Commonwealth v. Guastucci

• Decision Date: 14 October 2020
• Docket Number: SJC-12829
• Citation: 486 Mass. 22,154 N.E.3d 893
• Parties: COMMONWEALTH v. Robert GUASTUCCI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 22

154 N.E.3d 893

COMMONWEALTH

v.Robert GUASTUCCI.

SJC-12829

Supreme Judicial Court of Massachusetts, Middlesex..

Argued March 5, 2020

Decided October 14, 2020

Benjamin L. Falkner, Andover, for the defendant.

Gabriel Pell, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.¹

GAZIANO, J.

On March 15, 2017, an unknown computer user uploaded an image of child pornography to an Internet-based communication service that is designed to share files and "chat" with others. After receiving a tip from the National Center for Missing and Exploited Children (NCMEC), police tracked the specific computer address by which the device had connected to the Internet to the defendant's house in Tyngsboro, and an account owned by his wife. Seven months after the alleged illegal activity, on October 18, 2017, a State police trooper obtained a warrant authorizing a search of all computer systems and digital storage devices located within the residence for evidence of child pornography. Following execution of the search warrant, the defendant's laptop computer and a "flash" drive were seized; the defendant subsequently was indicted on two counts of possession of child pornography, in violation of G. L. c. 272, § 29C, as a result of images found on these devices.

At issue in this appeal is whether the information in the search warrant affidavit was too stale to establish probable cause to believe that evidence of child pornography would be found on computers or digital storage devices at the time of the search, seven months after the Internet activity with one specific image. A Superior Court judge denied the motion to suppress after finding that the seven-month period was "less than ideal, but ... a tolerable amount of delay." The defendant subsequently entered a conditional guilty plea to both charges, see Commonwealth v. Gomez, 480 Mass. 240, 252, 104 N.E.3d 636 (2018), and we allowed his petition for direct appellate review. Because we conclude that there was sufficient evidence for a magistrate to have found probable cause, we affirm.

1. Background. a. Investigation and warrant application. On October 18, 2017, State police Trooper Christopher MacDonald applied for a warrant to search computers and digital storage devices located within a single-family house in Tyngsboro. In support of the warrant application, McDonald submitted a ten-page affidavit and an attached exhibit. The exhibit described, in general terms, the investigation of child pornography that has been distributed over the Internet and stored in a suspect's computer. The affidavit and exhibit then stated the following.

On March 16, 2017, electronic service provider Skype.com (Skype) filed a report with NCMEC of a suspected incident of possession or distribution of child pornography.² Skype is a Web-based application that provides its customers with video communication and voice call services, as well as "chat" services where typed messages are exchanged interactively. Skype users also may use the platform to exchange digital images and video files. According to the information reported by Skype, a computer user with a "screen name" of "live: boullett_1" at a particular Internet Service Protocol (IP) address uploaded a digital image believed to be child pornography on March 15, 2017. At a date not specified in the affidavit, NCMEC forwarded the information contained in the tip to the State police computer crimes unit.

On May 5, 2017, pursuant to an administrative subpoena issued by the Massachusetts Attorney General's Office, the internet service provider (ISP) provided records for its subscriber at that IP address. The ISP identified the subscriber, as of March 15, 2017, as the defendant's spouse, with a service address in Tyngsboro. The Internet account, which had been created in August of 2007, listed three user names; none of these matched the Skype screen name "live: boullett_1" that had been used to upload the image.

On September 27, 2017, McDonald viewed the digital image uploaded to Skype and confirmed that it depicted child pornography. That day, he queried the registry of motor vehicles for vehicles and driver's licenses registered at the street address in Tyngsboro. He found three listed drivers: the defendant, his spouse, and their child. On October 11, 2017, MacDonald conducted surveillance of the single-family home and "was unable to locate any open unprotected wireless networks within the vicinity of the residence."

