Commonwealth v. Arrington

226 N.E.3d 851

COMMONWEALTH

v.Victor ARRINGTON.

SJC-13499

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 6, 2023.

Decided February 20, 2024.

Cellular Telephone. Practice, Criminal, Motion in limine, Interlocutory appeal, Appeal by Commonwealth, Presumptions and burden of proof. Evidence, Expert opinion, Scientific test, Presumptions and burden of proof. Witness, Expert. Rules of Criminal Procedure.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 13, 2023.

Ian MacLean, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, also present) for the Commonwealth.

Michelle Menken (E. Peter Parker also present) for the respondent.

The following submitted briefs for amici curiae:

Jessica Hyde & Eoghan Casey, pro se.

Patrick Levin, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Dan Loper, Karl Epps, & Steven Verronneau, pro se.

Jennifer Stisa Granick & Andrew Crocker, of California, Michael W. Price & Hannah Zhao, of New York, Jessica J. Lewis, Jessie J. Rossman, Daniel K. Gelb, Nathan Freed Wessler, & Chauncey B. Wood for American Civil Liberties Union & others.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.¹

The case was reported by Kafker, J.

The Commonwealth alleges that in March of 2015, the defendant, Victor Arrington, and two others broke into a home, killed one resident, grievously wounded another, and attempted to set fire to the home.² Prosecuting the defendant for murder in the first degree and other crimes related to the home invasion,³ the Commonwealth moved in limine to permit the introduction at trial of frequent location history (FLH) data retrieved from the de- fendant’s cell phone, an Apple iPhone 6.⁴ The Commonwealth contends that expert testimony regarding the FLH data would establish that the defendant’s cell phone was in the immediate vicinity of the crime scene at the time the crime was committed. Because FLH data has never been admitted as evidence in any court in the Commonwealth, or apparently in any other jurisdiction in the country, the trial judge held a three-day evidentiary hearing to determine whether the Commonwealth’s proffered expert testimony on FLH data would be permitted. The trial judge denied the Commonwealth’s motion, and the Commonwealth sought appellate review.

As a preliminary issue, the parties disagree as to whether the Commonwealth may appeal from the denial of its motion to admit expert testimony under Mass. R. Crim. P. 15 (a) (2), as appearing in 474 Mass. 1501 (2016) (rule 15 [a] [2]), or whether its sole avenue for interlocutory review is a petition under G. L. c. 211, § 3. On the merits, the Commonwealth contends that the trial judge abused his discretion in denying its motion on Daubert-Lanigan grounds. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 585-595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 25-26, 641 N.E.2d 1342 (1994). Both issues were presented to a single justice of this court, who reserved and reported the case to the full court.

[1] As to the procedural question, rule 15 (a) (2) does not give the Commonwealth the ability to apply for leave to appeal from the denial of a motion in limine where, as here, the ruling, if allowed to stand, does not, "as a practical matter, … terminate the prosecution." Commonwealth v. Anderson, 401 Mass. 133, 135, 514 N.E.2d 1094 (1987). Instead, in such situations, the appropriate avenue for the Commonwealth to seek interlocutory review of a ruling on a motion in limine is through a petition under G. L. c. 211, § 3. Turning to the merits of the Commonwealth’s petition here, we discern no abuse of discretion by the trial judge in denying the Commonwealth’s motion to admit the proffered expert testimony on FLH data. Accordingly, we affirm.⁵

1. Background. a. Facts. As trial has yet to begin, we summarize the evidence the Commonwealth has stated it expects to introduce at trial. See Commonwealth v. Spencer, 465 Mass. 32, 33, 987 N.E.2d 205 (2013). We reserve certain facts for our discussion of the merits of the Commonwealth’s motion to admit FLH evidence.

The Commonwealth alleges that at around 10:51 a.m. on March 31, 2015, the defendant, a cooperating witness, and Jeromie Johnson⁶ participated in a home invasion on Harvard Street in the Dorchester section of Boston. Richard Long, Yvette O’Brien, and O’Brien’s newborn son were at home at the time of the attack. Johnson and the defendant bound Long and O’Brien with electrical cords, cut Long with a knife, and shot both Long and O’Brien in the head. They then set fire to the house. Long died from his wounds. O’Brien survived the gunshot wound and can describe the events that occurred in the apartment until she was shot in the head, but she is unable to identify the perpetrators. The cooperating witness agreed to testify against the defendant in exchange for facing reduced charges. The Commonwealth asserts that the cooperating witness will identify the perpetrators and their roles in the home invasion and associated crimes.

