Commonwealth v. Caruso (Lawyers Weekly No. 11-019-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1096 Appeals Court COMMONWEALTH vs. STEVEN CARUSO. No. 12‑P‑1096. Middlesex. November 15, 2013. ‑ February 28, 2014. Present: Kafker, Milkey, & Hines, JJ. Practice, Criminal, New trial. Evidence, Computer simulation. Complaint received and sworn to in the Malden Division of the District Court Department on November 5, 1998. A motion for a new trial, filed on March 18, 2008, was heard by Gregory C. Flynn, J., and motions for expert funds were also heard by him. David A.F. Lewis for the defendant. Jessica Langsam, Assistant District Attorney, for the Commonwealth. MILKEY, J. In 1999, following a jury trial in District Court, the defendant was convicted of two counts of malicious destruction of property (a car), G. L. c. 266, § 127. In 2001, this court affirmed those convictions in an unpublished memorandum and order. Commonwealth v. Caruso, 52 Mass. App. Ct. 1101 (2001). Seven years later, after the defendant was convicted of murdering the owner of the damaged car, he filed a motion for new trial. He argued that newly discovered evidence definitively proved that he could not have been the person who damaged the car. That motion was heard and denied by the trial judge, who issued a forty-one page decision that explained his reasoning in thoughtful detail. For the reasons set forth below, we agree with the judge that the material on which the defendant relies does not constitute “newly discovered evidence.” We also agree that this “evidence” — while of some superficial force — does not cast any “real doubt on the justice of the conviction.” Commonwealth v. Grace, 397 Mass. 303, 305 (1986). We therefore affirm. Background. We summarize the key trial evidence as follows. The victim was Sandra Berfield, who lived in Everett. On four separate occasions during the fall of 1998, someone caused serious damage to her car while it was parked on the street next to her home. In the first two incidents, all four of Berfield’s tires were slashed; in the second two, battery acid was poured into her gas tank. The dispute at trial was over the identity of the perpetrator. Berfield worked at a Bickford’s restaurant in Medford. The defendant patronized the restaurant with pronounced regularity, eating there once or twice virtually every day. Beginning in 1996, the defendant insisted on […]
Filepp v. Boston Gas Company, Inc. (Lawyers Weekly No. 11-017-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑115 Appeals Court TOM FILEPP vs. BOSTON GAS COMPANY, INC. No. 13‑P‑115. February 27, 2014. Notice, Action alleging injury caused by defect in public way, Timeliness. Way, Public: defect. Negligence, Municipality. Municipal Corporations, Liability for tort. Gas Company. Public Utilities. The plaintiff suffered injuries after falling from his bicycle while riding on Harvard Street in Brookline on May 31, 2005. The plaintiff’s amended complaint alleges that his fall was caused by a two-inch wide “rut” in the pavement, created by Boston Gas Company, Inc. (Boston Gas) incident to work it performed on gas lines running under the street. Boston Gas moved for summary judgment based on the plaintiff’s failure to send notice of his claim to Boston Gas within thirty days of his injury.[1] See G. L. c. 84, §§ 15 & 18.[2] A judge of the Superior Court allowed Boston Gas’s motion, and entered a judgment of dismissal. This appeal followed. The case is controlled in material respects by Wolf v. Boston Water and Sewer Commn., 408 Mass. 490 (1990) (Wolf), and Ram v. Charlton, 409 Mass. 481, cert. denied, 502 U.S. 822 (1991) (Ram). As the court observed in Ram, the statutory entitlement to notice as a precondition to any action seeking recovery of damages extends to both private and governmental entities. See id. at 490. See Hurlburt v. Great Barrington, 300 Mass. 524, 526 (1938) (fire district). And Wolf illustrates that, contrary to the plaintiff’s argument, the repair obligation held by a “person by law obliged to repair” a way need not be either continuous in time or coextensive with the entirety of the way; it is enough that the obligation extends (as it does in the present case) to repairs necessary to restore a way to its condition before it was disturbed by the work giving rise to the alleged defect. See Wolf, supra at 493. The plaintiff places misplaced reliance on Jones v. Boston, 188 Mass. 53 (1905), Seltzer v. Amesbury & S. Gas Co., 188 Mass. 242 (1905), and D’Urso v. Methuen, 338 Mass. 73 (1958). Jones v. Boston is distinguishable on its facts, as the contractor in that case was obliged by contract, rather than by law, to repair the way at issue. See 188 Mass. at 58. D’Urso v. Methuen “premised liability on […]
