MA: Cell phone SW was issued without PC, but it was harmless error in light of DNA

Massachusetts requires a warrant for CSLI after a certain date, and retroactivity depends on whether the issue was raised at trial. Here, the issue hadn’t been raised at trial from a 2011 crime although the case was on direct review at the time of the CSLI decision. As an apparent alternative basis, the DNA evidence in the case puts defendant with the victim, and the CSLI is minor. “In these circumstances, it cannot be said that the defendant was unfairly prejudiced by admission of the CSLI evidence. No substantial likelihood of a miscarriage of justice occurred.” As to defendant’s cell phone search warrant, it was issued without probable cause to believe that anything useful would be found, and it should not have been granted. Again, however, it is harmless beyond a reasonable doubt: the DA used only two text messages to refresh a witness’s memory. Commonwealth v. Broom, 2016 Mass. LEXIS 372 (June 13, 2016).