Opinion
SUCR2011-10748
08-28-2014
Commonwealth v. Shabazz Augustine No. 127972
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
Peter B. Krupp, Justice
This case came before me after remand from the Supreme Judicial Court to determine whether a 2004 application under 18 U.S.C. § 2703, which demonstrated the investigative relevance of two weeks of historical cell site location information (" CSLI") for the cellular telephone used by defendant Shabazz Augustine (" Augustine"), met the requisite probable cause standard under art. 14 of the Massachusetts Declaration of Rights. Commonwealth v. Augustine (" Augustine "), 467 Mass. 230, 256, 4 N.E.3d 846 (2014). The issue is not clear-cut, requiring analysis of the meaning of probable cause under art. 14, particularly in the context of CSLI. For the reasons that follow, I find the 2004 application does not demonstrate probable cause under art. 14 and ALLOW the motion to suppress.
FACTS
A. Background Facts and Procedure
Julaine Jules (" Jules") left work in Boston in the middle of her shift on the evening of August 24, 2004. Her car was found ablaze in Revere five hours later. Jules' father reported her missing on August 25. On September 19, Jules' body was found in the Charles River. Between August 25 and September 22, the police were unable to locate anyone who had seen Jules after she left work on August 24. Because Augustine was one of Jules' boyfriends, investigators focused on him, perhaps among others.
All dates are in 2004 unless stated otherwise.
As part of its investigation, on September 22, the Middlesex District Attorney's Office sought an order under 18 U.S.C. § 2703(c) for two weeks of historical CSLI for the cellular telephones used by Jules and Augustine beginning on August 24. They did so with a supporting Affidavit of Trooper Mary McCauley (" the affidavit"), which recited facts and concluded, consistently with the requirements of 18 U.S.C. § 2703(c) and (d), that the requested " records would be important to show the general location of both Jules and Augustine on August 24th and 25th"; which, " [for example . . . would be very important to possibly include or exclude Augustine as a suspect" and " to find out where Augustine was in between the time that Jules disappeared and then was found in the Charles River." ¶ 12. Trooper McCauley's affidavit does not conclude that the facts contained therein demonstrate probable cause either to believe that Augustine committed a crime, or that evidence of a crime would be found in the historical CSLI for Augustine's cellular telephone.
The paragraphs of the affidavit are cited as " ¶ ."
18 U.S.C. § 2703 allows a governmental entity to " require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service, " 18 U.S.C. § 2703(c)(1), if it " obtains a court order for such disclosure, " id ., § 2703(c)(1)(B), issued upon a government offer of " 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 ." Id ., § 2703(d) (emphasis added). This standard " is merely reasonable suspicion that the CSLI records 'are relevant and material to an ongoing investigation, ' not reasonable suspicion that the user of the telephone has committed, is committing, or is about to commit an offense." Augustine , 467 Mass. at 266 (Gants, J., dissenting).
In Augustine , the Supreme Judicial Court determined " that although the CSLI at issue here is a business record of the defendant's cellular service provider, he [defendant] had a reasonable expectation of privacy in it, and in the circumstances of this case--where the CSLI obtained covered a two-week period--the warrant requirement of art. 14 applies." 467 Mass. at 232. The Court also held that in this context the showing required is " probable cause to believe 'that a particularly described offense has been, is being, or is about to be committed, and that [the CSLI being sought] 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 .'" Id . at 256 (emphasis added), quoting Commonwealth v. Connolly , 454 Mass. 808, 825, 913 N.E.2d 356 (2009). Accord Augustine , 467 Mass. at 236-37 n.15. The Court vacated the decision by the Superior Court (Sanders, J.) allowing Augustine's motion to suppress and remanded the case for consideration of " whether the Commonwealth's 2004 application for the § 2703(d) order met the requisite probable cause standard of art. 14." Id . at 256.
The Commonwealth may have been able to avoid the need to make this probable cause showing had it sought records covering a much shorter period. That issue is not before me.
The matter was not remanded for determination by the same judge who heard the motion in the first instance. Augustine , 467 Mass. at 256.
B. The Supporting Affidavit
Because resolution of defendant's motion requires careful evaluation of the affidavit, I discuss the facts set out therein, and the reasonable inferences to be drawn therefrom, in some detail. For clarity, I have organized these facts and inferences chronologically rather than as they appear in the affidavit.
Jules lived in Malden with her family. ¶ 2. She worked the 3 p.m. to 11 p.m. shift at a credit card concierge company at 300 Congress Street in Boston. ¶ 2. She had two boyfriends: defendant, who lived in Dorchester, and Marlon J. Barnett (" Barnett"), who lived in Ft. Lauderdale, Florida. ¶ 4.
The affidavit also spells Barnett's first name as " Marlin." ¶ 11(a)(v).
Jules spent the weekend of August 21-22 in the Boston area with Barnett, who returned to Florida on Monday, August 23. ¶ 4. The affidavit dated September 22 states that Augustine did not know about Barnett " until recently." ¶ 4. Although it is unclear from the affidavit when Augustine learned of Barnett's existence (i.e. what " until recently" means), it is reasonable to infer that by August 24 Augustine at least had suspicions about Jules having another boyfriend, if he did not actually know who Barnett was.
