Commonwealth v. Janvier

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23-P-21 Appeals Court

COMMONWEALTH vs. CLAUVENS JANVIER.

No. 23-P-21.

Middlesex. September 15, 2023. – April 18, 2024.

Present: Massing, Henry, & Grant, JJ.

Assault and Battery. Cellular Telephone. Global Positioning
System Device. Constitutional Law, Search and seizure,
Probable cause. Search and Seizure, Warrant, Affidavit,
Probable cause. Probable Cause. Practice, Criminal,
Motion to suppress, Warrant, Affidavit.

Indictments found and returned in the Superior Court
Department on June 8, 2021.

A pretrial motion to suppress evidence was heard by James
H. Budreau, J., and motions for reconsideration also were
considered by him.

Applications for leave to prosecute interlocutory appeals
were allowed by Dalila Argaez Wendlandt and Serge Georges, Jr.,
JJ., in the Supreme Judicial Court for the county of Suffolk,
and the appeals were reported by them to the Appeals Court.

Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.
Catherine B. Sullivan Ledwidge for the defendant.
2

MASSING, J. In this interlocutory appeal, both the

Commonwealth and the defendant challenge an order of a Superior

Court judge affirming in part and denying in part the

defendant's motion to suppress geographic location data obtained

with respect to two mobile telephone numbers and a cellular

telephone pursuant to two search warrants. At issue is whether

the search warrant applications established probable cause to

believe that the defendant owned or was using the phone numbers

and phone during the eighteen-day period in which he was

suspected of committing a series of crimes. We conclude that

they did and, accordingly, reverse the order allowing in part

the motion to suppress.

Background. Between November 10 and 27, 2020, a series of

similar and seemingly random assaults and batteries took place

in Waltham, mostly occurring in three geographic clusters within

the city. The defendant, Clauvens Janvier, was arrested in

connection with the attacks on December 11, 2020.

On December 16, 2020, the Waltham police applied for the

first of the two search warrants at issue in this appeal. The

application was supported by the affidavit of Detective

Patrolman Thomas Bryant. Bryant's affidavit set forth the

following facts.

1. The crimes. The first attack occurred on the evening

of November 10, 2020. The victim was stepping out of his car
3

when a Black man, possibly with braided hair, wearing a black T-

shirt and dark jeans, approached him. Without speaking, the man

pulled out what the victim thought was a long knife and swung it

at him, cutting the victim's upper lip. The passenger in the

victim's car witnessed the attack and thought she recognized the

perpetrator as the defendant, her former high school classmate.

The next night, in the parking garage of an office park

near Brandeis University, a Black man wearing a red hooded

sweatshirt and black sweatpants approached three men who were

sitting in a parked car. One of the occupants got out of the

car; the assailant grabbed him by his hair, slammed his head

into the side of the car, and punched him in the face. The

victim took a tire iron from the car to defend himself. The

assailant pulled a machete from his sweatpants, struck the

victim with its blunt side, and then left the garage on foot.

Several more attacks followed between November 16 and 27.

The victims were always male, and nearly each time the assailant

struck without warning, usually from behind, and often with an

unknown object as a weapon. The assailant said little or

nothing to the victims and fled without taking anything from

them. The victims described the perpetrator as a Black male

with either dark or lighter skin, between five feet five inches

and six feet tall, sometimes with braided hair, and typically
4

wearing a black or red hooded sweatshirt and black sweatpants or

light-colored pants.

Based on the tentative identification by his high school

classmate after the first incident, the defendant had become a

suspect. On November 22, the police contacted the defendant by

telephone, as discussed more fully below, and the defendant

agreed to go to the Waltham police station for an interview.

There, after receiving his Miranda warnings, he declined to

speak with the police.

On December 7, the victim of the parking garage attack

contacted the police because he had seen the man he believed was

his attacker. The victim reported that the man was wearing the

same outfit as the night of the attack and was sitting in a

parked car in the garage in the same spot the victim had

observed the car on the night of the attack. The police

responded and approached the suspect's car. The defendant was

in the car, and the car, a 2004 Saab, was registered to him.1

Three days later the police prepared a photograph array from

which the parking garage victim positively identified the

defendant. The next day, December 11, the police obtained a

warrant for the defendant's arrest, located him in the Saab, and

arrested him. Based on the appearance of the Saab's interior,

1 The Saab was the same car that the defendant had driven to
the police station on November 22.
5

the police believed the defendant had been living in the car.

