In
Commonwealth
v.
Augustine,
1.
Background,
a.
Procedural history.
We summarize the procedural background of this case that led to our decision in
Augustine I,
and to the present issue. On September 22, 2004, in connection with an investigation into the death of Julaine Jules, the Commonwealth filed in the Superior Court an application for an order to obtain from the defendant’s cellular service provider certain records, including CSLI, for the fourteen-day period beginning August 24, 2004, the last day that Jules was seen alive.
Augustine I,
On July 29, 2011, the defendant was indicted for Jules’s murder.
Id.
On November 15, 2012, he filed a motion to suppress evidence of his CSLI, which he argued the Commonwealth had obtained in violation of his rights under the Fourth Amendment to the United States Constitution and under art. 14.
Id.
A Superior Court judge allowed the motion, deciding in substance that, under art. 14, obtaining the defendant’s CLSI constituted a search in the constitutional sense.
Id.
In
Augustine I,
we agreed, and concluded that such a search would be permissible under art. 14 only upon a showing of probable cause.
Id.
at 231-232. We vacated the allowance of the motion to suppress and remanded the case to the Superior Court for consideration whether the affidavit that the Commonwealth had originally submitted in support of the order pursuant to 18 U.S.C. § 2703(d) (§ 2703[d] order) demonstrated probable cause.
Augustine
I,
A different Superior Court judge (motion judge) held a hearing on the issue whether the affidavit met the probable cause standard required under
Augustine I.
The motion judge ruled that the standard had not been met, and again allowed the defendant’s motion to suppress evidence of his CSLI. The Commonwealth sought interlocutory review of the order pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in
b. Facts. The sworn affidavit in support of the § 2703(d) order was submitted by State police Trooper Mary McCauley and recited the following facts. In August, 2004, Jules had two boy friends, the defendant and Marlon Barnett. Jules lived with her family in Malden; the defendant lived in the Dorchester section of Boston; and Barnett lived in Fort Lauderdale, Florida. During the weekend of August 21 and 22, Jules told the defendant that she was too busy to see him, but in fact, she spent the weekend with Barnett, who had flown to Massachusetts from Florida.3 4 The defendant did not know about Jules’s relationship with Barnett until shortly before Jules disappeared.
On August 24, 2004, Jules left Malden and went to her job at a company located on Congress Street in Boston. Her shift that *451 day was from 3 p.m. toll p.m., but she left her work station at 7:10 p.m. with only her cellular telephone and the keys to her motor vehicle, and never returned. Her wallet, driver’s license, and other personal items remained at her work station. Approximately five hours later, at 12:20 a.m. on August 25, police discovered Jules’s vehicle engulfed in flames in a parking lot near a pharmacy in Revere. A key was in the ignition, and an accelerant had been used to set the fire. Jules’s father reported her missing on August 25.
Melissa Mitchell, the defendant’s cousin, reported to police investigators that at approximately 5:15 p.m. on August 24, the defendant telephoned her and asked her to telephone Jules at work, and to say that the defendant was sick and needed Jules to come visit him at his home right away. Mitchell said she thought she was setting up a romantic evening for the defendant and Jules. The next day, Mitchell telephoned the defendant and asked him how things had gone with Jules the evening before. The defendant said that Jules had been a little upset, but that the evening went well. However, the following day, the defendant telephoned Mitchell and told her that Jules had been reported missing, and that in fact he had not seen Jules on the night of August 24. Mitchell asked the defendant over the telephone and later in person why he had said earlier that he saw Jules. The defendant said he did not know.
On August 28, the defendant admitted in an interview with police investigators to having asked Mitchell to contact Jules on August 24, but he claimed that Jules never came to his home and that he had not seen her since August 19. When asked whether he would appear on any surveillance video recorded near Jules’s work on the night that she disappeared, the defendant “became very upset and started to cry and moan.” He eventually requested a lawyer and the interview stopped.
On September 8, 2004, Mitchell played for McCauley a voice-mail message that Mitchell had received from the defendant. In the message, the defendant said, “I’m prepared to take all the consequences right now . . . nothing is really happening . . . my emotions got the better of me, I mean really, really got the better of me . . . I’m going through some stuff ... so far the coast is clear . . . I’m just waiting . . . that was just nature taking [its] course.” 5
On September 19, a body wrapped in plastic bags was discov *452 ered floating in the Charles River. The body was decomposing and appeared to have been in the water for some time, but an analysis of dental records confirmed that it was Jules. Her body was found with a chain around it that had two weights attached, and electrical cord around her ankles. The medical examiner found no apparent cause of death, although as of the date of McCauley’s affidavit (September 22, 2004), further examination and toxicology analysis remained pending.
