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12-P-1292                                             Appeals Court

                COMMONWEALTH    vs.   PETER CHAMBERLIN.


                             No. 12-P-1292.

      Bristol.         September 9, 2014. - December 5, 2014.

            Present:    Kantrowitz, Grainger, & Hanlon, JJ.


Cellular Telephone. Subpoena. Practice, Criminal, Motion to
     suppress, Subpoena, Warrant. Grand Jury. Search and
     Seizure, Warrant, Plain view. Due Process of Law.
     Evidence, Voice identification. Identification.



     Indictments found and returned in the Superior Court
Department on November 21, 2007.

     Pretrial motions to suppress evidence were heard by D.
Lloyd Macdonald, J., and the cases were tried before Robert J.
Kane, J.


     Merritt Schnipper for the defendant.
     Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.


    GRAINGER, J.       A jury of the Superior Court found the

defendant guilty of armed robbery while masked, G. L. 265, § 17,

kidnapping for purposes of extortion, G. L. c. 265, § 26, and

armed assault with intent to murder, G. L. c. 265, § 18(b).      The
                                                                     2


convictions were based on the armed invasion of a real estate

agency following telephone conversations between the defendant

and the agency's owner during which the defendant made an

evening appointment for the ostensible purpose of discussing one

or more properties of interest to him.    The defendant appeals,

asserting numerous procedural and evidentiary errors that we

consider in turn, referring to the undisputed factual background

as necessary to inform our discussion.

    1.    Production of telephone records.   The victim told the

police that although the defendant was masked, his voice was

recognizable as belonging to an individual who identified

himself as "Marco" during several telephone calls that

culminated in an evening appointment at the victim's office for

the time of the robbery.    The victim reported that the defendant

spoke repeatedly during the robbery, making threats to the

victim and referring to the victim's wife.    In the course of

investigating the robbery, Fall River police Detective Lawrence

Ferreira examined the victim's phone, retrieving a voicemail

message from "Marco."   After obtaining call records from the

victim's cellular telephone carrier, Detective Ferreira linked

the defendant to the only number on the call list that the

victim did not recognize.   Ferreira then contacted the carrier,

T-Mobile, and requested call records associated with that

number.   Ferreira informed the T-Mobile law enforcement
                                                                      3


relations officer, Ronald Witt, that the defendant's phone was

being used to contact the victim's family and that the "suspect

has threatened the victim's family with bodily harm."1

     The defendant's phone records were produced by T-Mobile

voluntarily and without the issuance of an administrative

subpoena, G. L. c. 271, § 17B, although T-Mobile accompanied the

production with a request for a subpoena within forty-eight

hours.    The record indicates that the assistant district

attorney in charge of the case sent a grand jury subpoena to

Witt the day following T-Mobile's production; that subpoena was

not in evidence and is not in the record.

     a.    General Laws c. 271, § 17B.   The defendant asserts that

the phone records produced by T-Mobile were obtained in

violation of G. L. c. 271, § 17B, and that this violation

warrants suppression of those records.    Neither party contends

that the defendant has a constitutional expectation of privacy

in his phone records.    Indeed, the defendant could not make such

a claim.   See Commonwealth v. Augustine, 467 Mass. 230, 244




     1
       Witt characterized his understanding of the case as
"murder suspect, threat to family," and testified that this
understanding was based on "what the police would have told me."
Detective Ferreira denied describing the case as one involving
murder. The inconsistency does not affect our analysis.
                                                                    4


(2014).2   Therefore, the question before us is one of a statutory

or procedural, not constitutional, violation.

     First, we conclude that an administrative subpoena pursuant

to G. L. c. 271, § 17B, was not required in this case.    This

issue appears to be one of first impression.    While the Supreme

Judicial Court and this court have addressed the use of the

§ 17B procedure, neither court has addressed whether a § 17B

subpoena is required to obtain phone records in all instances.

The defendant's reliance on Commonwealth v. Vinnie, 428 Mass.

161, cert. denied, 525 U.S. 1007 (1998), and Commonwealth v.

Feodoroff, 43 Mass. App. Ct. 725 (1997), is unavailing on this

question, as neither case suggests that § 17B is the exclusive

procedure by which the Commonwealth may obtain phone records.3

We first look to the language of the statute itself to determine

whether a § 17B subpoena is the exclusive means by which to

obtain phone records.   Commonwealth v. Boe, 456 Mass. 337, 347

(2010).


