Commonwealth v. Lugo , 482 Mass. 94 ( 2019 )

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SJC-12546
COMMONWEALTH vs. NATHAN LUGO.
Norfolk. November 5, 2018. - April 24, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Homicide. Constitutional Law, Sentence, Cruel and unusual
punishment, Search and seizure, Standing to question
constitutionality. Due Process of Law, Sentence. Cellular
Telephone. Search and Seizure, Standing to object,
Expectation of privacy, Emergency, Exigent circumstances.
Practice, Criminal, Sentence, Instructions to jury,
Assistance of counsel, Motion to suppress.
Indictments found and returned in the Superior Court
Department on December 21, 2011, and August 19, 2014.
Pretrial motions to suppress evidence were heard by Thomas
A. Connors, J., the cases were tried before him, and a motion
for a new trial and resentencing, filed on May 9, 2017, also was
heard by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Katherine C. Essington for the defendant.
Stephanie Martin Glennon, Assistant District Attorney, for
the Commonwealth.
The following submitted briefs for amici curiae:
2
Marsha L. Levick, Karen U. Lindell, & Riya Saha Shah, of
Pennsylvania, & Laura Chrismer Edmonds for Juvenile Law Center &
others.
Nicholas K. Mitrokostas, Eric T. Romeo, & Jaime A. Santos
for Louis D. Brown Peace Institute & others.
Meredith Shih for Boston Bar Association.
Elizabeth Doherty for youth advocacy division of the
Committee for Public Counsel Services & others.
John P. Zanini, Assistant District Attorney, for District
Attorney for the Berkshire District & others.
CYPHER, J. In November 2011, the victim, Kyle McManus, was
murdered after a plan to rob him of marijuana failed. A jury
convicted the defendant, Nathan Lugo, of murder in the second
degree.1 The defendant, who was seventeen years old at the time
of the murder, was sentenced to the mandatory term of life
imprisonment with eligibility for parole after fifteen years.2
On appeal, the defendant argues that the mandatory sentence is
unconstitutional because it does not allow the judge to exercise
his or her discretion to impose anything less than a life
sentence with the possibility of parole. The defendant contends
that the judge erred in denying his motion to continue his
sentence so that he could present evidence related to his
juvenile status. He further argues that (1) the judge erred in
1 The defendant also was convicted of armed robbery,
possession of a firearm without a license, possession of
ammunition without a firearm identification card, and conspiracy
to violate the controlled substance law.
2 The defendant received concurrent sentences for the other
convictions.
3
denying his request to instruct the jury on accident; (2) his
counsel was ineffective for not requesting other jury
instructions; and (3) the judge erred in denying the defendant's
motion to suppress the warrantless "pinging" of his cellular
telephone (cell phone).
In Commonwealth v. Okoro, 471 Mass. 51, 62 (2015), we
concluded that the mandatory sentencing scheme as applied to
juveniles convicted of second-degree murder was constitutional.
We left for another day, however, the question whether juvenile
homicide offenders require individualized sentencing. We
stated: "Given the unsettled nature of the law in this area and
the indication that it is still evolving, we think it prudent to
allow this process to continue before we decide whether to
revisit our interpretation of [Miller v. Alabama, 567 U.S. 460(2012),] and the scope of its holding." Okoro, supra at 61.
Now, nearly four years after our decision in Okoro, the
defendant asks us to address that very issue. For the same
reasons stated in Okoro, we continue to leave the individualized
sentencing question for another day and reject the defendant's
other arguments.3
3 We acknowledge the amicus briefs submitted by the Louis D.
Brown Peace Institute, Families for Justice as Healing, and the
National Council for Incarcerated and Formerly Incarcerated
Women and Girls; the Juvenile Law Center, the Center for Law,
Brain and Behavior, and the Center on Wrongful Convictions of
Youth; the Boston Bar Association; the youth advocacy division
4
Background. We summarize the facts that the jury could
have found, reserving pertinent facts for the discussion of the
defendant's arguments. In addition, we reserve the facts that
the motion judge found for the discussion of the defendant's
motion to suppress.