At booking the defendant stated he was homeless; the police were

never able to ascertain an address for the defendant.

Authorized by two search warrants, not contested here, the

police searched the defendant's Saab and found a "large

knife/machete, a red hooded sweatshirt, [a] black hooded

sweatshirt, light color pants, work style boots, [a] puffy black

jack[et,] a black mask and a loaded gun [with] extra ammunition"

and "a black iPhone [cell phone]."

2. The phone numbers and phone. On November 22, when

Waltham Detective Sergeant McCarthy asked the defendant to come

to the police station for an interview, McCarthy called the

defendant at a 781 area code phone number. The affidavit did

not explain how McCarthy learned of the defendant's 781 number,

but it did state that the police checked the number using a

"free phone look up tool" called "Zetx," and that the number

"came back to a wireless caller." Records later obtained from

MetroPCS pursuant to an administrative subpoena identified the

defendant as the "subscriber" associated with the 781 number.

As noted, the police found an iPhone when they arrested the

defendant and searched the Saab on December 11. During booking,

the defendant provided an 857 area code phone number. Bryant

confirmed that the iPhone was associated with the 857 number by

sending a text message, which "appeared on the screen of the
6

phone." Another detective used the Zetx tool and learned that

the 857 number was "listed to Metro PCS, which falls under T-

Mobile[,] under the name" of the defendant.

3. The search warrant applications. Bryant applied for

the first of the two challenged search warrants on December 16,

2020. This first application sought to command T-Mobile to

provide historical cell site location information (CSLI),

subscriber information, and global positioning system (GPS)

data, if any, associated with the 781 and 857 numbers from 6

P.M. on November 10 through 3 A.M. on November 28, 2020, that

is, beginning one and one-half hours before the first attack and

ending five hours after the last attack. The warrant issued on

the same day Bryant requested it, and T-Mobile produced the

requested information except for GPS data.

On January 15, 2021, Bryant applied for the second of the

challenged search warrants, this time focusing on information to

be extracted from the cell phone seized from the defendant's

vehicle at the time of his arrest, now more fully described as

an "Apple iPhone SE 2 64G RED smartphone [in] a black case."

The facts set forth in the accompanying affidavit largely

duplicated those in the first affidavit, but added that location

information obtained from T-Mobile pursuant to the first warrant

had placed the defendant's phone in the vicinity of the attacks
7

on November 10, 11, 13, 20, and 22.2 The second affidavit also

stated that the phone number assigned to the defendant's iPhone

had changed from the 857 number to the 781 number. Apparently

to explain the change, Bryant stated that "[c]ustomers of

TMobile who subscribe on a 'minutes-based' contract will have

their number changed if their contract lapses." The application

sought a warrant to search the cell phone for, among other

things, a list of incoming and outgoing calls and text messages;

entries from "the electronic 'phone book' or list of contacts";

"[a]ccount names or IDs and passwords for applications, e-mail,

social media and related accounts"; and GPS or other location

data.3

4. Motion to suppress. In July 2021 the defendant was

arraigned on twenty-five indictments arising from the string of

attacks and the discovery of the firearm in the Saab. The

defendant filed a motion to suppress the information obtained

2 The affidavit did not provide any location information to
corroborate the defendant's participation in the attacks on
November 16, 19, or after November 22. The November 13 attack,
which rendered the victim unconscious, was reported at 6:22 P.M.
At 6:30 P.M., a call was made from within one-fourth of a mile
of a tower that was approximately two miles away from where the
attack occurred.

