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16-P-1251                                            Appeals Court

            COMMONWEALTH    vs.   MICHAEL AARON JORDAN.1


                           No. 16-P-1251.

            Suffolk.       May 9, 2017. - July 6, 2017.

             Present:   Agnes, Massing, & Lemire, JJ.


Cellular Telephone. Practice, Criminal, Motion to suppress,
     Warrant, Affidavit. Constitutional Law, Search and
     seizure, Probable cause. Search and Seizure, Warrant,
     Affidavit, Probable cause. Probable Cause.



     Indictments found and returned in the Superior Court
Department on February 20, 2015.

     A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.


     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Lefteris K. Travayiakis for the defendant.



     1
       We use the name that appears on the Superior Court docket,
as a copy of the indictment is not in the record appendix.
                                                                     2


     MASSING, J.   Ahmir Lee was shot to death on Boylston

Street, near Copley Square in Boston, on the night of August 22,

2013.    The investigation of the murder focused on the defendant,

Michael Aaron Jordan.    On December 30, 2013, the police obtained

a search warrant directing the defendant's cellular telephone

service provider, Metro PCS (provider), to produce "records

regarding cell site tower locations, call details,

incoming/outgoing text messages, subscriber information, cell

sites and GPS records" associated with the defendant's telephone

number for the six-week period surrounding the date of the

homicide.

     About one year later, a grand jury issued an indictment

charging the defendant with murder, G. L. c. 265, § 1, and

carrying a firearm without a license, G. L. c. 269, § 10(a).

Acting on the defendant's motion to suppress, a Superior Court

judge entered an order suppressing all cell site location

information (CSLI),2 text messages, and contact information

obtained from the provider.   The judge reasoned that the

affidavit in support of the search warrant failed to establish

probable cause that the defendant committed the murder or that

any information from the defendant's cellular telephone would

provide evidence of the murder.    The judge denied the motion


     2
       For a concise definition of CSLI, see Commonwealth v.
Estabrook, 472 Mass. 852, 853 n.2 (2015).
                                                                      3


insofar as it sought the suppression of "subscriber information"

and "call details," noting that such information does not

implicate constitutionally protected privacy interests.     The

Commonwealth obtained leave to pursue an interlocutory appeal

from the suppression order.   See Mass.R.Crim.P. 15(a)(2), as

appearing in 422 Mass. 1501 (1996).     We affirm in part and

reverse in part.

    Background.    Our review of whether an affidavit in support

of a search warrant established probable cause is restricted to

the "four corners" of the affidavit.     Commonwealth v. O'Day, 440

Mass. 296, 297 (2003); Commonwealth v. Perez, 90 Mass. App. Ct.

548, 551 (2016).   Accordingly, we recite the facts set forth in

the affidavit of Boston police Detective Melvin Ruiz.

    Boston police officers were called to 553 Boylston Street

at 11:09 P.M. on August 22, 2013.     The victim was lying on his

back, unresponsive and bleeding from the chest.    He was

pronounced dead minutes later at the Boston Medical Center.       A

medical examiner determined that the victim died of a gunshot

wound.

    A number of witnesses were interviewed at Boston police

headquarters.   Two employees of a nearby restaurant heard three

gunshots as they were leaving work.     One employee, who was

walking toward Boylston Street, saw a man "walking really fast"

toward a car parked at the intersection of Clarendon and
                                                                     4


Boylston Streets.   She described him as "short, [five feet,

seven inches or five feet, eight inches tall], stocky build,

shaved head, light skin black male, baggy baby blue shirt with

designs and oversized jean shorts."    This witness saw the man

get into an "older car, gray in color, leather top, boxy style"

and then drive down Clarendon Street "really fast" toward "Saint

James Street."   Her coworker, the second witness, was crossing

the street toward Trinity Church when he saw a person holding a

grey or silver gun walking toward him.    The witness turned the

other direction and was unable to describe the person; however,

he then saw an older model car (1989-1992), possibly a Cadillac

Eldorado, with a "leather or ragtop roof, cream/beige in color,"

driving "really fast" on Clarendon Street.

