Commonwealth v. Chamberlin

• Decision Date: 05 December 2014
• Docket Number: No. 12–P–1292.,12–P–1292.
• Citation: 86 Mass.App.Ct. 705,20 N.E.3d 954
• Parties: COMMONWEALTH v. Peter CHAMBERLIN.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 705

20 N.E.3d 954

COMMONWEALTH

v.Peter CHAMBERLIN.

No. 12–P–1292.

Appeals Court of Massachusetts, Bristol.

Argued Sept. 9, 2014.

Decided Dec. 5, 2014.

Merritt Schnipper for the defendant.

Tara L. Blackman, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, GRAINGER, & HANLON, JJ.

Opinion

GRAINGER

, J.

A jury of the Superior Court found the defendant guilty of armed robbery while masked, G.L. 265, § 17

, kidnapping for purposes of extortion, G.L. c. 265, § 26, and armed assault with intent to murder, G.L. c. 265, § 18(b )

. The convictions were based on the armed invasion of a real estate agency following telephone conversations between the defendant and the agency's owner during which the defendant made an evening appointment for the ostensible purpose of discussing one or more properties of interest to him. The defendant appeals, asserting numerous procedural and evidentiary errors that we consider in turn, referring to the undisputed factual background as necessary to inform our discussion.

1. Production of telephone records. The victim told the police that although the defendant was masked, his voice was recognizable as belonging to an individual who identified himself as “Marco” during several telephone calls that culminated in an evening appointment at the victim's office for the time of the robbery. The victim reported that the defendant spoke repeatedly during the robbery, making threats to the victim and referring to the victim's wife. In the course of investigating the robbery, Fall River police Detective Lawrence Ferreira examined the victim's phone, retrieving a voicemail message from “Marco.” After obtaining call records from the victim's cellular telephone carrier, Detective Ferreira linked the defendant to the only number on the call list that the victim did not recognize. Ferreira then contacted the carrier, T–Mobile, and requested call records associated with that number. Ferreira informed the T–Mobile law enforcement relations officer, Ronald Witt, that the defendant's phone was being used to contact the victim's family and that the “suspect has threatened the victim's family with bodily harm.”¹

The defendant's phone records were produced by T–Mobile voluntarily and without the issuance of an administrative subpoena, G.L. c. 271, § 17B

, although T–Mobile accompanied the production with a request for a subpoena within forty-eight hours. The record indicates that the assistant district attorney in charge of the case sent a grand jury subpoena to Witt the day following T–Mobile's production; that subpoena was not in evidence and is not in the record.

a. General Laws c. 271, § 17B

. The defendant asserts that the phone records produced by T–Mobile were obtained in violation of G.L. c. 271, § 17B, and that this violation warrants suppression of those records. Neither party contends that the defendant has a constitutional expectation of privacy in his phone records. Indeed, the defendant could not make such a claim. See Commonwealth v. Augustine, 467 Mass. 230, 244, 4 N.E.3d 846 (2014).² Therefore, the question before us is one of a statutory or procedural, not constitutional, violation.

First, we conclude that an administrative subpoena pursuant to G.L. c. 271, § 17B

, was not required in this case. This issue appears to be one of first impression. While the Supreme Judicial Court and this court have addressed the use of the § 17B procedure, neither court has addressed whether a § 17B

subpoena is required to obtain phone records in all instances. The defendant's reliance on Commonwealth v. Vinnie, 428 Mass. 161, 698 N.E.2d 896, cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998), and Commonwealth v. Feodoroff, 43 Mass.App.Ct. 725, 686 N.E.2d 479 (1997), is unavailing on this question, as neither case suggests that § 17B is the exclusive procedure by which the Commonwealth may obtain phone records.³ We first look to the language of the statute itself to determine whether a § 17B subpoena is the exclusive means by which to obtain phone records. Commonwealth v. Boe, 456 Mass. 337, 347, 924 N.E.2d 239 (2010).

