Commonwealth v. Jonovan Gonzalez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-851

COMMONWEALTH

vs.

JONOVAN GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A grand jury indicted the defendant for murder, G. L.

c. 265, § 1, and two firearms offenses.1 The defendant moved to

suppress (1) cell site location information (CSLI)2 that police

received in response to a warrantless request of the defendant's

cell phone provider; and (2) evidence derived from the CSLI,

namely, the location of the defendant's 2003 Toyota Corolla and

various surveillance video recordings depicting the vehicle

1Carrying a firearm without a license in violation of G. L.
c. 269, § 10 (a), and carrying a loaded firearm without a
license in violation of G. L. c. 269, § 10 (n).

2See, e.g., Carpenter v. United States, 585 U.S. 296, 301
(2018) ("Each time [a] phone connects to a cell site, it
generates a time-stamped record known as cell-site location
information [CSLI]").
driving on public roads. After hearing testimony from nine

witnesses and considering numerous video recording,

photographic, and documentary exhibits, a Superior Court judge

allowed the motion. A single justice of the Supreme Judicial

Court thereafter allowed the Commonwealth's application for

leave to file the instant interlocutory appeal "limited to the

issue of inevitable discovery." After review, we agree with the

motion judge that the Commonwealth failed to establish that the

car and video recordings inevitably would have been discovered.

Accordingly, we affirm.

Background. We recite the facts as found by the motion

judge, none of which are disputed by the Commonwealth, adding

details supported by the record as relevant. See Commonwealth

v. Kaplan, 97 Mass. App. Ct. 540, 541 n.3 (2020), quoting

Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015) ("We

recite the facts found or implicitly credited by the motion

judge, supplemented by additional undisputed facts where they do

not detract from the judge's ultimate findings").

Shortly before 10 P.M. on August 11, 2020, New Bedford

police officers became aware of a shooting resulting in death.

The defendant developed as a suspect, and officers were able to

identify a car, registered to the defendant, that somewhat

matched eyewitness descriptions relayed at the scene. A "be on

the lookout" warning issued locally to officers in the field and

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to other police departments identifying the defendant's car by

make, model, and registration number.

Alongside interviewing witnesses and canvassing parts of

the city for the car and murder weapon, the police dedicated

investigative resources to "chasing video," a process by which

officers followed the vehicle's likely path of travel, tried to

identify homes or businesses with cameras that might have

captured the vehicle going by, and asked the proprietors (if

they could be contacted) to share the video recordings to help

solve the crime. An eyewitness described the direction the

vehicle headed after the shooting, so investigators started the

process by searching for video recordings in that area.

The next day, August 12, investigators requested and

received eight video recordings that showed the vehicle

traveling past stores and homes. One of the video recordings

that the officers requested was not supplied until two days

later, on August 14, when investigators went back to follow up

and collect it. The video recordings eliminated certain paths

of travel and, together with the officers' detailed knowledge of

the topography and road layout in the area, made certain paths

of travel much more likely. Also on August 12, the defendant

came by the police station for an interview during the 11 A.M.

hour, was turned away, and returned at 3:30 P.M., whereupon he

was arrested on an outstanding warrant. Although the defendant

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would remain in custody, the police would later learn that

someone else had had a set of keys to the car all the while.

At 10:43 A.M. on August 13, a State police trooper

submitted an "Emergency Situation Disclosure" form to Verizon

requesting thirty-six hours of the defendant's CSLI. The form

explained that the information was requested to assist with an

"Active Homicide Investigation by Firearm @ Large." The trooper

received the requested CSLI in response at 12:40 P.M. of the

same day, which he then analyzed with a software program to

visualize the defendant's movements throughout the relevant

time. At 3:29 P.M. on August 13, the trooper sent an e-mail to

"[a]ll the case investigators that were actively working on the

case from the New Bedford Police Department and the Bristol CPAC

unit" telling the investigating officers where to look for the

car. The trooper sent another e-mail at 10:38 A.M. on August 14

with a map and more detailed information.

