").

Where necessary and appropriate, we supplement these findings

with uncontradicted witness testimony that the motion judges

implicitly credited. See Commonwealth v. Jones-Pannell, 472

Mass. 429, 431 (2015).

On June 26, 2008, a grand jury indicted Josener Dorisca for

the murder of Bensney Toussaint, and a warrant issued for

Dorisca's arrest. In attempting to locate Dorisca, Detective

Kenneth Williams of the Brockton police department spoke with

Dorisca's best friend, Cassio Vertil.4 Cassio admitted that he

had spoken with Dorisca within a day of the homicide. After

Cassio gave his cellular telephone number to the police,

Williams examined records connected to the telephone, which

4 We refer to Cassio and Kennel Vertil by their first names
because they share a surname.
 5

confirmed that calls had indeed been made after the shooting to

a cellular telephone belonging to Dorisca.

Williams recognized Cassio from a videotape recorded months

before the homicide that showed Cassio and another person

discussing the movement of drugs from Florida to Massachusetts.

Williams testified that "the tape clearly displays [Cassio]

. . . engaged in what seems to be very lucrative drug dealings

. . . And bragging and boasting of going to Florida to obtain

more drugs. And they're flashing tens of thousands of dollars

on this tape."

On July 2, 2008, Williams spoke with Cassio's brother,

Kennel, who said that Cassio was now using a different cellular

telephone and provided Williams with the new telephone number.

Kennel also stated that Cassio was traveling to New York in a

brown Toyota RAV-4 motor vehicle with individuals nicknamed

"Paco" and "Paquito." Williams knew that Paco was the defendant

in this case and that Paquito was Stephen Allonce. State

troopers also learned from a confidential informant that Cassio

was traveling to Florida in the brown Toyota to purchase

narcotics. There was little information offered at the hearings

regarding the reliability or veracity of this confidential

informant. State police Trooper Eric Telford testified that he

had not used this informant in the past, but Williams
 6

characterized the informant as "reliable," without explaining

the basis of this characterization.

That same day, July 2, the Commonwealth sought and obtained

a court order, pursuant to 18 U.S.C. § 2703(d) (2006), to

require the cellular service provider to produce records for the

cellular telephone that Cassio was now using. Under § 2703(d),

a court may order a telephone company to produce records,

including CSLI records, "if the governmental entity offers

specific and articulable facts showing that there are reasonable

grounds to believe that the . . . records or other information

sought . . . are relevant and material to an ongoing criminal

investigation." In addition to subscriber information, the

court order required, for the period from July 1 through July 6

(later extended to July 8), the production of records of cell

sites utilized for telephone calls, toll records for calls made

or received, and "updates on the phone's location every fifteen

. . . minutes."

On July 2, the cellular service provider furnished Williams

with records showing that the defendant was the subscriber for

this cellular telephone, and that the defendant resided in an

apartment in Brockton (residence). The cellular service

provider used "ping" technology to send radio signals to the

cellular phone and record the approximate location of the cell

sites or cell towers with which the telephone communicated, and
 7

sent the resulting CSLI records by e-mail to Williams. Those

records indicated that the telephone had traveled south from

Randolph and eventually had come to a stop in Sunrise, Florida.

Williams then requested the assistance of the local police

in Florida, who used the CSLI data to track down the brown

Toyota vehicle and observed Cassio, the defendant, and Allonce

staying together at a motel. The local police did not identify

any of the men as Dorisca.

On July 7, 2008, the CSLI records indicated that the

cellular telephone was traveling north toward Massachusetts. In

response, the police began surveillance at the defendant's

residence and also at Cassio's home in Randolph. At

approximately 2:15 P.M. on July 8, the police observed the brown

Toyota vehicle parked at the defendant's residence and saw

Cassio standing outside with another person who appeared to

match the description of Dorisca. Cassio then drove away in the

vehicle with Allonce as a passenger. Two State police troopers

followed them and stopped the vehicle after it had traveled a

few blocks; they observed that the vehicle contained clothing,

luggage, and a cooler. Cassio told the troopers that he had

just left Paco's house and was heading to the police station in

Brockton to meet with Williams regarding the homicide. Cassio

and Allonce then drove to the Brockton police station; the last

report of the cellular service provider regarding the cellular
 8

telephone's location at approximately 3:47 P.M. that day

indicated that the telephone was located inside the vehicle at

the Brockton police station.

The State police troopers returned to the residence to look

for Dorisca and speak to the defendant. After approaching the

building, they encountered two residents of the first-floor

apartment. The troopers stated that they were looking for a

homicide suspect, and the residents consented to a search of

their unit. After the troopers looked through the unit, they

left through a back door into a rear entry area and walked up

the stairs to the second floor. The resident of that unit also

consented to a search of her unit. The troopers then continued

up the rear stairway to the third floor, which led to an open

landing area with several doors that led to two bedrooms, a

storage area, and a crawl space. All but one of the doors were

open.

The troopers knocked on the closed door and the defendant

answered, identifying himself as "Paco." He stated that he

resided in one of the third-floor bedrooms and paid $400 per

month in rent to use that space. Trooper Francis Walls informed

the defendant that police were investigating a homicide and that

the murder suspect might be in the building. He also said that

the investigation involved illegal narcotics.
 9

Telford advised the defendant of his Miranda rights and

explained that they were looking for a homicide suspect, and had

information that the defendant "had just gone down to Florida

and purchased a large amount of narcotics and . . . [was]

possibly storing it there." The defendant said that he had just

driven back from Florida with some friends, denied possessing

drugs, and signed a form giving his consent for a search.

During that search, the police found $2,200 in cash in the

defendant's bedroom and, after the arrival of a narcotics-

trained dog, a pillowcase in the attic crawl space across from

the defendant's bedroom containing two "bricks" of cocaine.

After the defendant was indicted, he moved to suppress the

fruits of the search.

The third motion judge determined that the defendant had

standing to challenge the CSLI tracking of the cellular

telephone because, although the telephone was used by Cassio,

the police knew that the defendant was traveling with Cassio,

and "[t]hey intended to track the movements of all three

occupants of the vehicle because they had information that the

purpose of the trip was to obtain cocaine for distribution in

Massachusetts." The judge also concluded that the cocaine

seized during the search of the defendant's residence "was found

as a result of the unlawful electronic tracking," and "[t]he

search and seizure was not attenuated from the unlawful tracking
 10

by lapse of time, intervening circumstances or by another

legitimate police purpose in conducting the search." The judge

therefore ruled that the evidence obtained during the search

must be suppressed as "fruit of the poisonous tree."

