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SJC-11803

                COMMONWEALTH   vs.   SHABAZZ AUGUSTINE.



            Suffolk.    April 9, 2015. - August 18, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


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



     Indictment found and returned in the Supreme Judicial Court
for the county of Suffolk on July 29, 2011.

     After review by this court, 467 Mass. 230 (2014), a
pretrial motion to suppress evidence was heard by Peter B.
Krupp, J.

     An application for leave to file an interlocutory appeal
was allowed by Spina, J. in the Supreme Judicial Court for the
county of Suffolk.


     Cailin M. Campbell, Assistant District Attorney (Mark T.
Lee, Assistant District Attorney, with her) for the
Commonwealth.
     Jessie J. Rossman (Matthew R. Segal with her) for the
defendant.
     Matthew J. Tokson, of the District of Columbia, Elizabeth
A. Lunt, Kevin S. Prussia, Kelly Halford, & Chauncey B. Wood,
                                                                     2


for Massachusetts Association of Criminal Defense Lawyers,
amicus curiae, submitted a brief.


     BOTSFORD, J.   In Commonwealth v. Augustine, 467 Mass. 230,

232 (2014) (Augustine I), S.C., 470 Mass. 837 (2015), this court

held that the defendant had a reasonable expectation of privacy

in the historical cell site location information 1 (CSLI) relating

to his cellular telephone, and that therefore, the warrant

requirement of art. 14 of the Massachusetts Declaration of

Rights applied to that information.    We remanded the case to the

Superior Court to determine whether, in the particular

circumstances of this case, the Commonwealth is able to meet

that warrant requirement through a demonstration of probable

cause.   Id.   For the reasons to be discussed, we conclude that




     1
       "The term 'cell site location information' (CSLI) refers
to a cellular telephone service record or records that contain
'information identifying the base station towers and sectors
that receive transmissions from a [cellular] telephone.'. . .
'Historical' CSLI refers to CSLI relating to and generated by
cellular telephone use that has 'already occurred at the time of
the order authorizing the disclosure of such data'" (quotations
and citation omitted). Commonwealth v. Augustine, 467 Mass.
230, 231 n.1 (2014), S.C., 470 Mass. 837 (2015) (Augustine I).
In essence, historical CSLI provides a record of the base
stations, also referred to as cell sites or cell towers, to
which a particular cellular telephone connected during any calls
made or received within the period governed by the order. See
id. at 237-238. The data can be used to approximate the
location of a cellular telephone handset that was active at a
particular time. See id. at 238. For a more detailed
discussion of this technology, see id. at 237-239.
                                                                      3


the Commonwealth has done so with respect to the defendant's

CSLI records for the period from August 24 to August 26, 2004. 2

     1.   Background.   a.   Procedural history.   We summarize the

procedural background of this case that led to our decision in

Augustine I, and to the present issue.     On September 22, 2004,

in connection with an investigation into the death of Julaine

Jules, the Commonwealth filed in the Superior Court an

application for an order to obtain from the defendant's cellular

service provider certain records, including CSLI, for the

fourteen-day period beginning August 24, 2004, the last day that

Jules was seen alive.    Augustine I, 467 Mass. at 232-233.   A

Superior Court judge allowed the request pursuant to 18 U.S.C.

§ 2703(d) (2006) of the Federal Stored Communications Act, which

permits a court of competent jurisdiction to issue an order

compelling a cellular telephone company to disclose certain

customer records to a governmental entity upon a showing of

"specific and articulable facts . . . that there are reasonable

grounds to believe" that the records sought are "relevant and

material to an ongoing criminal investigation."     See Augustine

I, supra at 235-236.    Based on that order, the Commonwealth

appears to have received at least sixty-four pages of CSLI


     2
       We acknowledge the amicus brief submitted on behalf of the
defendant by the Massachusetts Association of Criminal Defense
Lawyers.
                                                                           4


