Commonwealth v. David Class.

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-211

COMMONWEALTH

vs.

DAVID CLASS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, David Class, appeals from an order in the

Superior Court denying his motion to suppress evidence obtained

through searches that were based on information obtained by a

series of wiretap warrants. On appeal, the defendant contends

that (1) the warrant applications and warrants were not

supported by probable cause and were unconstitutionally

overbroad, (2) the warrant applications failed to satisfy

statutory disclosure requirements, and (3) the warrants failed

to comply with statutory notice provisions. We affirm.

Background. In 2018 and 2019, the State police conducted a

large-scale narcotics and firearms investigation that identified

the defendant as a potential coconspirator in a drug trafficking

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operation. During the investigation, law enforcement obtained a

series of wiretap warrants and orders authorizing global

positioning system (GPS) surveillance of two of the defendant's

cell phones and his vehicle.

The first wiretap warrant was supported by an affidavit

that identified the defendant as a target related to an

investigation of an ongoing criminal conspiracy and leader in a

gang of drug dealers. The affidavit stated that the alleged

coconspirators used certain cell phones to facilitate cocaine

trafficking through text and voicemail communications. On

December 6, 2018, a judge issued a warrant authorizing, for a

period of up to fifteen days, the interception of oral, wire,

and electronic communications, electronic interrogation, and

real-time GPS and cell site location information (CSLI) of a

cell phone known to be used by the defendant.

As set forth in a subsequent affidavit, information

obtained pursuant to the December 6, 2018, warrant showed that

the defendant used his targeted cell phone and vehicle to

facilitate cocaine distribution to alleged coconspirators. GPS

data also showed that the defendant had engaged with an

unidentified "larger level" supplier. This information was used

to support an application for a fifteen-day extension of the

warrant. After searches suggested that the defendant was using

a new cell phone while continuing to use the same vehicle to

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distribute drugs, the judge issued another warrant, dated

January 4, 2019, that authorized the interception of oral, wire,

and electronic communications, electronic interrogation, and

real-time GPS and CSLI for this second cell phone. A separate

order, issued December 13, 2018, authorized the installation of

a GPS device to track the defendant's vehicle and was extended

for two additional fifteen-day periods.

The fruits of this series of wiretaps and orders were

incorporated into applications for search warrants directed at

the defendant, among others, which led to the seizure of drugs,

firearms, and ammunition at locations associated with the

defendant. The defendant was indicted on numerous counts,

including various drug trafficking and firearms offenses with

habitual offender enhancements. The defendant and codefendants

filed an omnibus motion to suppress evidence, challenging the

validity of the wiretap warrants, orders for GPS surveillance,

search warrants, wiretap searches, and GPS cell phone pings,

claiming that they failed to comply with G. L. c. 272, § 99, the

Massachusetts wiretap statute, and 18 U.S.C. § 2510, the Federal

wiretap law. After receiving documentary evidence at a hearing,

a second judge denied the motion. The defendant entered a

conditional guilty plea that reserved his right to challenge the

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denial of his motion to suppress on appeal.1 See Mass.

R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019).

Standard of review. Ordinarily, "[i]n reviewing a decision

on a motion to suppress, 'we accept the judge's subsidiary

findings of fact absent clear error but conduct an independent

review of [the] ultimate findings and conclusions of law.'"

Commonwealth v. Ramos, 470 Mass. 740, 742 (2015), quoting

Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552

U.S. 1079 (2007). Where, as here, the judge's findings are

based exclusively on documentary evidence, we review the judge's

findings of fact, as well as the judge's conclusions of law, de

novo. See Commonwealth v. Perry, 489 Mass. 436, 443 (2022).

Discussion. 1. Probable cause. The defendant contends

that certain wiretap warrant applications and wiretap warrants

were not supported by probable cause. In the context of

The parties' written agreement for the defendant's
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conditional guilty plea complied with the requirement of Mass.
R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019),
that it "specify the ruling or rulings that may be appealed,"
but did not comply with the requirement that it "must state that
reversal of the ruling or rulings would render the
Commonwealth's case not viable on one or more specified
charges." The parties remedied this error after the appeal was
entered. Specifically, the Commonwealth represented in a
supplemental memorandum that "[i]f the defendant's omnibus
motion had been allowed, the Commonwealth would have been unable
to prove any of the charges in this case," and the defendant
agreed with that representation. Trial judges are reminded that
they should not accept a conditional plea without first
obtaining compliance with Mass. R. Crim. P. 12 (b) (6).

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location tracking through GPS and CSLI, a warrant application

must show probable cause to (1) "believe that a particularly

described offense has been . . . committed" and (2) that the

information sought will "produce evidence of such offense or

will aid in the apprehension of a person who the applicant has

probable cause to believe has committed . . . such offense"

(citation omitted). Commonwealth v. Augustine, 467 Mass. 230,

236 n.15 (2014), S.C., 470 Mass. 837 and 472 Mass 448 (2015).