A single justice of this court granted the Commonwealth's

motion for an interlocutory appeal and reported the appeal to

the Appeals Court pursuant to Mass. R. Crim. P. 15 (a) (2), as

appearing in 422 Mass. 1501 (1996). The Appeals Court agreed

with the motion judge's conclusions on both standing and

attenuation, but ultimately held that the warrantless search of

the crawl space where the cocaine was found was permissible

because the defendant had no reasonable expectation of privacy

in that area. Fredericq, 93 Mass. App. Ct. at 30-31. On this

ground alone, the Appeals Court reversed the allowance of the

motion to suppress with respect to the cocaine, and affirmed it

in all other respects. Id. at 32. We granted the defendant's

motion for further appellate review.

Discussion. In reviewing a judge's decision on a motion to

suppress, we "make an independent determination of the

correctness of the judge's application of constitutional

principles to the facts as found." Scott, 440 Mass. at 646.

The police may obtain subscriber information and toll

records pursuant to a court order issued under 18 U.S.C.

§ 2703(d), but under art. 14 of the Massachusetts Declaration of
 11

Rights, the police may not use CSLI for more than six hours to

track the location of a cellular telephone unless authorized by

a search warrant based on probable cause.5 See Commonwealth v.

Estabrook, 472 Mass. 852, 858 (2015); Commonwealth v. Augustine,

467 Mass. 230, 254-255 (2014), S.C., 470 Mass. 837 (2015) and

472 Mass. 448 (2015). See also Carpenter v. United States, 138

S. Ct. 2206, 2220 (2018) (government acquisition of CSLI records

constitutes "a search within the meaning of the Fourth Amendment

[to the United States Constitution]"). The Commonwealth

concedes that the CSLI tracking of the cellular telephone in

this case was unlawful because it was not authorized by a search

warrant. But the Commonwealth argues that the motion to

suppress should nonetheless have been denied because (1) the

defendant had no standing to challenge the tracking of a

cellular telephone that was registered in his name, but used

solely by Cassio; (2) as the Appeals Court concluded, the

cocaine was not seized during a constitutional search because

the defendant lacked any expectation of privacy in the crawl

space where it was found; and (3) the evidence obtained during

the search was sufficiently attenuated from the illegal tracking

5 Article 14 of the Massachusetts Declaration of Rights
states in relevant part: "Every subject has a right to be
secure from all unreasonable searches, and seizures, of his
person, his houses, his papers, and all his possessions."
 12

because of the defendant's consent to the search, thus "purging"

the search of its taint. We will discuss these issues in turn.

1. Standing. A defendant has standing to challenge a

search and seizure under art. 14 if he or she "has a possessory

interest in the place searched or in the property seized or if

[he or she] was present when the search occurred." Commonwealth

v. Williams, 453 Mass. 203, 208 (2009). Here, the defendant was

the subscriber of the cellular telephone, but the third motion

judge found that Cassio was the person who was using that

telephone. The defendant claims that he has standing on three

separate and distinct grounds: first, because he was a

passenger in the vehicle whose location was being tracked

through the CSLI monitoring of the cellular telephone; second,

because he was the registered owner of the telephone, and

therefore had a reasonable expectation of privacy in the

location of that telephone; and third, because he had a property

interest in the telephone that was interfered with when the

police pinged the telephone, thereby drawing power from its

battery. We need not address whether the second and third

grounds independently would suffice to grant standing, because

we conclude that the defendant has standing as a passenger of

the vehicle whose location was effectively being continually

tracked through CSLI monitoring of the target telephone.
 13

In Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013), we

declared that "under art. 14, a person may reasonably expect not

to be subjected to extended [global positioning system (GPS)]

electronic surveillance by the government, targeted at his

movements, without judicial oversight and a showing of probable

cause." We thus held that a passenger with no possessory

interest in a vehicle has standing to challenge the extended GPS

surveillance of the vehicle as an invasion of his or her own

reasonable expectation of privacy. Id. See United States v.

Jones, 565 U.S. 400, 415-416 (2012) (Sotomayor, J., concurring)

("GPS monitoring generates a precise, comprehensive record of a

person's public movements . . . [and] evades the ordinary checks

that constrain abusive law enforcement practices.");

Commonwealth v. Connolly, 454 Mass. 808, 833 (2009) (Gants, J.,

concurring) ("the appropriate constitutional concern is not the

protection of property but rather the protection of the

reasonable expectation of privacy").

With respect to the defendant's reasonable expectation of

privacy, the CSLI tracking of the cellular telephone in this

case implicates the same constitutional concerns as the GPS

surveillance of the vehicle in Rousseau. See Augustine, 467

Mass. at 254. Indeed, in Augustine, we noted that the type of

prospective CSLI tracking that largely took place here -- as

opposed to historical CSLI tracking -- is even more closely akin
 14

to direct GPS surveillance.6 Id. at 254 n.36. The CSLI search

was "targeted at [the defendant's] movements," much as the GPS

search was targeted at the passenger defendant in Rousseau,

because the police knew when they obtained the § 2703(d) order

that the defendant was traveling out of State with Cassio in the

same vehicle. Rousseau, 465 Mass. at 382. They then sought and

obtained updates on the vehicle's location every fifteen minutes

for at least six consecutive days. For all practical purposes,

the CSLI monitoring of the cellular telephone tracked the

defendant's location when he was in the vehicle in much the same

way as would GPS tracking of that vehicle. Accordingly, the

defendant here has standing to challenge the CSLI search and any

resulting fruits of that search.

2. The search of the crawl space as fruit of the poisonous

tree. Under what has become known as the "fruit of the

poisonous tree" doctrine, the exclusionary rule bars the use of

evidence derived from an unconstitutional search or seizure.