3 The warrant application also sought the contents of any
text messages stored on the phone. During proceedings in the
trial court on the motion to suppress, the Commonwealth conceded
a lack of probable cause to obtain the content of the
defendant's text messages.
8

from the two warrants, arguing that the warrants failed to

establish probable cause that he was using the 781 number, the

857 number, or that he owned, possessed, or used the iPhone

found in his car at any time during the period between November

10 and November 28, 2020. The motion judge allowed the motion

in part, suppressing any information obtained as the result of

either search warrant for the period from November 10 to

November 21, but denied the motion with respect to information

obtained from November 22 through November 28. The judge

reasoned that the affidavits did not establish probable cause to

believe that the defendant owned, possessed, or used a cell

phone or either mobile phone number prior to November 22, the

day the police contacted him using the 781 number, but that the

affidavits did establish probable cause to believe that the

defendant was using the phone and the phone numbers on and after

that date.4

The Commonwealth applied to a single justice of the Supreme

Judicial Court for interlocutory review of the order allowing in

part the motion to suppress, as clarified by the order allowing

4 The judge initially denied the motion as to location data
for November 11, the date of the parking garage attack. Acting
on the defendant's motion for reconsideration, the judge agreed
that the basis for allowing the motion to suppress for the
period from November 10 to November 21 applied equally to
information from November 11. The order allowing
reconsideration thus clarified that the suppression order
applied to the CSLI from November 11.
9

the defendant's motion for reconsideration. See note 4, supra.

The defendant, in turn, filed an application for interlocutory

review of the partial denial of his motion. Both applications

were allowed, ordered consolidated, and referred to this court.

Discussion. On appeal, the Commonwealth maintains that the

search warrant affidavits established probable cause to believe

that location data associated with the 781 number, the 857

number, and the defendant's cell phone would provide evidence of

his presence near the scenes of the crimes for the entire period

from November 10 to November 28. The Commonwealth argues that

even though the affidavits did not establish that the defendant

was using the 781 number until the police contacted him at that

number on November 22, there was probable cause to believe he

was using the number during the twelve days before November 22.

Likewise, the Commonwealth argues that although the affidavits

included no information about the defendant's use of the 857

number or his possession of the iPhone until his arrest on

December 11, there was probable cause to believe that he had

been using the 857 number and the phone for at least thirty-one

days prior to his arrest. The defendant does not take issue

with the judge's ruling that location information associated

with the 781 number would likely produce evidence of the crimes

from November 22 forward, but argues that the affidavits failed

to establish that the defendant's 857 number, in use on December
10

11, would provide relevant information for any time between

November 10 and 28.

1. Principles governing requests for CSLI. "[T]he

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." Commonwealth v. Jordan, 91

Mass. App. Ct. 743, 751-752 (2017). The affidavit in support of

the warrant "must demonstrate probable cause to believe [1] that

a particularly described offense has been, is being, or is about

to be committed, and [2] that [the CSLI being 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, is committing, or is about to commit such offense"

(quotations and citation omitted). Commonwealth v. Perry, 489

Mass. 436, 454 (2022).5

5 The first warrant sought both CSLI and GPS data from T-
Mobile. T-Mobile did not provide GPS data, presumably because
GPS data is associated with mobile phones rather than mobile
phone numbers. The second warrant authorized the police to
search the defendant's phone for GPS data. For the purposes of
this appeal, we may treat historical GPS data and CSLI the same.
See Commonwealth v. Augustine, 467 Mass. 230, 254 (2014), S.C.,
470 Mass. 837 and 472 Mass. 448 (2015) ("GPS data and historical
CSLI are linked at a fundamental level" because they both
implicate "the same constitutionally protected interest -- a
person's reasonable expectation of privacy -- in the same manner
-- by tracking the person's movements").
11

Here, it is uncontested that the two search warrant

affidavits established probable cause to believe that the

defendant committed the string of attacks. The only issue in

this appeal is whether the affidavits demonstrated probable

cause to believe that location data associated with the 781

number, the 857 number, and the defendant's cell phone would

produce evidence that the defendant committed the crimes. We

address this question de novo. See Commonwealth v. Molina, 476

Mass. 388, 394 (2017); Jordan, 91 Mass. App. Ct. at 748. Our

analysis is limited to the facts contained within the "four

corners" of the affidavits and the reasonable inferences that

may be drawn from those facts. Commonwealth v. Henley, 488

Mass. 95, 114 (2021); Commonwealth v. O'Day, 440 Mass. 296, 297-

298 (2003).