    A third witness, who had parked his car in front of a fast

food restaurant on Boylston Street, heard an argument, then

three or four gunshots.    He saw the victim run across the street

and fall to the ground and another man walk away in the

direction of the church.    This witness described the man as "a

white Hispanic male, [mid-thirties], . . . [five feet, one inch

or five feet, two inches tall], 200 [pounds], heavy build,

wearing a blue baggy shirt and jean shorts down to the knees."

    Two other witnesses, a father and his son, were hanging

banners on Boylston Street at the time of the incident.    The son

observed three men talking on the benches in the park across the
                                                                      5


street.    He heard a shout and then three or four gunshots; he

also saw a man holding something in his right hand and saw

flashes coming from the object.     The son described the man as a

"short fat guy, black Hispanic male, skin complexion of the

baseball player A-Rod (Alex Rodriguez) from the New York

Yankees, between [five feet, six inches to five feet, seven

inches tall], heavy build, 250 [pounds], in his [mid-twenties or

mid-thirties], wiffle short haircut, wearing a light blue tee

shirt, and baggy dark blue shorts."3    The father heard "pops" and

saw the victim being chased across the street.     He also saw a

man on the sidewalk, whose right arm was raised, run toward

Clarendon Street.     The father described the suspect as a "black

male, short, [four feet, nine inches tall], stocky build, medium

build, wearing . . . a bright blue, baseball short sleeve

shirt."

     The sixth witness was a man who knew the victim as "Dough

Boy."     On the night of the shooting, this witness saw the victim

at the benches near Clarendon and Boylston Streets, then heard

three gunshots.    The witness said that the victim ran toward

him, then crossed Boylston Street and fell to the ground.     This

witness saw a man shooting in his direction, whom he described



     3
       The son described the third man, who was unarmed and ran
toward Dartmouth Street, as a "black Hispanic male," six feet
tall, "skinny, about 180 [pounds]."
                                                                    6


as "short, light skin, Spanish . . . between [five feet, seven

inches, and five feet, eight inches tall]."

    Based on a tip,4 the investigation focused on the defendant,

who was twenty-six years old, five feet, four inches tall, and

weighed 200 pounds.   The defendant was the registered owner of a

brown, 1991 Chrysler New Yorker.   Surveillance video recordings,

made near the defendant's residence on Blue Hill Avenue in the

Roxbury section of Boston four hours before the murder, showed a

man "wearing a long blue shirt with light colors on the back of

the shoulder and dark pants, who matched the physical

description of the suspect" coming from the direction of the

defendant's address and getting into a "tan/beige boxy type

motor vehicle" parked across the street.   The car appeared to be

a Chrysler New Yorker with a vinyl or leather half-top.   Other

surveillance recordings show the same car parked across the

street from the defendant's address on a regular basis during

the ten-day period before the murder.   After the murder, the car

    4
       The tip, from "a person known to the Commonwealth," was
that someone "known to them as 'Michael'" shot the victim over
"drug dealing in the park." "For statements of confidential
informants to be used in the assessment of probable cause under
art. 14 [of the Massachusetts Declaration of Rights], the
Commonwealth must satisfy the Aguilar-Spinelli test."
Commonwealth v. Tapia, 463 Mass. 721, 729 (2012), citing Aguilar
v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States,
393 U.S. 410 (1969). As the affidavit provided absolutely no
information about the informant's basis of knowledge or
veracity, it did not satisfy this test. See Tapia, supra. The
motion judge gave no weight to this anonymous, uncorroborated
tip, and neither do we.
                                                                   7


was no longer seen in the area; its registration was revoked

about one and one-half months after the murder.     Ruiz's

affidavit also stated, "while monitoring the same surveillance

footage, I observed the individual, believed to be [the

defendant] holding an object, believed to be a cellular phone to

his ear as he walked toward the vehicle."