6 Historical CSLI refers to information that has already
been generated when the data are requested. Augustine, 467
Mass. at 240 n.24. Prospective CSLI "refers to location data
that will be generated sometime after the order authorizing its
disclosure." Id. Here, the CSLI search was effectively
conducted in "real time" because the cellular telephone was
being "pinged" every fifteen minutes, and its location, derived
from CSLI rather than a global positioning system in the
cellular telephone itself, was being timely reported by the
cellular service provider to the police who were conducting the
surveillance.
 15

See Wong Sun v. United States, 371 U.S. 471, 487-488 (1963)

(defining "fruit of the poisonous tree" as evidence that "has

been come at by exploitation of" unlawful search or seizure);

Commonwealth v. Damiano, 444 Mass. 444, 453 (2005). In

determining whether evidence derived from an illegal search or

seizure must be suppressed, "the issue is not whether 'but for'

the prior illegality the evidence would not have been obtained,

but 'whether . . . the evidence . . . has been come at by

exploitation of [that] illegality or instead by means

sufficiently distinguishable to be purged of the primary

taint.'" Id., quoting Commonwealth v. Bradshaw, 385 Mass. 244,

258 (1982). "It is the Commonwealth's burden to establish that

the evidence it has obtained and intends to use is sufficiently

attenuated from the underlying illegality so as to be purged

from its taint." Damiano, supra at 454. "[T]he attenuation

doctrine is not an exception to the exclusionary rule, but

rather a test of its limits." R.G. Stearns, Massachusetts

Criminal Law: A District Court Prosecutor's Guide 172 (38th ed.

2018).

The Commonwealth contends, and the Appeals Court concluded,

see Fredericq, 93 Mass. App. Ct. at 30-31, that the cocaine

found in the crawl space should not be suppressed even if it has

failed to meet its burden of proving attenuation because the

defendant had no reasonable expectation of privacy in the crawl
 16

space. We disagree. Evidence may be suppressed as fruit of the

poisonous tree even if it is found in a place where the

defendant has no reasonable expectation of privacy. This

principle is as old as the fruit of the poisonous tree doctrine

itself. In Wong Sun, 371 U.S. at 474, 486-487, the defendant

made statements to the police indicating that a codefendant had

drugs at his home. The United States Supreme Court held that

those statements should have been suppressed because they arose

out of an unlawful arrest and that their admission would thus

violate the defendant's Fourth Amendment rights. Id. at 484,

486-487. The Court further concluded that the drugs found at

the codefendant's home should have been suppressed, even though

the defendant did not suggest that he had a reasonable

expectation of privacy in the codefendant's home, because the

drugs were the fruit of a poisonous tree -- the unlawful arrest.

Id. at 487-488. The only relevant factor that the Court

considered was whether the police "exploit[ed]" the "illegality"

of the unlawful arrest; that alone was sufficient to require the

suppression of the drugs. Id. at 488. See id. at 487 ("The

prosecutor candidly told the trial court that 'we wouldn't have

found those drugs except that [the defendant] helped us to'").

Other courts interpreting the Fourth Amendment have arrived

at the same conclusion. See United States v. Olivares-Rangel,

458 F.3d 1104, 1117-1118 (10th Cir. 2006) ("the law imposes no
 17

separate standing requirement regarding the evidence which

constitutes the fruit of [the] poisonous tree"); United States

v. Green, 275 F.3d 694, 699 (8th Cir. 2001) (although defendant

lacked possessory or property interest in searched motor

vehicle, "he may still . . . seek to suppress evidence as the

fruit of his illegal detention"); Jones v. United States, 168

A.3d 703, 722-723 (D.C. 2017) (defendant's expectation of

privacy in another person's purse "not a material consideration

in the fruit-of-the-poisonous-tree analysis"). See generally 6

W.R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 11.4, at 325-326 (5th ed. 2012) (LaFave) ("If the

defendant does have standing with respect to the poisonous tree,

that alone suffices" to challenge admissibility of its fruits).

Nor is the exclusionary rule under art. 14 limited in scope

to contraband or evidence seized in a place where the defendant

had a reasonable expectation of privacy; art. 14's protection

against unreasonable searches and seizures forbids the

introduction of all evidence "sufficiently intimate" with those

unlawful acts. See Damiano, 444 Mass. at 453-454, quoting

Commonwealth v. Sylvia, 380 Mass. 180, 183 (1980). For that

reason, we have repeatedly held that persons subjected to an

illegal seizure were entitled to suppress the fruits of that

seizure even where the evidence was discovered in places where

it is indisputable that the person in question did not have a
 18

reasonable expectation of privacy. See Commonwealth v.

Rodriguez, 456 Mass. 578, 587 (2010) (concluding that even

though "[n]o one has a reasonable expectation of privacy in

items retrieved from the ground on a public park," evidence of

drugs dropped in park could nonetheless be "suppressed as the

fruit of an unconstitutional seizure . . . if [a] stop were not

supported by reasonable suspicion"). See also Commonwealth v.

Warren, 475 Mass. 530, 533, 540 (2016) (vacating denial of

motion to suppress where firearm found in yard following

unlawful seizure of defendant nearby without reasonable

suspicion); Commonwealth v. O'Laughlin, 25 Mass. App. Ct. 998,

998-1000 (1988) (reversing denial of motion to suppress where

defendant abandoned jacket containing narcotics in parking

garage while being pursued by police without reasonable

suspicion for stop).

We conclude, therefore, that to spare the cocaine from

suppression, the Commonwealth bears the burden of proving

attenuation even if the defendant did not have a reasonable

expectation of privacy in the crawl space of his residence where

the cocaine was found.7

7 Because we conclude infra that the Commonwealth has not
met its burden of proving attenuation, we need not decide
whether the defendant in fact had a reasonable expectation of
privacy in that crawl space. Accordingly, we do not consider
whether the Appeals Court's legal analysis was consistent with
 19

3. Attenuation. The Commonwealth contends that it has met

its burden to establish sufficient attenuation because the

causal chain between the illegal CSLI search -- the "poisonous

tree" -- and the subsequent discovery of the cocaine -- the

"fruits" -- was broken by the defendant's consent to the search

of his residence. We agree that, under certain circumstances, a

defendant's voluntary consent to a search of his residence may

be an intervening event that constitutes adequate attenuation,

thus allowing the evidence found during the search to be

admitted in evidence. For instance, in Damiano, 444 Mass. at

456, 459, where the defendant voluntarily consented to a search

of his home after he learned that the police had secured the

premises with his wife and child present and that the police

intended to obtain a search warrant, we concluded that the

consent was an intervening event that sufficed to prove adequate

attenuation from the illegal interception of the defendant's

communications by a private citizen.