The defendant allegedly drove to the crime scene in a white sedan rented by his girlfriend for his use. The defendant’s car was captured on video being driven down Blue Hill Avenue in Dorchester, with another car carrying Johnson and the cooperating witness following behind. The defendant’s car was next seen parked on Paxton Street near the scene of the crime. At 10:44 a.m., the defendant received a call from Johnson lasting over three minutes, and the defendant called Johnson several times over the next few minutes with no answer. The defendant’s telephone utilized a cell tower the coverage area of which included the crime scene for these calls.⁷ A video camera at a Department of Youth Services facility located across the street from the crime scene captured grainy video footage of two people approaching the victims’ home at 10:51 a.m., and the same video camera captured footage of three people leaving at 11:20 a.m. The defendant’s car was captured on video at 11:22 a.m. being driven down Blue Hill Avenue.

b. Frequent location history data. When turned on, an iPhone generates location data points from sources such as global positioning system (GPS) data, nearby wireless computer network (Wi-Fi) access points, short-range wireless Bluetooth connections, and cell site location information (CSLI). These location data points are stored on the iPhone’s "Encrypted B" cache⁸ for between twenty-four and forty-eight hours. In 2015, an algorithm on the iPhone would use these data points to create FLH data.⁹ The FLH data created by the algorithm consist of a longitude and latitude coordinate point and a circle around it, representing an amalgamation of the location data points. The radius of the circle, labeled the "uncertainty" in the FLH data, represents the approximate area in which the cell phone was located. The uncertainty radius can change from visit to visit to a frequent location, as can the coordinate point representing the center of the frequent location. FLH data also provides an estimated time that the iPhone entered the location, and an estimated time the iPhone left the location. The algorithm used to convert location data points into FLH data is proprietary, and thus the Commonwealth’s expert did not have access to the algorithm itself during his testing of FLH data reliability. Moreover, it is unclear how the algorithm processes, or weighs, the different location data points generated by the iPhone.

In 2022, a full-file system extraction was performed on the defendant’s cell phone. This extraction allowed the Commonwealth to access encrypted files on the cell phone, including its FLH data.¹⁰ The FLH data on the cell phone listed 345 frequent location visits. Of particular interest to the Commonwealth is frequent location no. 58. Frequent location no. 58 is centered on coordinates corresponding to a Harvard Street address near the victims’ home. The uncertainty radius of frequent location no. 58 is forty-three meters, or 143 feet, which encompasses the crime scene. The Commonwealth’s proffered expert on FLH data, a senior crime analyst in the office of the district attorney for the Suffolk district (analyst), testified that he interpreted the FLH data retrieved from the defendant’s cell phone to show that the phone entered the area represented in frequent location no. 58 at 10:36 a.m. on March 31, 2015, and left the area at 11:22 a.m. that day. The Commonwealth therefore contends that the proffered expert testimony on FLH data, if admitted, would corroborate the cooperating witness’s testimony placing the defendant at the scene of the home invasion.

c. Procedural background. In April 2023, the Commonwealth informed the judge that a Daubert-Lanigan hearing would be needed to determine the admissibility of FLH data evidence gathered from the defendant’s cell phone. In May, a Daubert-Lanigan hearing was scheduled for July 27. On July 26, the Commonwealth requested a continuance, and the hearing was continued to August 29. Between June 16 and August 24, the analyst performed experiments on a test iPhone to determine the reliability of FLH data, with the majority of his experiments performed between August 14 and 24. The Daubert-Lanigan hearing on the admissibility of FLH evidence was held on August 29, September 7, and September 8, ending four days before the defendant’s trial was scheduled to start on September 12. The analyst was the only witness who testified at the hearing.

At the evidentiary hearing, the analyst testified regarding his understanding of how FLH data are created. Although the analyst did not have access to the algorithm that generates FLH data and could not testify as to how the algorithm converted location data inputs into FLH data, he explained the tests he had done to ascertain the reliability of FLH data in identifying where a cell phone is located...