Commonwealth v. Chamberlin

• Decision Date: 19 February 2016
• Docket Number: SJC–11877.
• Citation: 45 N.E.3d 900,473 Mass. 653
• Parties: COMMONWEALTH v. Peter CHAMBERLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 653

45 N.E.3d 900

COMMONWEALTH

v.Peter CHAMBERLIN.

SJC–11877.

Supreme Judicial Court of Massachusetts, Bristol.

Submitted Oct. 6, 2015.

Decided Feb. 19, 2016.

Merritt Schnipper for the defendant.

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

Chauncey B. Wood, Boston, Matthew R. Segal, Jessie J. Rossman, Kevin S. Prussia, & Caitlin W. Monahan, Boston, for Massachusetts Association of Criminal Defense Lawyers & another, amicus curiae, submitted a brief.

Marguerite T. Grant, Assistant District Attorney, for District Attorney for the Norfolk District, amicus curiae, submitted a brief.

Present (Sitting at New Bedford): GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

LENK, J.

In the aftermath of an attempted robbery in 2007, where the victim was bound, threatened, and shot, the police conducted an investigation seeking three attackers who had fled the scene. As part of that investigation, a detective obtained from a cellular telephone service provider certain subscriber records for the defendant's telephone number. The information thus obtained formed part of a later affidavit offered in support of a search warrant that, in turn, ultimately yielded several items of an incriminatory nature subsequently admitted at trial. Before trial, the defendant without success moved to suppress the telephone records and the physical evidence obtained pursuant to the warrant. He was convicted of armed robbery while masked, G.L. c. 265, § 17 ; kidnapping for purposes of extortion, G.L. c. 265, § 26 ; and armed assault with intent to murder, G.L. c. 265, § 18. Following affirmance of his convictions by the Appeals Court, see Commonwealth v. Chamberlin, 86 Mass.App.Ct. 705, 713, 20 N.E.3d 954 (2014), we allowed the defendant's application for further appellate review, limited to issues related to his cellular telephone records.

The basis for the defendant's challenge is the government's failure to comply with G.L. c. 271, § 17B, the telephone records demand statute, as then in effect. That statute in essence authorized the Attorney General or a district attorney on certain conditions to demand of common carriers (like the cellular telephone service provider here), by means of an administrative subpoena, all pertinent records in the provider's possession. There is little question that the means used here to obtain the records—a request made by a detective directly to the provider for voluntary production forthwith of the records—was not in compliance with the formal process contemplated in G.L. c. 271, § 17B. The defendant maintains that G.L. c. 271, § 17B, establishes a baseline formal process necessary to the government's gaining access to such records. The government, on this view, having failed to comply with G.L. c. 271, § 17B, is foreclosed from circumventing its requirements and obtaining such records by informal means; the records obtained should accordingly be suppressed, along with any related evidence derived therefrom.

We conclude that G.L. c. 271, § 17B, as then in effect, did not itself preclude the government from obtaining the records at issue

here. Although the means employed to obtain the records also had to comply with the requirements of the Federal Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (2006), we discern no error in the motion judge's determination that those requirements were met in this case. Accordingly, the motions to suppress were correctly denied and we affirm the convictions.¹

Background and prior proceedings. On September 24, 2007, three masked men held Antonio Alberto, the owner of a real estate agency, at gunpoint in his office; they bound his hands and ordered him to open a safe in the building. When Alberto did not open the safe, the men threatened him, stating that they knew where he lived and “had [his] wife.” After a struggle, Alberto was shot through the ear.² He pretended to be dead until the intruders left, then called for emergency assistance and was taken to a hospital.

The following day, Alberto described the robbery to Lawrence Ferreira, a detective of the Fall River police department. Alberto said that he had recognized the voice of one of the intruders as belonging to “Marco,” a man who had called him several times in the weeks before the robbery to express interest in properties listed by his real estate agency, and who had scheduled a meeting with him for the time of the robbery. Alberto also informed Ferreira that the intruders had threatened his family, but did not appear actually to know where he lived, despite claims to the contrary. Nevertheless, following the robbery, Alberto had been receiving hang-up calls at work and at home that “scared the hell out of” him.

Alberto reviewed the call log from his cellular telephone with Ferreira, and they were able to identify a telephone number for “Marco.” Ferreira then searched for the number on a “police related search engine” that provided him with the subscriber information associated with that number. The subscriber information included the defendant's name and address.