Commonwealth v. Arce (Lawyers Weekly No. 10-031-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11451 COMMONWEALTH vs. JOSE ARMANDO ARCE. Middlesex. November 5, 2013. ‑ February 27, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Complaint received and sworn to in the Lowell Division of the District Court Department on August 16, 2010. The case was heard by Lynne C. Rooney, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Lois J. Martin for the defendant. Laura Kirshenbaum, Assistant District Attorney, for the Commonwealth. CORDY, J. On August 3, 2006, the defendant pleaded guilty to charges of assault and battery, indecent assault and battery on a child under fourteen years of age, and accosting a person of the opposite sex, and was required to register as a level three sex offender. On July 20, 2010, he was arrested and subsequently charged with violating G. L. c. 6, § 178H (a) (1) (failing to register, failing to verify registration information, failing to provide notice of change of address, or providing false information). At the defendant’s jury-waived trial, the Commonwealth alleged that the defendant, who registered on July 12, 2010, as homeless, failed to notify police that he had begun living in an apartment with his aunt, Alma Carrasquillo (Alma), either as his home or as his secondary residence, and that he knowingly provided false information when he registered as homeless eight days before being arrested. On May 3, 2011, the defendant was found guilty and sentenced to one year in a house of correction and to community parole supervision for life (CPSL). On appeal, the defendant argues that the Commonwealth did not meet its burden of proving either that he provided false information as to his homeless status on July 12, 2010, or that his aunt’s apartment had become either his home or secondary residence, such that he had an obligation to notify the police of a change of address. He further argues that the imposition of CPSL violates his constitutional right to be free from cruel and unusual punishments under the Eighth Amendment to the United States Constitution and art. 26 of the Declaration of Rights of the Massachusetts Constitution. Because we conclude that the evidence was insufficient, we vacate […]
Commonwealth v. Hart (Lawyers Weekly No. 10-029-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11344 COMMONWEALTH vs. MICHAEL E. HART. Bristol. November 7, 2013. ‑ February 26, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Resisting Arrest. Practice, Criminal, Plea. Complaint received and sworn to in the New Bedford Division of the District Court Department on October 30, 2008. A motion for a new trial, filed on July 9, 2010, was heard by Thomas Barrett, J., and a motion for reconsideration was considered by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Laura B. Banwarth for the defendant. William R. Connolly, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In February of 2009, the defendant pleaded guilty in the District Court to complaints charging him with disorderly conduct, G. L. c. 272, § 53, and resisting arrest, G. L. c. 268, § 32B. The following year, the defendant filed a motion for a new trial seeking to vacate his plea to the charge of resisting arrest; he argued in part that there was no factual basis for the crime. The same District Court judge who had taken the defendant’s guilty plea heard the motion and thereafter denied it; the defendant appealed. A divided panel of the Appeals Court affirmed the denial of the defendant’s motion, see Commonwealth v. Hart, 82 Mass. App. Ct. 448 (2012), and we granted the defendant’s application for further appellate review. Essentially for the reasons set forth in the opinion of the dissenting Justices in the Appeals Court, see id. at 454 (Mills, J., dissenting, with whom Rubin, J., joined), we reverse. Background. 1. The incident. On October 30, 2008, the defendant arrived at his apartment on Hemlock Street in New Bedford to find the police there, investigating a potential domestic disturbance. The defendant became excited, began yelling and swearing, and made numerous attempts to enter the apartment, despite being told by the officers to calm down and wait outside. Because the defendant continued to enter and interfere with the investigation, the officers escorted him outside, where a crowd had gathered, and told him that if he did not cease his actions, he would be subject to arrest. The defendant yelled, “Fuck that bullshit, you better not touch me motherfuckers, I don’t like the fucking police,” […]
