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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]