"Probable cause exists where the facts and circumstances within

. . . [the officers'] knowledge and of which they had reasonably

trustworthy information [are] sufficient in themselves to

warrant a man of reasonable caution in the belief that an

offense has been or is being committed . . . ." (quotation and

citation omitted). Commonwealth v. Rousseau, 465 Mass. 372,

384-385 (2013).

The defendant does not dispute that the affidavits set

forth probable cause that crimes were being committed. Instead,

he contends that (1) the warrants for CSLI and GPS data were

unconstitutionally overbroad, and (2) the affidavits submitted

in support of the warrant applications did not establish the

requisite nexus between the sought-after evidence and the

crimes. We are not persuaded.

"The Fourth Amendment, art. 14, and G. L. c. 276, § 2,

require that a search warrant describe with particularity the

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places to be searched and the items to be seized." Commonwealth

v. Perkins, 478 Mass. 97, 106 (2017). "The dual purposes of the

particularity requirement are '(1) to protect individuals from

general searches and (2) to provide the Commonwealth the

opportunity to demonstrate, to a reviewing court, that the scope

of the officers' authority to search was properly limited.'"

Commonwealth v. Holley, 478 Mass. 508, 524 (2017), quoting

Commonwealth v. Valerio, 449 Mass. 562, 566-567 (2007).

Defining the permissible parameters of time for a CSLI search

that is justified by probable cause is a "fact-intensive

inquiry, and must be resolved based on the particular facts of

each case." Commonwealth v. Hobbs, 482 Mass. 538, 549 (2019),

quoting Holley, supra at 522. A warrant may authorize the

monitoring of real-time location information through GPS and

CSLI for no longer than fifteen days. See Commonwealth v.

Connolly, 454 Mass. 808, 825 (2009).

Here, even though the initial warrant and subsequent

extensions each complied with the fifteen-day maximum, the

defendant argues that they amounted to impermissible general

warrants because of their breadth and around-the-clock

applicability. We disagree; the parameters of the warrants were

justified by the nature of the ongoing criminal conspiracy and

the relationship of the coconspirators therein, including their

use of the identified cell phones and vehicle in furtherance of

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it. The defendant contends that the warrants should have been

limited to "communications deemed material to the designated

offense and/or reasonably believed to be related to the

designated offense," but, as the motion judge explained, there

is "no additional legal requirement for a showing that, in all

places and at all times covered by each order, the phones will

be used in illegal narcotics dealing, or otherwise demonstrate

the location of existing or future target criminal activity."2

We also reject the defendant's argument that the affidavits

failed to demonstrate "a sufficient nexus between the criminal

activity for which probable cause has been established and the

physical location of the cell phone . . . of the person the

applicant has probable cause to believe has committed the

offense, at least for the time and place of the criminal

activity." See Hobbs, 482 Mass. at 547. "To establish the

requisite nexus, the affidavit must demonstrate a substantial

basis to conclude that 'the items sought are related to the

criminal activity under investigation, and that they reasonably

2Even warrants that are overbroad in some respects do not
prejudice a defendant so long as the information relied on is
limited to the crime itself and the Commonwealth does not
exploit the overbreadth. See Commonwealth v. Snow, 486 Mass.
582, 591-592 (2021); Hobbs, 482 Mass. at 550-551. Where a
warrant was overbroad, "the correct remedy is partial
suppression only of the evidence that fell outside what would
have been a reasonable scope." Snow, supra at 591. The
defendant did not seek such a remedy here.

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may be expected to be located in the place to be searched at the

time the search warrant issues.'" Id. at 546, quoting

Commonwealth v. Alexis, 481 Mass. 91, 102 (2018). In the

context of real-time location information through GPS and CSLI,

a search is "reasonably expected to [show] the location of the

person possessing the cell phone." Hobbs, supra at 546. See

Commonwealth v. Almonor, 482 Mass. 35, 45 (2019) (tracking cell

phone "results in 'near perfect surveillance' of its user"

[citation omitted]).

Here, the initial affidavit demonstrated probable cause

that the defendant was engaged in a drug trafficking conspiracy

and used a particular cell phone to facilitate drug

transactions. Information subsequently obtained pursuant to the

initial warrant demonstrated that the defendant utilized a

second cell phone and his vehicle to facilitate drug

transactions with the alleged coconspirators and suppliers.

These facts provided a sufficient basis to conclude that real-

time location information from the defendant's cell phones and

vehicle would likely reveal information concerning the

conspiracy under investigation. See Alexis, 481 Mass. at 102.

See also Hobbs, 482 Mass. at 544 ("[I]nferences drawn from the

affidavit need only be reasonable, not required").