The defendant and three friends, Alison Deshowitz, Devante
Thames, and Brian Moulton, developed a plan to rob the victim of
marijuana. Deshowitz, who had dated the victim, contacted him
under the guise that she was arranging a drug transaction. The
plan was for the group to meet the victim at a restaurant, bring
him to his home to secure the marijuana, and then rob him of the
marijuana. The defendant drove the group in his mother's black
sport utility vehicle (SUV) to meet the victim. On the way to
the restaurant, he informed the group that he was armed with a
revolver.
The group met the victim at the restaurant and drove him to
his house to get the marijuana. After going inside the victim's
house to measure the marijuana, the victim and Thames walked
back to the SUV that was idling in the victim's driveway. The
victim leaned into the front passenger's side window of the SUV
of the Committee for Public Counsel Services, the Children's Law
Center of Massachusetts, Hon. Gail Garinger, and Robert
Kinscherff; and the district attorneys for the Berkshire,
Bristol, Cape and the Islands, Eastern, Hampden, Northwestern,
Plymouth, Middle, and Suffolk districts.
5
to collect the money for the marijuana that Thames already was
holding. Moulton displayed the money to be used to complete the
drug transaction, and the victim commented that it looked to be
less than the agreed-upon purchase price. Upon hearing the
victim's suspicions, the defendant "threw the car in reverse"
and backed out of the driveway with the victim still leaning
through the window. A scuffle ensued between the victim and
Moulton as the victim attempted to grab the money in Moulton's
hand and get out of the moving SUV. The victim did not have a
weapon but was carrying an open beer can or bottle that he had
taken from the restaurant. The victim shouted, "Help," before a
loud pop was heard; the SUV sped away, leaving the victim
behind. Thames testified that the defendant extended his hand
with the gun across the passenger seat. Moulton bent down, and
the defendant shot the victim in the chest. The victim was
pronounced dead at the hospital shortly thereafter.
Police quickly discovered that the victim was last seen
alive with Deshowitz. After going to Deshowitz's house and
learning that she was not home, police spoke to her on her cell
phone. Police then attempted to locate her cell phone by
"pinging" it. Deshowitz's cell phone location, coupled with
other information that police gathered, indicated that she was
located at the defendant's house. Police proceeded to the
6
defendant's house, where they arrested the defendant and the
group.
At the defendant's house, police discovered a black SUV in
the garage. Police recovered several bags of marijuana in the
defendant's bedroom and a .22 caliber revolver, later revealed
to be the murder weapon, hidden in a hollowed-out hole under a
patio brick.
2. Procedural history. The offenses were committed three
months before the defendant's eighteenth birthday. At the
conclusion of trial, he was sentenced to life in prison with the
possibility of parole after fifteen years on the charge of
murder in the second degree. At the sentencing hearing,
although defense counsel acknowledged that the judge had no
discretion in imposing a sentence for murder in the second
degree, he asked for a continuance so that he could present
evidence of mitigation. Defense counsel informed the judge that
he had retained an expert in juvenile psychology and that he
wanted to present the expert's testimony at sentencing.
According to defense counsel, this testimony would have
discussed "unique things about juveniles, their perception,
their need for instant gratification, their likelihood of
success and rehabilitation . . . all things that are important."
The judge acknowledged the possible importance of this
information when the defendant is eligible for parole, but
7
denied the defendant's request. The judge believed that the
information was better suited to be presented to the parole
board at the time of the parole hearing.
The defendant timely filed a notice of appeal, which was
stayed so that he could pursue a motion for a new trial. In his
motion, the defendant argued, among other things, that the
statutorily mandated sentence of life with the possibility of
parole after fifteen years violated provisions of the State and
Federal Constitutions; certain instructions given on the
homicide charge were erroneous; and counsel was ineffective in
failing to object to improper instructions. After a
nonevidentiary hearing, the motion was denied. The motion
judge, who was also the trial judge, found that
"[r]eview of the Okoro ruling makes clear that a person in
[the defendant's] position is not under the law as
presently enunciated in a position to argue that he must
receive an individualized sentencing hearing after his
conviction of second degree murder, an offense which
requires the imposition of the mandatory sentence called
for in [G. L. c. 265, § 2]."
The defendant's appeal from that denial was consolidated with
his direct appeal, and we granted his application for direct
appellate review.
