MA: No PC shown for text messages, but PC shown for CSLI information

The state could not show that defendant’s text messages would show his connection with a murder, so the text messages were properly suppressed. The ubiquity of cell phones, however, does provide probable cause to believe that it might show the owner was near the scene of the crime. “Because CSLI provides information solely about the whereabouts of the cellular telephone user at different times, the Commonwealth may obtain a search warrant for CSLI by establishing probable cause that the suspect committed a crime, that the suspect’s location would be helpful in solving or proving that crime, and that the suspect possessed a cellular telephone at the relevant times. We conclude that the affidavit satisfied each of these requirements.” Commonwealth v. Jordan, 2017 Mass. App. LEXIS 89 (July 6, 2017):

B. Probable cause that text messages would provide evidence connected to the crime. …

To establish that information from a cellular telephone, including text messages, is likely to produce evidence of crime, it is not enough to rely on the ubiquitous presence of cellular telephones and text messaging in daily life, or generalities that friends or coventurers often use cellular telephones to communicate. See White, supra at 590; Fulgiam, 477 Mass. at 34-35. Nor may we rely on our conclusion, infra, part 2(C), that the affidavit established probable cause to believe that the defendant committed the crime. The Supreme Judicial Court has rejected the proposition “that there exists a nexus between a suspect’s criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offense, [even when] accompanied by an officer’s averment that, given the type of crime under investigation, the device likely would contain evidence.” White, supra at 591.

Here the affidavit established, at most, that the defendant was using his cellular telephone four hours before the murder and used it to telephone two family members around the time of the murder. Other than the tip that someone with the defendant’s first name shot the victim over drug dealing in the park (which we do not consider, see note 4, supra), the affidavit contained no information about the motive for the crime, that the defendant was involved in drug dealing, or that he used his cellular telephone in the commission of the crime or in dealing drugs. Even though the police possessed the defendant’s contemporaneous cellular telephone call records, the affidavit contained no information linking the defendant with the victim, directly or indirectly. Compare Broom, 474 Mass. at 496 (where police possessed defendant’s call logs, and victim’s cellular telephone number did not appear, affidavit failed to establish that contents of defendant’s cellular telephone, including contact list, voice mail, texts, and electronic mail messages, would likely contain information linking defendant to victim or relating to her killing).

Because the affidavit made no connection between the defendant’s use of his cellular telephone and his involvement in the crime, it did not establish probable cause for concluding that the text messages would provide evidence connected to the crime. Thus, the judge correctly suppressed the text messages obtained through the warrant.

. . .

C. Probable cause that CSLI would provide evidence connected to the crime. To justify seizure of the defendant’s CSLI, in addition to establishing probable cause that a crime was committed, the affidavit had to establish probable cause to believe that the CSLI would be relevant to the investigation of the crime. See Commonwealth v. Augustine, 472 Mass. 448, 453-454, 35 N.E.3d 688 (2015) (Augustine II). Accordingly, the affidavit had to provide a substantial basis for the belief there is a nexus between the crime, the cellular telephone, and the CSLI. See White, 475 Mass. at 588-589. The Commonwealth sought to use the CSLI primarily to establish that the defendant was present in the vicinity of Boylston Street near Clarendon Street at the time of the murder, which would be probative evidence implicating him in the murder. See Augustine II, supra at 455-456.

Because CSLI provides information solely about the whereabouts of the cellular telephone user at different times, the Commonwealth may obtain a search warrant for CSLI by establishing probable cause that the suspect committed a crime, that the suspect’s location would be helpful in solving or proving that crime, and that the suspect possessed a cellular telephone at the relevant times. We conclude that the affidavit satisfied each of these requirements.