Also on August 14, the investigating officers recovered

more surveillance video recordings. One of the video recordings

depicts the suspect car passing "Dartmouth Gas" and turning onto

Cove Road, which greatly narrowed the possible paths the car

could have traveled. The Superior Court judge ruled that the

CSLI data led the officers to Dartmouth Gas.

An officer in the field received the trooper's August 14 e-

mail. The target area was west of where the officer was

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looking, in a place that had already been searched. The officer

went to St. John Street and saw the car in plain view in a

driveway at around 11 A.M. At or around the time the car was

discovered, another officer requested and later received footage

showing the car entering the place where it was discovered

parked. The form denoting when that footage was collected is

the only form in the record that does not list a time of

collection.

Testimony showed that the investigative team worked as a

cohesive unit. The trooper who collected the CSLI data agreed

that there was a collaborative effort to combine what each

investigator had collected. Not only did he share his findings

as they came in with the entire team via e-mail, he also

testified that the other investigators were "sitting over [his]

shoulder, and [they] were [looking at the data] together." The

officers also uniformly testified that the CSLI data affected

the way they investigated the case. One officer testified that

having CSLI makes "chasing video" easier because investigators

can identify the vehicle's end point and collect surveillance

footage from both directions. One officer wrote in his report

that the investigators used the CSLI data to find the vehicle.

The officer who ultimately located the vehicle testified that

"[o]nce I got the CSLI data, I found the vehicle shortly after."

In an affidavit in support of a search warrant in the case, an

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officer averred that the CSLI data helped develop areas of

interest, both by identifying certain areas and confirming areas

that had already been developed. The officer elaborated that

the team used the CSLI in their search for the car.

Discussion. In reviewing a ruling on a motion to suppress,

"we adopt the motion judge's factual findings absent clear

error," Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008),

and "conduct an independent review of his ultimate findings and

conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213,

218 (2002). "[O]ur duty is to make an independent determination

of the correctness of the judge's application of constitutional

principles to the facts as found." Commonwealth v. Campbell,

475 Mass. 611, 615 (2016).

There is no dispute that a warrant was required to obtain

CSLI data in this case; at the time of this August 2020 search,

the law on that point was clear. See Commonwealth v. Estabrook,

472 Mass. 852, 858 (2015). See also, e.g., Commonwealth v.

Jeune, 494 Mass. 808, 815 (2024) (CSLI obtained pursuant to

warrant showed defendant's presence at three hotels, where his

distinctive car was seen on security video recordings). The

Commonwealth sought to avoid suppression of evidence seized

without a warrant by, relevant here, showing that the evidence

inevitably would have been discovered even without the CSLI

data. See Nix v. Williams, 467 U.S. 431, 444 (1984)

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("inevitable discovery" excuses failure to seek necessary

warrant where police would have obtained evidence if no

misconduct had taken place). In Massachusetts, the exception

requires the Commonwealth to prove by a preponderance of the

evidence, see Commonwealth v. O'Connor, 406 Mass. 112, 117

(1989), that "discovery of the evidence by lawful means was

certain as a practical matter, the officers did not act in bad

faith to accelerate the discovery of evidence, and the

particular constitutional violation is not so severe as to

require suppression [quotation omitted]." Commonwealth v.

Hernandez, 473 Mass. 379, 386 (2015). Discovery must be

"virtually certain." Commonwealth v. Perrot, 407 Mass. 539, 547

(1990). "In addition, the discovery must have been inevitable

under the 'circumstances existing at the time of the unlawful

seizure.'" Campbell, 475 Mass. at 622, quoting Perrot, 407

Mass. at 548. This is a "demanding test." Commonwealth v.

Balicki, 436 Mass. 1, 16 (2002), quoting Perrot, supra at 548.

Here, because all members of the investigative team

knew "at least some of the critical facts" of the

investigation, the law imputes knowledge of the CSLI data's

collection to all the investigating officers, even if they

testified that they were unaware of the data's contents.

See Commonwealth v. Privette, 491 Mass. 501, 508, 513

(2023). Moreover, the evidence amply supported the judge's

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finding that knowledge of the CSLI data impacted the way

investigators approached the case, taking steps they would

not otherwise have taken.

