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Massachusetts Supreme Judicial Court: Consent to Search Does Not Attenuate Seized Evidence From Taint of Illegal Search of CSLI

by Douglas Ankney

The Supreme Judicial Court of Massachusetts suppressed illegally obtained CSLI, ruling that the Commonwealth failed to meet its burden under the Fourth Amendment of proving police did not exploit the illegally obtained evidence to obtain the defendant’s consent to search. 

After Josener Dorisca was indicted for murder, Detective Kenneth Williams attempted to locate him via his best friend, Cassio Vertil. On July 2, 2008, Kennel Vertil (Cassio’s brother) gave Cassio’s cellphone number to Williams and told Williams that Cassio was traveling to New York in a brown Toyota with two men named Stephen Allonce and Stanley Fredericq. Williams also learned from a confidential informant that Cassio was going to Florida in a brown Toyota to purchase narcotics.

The Commonwealth obtained a court order pursuant to 18 U.S.C. § 2703(d) to require the cellular service provider (“CSP”) to produce records for the period of July 1 through July 8 that included, among other things, “updates on the phone’s location every fifteen ... minutes.”

The CSP used “ping” technology to send radio signals to the cellphone and record the location of the cell sites (towers) with which the phone had communicated. These records (known as Cell Site Locator Information or “CSLI”) were sent by email to Williams every 15 minutes. The records tracked the phone as it traveled to Sunrise, Florida. Local police observed Cassio, Allonce, and Fredericq staying at a motel, but Dorisca was not with them.

Then, on July 7, 2008, the CSLI records tracked the phone as it made its way back to Massachusetts, arriving at Fredericq’s apartment building the next day. Police observed Cassio outside the apartment speaking with a man who matched the description of Dorisca. After Cassio and Allonce left the apartment building in the brown Toyota, State Police entered the building to search for Dorisca and the narcotics. On the third floor, Trooper Eric Telford told Fredericq they had information that Fredericq “had just gone down to Florida and purchased a large amount of narcotics and ... [was] probably storing it there.” Frederica denied possessing narcotics and signed a “consent-to-search” form. In an attic crawl space across from Fredericq’s apartment, police recovered two “bricks” of cocaine. After Fredericq was indicted, he moved to suppress the fruits of the search. The case went from the superior court to the county court twice, where it was remanded each time to a different judge in the superior court. Finally, the third judge granted the suppression motion. The Commonwealth appealed, and the Appeals Court reversed. The Supreme Court granted Fredericq’s motion for further review.

The Court observed that Article 14 of the Massachusetts Declaration of Rights allows police to use CSLI for no more than six hours to track a cellphone unless authorized by a search warrant based on probable cause. Commonwealth v. Estabrook, 38 N.E.3d 231 (Mass. 2015). Also, government acquisition of CSLI records is “a search within the meaning of the Fourth Amendment.” Carpenter v. United States, 138 S. Ct. 2206 (2018). The Commonwealth conceded that the CSLI tracking of the cellphone was illegal because no warrant was obtained. But the Commonwealth argued, inter alia, that evidence obtained during the search was sufficiently attenuated from the illegal tracking by Fredericq’s consent.

The Court agreed that in certain circumstances a defendant’s consent to search may be an intervening event that constitutes adequate attenuation, thus allowing illegally seized evidence to be admitted. Commonwealth v. Damiano, 828 N.E.2d 510 (Mass. 2005). But if the consent itself is tainted by the illegal search, it is not adequate attenuation because the consent was obtained through exploitation of the fruits of the illegal search. Commonwealth v. Midi, 708 N.E. 2d 124 (Mass. App. Ct. 1999). 

To determine if the Commonwealth has met its burden of proving Fredericq’s consent was not tainted by evidence from the illegal CSLI search, the Court examines the consent in light of: (1) the time that elapsed between the defendant being confronted with the illegally obtained CSLI evidence and his grant of consent; (2) the presence of any intervening circumstances during that time; and (3) purpose and flagrancy of the official misconduct. Damiano, citing Kaupp v. Texas, 538 U.S. 626 (2003). As to factors (1) and (2), the Court observed that the consent was obtained immediately after Telford’s statement that police had information that Fredericq had returned from Florida with narcotics and was storing them. The Court determined the close proximity between Telford’s statement (which was information gained from the illegal CSLI search) and Fredericq’s consent – along with the absence of any intervening event – weighed heavily against the Commonwealth’s attenuation argument. Estabrook. As for the third factor, the Court recognized the police misconduct was neither purposeful nor flagrant. The police obtained a court order pursuant to 18 U.S.C. § 2703(d) back in 2008 to obtain the CSLI records, which was several years before the Court announced a “new rule” requiring a search warrant based on probable cause to obtain the records. Commonwealth v. Augustine, 4 N.E.3d 846 (Mass. 2014). But even though the police acted in good faith based on the court order, Massachusetts doesn’t recognize a good-faith exception to the exclusionary rule or the attenuation doctrine. Commonwealth v. Hernandez, 924 N.E.2d 709 (Mass. 2010). Thus, the Court agreed with the superior court that the Commonwealth failed to prove the seized evidence was sufficiently attenuated from the illegal search of the CSLI records. 

Accordingly, the Court affirmed the judgment of the superior court granting the motion to suppress. See: Commonwealth v. Fredericq, 121 N.E.3d 166 (Mass. 2019).

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Writer’s note: The Court also provides citations to several cases from other jurisdictions ruling that evidence seized from an illegal search is still inadmissible even if the defendant did not have a reasonable expectation of privacy in the area illegally searched. 

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