    The police ascertained the defendant's cellular telephone

number and provider.   Using an administrative subpoena, they

learned that the defendant had activated his cellular telephone

number in 2009 and had terminated service on September 12, 2013,

three weeks after the murder.   The records showed that "in and

around the time of the murder on August 22, 2013, there were

many inbound and outbound cellular phone calls made from this

number," including telephone calls with two members of the

defendant's family.

    Based on these facts, Ruiz stated, "I believe that by

receiving the Metro PCS cell site towers information, I can

confirm that [the defendant] was in fact on Boylston Street

during and after the homicide of the victim."     The affidavit

concluded with a request not just for CSLI ("cell site tower

locations" and "cell sites and GPS records"), but also for "call

details, incoming/outgoing text messages, [and] subscriber

information" associated with the defendant's cellular telephone

for the period from August 1, 2013, through September 12, 2013,
                                                                     8


that is, from three weeks prior to the murder to three weeks

after the murder, also coinciding with the termination of the

defendant's cellular telephone service.

     Discussion.   1.   Search warrant requirements in the context

of cellular telephones.   In Commonwealth v. Augustine, 467 Mass.

230 (2014) (Augustine I), S.C., 470 Mass. 837 (2015), and 472

Mass. 448 (2015), the Supreme Judicial Court "concluded that the

government-compelled production of CSLI by a cellular telephone

service provider is a search in the constitutional sense to

which the warrant requirement of art. 14 of the Massachusetts

Declaration of Rights applies."   Commonwealth v. Broom, 474

Mass. 486, 491-492 (2016).5   In Commonwealth v. Fulgiam, 477

Mass. 20, 32-33 (2017), decided just days before oral argument

in this appeal, the Supreme Judicial Court held that a search

warrant also is required to obtain text messages from a cellular

telephone, even when those messages are held by a third-party

cellular telephone service provider.6



     5
       Here, because the Commonwealth sought the CSLI for a six-
week period, a search warrant was required. See Commonwealth v.
Estabrook, 472 Mass. 852, 858-859 (2015) (assuming compliance
with 18 U.S.C. § 2703 (2006), request for historical CSLI for
period of six hours or less does not require search warrant,
whereas request for two weeks of CSLI requires warrant).
     6
       The motion judge correctly anticipated the result in
Fulgiam, stating, "It should not make any constitutional
difference whether police seek to access text messages . . .
through an individual's cell phone . . . or to obtain the exact
                                                                     9


    "Under the Fourth Amendment and art. 14, a search warrant

may issue only on a showing of probable cause."     Commonwealth v.

Anthony, 451 Mass. 59, 68 (2008).     To obtain a search warrant

for text messages or CSLI, the affidavit must demonstrate

"probable cause to believe 'that a particularly described

offense has been, is being, or is about to be committed, and

that the [text messages or 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, is

committing, or is about to commit such offense.'"     Augustine I,

supra at 256, quoting from Commonwealth v. Connolly, 454 Mass.

808, 825 (2009).   See Fulgiam, supra at 32.

    "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 men, not legal technicians, act."

Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting from

Brinegar v. United States, 338 U.S. 160, 175 (1949).     See

generally Grasso & McEvoy, Suppression Matters Under

Massachusetts Law § 8-1 (2017).     "[A]ffidavits in support of

search warrants are to be approached with a view toward common

sense, read in their entirety and with considerable latitude



same information from storage devices maintained by or for the
cellular service provider."
                                                                   10


allowed for the drawing of inferences."    Commonwealth v.

Santiago, 452 Mass. 573, 576 (2008), quoting from Commonwealth

v. Jimenez, 438 Mass. 213, 218 (2002).    See Commonwealth v.

Donahue, 430 Mass. 710, 712 (2000), quoting from Commonwealth v.

