*1 The defendant, Jerron Perry (“Perry”), moved to suppress essentially all of the evidence against him, arguing that the evidence is the fruit of two unconstitutional searches of cell phone company tower records and related phone information, searches that are often called cell tower dumps.[1] Both searches were conducted pursuant to search warrants. Perry argues that the warrant applications lacked probable cause and that the warrants, which covered extensive cell phone information unconnected to any suspect, were overbroad and unparticularized “general warrants.” The Court heard oral argument on February 18, 2021. For the reasons stated below, the defendant's motion is DENIED.

Between September 22, 2018 and October 31, 2018, five armed robberies and one attempted armed robbery resulting in a fatal shooting occurred in the Dorchester and Mattapan sections of Boston and in Canton. All six incidents had similarities, including the perpetrator's height, size and clothing, and certain circumstances of the offenses. Federal and state investigators conducted an extensive investigation including obtaining the two search warrants that are challenged in this motion.

On October 26, 2018, after several of the six incidents had occurred, a federal agent sought and obtained a search warrant from a federal magistrate judge pursuant to the federal Stored Communications Act, 18 U.S.C. § 2703. The warrant sought historical cell site location information (“CSLI”) and other cell phone information connected to four robberies[2] from AT&T Wireless, Sprint/Nextel, T-Mobile, and Verizon Wireless, four companies that have cell phone towers in the Greater Boston area. The historical CSLI consisted of the unique identifiers of those cell phones that had communicated with each company's tower that was closest to the scene of each crime, during 15-minute time periods spanning from shortly before to shortly after each incident. For each communication that had occurred during that time period, including those that began before or ended after that period, the warrant also sought source and destination telephone numbers; date, time, and duration of the communication; sector (face of the tower); and type of communication, e.g., text, phone call.

On January 30, 2019, after all six of the incidents had occurred, a Boston police detective sought and obtained a search warrant from a Superior Court judge pursuant to G.L.c. 276, §§ 1-7. This second warrant sought the same types of cell phone information from the same four companies, including historical CSLI from all cell phones that had communicated with each company's tower that was closest to the scene of each crime. The second warrant covered 40-minute time periods spanning shortly before to shortly after each incident.

*2 The affidavits supporting the warrant applications do not identify a suspect by name. Nor do they include any evidence that the perpetrator or perpetrators used a cell phone during the relevant time periods. Probable cause is based on the fact that (1) almost everyone has a cell phone and carries it with them; (2) most cell phones record one's whereabouts, even when not being actively used; (3) based on similarities between the offenses as set forth in the affidavits, it is likely that the same person committed all six crimes, possibly with one or more co-venturers; and (4) it is therefore likely that the same cell phone was in the vicinity of several or all of the six incidents.

The cell phone information obtained from the warrants included two phone numbers that police detectives and federal agents linked to the crimes. The first, telephone number 857-417-3393 (identified as “Target Device 1”), was a phone number that Perry had provided to police in January 2018 after a traffic accident. By the time the second warrant was obtained, Canton police had identified Perry as a possible suspect in the two robberies that had occurred in Canton, on September 27, 2018 and October 31, 2018. Target Device 1 had been in the vicinity of the October 6, 2018 attempted robbery and fatal shooting in Dorchester, and at the October 31, 2018 robbery in Canton, at the time of those incidents.

The cell phone records obtained from the two warrants revealed a phone call between Target Device 1 and telephone number 857-271-9234 (identified as “Target Device 2”) at the time of the attempted robbery and fatal shooting. The records further revealed that Target Device 2 had been in the vicinity of the October 6, 2018 attempted robbery and fatal shooting in Dorchester, the October 31, 2018 robbery in Canton, and the September 22, 2018 robbery in Mattapan, all at the time of those incidents.

Based on this information and additional investigation, police identified Perry and co-venturer Gregory Simmons as suspects in the robberies. Subsequent investigation by police and agents, including subsequent warrants, led to Perry's indictment on murder and other charges.

The Commonwealth argues that the absence of an affidavit from Perry is fatal under Rule 13(a)(2). The Court rejects this argument.

Rule 13(a)(2) requires that “an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached” to a pretrial motion. An affidavit from counsel can satisfy the rule. See Commonwealth v. Santosuosso, 23 Mass.App.Ct. 310, 313 (1986) (affidavit by counsel sufficient).