Discussion. 1. Constitutionality of the defendant's
sentence. The defendant argues that the statutory sentencing
scheme for juveniles convicted of murder in the second degree,
G. L. c. 127, § 133A, which mandates a sentence of life in
8
prison with the possibility of parole after fifteen years,
violates the Eighth Amendment to the United States Constitution
and art. 26 of the Massachusetts Declaration of Rights. He
contends that the statutory scheme does not allow judges to
exercise their discretion to impose anything less than a life
sentence, with the possibility of parole, after an
individualized hearing.4 He argues that such a mandatory
sentence for a conviction of murder in the second degree is
disproportional in light of the decisions in Okoro, 471 Mass.
51; Diatchenko v. District Attorney for the Suffolk Dist., 471
Mass. 12 (2015) (Diatchenko II); Diatchenko v. District Attorney
for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I); and
Miller, 567 U.S. 460. The defendant asks us to consider whether
to expand Miller's due process interpretation, post-Diatchenko I
and post-Okoro, to require individualized sentencing hearings
for juveniles facing statutorily imposed mandatory life
sentences with parole eligibility. Further, relying on Miller,
the defendant argues that the denial of his motion to continue
the sentencing hearing prohibited him from presenting mitigating
4 The defendant does not contend that parole eligibility
after fifteen years is cruel and unusual or disproportional to
the offense, but is instead "challenging the legislature's one
size fits all determination that a life sentence is necessary
for every juvenile convicted of second degree murder."
9
evidence concerning his "distinctive mental attributes and
environmental vulnerabilities."
In Diatchenko I, we held that, in light of the United
States Supreme Court's decision in Miller,5 the Massachusetts
statute imposing a sentence of mandatory life without parole,
G. L. c. 265, § 2, violated the defendant's right of protection
against cruel and unusual punishment and that the discretionary
sentence of life without parole upon the defendant violated the
State constitutional prohibition against cruel or unusual
punishment. Diatchenko I, 466 Mass. at 667-671. We concluded
that a juvenile homicide offender who is convicted of murder in
the first degree and receives a mandatory sentence of life in
prison must be afforded a "meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation," and
that this opportunity must come through consideration for
release on parole. Id. at 674, quoting Graham v. Florida, 560
U.S. 48, 75 (2011). As a key distinguishing factor to the case
before us, however, the sentencing statute was invalid only with
respect to language prescribing life without the possibility of
parole for juvenile offenders. Diatchenko I, supra.
5 In Miller v. Alabama, 567 U.S. 460, 465, 469-480 (2012),
the United States Supreme Court held that mandatory sentences of
life without parole for offenders under the age of eighteen at
the time of their crimes violates the prohibition against cruel
and unusual punishment in the Eighth Amendment to the United
States Constitution.
10
Two years after the decision in Diatchenko I, we expanded
its holding in Okoro, supra. In Okoro, the defendant argued
that the Eighth Amendment, as established in Miller, required
individualized sentencing hearings in every case in which a
juvenile homicide offender received a life sentence. Okoro, 471
Mass. at 56. While we agreed with the defendant in Okoro that
certain language in Miller could be read to suggest that
individualized sentencing was required when juvenile homicide
offenders faced a sentence of life in prison, that holding was
narrow and specifically tailored to the cases before the Supreme
Court at that time. Id. at 56-57. We concluded that "a
mandatory life sentence with parole eligibility after fifteen
years for a juvenile homicide offender convicted of murder in
the second degree does not offend the Eighth Amendment or art.
26." Id. at 62. We accepted this on the understanding that it
is for the parole board to take into account the unique
characteristics that make juvenile offenders constitutionally
distinct from adults and ensure they are afforded a "meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation." Id. at 58, quoting Diatchenko I, 466 Mass. at
674.
In Okoro, 471 Mass. at 58, we "[left] for later day the
question whether juvenile homicide offenders require
individualized sentencing" for several reasons. First, we held
11
that the narrow holding in Miller was particularly directed at
juveniles who were sentenced to life without parole. Id. See
Miller, 567 U.S. at 489. Second, the constitutional distinction
between adults and juveniles for purposes of sentencing was of
fairly recent origin. Okoro, supra at 59. The scientific and
social scientific bases for this distinction were subject to
continuing research, and we could not predict the ultimate
results of that research. Id. at 59-60. The law relating to
this distinction was continuing to change and develop. Id. at
60. Finally, we cited the constitutional differences between
adults and juveniles in our sentencing laws. Id. at 61-62. The
Legislature had determined that every defendant convicted of
murder in the second degree must serve a life sentence with the
possibility of parole, but adult offenders must wait twenty-five
years before becoming eligible while juvenile offenders become
eligible in fifteen years. See G. L. c. 279, § 24; G. L.
c. 119, § 72B.