     2
       The judge also found that both the police and T-Mobile
followed the carrier's procedures in good faith and that
consequently, also as a factual matter, there was a very limited
expectation of privacy in these records that revealed only
numbers contacted by the defendant's phone (contents of
conversations are not at issue here).
     3
       Feodoroff holds that an officer of the court, and not a
police official, may issue a § 17B subpoena, 43 Mass. App. Ct.
at 727-728; Vinnie provides that suppression is an appropriate
remedy for a violation of § 17B, 428 Mass. at 178.
                                                                    5


     The language of § 17B4 is permissive, not mandatory, and is

entirely silent with respect to the voluntary production of

documents by a third-party phone company.    The Supreme Judicial

Court has recognized that, while many mechanisms exist to obtain

documents through judicial process, documents can also be

obtained by law enforcement personnel through informal,

extrajudicial process for investigative purposes.    See

Commonwealth v. Odgren, 455 Mass. 171, 186 n.26 (2009), citing

Commonwealth v. Mitchell, 444 Mass. 786, 791-792 n.12 (2005).

Nothing in the language of § 17B changes that reality.     While

§ 17B may be the only available mechanism in certain

circumstances, neither statute nor case law renders it the

exclusive method by which to obtain third-party records.

     b.   Stored Communications Act.   Moreover, we discern no

provision of the Federal Stored Communications Act (the act), 18

     4
       General Laws c. 271, § 17B, as in effect in September,
2007, see St. 1966, c. 352, reads, in pertinent part:

          "Whenever the attorney general or a district attorney
     has reasonable grounds for belief that the service of a
     common carrier . . . is being or may be used for an
     unlawful purpose he may, acting within his jurisdiction,
     demand all the records in the possession of such common
     carrier relating to any such service. Such common carrier
     shall forthwith deliver to the attorney general or district
     attorney all the records so demanded." (Emphasis
     supplied.)

     Section 17B was subsequently amended in 2008. See St.
2008, c. 205, § 3. That revised version is not applicable here;
the differences are not material to our analysis.
                                                                   6


U.S.C. §§ 2701 et seq. (2006), that compels a different

conclusion.   The act "directs how governmental entities may

obtain communication records from third-party providers of

electronic communication services."   Commonwealth v. Augustine,

467 Mass. at 235.   The section of the act at issue here is

§ 2702, entitled "Voluntary disclosure of customer

communications or records" (emphasis added).   We are not aware

of any reported cases in Massachusetts which interpret § 2702 of

the act,5 and the act's plain language contemplates the voluntary

disclosure of records in certain circumstances.     One such

circumstance, relevant here, is when the custodian believes in

good faith, that there are exigent circumstances.     18 U.S.C.

§ 2702(c)(4) (2006).6

     The motion judge found that a § 17B subpoena was not

required because there was no demand for the records; they were

voluntarily produced to Detective Ferreira after what amounted

to no more than an inquiry to T-Mobile.   We accept the motion

judge's findings of fact absent clear error.   See Commonwealth

v. Watson, 36 Mass. App. Ct. 252, 257 (1994), citing

     5
       The only reported Massachusetts cases discussing the act
interpret § 2703, which governs compelled disclosure of phone
records. See Commonwealth v. Augustine, 467 Mass. 230 (2014).
See also Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810,
818-819 (2013).
     6
       Congress has also decreed that suppression is not a remedy
for violation of the act absent a constitutional violation. 18
U.S.C. §§ 2707, 2708 (2006).
                                                                   7


Commonwealth v. Harmon, 410 Mass. 425, 428-429 (1991).   Finding

no error, we conclude for purposes of our analysis that T-Mobile

produced the records voluntarily after inquiry by the Fall River

police.

     While, as stated, the Commonwealth was not required to use

a § 17B administrative subpoena, the voluntary disclosure of

phone records here was only proper under Federal law if there

were exigent circumstances.   18 U.S.C. § 2702(c)(4) (2006).    The

motion judge found that exigent circumstances did exist at the

time T-Mobile produced the records.   That factual determination

is again reviewed under an abuse of discretion standard and,

again, we find none.   In doing so, we refer particularly to the

violent nature of the crime and the perceived ongoing threat to

the victim and his family.7   The denial of the motion to suppress

was proper.