Because "cell phones have become 'an indispensable part of

daily life and exist as almost permanent attachments to [their

users'] bodies,'"6 the magistrate or judge reviewing the warrant

application may generally infer that the location data from a

6 Seeking a warrant for location data from a cell phone is
different from seeking to search its contents. To search stored
data, the warrant application may not rely merely on the
"ubiquity" of cell phones, but must demonstrate "particularized
information" that the phone contains evidence of the crime.
Perry, 489 Mass. at 455, quoting Commonwealth v. Morin, 478
Mass. 415, 426 (2017). See Commonwealth v. Hobbs, 482 Mass.
538, 547 n.11 (2019); Jordan, 91 Mass. App. Ct. at 752 n.8.
12

particular phone will yield the suspect's location at any given

time. Commonwealth v. Hobbs, 482 Mass. 538, 546 (2019), quoting

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

"an affidavit establishing that a suspect committed a crime and

that the suspect was known to own or use a particular cell

phone" provides the requisite basis to believe that location

data will provide evidence of the suspect's participation, or

lack thereof, in the suspected criminal activity. Hobbs, supra

at 547. See Perry, 489 Mass. at 455 (affidavits must provide "a

substantial basis to conclude that the defendant used his or her

cellular telephone during the relevant time frame, such that

there is probable cause to believe the sought after CSLI will

produce evidence of the crime").

The general legal principles concerning probable cause to

obtain a search warrant are well established. The affidavit

must demonstrate "that items relevant to apprehension or

conviction are reasonably likely to be found at the location" to

be searched. Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509

(2019). "The probable cause standard does not require a showing

that evidence more likely than not will be found." Id. "In

dealing with probable cause . . . we deal with probabilities.

These are not technical; they are the factual and practical

considerations of everyday life on which reasonable and prudent

[people], not legal technicians, act." Jordan, 91 Mass. App.
13

Ct. at 748, quoting Commonwealth v. Hason, 387 Mass. 169, 174

(1982).

As to what establishes probable cause to believe that a

suspect owned or was using a particular cell phone or mobile

phone number at a particular time, however, our case law to date

provides little guidance. In the leading case, Hobbs, the

affidavit established the defendant's use of a particular phone

number as follows. About two and one-half months after the

murder under investigation, "the defendant's brother provided

police with a telephone number for a cell phone he understood

belonged to the defendant." Hobbs, 482 Mass. at 545. The

brother "had not seen the defendant in several months" and did

not know his whereabouts. Id. The defendant's former

girlfriend corroborated the defendant's association with the

cell phone number. See id. The decision, and presumably the

affidavit, is silent as to when the former girlfriend had last

seen or contacted the defendant. Thus, establishing that the

defendant was using the phone number within months of the crime

under investigation was sufficient to create probable cause to

obtain CSLI in Hobbs. See id. at 548-549.

In Commonwealth v. Lavin, 101 Mass. App. Ct. 278, 280-282,

299 (2022), a warrant for CSLI was sought slightly more than one

month after the crime. The decision states that the defendant's

mother provided his cell phone number to the police. See id. at
14

300. Although the decision does not state when this occurred, a

reasonable inference would be that she provided the number

around the time the police sought the warrant.

The Commonwealth, drawing on cases concerning the staleness

of information contained in a search warrant affidavit, likens

cell phones and mobile phone numbers to other forms of evidence

that our cases have identified as durable. With respect to the

timeliness of an affidavit, "[i]nformation concerning an item

that is perishable, readily disposable, or transferrable might

not establish probable cause even a few days later."

Commonwealth v. Guastucci, 486 Mass. 22, 28 (2020). "On the

other hand, an item that is durable, of enduring use to its

holder, and not inherently incriminating might reasonably be

found in the same location several weeks later." Id.