At that point, we thought it prudent to allow this area of
the law to settle further before revisiting our interpretation
of Miller. For the same reasons we stated in Okoro, we remain
unwilling to revisit our interpretation in regard to
individualized sentencing. The Commonwealth suggests that in
the four years since Okoro, our case law has only affirmed that
the opportunity to seek parole after fifteen years is an
12
appropriate and proportional minimum sentence for murder in the
second degree. The defendant points to extrajurisdictional
cases, dicta, and one scientific study to suggest that there
have been significant changes in the relevant law and science
since Okoro. We are unpersuaded that the law and science are
firmly established to warrant further consideration at this
time. In sum, we leave the question open and conclude, as we
did in Okoro, that a mandatory life sentence with parole
eligibility after fifteen years for a juvenile homicide offender
convicted of murder in the second degree is constitutional. The
motion judge did not abuse his discretion in concluding that the
defendant is not entitled to individualized sentencing.
The defendant further contends that the judge violated his
due process rights in denying his request for a continuance of
sentencing so that he could present evidence of mitigation. He
argues that evidence available to him at the time of sentencing
-- at a minimum, evidence of his mental state and immaturity --
may not be available to him at the time of his first parole
hearing. The judge acknowledged the possible importance of this
evidence when the defendant is eligible for parole but denied
the defendant's request. The judge believed that the
information was better suited to be presented to the parole
board at the time of the parole hearing.
13
In Diatchenko II, 471 Mass. at 24, 27, 32, we extended
certain due process protections to juveniles sentenced to life
appearing before a parole board. See Okoro, 471 Mass. at 62-63
(due process protections of Diatchenko II apply to juveniles
convicted of murder in second degree). These protections
included the right to appointment of counsel and the right to
access funds to retain expert witnesses.
Here, we agree with the judge. Although the defendant
constitutionally is entitled to funds to establish mitigating
evidence that will be relevant before the parole board, he or
she is not entitled to make a record through an adversarial
process before sentencing. The defendant may, for example,
immediately seek funds for an expert report explaining the
relationship between a defendant's neurobiological immaturity
and culpability. However, the appropriate time to make a record
of any expert evidence will be at the parole board hearing.6
2. Jury instructions. At trial, the defendant sought, but
did not receive, jury instructions on accident, involuntary
6 We determine that juvenile homicide offenders are allowed
to seek funds to investigate immediately because of the
closeness in time to the conduct that resulted in their
incarceration. We also recognize that there is no mechanism --
in rule or procedure -- that grants a juvenile homicide offender
the opportunity to seek immediate funds. Allowing the defendant
to seek immediate funds is necessary to ensure that the juvenile
homicide offender receives a meaningful opportunity for release.
See Diatchenko v. District Attorney for the Suffolk Dist., 471
Mass. 12, 27-28 (2015). (Diatchenko II).
14
manslaughter, and voluntary manslaughter. He argues that two of
these instructions, on involuntary manslaughter and voluntary
manslaughter by reason of sudden combat, would have allowed the
jury to consider a lesser charge than murder and that an
instruction on accident would have given the jury the
opportunity to acquit. We review the denial of a motion for a
new trial for an abuse of discretion. See Commonwealth v.
Acevedo, 446 Mass. 435, 441–442 (2006). We are cognizant that
"[r]eversal for abuse of discretion is particularly rare where,"
as here, "the judge acting on the motion was also the trial
judge." Id., quoting Commonwealth v. Lucien, 440 Mass. 658, 670
(2004).
a. Accident instruction. The judge declined to instruct
the jury on the defense of accident. The defendant argues that
the evidence at trial was sufficient to warrant such an
instruction. The Commonwealth argues that the judge was correct
in not providing the accident instruction because the evidence
did not support one and it would have contradicted the
defendant's theory at trial of self-defense or defense of
another. We conclude that the evidence presented at trial did
not warrant an accident instruction.
