Com. v. Anthony

• Decision Date: 02 April 2008
• Docket Number: SJC-10058.
• Citation: 883 N.E.2d 918,451 Mass. 59
• Parties: COMMONWEALTH v. Mark ANTHONY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

883 N.E.2d 918

451 Mass. 59

COMMONWEALTH v. Mark ANTHONY.

SJC-10058.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 5, 2008.

Decided April 2, 2008.

Kenneth I. Seiger for the defendant.

Christina E. Miller, Assistant District Attorney (Christopher Kelly, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

SPINA, J.

The defendant, Mark Anthony, was charged in three indictments with possession of child pornography in violation of G.L. c. 272, § 29C.¹ He filed a consolidated motion to suppress evidence seized pursuant to two search warrants, which included: (1) the contents of a storage locker rented by the defendant; and (2) electronic data on items from the storage locker (seven computer hard drives, one cellular telephone with camera attachment, and five floppy disks), on two laptop computers from a computer repair shop, and on one desktop hard drive from the Boston Public Library. A judge in the Superior Court allowed the defendant's motion to suppress evidence seized from the storage locker and the computer repair shop, and he denied the defendant's motion to suppress evidence seized from the Boston Public Library computer. A single justice of this court granted the Commonwealth leave to pursue an interlocutory appeal in the Appeals Court. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We then transferred the case here on our own motion. At issue is whether the warrants were supported by probable cause, particularly a nexus between the criminal article or activity described in the affidavits and the places to be searched. Because we conclude that the affidavits provided sufficient probable cause for the warrants to issue, we now reverse that portion of the motion judge's order that allowed the defendant's motion to suppress evidence seized from the storage locker and the computer repair shop.

1. Background. The judge found the following facts, based on the search warrant affidavits of Sergeant Detective John Donovan of the Boston police department's sexual assault unit. On August 30, 2004, Sergeant Ronald W. Riggin of the Maryland State police technical investigation section contacted Detective Donovan, requesting assistance with an ongoing investigation. Sergeant Riggin informed Detective Donovan that, for several months, a male suspect had been communicating with a twelve year old Maryland girl (juvenile) by telephone and electronic mail (e-mail), and that the suspect was believed to live in or near Boston. Sergeant Riggin provided Detective Donovan with a report detailing the investigation by the Maryland State police.

On August 24, 2004, Sergeant Riggin had interviewed the juvenile, who told him that she had engaged in an online relationship with the suspect, and that he had solicited her for sex and had threatened her into sending him sexually explicit photographs of herself.² The juvenile stated that she knew the suspect as "Mark," and that he used the screen names "kidmaker4 u@hotmail" and "kidmaker2004@yahoo." She reported to Sergeant Riggin that "Mark" had called her cellular telephone and that the telephone had saved the number. The juvenile also divulged that she had sent an explicit picture of herself to "Mark," and that she had planned to meet him for a sexual encounter.

Sergeant Riggin received permission from the juvenile to take control of her e-mail account, and the juvenile's computer was turned over to the Maryland State police computer forensic laboratory for analysis. The examination of the computer yielded numerous nude images of the juvenile, but the forensic examiner was unable to determine whether such images had been transmitted to "Mark."

Around this same time, Sergeant Riggin discovered that the telephone number used by "Mark" to contact the juvenile was a prepaid telephone card number distributed by the Dollar Phone Company. He subpoenaed the company's records and learned that the calling card had been used on several occasions to call the juvenile's cellular telephone. The calls originated from a public telephone in or near the Boston Public Library, except for one call that originated from the home of Michael Hutchins in Chelsea.

