Commonwealth v. Augustine

CourtSuperior Court of Massachusetts
PartiesCommonwealth v. Shabazz Augustine No. 127972
Docket NumberSUCR2011-10748
Decision Date28 August 2014


Shabazz Augustine

No. 127972

No. SUCR2011-10748

Superior Court of Massachusetts, Suffolk

August 28, 2014


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.


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.[1] 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.

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"), [2] which recited facts and concluded, consistently with the requirements of 18 U.S.C. § 2703(c) and (d), [3] 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.

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 .'" [4] 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." [5] Id . 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"), [6] who lived in Ft. Lauderdale, Florida. ¶ 4.

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.[7]

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.[8] ¶ ¶ 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).

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.[9] ¶ 11(a)(iii).

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.[10] 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] ¶ 11(b)(v).

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.[12] In fact, Jules' family had already reported her missing and she was not at home in Malden. ¶ ¶ 2, 11(a)(v).

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 . . ....

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