In the course of her investigation, McCauley reviewed the records of incoming and outgoing calls for Jules’s and the defendant’s cellular telephones.* * 6 , 7 Jules’s records indicated a brief incoming call from the defendant’s home telephone on August 24, 2004, at 5:36 p.m., while Jules presumably was still at work. At 9:31 p.m., there was a call from her cellular telephone to a pharmacy in Revere, although the pharmacy was closed at that time. Then, between 11:39 p.m. on August 24 and 8:59 p.m. on August 25, there were a number of calls from Jules’s cellular telephone to her work and cellular telephone voicemail messaging systems. At 10:50 p.m. on August 25, there was a call between Jules’s cellular telephone and one of Barnett’s telephone numbers that lasted seventeen minutes. Barnett told an investigator that the only thing out of the ordinary about this telephone call was that Jules was whispering, and that Jules told him she was doing so because she was at home in Malden and was trying to avoid disturbing her brother, who was sleeping. However, Jules was not at home at this time, because her father already had reported her missing. Another call went out from Jules’s cellular telephone to Barnett’s cellular telephone at 9:35 a.m. on August 26, but at that point, Barnett was on a flight to Haiti. 8
The defendant’s cellular telephone records reflected a series of calls on August 24 between 4:52 p.m. and 5:07 p.m. to Mitchell’s work and cellular telephone numbers. At 6:11 p.m., there was a brief call from the defendant’s cellular telephone to Barnett’s *453 home telephone number, although Barnett told police that he did not know the defendant. Approximately one-half hour later, there was a brief call to Jules’s work telephone number, and at 9:03 p.m., there was an incoming call from Mitchell’s home telephone. Approximately four hours later, on August 25 at 12:52 a.m., about one-half hour after Jules’s car was discovered burning, the defendant telephoned Keisha Smith, another girl friend of his, with whom the defendant had lengthy conversations almost every night. This particular call lasted over ninety minutes, while, according to what Smith told McCauley, the defendant took various forms of public transportation home to Dorchester. Despite the late hour, the defendant told Smith he was out doing errands for his mother. At one point, Smith heard a bus driver tell the defendant that he would take the defendant to “Sullivan Square,” but that the bus had to go to “Salem” first. From Sullivan Square, the defendant took a bus to the Haymarket area of Boston. From there, he took a taxicab to the JFK Massachusetts Bay Transportation Authority (MBTA) station, and then he walked home.
From August 25 to at least September 2, the defendant’s cellular telephone continued to make and receive calls. McCauley’s affidavit averred that the defendant’s CSLI during this time period continued to be relevant to the ongoing criminal investigation because it would be helpful to the investigation to know where the defendant was between the times when Jules disappeared and when her body was found in the Charles River.
2.
Discussion.
In
Augustine I,
we determined that in order for the defendant’s motion to suppress his historical CSLI evidence to be denied on remand, the affidavit submitted in support of the § 2703(d) order would have to demonstrate probable cause to believe “that a particularly described offense has been, is being, or is about to be committed, and that the [CSLI being sought] will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense.”
Augustine I,
The motion judge concluded, and we agree, that the first prong of the test quoted in Augustine I — whether the affidavit demonstrated probable cause to believe that an offense has been, is being, or is about to be committed, see id. at 256 — is not reasonably in dispute. Jules’s motor vehicle appears to have been deliberately set on fire in violation of G. L. c. 266, § 5 (arson of a motor vehicle), and the circumstances surrounding her disappearance and the discovery of her body strongly suggest that she was murdered. We also agree with the motion judge that there was no suggestion in McCauley’s affidavit that the police were seeking information about the defendant’s past whereabouts, as reflected in his CSLI, so that the police could apprehend him in connection with either or both of these two offenses. Thus, the only issue remaining is whether the affidavit supplies probable cause for belief that the defendant’s CSLI “will produce evidence” of one or both offenses under investigation. See Augustine, supra. On this, we disagree with the motion judge’s determination that the affidavit does not provide the requisite probable cause, and conclude that the defendant’s CSLI likely will produce evidence of these offenses. 10
*455
In this case, where the Commonwealth possesses the defendant’s CSLI and seeks to use it to determine his past locations during a particular time period, whether there is probable cause to believe that disclosure of these past locations will produce evidence of the two offenses at issue turns on essentially the same inquiry that governs other search warrants: namely, whether there is “evidence that establishes a ‘substantial basis’ ... to believe ‘that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.’ ”
Commonwealth
v.