Jules tried to keep her involvement with Barnett a secret from Augustine, telling him she " was busy" during the weekend of August 21-22. ¶ 4. On August 24 at 6:11 p.m., however, a 40-second outgoing call was made from Augustine's cell phone to Barnett's home telephone number. ¶ 11(b)(ii). While it is reasonable to infer that Augustine placed this call, there is no indication Augustine reached Barnett or even that Augustine knew who he was calling. Barnett told investigators he did not know Augustine, id ., suggesting he had not spoken to Augustine, had not knowingly received a call from him, or was lying to the police.
At noon on August 24, Jules left her family's home in Malden. ¶ 2. She was scheduled to begin work at 3 p.m. ¶ 2. There is no information in the affidavit indicating how Jules got to work, whether she routinely commuted by car, and what Jules did between leaving her home in Malden and arriving at work. Jules did go to work on August 24. ¶ 2. Although her assigned shift ended at 11 p.m., she left her workstation at about 7:10 p.m. with her car keys and cell phone. ¶ 2. The reasonable inference is that she left unexpectedly and abruptly, intending to return. She left her wallet, driver's license, bank card and other personal papers at her workstation. ¶ 2. She did not return.
While Jules was at work on August 24, Augustine called his cousin Melissa Mitchell (" Mitchell") at about 5:15 p.m. and asked Mitchell to call Jules at work to tell her that he was sick and needed to see her right away at home. ¶ ¶ 5, 6. Mitchell did so, believing that she was setting up a romantic evening for Augustine and Jules. ¶ 5. Soon after, at 5:36 p.m., perhaps as part of this ruse, Augustine placed a two-minute call to Jules' cell phone. ¶ 11(a)(i).
Mitchell's statements are corroborated by telephone calls placed to Mitchell's work and cell phone numbers between 4:52 and 5:07 p.m. from Augustine's cell phone, ¶ 11(b)(i); a 24-second outgoing call from Augustine's cell phone to Jules' work phone number at 6:38 p.m., ¶ 11(b)(iii); and a 53-second incoming call at 9:03 p.m. from Mitchell's home phone to Augustine's cell phone. ¶ 11(b)(iv).
The Supreme Judicial Court's opinion indicates that after Jules left her workstation at about 7:10 p.m., she " was not seen alive thereafter." 467 Mass. at 232. While this is true in the colloquial sense, the affidavit strongly suggests Jules was alive during the evening of August 24 and at least most of the following day. For example, on August 24 at 9:31 p.m., a two-minute outgoing call was made from Jules' cell phone to the Brooks Pharmacy on Squire Road in Revere (" the Brooks Pharmacy"), where she had previously filled prescriptions, but which was closed at that hour, ¶ 11(a)(ii); and at 11:39 p.m., a three-minute call was placed from her cell phone to her cell phone's voicemail. ¶ 11(a)(iii).
It is reasonable to infer that Jules placed these cell phone calls. It would be a notable coincidence if another person who had come into possession of Jules' cellular telephone happened to call a pharmacy where Jules had previously filled prescriptions or would know how or care to pick up her cell phone voicemail messages. It would also strain credulity to suggest the following day a stranger could have spoken with Barnett and impersonated Jules from her cell phone for more than one hour without Barnett knowing that it was not Jules. See, infra , at 6.
On August 25, at approximately 12:20 a.m., about 5 hours after she was last seen at work, Jules' 2000 Honda was found engulfed in flames in a parking lot at the rear of Johnnie's Food Master off of Squire Road in Revere. A key was in the ignition. There was evidence that an accelerant was used in two places in the vehicle to start the fire. ¶ 3. The Brooks Pharmacy, which Jules' cell phone had called at 9:31 p.m., also used the same parking lot. ¶ 11(a)(ii).
Between 12:52 a.m. and about 2:30 a.m. on August 25, Augustine spoke by cell phone to another one of his girlfriends, Keesha Smith (" Smith"), who was at home at the time. He told her he was out running errands for his mother. They spoke continuously as he took public transportation back to Dorchester. Smith heard announcements on the other side of the phone consistent with Augustine being in the vicinity of Sullivan Square, Haymarket and the JFK MBTA stations. ¶ 11(b)(v).
According to phone records obtained by investigators, Augustine often had lengthy phone conversations with Smith each night. ¶ 11(b)(v).
It is notable, although it does not appear in the affidavit, that the Sullivan Square MBTA station is north of Boston in the direction of Revere, where Jules' car was found burning, although it is not the closest MBTA station to Revere. I can and do take judicial notice of the geographical location of these MBTA stations. Federal Nat'l Mortg. Ass'n v. Therrian , 42 Mass.App.Ct. 523, 525, 678 N.E.2d 193 (1997) (" facts which are not reasonably subject to dispute (e.g., it's dark at midnight in Lynn) or are verifiably true (e.g., Lynn is in Essex County) are susceptible of judicial notice").