But a defendant's consent to search, like a defendant's

consent to waive his or her right to silence after being given

Miranda warnings, does not automatically attenuate the taint of

our opinion in Commonwealth v. Leslie, 477 Mass. 48, 54 (2017),
where we held that "in cases involving a search in a multifamily
home, the validity of the search [does not turn] on the
defendant's exclusive control or expectation of privacy in the
area searched" (emphasis added).
 20

an illegality. See Brown v. Illinois, 422 U.S. 590, 602-603

(1975) ("If Miranda warnings, by themselves, were held to

attenuate the taint of an unconstitutional arrest, . . . the

effect of the exclusionary rule would be substantially

diluted"). A defendant's consent to a search cannot constitute

adequate attenuation where the consent itself is tainted by the

illegality because it was obtained through exploitation of the

fruits of the illegal search. See Commonwealth v. Midi, 46

Mass. App. Ct. 591, 595 (1999) ("When consent to search is

obtained through exploitation of a prior illegality,

particularly very close in time following the prior illegality,

the . . . compromised consent has been thought to be tainted and

inadmissible"). See also Brown, supra at 603 (where defendant

made admissions after unlawful arrest, attenuation depends on

whether defendant "act[ed] of [his or her] free will unaffected

by the initial illegality"); Estabrook, 472 Mass. at 864-865

(where defendant was confronted with evidence obtained from CSLI

in close proximity to illegality, statements made in direct

response must be suppressed); Commonwealth v. Fielding, 371

Mass. 97, 113 (1976) (defendant's statements may be "fatally

infected" where "the connection between the illegality and the

making of the statements is sufficiently intimate").

In determining whether the Commonwealth has met its burden

of proving that the defendant's consent was not tainted by
 21

evidence obtained from the illegal CSLI search, we consider

three factors: (1) the amount of time that elapsed between the

defendant being confronted with the illegally obtained CSLI

evidence and his grant of consent; (2) the presence of any

intervening circumstances during that time period;8 and (3) "the

purpose and flagrancy of the official misconduct." See Damiano,

444 Mass. at 455, citing Kaupp v. Texas, 538 U.S. 626, 633

8 The attenuation analysis regarding whether a defendant's
consent is tainted by an illegal search must differ somewhat
from the analysis regarding whether a defendant's postarrest
statements are tainted by an illegal arrest. See United States
v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004) (en banc),
cert. denied, 543 U.S. 1057 (2005) ("The analysis that applies
to illegal detentions differs from that applied to illegal
searches"). The potential taint arising from an illegal arrest
generally comes from the custody arising from the arrest, so the
temporal proximity consideration focuses on the time that has
elapsed between the arrest and the statements at issue, and any
intervening circumstances that occurred between those two
events. See Commonwealth v. Fielding, 371 Mass. 97, 114 (1976)
(three-hour period between arrest and confession, during which
defendant decided against assistance of counsel, sufficient to
attenuate confession from unlawful arrest). And the giving of
Miranda warnings is designed to diminish the coercive effect of
custodial questioning. Commonwealth v. Simon, 456 Mass. 280,
290, cert. denied, 562 U.S. 874 (2010) (recognizing that Miranda
warnings serve to "counteract[] the coercion inherent in
custodial interrogation"). In contrast, the potential taint
arising from an illegal search generally comes from the
defendant being confronted with the information derived from the
illegal search, which may influence what the defendant says and
his or her willingness to consent to a search. See United
States v. Shetler, 665 F.3d 1150, 1158 (9th Cir. 2011).
Therefore, the temporal proximity consideration in the context
of this case focuses on the time that elapsed between the
defendant being confronted with the information illegally
derived from the CSLI search and the defendant's statements or
consent, and any intervening circumstances that occurred between
these two events.
 22

(2003) (per curiam). See also Commonwealth v. Tuschall, 476

Mass. 581, 589 (2017); United States v. Shetler, 665 F.3d 1150,

1159 (9th Cir. 2011).

As to the first and second factors, the defendant's consent

was obtained immediately after Telford informed him that the

police knew he "had just gone down to Florida and purchased a

large amount of narcotics and . . . [was] possibly storing it

there" (emphasis added), information that was intimately

intertwined with the information gleaned from the unlawful CSLI

tracking. The temporal proximity between the trooper

confronting the defendant with information obtained through the

illegal CSLI tracking and the defendant's grant of consent to

search, and the absence of intervening events between that

confrontation and his consent, weigh heavily in favor of the

motion judge's conclusion that the Commonwealth has failed to

meet its burden of proving that it did not exploit the illegally

obtained information in obtaining the consent to search. See

Estabrook, 472 Mass. at 865 (finding no attenuation between

illegal CSLI search and defendant's statement because "there

were no intervening circumstances between the police questions

based on the CSLI and [defendant's] responses thereto");

Shetler, 665 F.3d at 1159 (concluding that there was "causal

connection between the illegal searches and [defendant's]

statements, particularly because [government] agents may have
 23

confronted [defendant] with illegally seized evidence during the

interview"). Although we can never know the reason why the

defendant consented to the search, we cannot eliminate the

possibility that the grant of consent was influenced by the

information Telford had just told him, which might have caused

him to believe that the refusal to consent would be futile

because it would simply trigger an application for a search

warrant of his home. See Shetler, supra at 1158 ("the answers

the suspect gives to officials questioning him may be influenced

by his knowledge that the officials had already seized certain

evidence"). See generally LaFave, supra at § 11.4(c), at 401

("Confronting a suspect with illegally seized evidence tends to

induce a confession by demonstrating the futility of remaining

silent" [citation omitted]).

The Commonwealth argues that the defendant's consent was

not influenced by the fruits of the illegal CSLI search because

the police had independently learned -- apart from the CSLI

tracking -- that the defendant lived at the residence and that

he had just returned from a drug deal in Florida. It contends

that the police knew from Kennel that the defendant was going to

New York in the brown Toyota vehicle with Cassio, knew from a

confidential informant that Cassio was traveling to Florida to

purchase drugs, knew from stopping the vehicle after the

defendant had just been dropped off at his residence that they
 24

had just returned from an extended trip, and knew from the

defendant that he had been in Florida.

But nothing about Kennel's statement to the police

suggested that the defendant was going beyond New York. And the

confidential informant's tip did not mention the defendant and

gave the police no information about when Cassio would return.