records relating to the defendant's cellular telephone.           Id. at

234. 3

         On July 29, 2011, the defendant was indicted for Jules's

murder.       Id.    On November 15, 2012, he filed a motion to

suppress evidence of his CSLI, in which he argued the

Commonwealth had obtained in violation of his rights under the

Fourth Amendment to the United States Constitution and under

art. 14.       Id.    A Superior Court judge allowed the motion,

deciding in substance that, under art. 14, obtaining the

defendant's CLSI constituted a search in the constitutional

sense.       Id.    In Augustine I, we agreed, and concluded that such

a search would be permissible under art. 14 only upon a showing

of probable cause.         Id. at 231-232.   We vacated the allowance of

the motion to suppress and remanded the case to the Superior

Court for consideration whether the affidavit that the

Commonwealth had originally submitted in support of the order

pursuant to 18 U.S.C. § 2703(d) (§ 2703[d] order) demonstrated

probable cause.         Augustine I, 467 Mass. at 232, 255-256.

         A different Superior Court judge (motion judge) held a

hearing on the issue whether the affidavit met the probable

cause standard required under Augustine I.         The motion judge

         3
       The Commonwealth also sought and obtained an order
pursuant to 18 U.S.C. § 2703(d) (2006) for Julaine Jules's CSLI
records for the same time period. This CSLI is not at issue
here.
                                                                        5


ruled that the standard had not been met, and again allowed the

defendant's motion to suppress evidence of his CSLI.      The

Commonwealth sought interlocutory review of the order pursuant

to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501

(1996), and G. L. c. 278, § 28E, which a single justice allowed

and ordered to proceed before this court.

     b.      Facts.   The sworn affidavit in support of the § 2703(d)

order was submitted by State police Trooper Mary McCauley and

recited the following facts.      In August, 2004, Jules had two boy

friends, the defendant and Marlon Barnett.      Jules lived with her

family in Malden; the defendant lived in the Dorchester section

of Boston; and Barnett lived in Fort Lauderdale, Florida.

During the weekend of August 21 and 22, Jules told the defendant

that she was too busy to see him, but in fact, she spent the

weekend with Barnett, who had flown to Massachusetts from

Florida. 4    The defendant did not know about Jules's relationship

with Barnett until shortly before Jules disappeared.

     On August 24, 2004, Jules left Malden and went to her job

at a company located on Congress Street in Boston.      Her shift

that day was from 3 P.M. to 11 P.M., but she left her work

station at 7:10 P.M. with only her cellular telephone and the

keys to her motor vehicle, and never returned.      Her wallet,


     4
         Marlon Barnett flew back to Florida on August 23, 2004.
                                                                    6


driver's license, and other personal items remained at her work

station.   Approximately five hours later, at 12:20 A.M. on

August 25, police discovered Jules's vehicle engulfed in flames

in a parking lot near a pharmacy in Revere.   A key was in the

ignition, and an accelerant had been used to set the fire.

Jules's father reported her missing on August 25.

     Melissa Mitchell, the defendant's cousin, reported to

police investigators that at approximately 5:15 P.M. on

August 24, the defendant telephoned her and asked her to

telephone Jules at work, and to say that the defendant was sick

and needed Jules to come visit him at his home right away.

Mitchell said she thought she was setting up a romantic evening

for the defendant and Jules.   The next day, Mitchell telephoned

the defendant and asked him how things had gone with Jules the

evening before.   The defendant said that Jules had been a little

upset, but that the evening went well.   However, the following

day, the defendant telephoned Mitchell and told her that Jules

had been reported missing, and that in fact he had not seen

Jules on the night of August 24.   Mitchell asked the defendant

over the telephone and later in person why he had said earlier

that he saw Jules.   The defendant said he did not know.

     On August 28, the defendant admitted in an interview with

police investigators to having asked Mitchell to contact Jules

on August 24, but he claimed that Jules never came to his home
                                                                   7


and that he had not seen her since August 19.   When asked

whether he would appear on any surveillance video recorded near

Jules's work on the night that she disappeared, the defendant

"became very upset and started to cry and moan."   He eventually

requested a lawyer and the interview stopped.

     On September 8, 2004, Mitchell played for McCauley a

voicemail message that Mitchell had received from the defendant.