Although Jules' father reported to Malden police on August 25 that Jules was missing, ¶ 2, the affidavit indicates Jules was alive for the 24 hours after her car was set on fire. For example, on August 25 between 4:47 a.m. and 8:59 p.m. there were a series of phone calls placed from her cell phone to her work and cell phone voicemail, ¶ 11(a)(iv); and between 9:07 p.m. and 10:50 p.m. Jules had a series of phone calls from her cell phone with Barnett. ¶ 11(a)(v). According to Barnett, during these phone calls, Jules was whispering because she said she was at home with her brother who was sleeping. Barnett indicated that he recalled the date of these telephone conversations because they occurred the night before he left for Haiti. In fact, Jules' family had already reported her missing and she was not at home in Malden. ¶ ¶ 2, 11(a)(v).
The next day (August 26) at 9:35 a.m., there was a two-minute call from Jules' cell phone to Barnett's cell phone, although he was already on a plane to Haiti at that time. ¶ 11(a)(vi).
During the afternoon of August 25, Mitchell called Augustine to see how things had gone the previous night. Augustine responded that Jules had been a little upset but that it went well. ¶ 5. On Thursday, August 26, Augustine called Mitchell and told her that Jules had been reported missing and that he actually had not seen her on Tuesday night. Augustine initially did not answer Mitchell's question about why he had previously told her that he had seen Jules, but later said that he did not know why he lied about having seen Jules Tuesday night. ¶ 5.
On August 28, investigators interviewed Augustine. He said he had not seen Jules since August 19. ¶ 6. He admitted to having Mitchell call Jules on the afternoon of August 24 and lie about his being sick, but maintained that Jules never came to his house. ¶ 6. On further questioning, he became upset, started to cry, and invoked his right to counsel. ¶ 6.
On September 8, investigators spoke with Mitchell who indicated she had received a voicemail from Augustine stating: " I'm prepared to take all the consequences right now . . . nothing is really happening . . . my emotions got the better of me, I mean really, really got the better of me . . . I'm going through some stuff . . . so far the coast is clear . . . I'm just waiting . . . that was just nature taking its course." ¶ 7. The affidavit provides no context for this voicemail recording, does not indicate when it was received, and does not specifically link it to the investigation of Jules' disappearance, except of course that it is included in the affidavit and that the affidavit notes Jules' disappearance had received widespread media attention. ¶ 8.
On September 19, 2004, Jules' decomposing body was found wrapped in plastic floating in the Charles River. Her ankles were bound by electrical cord, a chain with a lock was around her body, and two 2.5 pound weights were attached to it. The body appeared to have been in the water, according to the affidavit, " for some time." ¶ 10. The affidavit does not offer an opinion by a medical examiner or other expert about the cause or time of death, or how long Jules' body was in the water.
DISCUSSION
The Supreme Judicial Court remanded this case for determination of " whether the Commonwealth's 2004 application for the § 2703(d) order met the requisite probable cause standard of art. 14." Augustine , 467 Mass. at 256. Art. 14 of the Massachusetts Declaration of Rights provides: " 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. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; . . . and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws."
There has been little explanation of the last clause in art. 14, which allows warrants to issue only " with the formalities prescribed by law." A number of formalities are set forth by statute. See G.L.c. 276, § § 1, 1A, 2, 2A, 2B. As is relevant here, a warrant may issue upon an affidavit in which the complainant states her belief that there is probable cause to demonstrate the property is relevant and may be found at the location to be searched. G.L.c. 276, § § 1, 2B. See, e.g., Commonwealth v. Nelson , 460 Mass. 564, 573, 953 N.E.2d 164 (2011) (suggesting G.L.c. 276, § 2B is a law prescribing formalities as referenced in art. 14); Commonwealth v. Muller , 18 Mass. L. Rptr. 483, 2004 WL 2749631 at *4 (Mass.Super. Sept. 28, 2004) (Gants, J.). The affidavit makes no such declaration of belief. Neither defendant, nor the Supreme Judicial Court, raise this as an obstacle to meeting the requisite probable cause standard under art. 14.
Under art. 14, a magistrate must " determine that probable cause exists before issuing a search warrant." Commonwealth v. Byfield , 413 Mass. 426, 428, 597 N.E.2d 421 (1992). See also Commonwealth v. Connolly , 454 Mass. at 825. In the ordinary case, a post-indictment reviewing court accords " considerable deference" to a magistrate's determination of probable cause, and even marginal cases " should be largely determined by the preference given to warrants" that have been issued by a magistrate applying the correct standard. Commonwealth v. Clagon , 465 Mass. 1004, 1004, 987 N.E.2d 554 (2013), quoting Commonwealth v. Anthony , 451 Mass. 59, 69, 883 N.E.2d 918 (2008), and Commonwealth v. Upton , 394 Mass. 363, 377, 476 N.E.2d 548 (1985). Here, where the issuing magistrate applied the standard under § 2703 instead of deciding the issue based on the probable cause formulation prescribed by the Supreme Judicial Court, no such deference is due. As a result, I examine the sufficiency of the affidavit--and whether it demonstrates the requisite probable cause--based on the facts within the " four corners of the affidavit, " drawing reasonable inferences and commonsense conclusions from the facts stated therein. Commonwealth v. O'Day , 440 Mass. 296, 297, 798 N.E.2d 275 (2003), quoting Commonwealth v. Villella , 39 Mass.App.Ct. 426, 428, 657 N.E.2d 237 (1995). See also Commonwealth v. Clagon , 465 Mass. at 1004; Commonwealth v. Allen , 406 Mass. 575, 578, 549 N.E.2d 430 (1990). The question in the first instance is what constitutes probable cause.