The police began to monitor the defendant's residence only when

they learned from the CSLI that the vehicle in which he was

riding was about to enter Massachusetts. They stopped the

vehicle only because the physical surveillance -- triggered by

what the police learned from the CSLI -- spotted Cassio and a

person they thought might be Dorisca leaving the residence. And

the police entered the multiunit house and sought the

defendant's consent to search his residence only because they

knew from the CSLI that Cassio and the defendant had just

returned from Florida and that the defendant might be in

possession of the drugs that he and Cassio were believed to have

purchased. See United States v. Finucan, 708 F.2d 838, 843 (1st

Cir. 1983) (government "impermissibly exploited illegally seized

material" when it "relied upon information obtained from the

seized documents in guiding [its] investigation"). Therefore,

we conclude that Telford's statement to the defendant that the

police knew he "had just gone down to Florida and purchased a

large amount of narcotics and . . . [was] possibly storing it
 25

there" was derived from the poisonous CSLI tree and was not

independently derived information.

As to the third factor -- "the purpose and flagrancy of the

official misconduct" -- we recognize that the illegal police

misconduct here was neither purposeful nor flagrant. The police

obtained judicial approval for the CSLI search pursuant to 18

U.S.C. § 2703(d) in 2008, six years before our decision in

Augustine declared that CSLI could be obtained only through a

search warrant supported by probable cause. We declared in

Augustine, 467 Mass. at 257, that "this opinion clearly

announces a new rule," noting that "neither the statute, 18

U.S.C. § 2703(d), nor our cases have previously suggested that

police must obtain a search warrant in addition to a § 2703(d)

order before obtaining an individual's CSLI from his or her

cellular service provider."

Although this factor favors the Commonwealth, it is not

dispositive. See Tuschall, 476 Mass. at 589 (concluding that

"[t]he balance of the [attenuation] factors . . . favors the

defendant" in suppression analysis even though "there was no

misconduct" by police). We do not recognize a "good faith"

exception to either the exclusionary rule or the attenuation
 26

doctrine.9 See Commonwealth v. Hernandez, 456 Mass. 528, 533

(2010) ("We have not adopted the 'good faith' exception [to

exclusionary rule] for purposes of art. 14 . . ."); Commonwealth

9 Justice Cypher, in concurring in part and dissenting in
part, contends that we should abandon our long-standing
precedent and adopt the good faith exception to the exclusionary
rule. We will not here address the merits of that argument
because the Commonwealth did not argue it below or on appeal and
it is therefore waived. See Commonwealth v. Alexis, 481 Mass.
91, 101 (2018) ("the Commonwealth waived any argument . . .
raised neither below nor on appeal"); Commonwealth v.
Bettencourt, 447 Mass. 631, 634 (2006) ("Our system is premised
on appellate review of that which was presented and argued
below").

Justice Cypher errs where she states that the issue of the
good faith exception to the exclusionary rule "was adequately
raised by the Commonwealth when it discussed attenuation." Post
at note 5. The good faith exception to the exclusionary rule is
substantively different from the consideration of police
misconduct in determining attenuation. Under a good faith
exception, evidence is admissible even if it is
unconstitutionally obtained, so long as the police acted in good
faith. See United States v. Leon, 468 U.S. 897, 922 (1984)
(fruits of search admissible where police prove that they acted
"in objectively reasonable reliance on a subsequently
invalidated search warrant"); United States v. Diehl, 276 F.3d
32, 43 (1st Cir.), cert. denied, 537 U.S. 834 (2002) (applying
good faith exception where officer mistakenly invaded curtilage
of home to obtain drug evidence). In the attenuation analysis,
however, the "purpose and flagrancy of the official misconduct"
is simply one factor of several to be considered. Commonwealth
v. Damiano, 444 Mass. 444, 455 (2005). The absence of police
misconduct is not determinative of attenuation. See
Commonwealth v. Tuschall, 476 Mass. 581, 589-590 (2017).
Recognizing these considerations, the Commonwealth, citing
Damiano, referenced the lack of police misconduct as only one
factor in its broader discussion of attenuation. Therefore, the
Commonwealth cannot be said to have raised the issue whether to
adopt a good faith exception, and the issue must be deemed
waived. See Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000)
("issues must be raised in lower courts in order to be preserved
as potential grounds of decision in higher courts").
 27

v. Upton, 394 Mass. 363, 370 & n.5 (1985) (G. L. c. 276, §§ 1,

2A, and 2B, "bar any judicial consideration of admitting

evidence seized pursuant to a search warrant issued without a

showing of probable cause, even if the officer executing the

warrant was proceeding in objectively reasonable reliance on the

warrant"). In Estabrook, 472 Mass. at 854, 864-865, where the

CSLI also was obtained before our Augustine decision, we

suppressed a defendant's statements to police where the

statements 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." The facts of this case compel the same result.

Contrast Damiano, 444 Mass. at 458 (where illegal interception

was done by private citizen rather than police in violation of

Federal wiretap statute, "the complete lack of police

involvement in the underlying illegal interception is not an

insignificant fact in assessing the necessary reach of the

exclusionary rule and the adequacy of the attenuating

circumstances").

In sum, we agree with the motion judge that the

Commonwealth has failed to meet its burden of proving that it

did not exploit the illegally obtained CSLI in obtaining the

defendant's consent to search, where that consent was intimately

intertwined -- both temporally and causally -- with the
 28

information gleaned from the unlawful CSLI tracking and was

obtained immediately after Telford confronted the defendant with

that information.

Conclusion. The order of the Superior Court judge granting

the defendant's motion to suppress is affirmed.

So ordered.
 LOWY, J. (concurring). While the court's outcome is

legally correct under present law, I appreciate the call, in

Justice Cypher's opinion concurring in part and dissenting in

part, for Massachusetts to recognize a good faith exception to

the exclusionary rule. As Justice Cypher's opinion emphasizes,

"The primary purpose of the exclusionary rule is to deter future

police misconduct by barring, in a current prosecution, the

admission of evidence that the police have obtained in violation

of rights protected by the Federal and State Constitutions."

Commonwealth v. Santiago, 470 Mass. 574, 578 (2015). See Davis

v. United States, 564 U.S. 229, 236-237 (2011); United States v.

Leon, 468 U.S. 897, 909 (1984). There is no deterrent value in

suppressing evidence "when the police act with an objectively

'reasonable good-faith belief' that their conduct is lawful."

Davis, supra at 238, quoting Leon, supra. On the other hand,

there is value in the certainty that a constitutional violation

will have consequences.