An accident instruction is warranted where "the evidence at
trial fairly raised the possibility that [the defendant caused
the victim's death] unintentionally while engaged in conduct
15
that was neither wanton nor reckless." Commonwealth v. Moore,
92 Mass. App. Ct. 40, 48 (2017), quoting Commonwealth v.
Figueroa, 56 Mass. App. Ct. 641, 650 (2002). In cases in which
the cause of death of a victim is by shooting, a defendant may
be entitled to an accident instruction where such a defense is
"fairly raised." Commonwealth v. Palmariello, 392 Mass. 126,
145 (1984). "Where there is no evidence of accident, the issue
is not fairly raised and the judge need not give an accident
instruction." Commonwealth v. Podkowka, 445 Mass. 692, 699
(2006). When analyzing whether a judge erred in declining to
give an accident instruction, a reviewing court considers the
evidence in the light most favorable to the defendant.
Figueroa, supra at 651.
Here, viewed in the light most favorable to the defendant,
there is no evidence that the victim's fatal injuries were
caused by an accident. The evidence at trial showed that the
defendant, along with his cohorts, planned to rob the victim of
marijuana. The defendant armed himself with a revolver and told
his confederates not to "worry" about the robbery because he had
ready access to the weapon and that he "wouldn't be afraid to
use it." Once the victim realized that the payment was short,
the defendant effectuated the plan, "threw the car in reverse,"
and backed out of the victim's driveway with the victim still
16
leaning through the vehicle window. Before the victim could get
out of the moving SUV, the defendant shot him in the chest.
Citing testimony from the Commonwealth's firearms expert,
the defendant argues that evidence that the firearm used in the
killing required a small amount of trigger pressure supported
his request for an accident instruction because it would have
been "very easy" for the gun to have discharged accidentally.
This evidence does not warrant an accident instruction alone,
and there was no additional evidence to support the contention
that the firearm was discharged accidentally. In fact, the jury
heard evidence that the defendant extended his arm with the gun
across the passenger seat and shot the victim in the chest. The
evidence showed that the defendant's intentional conduct caused
the gun to fire, not mere "inadvertence, mistake, or
negligence." See Figueroa, 56 Mass. App. Ct. at 650.
b. Involuntary and voluntary manslaughter instructions.
The defendant argues that the judge erred in denying his request
to instruct the jury on involuntary manslaughter. He further
contends that trial counsel was ineffective in failing to object
to the judge's decision not to give the instruction. We review
for a substantial risk of a miscarriage of justice. See
Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) (equating
ineffective assistance of counsel standard to substantial risk
17
standard in cases where waiver stems from omission by defense
counsel).
We have "stated repeatedly that, 'when the evidence permits
a finding of a lesser included offense, a judge must, upon
request, instruct the jury on the possibility of conviction of
the lesser crime.'" Commonwealth v. Gaouette, 66 Mass. App. Ct.
633, 639 (2006), quoting Commonwealth v. Woodward, 427 Mass.
659, 662-663 (1998). If a manslaughter charge is not supported
by any view of the evidence, however, then a judge does not
commit error by declining to give such an instruction.
Commonwealth v. Nichypor, 419 Mass. 209, 216 (1994). "In
deciding whether the evidence might have supported a
manslaughter instruction, we draw all reasonable inferences in
the defendant's favor." Commonwealth v. Bins, 465 Mass. 348,
368 (2013), quoting Commonwealth v. Masello, 428 Mass. 446, 449
(1998).
Involuntary manslaughter is an unintentional killing
occurring while a defendant is engaged in wanton or reckless
conduct that creates a high degree of likelihood that
substantial harm will result to another. Commonwealth v. Power-
Koch, 69 Mass. App. Ct. 735, 736-737 (2007). "[W]here a
defendant is charged with murder, an instruction on involuntary
manslaughter is appropriate if any 'reasonable view of the
evidence would [permit] the jury to find "wanton [or] reckless"
18
conduct rather than actions from which a "plain and strong
likelihood" of death would follow.'" Commonwealth v. Tavares,
471 Mass. 430, 438 (2015), quoting Commonwealth v. Braley, 449
Mass. 316, 331 (2007).
Here, an involuntary manslaughter instruction was not
warranted. The evidence showed that the defendant armed himself
with a firearm and planned to rob the victim. A reasonable view
of the evidence suggests that the defendant exhibited conduct
from which a plain and strong likelihood of death would result.
