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23-P-21 Appeals Court
COMMONWEALTH vs. CLAUVENS JANVIER.
No. 23-P-21.
Middlesex. September 15, 2023. – April 18, 2024.
Present: Massing, Henry, & Grant, JJ.
Assault and Battery. Cellular Telephone. Global Positioning System Device. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Warrant, Affidavit, Probable cause. Probable Cause. Practice, Criminal, Motion to suppress, Warrant, Affidavit.
Indictments found and returned in the Superior Court Department on June 8, 2021.
A pretrial motion to suppress evidence was heard by James H. Budreau, J., and motions for reconsideration also were considered by him.
Applications for leave to prosecute interlocutory appeals were allowed by Dalila Argaez Wendlandt and Serge Georges, Jr., JJ., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by them to the Appeals Court.
Timothy Ferriter, Assistant District Attorney, for the Commonwealth. Catherine B. Sullivan Ledwidge for the defendant. 2
MASSING, J. In this interlocutory appeal, both the
Commonwealth and the defendant challenge an order of a Superior
Court judge affirming in part and denying in part the
defendant's motion to suppress geographic location data obtained
with respect to two mobile telephone numbers and a cellular
telephone pursuant to two search warrants. At issue is whether
the search warrant applications established probable cause to
believe that the defendant owned or was using the phone numbers
and phone during the eighteen-day period in which he was
suspected of committing a series of crimes. We conclude that
they did and, accordingly, reverse the order allowing in part
the motion to suppress.
Background. Between November 10 and 27, 2020, a series of
similar and seemingly random assaults and batteries took place
in Waltham, mostly occurring in three geographic clusters within
the city. The defendant, Clauvens Janvier, was arrested in
connection with the attacks on December 11, 2020.
On December 16, 2020, the Waltham police applied for the
first of the two search warrants at issue in this appeal. The
application was supported by the affidavit of Detective
Patrolman Thomas Bryant. Bryant's affidavit set forth the
following facts.
1. The crimes. The first attack occurred on the evening
of November 10, 2020. The victim was stepping out of his car 3
when a Black man, possibly with braided hair, wearing a black T-
shirt and dark jeans, approached him. Without speaking, the man
pulled out what the victim thought was a long knife and swung it
at him, cutting the victim's upper lip. The passenger in the
victim's car witnessed the attack and thought she recognized the
perpetrator as the defendant, her former high school classmate.
The next night, in the parking garage of an office park
near Brandeis University, a Black man wearing a red hooded
sweatshirt and black sweatpants approached three men who were
sitting in a parked car. One of the occupants got out of the
car; the assailant grabbed him by his hair, slammed his head
into the side of the car, and punched him in the face. The
victim took a tire iron from the car to defend himself. The
assailant pulled a machete from his sweatpants, struck the
victim with its blunt side, and then left the garage on foot.
Several more attacks followed between November 16 and 27.
The victims were always male, and nearly each time the assailant
struck without warning, usually from behind, and often with an
unknown object as a weapon. The assailant said little or
nothing to the victims and fled without taking anything from
them. The victims described the perpetrator as a Black male
with either dark or lighter skin, between five feet five inches
and six feet tall, sometimes with braided hair, and typically 4
wearing a black or red hooded sweatshirt and black sweatpants or
light-colored pants.
Based on the tentative identification by his high school
classmate after the first incident, the defendant had become a
suspect. On November 22, the police contacted the defendant by
telephone, as discussed more fully below, and the defendant
agreed to go to the Waltham police station for an interview.
There, after receiving his Miranda warnings, he declined to
speak with the police.
On December 7, the victim of the parking garage attack
contacted the police because he had seen the man he believed was
his attacker. The victim reported that the man was wearing the
same outfit as the night of the attack and was sitting in a
parked car in the garage in the same spot the victim had
observed the car on the night of the attack. The police
responded and approached the suspect's car. The defendant was
in the car, and the car, a 2004 Saab, was registered to him.1
Three days later the police prepared a photograph array from
which the parking garage victim positively identified the
defendant. The next day, December 11, the police obtained a
warrant for the defendant's arrest, located him in the Saab, and
arrested him. Based on the appearance of the Saab's interior,
1 The Saab was the same car that the defendant had driven to the police station on November 22. 5
the police believed the defendant had been living in the car.
At booking the defendant stated he was homeless; the police were
never able to ascertain an address for the defendant.
Authorized by two search warrants, not contested here, the
police searched the defendant's Saab and found a "large
knife/machete, a red hooded sweatshirt, [a] black hooded
sweatshirt, light color pants, work style boots, [a] puffy black
jack[et,] a black mask and a loaded gun [with] extra ammunition"
and "a black iPhone [cell phone]."
2. The phone numbers and phone. On November 22, when
Waltham Detective Sergeant McCarthy asked the defendant to come
to the police station for an interview, McCarthy called the
defendant at a 781 area code phone number. The affidavit did
not explain how McCarthy learned of the defendant's 781 number,
but it did state that the police checked the number using a
"free phone look up tool" called "Zetx," and that the number
"came back to a wireless caller." Records later obtained from
MetroPCS pursuant to an administrative subpoena identified the
defendant as the "subscriber" associated with the 781 number.
