Commonwealth v. Augustine

Citation472 Mass. 448,35 N.E.3d 688
Decision Date18 August 2015
Docket NumberSJC–11803.
PartiesCOMMONWEALTH v. Shabazz AUGUSTINE.
CourtUnited States State Supreme Judicial Court of Massachusetts

472 Mass. 448
35 N.E.3d 688

COMMONWEALTH
v.
Shabazz AUGUSTINE.

SJC–11803.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 9, 2015.
Decided Aug. 18, 2015.


35 N.E.3d 689

Cailin M. Campbell, Assistant District Attorney (Mark T. Lee, Assistant District Attorney, with her) for the Commonwealth.

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

Matthew J. Tokson, of the District of Columbia, Elizabeth A. Lunt, Kevin S. Prussia, Kelly Halford, & Chauncey B. Wood, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

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

Opinion

BOTSFORD, J.

In Commonwealth v. Augustine, 467 Mass. 230, 232, 4 N.E.3d 846 (2014) (Augustine I ), S.C., 470 Mass. 837, 26 N.E.3d 709 (2015), this court held that the defendant had a reasonable expectation of privacy in

the historical cell site location information1 (CSLI) relating to his cellular

35 N.E.3d 690

telephone, and that therefore, the warrant requirement of art. 14 of the Massachusetts Declaration of Rights applied to that information. We remanded the case to the Superior Court to determine whether, in the particular circumstances of this case, the Commonwealth is able to meet that warrant requirement through a demonstration of probable cause. Id. For the reasons to be discussed, we conclude that the Commonwealth has done so with respect to the defendant's CSLI records for the period from August 24 to August 26, 2004.2

1. Background. a. Procedural history. We summarize the procedural background of this case that led to our decision in Augustine I, and to the present issue. On September 22, 2004, in connection with an investigation into the death of Julaine Jules, the Commonwealth filed in the Superior Court an application for an order to obtain from the defendant's cellular service provider certain records, including CSLI, for the fourteen-day period beginning August 24, 2004, the last day that Jules was seen alive. Augustine I, 467 Mass. at 232–233, 4 N.E.3d 846. A Superior Court judge allowed the request pursuant to 18 U.S.C. § 2703(d) (2006) of the Federal Stored Communications Act, which permits a court of competent jurisdiction to issue an order compelling a cellular telephone company to disclose certain customer records to a governmental entity upon a showing of “specific and articulable facts ... that there are reasonable grounds to believe” that the records sought are “relevant and material to an ongoing criminal investigation.” See Augustine I, supra at 235–236, 4 N.E.3d 846. Based on that order, the Commonwealth appears to have received at least sixty-four pages of CSLI records relating to the defendant's cellular

telephone. Id. at 234, 4 N.E.3d 846.3

On July 29, 2011, the defendant was indicted for Jules's murder. Id. On November 15, 2012, he filed a motion to suppress evidence of his CSLI, in which he argued the Commonwealth had obtained in violation of his rights under the Fourth Amendment to the United States Constitution and under art. 14. Id. A Superior Court judge allowed the motion, deciding in substance that, under art. 14, obtaining the defendant's CSLI constituted a search in the constitutional sense. Id. In Augustine I, we agreed, and concluded that such a search would be permissible under art. 14 only upon a showing of probable cause. Id. at 231–232, 4 N.E.3d 846. We vacated the allowance of the motion to suppress and remanded the case to the Superior Court for consideration whether the affidavit that the Commonwealth had originally submitted in support of the order pursuant to 18 U.S.C. § 2703(d) (§ 2703 [d] order) demonstrated probable cause. Augustine I, 467 Mass. at 232, 255–256, 4 N.E.3d 846.

