Commonwealth v. Augustine

• Decision Date: 18 February 2014
• Docket Number: SJC–11482.
• Parties: COMMONWEALTH v. Shabazz AUGUSTINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 230
4 N.E.3d 846

COMMONWEALTH
v.
Shabazz AUGUSTINE.

SJC–11482.

Supreme Judicial Court of Massachusetts,
Suffolk.

Submitted Oct. 10, 2013.
Decided Feb. 18, 2014.

[4 N.E.3d 849]

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Matthew R. Segal (Jessie J. Rossman with him) for the defendant.

Hanni M. Fakhoury, of California, & Kit Walsh, for Electronic Frontier Foundation, amicus curiae, submitted a brief.

Matthew J. Tokson, of the District of Columbia, Elizabeth A. Lunt, Alex G. Philipson, Louis W. Tompros, Kevin S. Prussia, & Thaila K. Sundaresan, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

The central question we address in this appeal is whether, consistent with the Massachusetts Constitution, the Commonwealth may obtain from a cellular telephone service provider (cellular service provider) historical cell site location information (CSLI) ¹ for a particular cellular telephone without first obtaining a search warrant supported by probable cause. The Commonwealth appeals pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), from an order of a judge in the Superior Court granting the defendant's motion to suppress evidence of CSLI associated with the cellular telephone he was using. The judge concluded that, although the Commonwealth had obtained the CSLI from the defendant's cellular service provider pursuant to a valid Superior Court order issued under 18 U.S.C. § 2703(d) (2006) of the Federal Stored Communications Act (SCA), the Commonwealth's access to the CSLI constituted a search within the meaning of art. 14 of the Massachusetts Declaration of Rights,² and therefore a search warrant based on probable cause was required.

[4 N.E.3d 850]

On appeal, the Commonwealth principally asserts that no search in the constitutional sense occurred because CSLI is a business record of the defendant's cellular service provider, a private third party, and the defendant can have no expectation of privacy in location information—i.e., information about the subscriber's location when using the cellular telephone—that he voluntarily revealed. We conclude, like the motion judge, that although the CSLI at issue here is a business record of the defendant's cellular service provider, he 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. We remand the case to the Superior Court, where the Commonwealth may seek to establish that the affidavit submitted in support of its application for an order under 18 U.S.C. § 2703(d) demonstrated probable cause for the CSLI records at issue.

1. Background. On the evening of August 24, 2004, Julaine Jules left her workplace and was not seen alive thereafter. Her body was recovered from the Charles River on September 19, 2004, and a criminal investigation into the death commenced.³

Early in the investigation, police became aware of the defendant, who had been a boy friend of Jules. State police Troopers Mary McCauley and Pi Heseltine interviewed the defendant in his home on August 28, 2004. In addition, Trooper McCauley obtained copies of telephone “call logs” for the defendant's and Jules's cellular telephones that included the date, time, duration, and telephone numbers of outgoing and incoming calls on August 24 and 25, 2004.⁴

On September 22, 2004, an assistant district attorney in Middlesex County filed in the Superior Court an application pursuant to 18 U.S.C. § 2703(c) of the SCA for an order under 18 U.S.C. § 2703(d) (§ 2703[d] order) to obtain from the defendant's cellular service provider, Sprint Spectrum (Sprint), certain records, including CSLI, associated with the cellular telephone used by the defendant; ⁵ the time period for which the records were sought appears to have been the fourteen-day period beginning August 24, 2004.⁶ The

[4 N.E.3d 851]

Commonwealth's application for the § 2703(d) order was supported by an affidavit of Trooper McCauley, detailing her investigation and concluding that the records would be “important to show the general location” of the defendant and Jules on August 24 and 25 to “possibly include or exclude” the defendant “as a suspect.” ⁷ A Superior Court judge allowed the application, and the § 2703(d) order was issued the same day, September 22. It appears that the Commonwealth received at least sixty-four pages of CSLI records relating to the defendant's cellular telephone.⁸ Almost seven years later, on July 29, 2011, a Suffolk County grand jury indicted the defendant for the murder of Julaine Jules. ⁹