In the message, the defendant said, "I'm prepared to take all

the consequences right now . . . nothing is really happening

. . . my emotions got the better of me, I mean really, really

got the better of me . . . I'm going through some stuff . . . so

far the coast is clear . . . I'm just waiting . . . that was

just nature taking [its] course." 5

     On September 19, a body wrapped in plastic bags was

discovered floating in the Charles River.   The body was

decomposing and appeared to have been in the water for some

time, but an analysis of dental records confirmed that it was

Jules.   Her body was found with a chain around it that had two

weights attached, and electrical cord around her ankles.     The

medical examiner found no apparent cause of death, although as



     5
       Trooper Mary McCauley's affidavit does not indicate when
Melissa Mitchell received the voicemail message from the
defendant, but the reasonable inference is that the message was
left sometime after August 24, 2004.
                                                                     8


of the date of McCauley's affidavit (September 22, 2004),

further examination and toxicology analysis remained pending.

     In the course of her investigation, McCauley reviewed the

records of incoming and outgoing calls for Jules's and the

defendant's cellular telephones. 6,7   Jules's records indicated a

brief incoming call from the defendant's home telephone on

August 24, 2004, at 5:36 P.M., while Jules presumably was still

at work.   At 9:31 P.M., there was a call from her cellular

telephone to a pharmacy in Revere, although the pharmacy was

closed at that time.   Then, between 11:39 P.M. on August 24 and

8:59 P.M. on August 25, there were a number of calls from

Jules's cellular telephone to her work and cellular telephone

voicemail messaging systems.   At 10:50 P.M. on August 25, there

was a call between Jules's cellular telephone and one of

Barnett's telephone numbers that lasted seventeen minutes.

Barnett told an investigator that the only thing out of the

ordinary about this telephone call was that Jules was

whispering, and that Jules told him she was doing so because she


     6
       The defendant's cellular telephone belonged to Keisha
Smith. Although the telephone was in Smith's name, the
defendant paid the bills for this telephone and used it
exclusively.
     7
       The record does not indicate by what means McCauley was
able to obtain Jules's and the defendant's telephone records,
but we assume, as we did in Augustine I, 467 Mass. at 233 n.4,
that the records were subpoenaed pursuant to G. L. c. 271,
§ 17B.
                                                                    9


was at home in Malden and was trying to avoid disturbing her

brother, who was sleeping.   However, Jules was not at home at

this time, because her father already had reported her missing.

Another call went out from Jules's cellular telephone to

Barnett's cellular telephone at 9:35 A.M. on August 26, but at

that point, Barnett was on a flight to Haiti. 8

     The defendant's cellular telephone records reflected a

series of calls on August 24 between 4:52 P.M. and 5:07 P.M. to

Mitchell's work and cellular telephone numbers.   At 6:11 P.M.,

there was a brief call from the defendant's cellular telephone

to Barnett's home telephone number, although Barnett told police

that he did not know the defendant.   Approximately one-half hour

later, there was a brief call to Jules's work telephone number,

and at 9:03 P.M., there was an incoming call from Mitchell's

home telephone.   Approximately four hours later, on August 25 at

12:52 A.M., about one-half hour after Jules's car was discovered

burning, the defendant telephoned Keisha Smith, another girl

friend of his, with whom the defendant had lengthy conversations

almost every night.   This particular call lasted over ninety

minutes, while, according to what Smith told McCauley, the

defendant took various forms of public transportation home to

Dorchester.   Despite the late hour, the defendant told Smith he

     8
       The telephone call to Barnett on the morning of August 26,
2004, was the last outgoing call from Jules's cellular telephone
mentioned in McCauley's affidavit.
                                                                    10


was out doing errands for his mother.    At one point, Smith heard

a bus driver tell the defendant that he would take the defendant

to "Sullivan Square," but that the bus had to go to "Salem"

first.    From Sullivan Square, the defendant took a bus to the

Haymarket area of Boston.    From there, he took a taxicab to the

JFK Massachusetts Bay Transportation Authority (MBTA) station,

and then he walked home.