As noted, the police found an iPhone when they arrested the
defendant and searched the Saab on December 11. During booking,
the defendant provided an 857 area code phone number. Bryant
confirmed that the iPhone was associated with the 857 number by
sending a text message, which "appeared on the screen of the 6
phone." Another detective used the Zetx tool and learned that
the 857 number was "listed to Metro PCS, which falls under T-
Mobile[,] under the name" of the defendant.
3. The search warrant applications. Bryant applied for
the first of the two challenged search warrants on December 16,
2020. This first application sought to command T-Mobile to
provide historical cell site location information (CSLI),
subscriber information, and global positioning system (GPS)
data, if any, associated with the 781 and 857 numbers from 6
P.M. on November 10 through 3 A.M. on November 28, 2020, that
is, beginning one and one-half hours before the first attack and
ending five hours after the last attack. The warrant issued on
the same day Bryant requested it, and T-Mobile produced the
requested information except for GPS data.
On January 15, 2021, Bryant applied for the second of the
challenged search warrants, this time focusing on information to
be extracted from the cell phone seized from the defendant's
vehicle at the time of his arrest, now more fully described as
an "Apple iPhone SE 2 64G RED smartphone [in] a black case."
The facts set forth in the accompanying affidavit largely
duplicated those in the first affidavit, but added that location
information obtained from T-Mobile pursuant to the first warrant
had placed the defendant's phone in the vicinity of the attacks 7
on November 10, 11, 13, 20, and 22.2 The second affidavit also
stated that the phone number assigned to the defendant's iPhone
had changed from the 857 number to the 781 number. Apparently
to explain the change, Bryant stated that "[c]ustomers of
TMobile who subscribe on a 'minutes-based' contract will have
their number changed if their contract lapses." The application
sought a warrant to search the cell phone for, among other
things, a list of incoming and outgoing calls and text messages;
entries from "the electronic 'phone book' or list of contacts";
"[a]ccount names or IDs and passwords for applications, e-mail,
social media and related accounts"; and GPS or other location
data.3
4. Motion to suppress. In July 2021 the defendant was
arraigned on twenty-five indictments arising from the string of
attacks and the discovery of the firearm in the Saab. The
defendant filed a motion to suppress the information obtained
2 The affidavit did not provide any location information to corroborate the defendant's participation in the attacks on November 16, 19, or after November 22. The November 13 attack, which rendered the victim unconscious, was reported at 6:22 P.M. At 6:30 P.M., a call was made from within one-fourth of a mile of a tower that was approximately two miles away from where the attack occurred.
3 The warrant application also sought the contents of any text messages stored on the phone. During proceedings in the trial court on the motion to suppress, the Commonwealth conceded a lack of probable cause to obtain the content of the defendant's text messages. 8
from the two warrants, arguing that the warrants failed to
establish probable cause that he was using the 781 number, the
857 number, or that he owned, possessed, or used the iPhone
found in his car at any time during the period between November
10 and November 28, 2020. The motion judge allowed the motion
in part, suppressing any information obtained as the result of
either search warrant for the period from November 10 to
November 21, but denied the motion with respect to information
obtained from November 22 through November 28. The judge
reasoned that the affidavits did not establish probable cause to
believe that the defendant owned, possessed, or used a cell
phone or either mobile phone number prior to November 22, the
day the police contacted him using the 781 number, but that the
affidavits did establish probable cause to believe that the
defendant was using the phone and the phone numbers on and after
that date.4
The Commonwealth applied to a single justice of the Supreme
Judicial Court for interlocutory review of the order allowing in
part the motion to suppress, as clarified by the order allowing
4 The judge initially denied the motion as to location data for November 11, the date of the parking garage attack. Acting on the defendant's motion for reconsideration, the judge agreed that the basis for allowing the motion to suppress for the period from November 10 to November 21 applied equally to information from November 11. The order allowing reconsideration thus clarified that the suppression order applied to the CSLI from November 11. 9
the defendant's motion for reconsideration. See note 4, supra.
The defendant, in turn, filed an application for interlocutory
review of the partial denial of his motion. Both applications
were allowed, ordered consolidated, and referred to this court.
Discussion. On appeal, the Commonwealth maintains that the
search warrant affidavits established probable cause to believe
that location data associated with the 781 number, the 857
number, and the defendant's cell phone would provide evidence of
his presence near the scenes of the crimes for the entire period
from November 10 to November 28. The Commonwealth argues that
even though the affidavits did not establish that the defendant
was using the 781 number until the police contacted him at that
number on November 22, there was probable cause to believe he
was using the number during the twelve days before November 22.
Likewise, the Commonwealth argues that although the affidavits
included no information about the defendant's use of the 857
number or his possession of the iPhone until his arrest on
December 11, there was probable cause to believe that he had
been using the 857 number and the phone for at least thirty-one
days prior to his arrest. The defendant does not take issue
with the judge's ruling that location information associated
with the 781 number would likely produce evidence of the crimes
from November 22 forward, but argues that the affidavits failed
to establish that the defendant's 857 number, in use on December 10
11, would provide relevant information for any time between
November 10 and 28.