Commonwealth v. Martin (Lawyers Weekly No. 10-030-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10836 COMMONWEALTH vs. CLEVELAND MARTIN. Suffolk. October 11, 2013. ‑ February 26, 2014. Present: Ireland, C.J., Cordy, Gants, Duffly, & Lenk, JJ. Homicide. Felony‑Murder Rule. Robbery. Taxicab. Joint Enterprise. Constitutional Law, Admissions and confessions, Voluntariness of statement, Search and seizure, Assistance of counsel, Result of illegal interrogation. Due Process of Law, Assistance of counsel. Search and Seizure, Expectation of privacy. Evidence, Joint venturer, Admissions and confessions, Cross‑examination, Impeachment of credibility, Prior misconduct, Relevancy and materiality, Result of illegal interrogation. Practice, Criminal, Admissions and confessions, Voluntariness of statement, Motion to suppress, Assistance of counsel, Capital case. Cellular Telephone. Telephone. Witness, Cross‑examination, Impeachment. Indictments found and returned in the Superior Court Department on December 21, 2005. Pretrial motions to suppress evidence were heard by Margaret R. Hinkle, J., and Elizabeth B. Donovan, J.; the cases were tried before Regina L. Quinlan, J., and a motion for a new trial, filed on February 3, 2012, was heard by her. Philip G. Cormier for the defendant. Cailin M. Campbell, Assistant District Attorney (Patrick Haggan, Assistant District Attorney, with her) for the Commonwealth. LENK, J. In December, 2008, a Superior Court jury convicted the defendant of murder in the first degree on the theory of felony-murder, with armed robbery as the predicate felony. The defendant’s convictions stem from the stabbing death of Heureur Previlon, a Brookline taxicab driver, whose body was found inside his vehicle in the early morning hours of August 25, 2005. The defendant and a codefendant, Jashawn Robinson, were indicted as joint venturers. Following the allowance of their motions to sever, they were tried separately and Robinson was acquitted. The matter is before us on the defendant’s direct appeal, which was consolidated with his appeal from the denial of his motion for a new trial. The defendant claims that (1) it was error to have denied his pretrial motions to suppress statements made to police on three occasions as well as certain physical evidence gathered as a result of those statements; (2) the judge improperly precluded him from cross-examining Laura Pizarro, the defendant’s former girl friend and a key Commonwealth witness, as to certain false statements she had made accusing a relative of sexual impropriety, which the defendant contends were relevant to show Pizarro’s motive to lie; (3) the […]
Commonwealth v. Bynoe (Lawyers Weekly No. 11-016-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑319 Appeals Court COMMONWEALTH vs. KEITH BYNOE. No. 12‑P‑319. Suffolk. February 7, 2013. ‑ February 26, 2014. Present: Wolohojian, Hanlon, & Agnes, JJ. Practice, Criminal, Probation, Revocation of probation, Sentence. Due Process of Law, Probation revocation. District Court Rules for Probation Violation Proceedings. Indictments found and returned in the Superior Court Department on December 18, 2008. A proceeding for revocation of probation was heard by D. Lloyd Macdonald, J. Michael B. Roitman for the defendant. Sarah H. Montgomery, Assistant District Attorney (Julie S. Higgins, Assistant District Attorney, with her) for the Commonwealth. AGNES, J. The defendant, Keith Bynoe, appeals from the revocation of his probation and imposition of a sentence of imprisonment to State prison. The principal issue he raises on appeal concerns the time within which a probationer must complete a treatment program, ordered as a condition of probation, when a date for completion is not otherwise specified. For the reasons that follow, we hold that in such a case the treatment program must be completed within a reasonably prompt period of time as determined initially by the probation department. As a result, we affirm. Background. The defendant pleaded guilty in Superior Court in 2010 to five charges including kidnapping, assault by means of a dangerous weapon, negligent operation of a motor vehicle, assault and battery, and malicious destruction of property. The judge sentenced him to a State prison term of two years to two years and one day on the assault charge, to a concurrent three month house of correction incarceration on the negligent operation charge (deemed served), and to concurrent terms of probation for five years on the remaining charges, to be served from and after his release from incarceration. The defendant’s terms of probation commenced in August, 2010, when he was released from State prison. Approximately four months later, on January 4, 2011, the defendant appeared before a magistrate in the Superior Court in response to a “Notice of Surrender and Hearing(s) For Alleged Violation(s) of Probation” (notice of violation). In open court and in the defendant’s presence, the probation officer informed the magistrate that the defendant was in violation of the conditions of his probation because he had failed to report to probation every fourteen days, to pay the required probation service fee, and to […]