Cell phones are durable goods, of enduring use, and not

inherently incriminating. Similarly, although there may be

exceptions, it is reasonable to infer that most cell phone users

retain their phone numbers for indefinite lengths of time to

maintain social ties and business relationships. For example,

in United States v. Grupee, 682 F.3d 143, 145 (1st Cir.), cert.

denied, 568 U.S. 1002 (2012), the affidavit established that the

defendant's housemate had arranged to sell crack cocaine using a

particular cell phone number six months prior to the application

for a warrant to search the shared house for the phone.
15

Rejecting the defendant's staleness claim, the court held that

it was reasonable to infer that the housemate "would still be

using the same phone six months later . . . to maintain some

degree of continuity or risk losing buyers," even though there

was evidence he had used a second cell phone with a different

number. Id. at 146.7

2. Application. We apply these principles to determine

whether the two search warrant applications established probable

cause to believe that the defendant was using the phone numbers

and phone in question during the period in which the crimes

occurred.

a. First search warrant. The first warrant authorized

T-Mobile to search its records and provide location data

pertaining to the 781 number and the 857 number for the period

from November 10 to 28.

7 Other cases cited by the parties add little to our
analysis. For example, Perry, 489 Mass. at 438-440, 457-458, is
inapplicable because the police were seeking "tower dumps" and
were not targeting any particular suspect, phone, or phone
number. In Jordan, 91 Mass. App. Ct. at 747, before applying
for the warrant, the police used an administrative subpoena to
learn that the defendant had activated his cell phone number
four years before the crime and had terminated service three
weeks after the crime. Although information of that nature in
an affidavit would be desirable, nothing in Jordan suggests that
it is necessary to establish probable cause. It is perhaps
relevant here that the defendant in Jordan used the same cell
phone number for four years and terminated it around the time he
had reason to believe that he was suspected of a crime.
16

i. The 781 number. The police used the 781 number to

contact the defendant on November 22 and ask him to come to the

police station for questioning. Until he arrived at the

station, the defendant had no reason to believe he was suspected

of the crimes that had occurred during the previous twelve days.

As it can generally be inferred that people keep the same mobile

phone number for extended periods of time to maintain contact

with family, friends, and business associates, we readily infer

that the defendant had been using the 781 number for at least

twelve days before he appeared at the police station.

The fact that the defendant was apparently living out of

his car and, inferentially, without substantial financial

resources, does not cause us to question this result. While it

may be reasonable to infer that a person in the defendant's

circumstances might not be able to afford to maintain a

consistent mobile phone number, it is also reasonable to infer

that because cell phones have become "indispensable to

participation in modern society" (citation omitted), Carpenter

v. United States, 138 S. Ct. 2206, 2220 (2018), a person in the

defendant's situation would prioritize paying for mobile

telephone service as a means of maintaining contact,

communication, business ties, and even for entertainment. Cf.

Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 50 & n.9

(2018) (fact that defendant had money to pay for heating and
17

cell phone did not necessarily imply that she could afford

restitution payments). The defendant had working mobile phone

service using the 781 number on November 22. There is a

reasonable likelihood that he had service in the twelve

preceding days, and that he did not coincidentally activate the

781 number on the very same day the police contacted him.

ii. The 857 number. When the police arrested the

defendant on December 11, they learned he had another phone

number, with an 857 area code, and they seized an iPhone from

the defendant's vehicle that was associated with that number.8

The defendant argues that because the affidavit provided no

information establishing when he acquired the 857 number, it

could not provide probable cause to believe that location data

associated with that number would produce evidence of crimes

that occurred between November 10 and 28. In other words, the

defendant's contention is that even though the 857 number was

active on December 11, it is not reasonably likely that it had

8 Bryant sent a text message to the 857 number, which caused
Bryant's number to appear on the screen of the iPhone. The
defendant has not argued, here or in the trial court, that
Bryant's verification of the phone number in this manner
constituted a search. See Commonwealth v. Alvarez, 480 Mass.
1017, 1018 (2018) (observing text message regarding drug
transaction appear on outer screen of cell phone seized from
defendant incident to valid arrest not a search where "[t]here
was no evidence that the officer opened the cell phone,
manipulated it to view the text message, or otherwise perused
its contents").
18

been active for the full month before that. Conversely, the

Commonwealth necessarily contends that there was probable cause

to believe that the 857 number had been in service for at least

a month prior to December 11, such that data associated with it

would yield evidence of the defendant's whereabouts between

November 10 and 28.