However, since Massachusetts has never recognized the "good

faith" exception, Commonwealth v. Valerio, 449 Mass. 562, 569

(2007), adopting this exception to the exclusionary rule would

be a significant departure from our present jurisprudence. Such

a departure, in my opinion, should not be made in a situation

where neither party raised the issue, either below or before

this court. So although I recognize the potential benefits to
 2

adopting a good faith exception to the exclusionary rule in the

Commonwealth, such a major question would be best answered after

both sides to the argument are presented to the court and we

determine whether to adopt or reject such a change after due

consideration.
 CYPHER, J. (concurring in part and dissenting in part).

The Commonwealth concedes that the cell site location

information (CSLI) tracking of Cassio Vertil's (Cassio's)

cellular telephone (cell phone) was unlawful because it was not

authorized by a search warrant. It argues, however, that the

defendant did not have standing to challenge the unlawful

tracking. I agree with the court that under Commonwealth v.

Rousseau, 465 Mass. 372, 382 (2013), the defendant has standing

to challenge the search of Cassio's cell phone because his

movements were tracked for six days.1 Because the electronic

1 In Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013), we
concluded that "under art. 14 [of the Massachusetts Declaration
of Rights], a person may reasonably expect not to be subjected
to extended [global positioning system] electronic surveillance
by the government, targeted at his movements, without judicial
oversight and a showing of probable cause." We did not decide
how broadly such an expectation might reach and to what extent
it may be protected. Id. However, the fact that police
monitored Rousseau over a thirty-one-day period was sufficient
to establish that he had standing to challenge the validity of
the warrant.

Here, the defendant was targeted for substantially less
time -- six days -- than the defendant in Rousseau. The court
does not recognize any distinction between the two time frames.
I too think it is difficult to do so without creating an
arbitrary time frame. The length of time must be considered on
a case-by-case basis.

I also think it is important to emphasize that while the
passenger here and in Rousseau were both "targets" of the
tracking, we have not yet adopted "target" standing in
Massachusetts. See Commonwealth v. Santiago, 470 Mass. 574,
577-578 (2015). However, we have indicated that
"[u]nconstitutional [searches of] small fish intentionally
 2

tracking of the cell phone was ongoing while police searched the

defendant's apartment and there was no temporal break between

the unlawful police activity and the search of the defendant's

apartment, I also agree that the defendant's consent to search

his apartment was not attenuated from the police's illegal

conduct. See Commonwealth v. Gentile, 466 Mass. 817, 831

(2014). And I agree, albeit not based on the Massachusetts

support cited by the court, that the fruits of that search --

the cocaine -- must be suppressed, even though the defendant had

no reasonable expectation of privacy in the crawl space.2 See

undertaken in order to catch big ones may have to be discouraged
by allowing the big fish, when caught, to rely on the violation
of the rights of the small fish, as to whose prosecution the
police are relatively indifferent" (citation omitted). Id.
That is clearly not the case here, or in Rousseau. It is
important to understand the distinction between "target
standing," which permits a criminal defendant who is the
"target" of a search, i.e., the big fish, to contest the
legality of that search and object to the admission at trial of
evidence obtained as a result of the search, see id., and the
standing recognized in Rousseau and by the court here, which
emphasizes that a person who is specifically tracked for an
extended period of time has standing to contest that search. I
would not necessarily conclude that an incidental passenger in a
car that was being tracked would have standing to challenge a
search.

2 The court does not reach the issue of whether the
defendant had a reasonable expectation of privacy in the crawl
space where the cocaine was discovered. See ante at note 7.
The court states, "[W]e do not consider whether the Appeals
Court's legal analysis was consistent with our opinion in
Commonwealth v. Leslie, 477 Mass. 48, 54 (2017), where we held
that 'in cases involving a search in a multifamily home, the
validity of the search [does not turn] on the defendant's
 3

Jones v. United States, 168 A.3d 703, 722-723 (D.C. 2017). See

generally 6 W.R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 11.4, at 325-326 (5th ed. 2012) ("If the

exclusive control or expectation of privacy in the area
searched'" (emphasis added). Ante at note 7. Leslie, supra,
instructs that we apply the same curtilage analysis to multiunit
homes as we do to single-family homes, where in the past we have
held that a tenant does not have a reasonable expectation of
privacy in a "common area" in an apartment building, see
Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971).

If I were not constrained to conclude that the cocaine must
be suppressed as fruit of the illegal search of the cell phone,
and if I were to decide the crawl space issue, I would conclude
that the defendant did not have a reasonable expectation of
privacy in the crawl space. Applying the four-factor test
introduced in United States v. Dunn, 480 U.S. 294, 301 (1987),
which we adopted in Leslie, 477 Mass. at 55, I would conclude
that the crawl space was not "so intimately tied to the
[defendant's apartment] itself that it should be placed under
the [apartment's] 'umbrella' of Fourth Amendment protection."
Id., quoting Dunn, supra. See Commonwealth v. Fernandez, 458
Mass. 137, 142 (2010) ("In the context of a curtilage
determination, we undertake our independent review cognizant
that there is no finely tuned formula that demarcates the
curtilage in a given case" [quotation and citation omitted]).

I do not read the Leslie decision as granting multiunit
apartment buildings the same broad protection as a single-family
home. Although the court in Leslie expanded the protection that
may be given curtilage in such circumstances, the facts must
still be analyzed. Otherwise, an overly broad interpretation
may lead to results that are inconsistent with the over-all
framework of our search and seizure jurisprudence. For example,
the broadest reading of Leslie would require us to conclude that
a tenant on the first-floor apartment has the same
constitutional protections in his own apartment as he does in a
separate apartment on the second floor. Although the crawl
space is enclosed within the four walls of the apartment
building, it does not necessarily warrant the same protections
as the areas enclosed inside the four walls of a single-family
home. The Dunn factors were applied in Leslie. I would apply
them here.
 4

defendant does have standing with respect to the poisonous tree,

that alone suffices" to challenge admissibility of its fruits).

I dissent because I think that it is time that we adopt a

good faith exception to the exclusionary rule in circumstances,

such as here, where at the time the police sought judicial

permission to track the cell phone, they were properly complying

with the law, namely, the Stored Communications Act, 18 U.S.C.

§ 2703(d) (2006) (SCA).

