Commonwealth v. Rousseau

• Citation: 465 Mass. 372,990 N.E.2d 543
• Decision Date: 05 June 2013
• Docket Number: SJC–11228.,SJC–11227
• Parties: COMMONWEALTH v. John ROUSSEAU. Commonwealth v. Michael Dreslinski.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 372

990 N.E.2d 543

COMMONWEALTH

v.John ROUSSEAU.

Commonwealth

v.Michael Dreslinski.

SJC–11227, SJC–11228.

Supreme Judicial Court of Massachusetts, Worcester.

Submitted Feb. 7, 2013.

Decided June 5, 2013.

Brandon L. Campbell for John Rousseau. Andrew S. Crouch for Michael Dreslinski.

Eileen M. O'Brien & Jennifer L. Sullivan, Assistant Attorneys General, for the Commonwealth.

Beth L. Eisenberg, Committee for Public Counsel Services, & Matthew R. Segal & John Reinstein, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Kit Walsh, for Electronic Frontier Foundation, amicus curiae, submitted a brief.

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

CORDY, J.

In separate trials, John Rousseau and Michael Dreslinski were each convicted of four indictments charging arson, G.L. c. 266, § 2; one indictment charging breaking and entering in the nighttime with intent to commit a felony, G.L. c. 266, § 16; one indictment charging malicious destruction of property over $250, G.L. c. 266, § 127; and one indictment charging malicious injury to a railroad, G.L. c. 160, § 225. The convictions arose out of their participation in a series of criminal acts involving the burning and vandalizing of four different properties during the summer of 2007. The defendants appealed, and we transferred the cases to this court on our own motion.

On appeal, both defendants argue that a warrant secured by the State police for the purpose of attaching a global positioning system (GPS) device to Dreslinski's vehicle, and then tracking its location over a thirty-one-day period, was not supported by probable cause and was overly broad, and therefore violated the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Although the Commonwealth contended below that neither defendant has standing to challenge the sufficiency of the warrant because they did not enjoy a reasonable expectation of privacy in the vehicle or its location, on appeal it essentially concedes that Dreslinski has standing, but contends that Rousseau, a “mere passenger” in the vehicle, does not.

Rousseau separately asserts that the evidence at his trial was insufficient to prove beyond a reasonable doubt that he participated in the charged offenses, and that the trial judge abused his discretion by admitting prejudicial character evidence. He also contends that the conditions of probation imposed at sentencing, which prevent him from using any computer while in prison, violate his constitutional right of access to the courts under the First, Sixth, and Fourteenth Amendments to the United States Constitution and arts. 12 and 16 of the Massachusetts Declaration of Rights.

Dreslinski does not challenge the sufficiency of the evidence at his trial, but claims that the judge erred by admitting out-of-court statements made by Rousseau to a third party, a news photographer, under the joint venturer exception to the hearsay rule. Dreslinski also argues that the judge erred in modifying the cautionary instruction set forth in Commonwealth v. DiGiambattista, 442 Mass. 423, 447–449, 813 N.E.2d 516 (2004)( DiGiambattista ), by informing the jury that they could consider evidence that Dreslinski “waived” his right to have his police interrogation recorded, in assessing the significance of the lack of a recording.

With respect to the defendants' challenge to the GPS warrant, we conclude that Dreslinski has standing as the owner and operator of the vehicle and that Rousseau, as a passenger in the vehicle, also has standing because he had a reasonable expectation that his movements would not be subjected to extended electronic surveillance by the government through use of GPS monitoring. We also conclude that the affidavit submitted in support of the warrant application contained sufficient information on which a finding of probable cause could be made. We reject Rousseau's arguments concerning the sufficiency of the evidence and the judge's admission of allegedly prejudicial evidence. We conclude, however, that the conditions of Rousseau's probation violate his constitutional right of access to the courts by effectively denying him access to research and legal materials otherwise available to prison inmates and that he is entitled to a modification of the condition.