Blake, 413 Mass. 823, 827 (1992) (search warrant affidavits

should be "read as a whole, not parsed, severed, and subjected

to hypercritical analysis").

     "Because a determination of probable cause is a conclusion

of law, we review a search warrant affidavit de novo."

Commonwealth v. Foster, 471 Mass. 236, 242 (2015).    With the

above principles in mind, we consider whether the affidavit

established probable cause that a crime was committed and that

the text messages, CSLI, and contact information from the

defendant's cellular telephone would provide evidence connected

to the crime.

     2.     Whether the affidavit established probable cause.

A.   Probable cause that a crime was committed.   The affidavit

established probable cause to believe that Ahmir Lee had been

murdered.    The affidavit provided multiple witness accounts of

the shooting and stated the medical examiner determined that the

victim died from a gunshot wound.    Thus, the affidavit satisfied

the first requirement for the search warrant.     See Fulgiam, 447

Mass. at 32, quoting from Augustine I, 467 Mass. at 256

(indicating first requirement for search warrant is satisfied
                                                                  11


when affidavit demonstrates probable cause that "offense has

been, is being, or is about to be committed").

    B.   Probable cause that text messages would provide

evidence connected to the crime.   To justify the seizure of text

messages, in addition to establishing probable cause that a

particular offense had been committed, the affidavit had to

establish probable cause to believe that the content of the text

messages would be relevant to the investigation of that offense.

See Fulgiam, supra, quoting from Augustine I, supra (indicating

second requirement for search warrant is satisfied when

affidavit establishes probable cause "that [the text message

content 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").

    "Before police may search or seize any item as evidence,

they must have 'a substantial basis for concluding that' the

item searched or seized contains 'evidence connected to the

crime' under investigation (citation omitted)."   Commonwealth v.

White, 475 Mass. 583, 588 (2016), quoting from Commonwealth v.

Escalera, 462 Mass. 636, 642 (2012).   In other words, the

affidavit must provide a substantial basis for the belief that

there is a "(1) timely nexus between (2) criminal activity, (3)

a particular person or place to be searched, and (4) a
                                                                      12


particular item to be seized from that place or person."      Grasso

& McEvoy, Suppression Matters Under Massachusetts Law § 8-2, at

8-6.       See Commonwealth v. Banville, 457 Mass. 530, 538 (2010);

White, supra; Perez, 90 Mass. App. Ct. at 554.7

       For example, in Commonwealth v. Dorelas, 473 Mass. 496, 503

(2016), the search warrant affidavit recited that the defendant

"had been receiving threatening communications on his [cellular

telephone] with respect to money he owed to 'people,' and indeed

had been using his [cellular telephone] while arguing with an

individual immediately prior to the shooting."      This information

provided a nexus between the shooting and information on the

defendant's cellular telephone, establishing probable cause that

it likely contained "evidence of communications both received as


       7
       To the extent the Commonwealth argues that the standards
for warrants to obtain text messages were not yet established
when the Boston police prepared the search warrant application
in this case, we note that the nexus requirement was well
established long before the Supreme Judicial Court applied it to
cellular telephone content in White and Fulgiam. See, e.g.,
Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464
U.S. 860 (1983) ("Information establishing that a person is
guilty of a crime does not necessarily constitute probable cause
to search the person's residence"; affidavit must demonstrate a
nexus between the residence and items related to criminal
activity expected to be found there); Commonwealth v. Wade, 64
Mass. App. Ct. 648, 651 (2005) ("The information in the
affidavit must be adequate to establish a timely nexus between
the defendant and the location to be searched and to permit the
determination that the particular items of criminal activity
sought reasonably could be expected to be found there").
Application of the exclusionary rule is appropriate under these
circumstances.
                                                                   13


well as initiated and sent by the defendant that would link him

and others to [the] shooting."    Ibid.