1. Principles governing requests for CSLI. "[T]he
Commonwealth may obtain a search warrant for CSLI by
establishing probable cause that the suspect committed a crime,
that the suspect's location would be helpful in solving or
proving that crime, and that the suspect possessed a cellular
telephone at the relevant times." Commonwealth v. Jordan, 91
Mass. App. Ct. 743, 751-752 (2017). The affidavit in support of
the warrant "must demonstrate probable cause to believe [1] that
a particularly described offense has been, is being, or is about
to be committed, and [2] 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"
(quotations and citation omitted). Commonwealth v. Perry, 489
Mass. 436, 454 (2022).5
5 The first warrant sought both CSLI and GPS data from T- Mobile. T-Mobile did not provide GPS data, presumably because GPS data is associated with mobile phones rather than mobile phone numbers. The second warrant authorized the police to search the defendant's phone for GPS data. For the purposes of this appeal, we may treat historical GPS data and CSLI the same. See Commonwealth v. Augustine, 467 Mass. 230, 254 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015) ("GPS data and historical CSLI are linked at a fundamental level" because they both implicate "the same constitutionally protected interest -- a person's reasonable expectation of privacy -- in the same manner -- by tracking the person's movements"). 11
Here, it is uncontested that the two search warrant
affidavits established probable cause to believe that the
defendant committed the string of attacks. The only issue in
this appeal is whether the affidavits demonstrated probable
cause to believe that location data associated with the 781
number, the 857 number, and the defendant's cell phone would
produce evidence that the defendant committed the crimes. We
address this question de novo. See Commonwealth v. Molina, 476
Mass. 388, 394 (2017); Jordan, 91 Mass. App. Ct. at 748. Our
analysis is limited to the facts contained within the "four
corners" of the affidavits and the reasonable inferences that
may be drawn from those facts. Commonwealth v. Henley, 488
Mass. 95, 114 (2021); Commonwealth v. O'Day, 440 Mass. 296, 297-
298 (2003).
Because "cell phones have become 'an indispensable part of
daily life and exist as almost permanent attachments to [their
users'] bodies,'"6 the magistrate or judge reviewing the warrant
application may generally infer that the location data from a
6 Seeking a warrant for location data from a cell phone is different from seeking to search its contents. To search stored data, the warrant application may not rely merely on the "ubiquity" of cell phones, but must demonstrate "particularized information" that the phone contains evidence of the crime. Perry, 489 Mass. at 455, quoting Commonwealth v. Morin, 478 Mass. 415, 426 (2017). See Commonwealth v. Hobbs, 482 Mass. 538, 547 n.11 (2019); Jordan, 91 Mass. App. Ct. at 752 n.8. 12
particular phone will yield the suspect's location at any given
time. Commonwealth v. Hobbs, 482 Mass. 538, 546 (2019), quoting
Commonwealth v. Almonor, 482 Mass. 35, 45 (2019). Therefore,
"an affidavit establishing that a suspect committed a crime and
that the suspect was known to own or use a particular cell
phone" provides the requisite basis to believe that location
data will provide evidence of the suspect's participation, or
lack thereof, in the suspected criminal activity. Hobbs, supra
at 547. See Perry, 489 Mass. at 455 (affidavits must provide "a
substantial basis to conclude that the defendant used his or her
cellular telephone during the relevant time frame, such that
there is probable cause to believe the sought after CSLI will
produce evidence of the crime").
The general legal principles concerning probable cause to
obtain a search warrant are well established. The affidavit
must demonstrate "that items relevant to apprehension or
conviction are reasonably likely to be found at the location" to
be searched. Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509
(2019). "The probable cause standard does not require a showing
that evidence more likely than not will be found." Id. "In
dealing with probable cause . . . we deal with probabilities.
These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent
[people], not legal technicians, act." Jordan, 91 Mass. App. 13
Ct. at 748, quoting Commonwealth v. Hason, 387 Mass. 169, 174
(1982).
As to what establishes probable cause to believe that a
suspect owned or was using a particular cell phone or mobile
phone number at a particular time, however, our case law to date
provides little guidance. In the leading case, Hobbs, the
affidavit established the defendant's use of a particular phone
number as follows. About two and one-half months after the
murder under investigation, "the defendant's brother provided
police with a telephone number for a cell phone he understood
belonged to the defendant." Hobbs, 482 Mass. at 545. The
brother "had not seen the defendant in several months" and did
not know his whereabouts. Id. The defendant's former
girlfriend corroborated the defendant's association with the
cell phone number. See id. The decision, and presumably the
affidavit, is silent as to when the former girlfriend had last
seen or contacted the defendant. Thus, establishing that the
defendant was using the phone number within months of the crime
under investigation was sufficient to create probable cause to
obtain CSLI in Hobbs. See id. at 548-549.
In Commonwealth v. Lavin, 101 Mass. App. Ct. 278, 280-282,
299 (2022), a warrant for CSLI was sought slightly more than one
month after the crime. The decision states that the defendant's
mother provided his cell phone number to the police. See id. at 14
300. Although the decision does not state when this occurred, a
reasonable inference would be that she provided the number
around the time the police sought the warrant.
The Commonwealth, drawing on cases concerning the staleness
of information contained in a search warrant affidavit, likens
cell phones and mobile phone numbers to other forms of evidence
that our cases have identified as durable. With respect to the
timeliness of an affidavit, "[i]nformation concerning an item
that is perishable, readily disposable, or transferrable might
not establish probable cause even a few days later."