The defendant pulled out a revolver and pointed it at the victim
before shooting him in the chest. See Commonwealth v. Alebord,
68 Mass. App. Ct. 1, 7 (2006) ("The likelihood of death ensuing
when a loaded weapon is aimed at a person or group of people and
then intentionally discharged is plain and strong indeed").
The defendant also raises the same arguments regarding the
judge's denial of his request for a voluntary manslaughter
instruction. Specifically, he argues that the judge erred in
not instructing the jury on reasonable provocation and sudden
combat.7
Voluntary manslaughter is "a killing from a sudden
transport of passion or heat of blood, upon a reasonable
7 The judge instructed the jury on voluntary manslaughter
and imperfect self-defense, but did not mention reasonable
provocation or sudden combat.
19
provocation and without malice, or upon sudden combat."
Commonwealth v. Walden, 380 Mass. 724, 727 (1980), quoting
Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). Not all
physical confrontations, even those initiated by the victim, are
sufficient. See, e.g., Commonwealth v. Curtis, 417 Mass. 619,
629 & n.6 (1994); Commonwealth v. Parker, 402 Mass. 333, 344–345
(1988), S.C., 412 Mass. 353 (1992) and 420 Mass. 242 (1995);
Walden, supra at 727-728. Cf. Commonwealth v. Iacoviello, 90
Mass. App. Ct. 231, 242 (2016). Rather, "[t]here must be
evidence that would warrant a reasonable doubt that something
happened which would have been likely to produce in an ordinary
person such a state of passion, anger, fear, fright, or nervous
excitement as would eclipse his capacity for reflection or
restraint, and that what happened actually did produce such a
state of mind in the defendant." Gaouette, 66 Mass. App. Ct. at
639-640, quoting Walden, supra at 728. The defendant's actions
must be "both objectively and subjectively reasonable. That is,
the jury must be able to infer that a reasonable person would
have become sufficiently provoked and would not have 'cooled
off' by the time of the homicide, and that in fact a defendant
was provoked and did not cool off." Commonwealth v. Groome, 435
Mass. 201, 220 (2001).
In cases where sudden combat is the claimed provocation,
the victim generally must attack the defendant, or at least
20
strike a blow against the defendant in order to warrant a
manslaughter instruction. See Curtis, 417 Mass. at 629. Here,
there is no evidence that the victim struck the defendant, much
less created a risk of serious harm. Nor is there evidence that
the defendant objectively believed at the time of the shooting
that the victim was armed with a firearm. The defendant relies
on Moulton's testimony, in which Moulton stated that after the
victim realized that the money in exchange for the marijuana was
short he "tussled" with Moulton through the open passenger's
side window. Moulton claimed that the victim had "a beer can or
a bottle . . . in his hand" and was yelling "help." This
evidence is insufficient to support a sudden combat instruction.
See Commonwealth v. Bianchi, 435 Mass. 316, 329 (2001) (sudden
combat instruction not warranted where defendant's illegal
conduct "intentionally precipitated the confrontation" and
defendant was armed with loaded weapon); Curtis, supra.
3. Motion to suppress cell phone location. Prior to
trial, the defendant filed a motion to suppress the evidence of
his cell site location information (CSLI) that police obtained
from his cell phone carrier. The motion judge denied the
motion, concluding that the emergency aid exception justified
the warrantless pinging of Deshowitz's and the defendant's cell
phones. In reviewing a decision on a motion to suppress, "we
accept the judge's subsidiary findings absent clear error 'but
21
conduct an independent review of [the] ultimate findings and
conclusions of law.'" Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015), quoting Commonwealth v. Ramos, 470 Mass. 740,
742 (2015). The motion judge found the following. After the
shooting, police learned that the victim was last seen alive
with Deshowitz. Through records held by the registry of motor
vehicles (registry), police determined that Deshowitz lived in
Stoughton. A Stoughton police detective, Michael Tuitt, who was
familiar with both Deshowitz and her sister, went to their
residence where he learned that Deshowitz was not home, but her
sister offered to call her cell phone. Tuitt recognized
Deshowitz's voice on the call, but was concerned that she was
speaking in a whisper and pausing before answering his
questions. Tuitt said to Deshowitz that if she was not able to
talk freely she should say "Tennessee." She responded,
"Tennessee." He then said that if she could not speak because
people were with her to say "seven." Deshowitz responded,
"Seven." He then asked her if she could not get away to say
"four." She responded, "Four." Finally, the detective told her
that if she were not really in Abington (where she claimed to be
with friends) to say "seven." She responded, "Seven." After
his conversation with Deshowitz, Tuitt believed that she was in
danger.