     7
       During the robbery the defendant repeatedly told the
victim, "I know where you live." The defendant ascribes
significance to the fact that in the delivery of this threat the
robber recited an incorrect address, leading the victim to
reply, "Sir, you have the wrong guy." We do not agree that the
police were required to rely on this mistake and therefore
required to conclude that the defendant's threats were not
serious, especially in light of the robber having shot the
victim point blank in the head, having instructed an accomplice
to "plug" the victim some more, and the subsequent anonymous
calls to the victim's actual residence. It is undisputed that
the robbery was undertaken in a very violent manner including
the attempt to murder the victim in cold blood while he was
bound and on the floor.
                                                                          8


    c.    Grand jury subpoena.    Finally, while we conclude the

Commonwealth was not required to use a § 17B administrative

subpoena, we agree with the defendant that the Commonwealth's

use of a grand jury subpoena was procedurally improper.       The

grand jury subpoena issued here was issued at the request of the

phone company after the records had already been produced to the

police.   The records could not have been intended to be produced

at a grand jury, as none had been convened at the time.       This is

a statutory or ethical violation, not a constitutional one.         See

Commonwealth v. Mitchell, 444 Mass. at 798 n.17.       Suppression is

not the appropriate remedy absent a showing of prejudice to the

defendant.   See Commonwealth v. Smallwood, 379 Mass. 878, 887-

888 (1980); Commonwealth v. Cote, 407 Mass. 827, 832-833 (1990).

We note that the defendant appropriately conceded at oral

argument that there was no prejudice flowing from the improper

use of the grand jury subpoena.

    2.    "No-knock" search warrant:    reappraisal.     The defendant

asserts that evidence seized in his residence should have been

suppressed because the police failed to conduct a threshold

reappraisal to ensure the necessity of the no-knock entry

authorized by the search warrant.     We do not agree.

    The defendant does not argue that the inclusion of the no-

knock provision in the warrant was itself improper, and such an

argument would be unavailing under the circumstances we have
                                                                      9


already recited relating to the violent nature of the crime and

the threats uttered during its commission.     See note 7, supra.

Rather, the argument made to the motion judge and pressed on

appeal is that a reappraisal is required in all cases, and that

the failure to engage in one renders the search invalid.     Our

case law does not apply such a categorical rule.     Commonwealth

v. Scalise, 387 Mass. 413 (1982), on which the defendant relies,

is a case in point:     "We recognize that the facts existing at

the time the warrant is issued may no longer exist at the time

the warrant is executed.     In those instances, the officers would

be required to knock and announce their purpose."     (Emphasis

added.)   Id. at 421.    Reappraisal is not a formalistic exercise

mandated in all circumstances -- it is a recognition that the

provisions of a warrant are conditioned on the continued

existence of the sworn facts justifying the abrogation of

constitutional rights until the warrant is executed.8

     Circumstances commonly justifying a failure to knock were

present here.   In the context of the all-important consideration

of officer safety, we refer again to the violent nature of the

crime and the demonstrated disregard for life shown by the

     8
       In applying a flexible approach, the Supreme Judicial
Court has also recognized the converse -- that an unannounced
entry may be justified by circumstances at the time of
execution, even though the warrant itself does not contain a no-
knock provision. Commonwealth v. Jimenez, 438 Mass. 213, 217
(2002), citing Commonwealth v. Scalise, 387 Mass. at 422 n.8.
                                                                    10


suspect.9   With reference to preservation of evidence, the

articles enumerated in the warrant included gloves, checks, zip

ties, and ammunition casings; such items are in many cases small

and capable of concealment or destruction.    These factors,

clearly, remained unchanged from the time of issuance until

execution of the warrant.

     The defendant argues that because the police were spotted

by the defendant's wife prior to entry, and then engaged in

conversation with her, a reappraisal was mandated.    The loss of

the element of surprise, however, is a factor that justifies a

prompt unannounced entry, rather than the contrary.

Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 836-837 (1989),

and cases cited therein.    As several police witnesses pointed

out in testimony at the suppression hearing, the entry team was

faced with the possibility that the defendant had been alerted

by his wife to the police presence, and that she was seeking to

delay their access at his behest.10




     9
       The defendant characterizes the motion judge as having
adopted a per se rule that a threshold reappraisal is not
possible when the suspect of a violent crime remains at large.
We find no such holding, explicit or implied, in the record.
     10
       In the sensible words of one of the officers, challenged
to explain why being seen by the defendant's wife, who then
promised to open the door for the police, was not a reason to
reappraise: "Well, we get lied to a lot, yeah."
                                                                  11


     The defendant also asserts a violation of his due process

rights because the motion judge did not allow him to compel the

testimony of three additional members of the police entry team

after three officers had already testified.   The defendant has

failed to specify the relevant issue that the additional

testimony would cover, or to make a proffer of the evidence he

was anticipating.11   The Commonwealth stipulated to the affidavit

provided by the defendant's wife for purposes of determining

whether additional witnesses were needed and whether the warrant

was properly executed.   The motion judge was well within his

discretion in ruling that additional witnesses would not be

called.   See Commonwealth v. Carroll, 439 Mass. 547, 552-553

(2003) (trial judge's discretion to exclude cumulative

testimony).

