Commonwealth v. Raspberry

Decision Date27 July 2018
Docket NumberNo. 16-P-1636,16-P-1636
Citation107 N.E.3d 1195,93 Mass.App.Ct. 633
CourtAppeals Court of Massachusetts

Timothy St. Lawrence for the defendant.

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

Present: Rubin, Sacks, & Singh, JJ.


Before us is the defendant's interlocutory appeal1 from the denial of her motions to suppress evidence obtained by police through (1) warrantless real-time tracking of the defendant's whereabouts using cell site location information (CSLI) and (2) a warrantless search of her motor vehicle, leading to the discovery of a loaded firearm and a stun gun.2 We affirm.

Background. We recite the relevant facts as found by the motion judge, supplemented where necessary by uncontroverted police testimony, which the judge expressly credited in full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). None of the judge's subsidiary findings is challenged on appeal.

In April, 2015, as part of a joint investigation with Federal authorities, the Boston police were conducting a wiretap of the telephone line of one Mike Coke pursuant to a Federal court order.3 At approximately 4:30 P.M. on April 14, 2015, an officer in the "wire room" was monitoring a call from Coke to an unidentified woman, and he heard her say: "I'm about to go shoot up this nigga right now, I'm going to get the fucking gun, I'm sick of this bitch ass nigga yo. He fucking took my fucking money and don't want to give it the fuck back. I'm going to his, I'm going right there, right now. Right fucking now, by my fucking self ...." The judge, who listened to a recording of the call, found that she sounded "angry, upset, and emotional." The wire room officer found the call "alarming" in that the woman on the call "intended to use a firearm to shoot someone." He checked her telephone number in various databases and identified her as the defendant.

The police then knew that the defendant was referring to Alvin Dorsey, with whom she had been in "some type of romantic relationship." The judge found that "the police were reasonable in having grave concerns about the defendant imminently causing serious bodily harm."

Within fifteen minutes of hearing the defendant's threat, the officer called AT & T to initiate an "exigent request." He stated that the Boston police had reliable information that a person using an AT & T cellular telephone (cell phone) might have a gun and might be about to harm another person. He provided the defendant's cell phone number and asked AT & T to perform "emergency pings" and give the police real-time CSLI about the approximate location of the defendant's cell phone.4 AT & T agreed to assist, and it began sending the results of the pings to a designated Boston police electronic mail (e-mail) address at approximately fifteen-minute intervals. The officer mapped the location of each ping result as it was received and shared this information with officers in the field attempting to find the defendant.

The first result, received at 5:06 P.M. , showed the cell phone within a 1,880 meter radius of a cell site in Braintree. Subsequent results showed the cell phone to be moving toward Boston, leading police to believe that the defendant was on her way to locate Dorsey. Specifically, a 5:37 P.M. result showed the cell phone somewhere in the Dorchester section of Boston, and a 5:53 P.M. result showed the cell phone in the Roxbury section of Boston, within a 652-meter radius of a cell site atop a food market. In the meantime, police had learned that Dorsey "may have been" with a girl friend who lived at a particular address in a housing project near that market. Results received at 6:25 P.M. and 6:41 P.M. showed the cell phone in an area with a 487-meter radius that included that housing project.

At 6:46 P.M. , the officer in the wire room, still monitoring Coke's phone calls, listened to a second conversation between Coke and the defendant. In this call, the defendant said, "I'm sitting right in front of her house," which the police knew referred to the house of Dorsey's girl friend. The defendant further stated that she was going to "shoot him and his bitch in the face"; that she knew Dorsey was in the apartment because he had been texting her; that she was waiting for him; that if he did not come out, she would be back at 7:00 A.M. in a motor vehicle that he would not recognize; and that she would jump out and "pistol whip" him. She added that if Dorsey sent anyone to attack her, it would be a "firefight," which the detective understood to mean a "shootout."

At this time, a Boston police sergeant, who had been kept informed of the defendant's threats and suspected location, was in a motor vehicle near the market and the housing project. At approximately 6:50 P.M. , the sergeant turned onto the street where Dorsey's girl friend lived and observed a woman sitting in a motor vehicle parked about 100 yards away from, and with a clear line of sight to, the girl friend's residence. The woman was talking on a cell phone. The sergeant knew that the defendant was on the phone with Coke at the time.