I. Efforts to Define Probable Cause
A. An Elusive Definition
The precise definition of probable cause remains elusive. See, e.g., Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 8-1 (2014) (" The case law is replete with definitions of probable cause, many of which are singularly unhelpful in determining whether there is probable cause to support the issuance of a search warrant. Most case opinions speak of what probable cause is, without directing the reader to consider how to determine whether probable cause exists in a particular factual situation"). The only certain thing about the concept is that it is " fluid." See, e.g., Florida v. Harris , 133 S.Ct. 1050, 1056, 185 L.Ed.2d 61 (2013) (probable cause turns on " the assessment of probabilities in particular factual contexts").
Efforts to define probable cause have come up short. Some courts have described " the mercurial phrase 'probable cause'" to mean " a reasonable likelihood." Valente v. Wallace , 332 F.3d 30, 32 (1st Cir. 2003), citing Illinois v. Gates , 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Supreme Court has explained probable cause in relative terms, stating that it means more than " bare suspicion" but less than what would be needed to " justify . . . conviction, " Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), leaving " [a] good deal of territory [ ] in between." Valente , 332 F.3d at 32. Where probable cause lies within the spectrum can be narrowed in relation to other standards. Probable cause is more exacting than the " reason to believe" standard employed in allowing officers to enter a home to execute an arrest warrant, Commonwealth v. Silva , 440 Mass. 772, 777, 802 N.E.2d 535 (2004), which is a higher standard than " reasonable suspicion, " which, in turn, outweighs a " mere hunch." Navarette v. California , 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014). Probable cause is of course a lower standard than both proof beyond a reasonable doubt, Gerstein v. Pugh , 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and obviously less than " certainty." Commonwealth v. Harmon , 63 Mass.App.Ct. 456, 461, 826 N.E.2d 761 (2005). Whether " probable cause" is a less stringent standard than " more likely than not" is a question " arguably unsettled." Valente , 332 F.3d at 32.
We also know, of course, that probable cause is more exacting than what is required to obtain a court order for disclosure under 18 U.S.C. § 2703(d), which requires the government to offer " specific and articulable facts showing . . . reasonable grounds to believe . . . the records or other information sought, are relevant and material to an ongoing criminal investigation." See Augustine , 467 Mass. at 236 (standard under § 2703(d) lower than probable cause and essentially the reasonable suspicion standard).
The standard under 18 U.S.C. § 2703(d) has been compared to the " specific and articulable facts" standard applied in stops under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Stephanie K. Pell & Christopher Soghoian, " Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact, " 27 Berkeley Tech. L.J. 117, 151-52 (2012).
Just as probable cause cannot be defined clearly in words, it also cannot be quantified. As Chief Justice Rehnquist wrote,
the probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act . . . Probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules . . .
The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances . . . We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt . . . and that the belief of guilt must be particularized with respect to the person to be searched or seized . . .Maryland v. Pringle , 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (emphasis added); Bruce A. Antkowiak, " Saving Probable Cause, " 40 Suffolk U.L. Rev. 569, 583, 587 (2007) (probable cause " describes a state of human certainty, " it " represents a point on a continuum upon which both the presumption of innocence and proof beyond a reasonable doubt requirement also exist, " and " cannot be calculated in decimals").
To say that probable cause is satisfied by particular facts that support a " reasonable ground for belief, " but not by particular facts only supporting a " reasonable suspicion, " provides minimal linguistic guidance to define the penumbra. This narrow differentiation in the applicable standards is rendered virtually nil if one compares the Maryland v. Pringle formulation, which equates " probable cause" to " a reasonable ground for belief, " with Commonwealth v. Silva , which states that " a reasonable belief" is a lower standard that does not impose the " overly burdensome" requirements of " probable cause." 440 Mass. at 776-78.
Although probable cause may not be easily defined or quantified, judges apply the " fluid concept" daily. Some have tried to assess what trial judges mean or do when they apply the concept. The evidence varies. For example, in a study published in 1982 in the Vanderbilt Law Review, 166 federal judges were asked " to put a numerical probability on probable cause. At least two judges believed that probable cause requires only a 10 percent probability." Taylor Phillips, " Probable Cause on a Leash, " 23 B.U. Pub. Int. L.J. 57, 63 (2014) (footnotes omitted). " [O]ne judge believed that probable cause requires a probability of 90 percent, [but] [t]he majority of judges came down somewhere between 30 percent and 60 percent, with an average of 44.52 percent." Id . at 63-64 (footnotes omitted).
B. Probable Cause Flexes Depending on the Context
Even if all judges applied the concept the same way (which they do not), locating probable cause on the long continuum between a reasonable suspicion and proof beyond a reasonable doubt does not end the inquiry; the concept of " probable cause" is employed in the array of situations and takes on differing definitional hues depending on the context.