     From August 25 to at least September 2, the defendant's

cellular telephone continued to make and receive calls.

McCauley's affidavit averred that the defendant's CSLI during

this time period continued to be relevant to the ongoing

criminal investigation because it would be helpful to the

investigation to know where the defendant was between the times

when Jules disappeared and when her body was found in the

Charles River.

     2.   Discussion.   In Augustine I, we determined that in

order for the defendant's motion to suppress his historical CSLI

evidence to be denied on remand, the affidavit submitted in

support of the § 2703(d) order would have to demonstrate

probable cause to believe "that a particularly described offense

has been, is being, or is about to be committed, and that the

[CSLI being sought] will produce evidence of such offense or

will aid in the apprehension of a person who the applicant has

probable cause to believe has committed, is committing, or is
                                                                    11


about to commit such offense."   Augustine I, 467 Mass. at 256,

quoting Commonwealth v. Connolly, 454 Mass. 808, 825 (2009).       We

applied the requirement of probable cause to the defendant's

historical CSLI because, at least where the information at issue

covered a two-week period, analysis of this information was akin

to tracking the defendant's movements for an extensive time

period, and constituted a search under art. 14. 9   Augustine I,

supra at 254-255.

     The motion judge concluded, and we agree, that the first

prong of the test quoted in Augustine I -- whether the affidavit

demonstrated probable cause to believe that an offense has been,

is being, or is about to be committed, see id. at 256 -- is not

reasonably in dispute.   Jules's motor vehicle appears to have


     9
       In Augustine I, we focused on whether obtaining the
defendant's CSLI constituted a search under art. 14, rather than
under the Fourth Amendment, because a majority of the Federal
courts that had examined this issue had concluded that an
individual has no reasonable expectation of privacy in his or
her CSLI, and therefore the warrant requirement of the Fourth
Amendment does not apply. See Augustine I, 467 Mass. at 243-244
& nn.25, 26. The defendant nevertheless argues in his brief
that even if McCauley's affidavit demonstrated probable cause to
believe that the CSLI in this case will produce evidence of the
crimes under investigation, the CSLI must be suppressed because
it was obtained in violation of the Fourth Amendment. This
argument fails to address the Federal cases that have come to
the opposite conclusion, which we noted in Augustine I, supra.
Because the defendant does not contend that there has been a
substantial change in the Federal courts' analysis of this
issue, nor does it appear from our research that he could have
done so, the defendant's argument under the Fourth Amendment
fails, and we do not discuss it further.
                                                                     12


been deliberately set on fire in violation of G. L. c. 266, § 5

(arson of a motor vehicle), and the circumstances surrounding

her disappearance and the discovery of her body strongly suggest

that she was murdered.    We also agree with the motion judge that

there was no suggestion in McCauley's affidavit that the police

were seeking information about the defendant's past whereabouts,

as reflected in his CSLI, so that the police could apprehend him

in connection with either or both of these two offenses.     Thus,

the only issue remaining is whether the affidavit supplies

probable cause for belief that the defendant's CSLI "will

produce evidence" of one or both offenses under investigation.

See Augustine, supra.    On this, we disagree with the motion

judge's determination that the affidavit does not provide the

requisite probable cause, and conclude that the defendant's CSLI

likely will produce evidence of these offenses. 10

     In this case, where the Commonwealth possesses the

defendant's CSLI and seeks to use it to determine his past

locations during a particular time period, whether there is

     10
        The defendant argues that we should afford deference to
the motion judge's conclusion that there was no probable cause.
Although it is true that "a reviewing court gives considerable
deference to [a] magistrate's determination of probable cause,"
Commonwealth v. Anthony, 451 Mass. 59, 69 (2008), as the
defendant acknowledges, here, there has been no such
determination. Moreover, "[b]ecause 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).
                                                                   13


probable cause to believe that disclosure of these past

locations will produce evidence of the two offenses at issue

turns on essentially the same inquiry that governs other search

warrants:   namely, whether there is "evidence that establishes a

'substantial basis' . . . to believe 'that the items sought are

related to the criminal activity under investigation, and that

they reasonably may be expected to be located in the place to be

searched at the time the search warrant issues.'"   Commonwealth

v. Banville, 457 Mass. 530, 538 (2010), quoting Commonwealth v.