What followed was the conduct contested in this appeal: on September 26, 2007, Ferreira sought the defendant's telephone records directly from an employee in the cellular service provider's law enforcement relations department. Rather than causing

the provider to be served with an administrative subpoena or some other form of legal process, Ferreira gave the employee over the telephone “a brief synopsis” of his investigation, and promised that he would provide a subpoena within forty-eight hours. On the night of September 26, 2007, Ferreira sent the employee a letter that included the suspect's phone number and a summary of the investigation.³ A few hours later, the employee provided Ferreira with the defendant's subscriber information and a call log for the defendant's cellular telephone number for the prior two weeks.⁴ The following day, September 27, 2007, Ferreira asked the assistant district attorney assigned to the case to send the provider a subpoena for the records. A grand jury subpoena apparently was sent the same day.⁵

As noted, the defendant's pretrial motions to suppress the records produced were denied after an evidentiary hearing. In

essence, the judge who heard the motions (motion judge) determined both that G.L. c. 271, § 17B, was not the exclusive means by which the government could obtain such records and that the service provider's good faith, voluntary disclosure of the records in exigent circumstances did not violate the Federal Stored Communications Act. After a jury convicted the defendant, the Appeals Court determined, inter alia, that the defendant's motions to suppress properly were denied, see Chamberlin, supra at 706–710, 20 N.E.3d 954, and we allowed the defendant's application for limited further appellate review.

Discussion. Because the defendant does not raise any constitutional claims,⁶ our inquiry is limited to whether Ferreira was permitted to request the defendant's telephone records directly from the service provider without first complying with at least the formal process set out in G.L. c. 271, § 17B. “[W]hen reviewing a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but independently review the judge's ultimate findings and conclusions of law” (quotation and citation omitted). Commonwealth v. Jewett, 471 Mass. 624, 628, 31 N.E.3d 1079 (2015). In light of its text and legislative history, we conclude that G.L. c. 271, § 17B, as in effect in 2007, did not preclude the government from asking a service provider to disclose customer records voluntarily.⁷ Nonetheless, under the Federal Stored Communications Act, service providers are permitted to disclose those records voluntarily only in certain limited circumstances. See 18 U.S.C. § 2702(c)(1)-(6). Because we discern no error in the trial court judge's determination that one such set of circumstances existed

here, we affirm.

1. Statutory overview. General Laws c. 271, § 17B, was first enacted in 1966, apparently as part of a broader effort to combat the use of landline telephones in illegal gaming operations. See, e.g., 1966 House Doc. No. 3610 (summarizing bills targeting illegal telephone gaming operations). As originally enacted, the statute provided that the Attorney General or a district attorney could demand customer records from a service provider whenever there were reasonable grounds to believe that a subscriber to that provider's service was using the service for an unlawful purpose. G.L. c. 271, § 17B, as inserted by St. 1966, c. 352. By allowing the government to compel service providers to disclose customer records in the early stages of an investigation even when there was not yet probable cause for a warrant, the statute thus supplied “an investigatory tool, not as invasive as a house search or a wiretap, but nevertheless probing at the edges of privacy.” Commonwealth v. Feodoroff, 43 Mass.App.Ct. 725, 728, 686 N.E.2d 479 (1997). As we emphasized, “the statute [did] not provide the district attorney with a free hand to issue routine administrative subpoenas.” Commonwealth v. Vinnie, 428 Mass. 161, 178, 698 N.E.2d 896, cert. denied, 525 U.S. 1007, 119 S.Ct. 523, 142 L.Ed.2d 434 (1998). If the Attorney General or a district attorney had “no reasonable grounds for belief that the target was using the telephone for an unlawful purpose,” the telephone records could be suppressed. Id. General Laws c. 271, § 17B, remained essentially unchanged until 2008. See St. 2008, c. 205, § 3.⁸

Twenty years after the Legislature enacted G.L. c. 271, § 17B, in 1966, the United States Congress enacted the Federal Stored Communications Act. See Pub. L. 99–508, 100 Stat. 1860 (1986). The Federal Stored Communications Act aims “to protect the privacy of users of electronic communications” during government investigations (citation omitted). Commonwealth v. Augustine, 467 Mass. 230, 235, ...