In the context of a search warrant, to establish probable cause the supporting affidavit " must contain sufficient information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that the items reasonably may be expected to be located in the place to be searched at the time the warrant issues." Commonwealth v. Stegemann , 68 Mass.App.Ct. 292, 299, 862 N.E.2d 381 (2007) (emphasis added), quoting Commonwealth v. Rodriguez , 49 Mass.App.Ct. 664, 667, 732 N.E.2d 906 (2000). " Strong reason to suspect" evidence will be found " is not adequate." Stegemann , 68 Mass.App.Ct. at 299, quoting Commonwealth v. Upton , 394 Mass. 363, 370, 476 N.E.2d 548 (1985).
The Supreme Judicial Court has said that probable cause " exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Hason , 387 Mass. 169, 174, 439 N.E.2d 251 (1982) (emphasis added), quoting Brinegar , 338 U.S. at 175-76. See also Commonwealth v. Santaliz , 413 Mass. 238, 241, 596 N.E.2d 337 (1992) (probable cause to arrest exists if " at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense, " quoting Commonwealth v. Storey , 378 Mass. 312, 321, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980) (emphasis added)). Accord Commonwealth v. Roman , 414 Mass. 642, 643, 609 N.E.2d 1217 (1993) . To indict a suspect, the prosecutor must present sufficient evidence to a grand jury " to establish the identity of the accused, and probable cause to arrest him or her." Commonwealth v. Caracciola , 409 Mass. 648, 650, 569 N.E.2d 774 (1991).
A more stringent definition of " probable cause" has been used in interpreting various statutes. For example, under G.L.c. 276, § 38, when deciding if a criminal defendant should be bound over for trial, " probable cause" has been interpreted to require evidence sufficient to warrant a conviction, i.e. the so-called " directed verdict" standard. Commonwealth v. Perkins , 464 Mass. 92, 101, 981 N.E.2d 630 (2013); Myers v. Commonwealth , 363 Mass. 843, 850, 298 N.E.2d 819 (1973). Similarly, a hearing to determine whether there is " probable cause" to civilly commit a person as sexually dangerous under G.L.c. 123A, § 12(c), also requires application of the " directed verdict" standard. Commonwealth v. Reese , 438 Mass. 519, 524, 781 N.E.2d 1225 (2003).
Although the phrase remains the same, the notion of probable cause is alternatively massaged, inflated, relaxed or simply disguised based on the circumstances of each case, even in those situations where courts quote identical language to explain the standard. As noted above, courts sometimes explicitly depart from a single meaning of probable cause in different contexts. A few other examples suffice.
Exigent Circumstances
One of the hidden recalibrations of " probable cause" exists in the context of exigent circumstances. Exigent circumstances is an exception to the warrant requirement, not the probable cause requirement. See Commonwealth v. Washington , 449 Mass. 476, 486, 869 N.E.2d 605 (2007) (" in analyzing whether probable cause and exigent circumstances justified a particular [warrantless] search or seizure, we ask only two questions: whether there was probable cause, and whether exigent circumstances were present").
Nonetheless, the nature of the exigency may affect the requisite quantum of evidence required to support probable cause. For example, in Llaguno v. Mingey , 763 F.2d 1560, 1566 (7th Cir. 1985) (en banc), abrogated on other grounds. County of Riverside v. McLaughlin , 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), Judge Posner wrote that probable cause is a lesser standard in times of exigency; that is, " [t]he amount of information that prudent police will collect before deciding to make a search or arrest, and hence the amount of probable cause they will have, is a function of the gravity of the crime, and especially the danger of its imminent repetition." This variable standard for assessing probable cause was first articulated by Justice Jackson:
In the context of assessing whether the police had " reasonable suspicion" to a stop a suspect, courts in Massachusetts have relaxed the standard when there is an immediate or future risk of significant harm. See, e.g., Commonwealth v. Stoute , 422 Mass. 782, 791, 665 N.E.2d 93 (1996) (" Particularly when a police officer receives information concerning an individual with a gun, the 'test for determining reasonable suspicion should include consideration of the possibility of the possession of a gun, and the government's need for prompt investigation, '" quoting United States v. Bold , 19 F.3d 99, 104 (2d Cir. 1994)); Commonwealth v. Doocey , 56 Mass.App.Ct. 550, 557, 778 N.E.2d 1023 (2002) (" Certain of these constitutional markings [relative to an assessment of reasonable suspicion] take on a different hue where firearms are involved . . . [W]hile mere possession may not move the calculus, in circumstances where the gun presents an imminent threat because of shots just fired, or likely to be fired, and thereby presents a 'suggestion of threats of violence, acts of violence, impending criminal activity, or concern for public safety, ' there is an edge added to the calculus upon which that reasonable suspicion may be determined, " quoting Commonwealth v. Alvarado , 423 Mass. 266, 273, 667 N.E.2d 856 (1996)).
In his dissent in part in Llaguno , Judge Wood stated: " The essence of Judge Posner's opinion, as I read it, is simply that when you are short on probable cause you can make up that shortage by adding exigent circumstances. I cannot accept that dangerous, unnecessary, and indefinable blending of two separate and useful traditional concepts in order to justify a warrantless search of a private home at night." 763 F.2d at 1578.