As with the 781 number, it is reasonable to infer that the

defendant did not just happen to activate the 857 number on the

day he was arrested; therefore, the affidavit provided probable

cause to believe that he had been using the 857 number at least

for some time prior to December 11. For the purposes of this

case, we need not determine the outer limit of the likely

duration of use of any given mobile phone number. Considering

the few cases on point, see Hobbs, 482 Mass. at 548-549; Lavin,

101 Mass. App. Ct. at 299-300, and the durability of mobile

phone numbers in general, as discussed supra, we think that

slightly more than one month is within that limit.

We recognize that this result suggests that the defendant

may have had two different working mobile phone numbers or cell

phones at the same time, which may appear inconsistent with his

apparent poverty. But we are reluctant to draw

conclusions -- and we are certainly not permitted to take

judicial notice, cf. Bruno-O'Leary, 94 Mass. App. Ct. at 50

n.9 -- about the mobile phone habits or proclivities of persons
19

of different levels of income. The affidavit established that

the defendant had two working mobile phone numbers during or

just after the time of the crimes. "[A] search warrant

affidavit may establish probable cause that evidence could be

found in more than one location." Commonwealth v. Defrancesco,

99 Mass. App. Ct. 208, 213 (2021). In dealing with probable

cause, we are dealing with probabilities, not certainties, and

search warrant affidavits are to be "read as a whole, not

parsed, severed, and subjected to hypercritical analysis."

Molina, 476 Mass. at 394, quoting Commonwealth v. Kaupp, 453

Mass. 102, 111 (2009). A search warrant application need not

exclude all other possibilities. See Guastucci, 486 Mass. at 26

("officers need not rule out a suspect's innocent explanation

for suspicious facts to obtain a warrant" [quotations and

citation omitted]); Commonwealth v. Hason, 387 Mass. at 175

("Probable cause does not require a showing that the police

resolved all their doubts").

"With due deference to the magistrate's determination of

probable cause, and given the preference accorded to searches

pursuant to warrants" (citations omitted), Jordan, 91 Mass. App.

Ct. at 753, we conclude that the affidavit provided a

substantial basis to believe that location information

associated with the 857 number -- or the 781 number, or

both -- would be reasonably likely to provide evidence of the
20

defendant's whereabouts during the relevant time period. See

Perry, 489 Mass. at 455; Hobbs, 482 Mass. at 546. The motion to

suppress the location information obtained pursuant to the first

warrant should have been denied.9

b. Second search warrant. The second warrant sought

location data and other information contained within the

9 The defendant had not argued, here or in the trial court,
that the police violated his Miranda rights when they obtained
the 857 number from him at booking, and we disagree with our
dissenting colleague that we could partially affirm the partial
allowance of the motion to suppress (that is, as to the location
data associated with the 857 number from November 10 through 21)
on this ground. While we are free to affirm on grounds
different from those relied on by the motion judge, those
grounds must be "supported by the record" and "the facts found
by the judge." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102
(1997). We cannot resolve the issue raised sua sponte by
Justice Henry based on the information contained within the four
corners of the affidavits. Addressing the issue would require
additional evidence and findings of fact concerning myriad
issues, including when and if the police gave the defendant
Miranda warnings during his arrest or booking, the defendant's
criminal history and familiarity with Miranda warnings, the
booking procedures of the Waltham police department, and the
administrative necessity for police or probation departments to
collect defendants' phone numbers at booking. Because the
defendant did not raise this issue in his motion to suppress,
the Commonwealth was not on notice of the need to present
evidence in this regard. See Commonwealth v. Delossantos, 492
Mass. 242, 248-249 (2023). As Justice Henry suggests that "in
every case involving a crime where location is relevant," post
at , police may no longer ask for phone numbers at
booking, it would be "particularly unwise" to reach this far-
reaching issue here, "where the issue was not briefed on appeal
and involves a novel question." Ferreira v. Charland, 103 Mass.
App. Ct. 194, 208 n.24 (2023). Cf. Commonwealth v. White, 422
Mass. 487, 501 (1996) (declining to reach question whether
police documentation of telephone number defendant called at
booking fell within routine booking question exception to
Miranda).
21

defendant's iPhone. The only new facts in the second affidavit

were that (a) the location data obtained from the first warrant

had confirmed the defendant's proximity to five of the

attacks -- all before November 22; (b) the 857 number associated

with the iPhone on December 11, 2020, was no longer in service

as of January 15, 2021, apparently because the defendant had

subscribed to that number on a "minutes-based" contract, which

had expired; and (c) the phone, previously described as a black

iPhone, was, more precisely, a red iPhone SE 2 64G in a black

case.

