Commonwealth v. Polanco

COMMONWEALTH v. JOSE POLANCO and CRAIG FLEETWOOD

Docket: BRCR2010-01465

Docket: BRCR2010-01466

Commonwealth of Massachusetts Superior Court

January 23, 2015

Dates: May 1, 2014

Present:

County: Bristol

Keywords: MEMORANDUM AND ORDER ON THE DEFENDANTS’ MOTION TO SUPPRESS CELL SITE LOCATION INFORMATION

Before the Court is the defendants’ joint motion to suppress cell site location information (CSLI) obtained by the Commonwealth pursuant to an order issued by a judge of this Court pursuant to the federal Stored Communications Act, 18 U.S.C. § 2703(d) (the “SCA”). The defendants submit that Commonwealth v. Augustine, 467 Mass. 230 (2014) requires that any such information be obtained via a warrant on a finding of probable cause. The defendants further move that the Court suppress all subsequently issued Blood and conventional search warrants because they were fruits of the poisonous tree. The latter warrants include search warrants issued post-Augustine to AT&T and T-Mobile which secured another copy of the CSLI originally obtained through the SCA order.

The Court DENIES the motion on various alternative grounds. First, the SCA order did not violate the defendants’ Article 14 reasonable expectation of privacy because it covered a less than a four day period, narrowly circumscribed around the commission of the crime and the period immediately before it. Further, the seizure was reasonable when considered in light of the totality of the circumstances.

Even if the original seizure of records did not meet current Article 14 standards required by Augustine, the subsequent warrants were based on evidence independent of the information obtained pursuant to the SCA order. Thus, any illegality was immaterial to the subsequent warrants.

Finally, the exclusionary rule is inappropriate to apply here, in any event, because the prosecutor and the State Trooper who obtained the SCA order did so in reasonable reliance on established federal and state precedent and because there would be no deterrent purpose served by excluding the evidence. Deterrence of law enforcement misconduct and protection of the integrity of the judicial process are the core reasons underlying the exclusionary rule.

Setting

The case arises from a homicide that occurred in the early morning of June 23, 2010 in Attleboro. Just after 5 a.m. the victim, Dylan Adams (“Adams”) and his girlfriend, Crystal Salmons (“Salmons”), were resting in their apartment when there was a sudden loss of power. When Salmons went downstairs to investigate, three masked men, one armed with a crowbar, burst through the door. In short order, Salmons was beaten with the crow bar, handcuffed, bound to a chair and bitten by one of the assailants. Adams was more severely beaten, then shot from above through the shoulder, lungs and diaphragm. When the police arrived after Salmons was able to make a 911 call, Adams was found dead in the bathroom. Following the beatings and the shooting, the assailants ransacked the house, stealing money and marijuana and threatened to shoot Salmons if she moved.

Because of the masks, Salmons was unable to identify any of the assailants other than to observe that two were black and one was white. She also noticed certain generic clothing, including blue jeans and black Nike sneakers worn by certain of the assailants.

Investigation Preceding the SCA Order

Adams was known to the police as a major marijuana distributor in the Attleboro area. In short order, the police theorized that the home invasion had been a rip-off orchestrated by competitor drug dealers. In the weeks after the homicide, the police developed information from several cooperating witnesses that confirmed their suspicions.

As recounted in the affidavits filed in support of the application for the SCA order, one such witness (later identified as Ryan Ilkowitz (“Ilkowitz”)) was in a car in Attleboro with a certain Hans Johnson (“Johnson”) on either June 20th or 21st, i.e., one or two days prior to the homicide. The police knew Johnson to be another significant marijuana dealer in the area. Ilkowitz described that while driving with Johnson in near proximity of the victim, Adams’, home, Johnson related to him that he saw Adams in a car traveling behind them. In Ilkowitz’s presence, Johnson then made a cell phone call to a person Johnson identified as “Jose”. During the phone call, Johnson talked about a plan to rob Adams. Through other sources, the police identified “Jose” as the defendant Jose Polanco (“Polanco”).

In following up with various cell phone companies on telephone numbers associated with Adams, Johnson and Polanco, the investigators determined from conventional telephone billing records that in the period between June 20, 2010 through the time of the homicide on the morning of June 23rd there had been numerous calls between Johnson’s cellphone and a cell phone registered to an Ebonie Johnson, who also used the last name of Polanco.