2. Disclosure. The defendant asserts that the warrant

applications failed to comply with the Massachusetts wiretap

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statute because they did not disclose prior interceptions of the

defendant. The application for the December 6, 2018, warrant

stated, "We are aware of no prior application submitted for

interception of communications occurring on [the defendant's]

cellular telephone of 413-378-7361." As the motion judge

recognized, this disclosure "precisely and accurately" tracked

the language of the statute, which provides that, "[i]f a prior

application has been submitted or a warrant previously obtained

for interception of oral or wire communications," a new

application must set forth "a statement fully disclosing the

date, court, applicant, execution, results and present

status thereof." G. L. c. 272, § 99 (F) (2) (h). Nevertheless,

the judge interpreted the statute as requiring more than just

"disclosure of wiretaps of particular devices or phone numbers."

Specifically, pointing to the Legislature's intent in avoiding

unjustified intrusion on individual privacy, see Commonwealth v.

Vitello, 367 Mass. 224, 231 (1975), the judge concluded that the

statute also requires "disclosure of prior wiretaps of 'any of

the same persons' targeted in the pending warrant application,"

as the Federal wiretap statute expressly requires.3 See

18 U.S.C. § 2518(1)(e).

3 At oral argument, the Commonwealth represented that the
Hampden County district attorney's office now discloses on its
warrant applications all prior wiretaps involving a particular
defendant.

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We need not decide whether such enhanced disclosure is

required under G. L. c. 272, § 99 (F) (2) (h), because, as the

motion judge also found, the Commonwealth's application in this

case disclosed prior warrants targeting the defendant. It did

so by incorporating by reference the supporting affidavit, which

in turn disclosed interceptions of the defendant's

communications in connection with an earlier United States Drug

Enforcement Administration investigation. See Vitello, 367

Mass. at 272 (facts in supporting affidavit may be "deemed

incorporated in the warrant so as to supplement particularity

requirements"). Thus, as the judge concluded, even if the

Massachusetts statute is interpreted as "implicitly requir[ing]

disclosure of prior warrants targeting [the same] persons, . . .

the facts of this case meet that requirement." We are not

persuaded by the defendant's claims that the previous

interceptions had to be disclosed in the application itself, or

that the disclosure in the affidavit was inconsistent with the

statement in the application that tracked the language of the

Massachusetts statute.4

4 Because the Commonwealth properly executed its disclosure
obligations, we need not address its alternative argument that
suppression is unwarranted in the absence of bad faith, unfair
advantage, or prejudice. See Vitello, 367 Mass. at 269-270,
273.

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3. Notice. Lastly, the defendant argues that the warrants

failed to comply with the wiretap statute by not providing any

alternative direction for deferred service. We disagree.

General Laws c. 272, § 99 (L) (2) permits the postponement

of service of a warrant where the issuing judge finds that

exigent circumstances exist. See Vitello, 367 Mass. at 268.

The application must show "important special facts which set

forth the need for continued secrecy to the satisfaction of the

issuing judge." G. L. c. 272, § 99 (L) (2). If the judge finds

good cause for postponement of service, the warrant must contain

"a description of such circumstances, including the reasons for

the applicant's belief that secrecy is essential," G. L. c. 272,

§ 99 (F) (2) (i), and "an alternative direction for deferred

service," G. L. c. 272, § 99 (I) (6). The direction for

deferred service "may direct that the attested copy of the

warrant be served . . . at such time as may be appropriate in

the circumstances but [not] later than three (3) years from the

time of expiration of the warrant or the last renewal thereof."

G. L. c. 272, § 99 (L) (2).

Here, the judges who issued the warrants found that exigent

circumstances existed to require postponement of their service

"until such time" that the judges made "an appropriate order

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relative to service."5 We agree with the motion judge that the

statute does not require the warrant to specify a precise time

or method for deferred service where "the timing of deferred

service will depend upon future events, not known to the

applicant or judge at the time the warrant is signed."6 Where

the judges could have provided for service of the warrants three

years after expiration of their last renewal, G. L. c. 272,

§ 99 (L) (2), the decision to leave open the possibility of

service at an earlier but as-yet-undetermined time was

appropriate in the circumstances.

Order denying motion to
suppress evidence affirmed.

By the Court (Meade,
Ditkoff & Toone, JJ.7),

Clerk

Entered: December 10, 2025.

5 The defendant does not dispute that exigent circumstances
existed.

6 In a postargument letter pursuant to Mass. R. A. P.
22 (c), as appearing in 481 Mass. 1651 (2019), the Commonwealth
stated that the Hampden County district attorney's office tracks
the need for service after a postponed-service order issues and
files a motion to un-impound the warrant materials for service
when grounds for postponement no longer exist or when service is
otherwise due.

7 The panelists are listed in order of seniority.

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