“[T]he purpose of the affidavit requirement ... is: (1) to give the judge considering the motion a statement of anticipated evidence, in reliable form, to meet the defendant's initial burden of establishing the facts necessary to support his motion ..., and (2) to provide the Commonwealth with fair notice of the specific facts relied on in support of the motion set forth in a form, i.e., under oath, which is not readily subject to change by the affiant.” Id. (internal citations omitted). Because this is a “four corners” challenge to search warrants, counsel's affidavit satisfies both purposes. See Commonwealth v. Mubdi, 456 Mass. 385, 389-90 (2010); Commonwealth v. Fudge, 20 Mass.App.Ct. 382, 386 (1985).

The Commonwealth argues that Perry does not have standing or a reasonable expectation of privacy to challenge the search. But the Supreme Judicial Court (“SJC”) has recognized that one has a reasonable expectation of privacy in one's cell phone location, see Commonwealth v. Augustine, 467 Mass. 230, 255 (2014), and has further stated that “[e]vidence may be suppressed as fruit of the poisonous tree even if it is found in a place where the defendant has no reasonable expectation of privacy.” Commonwealth v. Fredericq, 482 Mass. 70, 78 (2019). Moreover, the SJC has specifically held that suppression of subsequently-obtained evidence must be suppressed when that evidence was “based directly on the tainted CSLI.” Commonwealth v. Estabrook, 472 Mass. 852, 864 (2015). Therefore, the Court must decide whether police lawfully obtained the CSLI at issue in this case based on the two challenged warrants and the supporting affidavits.

*3 It appears that neither the SJC nor the Appeals Court has directly addressed the issue of CSLI obtained from cell tower dump or other “geofence” warrants. See, e.g., Cypher, Geofence Warrants, 30 Mass. Prac., Criminal Practice & Procedure § 5:166 (4th ed.) (March 2021 Update).[3] Moreover, the parties have cited no Superior Court case directly on point, and this Court is not aware of any such case.

The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that a warrant be based on probable cause. Commonwealth v. Morin, 478 Mass. 415, 425 (2017).[4] Probable cause requires law enforcement to “have 'a substantial basis for concluding that' the item searched or seized contains 'evidence connected to the crime' under investigation.” Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting Commonwealth v. Escalera, 462 Mass. 636, 642 (2012). It does not require a likelihood that evidence of a crime will be present:

Commonwealth v. Murphy, 95 Mass.App.Ct. 504, 509, review denied, 483 Mass. 1102 (2019), citing Texas v. Brown, 460 U.S. 730, 742 (1983) (probable cause “does not demand any showing” that belief that contraband is at location is “more likely true than false”); see also Hobbs, 482 at 544 (inferences drawn from affidavit need not be more likely true than not). This standard applies when, as in this case, the government seeks a warrant for historical CSLI.[5] Augustine, 467 Mass. at 255-56.

Implicit in the showing of probable cause in this context is the unlikelihood that someone not involved in the robberies and attempted robbery would happen to have been close to the scene of two or more crimes that occurred in Boston and Canton or different parts of Boston.[6] The Court credits statements in the supporting affidavits from experienced law enforcement officers that most people use cell phones and keep them on. Therefore, there was a “substantial basis,” see White, 475 Mass. at 588, to conclude that the historical CSLI obtained through these searches would identify one or more common denominator cell phone numbers, i.e., numbers for cell phones that were in the vicinity of two or more crimes that occurred in different areas.

*4 In sum, because as a means to investigate the robberies and other crimes there was a “substantial basis,” id., to conclude that the “CSLI sought will produce evidence of such offense[s] or will aid in the apprehension of a person who the applicant has probable cause to believe has committed such offense[s],” Augustine, 467 Mass. at 236 n. 15 (internal alteration and quotation omitted), the warrants were supported by probable cause.

Both art. 14 and the Fourth Amendment “were enacted, in large part, in response to the reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Commonwealth v. Mora, 485 Mass. 360, 370 (2020) (internal quotations omitted). A “general warrant” refers to a warrant providing law enforcement with broad authority to search and seize unspecified places or persons. See Carpenter v. United States, 138 S.Ct. 2206, 2213 (2018). A warrant must “particularly describe the items to be seized.” Massachusetts v. Sheppard, 468 U.S. 981, 987 (1984).