Upton, 394 Mass. 363, 370 (1985), and Commonwealth v. Cinelli,

389 Mass. 197, 213 (1983), cert. denied, 464 U.S. 860 (1983),

respectively.   This test requires a higher degree of confidence

that the CSLI will yield evidence of criminal activity than that

which is necessary for an order under § 2703(d), which requires

only that the government show "specific and articulable facts"

that the CSLI is "relevant and material to an ongoing criminal

investigation."   See Augustine I, 467 Mass. at 236 (standard

required for § 2703[d] order is less than probable cause).

Although "definitive proof of criminal activity" is not

necessary in order to demonstrate probable cause, see

Commonwealth v. Anthony, 451 Mass. 59, 69 (2008), "[s]trong

reason to suspect is not adequate."   Commonwealth v. Foster, 471

Mass. 236, 242 (2015), quoting Upton, supra at 370.   The inquiry

"begins and ends with 'the four corners of the affidavit.'"
                                                                    14


Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting

Commonwealth v. Villela, 39 Mass. App. Ct. 426, 428 (1995).    The

affidavit is to be "considered as a whole and in a commonsense

and realistic fashion; inferences drawn from the affidavit need

only be reasonable, not required."    Connolly, 454 Mass. at 813.

See Banville, supra at 538 ("[a]pplications for search warrants

should be read with a practical, nontechnical conception of

probable cause").

     Given the particular facts of this case as presented in the

affidavit, we agree with the defendant that his CSLI is related

to the two offenses under investigation only to the extent that

there is reason to believe that the defendant committed one or

both offenses. 11   First, with respect to the arson investigation,

at the time that the affidavit issued, the only apparent utility

in knowing the defendant's whereabouts was to determine whether

the defendant was near the parking lot in Revere where Jules's


     11
       The Commonwealth argues that the language used in
Augustine I does not clearly require a showing of probable cause
that the subject of an order to produce CSLI appear to have
committed the crimes under investigation, see 467 Mass. at 256,
nor is it a requirement of search warrants generally that the
person to whom a search warrant is directed must be suspected of
a crime. See Matter of a Grand Jury Investigation, 427 Mass.
221, 225 (1998), cert. denied, 525 U.S. 873 (1998). We do not
dispute these points, but, for the reasons discussed infra, we
have concluded that based on the facts in this case, there is no
way to demonstrate probable cause to obtain the defendant's CSLI
unless he appears to be implicated in one or both of the crimes
at issue here.
                                                                    15


motor vehicle was set ablaze around the time that the fire was

discovered, which would suggest the defendant's involvement in

that offense.   Second, considering the murder, and given that

the Commonwealth had Jules's CSLI for the relevant time period,

see note 3, supra, the defendant's CSLI had the potential to

reveal, or at least suggest, whether the defendant was with

Jules at any point from the time she left work until the time

that the calls from her cellular telephone ceased.    If the

defendant was with her, based on the information provided in

McCauley's affidavit, a reasonable inference exists that the

defendant may have been the last person to have seen Jules

alive, which would be relevant to determining whether he was

responsible for her death. 12   Cf. Commonwealth v. Gentile, 437

Mass. 569, 573-574 (2002) (facts that victim was last heard from

while she was in defendant's truck, and that defendant was last

person to have seen her, contributed to finding of probable

cause to believe evidence related to victim's kidnapping and

death would be found in truck).    Because the facts described in

the affidavit suggest no other apparent uses for the defendant's

     12
       The Commonwealth suggests that knowing the defendant's
location shortly before Jules's death is relevant to the
investigation generally because it would allow the Commonwealth
to infer her location during the time that the defendant and
Jules appear to have been together. However, the defendant's
CLSI is not as indicative of Jules's location as her own CSLI
is, and the Commonwealth already has her CSLI for the relevant
time period.
                                                                   16


CSLI, in the context of the investigation as it existed when the

Commonwealth sought the § 2703(d) order, the probable cause

inquiry is properly focused on whether there is reason to

believe the defendant committed the arson, the murder, or both.

