Commonwealth v. Estabrook, SJC–11833.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: BOTSFORD, J.
• Citation: 472 Mass. 852,38 N.E.3d 231
• Parties: COMMONWEALTH v. Jason ESTABROOK (and nine companion cases).
• Docket Number: SJC–11833.
• Decision Date: 28 September 2015

472 Mass. 852
38 N.E.3d 231

COMMONWEALTH
v.
Jason ESTABROOK (and nine companion cases¹ ).

SJC–11833.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted May 7, 2015.
Decided Sept. 28, 2015.

38 N.E.3d 233

George E. Murphy, Jr., for Jason Estabrook.

38 N.E.3d 234

Daniel Beck, Cambridge, (Susan M. Costa, Boston, with him) for Adam Bradley.

Jamie Michael Charles, Assistant District Attorney (David Marc Solet, Assistant District Attorney, with him) for the Commonwealth.

Andrew Sellars, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.

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

Opinion

BOTSFORD, J.

In this case, we consider again a search of historical cellular site location information (CSLI).² See Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass. 837, 26 N.E.3d 709 (2015). The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley's cellular telephone

that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant. The defendants also sought suppression of statements they each made to police in 2012, following the receipt of Bradley's CSLI. A judge of the Superior Court denied the motions after an evidentiary hearing; the defendants filed these interlocutory appeals. See Mass. R. Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).

Returning to an issue briefly touched on in Augustine, 467 Mass. at 255 n. 37, 4 N.E.3d 846, we conclude that a defendant's reasonable expectation of privacy protected under art. 14 of the Massachusetts Declaration of Rights is not violated where the Commonwealth requests up to six hours of historical CSLI without obtaining a search warrant. In this case, however, because the Commonwealth requested two weeks of historical CSLI, a search warrant was required, even though the Commonwealth proposes to use only six hours of the CSLI as evidence at trial. Nevertheless, we decide that many of the defendants' statements and Bradley's CSLI are not subject to suppression on account of the CSLI that was first obtained unlawfully: the defendant's statements were not made in response to being confronted by that tainted CSLI, and the 2013 search warrant was supported by probable cause derived from information the Commonwealth obtained independently rather than through exploitation of the tainted CSLI.

Background. To provide context, we summarize some of the background facts as found by the motion judge, reserving additional facts for consideration in connection with the issues raised in these

38 N.E.3d 235

appeals.³ At approximately 3:50 a.m. on July 7, 2012, Quintin Koehler (victim) and his brother, Ryan, were at their home in Billerica when they heard loud noises coming from the kitchen. According to Ryan, the two brothers went into the kitchen where they were confronted by three to four masked men. Each of the intruders appeared to be in his early twenties, and at least two of them were holding firearms. One of the intruders, whom we shall call the “first intruder,” had a gun and ordered the two brothers onto the ground. The victim refused and hit a different intruder, whom we shall call the “second intruder,” with a tea kettle, after which a struggle ensued between them. At that point one or two of the other intruders shot the victim in the head

and shoulder. All the intruders then fled the scene on foot. A few minutes later, police and emergency personnel arrived, and at 3:58 a.m. the victim was transported to a hospital where he died of a gunshot wound to the head. On July 10, 2012, Nicholas Cappello told Deputy Chief Roy Frost of the Billerica police department and State police Trooper Anthony DeLucia that he lived with the victim, that he regularly purchased and distributed marijuana, and that at times he purchased the drugs from a supplier in Lynn named Ashley. The police learned that the supplier was Ashley Marshall, and that the defendant Bradley was an associate of hers.

Prior to July 25, 2012, an assistant district attorney obtained through administrative subpoenas, see G.L. c. 271, § 17B, certain telephone records (call logs) of Bradley and Marshall. The call logs associated with Bradley's cellular telephone revealed the time and duration of incoming and outgoing calls. They also showed the telephone numbers associated with each call; they did not contain CSLI. These call logs revealed, among other things, that Bradley's telephone was in contact with Marshall's telephone often on the night of the shooting.

On July 25, 2012, based on information gleaned from the call logs and the police investigation, the Commonwealth filed an application in the Superior Court seeking an order to obtain from Bradley's cellular service provider certain records, including historical CSLI, relating to his cellular telephone for the period from July 1 through July 15, 2012. Pursuant to 18 U.S.C. § 2703(d), a Superior Court judge issued the requested order (§ 2703 [d] order).⁴ Bradley's CSLI evidence indicated that at the time the shooting took place, his cellular telephone was in the area of Burlington and Bedford and communicating with a cell tower located three miles from the victim's home.⁵

38 N.E.3d 236

On August 2, 2012, police officers interviewed Bradley, who was not in custody and who denied involvement in the July 7 shooting, but in response to their questions, told the officers of his cousin, the defendant Estabrook. Police then interviewed Estabrook on August 15, during which Estabrook volunteered that he had sought treatment for a dislocated shoulder at Salem Hospital in the early morning hours of July 7, shortly after the shooting had occurred. After the police conducted further investigation, on September 26, 2012, Estabrook was arrested for the murder of the victim. On September 27, in another interview with the investigating officers, Estabrook detailed the facts of the July 7 home invasion and shooting and implicated himself, Bradley, and others in the crimes. That same day, the officers also spoke to Bradley, who again denied any personal involvement, saying that he knew of how the incident transpired only from what Estabrook had told him.

On December 6, 2012, a Middlesex County grand jury returned indictments against Bradley and Estabrook, charging each with murder in the first degree, armed home invasion, attempted armed robbery, carrying a firearm without a license, and unlawful possession of ammunition. On November 20, 2013, Billerica police applied for and obtained search warrants for the same CSLI that the Commonwealth had collected pursuant to the § 2703(d) orders obtained in 2012, including Bradley's CSLI covering the period from July 1 to July 15, 2012.⁶

In June, 2014, Bradley and Estabrook filed separate motions to suppress evidence of Bradley's historical CSLI on the ground that the Commonwealth had obtained this evidence in violation of art. 14.⁷ See Augustine, 467 Mass. at 232, 4 N.E.3d 846. Both motions also sought suppression of the defendants' statements made to police allegedly

derived from the CSLI: Estabrook argued in favor of suppression of his August 15 and September 27 statements; Bradley sought suppression of the statements he made on August 2 and September 27.⁸ After an evidentiary hearing, the motion judge denied the defendants' motions. The judge determined that the July 25, 2012, § 2703(d) order for Bradley's CSLI was not supported by probable cause. She further concluded, however, that probable cause and a search warrant were not required for the CSLI pertaining to the six-hour period surrounding the time of the July 7 shooting because the defendants had no reasonable expectation of privacy in CSLI covering so brief a period. As to the CSLI covering the periods beyond this six-hour window, the judge ruled that suppression was not called for in light of the fact that the police had obtained a search warrant for this CSLI, which was supported by probable cause

38 N.E.3d 237

derived from evidence independent of the CSLI. A single justice allowed the defendants' applications for interlocutory review and directed that their appeals be consolidated and heard in this court.

Discussion. 1. Standard of review. “When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error.” Commonwealth v. Watson, 455 Mass. 246, 250, 915 N.E.2d 1052 (2009). However, we undertake “an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Id.

2. Warrant requirement. The defendants challenge the motion judge's ruling that the Commonwealth did not need a search warrant to obtain the CSLI covering the six-hour window surrounding the July 7 shooting.⁹ They contend that...