Commonwealth v. Snow

• Decision Date: 10 December 2019
• Docket Number: No. 18-P-1021.,18-P-1021.
• Parties: COMMONWEALTH v. Dondre SNOW.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 672

138 N.E.3d 418

COMMONWEALTH

v.Dondre SNOW.

No. 18-P-1021.

Appeals Court of Massachusetts, Suffolk..

Argued February 6, 2019

Decided December 10, 2019

Cailin M. Campbell, Assistant District Attorney (David D. McGowan, Assistant District Attorney, also present) for the Commonwealth.

David A.F. Lewis, Woburn, for the defendant.

Present: Henry, Lemire, & Ditkoff, JJ.

LEMIRE, J.

The Commonwealth appeals from an order that allowed the defendant's motion to suppress the results of a search of his cell phone. We reverse.

1. Background. a. Alleged crime. The following facts are taken from the affidavit accompanying the search warrant. On December 5, 2015, at approximately 8:30 P.M. , Boston police officers and State police troopers responded to a report that a person had been shot. They went to the area of 425 Old Colony Avenue in the South Boston section of Boston where they found Maurice Scott with multiple gunshot wounds

. He was transported to the Boston Medical Center, where he was pronounced dead a few hours later at 12:20 A.M. on December 6, 2015. Later on December 6, 2015, an autopsy determined that Scott died from multiple gunshot wounds in his torso and that his death was a homicide.

A witness saw a tall, heavy-set black male standing over Scott, who was on the ground, shoot him a number of times. Police later identified the shooter as Dwayne Diggs. The shooter got into a light-colored car with an out-of-state license plate, possibly from Rhode Island, starting with the numbers 386. Another person was driving the car. Police later identified the driver as the defendant. The car headed toward the Dorchester section of Boston. The witness immediately called 911 and reported this information to the Boston Police Department, which broadcast it to its officers.

Shortly afterward, another witness, this one in Dorchester, saw a light gray sedan speeding. It went past Elm Street, quickly braked and reversed, entered Elm Street, and parked. The location was a little more than two miles from the shooting. This second witness saw people moving around inside the car, giving him the impression that they were changing clothes. A man got out of the car's front passenger seat, appeared to pull down his sweatshirt, and got back into the car. This witness, too, called the Boston Police Department, which broadcast this information to its officers. It had been a matter of minutes since the shooting in South Boston.

Boston police officers, aware that a light-colored car with a license plate whose numbers included 386 had been involved in a shooting, responded to Elm Street in Dorchester. There, they found a parked light gray Nissan Altima with the New Hampshire license plate 386-1026.

Three men were in the car. Police officers "removed" them from the car and handcuffed them. The defendant was in the driver's seat and had the car keys in his pocket. Diggs was in the front passenger seat. A third man, Daquan Peters, was in a rear seat. Diggs was about six feet, one inch tall, and weighed about 380 pounds, matching the witness's description of the shooter. The other two men had thin builds. The defendant was talking on his cell phone as he "was removed" from the driver's seat. This cell phone is the subject of this decision.

Peters had a cell phone in his pocket. During a later search of the car, police found a third cell phone in the console between the front seats. Later still, police found a latent print on that cell phone, which was individualized to Diggs's right thumb. Thus, the police believed that Diggs owned or controlled this third cell phone.

Shortly after the shooting, the witness of the shooting in South Boston was brought by police to the corner of Elm Street to view Diggs. The witness said that he had not seen the shooter's face but that Diggs's body was definitely the same size as that of the shooter. The witness also insisted that the shooter had worn a dark top, which Diggs was not wearing at the time of the showup. During the later search of the car, police recovered a black T-shirt in size 6X and sweatshirt in size large from inside the Nissan.

On Elm Street, police officers also discovered a .40 caliber firearm on the ground, twenty-five to thirty feet from the car. The absence of debris and rust on it and its heat signature, as determined by a thermal imaging device, see Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 824, 125 N.E.3d 746 (2019), led police to believe that it had been discarded very recently. Police believed this to be the murder weapon.