If we assume, for example, that a child is kidnapped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.Brinegar v. United States , 338 U.S. 160, 183, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting). See also, e.g., United States v. Ramos , 591 F.Supp.2d 93, 103 (D.Mass. 2008) (Wolf, J.) (in discussing reasonable suspicion, " [c]ommon sense and case law also indicate that the assessment of whether conduct is reasonable for Fourth Amendment purposes may properly be influenced by the degree of danger that is being investigated"), aff'd, 629 F.3d 60 (1st Cir. 2010), cert. denied, 131 S.Ct. 3045, 180 L.Ed.2d 862 (2011); United States v. Goodwin , 449 F.3d 766, 769 (7th Cir. 2006) (Posner, J.) (" if the crime being investigated is grave enough, the police can stop and frisk without as much suspicion as would be required in a less serious criminal case"); United States v. Soyka , 394 F.2d 443, 452 (2d Cir. 1968) (Friendly, J., dissenting) (" I would not be at all averse to straightforward recognition that the gravity of the suspected crime and the utility of the police action for purposes other than securing a conviction are factors bearing on the validity of the search or arrest decision, or at least on application of the exclusionary rule" (emphasis added)), cert. denied, 393 U.S. 1095, 89 S.Ct. 883, 21 L.Ed.2d 785 (1969).
That exigency might play into a probable cause determination specifically with respect to CSLI data is an idea that has been suggested by commentators. See, e.g., Paul Ohm, " Probably Probable Cause: The Diminishing Importance of Justification Standards, " 94 Minn.L.Rev. 1514, 1546 (2010) (discussing CSLI: " One imagines that every request made during a kidnapping or while tracking a fugitive meets probable cause. Tracking drug dealers is different").
Searches of Areas with High Expectation of Privacy
While exigency may reduce the amount of evidence necessary to demonstrate probable cause, courts apply more stringent interpretations of probable cause, or superimpose a more stringent definition of what is reasonable, where a search or seizure is unusually intrusive or conducted in a place where an individual has a high expectation of privacy. Protecting the " sanctity" of the home has resulted in judicial enforcement of principled showings of probable cause to justify government intrusion. See, e.g., Commonwealth v. Tatum , 466 Mass. 45, 56, 992 N.E.2d 987 (Lenk, J., dissenting) (" Given that the sanctity of the home is of central concern in jurisprudence concerning the Fourth Amendment . . . and art. 14 . . . any warrantless police entry into a home is presumptively illegal"), cert. denied, 134 S.Ct. 830, 187 L.Ed.2d 691 (2013).
Searches of even more intimate areas have received still greater protection. In Winston v. Lee , 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), the government sought a court order to remove a bullet from under the defendant's collarbone to conduct a ballistics test that could tie defendant to an attempted robbery. 470 U.S. at 756-57. In considering the propriety of such an order, the Court found that the intrusion on the defendant's " substantial" privacy and dignitary interests must be weighed against the " community's interest in fairly and accurately determining guilt or innocence, " which " is of course of great importance." Id . at 761-62. The Court concluded the surgery would be an unreasonable search under the Fourth Amendment because it would intrude substantially on the suspect's privacy and security interests and the prosecution had failed to demonstrate a " compelling need" for the bullet. Id . at 766. In explaining its selection of a " compelling need" standard under the Fourth Amendment, the Court stated:
Where the Court has found a lesser expectation of privacy . . . or where the search involves a minimal intrusion on privacy interests . . . the Court has held that the Fourth Amendment's protections are correspondingly less stringent. Conversely, however, the Fourth Amendment's command that searches be " reasonable" requires that when the State seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search " reasonable."Id . at 767 (citations omitted). Accord In re Grand Jury Investigation , 427 Mass. 221, 223, 692 N.E.2d 56 (" A more substantial bodily intrusion might require a different result, even if there were probable cause to believe that a defendant had committed a crime and the intrusion would produce relevant evidence, especially if the State's need for the evidence was not great"), cert. denied, 525 U.S. 873, 119 S.Ct. 171, 142 L.Ed.2d 140 (1998).
" Special Needs" Cases
Courts have explicitly carved out a number of other exceptions to the probable cause requirement. These " exceptions" suggest that probable cause, or the reasonableness requirement under the Fourth Amendment, is far from a static conception, and more of a sliding scale of suspicion, calibrated in each case based on the level of intrusion, the nature of the crime, and the social and law enforcement interests in conducting the search or seizure. In Michigan v. Summers , 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Supreme Court addressed the reasoning behind these exceptions. The first and perhaps most frequently applied is Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry , the Court " recognized the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause." Summers , 452 U.S. at 698. Similarly, in United States v. Brignoni-Ponce , 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court upheld vehicle stops based on articulable facts to believe a particular vehicle contained illegal aliens in areas along the international border. As to these exceptions, Summers explained, they " recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause , so long as police have an articulable basis for suspecting criminal activity." Id . at 699 (emphasis added).
