Commonwealth v. Raspberry
Commonwealth v. Raspberry
Opinion
*634 Before us is the defendant's interlocutory appeal 1 from the denial of her motions to suppress evidence obtained by police through (1) warrantless real-time tracking of the defendant's whereabouts using cell site location information (CSLI) and (2) a warrantless search of her motor vehicle, leading to the discovery of a loaded firearm and a stun gun. 2 We affirm.
*1198
Background
. We recite the relevant facts as found by the motion judge, supplemented where necessary by uncontroverted police testimony, which the judge expressly credited in full. See
Commonwealth
v.
Isaiah I
.,
In April, 2015, as part of a joint investigation with Federal authorities, the Boston police were conducting a wiretap of the telephone line of one Mike Coke pursuant to a Federal court order. 3 At approximately 4:30 P.M. on April 14, 2015, an officer in the "wire room" was monitoring a call from Coke to an unidentified woman, and he heard her say: "I'm about to go shoot up this nigga right now, I'm going to get the fucking gun, I'm sick of this bitch ass nigga yo. He fucking took my fucking money and don't want to give it the fuck back. I'm going to his, I'm going right there, right now. Right fucking now, by my fucking self ...." The judge, who listened to a recording of the call, found that she sounded "angry, upset, and emotional." The wire room officer found the call "alarming" in that the woman on the call "intended to use a firearm to shoot someone." He checked her telephone number in various databases and identified her as the defendant.
The police then knew that the defendant was referring to Alvin Dorsey, with whom she had been in "some type of romantic relationship." The judge found that "the police were reasonable in *635 having grave concerns about the defendant imminently causing serious bodily harm."
Within fifteen minutes of hearing the defendant's threat, the officer called AT & T to initiate an "exigent request." He stated that the Boston police had reliable information that a person using an AT & T cellular telephone (cell phone) might have a gun and might be about to harm another person. He provided the defendant's cell phone number and asked AT & T to perform "emergency pings" and give the police real-time CSLI about the approximate location of the defendant's cell phone. 4 AT & T agreed to assist, and it began sending the results of the pings to a designated Boston police electronic mail (e-mail) address at approximately fifteen-minute intervals. The officer mapped the location of each ping result as it was received and shared this information with officers in the field attempting to find the defendant.
The first result, received at 5:06 P.M. , showed the cell phone within a 1,880 meter radius of a cell site in Braintree. Subsequent results showed the cell phone to be moving toward Boston, leading police to believe that the defendant was on her way to locate Dorsey. Specifically, a 5:37 P.M. result showed the cell phone somewhere in the Dorchester section of Boston, and a 5:53 P.M. result showed the cell phone in the Roxbury section of Boston, within a 652-meter radius of a cell site atop a food market. In the meantime, police had learned that Dorsey "may have been" with a girl friend who lived at a particular *1199 address in a housing project near that market. Results received at 6:25 P.M. and 6:41 P.M. showed the cell phone in an area with a 487-meter radius that included that housing project.
At 6:46 P.M. , the officer in the wire room, still monitoring Coke's phone calls, listened to a second conversation between Coke and the defendant. In this call, the defendant said, "I'm sitting right in front of her house," which the police knew referred to the house of Dorsey's girl friend. The defendant further stated that she was going to "shoot him and his bitch in the face"; that she knew Dorsey was in the apartment because he had been texting her; that she was waiting for him; that if he did not come out, she would be back at 7:00 A.M. in a motor vehicle that he would not recognize; and that she would jump out and "pistol whip" him. She added that if Dorsey sent anyone to attack her, it *636 would be a "firefight," which the detective understood to mean a "shootout."
At this time, a Boston police sergeant, who had been kept informed of the defendant's threats and suspected location, was in a motor vehicle near the market and the housing project. At approximately 6:50 P.M. , the sergeant turned onto the street where Dorsey's girl friend lived and observed a woman sitting in a motor vehicle parked about 100 yards away from, and with a clear line of sight to, the girl friend's residence. The woman was talking on a cell phone. The sergeant knew that the defendant was on the phone with Coke at the time.
The sergeant called in the motor vehicle's license plate number and learned that the vehicle was registered to the defendant. The sergeant then contacted a Boston police detective who, along with two other officers, was patrolling the area in an unmarked cruiser. The sergeant described the defendant, her vehicle, and its plate number and location; warned the detective that the defendant likely had a firearm and was threatening to shoot someone; and asked the detective to stop the defendant's vehicle.
The three officers stopped and approached the defendant's motor vehicle on foot. The detective then asked her for her license and registration. When she said she did not have a license, she was ordered out of the vehicle and arrested for operating without a license. One officer led her to the rear of the vehicle, while the others searched the vehicle. They found a stun gun in the defendant's purse in the passenger compartment and a loaded gun in the trunk.