The firearm, the police later determined, could hold eleven rounds, ten in the magazine and one in the chamber. Police collected nine cartridge casings at the scene of the shooting. They were consistent with having been fired by the firearm that police found on Elm Street. The firearm had two rounds in it, one in the magazine and one in the chamber. The police found a latent print on the firearm's magazine; the print was individualized to Diggs.

Police discovered that the defendant and Diggs were wearing global position system (GPS) monitoring devices on their ankles. Police checked with the probation department, and learned that the electronic monitoring (ELMO) system revealed that the two men had been on Old Colony Avenue in South Boston at the time of the shooting and then on Elm Street in Dorchester until police transported them to headquarters.

The police later determined that the defendant's girlfriend had rented the car. While the police were processing the defendant at headquarters, he asked, unsolicited, how his girlfriend could get her car back. He stated that he had borrowed the car and did not want to be stuck with the bill. He asked an officer to make sure that the police returned the car to his girlfriend after processing it.

On December 6, 2015, the day after the shooting, police interviewed the defendant's girlfriend, Lanika Clark. She said that she owned a car but had rented one to help her move to Fall River. Clark also stated that the defendant had called her on his cell phone and informed her that he was about to be arrested.

During the investigation, one witness reported that Diggs and the victim had had a dispute in the days before the shooting, much of it via social media and through text messages. She also reported that Diggs was called Butta Bear or Butta -- a name that the defendant used to refer to Diggs in police headquarters.

The police recovered the victim's cell phone from the shooting scene and learned that the victim had exchanged threatening and violent text messages with a person labeled in the phone's contacts as "Slime Buttah."

b. Search warrant and affidavit. The Boston Police Department applied for a warrant to search the defendant's cell phone. The application contended that there was probable cause to believe that the telephone "is intended for use or has been used as a means of committing a crime," "has been concealed to prevent a crime from being discovered," and "is evidence of a crime or is evidence of criminal activity."¹

The application sought the following information:

"Cellular telephone number; electronic serial number, international mobile equipment identity, mobile equipment identifier or other similar identification number; address book; contact list; personal calendar, date book entries, and to-do lists; saved, opened, unopened, draft, sent, and deleted electronic mail; incoming, outgoing, draft, and deleted text messages and video messages; history of calls sent, received, and missed; any voicemail messages, including those that are opened, unopened, saved, or deleted; any photographs or videos, including those stored, saved, or deleted; any audio or video ‘memos’ stored, saved, or deleted; GPS information; mobile instant message chat logs, data and contact information; Internet browser history; and any and all of the fruits or instrumentalities of the crime of [m]urder."

The search warrant was approved as applied for, and the defendant's cell phone was searched. c. Procedural history. The defendant was indicted for murder in the first degree; carrying a firearm without a license; possessing ammunition without a firearm identification card; and carrying a loaded firearm without a license.

On the morning of trial, the defendant moved to suppress evidence seized under the warrant to search his cell phone. The Superior Court judge conducted a nonevidentiary hearing and, after a recess, ruled from the bench and allowed the motion.

Subsequently, the Commonwealth moved to expand the hearing record to include the following evidence recovered from the search: text messages between the defendant and Diggs, Peters, a person called Sista, and a person called Staxx; call logs between the defendant and Diggs and between the defendant and Peters; and "Snapchat"² videos of the defendant.

The motion judge held a second hearing and declined to mark the text messages, call logs, and videos as exhibits. However, she did "state for the record what [evidence] was recovered from the phone" that the Commonwealth sought to introduce at trial. She listed the evidence that the Commonwealth had identified in its motion and added these following details: the text messages between the defendant and Sista referred to "Snapchatting with guns";³ the text messages between the defendant and Staxx indicated that the defendant sought to buy a firearm other than the murder weapon (according to the Commonwealth's interpretation); in two of the three Snapchat videos of the defendant, he held a firearm that resembled the murder weapon; and the third Snapchat video depicted him with two firearms, one of which resembled the murder weapon.

The Commonwealth timely filed a notice of appeal of the order allowing the motion to suppress. Later, it filed an application for interlocutory review and a request that its application be accepted as timely filed, both of which a single justice of the Supreme Judicial Court allowed.

2. Discussion. a. Nexus. We...