In those instances where probable cause plainly would be impossible to show, but where seemingly legitimate law enforcement purposes exist to conduct the search, courts have simply done away with probable cause and focused instead on the " reasonableness" inquiry. For example, the Fourth Amendment and art. 14 apply to searches conducted in schools, yet school officials need not have probable cause to conduct such a search. Commonwealth v. Smith , 72 Mass.App.Ct. 175, 178, 889 N.E.2d 439 (2008). Probable cause also gives way for administrative warrants, Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (" If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant"); inventory searches incident to arrest, Commonwealth v. Rostad , 410 Mass. 618, 620, 574 N.E.2d 381 (1991); searches at the border or its " functional equivalent, " United States v. Momoh , 427 F.3d 137, 143 (1st Cir. 2005), citing United States v. Ramsey , 431 U.S. 606, 619-20, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); and government employee drug testing. Nat'l Treasury Employees Union v. Von Raab , 489 U.S. 656, 678-79, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
C. What Probable Cause Is Not
Notwithstanding these varying descriptions of probable cause and the uncertainty they breed, courts have defined what does not satisfy probable cause in the search context. In Massachusetts, " general averments" and " categorical assertions" in affidavits submitted in support of a search warrant ordinarily will be inadequate to satisfy the probable cause standard. Commonwealth v. Jimenez , 438 Mass. 213, 219, 780 N.E.2d 2 (2002) (probable cause requires unique facts, not references to " common" practices of drug dealers). See also Commonwealth v. Pina , 453 Mass. 438, 441, 902 N.E.2d 917 (2009) (" the fact that a defendant drives from his home to the location of a drug transaction, and returns to his home on the transaction's conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence, " citing with approval Commonwealth v. Smith , 57 Mass.App.Ct. 907, 908, 783 N.E.2d 463 (2003)); Commonwealth v. Kaupp , 453 Mass. 102, 114, 899 N.E.2d 809 (2009) (ability to access child pornography, coupled with defendant's ambiguous statement about whether child pornography was on his computer, did not provide a " substantial basis" to conclude defendant stored child pornography in his personal computer; at best it supplied a " strong reason to suspect" defendant's private files contained child pornography, which was " insufficient" for probable cause); Commonwealth v. Santiago , 452 Mass. 573, 577-78, 896 N.E.2d 622 (2008) (" mere assertion that the owner of a residence to be searched owns a dog, even of a breed commonly known to be aggressive, would, standing alone, be insufficient to meet the probable cause standard" to justify no-knock warrant); Commonwealth v. Alvarado , 420 Mass. 542, 549, 651 N.E.2d 824 (1995) (observation of small portion of bag, which could be used for lawful or unlawful purposes, and furtive gesture, such as attempt to conceal object, do not together give rise to probable cause); Commonwealth v. Jean-Charles , 398 Mass. 752, 760, 500 N.E.2d 1332 (1986) (evidence sought was doctor's appointment book, but affidavit did not establish appointment book, if found, would have any relation to the crime being investigated); Commonwealth v. Kaufman , 381 Mass. 301, 304, 408 N.E.2d 871 (1980) (" general averment unrevealing of any source in actual observation" did not provide " reliable specific information" and was insufficient to support probable cause to search home for drugs); Commonwealth v. Olivares , 30 Mass.App.Ct. 596, 600, 571 N.E.2d 416 (1991) (no probable cause to search defendant's residence where there was " no specific information in the affidavit which tied the defendant's residence to illegal drug transactions"). These cases reflect that there must be, at a minimum, some unique, specific and reliable facts creating a nexus between the alleged crime and the evidence sought or the place to be searched to demonstrate probable cause for a search warrant.
II. Applying the Probable Cause Standard
To obtain two weeks of historical CSLI, the Supreme Judicial Court, in relevant part, has required the supporting affidavit to demonstrate probable cause:
(1) " to believe that a particularly described offense has been . . . committed; " and
(2) that the CSLI sought either
(a) " will produce evidence of such offense" or
(b)(i) " will aid in the apprehension of a person, " and
(ii) " the applicant has probable cause to believe [the person] has committed . . . such offense."Augustine , 467 Mass. at 256 (citations and internal quotation marks omitted).
While it is linguistically possible to read Augustine as not requiring probable cause as the level of certainty that the CSLI " will produce evidence of such offense, " it would be a strained and unintended interpretation. First, such a reading would eliminate any guidance as to the quantum of proof required to demonstrate that the requested CSLI " will produce evidence of such offense." Second, it would detach the standard set up in Augustine from the long line of authority described in the discussion above requiring probable cause to believe evidence of a crime under investigation would be found at the place to be searched. Finally, it would be inconsistent even with the way the dissenters interpret the majority's opinion in Augustine . See 467 Mass. at 267 (Gants, J., dissenting).
After Augustine , it is not sufficient to establish probable cause to believe the CSLI sought will aid in the investigation, will test the accuracy of information supplied by suspects, or will exclude certain people from the set of people under investigation. As the dissent in Augustine recognized,
[b]ecause of the probable cause requirement and, more importantly, because there must be probable cause that CSLI will produce evidence implicating the telephone user in a crime, the police will not be able to obtain a search warrant unless they already have obtained significant other information implicating the telephone user in a crime. Therefore, if a search warrant were required for all CSLI, regardless of duration, the police would not be able to use CSLI in my hypothetical shooting case to identify or eliminate possible suspects [who are members or affiliates of a gang where the police have information that the particular gang was involved in a shooting].Cf. Augustine , 467 Mass. at 267 (Gants, J., dissenting). In short, I must analyze the affidavit to determine whether it establishes probable cause to believe Jules was murdered or her car unlawfully burned in violation of G.L.c. 266, § 5 (element (1) above) and probable cause to believe that the requested two weeks of CSLI will produce evidence of the murder or arson or the unlawful concealment thereof (element (2)(a)).