      To establish that information from a cellular telephone,

including text messages, is likely to produce evidence of crime,

it is not enough to rely on the ubiquitous presence of cellular

telephones and text messaging in daily life, or generalities

that friends or coventurers often use cellular telephones to

communicate.   See White, supra at 590; Fulgiam, 477 Mass. at 34-

35.   Nor may we rely on our conclusion, infra, part 2(C), that

the affidavit established probable cause to believe that the

defendant committed the crime.    The Supreme Judicial Court has

rejected the proposition "that there exists a nexus between a

suspect's criminal acts and his or her cellular telephone

whenever there is probable cause that the suspect was involved

in an offense, [even when] accompanied by an officer's averment

that, given the type of crime under investigation, the device

likely would contain evidence."    White, supra at 591.

      Here the affidavit established, at most, that the defendant

was using his cellular telephone four hours before the murder

and used it to telephone two family members around the time of

the murder.    Other than the tip that someone with the

defendant's first name shot the victim over drug dealing in the

park (which we do not consider, see note 4, supra), the

affidavit contained no information about the motive for the
                                                                  14


crime, that the defendant was involved in drug dealing, or that

he used his cellular telephone in the commission of the crime or

in dealing drugs.   Even though the police possessed the

defendant's contemporaneous cellular telephone call records, the

affidavit contained no information linking the defendant with

the victim, directly or indirectly.   Compare Broom, 474 Mass. at

496 (where police possessed defendant's call logs, and victim's

cellular telephone number did not appear, affidavit failed to

establish that contents of defendant's cellular telephone,

including contact list, voice mail, texts, and electronic mail

messages, would likely contain information linking defendant to

victim or relating to her killing).

    Because the affidavit made no connection between the

defendant's use of his cellular telephone and his involvement in

the crime, it did not establish probable cause for concluding

that the text messages would provide evidence connected to the

crime.   Thus, the judge correctly suppressed the text messages

obtained through the warrant.

    C.    Probable cause that CSLI would provide evidence

connected to the crime.   To justify seizure of the defendant's

CSLI, in addition to establishing probable cause that a crime

was committed, the affidavit had to establish probable cause to

believe that the CSLI would be relevant to the investigation of

the crime.   See Commonwealth v. Augustine, 472 Mass. 448, 453-
                                                                   15


454 (2015) (Augustine II).     Accordingly, the affidavit had to

provide a substantial basis for the belief there is a nexus

between the crime, the cellular telephone, and the CSLI.     See

White, 475 Mass. at 588-589.     The Commonwealth sought to use the

CSLI primarily to establish that the defendant was present in

the vicinity of Boylston Street near Clarendon Street at the

time of the murder, which would be probative evidence

implicating him in the murder.    See Augustine II, supra at 455-

456.

       Because CSLI provides information solely about the

whereabouts of the cellular telephone user at different times,

the 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.8    We conclude that the affidavit

satisfied each of these requirements.

       The affidavit established probable cause to believe that

the defendant shot the victim.    Several witnesses saw a man


       8
       We observe that the focus of the nexus requirement applies
differently in the context of CSLI, which provides evidence of
the cellular telephone user's whereabouts, than in the context
of cellular telephone content such as text messages, voice
messages, contact lists, or photographs, which implicates
additional privacy concerns. Contrast Augustine II, supra at
455-456 & n.11, with White, supra at 591.
                                                                   16


wearing a baggy, blue shirt with oversized, dark shorts firing a

gun, running from the scene of the crime down Boylston Street

toward Clarendon Street, getting into a car parked there, and

speeding away.   Although the witnesses' descriptions of the man

varied slightly, the composite description was of a short,

stocky person of color with very short hair -- a description

that matched the defendant.9   Two witnesses described a car with

distinctive features -- a boxy, older model sedan with a soft

top -- that matched the defendant's car.   A video recording near

the defendant's residence four hours before the shooting showed

a man matching the suspect's description getting into a car,

which was parked across the street from the defendant's

residence, that matched the description of both the defendant's

and the suspect's car.   In addition, the medical examiner

determined that the victim died from a gunshot wound.     When

considered together, the information in the affidavit

established a substantial basis to conclude that the defendant

committed the crime.