Commonwealth v. Guastucci, 486 Mass. 22, 28 (2020). "On the
other hand, an item that is durable, of enduring use to its
holder, and not inherently incriminating might reasonably be
found in the same location several weeks later." Id.
Cell phones are durable goods, of enduring use, and not
inherently incriminating. Similarly, although there may be
exceptions, it is reasonable to infer that most cell phone users
retain their phone numbers for indefinite lengths of time to
maintain social ties and business relationships. For example,
in United States v. Grupee, 682 F.3d 143, 145 (1st Cir.), cert.
denied, 568 U.S. 1002 (2012), the affidavit established that the
defendant's housemate had arranged to sell crack cocaine using a
particular cell phone number six months prior to the application
for a warrant to search the shared house for the phone. 15
Rejecting the defendant's staleness claim, the court held that
it was reasonable to infer that the housemate "would still be
using the same phone six months later . . . to maintain some
degree of continuity or risk losing buyers," even though there
was evidence he had used a second cell phone with a different
number. Id. at 146.7
2. Application. We apply these principles to determine
whether the two search warrant applications established probable
cause to believe that the defendant was using the phone numbers
and phone in question during the period in which the crimes
occurred.
a. First search warrant. The first warrant authorized
T-Mobile to search its records and provide location data
pertaining to the 781 number and the 857 number for the period
from November 10 to 28.
7 Other cases cited by the parties add little to our analysis. For example, Perry, 489 Mass. at 438-440, 457-458, is inapplicable because the police were seeking "tower dumps" and were not targeting any particular suspect, phone, or phone number. In Jordan, 91 Mass. App. Ct. at 747, before applying for the warrant, the police used an administrative subpoena to learn that the defendant had activated his cell phone number four years before the crime and had terminated service three weeks after the crime. Although information of that nature in an affidavit would be desirable, nothing in Jordan suggests that it is necessary to establish probable cause. It is perhaps relevant here that the defendant in Jordan used the same cell phone number for four years and terminated it around the time he had reason to believe that he was suspected of a crime. 16
i. The 781 number. The police used the 781 number to
contact the defendant on November 22 and ask him to come to the
police station for questioning. Until he arrived at the
station, the defendant had no reason to believe he was suspected
of the crimes that had occurred during the previous twelve days.
As it can generally be inferred that people keep the same mobile
phone number for extended periods of time to maintain contact
with family, friends, and business associates, we readily infer
that the defendant had been using the 781 number for at least
twelve days before he appeared at the police station.
The fact that the defendant was apparently living out of
his car and, inferentially, without substantial financial
resources, does not cause us to question this result. While it
may be reasonable to infer that a person in the defendant's
circumstances might not be able to afford to maintain a
consistent mobile phone number, it is also reasonable to infer
that because cell phones have become "indispensable to
participation in modern society" (citation omitted), Carpenter
v. United States, 138 S. Ct. 2206, 2220 (2018), a person in the
defendant's situation would prioritize paying for mobile
telephone service as a means of maintaining contact,
communication, business ties, and even for entertainment. Cf.
Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 50 & n.9
(2018) (fact that defendant had money to pay for heating and 17
cell phone did not necessarily imply that she could afford
restitution payments). The defendant had working mobile phone
service using the 781 number on November 22. There is a
reasonable likelihood that he had service in the twelve
preceding days, and that he did not coincidentally activate the
781 number on the very same day the police contacted him.
ii. The 857 number. When the police arrested the
defendant on December 11, they learned he had another phone
number, with an 857 area code, and they seized an iPhone from
the defendant's vehicle that was associated with that number.8
The defendant argues that because the affidavit provided no
information establishing when he acquired the 857 number, it
could not provide probable cause to believe that location data
associated with that number would produce evidence of crimes
that occurred between November 10 and 28. In other words, the
defendant's contention is that even though the 857 number was
active on December 11, it is not reasonably likely that it had
8 Bryant sent a text message to the 857 number, which caused Bryant's number to appear on the screen of the iPhone. The defendant has not argued, here or in the trial court, that Bryant's verification of the phone number in this manner constituted a search. See Commonwealth v. Alvarez, 480 Mass. 1017, 1018 (2018) (observing text message regarding drug transaction appear on outer screen of cell phone seized from defendant incident to valid arrest not a search where "[t]here was no evidence that the officer opened the cell phone, manipulated it to view the text message, or otherwise perused its contents"). 18
been active for the full month before that. Conversely, the
Commonwealth necessarily contends that there was probable cause
to believe that the 857 number had been in service for at least
a month prior to December 11, such that data associated with it
would yield evidence of the defendant's whereabouts between
As with the 781 number, it is reasonable to infer that the
defendant did not just happen to activate the 857 number on the
day he was arrested; therefore, the affidavit provided probable
cause to believe that he had been using the 857 number at least
for some time prior to December 11. For the purposes of this
case, we need not determine the outer limit of the likely
duration of use of any given mobile phone number. Considering
the few cases on point, see Hobbs, 482 Mass. at 548-549; Lavin,
101 Mass. App. Ct. at 299-300, and the durability of mobile
phone numbers in general, as discussed supra, we think that
slightly more than one month is within that limit.
