MA: CSLI warrant based on unsupported hearsay suppressed

The 2008 CSLI warrant here was based on a “conclusory statement” of witness statements being credible and “bereft of the factual details required to establish probable cause.” It had to be suppressed. (Based on Fourth Amendment and state constitution.) Commonwealth v. Fredericq, 2018 Mass. App. LEXIS 29 (Mar. 12, 2018):

Here, the only detailed statement in Detective Williams’s affidavit accompanying the § 2703(d) application for the CSLI reads: “The current and recent location of Cassio Vertil is necessary and important to my investigation because other witnesses and obtained phone records indicate that Cassio Vertil has been, and continues to provide aid and support to the indicted Josener Dorisca.” The statement fails to identify the witnesses and does not identify the requisite basis for assessing their reliability or their veracity. See Commonwealth v. Burt, 393 Mass. 703, 710, 473 N.E.2d 683 (1985) (discussing various kinds of informers and witnesses). Similarly, the particular “phone records” are not identified and Detective Williams did not articulate how those records reveal that Cassio provided aid and support to Dorisca. Contrast, e.g., Commonwealth v. Lopes, 455 Mass. 147, 164-165, 914 N.E.2d 78 (2009). This conclusory statement is so bereft of the factual details required to establish probable cause that, unlike the situation presented in Augustine, we need not remand the matter to the trial court for further findings. See, e.g., Commonwealth v. Moran, 353 Mass. 166, 169-170, 228 N.E.2d 827 (1967) (distinguishing between facts and conclusions).

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