Banville,
Given the particular facts of this case as presented in the affidavit, we agree with the defendant that his CSLI is related to the two offenses under investigation only to the extent that there is reason to believe that the defendant committed one or both
*456
offenses.
11
First, with respect to the arson investigation, at the time that the affidavit issued, the only apparent utility in knowing the defendant’s whereabouts was to determine whether the defendant was near the parking lot in Revere where Jules’s motor vehicle was set ablaze around the time that the fire was discovered, which would suggest the defendant’s involvement in that offense. Second, considering the murder, and given that the Commonwealth had Jules’s CSLI for the relevant time period, see note 3,
supra,
the defendant’s CSLI had the potential to reveal, or at least suggest, whether the defendant was with Jules at any point from the time she left work until the time that the calls from her cellular telephone ceased. If the defendant was with her, based on the information provided in McCauley’s affidavit, a reasonable inference exists that the defendant may have been the last person to have seen Jules alive, which would be relevant to determining whether he was responsible for her death.
12
Cf.
Commonwealth
v.
Gentile,
We begin our analysis with the arson, drawing all reasonable inferences and keeping in mind the affidavit as a whole. First, it *457 is reasonable to conclude that Jules left her place of work in her vehicle on August 24, 2004, or at least that she intended to take her vehicle, because she took the keys to it with her. It also is reasonable to conclude, given the absence of any evidence suggesting otherwise, that Jules did not set fire to her own vehicle, and thus one can infer that whoever burned it probably obtained it from her, by force or with her permission. The defendant appears to have had the opportunity to do this. The defendant admitted to having asked Mitchell to lie to Jules and tell her that he was sick so that Jules would visit him at his home that evening. Although the defendant later denied seeing Jules that night, he first told Mitchell that he did see Jules, and he offered no explanation as to why he would have said that he saw her when in fact he did not. These facts provide a reasonable basis to believe that the defendant did see Jules the night of August 24, 2004, suggesting the possibility that he was the one who took her vehicle from her and set it on fire.
The defendant’s presence somewhere north of Boston at 12:52 a.m. on August 25, approximately one-half hour after police found Jules’s burning motor vehicle, lends support to this theory. Although it is unclear precisely where the defendant was when he called Smith (a fact we presume the Commonwealth hopes to discover through the defendant’s CSLI) the defendant appears to have boarded a bus that was heading to the Sullivan Square MBTA station via Salem. 13 Neither of these locations is particularly close to Revere, where Jules’s vehicle was discovered, but all three locations are north of Boston, suggesting that the defendant could have driven Jules’s vehicle to Revere, set it ablaze, and then taken public transportation back to his home in Dorchester. 14 In addition, the defendant told Smith that he was out doing *458 errands for his mother at this time, a fact that seems implausible given the early morning hour.
The remainder of the affidavit offers significant support for the conclusion that the defendant committed the arson, and implicates him in the murder as well. The defendant’s recent discovery that Jules had another boy friend could have motivated the defendant to harm Jules. Cf.
Commonwealth
v.
Taylor,
Because Jules disappeared on the same night that her motor vehicle was discovered burning and does not appear to have been seen alive thereafter, it is also reasonable to conclude that the person responsible for the arson was also responsible for the murder. 15 Accordingly, the basis provided by the affidavit for concluding that probable cause to believe the defendant committed the arson in turn provides a basis for concluding that he was *459 involved in committing the murder. In sum, considering the affidavit as a whole, there is a substantial basis, and thus probable cause, to conclude that the defendant committed both crimes. 16
The final question is whether the Commonwealth has demonstrated probable cause for obtaining the defendant’s CSLI records for the two-week period beginning August 24, 2004. 17 As noted previously, the defendant’s location from the evening of August 24 until the last call went out from Jules’s cellular telephone will likely produce evidence of whether the defendant was in Revere around the time of the arson as well as whether he was the last person to have been with Jules. In addition, because Jules’s body was not discovered in the Charles River until September 19, and had been in the water for some time — although exactly how long was unclear — it is reasonable to infer that whoever committed the murder may have deposited her body in the river at some point on or before September 6 (the last day covered under the *460 order to provide CSLI). Because we have concluded that there is probable cause to believe that the defendant was that person, his locations during that time period are likely to produce evidence of where and when the body was placed in the river.
3. Conclusion. For the reasons discussed, the order allowing the defendant’s motion to suppress is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Notes
"The term ‘cell site location information’ (CSLI) refers to a cellular telephone service record or records that contain ‘information identifying the base station towers and sectors that receive transmissions from a [cellular] telephone.’ ... ‘Historical’ CSLI refers to CSLI relating to and generated by cellular telephone use that has ‘already occurred at the time of the order authorizing the disclosure of such data’ ” (quotations and citation omitted).