The sergeant called in the motor vehicle's license plate number and learned that the vehicle was registered to the defendant. The sergeant then contacted a Boston police detective who, along with two other officers, was patrolling the area in an unmarked cruiser. The sergeant described the defendant, her vehicle, and its plate number and location; warned the detective that the defendant likely had a firearm and was threatening to shoot someone; and asked the detective to stop the defendant's vehicle.

The three officers stopped and approached the defendant's motor vehicle on foot. The detective then asked her for her license and registration. When she said she did not have a license, she was ordered out of the vehicle and arrested for operating without a license. One officer led her to the rear of the vehicle, while the others searched the vehicle. They found a stun gun in the defendant's purse in the passenger compartment and a loaded gun in the trunk.

The defendant filed separate motions to suppress the fruits of (1) the warrantless CSLI search of her location and (2) the warrantless search of her motor vehicle. The judge ruled that the CSLI search was justified under the emergency aid exception to the warrant requirement, because the police had a "good faith, reasonable belief that there was a serious and imminent threat to human life." The judge further ruled that the search of the vehicle was justified under the automobile exception, where the police had probable cause to believe that the vehicle contained a loaded firearm that the defendant intended to use.

Discussion. In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137, 371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978), and make an "independent determination on the correctness of the judge's ‘application of constitutional principles to the facts as found.’ " Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), quoting from Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

1. CSLI search. The parties and the judge proceeded on the assumption that the police use of the CSLI voluntarily provided by AT & T, in order to track the defendant's location in real time for two hours, was a search, subject to the warrant requirement of art. 14 of the Massachusetts Declaration of Rights.5 Compare Commonwealth v. Augustine, 467 Mass. 230, 255, 4 N.E.3d 846 (2014), S.C., 472 Mass. 448, 35 N.E.3d 688 (2015) ("[T]he government-compelled production of the defendant's [historical] CSLI records [covering two weeks] by Sprint constituted a search in the constitutional sense to which the warrant requirement of art. 14 applied"); Commonwealth v. Fredericq, 93 Mass. App. Ct. 19, 27-28, 97 N.E.3d 367 (2018) (government-compelled creation and production of real-time CSLI for more than six days was subject to art. 14 warrant requirement). Without deciding the question, we proceed on the same assumption.6 And, as neither the Supreme Judicial Court nor this court has previously determined whether an emergency might justify a warrantless CSLI search, we begin by reviewing emergency search cases from other contexts.

a. The emergency aid exception. In the context of a search of a home, where constitutional protection against unreasonable searches is at its zenith,7 the courts have recognized an "emergency aid" exception to the warrant and probable cause requirements of the Federal and State constitutions.8 See Commonwealth v. Snell, 428 Mass. 766, 774-775, 776 n.7, 705 N.E.2d 236, cert. denied, 527 U.S. 1010, 119 S.Ct. 2351, 144 L.Ed.2d 247 (1999) ; Commonwealth v. Duncan, 467 Mass. 746, 749-750, 7 N.E.3d 469, cert. denied, ––– U.S. ––––, 135 S.Ct. 224, 190 L.Ed.2d 170 (2014) ; Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 165, 982 N.E.2d 52 (2013). "This exception ‘permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.’ " Duncan, 467 Mass. at 749-750, 7 N.E.3d 469, quoting from Commonwealth v. Peters, 453 Mass. 818, 819, 905 N.E.2d 1111 (2009). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency."9 Snell, 428 Mass. at 774, 705 N.E.2d 236, quoting from Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219, 548 N.E.2d 889 (1990). See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). "The reason is plain: People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial...

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2 cases
  • Commonwealth v. Lugo
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 24 Abril 2019
    ...cell phone would be futile because the search was justified by the emergency aid exception. See Commonwealth v. Raspberry, 93 Mass. App. Ct. 633, 640-641, 107 N.E.3d 1195 (2018) (emergency exception applied where police had objectively reasonable grounds to believe that emergency aid might ......
  • Commonwealth v. Land
    • United States
    • Appeals Court of Massachusetts
    • 25 Octubre 2019
    ...must be immediate and serious, and the mere existence of a potentially harmful circumstance is not sufficient." Commonwealth v. Raspberry, 93 Mass. App. Ct. 633, 638-639 (2018), quoting Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 841-842 (2006).The Commonwealth suggests that the warra......

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