We recognize that this result suggests that the defendant
may have had two different working mobile phone numbers or cell
phones at the same time, which may appear inconsistent with his
apparent poverty. But we are reluctant to draw
conclusions -- and we are certainly not permitted to take
judicial notice, cf. Bruno-O'Leary, 94 Mass. App. Ct. at 50
n.9 -- about the mobile phone habits or proclivities of persons 19
of different levels of income. The affidavit established that
the defendant had two working mobile phone numbers during or
just after the time of the crimes. "[A] search warrant
affidavit may establish probable cause that evidence could be
found in more than one location." Commonwealth v. Defrancesco,
99 Mass. App. Ct. 208, 213 (2021). In dealing with probable
cause, we are dealing with probabilities, not certainties, and
search warrant affidavits are to be "read as a whole, not
parsed, severed, and subjected to hypercritical analysis."
Molina, 476 Mass. at 394, quoting Commonwealth v. Kaupp, 453
Mass. 102, 111 (2009). A search warrant application need not
exclude all other possibilities. See Guastucci, 486 Mass. at 26
("officers need not rule out a suspect's innocent explanation
for suspicious facts to obtain a warrant" [quotations and
citation omitted]); Commonwealth v. Hason, 387 Mass. at 175
("Probable cause does not require a showing that the police
resolved all their doubts").
"With due deference to the magistrate's determination of
probable cause, and given the preference accorded to searches
pursuant to warrants" (citations omitted), Jordan, 91 Mass. App.
Ct. at 753, we conclude that the affidavit provided a
substantial basis to believe that location information
associated with the 857 number -- or the 781 number, or
both -- would be reasonably likely to provide evidence of the 20
defendant's whereabouts during the relevant time period. See
Perry, 489 Mass. at 455; Hobbs, 482 Mass. at 546. The motion to
suppress the location information obtained pursuant to the first
warrant should have been denied.9
b. Second search warrant. The second warrant sought
location data and other information contained within the
9 The defendant had not argued, here or in the trial court, that the police violated his Miranda rights when they obtained the 857 number from him at booking, and we disagree with our dissenting colleague that we could partially affirm the partial allowance of the motion to suppress (that is, as to the location data associated with the 857 number from November 10 through 21) on this ground. While we are free to affirm on grounds different from those relied on by the motion judge, those grounds must be "supported by the record" and "the facts found by the judge." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). We cannot resolve the issue raised sua sponte by Justice Henry based on the information contained within the four corners of the affidavits. Addressing the issue would require additional evidence and findings of fact concerning myriad issues, including when and if the police gave the defendant Miranda warnings during his arrest or booking, the defendant's criminal history and familiarity with Miranda warnings, the booking procedures of the Waltham police department, and the administrative necessity for police or probation departments to collect defendants' phone numbers at booking. Because the defendant did not raise this issue in his motion to suppress, the Commonwealth was not on notice of the need to present evidence in this regard. See Commonwealth v. Delossantos, 492 Mass. 242, 248-249 (2023). As Justice Henry suggests that "in every case involving a crime where location is relevant," post at , police may no longer ask for phone numbers at booking, it would be "particularly unwise" to reach this far- reaching issue here, "where the issue was not briefed on appeal and involves a novel question." Ferreira v. Charland, 103 Mass. App. Ct. 194, 208 n.24 (2023). Cf. Commonwealth v. White, 422 Mass. 487, 501 (1996) (declining to reach question whether police documentation of telephone number defendant called at booking fell within routine booking question exception to Miranda). 21
defendant's iPhone. The only new facts in the second affidavit
were that (a) the location data obtained from the first warrant
had confirmed the defendant's proximity to five of the
attacks -- all before November 22; (b) the 857 number associated
with the iPhone on December 11, 2020, was no longer in service
as of January 15, 2021, apparently because the defendant had
subscribed to that number on a "minutes-based" contract, which
had expired; and (c) the phone, previously described as a black
iPhone, was, more precisely, a red iPhone SE 2 64G in a black
case.
The phone was seized from the defendant's car at the time
of his arrest on December 11 and was associated with the 857
number at that time. As cell phones are durable items and not
inherently incriminating, see Guastucci, 486 Mass. at 28, it is
reasonably likely that the defendant possessed the same phone
for a least a month before he was arrested. Moreover, the
second affidavit established that the iPhone was associated with
the 857 number on December 11 but had changed, or changed back,
to the 781 number as of the date of the second affidavit about
one month later. We have no difficulty concluding that location
data associated with this cell phone would be reasonably likely
to provide information about the defendant's whereabouts during
the entire crime spree. 22
Conclusion. The order allowing in part the defendant's
motion to suppress, as clarified by the order allowing the
defendant's motion for reconsideration, is reversed. An order
shall issue denying the motion to suppress (except as to the
content of any text messages).10
So ordered.
10 See note 3, supra. HENRY, J. (concurring in part and dissenting in part). I
disagree that the first search warrant application established
probable cause to believe that the defendant "was known to own
or use" the 857 phone number during the eighteen-day crime
spree. Commonwealth v. Hobbs, 482 Mass. 538, 547 (2023). The
affidavit submitted in support of the first application
(affidavit) offers no facts, let alone a substantial basis, to
conclude that he did. Instead, the affidavit establishes that
(1) the defendant was using the MetroPCS 857 number on December
11, which was fourteen days after the last attack, (2) he was
using a different MetroPCS phone number (the 781 phone number)
during the period of the attacks, (3) his home (i.e., his car)
contained only one cell phone, and (4) the defendant was poor.
