Commonwealth v. Jordan

• Decision Date: 06 July 2017
• Docket Number: No. 16-P-1251.,16-P-1251.
• Citation: 81 N.E.3d 340,91 Mass.App.Ct. 743
• Parties: COMMONWEALTH v. Michael Aaron JORDAN.
• Court: Appeals Court of Massachusetts

91 Mass.App.Ct. 743

81 N.E.3d 340

COMMONWEALTH

v.Michael Aaron JORDAN.¹

No. 16-P-1251.

Appeals Court of Massachusetts, Suffolk..

Argued May 9, 2017.

Decided July 6, 2017.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Lefteris K. Travayiakis, West Roxbury, for the defendant.

Present: Agnes, Massing, & Lemire, JJ.

MASSING, J.

Ahmir Lee was shot to death on Boylston Street, near Copley Square in Boston, on the night of August 22, 2013. The investigation of the murder focused on the defendant, Michael Aaron Jordan. On December 30, 2013, the police obtained a search warrant directing the defendant's cellular telephone service provider, Metro PCS (provider), to produce "records regarding cell site tower locations, call details, incoming/outgoing text messages, subscriber information, cell sites and GPS records" associated with the defendant's telephone number for the six-week period surrounding the date of the homicide.

About one year later, a grand jury issued an indictment charging the defendant with murder, G.L.c. 265, § 1, and carrying a firearm without a license, G.L.c. 269, § 10(a ). Acting on the defendant's motion to suppress, a Superior Court judge entered an order suppressing all cell site location information (CSLI),² text messages, and contact information obtained from the provider. The judge reasoned that the affidavit in support of the search warrant failed to establish probable cause that the defendant committed the murder or that any information from the defendant's cellular telephone would provide evidence of the murder. The judge denied the motion insofar as it sought the suppression of "subscriber information" and "call details," noting that such information does not implicate constitutionally protected privacy interests. The Commonwealth obtained leave to pursue an interlocutory appeal from the suppression order. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We affirm in part and reverse in part.

Background. Our review of whether an affidavit in support of a search warrant established probable cause is restricted to the "four corners" of the affidavit.

Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003) ; Commonwealth v. Perez, 90 Mass.App.Ct. 548, 551, 60 N.E.3d 1188 (2016). Accordingly, we recite the facts set forth in the affidavit of Boston police Detective Melvin Ruiz.

Boston police officers were called to 553 Boylston Street at 11:09 P.M. on August 22, 2013. The victim was lying on his back, unresponsive and bleeding from the chest. He was pronounced dead minutes later at the Boston Medical Center. A medical examiner determined that the victim died of a gunshot wound.

A number of witnesses were interviewed at Boston police headquarters. Two employees of a nearby restaurant heard three gunshots as they were leaving work. One employee, who was walking toward Boylston Street, saw a man "walking really fast" toward a car parked at the intersection of Clarendon and Boylston Streets. She described him as "short, [five feet, seven inches or five feet, eight inches tall], stocky build, shaved head, light skin black male, baggy baby blue shirt with designs and oversized jean shorts." This witness saw the man get into an "older car, gray in color, leather top, boxy style" and then drive down Clarendon Street "really fast" toward "Saint James Street." Her coworker, the second witness, was crossing the street toward Trinity Church when he saw a person holding a grey or silver gun walking toward him. The witness turned the other direction and was unable to describe the person; however, he then saw an older model car (1989-1992), possibly a Cadillac Eldorado, with a "leather or ragtop roof, cream/beige in color," driving "really fast" on Clarendon Street.

A third witness, who had parked his car in front of a fast food restaurant on Boylston Street, heard an argument, then three or four gunshots. He saw the victim run across the street and fall to the ground and another man walk away in the direction of the church. This witness described the man as "a white Hispanic male, [mid-thirties], ... [five feet, one inch or five feet, two inches tall], 200 [pounds], heavy build, wearing a blue baggy shirt and jean shorts down to the knees."

Two other witnesses, a father and his son, were hanging banners on Boylston Street at the time of the incident. The son observed three men talking on the benches in the park across the street. He heard a shout and then three or four gunshots; he also saw a man holding something in his right hand and saw flashes coming from the object. The son described the man as a "short fat guy, black Hispanic male, skin complexion of the baseball player A-Rod (Alex Rodriguez) from the New York Yankees, between [five feet, six inches to five feet, seven inches tall], heavy build, 250 [pounds], in his [mid-twenties or mid-thirties], wiffle short haircut, wearing a light blue tee shirt, and baggy dark blue shorts."³ The father heard "pops" and saw the victim being chased across the street. He also saw a man on the sidewalk, whose right arm was raised, run toward Clarendon Street. The father described the suspect as a "black male, short, [four feet, nine inches tall], stocky build, medium build, wearing ... a bright blue, baseball short sleeve shirt."