The defendant filed separate motions to suppress the fruits of (1) the warrantless CSLI search of her location and (2) the warrantless search of her motor vehicle. The judge ruled that the CSLI search was justified under the emergency aid exception to the warrant requirement, because the police had a "good faith, reasonable belief that there was a serious and imminent threat to human life." The judge further ruled that the search of the vehicle was justified under the automobile exception, where the police had probable cause to believe that the vehicle contained a loaded firearm that the defendant intended to use.
Discussion
. In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings unless clearly erroneous, see
Commonwealth
v.
White
,
a.
The emergency aid exception
. In the context of a search of a home, where constitutional protection against unreasonable searches is at its zenith,
7
the courts have recognized an "emergency aid" exception to the warrant and probable cause requirements
*638
of the Federal and State constitutions.
8
See
Commonwealth
v.
Snell
,
In such cases, probable cause is not required, "because the purpose of police entry is not to investigate criminal activity.... Instead, a warrantless entry 'must meet two strict requirements. First, there must be objectively reasonable grounds to believe that an emergency exists.... Second, the conduct of the police following the entry must be reasonable under the circumstances ....' "
Duncan
, 467 Mass. at 750,
"The injury sought to be avoided must be immediate and serious, and the mere existence of a potentially harmful circumstance
*639
is not sufficient."
Commonwealth
v.
Kirschner
,
"[W]hether an [emergency] existed, and whether the response of the police was reasonable and therefore lawful, are matters to be evaluated in relation to the scene as it could appear to the officers at the time, not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis."
Commonwealth
v.
Young
,
Thus, in
Snell
, the court upheld a warrantless entry into the defendant's house because "[t]here existed objectively reasonable grounds to believe that [the defendant's wife] might be injured or dead inside," presenting a domestic violence situation, "which often calls for rapid police response designed to prevent further injury to a victim, to see whether a threat against a victim has been carried out, or to ascertain whether some other grave misfortune has befallen a victim."
The emergency aid exception also applies to searches within lawfully-entered homes. In
Commonwealth
v.
Samuel
,
Other decisions have applied the exception to uphold warrantless searches of places other than homes, in order to find and assist a victim of serious physical harm or to prevent such harm from occurring. See
*640
Commonwealth
v.
Marchione
,
We mention two other cases that illustrate the reach of the emergency aid exception. In
Duncan
, the court extended the exception to protect nonhuman animal life. 467 Mass. at 753,
b.
Application of emergency aid exception
. The defendant does not contend that the emergency aid exception could never justify warrantless real-time CSLI tracking; rather, she argues only that the exception's requirements were not met here. Therefore, assuming without deciding that this was a search, we will also assume without deciding that it would have been permissible if the exception's requirements were met.
10
Accordingly, we examine
*1203
whether the Commonwealth has met its "burden of showing
*641
that authorities had a reasonable ground to believe that an emergency existed and that the actions of the police were reasonable in the circumstances."
Commonwealth
v.
Knowles
,
We have no difficulty concluding that these standards were met here. The police overheard a phone call in which an angry, upset individual said she was "going to get the ... gun" and was "about to go shoot up [someone] right now .... I'm going to his, I'm going right there, right now." The police identified the person making the threat as the defendant and thus inferred that she was likely talking about shooting Dorsey. The judge, after listening to a recording of the call, found that "the police were reasonable in having grave concerns about the defendant imminently causing serious bodily harm," and we see no basis for rejecting that finding. See
DiMarzio
,
What police did not know here, at the time of the call, was the whereabouts of the defendant. In the circumstances, it was objectively reasonable for the police to request real-time CSLI, in order to determine the defendant's current location and the direction in which she was moving, and thus to find and intercept her before she could shoot Dorsey.
The defendant points out that when AT & T, in response to the "exigency request," sent the police her subscriber information as well her real-time CSLI information, the police learned her home address in Braintree. She argues that at that point, the police could have asked their counterparts in Braintree to look for her at her home, instead of tracking her using CSLI. But this ignores, among other factors, that the police had no information suggesting that she was actually at her home or would still be there when
*642
police arrived. Indeed, the police had just heard her say that she was "going to get the ... gun" and "going to his ... going right there, right now" to shoot the intended victim, thus indicating that she was leaving wherever she was and going to wherever she believed Dorsey was. The defendant's second-guessing approach contravenes the principle that the reasonableness of the police response is "to be evaluated in relation to the scene as it could appear to the officers at the time ...."