None of the twelve victims or any witness described the attacker
as using or possessing a phone during any of the assaults and
the attacks did not require a cell phone. The majority infers
that this unhoused defendant, who it acknowledges was "without
substantial financial resources," ante at , was
simultaneously using both phone numbers and a second
undiscovered phone -- though the affidavit does not claim that
the defendant was "known to own or use" two phones or the 857
number during any part of the crime spree. We are permitted to
make reasonable inferences, but we cannot speculate. I would 2
suppress all cell site location information (CSLI) associated
with the 857 number. To that extent, I dissent.
I write separately for two additional reasons. First, the
police obtained the defendant's 857 number during the booking
process, which raises two concerns: (a) the police immediately
used the phone number to investigate, and (b) the affidavit
recounted that the defendant had invoked his right to remain
silent on November 22, 2020, and yet the four corners of the
affidavit offer no statement that the defendant was re-
Mirandized at his arrest or before booking. It is a troubling
notion that for any crime at a specific location, the police may
obtain a cell phone number through "routine booking questions"
and then use it to investigate. Asking for a phone number is
now far from routine; it is tantamount to asking the person to
put themself at the scene of the crime.
The second reason I write separately is that, though I
agree with the majority that the CSLI for the 781 phone number
and the iPhone for the relevant period should not have been
suppressed, given this record, I would expressly limit our
holding by conditioning it on confirmation that the police had
no information in their possession on the date of the first
affidavit that the defendant was using a different phone (or no
phone) prior to November 22, 2020. 3
1. The CSLI data for the 857 phone number should be
suppressed entirely. As the majority explains, the question is
whether the suspect was known to own or use a particular phone
number (or phone) around the time of the crimes. The majority
concludes that "although there may be exceptions, it is
reasonable to infer that most cell phone users retain their
phone numbers for indefinite lengths of time to maintain social
ties and business relationships." Ante at . The
majority also states that "[t]he fact that the defendant was
apparently living out of his car and, inferentially, without
substantial financial resources, does not cause [the majority]
to question this result." Ante at . It should.
To support probable cause to obtain CSLI, the affidavit in
support of a search warrant must demonstrate "a substantial
basis to believe that the sought-after CSLI '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 . . . such offense'" (emphasis added; citation
omitted). Hobbs, 482 Mass. at 545-546. The nexus requirement
of Hobbs "is satisfied as long as there is a substantial basis
to conclude that the defendant used [their] cellular telephone
during the relevant time frame, such that there is probable
cause to believe the sought after CSLI will produce evidence of
the crime." Commonwealth v. Perry, 489 Mass. 436, 455 (2022). 4
The majority seems to believe it is reasonable to infer
that the defendant was using both telephone numbers and two
phones, the one that was found in the defendant's car (home),
and some other phone that he discarded, even though he kept
other items used during the attacks that identify him as the
attacker (i.e., a large knife or machete, a red hooded
sweatshirt, a black hooded sweatshirt, light color pants, work
style boots, a black puffy jacket, a black mask, and a loaded
gun with extra ammunition).
Here, the affidavit does not offer a substantial basis to
conclude that the defendant was known to use the 857 number
during the time period of the attacks (November 10 to November
27, 2020). The only time the defendant was known to use the 857
number was on December 11, 2020, fourteen days after the last
attack. The affidavit offers no information to determine when
the defendant switched from the 781 number to the 857 number
even though the affidavit reports that the police have
subscriber data for both phones and that the police can access
the Zetx tool at will to verify the identity of the subscriber.1
1 The affiant describes Zetx as a "free phone look up tool." Zetx is not available to the general public. See LexisNexis Risk Solutions, Free Phone Lookup Tool, https://risk.lexisnexis.com/law-enforcement-and-public- safety/free-phone-look-up-tool [https://perma.cc/EWW5-8UKF]. The term "Zetx" has not been used in any case of the Supreme Judicial Court or this court and the affidavit does not explain its reliability. It might behoove future affiants to provide 5
This paucity of facts is distinguishable from Hobbs, 482
Mass. at 545, where the police obtained the defendant's phone
number from his brother and a former girlfriend offered
corroboration, and Commonwealth v. Lavin, 101 Mass. App. Ct.
278, 300 (2022), where the police obtained the defendant's phone
number from his mother. In those cases, the defendant was known
to have one phone and one phone number -- as established by
people with close personal ties to the defendant -- and
therefore, the reasonable inference was that the defendant had
been using that one number for some time, inferentially back to
the time of the crime or crimes.
Here, the affidavit established the opposite. The
affidavit attested that this unhoused defendant without
substantial resources was using one phone number (the 781
number) on November 22, which was during the crime spree, and
another phone number (the 857 number) on December 11, after the
attacks had ended. The affidavit offers no connection from any
source between the defendant and the 857 number during the
attacks or even during the two weeks after the attacks had
stopped.