     3.   Plain view exception to the warrant requirement:

inadvertence.   During their search of the defendant's home the

police seized the defendant's computer containing, among other

evidence, Fall River real estate listings that had been sent by

electronic mail message (e-mail) to the defendant after he

feigned interest in purchasing property so that he could gain

     11
       We do not consider the defendant's reference to a
discrepancy on the subject of any possible prior interaction
between any of the officers and the defendant's wife to raise a
relevant issue. Regardless of whether or not the officers had
had previous contact with the defendant's wife, they were not
required to accept assurances from her that she was alone or
that she would provide prompt access.
                                                                     12


entrance to the victim's office.     They also discovered printouts

of such listings.   Neither the computer nor the hard copy

listings were identified in the search warrant and they are not

mentioned in the supporting affidavit.     The defendant argues

that the police had probable cause to anticipate the presence of

both the computer and the real estate listings and that,

therefore, the requirement of inadvertence for seizure of items

in plain view mandates their suppression.

    We do not agree with the defendant that the police had

probable cause to anticipate finding printed real estate

listings at his residence.   They were informed by the victim

that e-mail messages containing requested real estate listings

had been sent to the defendant.     The evidence on which the

police investigation was based led to the conclusion that the

defendant had no genuine interest in Fall River real estate.        He

requested the listings merely as a pretense to gain access to

the office he planned to rob.     The police had no reason to

anticipate that the defendant would print and retain listings of

seven different properties in which he had no interest, and that

these would be kept at his residence.

    "The anticipation of finding some additional contraband or

other evidence of criminality is not the same as having probable

cause to believe that specific items of evidence will be present

at the location to be searched.     Such generalized anticipation
                                                                    13


undoubtedly exists in conjunction with almost every search, and

to conclude that its presence negates inadvertence would stretch

that requirement beyond its intent and limited purpose."

Commonwealth v. Balicki, 436 Mass. 1, 14 (2002).

    Under these circumstances we do not need to address the

seizure of the computer.   Even were we to agree with the

defendant's argument, we would be hard pressed to deem the

resulting evidence prejudicial.   The real estate listings found

on the computer are duplicative of the printouts, which were in

plain sight and not subject to the inadvertence exception.     To

the extent the defendant claims that other evidence was seized

in error, we discern no prejudice in light of the overall

strength of the Commonwealth's case involving, as it did,

eyewitness voice and facial identification, phone records, real

estate listings, and the defendant's incriminating statements.

    4.   Voice identifications.   Finally, the defendant

complains that the trial judge improperly admitted the voice

identification of the defendant by two witnesses.    The gravamen

of this assertion is that the procedures used were one-on-one

rather than including the defendant's voice among others, that

the police officers specifically mentioned the defendant to the

witnesses before the identifications, and that the

identifications were not performed until several years after the

witnesses had last spoken with the defendant.
                                                                   14


     This complaint overlooks the long association between the

witnesses and the defendant,12 a factor that renders these

alleged defects nonsuggestive.   Suggestiveness is typically an

issue when the police are seeking an identification from a

witness who has had a single, perhaps brief, exposure to a

suspect.   In such a case a prompt opportunity to make an

identification under neutral conditions provides assurance that

the result is not unduly influenced by extraneous factors such

as a deteriorated memory and a perception of undisclosed

additional police knowledge.   See, e.g., Commonwealth v.

Leaster, 395 Mass. 96, 102-104 (1985) (discussing factors

creating suggestiveness in a show-up identification).     In

reviewing a claim that a voice identification was unduly

suggestive we look to a totality of the circumstances.      See

Commonwealth v. Saunders, 50 Mass. App. Ct. 865, 874 (2001),

S.C., 435 Mass. 691 (2002) (discussing circumstances of voice

identification in the context of five-prong test set forth in

Commonwealth v. Marini, 375 Mass. 510, 516-517 [1978]).      See

generally Mass. G. Evid. § 901(b)(5) (2014).

     "In the discretion of a trial judge, a voice identification

may be considered by a jury as long as the witness expresses


     12
       Each witness had known the defendant for about twenty
years; one was a good friend, and the other had a child with
him.
                                                                   15


some basic familiarity with the voice he or she claims to

identify."    Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522,

527 (1988).   We conclude under these circumstances that the

judge did not abuse his discretion.13

                                     Judgments affirmed.




13
  Even were we to assign error, we would be hard pressed to deem
the voice identification testimony prejudicial in light of the
overall strength of the Commonwealth's case.