Furthermore, the judge did not err in finding that the

Commonwealth failed to prove that it would inevitably have

found the car without knowledge gleaned from the CSLI data.

The car was found in an area that the officers had already

searched without finding the car. Unlike in the seminal

Nix case, where a search team was going to scour culverts

for a body but merely had not reached the relevant area

when the initial search was called off, 467 U.S. at 436,

448-450, in the present matter there was no telling how

long it would have taken officers to "chase [enough] video"

to realize that they needed to double back. See Perrot,

407 Mass. at 545-548 (discovery not inevitable when

pocketbook was almost in plain view in heavily searched

area without being discovered). In fact, there was some

evidence that the officers had gone off in the wrong

direction.

Once the investigative team had the CSLI data, the

team followed up with a proprietor from whom they were able

to retrieve (on August 14) a video recording initially

requested on August 12; yet, the testimony in the case was

that video recordings sometime overwrite quickly, or are

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otherwise unavailable shortly after creation. There is no

guarantee that, by the time the officers realized such

video footage was important and went to retrieve it, the

video footage would still have been intact. Without the

CSLI data, the officers might have taken much longer to get

on the right track, and by then the video recordings might

have been inaccessible.

Moreover, even if we assume that the police's arrival

at St. John Street was inevitable, the car's discovery was

not a foregone conclusion. The testimony demonstrated that

another person had a set of keys to the car. The

Commonwealth did not put on any evidence describing who

that person was, explaining why the car was parked where it

was, or accounting for whether the person with the other

set of keys knew or could have known the car's location. A

key assumption of many Fourth Amendment cases is that cars

are inherently mobile. See, e.g., Carroll v. United

States, 267 U.S. 132, 153 (1925).

We are not assured that the car would have been where

the in-custody defendant left it when the officers

eventually arrived at St. John Street, if they ever did.

And if the car had gone somewhere else before investigators

arrived, there is no telling whether officers could have

"chased video" to any of the places that it thereafter

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could have gone. Each time the car passed an intersection,

the officers either would have had to obtain video footage

of the car going through that intersection or else find

video footage from each intersecting street to eliminate it

as a viable path. In just a handful of intersections, this

would have required the officers to pull an impracticable

number of video recordings, all of which may not have

existed or might have been rewritten shortly after

collection or be otherwise inaccessible. There is no

guarantee that a given road would have any operable

cameras, and to guess that the car's discovery might be

inevitable at such a point would be pure speculation. At

such a point, as one officer testified, the officers would

just have to scour the city for video footage at random and

hope to "get lucky." Nothing about this plausible outcome

would render the relevant video recordings' collection

certain as a practical matter.

Lastly, while the inevitable discovery exception is

concerned with "putting police in the same, not a worse

position [than] they would have been in if no police error

or misconduct had occurred" (footnote and citations

omitted), Nix, 467 U.S. at 443 (analogizing to the closely

related independent source doctrine); see O'Connor, 406

Mass. at 114, the cases require us to consider the severity

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of the constitutional violation at issue, even if the

evidence would inevitably have been discovered. See

O'Connor, supra at 118. Here, the law was well

established, the police had time to get a warrant, the

defendant was in custody, and the warrantless information

collected implicates sensitive privacy concerns. See

Carpenter, 585 U.S. at 312 (discussing how CSLI technology

could allow for "tireless and absolute surveillance"). To

the extent this is a close case (especially with respect to

the surveillance video recordings), suppression is

justified because the need to ensure compliance with the

law, see Commonwealth v. Webster, 75 Mass. App. Ct. 247,

259 (2009) (exclusionary rule exists in part to deter

police misconduct), is stronger than the need to avoid

punishing society for police mistakes under the facts as

here presented to us. See Nix, 467 U.S. at 447, quoting

People v. Defore, 242 N.Y. 13, 21 (1926) (lamenting that it

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is a shame if a "criminal is to go free because the

constable has blundered").

Order entered March 8, 2023,
allowing motion to
suppress, affirmed.

By the Court (Massing,
Singh & Grant, JJ.3),

Clerk

Entered: December 13, 2024.

3 The panelists are listed in order of seniority.

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