Doe, Sex Offender Registry Board No. 151564 v. Sex Offender Registry Board (Lawyers Weekly No. 11-015-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1981 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 151564 vs. SEX OFFENDER REGISTRY BOARD. No. 12‑P‑1981. Suffolk. January 8, 2014. ‑ February 24, 2014. Present: Kafker, Grainger, & Meade, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing, Evidence. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Superior Court Department on August 24, 2010. The case was heard by Paul E. Troy, J., on a motion for judgment on the pleadings. Andrew S. Crouch for the plaintiff. Jennifer K. Zalnasky for the defendant. KAFKER, J. In Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612 (2010) (Doe No. 151564), the Supreme Judicial Court remanded this case to the Sex Offender Registry Board (SORB) to consider numerous scientific and statistical studies regarding the effect of the plaintiff’s (Doe) age on his dangerousness and likelihood to reoffend and whether Doe was entitled to expert witness funds. On remand, a SORB hearing examiner denied Doe’s request for funds for an expert and engaged in her own unguided review of the scientific and statistical studies. The hearing examiner reaffirmed SORB’s earlier decision to classify Doe as a level three sex offender, and on Doe’s appeal to the Superior Court pursuant to G. L. c. 30A, see G. L. c. 6, § 178M, a judge affirmed that decision. We conclude that Doe was entitled to funds for an expert to inform both his own presentation and the hearing examiner’s classification review. We therefore vacate the judgment of the Superior Court and remand the case to SORB for further proceedings consistent with this opinion. Background. Doe was born on March 26, 1946. In June, 2001, in Maine, he sexually abused a six year old child who was not a family member. Doe pleaded guilty in Maine to one count of unlawful sexual conduct in violation of Me. Rev. Stat. Ann. tit. 17A, § 255(1)(C). In Doe No. 151564, 456 Mass. at 613, the Supreme Judicial Court concluded this conviction was a “like violation” when compared to the Massachusetts crime of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13H, and therefore required Doe to register as a sex offender in Massachusetts, where he was then living. In the original classification […]
Commonwealth v. Wadlington (Lawyers Weekly No. 10-024-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10863 COMMONWEALTH vs. VINCENT WADLINGTON. Bristol. October 11, 2013. ‑ February 14, 2014. Present: Ireland, C.J., Cordy, Gants, Duffly, & Lenk, JJ. Homicide. Practice, Criminal, Capital case, Voluntariness of statement, Admissions and confessions, Disclosure of evidence, Instructions to jury, Argument by prosecutor. Evidence, Admissions and confessions, Voluntariness of statement, Fingerprints, Expert opinion, Scientific test. Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights, Search and seizure. Search and Seizure, Affidavit. Armed Home Invasion. Armed Assault with Intent to Rob. Indictments found and returned in the Superior Court Department on March 3, 2006. Pretrial motions to suppress evidence were heard by Robert J. Kane, J., and Frances A. McIntyre, J.; the cases were tried before Richard T. Moses, J., and a motion for a new trial, filed on October 4, 2011, was considered by him. Amy M. Belger for the defendant. Eva M. Zelnick, Assistant District Attorney, for the Commonwealth. GANTS, J. A Superior Court jury convicted the defendant of the murder in the first degree of Rudolph Santos (victim) on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, in violation of G. L. c. 265, § 1. The defendant raises eight issues on appeal, claiming that (1) the motion judge erred in not suppressing all of the defendant’s statements made during a prearrest interview at the house of correction where the defendant was being held; (2) the prosecutor failed timely to provide exculpatory evidence regarding a recanted statement made by William Fields, who was a joint venturer and key Commonwealth witness; (3) the fruits of a search of the defendant’s girl friend’s home should have been suppressed where the affidavit in support of the search warrant included information provided by Fields that Fields later recanted; (4) it was reversible error to allow the Commonwealth’s fingerprint expert to testify that a latent fingerprint was made by the defendant, and to bolster her credibility by testifying that she “would never want to put an innocent person in jail”; (5) the trial judge erred in denying the defendant’s motion for a required finding of not guilty as to the armed robbery charge where the Commonwealth failed to present sufficient evidence that property was taken; (6) the defendant’s conviction of armed robbery must be vacated […]