22
Tuitt returned to the police station, where he spoke with
Sergeant Detective Melissa McCormack about obtaining the
location of Deshowitz's cell phone. McCormack began the process
of "pinging" Deshowitz's cell phone through her cell phone
carrier. McCormack contacted a representative of the carrier
and stated that there were exigent circumstances that
necessitated the request for the cell phone's location based
upon her certification of "imminent danger of death or serious
physical injury."
In the interim, Tuitt received a telephone call from
Deshowitz's mother, who told Tuitt that she believed something
was wrong with her daughter. When police received Deshowitz's
cell phone coordinates at 1:26 A.M., they discovered that the
cell phone was located in Brockton. Tuitt asked Deshowitz's
mother if Deshowitz knew anyone in Brockton. The mother replied
that she knew a "Nate" and gave his address. The mother
accompanied Tuitt to the address, where Tuitt observed a vehicle
registered to the defendant's mother parked in the driveway.
McCormack also learned from registry records that a licensed
driver named "Nathan Lugo" resided at the residence.
As part of the exigency request, the cell phone carrier
also provided police with the cell phone numbers and subscriber
names for cell phones that either received or made calls to
Deshowitz's cell phone. Among those numbers was a cell phone
23
subscribed to the defendant's mother. McCormack had that cell
phone pinged via its carrier, which showed it to be in the same
general location as Deshowitz's cell phone.
At approximately 3 A.M., police arrived at the defendant's
residence and were allowed in by the defendant's mother. Police
retrieved Deshowitz and asked her to speak with responding
officers. Later that morning, the officers procured a search
warrant. During their search, police discovered evidence
linking the defendant to the killing, including the murder
weapon. The officers proceeded to arrest the defendant,
Deshowitz, Thames, and Moulton.
On appeal, the defendant argues that the motion judge erred
in denying his motion to suppress the evidence obtained as a
result of the pinging of Deshowitz's and his cell phones. He
argues that the emergency aid exception to the warrant
requirement does not apply because police had no objectively
reasonable basis to believe that Deshowitz was injured or was in
"imminent danger of physical harm" (citation omitted).
Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert.
denied, 568 U.S. 1129 (2013). The Commonwealth argues that the
defendant lacked standing to contest the real-time "pinging" of
Deshowitz's cell phone and that the motion judge's undisputed
factual findings supported the application of the emergency
exception to the search.
24
To prevail on a motion to suppress under art. 14 of the
Massachusetts Declaration of Rights, a defendant must
demonstrate that he or she has standing to contest the search
and that he or she had an expectation of privacy in the area
searched or in the item seized that society recognizes as
reasonable. See Commonwealth v. Figueroa, 468 Mass. 204, 216
(2014). "A defendant has standing either if [he] has a
possessory interest in the place searched or in the property
seized or if [he] was present when the search occurred."
Commonwealth v. Fulgiam, 477 Mass. 20, 35, cert. denied, 138 S.
Ct. 330 (2017), quoting Commonwealth v. Williams, 453 Mass. 203,
208 (2009).
We conclude that the action by police of causing
Deshowitz's and the defendant's cell phones to reveal their
real-time location constituted a search in the constitutional
sense. See Commonwealth v. Almonor, 482 Mass. , (2019)
("society reasonably expects that the police will not be able to
secretly manipulate our personal cell phones for any purpose,
let alone for the purpose of transmitting our personal location
data"). Although the police's conduct was a search in the
constitutional sense, our analysis does not end there.
a. Deshowitz's cell phone. We first look to determine if
the defendant has standing to challenge the search of
Deshowitz's cell phone. We conclude that he does not. See
25
Commonwealth v. Estabrook, 472 Mass. 852, 857 n.9 (2015)
(defendants did not have standing to contest collection of CSLI
associated with cell phones that they were not using). Cf.