Alternative element (2)(b)--the CSLI will aid in apprehending a person the police have probable cause to believe committed the offense--is not applicable here. There has never been any suggestion in the papers that the police were seeking to obtain the historical CSLI to learn Augustine's whereabouts so he could be apprehended. In any event, as described below, I find the affidavit fails to demonstrate probable cause--as opposed to a strong suspicion--to believe that Augustine committed the crime.
Element (1) above--probable cause to believe that a particularly described offense was committed--is not fairly in dispute. The affidavit demonstrates probable cause to believe a murder occurred. While the affidavit does not reflect a cause or time of death, and it is possible that Jules died other than at the hands of another, the circumstances of the disposal of her body established probable cause under any of the formulations discussed above to believe she was murdered. Moreover, where her vehicle was found on fire, and the fire was started with the use of accelerants, there was probable cause to believe arson had occurred.
The affidavit, however, fails to meet the requirements for elements (2)(a). In this case, the affidavit absolutely demonstrates that Augustine is a legitimate suspect and subject of investigation. But a reason to suspect--even a strong reason to suspect--Augustine killed Jules is not enough. See Upton , 394 Mass. at 370. The affidavit also establishes that the CSLI sought would assist law enforcement in focusing on, or ruling out, Augustine as a suspect. But that, too, is insufficient.
If the police knew that an individual was dealing drugs out of a three-unit apartment house, but did not know the unit, the police could not request a search warrant for all three units in the hope of isolating the unit being used for drug sales. Such a warrant would be authorizing the search of two residential units that the police admittedly had no probable cause to believe would yield evidence of the crime. Such a warrant would assist law enforcement, but it would not be supportable under art. 14. It is the rare instance where a search warrant would be upheld if it authorized searching a place not reasonably expected to yield evidence of a crime. Compare Commonwealth v. Kostka , 86 Mass.App.Ct. 69, 72, 12 N.E.3d 1045 (2014) (where defendant claimed his brother was an identical twin, order compelling saliva sample from defendant's twin upheld to show that defendant, and not his twin, must have contributed suspect DNA).
The affidavit establishes that Augustine had an ongoing relationship with Jules; may have been angry with her (having recently learned that Jules had another boyfriend in Florida); tried to speak to her in the early evening hours before she left work on August 24; was north of Boston late on the night of August 24-25, shortly after Jules' car was found on fire in Revere; lied to his cousin about whether he had seen Jules on the evening of August 24; and left a strange but ambiguous voicemail message on his cousin's telephone suggestive of consciousness of guilt of something. Such evidence would be insufficient to arrest or indict defendant, to demonstrate that Augustine had even seen Jules on August 24, to place Augustine at the scene of the arson, or to indicate how or where Jules was killed or by whom.
In fact, defendant was not charged until 2011. See Augustine , 467 Mass. at 234, n.9.
As I think about the showing put forth in the affidavit, I cannot answer the questions about whether Augustine saw Jules after August 19, how Jules was killed, or whether Augustine was involved with the burning of Jules' car. I cannot tell from the affidavit what Jules did for the period of at least 27 hours that it appears she was alive after she left work on August 24, whether she was with Augustine as he traveled to Dorchester talking to Smith on the train in the early morning hours of August 25, or how she could have made the calls on her cell phone on August 25 if she had been harmed on August 24 or 25. I cannot understand from the affidavit how, when or by whom Jules' body was put in the Charles River. This is not a matter of requiring proof to any serious level of certainty that Augustine committed any of the crimes under investigation. It is a matter of determining whether there was more than simply a strong reason to suspect Augustine as having been involved in the murder (or related crimes), i.e., a substantial basis to support a reasonable belief that Augustine committed the crimes.
The CSLI sought may have assisted the investigation to know if Augustine was in Revere, or in the vicinity of Jules' car, at the time of the arson. Similarly, it may have assisted the investigation to know where Augustine traveled thereafter. It is possible that evidence of Augustine's whereabouts could have led investigators to the scene of Jules' murder. It is equally conceivable that such evidence would be wholly inconclusive or would exculpate Augustine. On the facts set out in the affidavit, the police had reason to suspect Augustine as having been involved in some way in Jules' murder, but no reasonable basis to believe that he in fact had committed the crime. In other words, he was a suspect.
The fact that this was a murder investigation does not diminish the quantum of evidence that must be brought forth to demonstrate probable cause. This is not a situation in which a serious exigency, or concern about the use of firearms, might affect the probable cause calculus.
Where, as here, the affidavit failed to describe articulable facts demonstrating probable cause to believe Augustine committed the murder, the affidavit equally fails to demonstrate probable cause to believe that the CSLI sought will produce evidence of the crime. Augustine's CSLI, and the information it would contain about his whereabouts, will only produce evidence of the crime if Augustine committed the crime. Likewise, there would only be probable cause to believe his CSLI would contain evidence of the crime if there was also probable cause to believe he committed the crime. I find there was not.
ORDER
Defendant's Motion to Suppress Evidence Pursuant to Warrantless Search Cellphone Records (Docket #23) is ALLOWED.