Opinion
21-P-704
04-08-2022
COMMONWEALTH v. Jason ROBINSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order suppressing evidence seized from the search of the defendant's cell phone six weeks after a homicide. Because we agree with the Superior Court judge that the affidavit authored by a Massachusetts State trooper in support of the search warrant application failed to establish a sufficient nexus between the defendant's cell phone and the shooting to establish probable cause, we affirm.
Background. We recite the significant facts set forth in the trooper's affidavit in support of the search warrant. On July 11, 2019, the victim was shot and killed at approximately 9 P.M. in Fitchburg. The victim's friend, Bassam Nzovu, told police that the victim was a known marijuana dealer who carried marijuana and money in a backpack. Nzovu showed police Snapchat videos and photos posted by the victim, including one depicting a jar of marijuana nuggets with a multicolored "Moon Rocks" label.
Nzovu told police that he, the victim, and a third friend were walking down the street when they were approached by two unknown men. One of the men asked, "Do you have a light?" and then both produced handguns. Nzovu ran, heard gunshots, and returned shortly after to discover the victim lying on the ground unresponsive. Video footage showed a dark-colored Chrysler 300 sedan stop in the area shortly before the shooting. Two individuals exited the vehicle; one of them was wearing dark-colored track pants with a white stripe running down the leg. The two individuals confronted a group of three other individuals; there was a bright flash consistent with a muzzle flash; and one of the two removed a large object from the victim's body. Then the two individuals, one of them holding a dark object consistent with a backpack, ran from the area of the shooting and entered the Chrysler.
After police posted an officer safety bulletin regarding the Chrysler, Quincy police notified investigators of an incident from July 15, 2019 (four days after the shooting) involving a black Chrysler 300. The Chrysler crashed after a police pursuit that began when the driver, who was speeding, refused to stop for police. Five individuals, including one Mugisha Jeanbosco, fled the Chrysler after it crashed and were arrested. At the scene, Quincy police located a dark-colored backpack containing identification for Jeanbosco and several containers of marijuana, two of which had multicolored "Moon Rocks" labels. Two nine millimeter handguns were also retrieved from the area of the crash.
Investigators learned from license plate readers and surveillance cameras that the Chrysler had stopped at a Leominster gas station on July 11, about forty-five minutes after the homicide. Surveillance footage revealed that one of the men who exited the vehicle at the gas station was wearing black track pants with a white stripe down the side and matched Jeanbosco's booking photo in appearance and physical description.
Approximately six weeks after the homicide, the defendant, who was in custody after being arrested for an unrelated offense, told police that he had information about the homicide. He stated that he was friendly with the victim and had purchased marijuana from him in Fitchburg at approximately 5 or 6 P.M . on the day of the homicide. He stated that after he traveled to Worcester to sell half of the marijuana to a friend, "Bri," he used his cell phone to send a Facetime audio message to the victim asking to purchase more marijuana, but the victim did not answer. The defendant stated that he and Bri drove back to Fitchburg a few hours later in Bri's gray BMW hatchback, stopping at a gas station in Leominster, and did not have contact with anyone else.
The defendant was then shown July 11 footage from the Leominster gas station that depicted an individual with a blue bandanna, whom the defendant identified as himself. The footage showed the defendant interacting with the man with the black track pants with the white stripe who exited the Chrysler. The defendant identified this man as Jahvon Jones, his child's uncle, and stated that he had happened to run into Jones at the gas station that night.
The defendant also told police that an individual he was friendly with named "Mo" might have been involved in the victim's homicide. He stated that he was friendly with Mo, had frequent cell phone-based communication with him, and last spoke with him while they were smoking marijuana in Worcester two months earlier. He stated that Mo and his friend "Law" were in the same gang and were known for robbing area drug dealers. The defendant also stated that Law competed with the victim in street level marijuana sales. The defendant showed police a photo from his cell phone camera roll of a Glock firearm, which the defendant said Mo had sent to the defendant on June 21 (about three weeks before the shooting) on Snapchat. In his affidavit the trooper stated that the handgun depicted in the photo was "consistent in appearance" with the handgun seized in Quincy. The trooper also stated that "Mo" is "a nickname attributed to Mugisha Jeanbosco," but the affidavit did not identify any source for this information.
Discussion. Under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a search warrant may issue only on a showing of probable cause. See Commonwealth v. Valerio, 449 Mass. 562, 566 (2007). We review the four corners of the affidavit to determine whether it established probable cause to support the search warrant. See Commonwealth v. O'Day, 440 Mass. 296, 297-298 (2003). The affidavit is "taken as a whole and read in a commonsense fashion." Commonwealth v. Alfonso A., 438 Mass. 372, 375 (2003). "In dealing with probable cause ... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act." Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175 (1949). Accordingly, search warrant affidavits are to be interpreted in a realistic and commonsense manner, and should be "read as a whole, not parsed, severed, and subjected to hypercritical analysis." Commonwealth v. Donahue, 430 Mass. 710, 172 (2000), quoting Commonwealth v. Blake, 413 Mass. 823, 827 (1992).
