Commonwealth v. Lowery

• Citation: 487 Mass. 851,170 N.E.3d 690
• Decision Date: 13 July 2021
• Docket Number: SJC-13050
• Parties: COMMONWEALTH v. Rowen LOWERY.
• Court: United States State Supreme Judicial Court of Massachusetts

487 Mass. 851

170 N.E.3d 690

COMMONWEALTH

v.Rowen LOWERY.

SJC-13050

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 3, 2021.

Decided July 13, 2021.

James E. Methe, for the defendant.

Chia Chi Lee, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GEORGES, J.

The defendant, Rowen Lowery, was convicted of trafficking of persons for sexual servitude, G. L. c. 265, § 50 (a ) (sex trafficking); and unlawful possession of marijuana, G. L. c. 94C, § 34. On appeal, the defendant raises six issues with respect to his sex trafficking conviction, arguing that (1) a Superior Court judge (motion judge) improperly denied his motion to suppress because the search warrants were not supported by probable cause; (2) the trial judge improperly admitted the victim's out-of-court statements under the coventurer exemption to the hearsay rule; (3) the judge abused her discretion in admitting prior text message evidence, which contained evidence of his prior bad acts; (4) the judge abused her discretion in permitting a police officer to testify as both an expert witness and a percipient witness; (5) the Commonwealth's witnesses’ limited references to "FBI Child Exploitation Task Force" and "victim" were prejudicial; and (6) the Commonwealth drew an unreasonable inference from the evidence in its closing argument.

We affirm the order denying the defendant's motion to suppress. We also conclude that there were no errors necessitating a new trial, and thus we affirm the defendant's convictions.

Background. 1. Facts. We recite the facts as the jury could have found them, reserving certain details for discussion of specific issues.

In July 2015, the Southern Middlesex regional drug task force (task force), in coordination with the Federal Bureau of Investigation (FBI), launched a human trafficking investigation in Woburn to identify and assist victims of human trafficking. Detective Brian McManus of the Woburn police department was the commander of the task force; he also worked as an undercover officer in the operation. The task force began its investigation from a website titled "Backpage.com" (Backpage),¹ where McManus searched for commercial sexual services being offered in the Woburn area. McManus found one such advertisement containing photographs and a telephone number for a woman to whom we will refer as Jane.² Working undercover, McManus called the listed number and arranged for an hour-long session of sexual services with an individual he understood to be Jane. McManus and Jane agreed to meet at a hotel in Woburn later that evening.

At around 6 P.M. , police surveillance units posted outside that hotel observed the defendant and Jane arrive in a gray Dodge Charger. Jane got out of the vehicle and walked into the hotel while using a cell phone. The defendant stayed in the parking lot for a short time before driving away. McManus met Jane alone in a hotel room. Several other undercover officers, however, were waiting in an adjacent room accessible by an adjoining door.

McManus and Jane immediately discussed the nature of the sexual acts to be performed, and mutually agreed on a price of $260 for oral sex. McManus gave Jane cash he had obtained from Woburn police undercover funds. Jane then appeared to start exchanging text messages with someone on her cell phone. After she appeared to have received a response, Jane put down her cell phone and was ready to perform the sexual act. When McManus told Jane that he did not have a condom, she produced a wrapped one from her back pocket and began to open the package. At that point, McManus gave a predetermined signal to the undercover officers waiting in the adjacent room, and they entered through the adjoining door. They identified themselves to Jane and began speaking with her, while McManus left the room. The officers read her the Miranda warnings and searched her. In Jane's possession was a cell phone, the $260 from McManus, and a Lifestyles brand condom in sealed packaging.

Meanwhile, one of the police surveillance units followed the Dodge Charger as the defendant drove away from the hotel. The officers maintained uninterrupted visual contact, and stopped the vehicle after a few minutes; the defendant was the only occupant. When an officer approached the driver's window, the defendant was holding an identification card belonging to an unidentified woman.³ The defendant was arrested, and his vehicle was towed to Woburn police headquarters.

An inventory search of the vehicle produced, among other things, (1) a temporary Massachusetts identification card belonging to Jane in the "passenger area";⁴ (2) five cell phones, also found in the passenger area; (3) an empty box of condoms, loose condoms, and personal lubricating gel, all of which were recovered from a purse that was on the front passenger's seat; (4) two different types of business cards for "Independent Entertainment Services"; (5) business cards for a number of men's entertainment clubs; (6) Massachusetts identification cards in the trunk and passenger area for two different women; and (7) packages of marijuana that were recovered from a backpack in the trunk.