     We begin our analysis with the arson, drawing all

reasonable inferences and keeping in mind the affidavit as a

whole.   First, it is reasonable to conclude that Jules left her

place of work in her vehicle on August 24, 2004, or at least

that she intended to take her vehicle, because she took the keys

to it with her.   It also is reasonable to conclude, given the

absence of any evidence suggesting otherwise, that Jules did not

set fire to her own vehicle, and thus one can infer that whoever

burned it probably obtained it from her, by force or with her

permission.   The defendant appears to have had the opportunity

to do this.   The defendant admitted to having asked Mitchell to

lie to Jules and tell her that he was sick so that Jules would

visit him at his home that evening.   Although the defendant

later denied seeing Jules that night, he first told Mitchell

that he did see Jules, and he offered no explanation as to why

he would have said that he saw her when in fact he did not.

These facts provide a reasonable basis to believe that the

defendant did see Jules the night of August 24, 2004, suggesting

the possibility that he was the one who took her vehicle from

her and set it on fire.
                                                                     17


     The defendant's presence somewhere north of Boston at 12:52

A.M. on August 25, approximately one-half hour after police

found Jules's burning motor vehicle, lends support to this

theory.   Although it is unclear precisely where the defendant

was when he called Smith (a fact we presume the Commonwealth

hopes to discover through the defendant's CSLI) the defendant

appears to have boarded a bus that was heading to the Sullivan

Square MBTA station via Salem. 13    Neither of these locations is

particularly close to Revere, where Jules's vehicle was

discovered, but all three locations are north of Boston,

suggesting that the defendant could have driven Jules's vehicle

to Revere, set it ablaze, and then taken public transportation

back to his home in Dorchester. 14   In addition, the defendant



     13
       The affidavit does not specify that the bus was going to
the Sullivan Square station of the Massachusetts Bay
Transportation Authority (MBTA), but simply indicates that it
was going to "Sullivan Square." However, because the defendant
transferred to a bus to Haymarket upon reaching Sullivan Square,
it is reasonable to infer that the Sullivan Square to which the
bus was headed was the MBTA station.
     14
       The affidavit does not set out the geographic locations
of the city of Salem, the Sullivan Square MBTA station, and
Revere, but we can and do take judicial notice of these
locations. See Federal Nat'l Mtge. Ass'n v. Therrien, 42 Mass.
App. Ct. 523, 525 (1997) (facts that are verifiably true, such
as geographic locations, are susceptible to judicial notice).
We also take judicial notice of the fact that there is a Salem
Street in Revere, and although the affidavit contains
insufficient information to determine whether the bus that the
defendant was on was traveling to the city of Salem or to Salem
Street in Revere, we note that the latter is possible and would
                                                                    18


told Smith that he was out doing errands for his mother at this

time, a fact that seems implausible given the early morning

hour.

     The remainder of the affidavit offers significant support

for the conclusion that the defendant committed the arson, and

implicates him in the murder as well.   The defendant's recent

discovery that Jules had another boy friend could have motivated

the defendant to harm Jules.   Cf. Commonwealth v. Taylor, 426

Mass. 189, 194-195 (1997) (possible motive for crime contributed

to probable cause justifying search warrant).   Moreover, the

defendant behaved suspiciously multiple times in the days

following Jules's disappearance.   In addition to changing his

story about whether he had seen Jules on August 24 in successive

conversations with Mitchell, the defendant cried and moaned in

response to the question whether he would appear on surveillance

video near Jules's workplace on the night she disappeared.    The

defendant also left Mitchell what reasonably could be

interpreted as a highly incriminating voicemail message.    These

facts do not reveal exactly what the defendant did on the night

of August 24, 2004, but they reasonably suggest the defendant's

involvement in the harm that befell Jules.   Cf. Commonwealth v.