In addition to the facts involving this investigation, MacDonald's affidavit included generalized information about possession of child pornography. He averred that "[t]hose who have possessed and/or disseminated child pornography have an interest or preference in the sexual activity of children" and are "likely to keep secreted, but readily at hand, sexually explicit visual images depicting children.... These depictions tend to be extremely important to such individuals and are likely to remain in the possession of or under control of such an individual for extensive time periods."

He further averred that, in the event an individual with an interest in child pornography were to delete a file, it could be possible to recover that evidence from the computer's hard drive or temporary storage "months or years" after it had been deleted. The ability to recover deleted files depends upon many factors, including whether temporary files have been overwritten by new data; whether the hard drive has been damaged; and whether the computer user effectively encrypted the data.

The search warrant was issued, and police executed the warrant on October 19, 2017. The search yielded a laptop computer and a flash drive, both owned by the defendant, which contained images of child pornography.

b. Prior proceedings. A grand jury returned indictments charging the defendant with two counts of possession of child pornography, in violation of G. L. c. 272, § 29C. The defendant moved to suppress the evidence seized from the laptop computer and the flash drive on the ground that the affidavit failed to establish probable cause to search his home because it was based on stale information. A Superior Court judge denied the motion. The judge endorsed the motion as follows: "[A]fter hearing this motion is denied because an up loader on this online platform is in a different position than a downloader or uploader on platforms like iCloud or Dropbox, March to October is less than ideal but is a tolerable amount of delay and digital files are often kept on computers for years. Also, the appellate case[s] point toward this result."

On November 13, 2018, with the Commonwealth's assent (and with the judge's acceptance), the defendant tendered a conditional guilty plea to both counts of possession of child pornography. He then filed a notice of appeal, and we allowed his motion for direct appellate review.

2. Discussion. Under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, a search warrant may issue upon a showing of probable cause. Commonwealth v. Anthony, 451 Mass. 59, 68, 883 N.E.2d 918 (2008). "For probable cause to arise, the facts contained in an affidavit, plus the reasonable inferences that may be drawn from them, must allow the magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues" (quotations and citation omitted). Commonwealth v. Martinez, 476 Mass. 410, 415, 71 N.E.3d 105 (2017). See Commonwealth v. Long, 482 Mass. 804, 809, 128 N.E.3d 593 (2019) (probable cause means substantial basis to believe evidence of criminal activity may reasonably be expected to be located in place searched "at the time the search warrant issues" [citation omitted] ). "Facts asserted in the affidavit must be closely related in time to the issuance of the warrant in order to justify a finding of probable cause ...." Commonwealth v. Connolly, 454 Mass. 808, 814, 913 N.E.2d 356 (2009).

"Whether a search warrant is supported by probable cause is a question of law that we review de novo" (quotations and citation omitted). Commonwealth v. Vasquez, 482 Mass. 850, 866, 130 N.E.3d 174 (2019). Review of a probable cause determination is limited to the four corners of the warrant affidavit and any attachments thereto. Commonwealth v. Perkins, 478 Mass. 97, 102, 82 N.E.3d 1024 (2017). In determining whether probable cause exists, "we deal with probabilities.

These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act." Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Thus, we view consider the statements in the warrant affidavit in a "commonsense manner," Commonwealth v. O'Day, 440 Mass. 296, 299 n.4, 798 N.E.2d 275 (2003), and consider the warrant affidavit "as a whole, without overly parsing or severing it, or subjecting it to hypercritical analysis" (quotations and citation omitted). Perkins, supra.

In addition, we are mindful that the probable cause inquiry is "not a high bar" (citation omitted), District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018), and that probable cause "does not require definitive proof of criminal activity," Anthony, 451 Mass. at 69, 883 N.E.2d 918. "And officers need not ‘rule out a suspect's innocent explanation for suspicious facts’ to obtain a warrant" (citation omitted). United States v. Chavez, 423 F. Supp. 3d 194, 205 (W.D.N.C. 2019).

The defendant does not dispute that the image viewed by police constituted child pornography or that it was uploaded from a computer at his house on the date alleged. Moreover, the...