Subsequently, McManus applied for and obtained six search warrants to search Jane's cell phone and the five cell phones recovered from the defendant's vehicle. Among the cell phones recovered from the defendant's vehicle were a Kyocera brand cell phone and an Alcatel brand cell phone. The records for the Kyocera cell phone showed that it had received several text messages starting, "Yo Roe"; Jane testified at trial that the defendant was known as "Roe" or "Ro." The records for the Alcatel cell phone showed that the defendant had engaged in sexually explicit conversations with someone using the cell phone recovered from Jane.⁵ As with the Kyocera cell phone, the user of the Alcatel cell phone responded affirmatively to messages addressed to "Ro."

2. Prior proceedings. In March 2016, a grand jury returned indictments charging the defendant with sex trafficking, G. L. c. 265, § 50 (a ) ; and possession with intent to distribute marijuana, G. L. c. 94C, § 32C (a ). In October 2017, the defendant filed a motion to suppress the text messages seized from the six cell phones. After a nonevidentiary hearing, the motion judge concluded that the search warrant affidavit supported probable cause to "search the cell phones for evidence of the crime" of sex trafficking, and denied the motion.

The Commonwealth subsequently moved in limine to introduce statements made by Jane in certain text messages as statements of a coconspirator or coventurer, and text messages from the defendant as statements of a party opponent. The trial judge, a different judge from the one who ruled on the motion to suppress, allowed both motions. The defendant's motion to preclude use of the phrase "FBI Child Exploitation Task Force" was allowed.

Trial commenced in April 2019, and the jury convicted the defendant of sex trafficking and the lesser included offense of possession of marijuana. The defendant timely appealed to the Appeals Court, and we transferred the matter to this court on our own motion.

Discussion. The defendant challenges the denial of his motion to suppress; the admission of Jane's statements under the coventurer exemption to the hearsay rule; the introduction of prior bad act evidence;⁶ and testimony by McManus as both an expert and percipient witness.⁷ We address each issue in turn.

1. Motion to suppress. The defendant argues that the motion judge erred in denying his motion to suppress evidence obtained from the six cell phones because the affidavit in support of the search warrants did not establish probable cause. Specifically, the defendant contends that even if there were probable cause to search the cell phone that was in Jane's possession when she was detained by police, the affidavit insufficiently linked her cell phone to any of the other five cell phones recovered from the defendant's vehicle to support a search of their contents.⁸ We disagree.

a. Standard of review. "The facts contained in the affidavit, and the reasonable inferences therefrom, must ‘demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched.’ " Commonwealth v. Tapia, 463 Mass. 721, 725, 978 N.E.2d 534 (2012), quoting Commonwealth v. Jean–Charles, 398 Mass. 752, 757, 500 N.E.2d 1332 (1986). As with any question of law, "we review the motion judge's probable cause determination de novo." Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017), citing United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir. 2007), cert. denied, 552 U.S. 1104, 128 S.Ct. 877, 169 L.Ed.2d 738 (2008).

In determining whether probable cause exists such that a search warrant may issue, "[o]ur inquiry ... always begins and ends with the four corners of the affidavit." Commonwealth v. Fernandes, 485 Mass. 172, 183, 148 N.E.3d 361 (2020), cert. denied, ––– U.S. ––––, 141 S. Ct. 1111, 208 L.Ed.2d 555 (2021), quoting Commonwealth v. O'Day, 440 Mass. 296, 297, 798 N.E.2d 275 (2003). In considering the existence of probable cause, "we deal with [practical] probabilities," 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), and we consider the search warrant affidavit "as a whole and in a commonsense and realistic fashion," Commonwealth v. Snow, 486 Mass. 582, 586, 160 N.E.3d 277 (2021), quoting Commonwealth v. Dorelas, 473 Mass. 496, 501, 43 N.E.3d 306 (2016). A reviewing court gives considerable deference to the magistrate's determination of probable cause. See Commonwealth v. Clagon, 465 Mass. 1004, 1004, 987 N.E.2d 554 (2013).

To determine whether a search warrant establishes probable cause, "[t]he basic question ... is whether there is a substantial basis...