Regarding Dreslinski's separate claims, we affirm the trial judge's admission in evidence of Rousseau's out-of-court statements given that they were made during the course of an ongoing criminal enterprise. And, although we have reservations about the judge's use of the word “waiver” in his modified DiGiambattista instruction, we do not conclude that its use in the circumstances presented here was error requiring a new trial. Accordingly, we affirm the defendants' convictions.¹

Background. In early 2007, State police commenced an investigation into the activities of Rousseau and Dreslinski, close friends living in Clinton. On July 19, 2007, the State police applied for a warrant to place a GPS device on Dreslinski's pickup truck. The warrant application was supported by an affidavit sworn by Trooper Carla B. Pivero, based on her “direct investigation and information [she] received from fellow officers,” as well as information provided by a “cooperating witness.” The affidavit alleged that “the crimes [of] arson, larceny, breaking and entering, and impersonating a police officer have been, are being, and/or are about to be committed” by Rousseau and Dreslinski, and that the pickup truck was an instrument of that criminality.

Based on the information provided in the affidavit, a Superior Court judge issued a warrant authorizing the State police to “install, test, maintain and remove a GPS tracking device” on Dreslinski's pickup truck at “[a]ny such location where said vehicle ... may be found ... [in] Massachusetts” and to monitor the tracking information for a period of fifteen days. State police successfully installed the GPS on July 20, 2007, and collected tracking information until August 19, 2007.² During this period, information obtained from the GPS device showed that Dreslinski's truck was at or near the scene of fires set in four separate locations around the time they were set, on July 29 and 30, and August 12 and 13.³

The defendants were arrested on August 19, 2007. A search warrant executed at Dreslinski's residence revealed fire call boxes, light bars, tools, police radios, and a list of frequencies. Also seized were items of clothing including black battle dress uniforms (BDUs) (which tested positive for the presence of gasoline), a police “duty belt,” T-shirts, and gloves, which were consistent with clothing worn by the defendants in surveillance footage on the evenings of the fires. An examination of Dreslinski's computer revealed directions to and photographs of one of the locations, and also revealed that Dreslinski had initiated Internet searches relating to the fires. A search of Dreslinski's truck uncovered newspaper articles about the fires, a “coalminer's [head]lamp,” a radio scanner and a list of radio scanner frequencies, bolt cutters,⁴ a pry bar,⁵ leather gloves, and a video camera labeled with the name “Rousseau.”

A search warrant executed at Rousseau's house revealed similar BDU-style pants, a reflective raincoat, a hat and gloves, radios, a police duty belt, a security badge, electrical meters, radio frequencies, postings of local police call signs and radio frequencies, and an industrial railroad lock. During the search of the backyard, police also discovered a “fire pit” with a can of flammable liquid nearby, a simulated electrical transformer, and fire call boxes. A search of Rousseau's computer revealed Internet searches of the fire locations.

On December 21, 2007, the defendants were indicted by a Worcester County grand jury for their involvement in fires set in Sterling and Holden, and on September 2, 2009, the defendants were indicted by a Franklin County grand jury in connection with fires set in the towns of Florida and Erving. See note 3, supra. The indictments were consolidated for trial in the Worcester Superior Court, where the defendants were tried and convicted by separate juries.

Discussion. 1. Validity of GPS warrant. a. Motion to suppress. In July, 2008, an evidentiary hearing was held on the defendants' motions to suppress all evidence flowing from the issuance of the GPS warrant. The defendants argued that Trooper Pivero's affidavit, which included a summary of an incriminating recorded conversation that took place on July 9, 2007, between a cooperating witness and the defendants,⁶ overstated Rousseau's participation in the conversation and amounted to a deliberate falsehood or showed deliberate disregard for the truth. See Commonwealth v. Long, 454 Mass. 542, 552–553, 911 N.E.2d 174 (2009). They argued that once the summary of that conversation was excised from the affidavit it would contain insufficient information on which to base a finding of probable cause.⁷ In response,the Commonwealth argued that neither Rousseau nor Dreslinski had standing to challenge the constitutional validity of the GPS warrant.

The motion judge concluded that “Rousseau had no reasonable expectation of privacy in either Dreslinski's driveway or his unattended truck” and that he could not “vicariously assert any rights that Dreslinski might enjoy.” The judge further concluded that neither “attaching the GPS device ... [nor] monitoring the GPS device's signals” infringed on Dreslinski's reasonable expectation of privacy because the former was minimally invasive, and the latter was even less intrusive than traditional police surveillance on a public way.⁸ Consequently, neither defendant had standing to challenge the validity of the GPS warrant. Finally, the judge reasoned that even assuming the defendants had standing, the affidavit, properly excised, still alleged facts...