Commonwealth
v.
Augustine,
We acknowledge the amicus brief submitted on behalf of the defendant by the Massachusetts Association of Criminal Defense Lawyers.
The Commonwealth also sought and obtained an order pursuant to 18 U.S.C. § 2703(d) (2006) for Maine Jules’s CSLI records for the same time period. This CSLI is not at issue here.
Marlon Barnett flew back to Florida on August 23, 2004.
Trooper Mary McCauley’s affidavit does not indicate when Melissa Mitchell received the voicemail message from the defendant, but the reasonable inference is that the message was left sometime after August 24, 2004.
The defendant’s cellular telephone belonged to Keisha Smith. Although the telephone was in Smith’s name, the defendant paid the bills for this telephone and used it exclusively.
The record does not indicate by what means McCauley was able to obtain Jules’s and the defendant’s telephone records, but we assume, as we did in
Augustine I,
The telephone call to Barnett on the morning of August 26, 2004, was the last outgoing call from Jules’s cellular telephone mentioned in McCauley’s affidavit.
In
Augustine I,
we focused on whether obtaining the defendant’s CSLI constituted a search under art. 14, rather than under the Fourth Amendment, because a majority of the Federal courts that had examined this issue had concluded that an individual has no reasonable expectation of privacy in his or her CSLI, and therefore the warrant requirement of the Fourth Amendment does not apply. See
Augustine I, 467
Mass. at 243-244 & nn.25, 26. The defendant nevertheless argues in his brief that even if McCauley’s affidavit demonstrated probable cause to believe that the CSLI in this case will produce evidence of the crimes under investigation, the CSLI must be suppressed because it was obtained in violation of the Fourth Amendment. Federal courts continue to wrestle with the question whether a defendant is entitled to a reasonable expectation of privacy in his or her CSLI, and no clear consensus on this issue has emerged. See
United States
v.
Davis,
The defendant argues that we should afford deference to the motion judge’s conclusion that there was no probable cause. Although it is true that “a reviewing court gives considerable deference to [a] magistrate’s determination of probable cause,”
Commonwealth
v.
Anthony,
The Commonwealth argues that the language used in
Augustine I
does not clearly require a showing of probable cause that the subject of an order to produce CSLI appear to have committed the crimes under investigation, see
The Commonwealth suggests that knowing the defendant’s location shortly before Jules’s death is relevant to the investigation generally because it would allow the Commonwealth to infer her location during the time that the defendant and Jules appear to have been together. However, the defendant’s CSLI is not as indicative of Jules’s location as her own CSLI is, and the Commonwealth already has her CSLI for the relevant time period.
The affidavit does not specify that the bus was going to the Sullivan Square station of the Massachusetts Bay Transportation Authority (MBTA), but simply indicates that it was going to “Sullivan Square.” However, because the defendant transferred to a bus to Haymarket upon reaching Sullivan Square, it is reasonable to infer that the Sullivan Square to which the bus was headed was the MBTA station.
The affidavit does not set out the geographic locations of the city of Salem, the Sullivan Square MBTA station, and Revere, but we can and do take judicial notice of these locations. See Federal Nat’l Mtge. Ass’n v. Therrien, 42 Mass. App. Ct. 523, 525 (1997) (facts that are verifiably true, such as geographic locations, are susceptible to judicial notice). We also take judicial notice of the fact that there is a Salem Street in Revere, and although the affidavit contains insufficient information to determine whether the bus that the defendant was on was traveling to the city of Salem or to Salem Street in Revere, we note that the *458 latter is possible and would lend even greater support to the theory that the defendant was in Revere around the time of the fire.
It is true that calls continued to go out from Jules’s cellular telephone until the morning of August 26, 2004, including a seventeen-minute call to Barnett. This telephone call raised a number of questions, including where Jules was when she made the call, and whether she herself made the call at all; the affidavit does not answer them. Although one possible inference is that Jules was alive and using her telephone during this period, it is also possible that someone else had her telephone and, through whispering, impersonated her voice during the call with Barnett. Either way, given the circumstances surrounding Jules’s death, it remains reasonable to infer that the murder and the arson were related events.
As an example of a case where there was insufficient evidence to support probable cause for a warrant, the defendant relies on
Commonwealth
v.
Kaupp,
In
Augustine I,
the defendant represented that the CSLI records at issue actually covered a period that was longer than two weeks, although exactly how much longer was unclear. See