1. Reasonable expectation of privacy in the crawl space.

I start by briefly highlighting that we have never articulated

that any fruit, even those fruits in areas where the defendant

does not have a reasonable expectation of privacy, must be

suppressed if its discovery flows from an illegal search. The

court concludes that the tracking of Cassio's CSLI was illegal,

the defendant's consent to search his apartment did not remove

the taint of the initial illegality, and therefore all evidence

against the defendant must be suppressed. The court determines

that we need not address whether the defendant had a reasonable

expectation of privacy in the crawl space where the cocaine was

found because "we have repeatedly held that persons subjected to

an illegal seizure were entitled to suppress the fruits of that

seizure even where the evidence was discovered in places where

it is indisputable that the person in question did not have a

reasonable expectation of privacy." See ante at . To
 5

support this proposition, the court cites three cases. See

Commonwealth v. Warren, 475 Mass. 530, 533, 540 (2016);

Commonwealth v. Rodriguez, 456 Mass. 578, 587 (2010);

Commonwealth v. O'Laughlin, 25 Mass. App. Ct. 998, 998-999

(1988). These three cases all are inapposite to the facts and

circumstances of the present case and do not fully support the

broad proposition that any fruit, even those fruits in areas

where the defendant does not have a reasonable expectation of

privacy, must be suppressed if its discovery flows from an

illegal search.3

The court does point to Federal law, however, in support of

its position. See United States v. Olivares-Rangel, 458 F.3d

1104, 1117 (10th Cir. 2006) ("While the fruit of the poisonous

3 In Commonwealth v. Rodriguez, 456 Mass. 578, 587 (2010),
we stated that if a defendant drops contraband on the ground in
a public park after he was stopped in the constitutional sense,
the drugs could be suppressed as fruits of an unlawful seizure
if the stop was not supported by reasonable suspicion. Both
Commonwealth v. Warren, 475 Mass. 530, 533 (2016), and
Commonwealth v. O'Laughlin, 25 Mass. App. Ct. 998, 999 (1988),
are cases in which the defendant discarded contraband while
fleeing from police. In those cases, we suppressed the evidence
because police did not have reasonable suspicion to stop the
defendant. See Warren, supra at 540; O'Laughlin, supra at 999-
1000. The results in these cases flow from our decision in
Commonwealth v. Stoute, 422 Mass. 782, 789 (1996), in which we
held that art. 14 provides more protection than the Fourth
Amendment to the United States Constitution in defining the
moment at which a person's personal liberty has been
significantly restrained by the police, so that he or she may be
said to have been seized within the meaning of art.
14. Contrast California v. Hodari D., 499 U.S. 621, 629 (1991).
Thus, we did not use an attenuation framework in these cases.
 6

tree doctrine applies only when the defendant has standing

regarding the Fourth Amendment violation which constitutes the

poisonous tree, . . . the law imposes no separate standing

requirement regarding the evidence which constitutes the fruit

of that poisonous tree"); United States v. Green, 275 F.3d 694,

699 (8th Cir. 2001). Historically, we have often granted

greater protections to defendants under art. 14 of the

Massachusetts Declaration of Rights than the protections

provided under the Fourth Amendment to the United States

Constitution. See Commonwealth v. Alexis, 481 Mass. 91, 98-99

(2018), and cases cited. For this reason, I am inclined to

think that although we have never specifically stated it, we

would come to the same conclusion as the Federal courts and

declare that fruits, such as the cocaine here, should be

suppressed.

2. The exclusionary rule. The Commonwealth obtained CSLI

from Cassio's cell phone in 2008 pursuant to an SCA order that

the Commonwealth properly sought and obtained. Under the SCA, a

court may order a telephone company to produce records,

including CSLI records, "if the governmental entity offers

specific and articulable facts showing that there are reasonable

grounds to believe that the . . . records or other information

sought . . . are relevant and material to an ongoing criminal

investigation." 18 U.S.C. § 2703(d). In 2014, six years after
 7

the Commonwealth lawfully obtained the CSLI, we held that the

government must secure a warrant before accessing CSLI records.

Commonwealth v. Augustine, 467 Mass. 230, 254-255 (2014), S.C.,

470 Mass. 837 and 472 Mass. 448 (2015). Four years after

Augustine, the United States Supreme Court held that the

government acquisition of CSLI records constitutes "a search

within the meaning of the Fourth Amendment."4 Carpenter v.

United States, 138 S. Ct. 2206, 2220 (2018).

In any consideration of police conduct, we must be

cognizant that "[r]easonableness [is] the 'touchstone'" of art.

14 and the Fourth Amendment. Commonwealth v. Roland R., 448

Mass. 278, 281 (2007), quoting Commonwealth v. Gaynor, 443 Mass.

245, 256 (2005). The contours of reasonableness are drawn by a

consideration of the nature of the intrusion into the privacy

interest at play, Commonwealth v. Feyenord, 445 Mass. 72, 86

(2005) (Greaney, J., concurring), cert. denied, 546 U.S. 1187

(2006), and the nature of the law enforcement interest at stake.

"The primary purpose of the exclusionary rule is to deter future

4 In Commonwealth v. Augustine, 467 Mass. 230, 232, 254-255
(2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015), because
there was no Federal or Massachusetts decision regarding whether
obtaining CSLI data was a search in the constitutional sense, we
remanded the case to the Superior Court to determine whether the
application pursuant to 18 U.S.C. § 2703(d) established probable
cause. Here, I agree with the Appeals Court and conclude that a
remand is not necessary because the application in 2008 cannot
establish probable cause.
 8

police misconduct by barring, in a current prosecution, the

admission of evidence that the police have obtained in violation

of rights protected by the Federal and State Constitutions."

Commonwealth v. Santiago, 470 Mass. 574, 578 (2015). "[W]here

'the exclusionary rule does not result in appreciable

deterrence, then, clearly, its use . . . is unwarranted.'"

Commonwealth v. Wilkerson, 436 Mass. 137, 142 (2002), quoting

United States v. Janis, 428 U.S. 433, 454 (1976). Another

consideration is the protection of judicial integrity through

the dissociation of the courts from unlawful conduct. See

Commonwealth v. Ford, 394 Mass. 421, 433 (1985) (Lynch, J.,

dissenting). Where those purposes are not furthered, rigid

adherence to a rule of exclusion can only frustrate the public

interest in the admission of evidence of criminal activity.

Commonwealth v. Brown, 456 Mass. 708, 715 (2010).