The language of § 17B⁴

is permissive, not mandatory, and is entirely silent with respect to the voluntary production of documents by a third-party phone company. The Supreme Judicial Court has recognized that, while many mechanisms exist to obtain documents through judicial process, documents can also be obtained by law enforcement personnel through informal, extrajudicial process for investigative purposes. See Commonwealth v. Odgren, 455 Mass. 171, 186 n. 26, 915 N.E.2d 215 (2009), citing Commonwealth v. Mitchell, 444 Mass. 786, 791–792 n. 12, 831 N.E.2d 890 (2005). Nothing in the language of § 17B changes that reality. While § 17B may be the only available mechanism in certain circumstances, neither statute nor case law renders it the exclusive method by which to obtain third-party records.

b. Stored Communications Act. Moreover, we discern no provision of the Federal Stored Communications Act (the act), 18 U.S.C. §§ 2701 et seq. (2006)

, that compels a different conclusion. The act “directs how governmental entities may obtain communication records from third-party providers of electronic communication services.” Commonwealth v. Augustine, 467 Mass. at 235, 4 N.E.3d 846. The section of the act at issue here is § 2702, entitled “Voluntary disclosure of customer communications or records” (emphasis added). We are not aware of any reported cases in Massachusetts which interpret § 2702 of the act,⁵ and the act's plain language contemplates the voluntary disclosure of records in certain circumstances. One such circumstance, relevant here, is when the custodian believes in good faith, that there are exigent

circumstances. 18 U.S.C. § 2702(c)(4) (2006)

.⁶

The motion judge found that a § 17B

subpoena was not required because there was no demand for the records; they were voluntarily produced to Detective Ferreira after what amounted to no more than an inquiry to T–Mobile. We accept the motion judge's findings of fact absent clear error. See Commonwealth v. Watson, 36 Mass.App.Ct. 252, 257, 629 N.E.2d 1341 (1994), citing Commonwealth v. Harmon, 410 Mass. 425, 428–429, 573 N.E.2d 490 (1991). Finding no error, we conclude for purposes of our analysis that T–Mobile produced the records voluntarily after inquiry by the Fall River police.

While, as stated, the Commonwealth was not required to use a § 17B

administrative subpoena, the voluntary disclosure of phone records here was only proper under Federal law if there were exigent circumstances. 18 U.S.C. § 2702(c)(4) (2006). The motion judge found that exigent circumstances did exist at the time T–Mobile produced the records. That factual determination is again reviewed under an abuse of discretion standard and, again, we find none. In doing so, we refer particularly to the violent nature of the crime and the perceived ongoing threat to the victim and his family.⁷ The denial of the motion to suppress was proper.

c. Grand jury subpoena. Finally, while we conclude the Commonwealth was not required to use a § 17B

administrative subpoena, we agree with the defendant that the Commonwealth's use of a grand jury subpoena was procedurally improper. The grand jury subpoena issued here was issued at the request of the phone company after the records had already been produced to the police. The records could not have been intended to be produced at a grand jury, as none had been convened at the time. This is a statutory or ethical violation, not a constitutional one. See Commonwealth v. Mitchell, 444 Mass. at 798 n. 17, 831 N.E.2d 890. Suppression is not

the appropriate remedy absent a showing of prejudice to the defendant. See Commonwealth v. Smallwood, 379 Mass. 878, 887–888, 401 N.E.2d 802 (1980)

; Commonwealth v. Cote, 407 Mass. 827, 832–833, 556 N.E.2d 45 (1990). We note that the defendant appropriately conceded at oral argument that there was no prejudice flowing from the improper use of the grand jury subpoena.

2. “No-knock” search warrant: reappraisal. The defendant asserts that evidence seized in his residence should have been suppressed because the police failed to conduct a threshold reappraisal to ensure the necessity of the no-knock entry authorized by the search warrant. We do not agree.

The defendant does not argue that the inclusion of the no-knock provision in the warrant was itself improper, and such an argument would be unavailing under the circumstances we have already recited relating to the violent nature of the crime and the threats uttered during its commission. See note 7, supra. Rather, the argument made to the motion judge and pressed on appeal is that a reappraisal is required in all cases, and that the failure to engage in one renders the search invalid. Our case law does not apply such a categorical rule. Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818 (1982)

, on which the defendant relies, is a case in point: “We recognize that the facts existing at the time the warrant is issued may no longer exist at the time the warrant is executed. In those instances, the officers would be required to knock and announce their purpose.” (Emphasis added.) Id. at 421, 439 N.E.2d 818. Reappraisal is not a formalistic exercise mandated in all circumstances—it is a recognition that the provisions of a warrant are conditioned on the continued existence of the sworn facts justifying the abrogation of constitutional rights until the warrant is executed.⁸

Circumstances commonly justifying a failure to knock were present here. In the context of the all-important consideration of officer safety, we refer again to the violent nature of the crime and the demonstrated disregard for life shown by the suspect.⁹ With reference to preservation of evidence, the articles enumerated in

the warrant included gloves, checks, zip ties, and ammunition casings; such items are in many cases small and capable of concealment or...