It was on the basis of the above information that the police sought the SCA order to obtain the CSLI data that would confirm or contradict the cooperating witnesses’ accounts as to the location of the then-principal suspects in the homicide, Johnson and Polanco.

Discussion

Preliminarily, the Court finds that the defendants have standing to bring the subject motion. While Ebonie Johnson was the owner of record of the phone most at issue, the evidence is that both defendants had access to and allegedly used the phone, with her permission, as if it were their own. Commonwealth v. Amendola, 406 Mass. 592, 597 (1990).

The defendants do not dispute that the affidavits of the Assistant District Attorney and the State Trooper submitted to the Superior Court judge in connection with the SCA order established the requisite reasonable suspicion standard of the SCA.^[1] Similarly, the Commonwealth does not take issue with the defendants’ proposition that such affidavits did not establish probable cause sufficient for the judge to have issued a search warrant. Thus, the papers were sufficient under the SCA but allegedly deficient for Article 14 purposes.^[2]

The seizure was reasonable because limited in duration

In Augustine the SJC noted that “a number of courts—including this court—have determined that it is only when such [electronic] tracking takes place over extended periods of time that the cumulative nature of the information collected implicates a privacy interest on the part of the individual who is the target of the tracking.” 467 Mass. at 253, citing, inter alia, U.S. v.Jones, 132 S.Ct 945, 955 (2012) and Commonwealth v. Rouseau, 465 Mass. 372, 382 (2013). The SJC further noted, “This rationale has been extended in the context of CSLI.” 467 Mass. at 253. And the Augustine court concluded, “[I]t is likely that the duration of the period for which historical CSLI is sought will be a relevant consideration in the reasonable expectation of privacy calculus.” Id. at 254.

Here, the duration of the CSLI period was less than four days, and the period was narrowly circumscribed to include only such days as the investigators had material information with regard to the immediate planning of the home invasion that led to the homicide, the homicide itself and its immediate aftermath. Clearly, what drove the SJC’s conclusion that the 20 day period of the Augustine order directly impacted the defendant’s privacy was the magnitude of the unfocused intrusion of such monitoring so as to be able to reconstruct substantially the most private aspects of the defendant’s life. 467 Mass. at 247-249.

That is not the situation in this case. The period for which CSLI was obtained arose directly from credible and highly material information in the hands of the investigators that related to the planning and execution of the home invasion and the assailants’ flight from the scene.

“Reasonableness [is] the ‘touchstone’” of Article 14 and the Fourth Amendment. Commonwealth v. Roland R., 448 Mass. 278, 281 (2007) quoting Commonwealth v.Gaynor, 443 Mass. 245, 256 (2005). The contours of reasonableness are drawn by a consideration of the nature of the intrusion into the privacy interest at play, Commonwealth v. Feyenord, 445 Mass. 72, 86 (2005) and the nature off the law enforcement interest at stake.

The relationship between the time-limited intrusion into the defendants’ privacy and the strength of the evidence as to the offense under investigation were proportional and, thus, reasonable under Article 14. See Commonwealth v. Willis, 415 Mass. 814, 819-820 (1993) and Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 216 (2013).

The exclusionary rule does not apply in these circumstances

Even if the seizure of the CSLI at issue were to be determined to have been unlawful because not conducted pursuant to a warrant, the evidence should not be suppressed because none of the reasons underlying the rationale of the exclusionary rule are present.

The Augustine court acknowledged that “neither the statute, 18 U.S.C. § 2703(d), nor our cases, have previously suggested that police must obtain a search warrant in addition to a § 2703(d) order before obtaining an individual's CSLI from his or her cellular service provider.” 467 Mass. at 257. There is no credible dispute that the prosecutor and trooper who sought (and the judge who issued) the SCA order were all proceeding upon a firmly-grounded understanding of the controlling legal standards when the SCA order was obtained in 2010.

“[A]s a general rule, the mere fact that an unlawful search and seizure has occurred should not automatically result in the exclusion of any illegally seized evidence.” Commonwealth v. Gomes, 408 Mass. 43, 46 (1990) (Greaney, J.). “[T]he foundation of the exclusionary rule [is the] interest in deterring unlawful police conduct.” Commonwealth v. Wilkerson, 436 Mass 137, 142 (2002). “[W]here ‘the exclusionary rule does not result in appreciable deterrence, then clearly, its use...is unwarranted’”, id., quoting U.S. v....