Probable cause to search requires a "substantial basis to conclude that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues" (quotation omitted). Commonwealth v. Snow, 486 Mass. 582, 586 (2021). With respect to a search warrant for the contents of a cell phone, the supporting affidavit "must establish probable cause to believe (i) that a particularly described offense has been, is being, or is about to be committed; and (ii) that the cell phone's contents will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense" (quotations omitted). Commonwealth v. Mack, 482 Mass. 311, 320 (2019). "It may well be the case that many of [those] ... who own a cell phone [in effect] keep on their person a digital record of nearly every aspect of their lives, including, presumably, communications with their coventurers" (quotation omitted). Commonwealth v. White, 475 Mass. 583, 591 (2016). However, "[w]hile probable cause may be based in part on police expertise or on the practical considerations of everyday life, ... such considerations do not, alone, furnish the requisite nexus between the criminal activity and the places to be searched or seized" (quotations omitted). Id. Finally, and importantly, when a search warrant affidavit relies on information from an informant, art. 14 of the Massachusetts Declaration of Rights requires application of the two-prong Aguilar-Spinelli test to ensure that the affidavit establishes the informant's basis of knowledge and veracity. See Commonwealth v. Arias, 481 Mass. 604, 618 (2019).
The affidavit here included the defendant's assertions that Mo might have been involved in the victim's homicide and was known for robbing area drug dealers with his friend and fellow gang member Law. Because the affidavit identified the defendant by name as the informant, his veracity may be presumed. See Commonwealth v. Alvarez, 422 Mass. 198, 204 (1996). However, the affidavit did not provide the defendant's basis of knowledge for his allegations regarding Mo. To satisfy the basis of knowledge prong of the Aguilar-Spinelli test, the information provided by an informant must be "more than a casual rumor or an individual's general reputation." Commonwealth v. Robinson, 403 Mass. 163, 165 (1988). See Commonwealth v. Allen, 406 Mass. 575, 578 (1990) (no way to test reliability where statements based on "casual rumor" or "reputation"). The information provided by the defendant also did not include enough detail such that we can infer that it was based on personal knowledge. Compare Alvarez, supra at 207 (specificity of the information provided by the informant satisfied the basis of knowledge test), with Commonwealth v. O'Brien, 30 Mass. App. Ct. 807, 810 (1991) (information consisted of casual rumor and speculation).
Although "independent police corroboration can make up for deficiencies in either or both prongs" of the Aguilar-Spinelli test, Commonwealth v. Upton, 394 Mass. 363, 376 (1985), the affidavit here failed to provide meaningful corroboration of the defendant's statements about Mo. The affiant's statement, that Mo was "a nickname attributed to" Jeanbosco, did not bridge this gap because the affidavit did not provide the affiant's basis of knowledge for this statement. See Commonwealth v. Causey, 356 Mass. 125, 128 (1969) (affidavit must include "a sufficient statement of the basis of the affiant's knowledge"); Howland v. Cape Cod Bank & Trust Co., 26 Mass. App. Ct. 948, 949 (1988) (" ‘affidavit’ ... implies a statement under oath by a person having direct knowledge of the facts which [they] verif[y], except as otherwise clearly stated in the affidavit itself" [emphasis omitted]). Therefore, while we presume the officer's veracity, we cannot rely on his assertion that Jeanbosco was Mo. Accordingly, the information that the defendant provided about Mo is entitled to little, if any, weight in determining whether probable cause existed to believe that evidence of the crime would be found on the defendant's phone.
There was ample independent reason to believe that Jeanbosco was involved and, if Jeanbosco were really Mo, that would corroborate the defendant's statements that Mo was involved.
Even if that were not the case, the affidavit failed to establish a reasonable probability that any particular evidence about the shooting, including evidence of Jeanbosco's or any other person's involvement with it, would be found on the defendant's phone. In this regard, the affidavit contained three significant gaps. First, the statement in the affidavit that the firearm in the photo on the defendant's phone, said to have been taken and sent by Mo approximately three weeks before the shooting, "is consistent in appearance with the Glock firearm recovered in Quincy," was not specific enough, without more, to provide probable cause to believe that the photo depicted the same firearm.
Second, neither the defendant's purchase of marijuana from the victim shortly before the shooting, nor the defendant's unanswered message to the victim later that evening, supplied an adequate nexus between his phone and the crime. See Commonwealth v. Fulgiam, 477 Mass. 20, 34-35, cert. denied, 138 S.Ct. 330 (2017) (no nexus even though defendant communicated with codefendant and victim by cell phone on day of murders).
Third, the defendant's interaction with Jeanbosco at the gas station after the murder also failed to establish a nexus between the crime and the defendant's phone, especially considering that nothing in the affidavit indicated that the defendant's cell phone was ever used to communicate with Jeanbosco. Cf. Commonwealth v. Morin, 478 Mass. 415, 426 (2017) ("information that an individual communicated with another person, who may have been linked to a crime, without more, is insufficient to establish probable cause to search either individual's cellular telephone"). Therefore, the affidavit failed to establish probable cause to support the search warrant for the defendant's cell phone.
Order allowing motion to suppress affirmed.