Commonwealth v. Augustine, 467 Mass. 230, 255 (2014), S.C., 470
Mass. 837 (2015) (person has reasonable expectation of privacy,
to certain extent, in historical CSLI relating to cell phone).
The defendant does not have automatic standing to contest the
search of Deshowitz's cell phone because he does not have a
possessory interest in it. See Commonwealth v. Cruzado, 480
Mass. 275, 282 (2018). Furthermore, the defendant does not have
actual standing to contest the search of Deshowitz's cell phone.
Police first pinged Deshowitz's cell phone at 1:26 A.M. Police
entered the defendant's home to talk with Deshowitz at 3 A.M.
Although the defendant was with Deshowitz when her location was
searched, the period of the search -- less than two hours -- was
not sufficiently significant to allow the defendant standing in
Deshowitz's cell phone. Contrast Commonwealth v. Rousseau, 465
Mass. 372, 382 (2013) (police tracking codefendant's vehicle for
thirty-one days gave defendant, who was often with codefendant,
standing to contest search); Commonwealth v. Fredericq, 482
Mass. , (2019) (defendant had automatic standing because
police knew that he was in car with murder suspect whose
movements were being tracked through CSLI of another cohort's
cell phone for more than six days).
26
Likewise, at the time of the initial search of Deshowitz's
cell phone, police did not know that she was with the defendant.
Police only knew that she was the last person seen with the
victim. It was not until the investigation unfolded that police
discovered Deshowitz was at the defendant's house. The
defendant cannot establish a reasonable expectation of privacy
in Deshowitz's cell phone when it was tracked for a brief period
of time and he was never a target of the tracking. Contrast
Rousseau, 465 Mass. at 382 (CSLI search was specifically
"targeted at [defendant's] movements").
In any event, the defendant's challenge of the search of
Deshowitz's cell phone would be futile because the search was
justified by the emergency aid exception. See Commonwealth v.
Raspberry, 93 Mass. App. Ct. 633, 640-641 (2018) (emergency
exception applied where police had objectively reasonable
grounds to believe that emergency aid might be needed). Police
were investigating a homicide and learned that the victim was
last seen alive with Deshowitz. Tuitt spoke with her on her
cell phone, but was concerned that she was speaking in a whisper
and pausing before answering his questions. There were
reasonable grounds to believe emergency aid might be needed
especially after Deshowitz, in answering Tuitt's coded
questions, indicated that she was not able to speak freely.
27
b. Defendant's cell phone. The defendant has standing to
challenge the search of his cell phone. However, the
information gathered from the pinging of the defendant's cell
phone -- confirmation of the location of his residence --
already had been gathered by other means, the search of
Deshowitz's cell phone. Put another way, all of the evidence
that led police to locate the defendant was obtained through the
initial search of Deshowitz's cell phone. Prior to pinging the
defendant's cell phone, police had gathered the following
information: (1) Deshowitz's cell phone's coordinates were at
an address located in Brockton; (2) Deshowitz's mother informed
police that she knew her daughter frequently visited an address
in Brockton with a person named "Nate"; (3) at the address in
Brockton, police discovered a vehicle in the driveway registered
to the defendant's mother; (4) registry records also indicated
that a driver named "Nathan Lugo" resided at the residence; and
(5) Deshowitz's cell phone carrier provided police with
information that her cell phone had been in contact with a cell
phone registered to the defendant's mother. Only then did
police ping the defendant's cell phone and discover that it was
in the same location as Deshowitz's cell phone -- the
defendant's address. Therefore, even if the pinging of the
defendant's cell phone was improper, in the circumstances, the
police eventually would have found the defendant, and all the
28
evidence that tied him to the crime, at his residence when they
conducted the search for Deshowitz. See Commonwealth v.
Hernandez, 473 Mass. 379, 386 (2015). The use of the
defendant's cell phone's global positioning system coordinates
merely confirmed the evidence gleaned from Deshowitz's cell
phone. See United States v. Ellis, 270 F. Supp. 3d 1134, 1158
(N.D. Cal. 2017). We do not need to analyze whether there was
probable cause and exigency to ping the defendant's phone,
because no evidence came from the search.
Conclusion. We affirm the defendant's convictions and the
order denying his motion for a new trial.
So ordered.