     The sufficiency of an affidavit "is to be decided 'on the

basis of a consideration of all of its allegations as a whole,

and not by first dissecting it and then subjecting each


     9
       The affidavit does not describe the defendant's haircut or
skin color, but it does state that the man near the defendant's
residence in the video recording "matched the physical
description of the suspect."
                                                                  17


resulting fragment to a hypertechnical test of its sufficiency

standing alone.'"   Santiago, 452 Mass. at 576, quoting from

Commonwealth v. Burt, 393 Mass. 703, 715 (1985).   We disagree

with the motion judge's determination that the elements of the

affidavit were too general and, when considered together, did

not create a substantial basis to conclude that the defendant

committed the murder.   The judge took three elements of the

affidavit -- the description of the defendant, his presence in

the vicinity of the crime, and the description of the car -- and

found them wanting individually and when considered together.

For example, the judge found that the affidavit provided too

general a description of the suspect and failed to establish

"whether scores, hundreds, or many thousands of vehicles still

on the road [within] a reasonable drive of the murder scene

would match the general description provided by the witnesses."

To be sure, a search warrant could not issue based solely on the

description of a short, stocky man of color, cf. Commonwealth v.

Scott, 440 Mass. 642, 648 (2004) ("general description of a

tall, muscular, black male" and his location insufficient to

establish reasonable suspicion for investigative stop), or

solely on the use of a boxy, older model car with a soft top,

cf. Commonwealth v. Cheek, 413 Mass. 492, 496 (1992)

(description of a "black male with a black [three-quarter]

length goose" jacket walking near crime insufficient to
                                                                  18


establish reasonable suspicion for investigative stop).     "A

description equally applicable to a large number of people,

without more, may not support a finding of probable cause."

Commonwealth v. Carrington, 20 Mass. App. Ct. 525, 528 (1985).

But the affidavit here did not rely solely on general

descriptions.   While each of the elements of the affidavit,

standing alone, may not have been sufficient, when considered

together, they created a substantial basis to conclude that the

defendant committed the murder.

    With due deference to the magistrate's determination of

probable cause, see Anthony, 451 Mass. at 69, and given the

preference accorded to searches pursuant to warrants, see

Commonwealth v. Germain, 396 Mass. 413, 418 (1985), we conclude

that the affidavit established a substantial basis, and thus

probable cause, to conclude that the defendant committed the

crime.   We also conclude that the affidavit established that the

defendant had a cellular telephone and that it was in use around

the time of the murder.   Accordingly, the affidavit established

probable cause to believe that the CSLI from the defendant's

cellular telephone would provide evidence of his involvement in

the crime.   The CSLI should not have been suppressed.

    D.   Probable cause with respect to contact information.

The Commonwealth also appeals from the suppression of "contact

information," insofar as that term could be understood to
                                                                    19


include the defendant's name, address, and related information

in the subscriber and call records obtained by an administrative

subpoena.

    We note that the search warrant did not require the

provider to produce contact information, nor does the warrant

return indicate that any such information was obtained.    To the

extent the provider produced contact information, such as an

address book or contact list, in response to the search warrant,

the judge properly suppressed that information.     The affidavit

failed to establish a nexus between the crime and the

defendant's contact information.   To the extent the order can be

understood as suppressing subscriber information or call

records, which were first obtained by an administrative

subpoena, there was no basis for suppression.     See Augustine I,

467 Mass. at 243-244 & n.27 (no constitutionally protected

privacy interest in telephone billing records and call details).

    Conclusion.   We reverse the order allowing the defendant's

motion to suppress with respect to CSLI and to the extent that

the order suppressed subscriber information or call records.

The order is otherwise affirmed.

                                    So ordered.