In Commonwealth v. McCarthy, 484 Mass. 493 (2020), the SJC addressed the concern over general warrants in the context of digital information:

Id. at 499. In Commonwealth v. Wilkerson, 486 Mass. 159 (2020), the SJC held that “where a warrant so lacks particularity or is so overbroad that it begins to resemble a general warrant, total suppression is required.” Id. at 169. Accordingly, courts must be wary when reviewing warrants for large amounts of digital data. See, e.g., id. (holding, as applied to CSLI, the “forty-eight hours requested, and the thirty-four hours obtained here, are not so overbroad on the facts of this case so as to be akin to a general warrant”); Commonwealth v. Gosselin, 486 Mass. 256, 263 (2020) (expressing concern against digital “rummaging”).

In assessing searches for digital information, courts must consider the surreptitious nature of the intrusion and the extent of the intrusion, measured in terms of duration and the amount and nature of the information obtained. See McCarthy, 484 Mass. at 499-500; Wilkerson, 486 Mass. at 169; Mora, 485 Mass. at 374-75. Moreover, the Fourth Amendment protects against the aggregation of limited surveillance activities that, in total, reveal a complex, intrusive picture of a suspect's life. See McCarthy, 484 Mass. at 502-04 (discussing “mosaic theory” of Fourth Amendment such that, at a certain point, limited surveillance can be aggregated to reveal a complex picture of an individual life); Carpenter, 138 S.Ct. at 2217-18 (similar).

The targeted and temporally-limited searches in this case (which effectively are one search for a very limited number of common denominators) are a far cry from those that offer an “intimate window into a person's life” that the Fourth Amendment and art. 14 protect in the digital age. See Carpenter, 138 S.Ct. at 2217; accord McCarthy, 484 Mass. at 503-04. Indeed, measured by the above-noted criteria, the challenged searches fall at the permissible end of a spectrum that ranges from targeted, relatively nonintrusive searches in public places to broad, intrusive, unconstitutional rummaging through a suspect's home or other private space. The Court has specifically considered five aspects of the warrants at issue in this motion.

*5 First, although the intrusion was surreptitious to anyone unaware of how CSLI is collected, it did not involve intruding into any non-public space. Moreover, most cell phone users are aware at least to some extent that their locations are conveyed to cell phone providers in order to receive cell phone service. See Commonwealth v. Almonor, 482 Mass. 35, 46 (2019).

Second, the nature of the information collected here was non-invasive, consisting of historical CSLI and phone numbers, not names or other personal identifying information, and the type of communication (e.g. text, cell phone), not the content of any communication. While users' locations were identified, they were anonymous with no or limited tracking of movement.

Third, the searches were extremely limited temporally, involving only 15 minutes or 40 minutes of time. This was the opposite of a “mosaic,” in which limited surveillance is aggregated to reveal a complex picture of an individual life. See McCarthy, 484 Mass. at 508-09 (limited number of cameras in public not enough to trigger mosaic theory concern); contrast Commonwealth v. Snow, 486 Mass. 582, 593 (2021) (holding that a lack of a temporal limit on a warrant rendered it “not sufficiently particular” due to the vast amount of information a cell phone can hold).

Fourth, law enforcement officers provided detailed affidavits explaining a nexus to criminality and why the sought information would be useful in identifying one or more suspects. See Hobbs, 482 Mass. at 544 (holding that a search warrant for CSLI must be based on probable cause that “a particular offense has or will be committed” and that the CSLI will produce evidence of that offense); Snow, 486 Mass. at 586 (similar in context of phone search).

Fifth, although the warrants were broad in the sense of capturing extensive information that federal agents and detectives knew would not be needed for further investigation, they were not overbroad because there was no less intrusive way to identify the suspects in the crimes under investigation, i.e., a string of robberies and an attempted robbery that led to a fatal shooting. See Wilkerson, 486 Mass. at 169. Without the name or phone number of a suspect, law enforcement officers did not know which of the four cell phone companies provided cell phone service to any suspect who had a cell phone. Moreover, as noted above, all of the locations and timeframes were closely targeted to the scene and time of the crimes.

In sum, the warrants obtained here have the scope and particularity of constitutional warrants, not unconstitutional “general warrants.” The acquisition of historical CSLI and related cell phone information in the manner and for the purpose described herein does not violate the Fourth Amendment or art. 14, and consequently no evidence derived from the execution of the warrants must be suppressed.

For the above reasons, Defendant's Motion to Suppress Evidence Obtained from Cellular Towers Pursuant to Search Warrant (Paper #20) is DENIED.