I accept the majority's inference that if the defendant was
using the 781 number on November 22, 2020, even considering his
that information. For purposes of this appeal, I accept that Zetx is reliable. 6
poverty, we can reasonably infer that he was using that number
up to twelve days earlier.2 And even the defendant does not
challenge the search warrant for the period November 22 to
November 28. However, nothing in the affidavit reasonably
allows the inference that this defendant was simultaneously
using a second phone number (the 857 number) and phone for the
period from November 10 to November 28, 2020, when nobody
associated him with that phone number or having two phones
during that time frame.3 See Perry, 489 Mass. at 455 (to satisfy
the nexus requirement established in Hobbs, there must be some
particular evidence showing the defendant used or owned a cell
phone during relevant time frame); Commonwealth v. Jordan, 91
2 This certainly is a debatable point, and a reasonable magistrate or judge could reject an application for a search warrant where the supporting affidavit did not provide additional information to support an inference about how long a particular defendant or a person with the same prepaid cell phone plan might have had their phone number.
3 The majority acknowledges that its result suggests that "the defendant may have had two different working mobile phone numbers or cell phones at the same time, which may appear inconsistent with his apparent poverty." Ante at . Still, the majority concludes that we cannot draw conclusions "about the mobile phone habits or proclivities of persons of different levels of income." Ante at . Yet, the question of probable cause is a fact-based inquiry and I do not think we can ignore the defendant's poverty or draw counterfactual inferences. Nor do I think we can ignore the fact that the affidavit established that the defendant had just one mobile phone -- not two, particularly where he kept the instrumentalities and accoutrements of the attacks that identify him. 7
Mass. App. Ct. 743, 751-752 (2017) (application for search
warrant for CSLI must establish "that the suspect possessed a
cellular telephone at the relevant times" [emphasis added]). It
simply is not reasonable to infer that the defendant was using
the 857 number over fourteen days earlier and, even more
unreasonable to infer his use over thirty days earlier.
If the defendant was using the 781 and 857 phone numbers
successively (and later reverting from the 857 number back to
the 781 number as the second search warrant establishes), then
it is not reasonable to infer that the defendant was using the
857 number during the time of the attacks.4 No case says that an
affidavit in support of a search warrant can support two
different possible inferences when we know only one is true.
4 The police checked the 781 number in Zetx on November 22, 2020. The fact that the detective did not check the 781 number in Zetx again on December 11, 2020, also indicates that the police thought the defendant had changed from the 781 phone number to the 857 number. The majority acknowledges, as it should, that the defendant's number changed from 857 to 781 by January 15, 2021, apparently because the defendant was on a minutes-based plan. See ante at . At the same time, the majority rejects the defendant's poverty and minutes-based plan as the explanation for why the defendant changed from the 781 number to the 857 number. See ante at . Leaving aside this contradiction, this appeal is about CSLI -- it is not about subscriber data for these numbers, which the police already had, or consciousness of guilt. Of course, if the majority reads the affidavit as indicating the defendant was not a subscriber for the 857 number, that is another reason not to use inference to conclude that the defendant was using the 857 number a month before December 11 while simultaneously using the 781 number. 8
Yet this is exactly what the majority does when it concludes
that the defendant could have both the 781 and 857 numbers at
the same time when the reasonable inference is that he had just
one number at a time. I cannot agree.
The majority's analysis of the 857 number also is troubling
because it is based -- as it must be -- on the first search
warrant application, but that affidavit did not disclose
something the police knew to be true and that this court knows
the police knew. It is only in the second affidavit that the
police disclose that "Customers of TMobile who subscribe on a
'minutes based' contract will have their number change if their
contract lapses." There is no likelihood that the police
developed this knowledge between the date of the first affidavit
(December 16, 2020) and the date of the second affidavit
(January 15, 2021). The second affidavit offers this
information as an explanation for why, after the defendant was
arrested, the number for the one phone in the defendant's
possession reverted from the 857 number to the 781 number.5 This
information about the defendant's phone number switching between
5 I am in no way saying that the police withheld this information. Rather, I assume that at the time of the first affidavit, the affiant did not think he had a reason to disclose it. Indeed, there was no reason for the police to hide this information. Any cognizant resident of the Commonwealth is aware that cell phone plans can lapse for nonpayment and the customer can lose their number. 9
781 and 857, the defendant's poverty, and common sense allow the
reasonable inference that the defendant was a prepaid cellular
customer without enough money to pay his bill and keep his phone
number. The majority's reading means that it is acting contrary
to information it knows the police possessed.
The police have a duty to disclose information that they
knew or should have known to the issuing magistrate or judge.
Commonwealth v. Carrasco, 405 Mass. 316, 323 (1989), citing
Maryland v. Garrison, 480 U.S. 79, 85 (1987) (officers have duty
to disclose information that excludes one of two apartments on
same floor). Courts should not ignore information known to the
police to permit the conclusion that the four corners of the
affidavit support probable cause. This is willful ignorance
that could encourage the police to seek a search warrant early
in their investigation to gain the benefit of inferences, even
contradictory ones such as here (i.e., the defendant had two
phones and two phone numbers; or, the defendant had one phone
and two successive phone numbers, and the police may seek data
for both, even though one of those phone numbers may have been
given to a different customer).
The CSLI data associated with the 857 number from November
10 through November 28, 2020, should have been suppressed.