On August 27, 2004, Sergeant Riggin accessed the juvenile's e-mail account and discovered fourteen e-mails from "kidmaker2004@yahoo," in which "Mark" expressed his desire to meet the juvenile. At one point during the day, while logged on to the juvenile's account, Sergeant Riggin received another e-mail sent by "kidmaker2004@yahoo." He checked the Internet protocol address associated with these e-mails and traced it back to computers at the Boston Public Library.³ Sergeant Riggin then subpoenaed log-in records for the suspect's two "kidmaker" e-mail accounts. The records traced the Internet protocol addresses to computers at the Boston Public Library and to computers at a library in Boston administered by the Christian Science Publishing Society (CSPC). Sergeant Riggin subpoenaed log-in records from CSPC in an effort to identify who had logged on to the computer at the library using either of the "kidmaker" screen names. The information received in response to the subpoena indicated that the defendant, with an address listed as "109 Saint Stephen St. in Boston," had used the "kidmaker" accounts from the CSPC library. In addition, Sergeant Riggin received key stroke logs from the CSPC library that showed that the defendant had requested that the juvenile send him sexually explicit pictures of herself. Sergeant Riggin communicated all of this information to Detective Donovan for further investigation.⁴

As he began researching the defendant's background, Detective Donovan learned that in June, 2001, the defendant was indicted in Arizona on charges of sexual exploitation of a minor, luring a minor for sex, and assault. He had been found in possession of child pornography and had conversed on the Internet with a minor about sex. The defendant pleaded guilty to the charges and was sentenced to time served of 320 days, followed by lifetime probation, the terms of which required the defendant to register as a sex offender and, as acknowledged by the defendant to refrain from using a computer. Detective Donovan further learned that the defendant was wanted in Arizona on a probation violation, and that he had not registered in Massachusetts as a sex offender. On receipt of an application for a criminal complaint from Detective Donovan, a judge in the Boston Municipal Court issued a warrant for the defendant's arrest.

On September 25, 2004, Sergeant Richard Hunter of the Massachusetts State police located the defendant at the Boston Public Library, and he was arrested. At the time of his arrest, the defendant was using a desktop computer on the second floor, and Sergeant Hunter observed sexually explicit language on the screen but was unable to view to whom the language was directed. The defendant was transported to the police station, and the desktop computer was secured until the police could obtain a search warrant. Once at the police station, the defendant tore up several pieces of paper in his possession. They were retrieved by Sergeant Hunter, and the defendant signed a consent form to allow a search of any items in his possession at the time of his arrest, including a digital camera device he had been carrying.

Later that same day, Detective Donovan interviewed the defendant, who confirmed both his identity and the fact that he had been arrested in Arizona for possession of child pornography. The defendant told Detective Donovan that he had arrived in Boston from Arizona in 2002, he was homeless,⁵ he had used the name "Mark Andersen" as an alias, he used computers located at the Boston Public Library to access the Internet,⁶ he engaged in sexual conversations with children over the Internet, he may have used threatening language in those conversations, he used the "kidmaker" screen names, and he had permitted other people to use those screen names. The defendant did not specifically recall communicating with the juvenile, but he conceded that he may have done so. The defendant denied possessing any child pornography, and he further denied owning or possessing a computer or computer storage devices. At the conclusion of the interview, Detective Donovan showed the defendant two sexually explicit photographs of the juvenile. The defendant acknowledged that he had seen one of them, which had been attached to an e-mail, but that he did not know the origin of the e-mail.

On October 5, 2004, Detective Donovan and Sergeant Hunter pieced together the papers that the defendant had torn up when he was arrested. Set forth thereon were various female and male names, telephone numbers, screen names, and Web sites. Detective Donovan believed that this information pertained to young girls with whom the defendant had been in contact. In addition, Detective Donovan pieced together a receipt from Digital Rework Depot, Inc. (Digital Rework), a computer repair shop in the Brighton section of Boston, for the repair of two laptop computers.

On October 8, 2004, Detective Donovan went to Digital Rework to retrieve the two laptop computers, which he then secured and transported to the Boston police department's sexual assault unit evidence room, along with a work receipt for "Mark Andersen." Employees at Digital Rework identified a photograph of the defendant as "Mark Andersen." That same day, Detective Donovan went to Storage USA, a self-storage facility also located in Brighton, where the manager informed him that the defendant had rented storage locker T-816.⁷ Detective Donovan asked the manager to secure the storage locker pending the issuance of a search warrant.

On October 12, 2004, Detective Donovan spoke with Michael Hutchins, from whose home in Chelsea one of the telephone calls to the juvenile had originated. Hutchins...