A different Superior Court judge (motion judge) held a hearing on the issue whether the affidavit met the probable

35 N.E.3d 691

cause standard required under Augustine I. The motion judge ruled that the standard had not been met, and again allowed the defendant's motion to suppress evidence of his CSLI. The Commonwealth sought interlocutory review of the order pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and G.L. c. 278, § 28E, which a single justice allowed and ordered to proceed before this court.

b. Facts. The sworn affidavit in support of the § 2703(d) order was submitted by State police Trooper Mary McCauley and recited the following facts. In August, 2004, Jules had two boy friends, the defendant and Marlon Barnett. Jules lived with her family in Malden; the defendant lived in the Dorchester section of Boston; and Barnett lived in Fort Lauderdale, Florida. During the weekend of August 21 and 22, Jules told the defendant that she was too busy to see him, but in fact, she spent the weekend with Barnett, who had flown to Massachusetts from Florida.4 The defendant did not know about Jules's relationship with Barnett until shortly before Jules disappeared.

On August 24, 2004, Jules left Malden and went to her job at a company located on Congress Street in Boston. Her shift that

day was from 3 p.m. to 11 p.m. , but she left her work station at 7:10 P.M. with only her cellular telephone and the keys to her motor vehicle, and never returned. Her wallet, driver's license, and other personal items remained at her work station. Approximately five hours later, at 12:20 a.m. on August 25, police discovered Jules's vehicle engulfed in flames in a parking lot near a pharmacy in Revere. A key was in the ignition, and an accelerant had been used to set the fire. Jules's father reported her missing on August 25.

Melissa Mitchell, the defendant's cousin, reported to police investigators that at approximately 5:15 p.m. on August 24, the defendant telephoned her and asked her to telephone Jules at work, and to say that the defendant was sick and needed Jules to come visit him at his home right away. Mitchell said she thought she was setting up a romantic evening for the defendant and Jules. The next day, Mitchell telephoned the defendant and asked him how things had gone with Jules the evening before. The defendant said that Jules had been a little upset, but that the evening went well. However, the following day, the defendant telephoned Mitchell and told her that Jules had been reported missing, and that in fact he had not seen Jules on the night of August 24. Mitchell asked the defendant over the telephone and later in person why he had said earlier that he saw Jules. The defendant said he did not know.

On August 28, the defendant admitted in an interview with police investigators to having asked Mitchell to contact Jules on August 24, but he claimed that Jules never came to his home and that he had not seen her since August 19. When asked whether he would appear on any surveillance video recorded near Jules's work on the night that she disappeared, the defendant “became very upset and started to cry and moan.” He eventually requested a lawyer and the interview stopped.

On September 8, 2004, Mitchell played for McCauley a voicemail message that Mitchell had received from the defendant. In the message, the defendant said, “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

35 N.E.3d 692

far the coast is clear ... I'm just waiting ... that was just nature taking [its] course.”5

On September 19, a body wrapped in plastic bags was discovered

floating in the Charles River. The body was decomposing and appeared to have been in the water for some time, but an analysis of dental records confirmed that it was Jules. Her body was found with a chain around it that had two weights attached, and electrical cord around her ankles. The medical examiner found no apparent cause of death, although as of the date of McCauley's affidavit (September 22, 2004), further examination and toxicology analysis remained pending.

In the course of her investigation, McCauley reviewed the records of incoming and outgoing calls for Jules's and the defendant's cellular telephones.6 , 7 Jules's records indicated a brief incoming call from the defendant's home telephone on August 24, 2004, at 5:36 p.m. , while Jules presumably was still at work. At 9:31 p.m. , there was a call from her cellular telephone to a pharmacy in Revere, although the pharmacy was closed at that time. Then, between 11:39 p.m. on August 24 and 8:59 p.m. on August 25, there were a number of calls from Jules's cellular telephone to her work and cellular telephone voicemail messaging systems. At 10:50 p.m. on August 25, there was a call between Jules's cellular telephone and one of Barnett's telephone numbers that lasted seventeen minutes. Barnett told an investigator that the only thing out of the ordinary about this telephone call was that Jules was whispering, and that Jules told him she was doing so because she was at home in Malden and was trying to avoid disturbing her brother, who was sleeping. However, Jules was not at home at this time, because her father already had...

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