The Supreme Court recognizes a "good faith" exception to

the exclusionary rule where the government "act[s] with an

objectively reasonable good-faith belief that their conduct is

lawful" (quotation and citation omitted). Davis v. United

States, 564 U.S. 229, 238 (2011). We have not adopted the good

faith exception to the exclusionary rule, yet we have never

specifically articulated why art. 14 might prohibit us from

doing so. Instead, where the good faith exception has been

addressed and not reflexively dismissed, our cases have focused
 9

on whether the violations are substantial and prejudicial. See

ante at . See Commonwealth v. Hernandez, 456 Mass. 528, 533

(2010); Commonwealth v. Rutkowski, 406 Mass. 673, 677 (1990).

We have said that "the mere fact that an unlawful search and

seizure has occurred should not automatically result in the

exclusion of any illegally seized evidence." Commonwealth v.

Gomes, 408 Mass. 43, 46 (1990). See, e.g., Commonwealth v.

Holley, 478 Mass. 508, 525 (2017) (warrant did not comply with

particularity requirement or limit scope of search, but

defendant "suffered no prejudice"); Hernandez, supra;

Commonwealth v. Beldotti, 409 Mass. 553, 559 (1991).

Using the standard that has been articulated to determine

whether to exclude evidence obtained as a result of an illegal

search or seizure, we balance (1) the degree to which the

violation undermined the principles underlying the governing

rule of law, and (2) the extent to which exclusion will tend to

deter such violations from being repeated in the future. Gomes,

408 Mass. 46. See Hernandez, 456 Mass. at 532 (exclusion is

deterrent to abuse of official power based on application of

State legal principles); Wilkerson, 436 Mass. at 142;

Commonwealth v. Benoit, 382 Mass. 210, 216 (1981), S.C., 389

Mass. 411 (1983) (exceptions to strict application of

exclusionary rule are justified when deterrence rationale is

outweighed by competing societal interest in convicting guilty).
 10

Where we have allowed the introduction at trial of evidence that

was obtained through an illegality, it has usually turned on

whether there was a technical error in procuring a warrant, not

whether the police conduct was legal at the time the warrant was

procured. See Holley, 478 Mass. at 525-526; Rutkowski, 406

Mass. at 677.

With the touchstone of art. 14 in mind, I think that it is

time we adopt the good faith exception to the exclusionary rule

in circumstances, such as here, where the police had an

objectively reasonable good faith belief that their conduct was

lawful at the time they applied for the SCA order. See Illinois

v. Krull, 480 U.S. 340, 350 (1987) ("Penalizing the officer for

the [legislature's] error, rather than his own, cannot logically

contribute to the deterrence of Fourth Amendment violations"

[citation omitted]).

Here, police fully complied with the terms of § 2703(d),

which authorized the release of CSLI. Police acted in good

faith in seeking the SCA order and in relying on what they (and

the judge issuing the order) reasonably understood was the

existing law at the time. In 2008, no precedent -- whether

Federal or in the Commonwealth -- indicated that the use of

§ 2703(d) to obtain CSLI was unconstitutional. There was

nothing to suggest to the government that it reasonably could

not rely on the statutory scheme set forth in § 2703(d).
 11

Therefore, I would hold that the fact that Augustine

subsequently invalidated any means of obtaining CSLI without

probable cause and a warrant does not require suppression of

CSLI obtained six years earlier in 2008. See Brown, 456 Mass.

at 715 ("Judicial integrity . . . is hardly threatened when

evidence properly obtained under Federal law, in a federally run

investigation, is admitted as evidence in State courts. To

apply the exclusionary rule in these circumstances . . . would

plainly frustrate the public interest disproportionately to any

incremental protection it might afford"). See also United

States v. Adkinson, 916 F.3d 605, 611 (7th Cir. 2019); United

States v. Goldstein, 914 F.3d 200, 203 (3d Cir. 2019) (even

though collection of evidence violated Fourth Amendment,

prosecutors relied on objectively good faith belief that

obtaining defendant's data was legal under § 2703[d]); United

States v. Curtis, 901 F.3d 846, 849 (7th Cir. 2018) ("though it

is now established that the Fourth Amendment requires a warrant

for the type of cell-phone data present here, exclusion of that

information was not required because it was collected in good

faith"); United States v. Zodhiates, 901 F.3d 137, 143 (2d Cir.

2018), cert. denied, 139 S. Ct. 1273 (2019) (good faith

exception to exclusionary rule applies to CSLI, obtained prior

to Supreme Court's decision in Carpenter, pursuant to § 2703[d]

because search was made in "objectively reasonable reliance on
 12

appellate precedent existing at the time of the search"). See

generally Commonwealth v. Gonzalez, 90 Mass. App. Ct. 100, 106

(2016).

Because the SCA order was sought and issued on an informed

understanding of State constitutional principles in place in

2008 and because there is no suggestion of misconduct by any

agent of the Commonwealth, the suppression of the evidence

obtained pursuant to the order would disserve the enduring

deterrent rationale of the exclusionary rule. See Hernandez,

456 Mass. at 532; Gomes, 408 Mass. at 46. Accordingly, even if

obtained in violation of art. 14, the CSLI at issue should be

admitted.5

5 The court does not reach the issue of the good faith
exception on the ground that the issue was not raised. I think
the issue was adequately raised by the Commonwealth when it
discussed attenuation. The court notes that "the good faith
exception to the exclusionary rule is substantively different
from the consideration of police misconduct in determining
attenuation." See ante at note 9. I disagree. While police
misconduct is but one factor in our attenuation analysis, that
factor is sufficiently intertwined, in this case, with the
question whether the police acted in good faith that I do not
see a meaningful distinction. See Davis v. United States, 564
U.S. 229, 238 (2011) (good faith exception to exclusionary rule
applies where police "act with an objectively reasonable good-
faith belief that their conduct is lawful"). That being said, I
recognize that the two concepts are not one and the same. I
agree with the court that the defendant's consent was not
attenuated from the search of his cell phone, mainly because the
search was ongoing while the police approached the defendant's
door. However, I reiterate that whenever we discuss the
exclusionary rule, whether it be in the purview of attenuation
or good faith, the touchstone of art. 14 is reasonableness. The
Commonwealth argued that the police acted in good faith under
Commonwealth v. Damiano, 444 Mass. 444, 455 (2005). Keeping in
mind the primary purpose of the exclusionary rule -- to deter
police misconduct -- I would give the Commonwealth the benefit
in applying that reasoning to the overarching theme of the good
faith exception. See Santiago, 470 Mass. at 578.