Commonwealth v. Augustine (Lawyers Weekly No. 10-141-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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, 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 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 […]
Commonwealth v. Augustine (Lawyers Weekly No. 10-042-15)
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. – March 11, 2015. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Appeal, Interlocutory appeal, Attorney’s fees, Request for fees and costs. Indictment found and returned in the Superior Court Department on July 29, 2011. Following review reported in 467 Mass. 230 (2014), a motion to award appellate attorney’s fees was filed in this court on February 28, 2014. The case was submitted on briefs. Matthew R. Segal & Jessie J. Rossman for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Jane Larmon White, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae. BOTSFORD, J. Following our decision in Commonwealth v. Augustine, 467 Mass. 230 (2014), the defendant filed a request for attorney’s fees pursuant to Mass. R. Crim. P. 15 (d), as appearing in 422 Mass. 1501 (1996). He seeks fees for counsel he engaged to replace his court-appointed counsel for the defense of the Commonwealth’s interlocutory appeal in the case. It is undisputed that the defendant is indigent and that his new counsel agreed not to charge him any fees for their services. For reasons explained below, we hold that the defendant is not entitled to the payment of fees under rule 15 (d) in these circumstances. Procedural background. The defendant was indicted in 2011 for the murder of Julaine Jules. In November, 2012, he moved to suppress “cell site location information” that the Commonwealth had obtained, without a warrant, from his cellular telephone service provider. Augustine, 467 Mass. at 234. A judge of the Superior Court allowed his motion and suppressed the challenged evidence. Id. The Commonwealth thereafter applied for leave to appeal from the adverse ruling in accordance with Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).[1] Id. A single justice of the county court granted the application and directed the appeal to proceed in this court. Id. We held that, under art. 14 of the Massachusetts Declaration of Rights, the defendant had a reasonable expectation of privacy in his cell site location information, and therefore that a warrant was required for the Commonwealth to obtain the information. Id. at 255. We remanded the case to the Superior Court to give […]
Commonwealth v. Augustine (Lawyers Weekly No. 10-042-15)
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. – March 11, 2015. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Appeal, Interlocutory appeal, Attorney’s fees, Request for fees and costs. Indictment found and returned in the Superior Court Department on July 29, 2011. Following review reported in 467 Mass. 230 (2014), a motion to award appellate attorney’s fees was filed in this court on February 28, 2014. The case was submitted on briefs. Matthew R. Segal & Jessie J. Rossman for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Jane Larmon White, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae. BOTSFORD, J. Following our decision in Commonwealth v. Augustine, 467 Mass. 230 (2014), the defendant filed a request for attorney’s fees pursuant to Mass. R. Crim. P. 15 (d), as appearing in 422 Mass. 1501 (1996). He seeks fees for counsel he engaged to replace his court-appointed counsel for the defense of the Commonwealth’s interlocutory appeal in the case. It is undisputed that the defendant is indigent and that his new counsel agreed not to charge him any fees for their services. For reasons explained below, we hold that the defendant is not entitled to the payment of fees under rule 15 (d) in these circumstances. Procedural background. The defendant was indicted in 2011 for the murder of Julaine Jules. In November, 2012, he moved to suppress “cell site location information” that the Commonwealth had obtained, without a warrant, from his cellular telephone service provider. Augustine, 467 Mass. at 234. A judge of the Superior Court allowed his motion and suppressed the challenged evidence. Id. The Commonwealth thereafter applied for leave to appeal from the adverse ruling in accordance with Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).[1] Id. A single justice of the county court granted the application and directed the appeal to proceed in this court. Id. We held that, under art. 14 of the Massachusetts Declaration of Rights, the defendant had a reasonable expectation of privacy in his cell site location information, and therefore that a warrant was required for the Commonwealth to obtain the information. Id. at 255. We remanded the case to the Superior Court to give […]
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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 […]