2. A cell phone number may no longer be routine booking
information. I write separately to flag a second, concerning 10
issue, readily apparent within the four corners of the first
affidavit. That affidavit reports that the defendant invoked
his right to remain silent on November 22, 2020. The affidavit
does not state that when the defendant was subsequently arrested
or booked, he was given Miranda warnings. This is important
because the police obtained the 857 number from the defendant
during booking but then immediately used that telephone number
for an investigatory purpose. The detective checked the 857
number in Zetx and determined it was "listed to Metro PCS, which
falls under T-Mobile under the name 'Clauvens Janvier.'" The
affiant then sent a text message to the 857 number from his work
cell phone and observed that his work cell number appeared on
the screen of the defendant's iPhone. Moreover, courts have
treated routine booking questions differently from questioning a
suspect. But here, the police immediately used that 857 number
obtained during booking to investigate.6
Even after the invocation of counsel, "[t]he police may ask
routine booking questions, but not about the crime that is under
investigation." Commonwealth v. Chadwick, 40 Mass. App. Ct.
425, 427 (1996). In the context of alleged violations of
6 As the majority notes, the defendant has not argued that the affiant sending a text message to a phone to see if the text causes a notification to pop up on the lock screen constitutes manipulating the defendant's phone and therefore is a search. See ante at . 11
Miranda v. Arizona, 384 U.S. 436 (1966), we have held that
routine biographical questions such as those about name, age, or
address, asked during a defendant's booking, are not
interrogation within the meaning of Miranda. Commonwealth v.
Kacavich, 28 Mass. App. Ct. 941, 941-942 (1990). However,
"[a]lthough a booking officer proceeding down a litany of
routine questions may have no investigatory purpose in asking
the arrested person [certain questions], the content of that
person's response may be incriminating" (emphasis in original).
Commonwealth v. Woods, 419 Mass. 366, 373 (1995). The key
inquiry is whether questions posed during booking "are designed
to elicit incriminatory admissions" or have that potential.
Id., citing Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14
(1990). Here, asking the defendant for his phone number was
tantamount to asking him to potentially place himself at the
crime scenes. Indeed, while we call these devices "phones,"
they are personal tracking devices that are sometimes used to
communicate with others by a messaging application, social
media, or a phone call. Accordingly, in every case involving a
crime where location is relevant, asking a suspect for their
cell phone number is asking them to place themself at the scene
of the crime. People being booked may not understand this, even
with Miranda warnings. I need not and do not reach this issue, 12
which the magistrate should have noticed, but having seen the
potential constitutional issue, I cannot ignore it.7
3. CSLI for the 781 number and the phone. As to the 781
number and the phone, though I agree with the result, we are
basing our result on an inference and thereby implicitly
assuming that the police had no contrary information. Given
this record, I would make the implicit assumption an explicit
condition of our holding.
I agree with the majority that our case law allows us to
use inference and only inference to find probable cause to
believe that the defendant "was known to own or use" the 781
phone number during the eighteen-day crime spree. However, I do
not think we should be using mere inference to reach back from
November 22 to November 10, 2020, for the 781 number where the
police can –- and here did – obtain subscriber information with
an administrative subpoena that does not require a search
warrant. That information should have included length of
service (including start date).8 The affidavit establishes that
7 We can affirm (though not reverse) a suppression order on any ground supported by the record. See Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 217 (2013).
8 "The police may obtain subscriber information and toll records pursuant to a court order issued under 18 U.S.C. § 2703(d), but under art. 14 of the Massachusetts Declaration of Rights, the police may not use CSLI for more than six hours to track the location of a cellular telephone unless authorized by a search warrant based on probable cause." Commonwealth v. 13
on December 14, 2020, police sought and obtained one such
administrative subpoena, identifying the defendant as the
subscriber of record for the 781 number. We should not rely on
inference when the police have or could have had actual
information.
Based on these concerns, I would condition our holding
accordingly to state that the affidavit established probable
cause to obtain the CSLI for the 781 phone number from November
10 to November 22, 2020, provided that the police had no
information that contradicts the inference we draw here. I
conclude this based on information disclosed and not disclosed
in the affidavit. The police spoke to the defendant on the 781
number on November 22. The affiant does not state how the
police obtained the 781 number. If the police had knowledge
that the 781 number was not one that the defendant was known to
use prior to November 22, 2020, they cannot withhold that
information and benefit from an inference that is contrary to
Fredericq, 482 Mass. 70, 75-76 (2019). See Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (notwithstanding standard of "reasonable grounds" stated in 18 U.S.C. § 2703(d), "the [g]overnment must generally obtain a warrant supported by probable cause before acquiring [CSLI] records"). Cell phone service providers served with an administrative subpoena are required to disclose to the government certain subscriber information, including, information such as the subscriber's name, address, the "length of service (including start date) and types of service utilized[,]" and the "means and source of payment for such service (including any credit card or bank account number)." 18 U.S.C. § 2703(c)(2). 14
facts in their possession. See Carrasco, 405 Mass. at 323-324.
This is implicit in our ruling; I would make it explicit.
Conclusion. Given the "significant constitutional
questions" at issue, Hobbs, 482 Mass. at 549, I would suppress
the CSLI for the 857 phone number. As for the 781 number, I
agree with the majority that we should reverse the order
granting the defendant's motion to suppress the CSLI for the 781
number from November 10 at 6 P.M. to November 22, 2020, but I
would condition that holding on confirmation that the police had
no information in their possession on December 16, 2020, that
the defendant was using a different phone (or no phone) prior to
November 22, 2020.