Commonwealth v. Fredericq , 482 Mass. 70 ( 2019 )

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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.