Kaupp, 453 Mass. 102, 113 (2009), quoting Commonwealth v.


lend even greater support to the theory that the defendant was
in Revere around the time of the fire.
                                                                    19


Riggins, 366 Mass. 81, 88 (1974) ("peculiar behavior and evasive

replies" to police, when coupled with other facts, support

finding of probable cause to conduct search).

     Because Jules disappeared on the same night that her motor

vehicle was discovered burning and does not appear to have been

seen alive thereafter, it is also reasonable to conclude that

the person responsible for the arson was also responsible for

the murder. 15   Accordingly, the basis provided by the affidavit

for concluding that probable cause to believe the defendant

committed the arson in turn provides a basis for concluding that

he was involved in committing the murder.    In sum, considering

the affidavit as a whole, there is a substantial basis, and thus

probable cause, to conclude that the defendant committed both

crimes. 16


     15
       It is true that calls continued to go out from Jules's
cellular telephone until the morning of August 26, 2004,
including a seventeen-minute call to Barnett. This telephone
call raised a number of questions, including where Jules was
when she made the call, and whether she herself made the call at
all; the affidavit does not answer them. Although one possible
inference is that Jules was alive and using her telephone during
this period, it is also possible that someone else had her
telephone and, through whispering, impersonated her voice during
the call with Barnett. Either way, given the circumstances
surrounding Jules's death, it remains reasonable to infer that
the murder and the arson were related events.
     16
       As an example of a case where there was insufficient
evidence to support probable cause for a warrant, the defendant
relies on Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), in
which a single suspicious statement (that the defendant "could
not guarantee that there were not any child pornographic images
                                                                  20


     The final question is whether the Commonwealth has

demonstrated probable cause for obtaining the defendant's CSLI

records for the two-week period beginning August 24, 2004. 17   As

noted previously, the defendant's location from the evening of

August 24 until the last call went out from Jules's cellular

telephone will likely produce evidence of whether the defendant


stored in electronic format within his computer"), along with
limited circumstantial evidence, did not provide a substantial
basis to believe that child pornography would be found in the
defendant's private files. In Kaupp, however, the combined
evidence in support of the search warrant was significantly
weaker than in this case. There, the court noted the evidence
suggesting that child pornography would be found in the
defendant's private files was limited to (1) the single
suspicious statement, (2) the fact that a copyrighted,
nonpornographic movie appeared to have been shared between the
defendant's computer and another computer on the same network,
and (3) the fact that child pornography had been observed in the
other computer's files that were available for sharing; thus,
the Commonwealth's argument that there was probable cause for
the search hinged upon the single statement and upon a suspect
assumption that because the defendant appeared to have shared
the movie with the other computer, he also shared the child
pornography. Id. at 111-113. In comparison, here, the
substantial basis to believe that the defendant committed the
two crimes is based on multiple facts that suggest that the
defendant had both the opportunity and the motive to harm Jules,
as well as on a number of suspicious acts on the part of the
defendant, the timing and content of which suggest his
involvement in the crimes under investigation.
     17
       In Augustine I, the defendant represented that the CSLI
records at issue actually covered a period that was longer than
two weeks, although exactly how much longer was unclear. See
467 Mass. at 234 n.8. However, because the original order
directing the defendant's cellular telephone service provider to
produce the defendant's CSLI to police encompassed only those
records for the fourteen-day period beginning August 24, 2004,
the Commonwealth may only use those records that were covered
under the order.
                                                                   21


was in Revere around the time of the arson as well as whether he

was the last person to have been with Jules.    In addition,

because Jules's body was not discovered in the Charles River

until September 19, and had been in the water for some time --

although exactly how long was unclear -- it is reasonable to

infer that whoever committed the murder may have deposited her

body in the river at some point on or before September 6 (the

last day covered under the order to provide CSLI).    Because we

have concluded that there is probable cause to believe that the

defendant was that person, his locations during that time period

are likely to produce evidence of where and when the body was

placed in the river.

     3.   Conclusion.   For the reasons discussed, the order

allowing the defendant's motion to suppress is reversed, and the

case is remanded to the Superior Court for further proceedings

consistent with this opinion.

                                     So ordered.