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Commonwealth v. Joyner (Lawyers Weekly No. 10-025-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11349 COMMONWEALTH vs. JUSTIN JOYNER. Plymouth. October 8, 2013. ‑ February 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Robbery. Evidence, Fingerprints, Expert opinion, Scientific test. Practice, Criminal, Argument by prosecutor, Probation, Revocation of probation. Due Process of Law, Probation revocation. Indictment found and returned in the Superior Court Department on March 2, 2010. The case was tried before Merita A. Hopkins, J. Indictments found and returned in the Superior Court Department on May 2, 2003, and May 23, 2003. A proceeding for revocation of probation was heard by Merita A. Hopkins, J. The Supreme Judicial Court granted an application for direct appellate review. Emily A. Cardy, Committee for Public Counsel Services, for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. DUFFLY, J. A latent fingerprint left by a masked intruder who had demanded the contents of the cash register at a Brockton gasoline station convenience store led to the defendant’s arrest for armed robbery. The defendant was thereafter convicted by a Superior Court jury of armed robbery, G. L. c. 265, § 17. The defendant appeals from his conviction and from the revocation of his probation which resulted therefrom. The defendant’s principal claim on appeal concerns the fingerprint evidence, which was the primary evidence tying him to the crime. He argues that the Commonwealth was required to, but did not, present evidence of the standard used to match fingerprints and the statistical significance of a fingerprint match in accurately identifying an individual and, therefore, that the fingerprint evidence was insufficient to prove beyond a reasonable doubt that the defendant was the robber. The defendant argues also that his conviction must be overturned because there was no evidence of force, a required element of armed robbery,[1] and because the prosecutor misstated the evidence in her closing argument, creating a substantial risk of a miscarriage of justice. Additionally, the defendant contends that his due process rights were violated when the trial judge, who conducted a probation revocation hearing after the trial, prohibited him from presenting evidence on his own behalf. We affirm the conviction and conclude also that there was no error in the revocation of the defendant’s probation. Background. The evidence would have warranted the jury in finding […]
Commonwealth v. Augustine (Lawyers Weekly No. 10-026-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11482 COMMONWEALTH vs. SHABAZZ AUGUSTINE. Suffolk. October 10, 2013. ‑ February 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Cellular Telephone. Constitutional Law, Search and seizure, Probable cause, State action, Retroactivity of judicial holding. Search and Seizure, Expectation of privacy, Probable cause, Warrant. Probable Cause. Retroactivity of Judicial Holding. Evidence, Business record. Practice, Criminal, Warrant, Retroactivity of judicial holding. Indictment found and returned in the Superior Court Department on July 29, 2011. A pretrial motion to suppress evidence was heard by Janet L. Sanders, J. An application for leave to file an interlocutory appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Matthew R. Segal (Jessie J. Rossman with him) for the defendant. Hanni M. Fakhoury, of California, & Kit Walsh, for Electronic Frontier Foundation, amicus curiae, submitted a brief. Matthew J. Tokson, of the District of Columbia, Elizabeth A. Lunt, Alex G. Philipson, Louis W. Tompros, Kevin S. Prussia, & Thaila K. Sundaresan, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. BOTSFORD, J. The central question we address in this appeal is whether, consistent with the Massachusetts Constitution, the Commonwealth may obtain from a cellular telephone service provider (cellular service provider) historical cell site location information (CSLI)[1] for a particular cellular telephone without first obtaining a search warrant supported by probable cause. The Commonwealth appeals pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), from an order of a judge in the Superior Court granting the defendant’s motion to suppress evidence of CSLI associated with the cellular telephone he was using. The judge concluded that, although the Commonwealth had obtained the CSLI from the defendant’s cellular service provider pursuant to a valid Superior Court order issued under 18 U.S.C. § 2703(d) (2006) of the Federal Stored Communications Act (SCA), the Commonwealth’s access to the CSLI constituted a search within the meaning of art. 14 of the Massachusetts Declaration of Rights,[2] and therefore a search warrant based on probable cause was required. On appeal, the Commonwealth principally asserts that no search in the constitutional sense occurred because CSLI is a business record of the […]