Young
,
The same is true of the defendant's argument that the police, once they formed a belief that her target was Dorsey and that he might be at his girl friend's address, could simply have gone to that address instead of tracking her using CSLI. Even assuming (although the record does not show it) that the police formed this belief about Dorsey's whereabouts before they obtained any CSLI, their belief was merely that Dorsey "may have been" at that address. It was reasonable for the police to believe that a more direct and sure way of preventing the defendant from shooting Dorsey was to find and intercept the defendant
*1204
herself. See
DiMarzio
,
The defendant makes no other argument that the police lacked reasonable ground to believe that an emergency existed or that their actions were unreasonable in the circumstances. The police tracked her location using CSLI for a brief period, apparently not exceeding two hours, and intercepted her immediately after hearing her say, in a second phone call, that she was "sitting right in front of [the girl friend's] house," and was going to "shoot him and his bitch in the face." We conclude that the police use of the CSLI voluntarily provided by AT & T, assuming without deciding that it was a search that could in principle be justified by the emergency aid exception, was justified on these facts.
2.
Search of motor vehicle
. The judge upheld the search of the defendant's motor vehicle based on the automobile exception to the warrant requirement.
11
That exception "applies to situations where the police have probable cause to believe that a motor vehicle parked in a public place and apparently capable of being
*643
moved contains contraband or evidence of a crime."
Commonwealth
v.
Dame
,
On appeal the defendant argues that the automobile exception was inapplicable only because the police lacked probable cause to search the trunk for a gun. 12 She contends that, although her statements to Coke gave reason to "suspect that she was carrying a gun, ... once the stun gun was located in [her] purse, the force of those statements as evidence that she had some other type of gun was greatly diluted" and fell below the level of probable cause.
Even assuming that the stun gun was found first (an issue on which the evidence was unclear and the judge made no finding), we disagree. The defendant stated in the first call that she was going to "get the fucking gun" and "shoot up" the intended victim. She stated in the second call, from outside his girl friend's residence, that she *1205 was going to "shoot him and his bitch in the face," that she was prepared to "pistol whip" him, and that if he sent anyone to attack her, it would be a "firefight." These statements furnished ample objective grounds -- in no way weakened by the discovery of a stun gun in her handbag -- to believe that the defendant possessed and was prepared to use a loaded firearm, and that it was somewhere in the motor vehicle.
Order denying motions to suppress affirmed .
A single justice of the Supreme Judicial Court allowed the defendant's motion to pursue an interlocutory appeal and ordered it to be heard in this court.
The defendant is charged with unlicensed operation of a motor vehicle, G. L. c. 90, § 10 ; carrying a firearm without a license, G. L. c. 269, § 10(
a
) ; carrying a dangerous weapon (a stun gun), G. L. c. 260, § 10(
b
) ; carrying a loaded firearm without a license, G. L. c. 269, § 10(
n
) ; and possessing ammunition without a firearm identification card, G. L. c. 269, § 10(
h
)(1). As to the stun gun charge, see
Ramirez
v.
Commonwealth
,
The defendant has not challenged any aspect of the wiretap.
See
Commonwealth
v.
Fredericq
,
After this case was argued, the United States Supreme Court decided that "accessing seven days of [historical] CSLI constitutes a ... search" under the Fourth Amendment to the United States Constitution but declined to determine whether accessing such CSLI for a more limited period might not be a search.
Carpenter
v.
United States
, --- U.S. ----,
The judge made two additional rulings, neither of which the defendant challenges on appeal, and on which we therefore express no opinion: (1) that AT & T's provision of the CSLI was authorized by language in the Federal Stored Communications Act,
See
Collins
v.
Virginia
, --- U.S. ----,
The emergency aid exception, which requires no probable cause, is thus distinct from the "exigent circumstances" exception, which permits a warrantless search where probable cause exists, but circumstances such as the imminent loss of evidence make obtaining a warrant impracticable. See
Commonwealth
v.
Washington
,
As
Duncan
indicates, the emergency aid exception may be based on the need to find and assist a person who has already been harmed, the need to prevent future harm, or both. In the context of prevention of future harm, the label "pure emergency" has sometimes been applied. See
Duncan
,
Several courts have concluded that the emergency aid exception justified real-time CSLI tracking in particular circumstances. See
United States
v.
Gilliam
, No. 11 Crim. 1083,
The judge did not address whether the search was valid as an inventory search incident to an impoundment of the vehicle. We therefore need not address the defendant's argument on appeal that the police lacked a valid basis for impoundment. See
Commonwealth
v.
Gouse
,
Because the defendant does not contend otherwise, we assume that the search was lawful if, as the judge concluded, there was probable cause to believe that the defendant intended to use the gun to shoot someone, i.e., that she was about to commit a crime. The United States Supreme Court "repeatedly has explained that 'probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense."
Michigan
v.
DeFillippo
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.