On November 15, 2012, the defendant filed a motion to suppress evidence of his CSLI, which, he argued, was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. After hearing, the motion judge allowed the defendant's motion,¹⁰ concluding that “at least under art[.] 14 of the Massachusetts Declaration [of] Rights, there was a search such that this information must be suppressed.” ¹¹ The Commonwealth filed an application for interlocutory review pursuant to

[4 N.E.3d 852]

Mass. R.Crim. P. 15(a)(2) and G.L. c. 278, § 28E, which a single justice allowed and ordered to proceed before this court.¹²

. 2. Statutory scheme. The SCA, 18 U.S.C. §§ 2701 et seq. (2006 & Supp. III 2009), was enacted in 1986 as Title II of the Electronic Communications Privacy Act (ECPA), Pub.L. No. 99–508, 100 Stat. 1848 (1986). The SCA directs how governmental entities may obtain communication records from third-party providers of electronic communication services. See In re Application of the U.S. for an Order Directing a Provider of Elec. Communication Serv. to Disclose Records to the Gov't, 620 F.3d 304, 306 (3d Cir.2010). The purpose of the SCA was “to protect the privacy of users of electronic communications by criminalizing the unauthorized access of the contents and transactional records of stored wire and electronic communications, while providing an avenue for law enforcement entities to compel a provider of electronic communication services to disclose the contents and records of electronic communications.” In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 286–287 (4th Cir.2013).

At issue here is 18 U.S.C. § 2703, which governs the compelled disclosure of customer communications or records to a governmental entity, and, in particular, 18 U.S.C. § 2703(c)(1)(B) and (d). Section 2703(c)(1)(B)¹³ authorizes a governmental entity to require an electronic communication provider, such as a cellular telephone service company, to disclose communication records (not including the contents) for a particular customer if the government obtains a court order pursuant to § 2703(d). Section 2703(d), in turn, specifies:

“A court order for disclosure ... may be issued by any court that is a court of competent jurisdiction and shall issue only 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 ” (emphases added).
The standard required for a § 2703(d) order thus is less than probable cause, see, e.g., In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 606 (5th Cir.2013); it is “essentially a reasonable suspicion standard.” In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d at 287.

[4 N.E.3d 853]

The parties agree that the SCA applies to the CSLI in this case,¹⁴ and that the § 2703(d) order issued by the Superior Court judge was valid insofar as it was based on a showing of “specific and articulable facts showing that there are reasonable grounds to believe” that the CSLI records sought were “relevant and material to an ongoing criminal investigation,” 18 U.S.C. § 2703(d). They disagree, however, about whether this statutory standard is constitutionally sufficient. Stated otherwise, the parties dispute whether, under the Fourth Amendment or art. 14, the Commonwealth may obtain the CSLI from a cellular service provider solely on the basis of a § 2703(d) order, or may only do so by obtaining a search warrant based on probable cause.¹⁵

3. Cellular telephone technology. A brief explanation of cellular telephone technology informs our discussion of the issues raised. The basic facts about how a cellular telephone works and how a cellular service provider keeps CSLI records are not in dispute.¹⁶ A cellular telephone communicates with the telephone network via radio waves. ECPA (Part II): Geolocation Privacy and Surveillance: Hearing Before the H. Subcomm. on Crime, Terrorism, Homeland Security, and Investigations of the H. Comm. on the Judiciary, 113th Cong. 50 (2013) (testimony of Professor Matt Blaze) (Blaze Testimony II). See ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 20 (2010) (testimony of Professor Matt Blaze) (Blaze Testimony I).¹⁷ A cellular service provider has a network of base stations, also referred to as cell sites or cell towers, that essentially divides the provider's service area into “sectors.” Blaze Testimony II, supra at 43, 53. Cell site antennae send and receive signals from subscribers' cellular telephones that are operating within a particular sector.

[4 N.E.3d 854]

In re Applications of the U.S. for Orders Pursuant to 18 U.S.C. § 2703(d), 509 F.Supp.2d 76, 78 (D.Mass.2007). Additionally, if a subscriber begins a call connected to a particular cell site and then moves closer to a different one, the call is automatically “handed...