Commonwealth v. Estabrook (and nine companion cases) (Lawyers Weekly No. 10-167-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11833 COMMONWEALTH vs. JASON ESTABROOK (and nine companion cases[1]). Middlesex. May 7, 2015. – September 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Cellular Telephone. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Expectation of privacy, Probable cause, Warrant, Affidavit, Fruits of illegal search. Probable Cause. Evidence, Result of illegal search. Practice, Criminal, Warrant, Affidavit. Indictments found and returned in the Superior Court Department on December 6, 2012. Pretrial motions to suppress evidence were heard by Kathe M. Tuttman, J. Applications for leave to file interlocutory appeals were allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by her. George E. Murphy, Jr., for Jason Estabrook. Daniel Beck (Susan M. Costa with him) for Adam Bradley. Jamie Michael Charles, Assistant District Attorney (David Marc Solet, Assistant District Attorney, with him) for the Commonwealth. Andrew Sellars, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. BOTSFORD, J. In this case, we consider again a search of historical cellular site location information (CSLI).[2] See Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass. 837 (2015). The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley’s cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant. The defendants also sought suppression of statements they each made to police in 2012, following the receipt of Bradley’s CSLI. A judge of the Superior Court denied the motions after an evidentiary hearing; the defendants filed these interlocutory appeals. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). Returning to an issue briefly touched on in Augustine, 467 Mass. at 255 n.37, we conclude that a defendant’s reasonable expectation of privacy protected under art. 14 of the Massachusetts Declaration of Rights is not violated where the Commonwealth requests up to six hours of historical CSLI without obtaining a search warrant. In this case, however, […]
Goudreault v. Nine (Lawyers Weekly No. 11-041-15)
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 14-P-359 Appeals Court BARBARA GOUDREAULT vs. ERIK NINE. No. 14-P-359. Essex. December 8, 2014. – April 30, 2015. Present: Grainger, Agnes, & Sullivan, JJ. Medical Malpractice, Tribunal, Expert opinion. Negligence, Medical malpractice, Doctor, Expert opinion, Causation. Doctor. Civil action commenced in the Superior Court Department on October 30, 2012. A motion to dismiss was heard by Richard E. Welch, III, J. Barrie E. Duchesneau for the plaintiff. Allyson N. Hammerstedt for the defendant. AGNES, J. The plaintiff, Barbara Goudreault, filed a medical malpractice suit alleging that on February 7, 2011, the defendant radiologist Erik Nine, M.D., failed to properly interpret her mammogram results and recommend necessary follow-up tests, delaying her breast cancer diagnosis and worsening her prognosis. In accordance with G. L. c. 231, § 60B, the matter was referred to a medical malpractice tribunal, with the only issue being that of causation. After a hearing, the tribunal concluded that there was insufficient evidence “to raise a legitimate question of liability appropriate for judicial inquiry.” G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5.[1] For the reasons that follow, we reverse. Background. We first set out the evidence before the tribunal, in the light most favorable to Goudreault. See Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010). a. Course of diagnosis and treatment. On July 26, 2010, Goudreault went to Anna Jaques Hospital for a routine bilateral screening mammogram, which was found to be abnormal. The reporting doctor (not the defendant) concluded, relevantly here, that “[i]n the left lower outer breast there [was] a [one-centimeter] ovoid well-defined nodule which [was] new compared to the prior studies,” adjacent to which was, in the left upper outer breast, a “small cluster [of] microcalcifications . . . associated with a small well defined density.” The doctor recommended a bilateral breast ultrasound, spot compression mammograms and true lateral mammograms of both breasts, and magnification mammograms of the left upper outer breast. The doctor’s report assessed Goudreault in “category 0″ — “need[s] additional imaging evaluation.” Complying with the recommendation, four days later, on July 30, 2010, Goudreault returned for the diagnostic mammograms and ultrasound. The same doctor (again, not the defendant) reported the findings, which included that “[t]he microcalcifications in the left upper outer breast are two in number and are both rounded. This is not worrisome appearance but they […]