The sixth witness was a man who knew the victim as "Dough Boy." On the night of the shooting, this witness saw the victim at the benches near Clarendon and Boylston Streets, then heard three gunshots. The witness said that the victim ran toward him, then crossed Boylston Street and fell to the ground. This witness saw a man shooting in his direction, whom he described as "short, light skin, Spanish ... between [five feet, seven inches, and five feet, eight inches tall]."

Based on a tip,⁴ the investigation focused on the defendant, who was twenty-six years old, five feet, four inches tall, and weighed 200 pounds. The defendant was the registered owner of a brown, 1991 Chrysler New Yorker. Surveillance video recordings, made near the defendant's residence on Blue Hill Avenue in the Roxbury section of Boston four hours before the murder, showed a man "wearing a long blue shirt with light colors on the back of the shoulder and dark pants, who matched the physical description of the suspect" coming from the direction of the defendant's address and getting into a "tan/beige boxy type motor vehicle" parked across the street. The car appeared to be a Chrysler New Yorker with a vinyl or leather half-top. Other surveillance recordings show the same car parked across the street from the defendant's address on a regular basis during the ten-day period before the murder. After the murder, the car was no longer seen in the area; its registration was revoked about one and one-half months after the murder. Ruiz's affidavit also stated, "while monitoring the same surveillance footage, I observed the individual, believed to be [the defendant] holding an object, believed to be a cellular phone to his ear as he walked toward the vehicle."

The police ascertained the defendant's cellular telephone number and provider. Using an administrative subpoena, they learned that the defendant had activated his cellular telephone number in 2009 and had terminated service on September 12, 2013, three weeks after the murder. The records showed that "in and around the time of the murder on August 22, 2013, there were many inbound and outbound cellular phone calls made from this number," including telephone calls with two members of the defendant's family.

Based on these facts, Ruiz stated, "I believe that by receiving the Metro PCS cell site towers information, I can confirm that [the defendant] was in fact on Boylston Street during and after the homicide of the victim." The affidavit concluded with a request not just for CSLI ("cell site tower locations" and "cell sites and GPS records"), but also for "call details, incoming/outgoing text messages, [and] subscriber information" associated with the defendant's cellular telephone for the period from August 1, 2013, through September 12, 2013, that is, from three weeks prior to the murder to three weeks after the murder, also coinciding with the termination of the defendant's cellular telephone service.

Discussion. 1. Search warrant requirements in the context of cellular telephones. In Commonwealth v. Augustine, 467 Mass. 230, 4 N.E.3d 846 (2014) ( Augustine I ), S.C., 470 Mass. 837, 26 N.E.3d 709 (2015), and 472 Mass. 448, 35 N.E.3d 688 (2015), the Supreme Judicial Court "concluded that the government-compelled production of CSLI by a cellular telephone service provider is a search in the constitutional sense to which the warrant requirement of art. 14 of the Massachusetts Declaration of Rights applies." Commonwealth v. Broom, 474 Mass. 486, 491-492, 52 N.E.3d 81 (2016).⁵ In Commonwealth v. Fulgiam, 477 Mass. 20, 32-33, 73 N.E.3d 798 (2017), decided just days before oral argument in this appeal, the Supreme Judicial Court held that a search warrant also is required to obtain text messages from a cellular telephone, even when those messages are held by a third-party cellular telephone service provider.⁶

"Under the Fourth Amendment and art. 14, a search warrant may issue only on a showing of probable cause." Commonwealth v. Anthony, 451 Mass. 59, 68, 883 N.E.2d 918 (2008). To obtain a search warrant for text messages or CSLI, the affidavit must demonstrate "probable cause to believe ‘that a particularly described offense has been, is being, or is about to be committed, and that the [text messages or CSLI] 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.’ " Augustine I, supra at 256, 4 N.E.3d 846, quoting from Commonwealth v. Connolly, 454 Mass. 808, 825, 913 N.E.2d 356 (2009). See Fulgiam, supra at 32, 73 N.E.3d 798.

"In dealing with...