The phone was seized from the defendant's car at the time

of his arrest on December 11 and was associated with the 857

number at that time. As cell phones are durable items and not

inherently incriminating, see Guastucci, 486 Mass. at 28, it is

reasonably likely that the defendant possessed the same phone

for a least a month before he was arrested. Moreover, the

second affidavit established that the iPhone was associated with

the 857 number on December 11 but had changed, or changed back,

to the 781 number as of the date of the second affidavit about

one month later. We have no difficulty concluding that location

data associated with this cell phone would be reasonably likely

to provide information about the defendant's whereabouts during

the entire crime spree.
22

Conclusion. The order allowing in part the defendant's

motion to suppress, as clarified by the order allowing the

defendant's motion for reconsideration, is reversed. An order

shall issue denying the motion to suppress (except as to the

content of any text messages).10

So ordered.

10 See note 3, supra.
HENRY, J. (concurring in part and dissenting in part). I

disagree that the first search warrant application established

probable cause to believe that the defendant "was known to own

or use" the 857 phone number during the eighteen-day crime

spree. Commonwealth v. Hobbs, 482 Mass. 538, 547 (2023). The

affidavit submitted in support of the first application

(affidavit) offers no facts, let alone a substantial basis, to

conclude that he did. Instead, the affidavit establishes that

(1) the defendant was using the MetroPCS 857 number on December

11, which was fourteen days after the last attack, (2) he was

using a different MetroPCS phone number (the 781 phone number)

during the period of the attacks, (3) his home (i.e., his car)

contained only one cell phone, and (4) the defendant was poor.

None of the twelve victims or any witness described the attacker

as using or possessing a phone during any of the assaults and

the attacks did not require a cell phone. The majority infers

that this unhoused defendant, who it acknowledges was "without

substantial financial resources," ante at , was

simultaneously using both phone numbers and a second

undiscovered phone -- though the affidavit does not claim that

the defendant was "known to own or use" two phones or the 857

number during any part of the crime spree. We are permitted to

make reasonable inferences, but we cannot speculate. I would
2

suppress all cell site location information (CSLI) associated

with the 857 number. To that extent, I dissent.

I write separately for two additional reasons. First, the

police obtained the defendant's 857 number during the booking

process, which raises two concerns: (a) the police immediately

used the phone number to investigate, and (b) the affidavit

recounted that the defendant had invoked his right to remain

silent on November 22, 2020, and yet the four corners of the

affidavit offer no statement that the defendant was re-

Mirandized at his arrest or before booking. It is a troubling

notion that for any crime at a specific location, the police may

obtain a cell phone number through "routine booking questions"

and then use it to investigate. Asking for a phone number is

now far from routine; it is tantamount to asking the person to

put themself at the scene of the crime.

The second reason I write separately is that, though I

agree with the majority that the CSLI for the 781 phone number

and the iPhone for the relevant period should not have been

suppressed, given this record, I would expressly limit our

holding by conditioning it on confirmation that the police had

no information in their possession on the date of the first

affidavit that the defendant was using a different phone (or no

phone) prior to November 22, 2020.
3

1. The CSLI data for the 857 phone number should be

suppressed entirely. As the majority explains, the question is

whether the suspect was known to own or use a particular phone

number (or phone) around the time of the crimes. The majority

concludes that "although there may be exceptions, it is

reasonable to infer that most cell phone users retain their

phone numbers for indefinite lengths of time to maintain social

ties and business relationships." Ante at . The

majority also states that "[t]he fact that the defendant was

apparently living out of his car and, inferentially, without

substantial financial resources, does not cause [the majority]

to question this result." Ante at . It should.

To support probable cause to obtain CSLI, the affidavit in

support of a search warrant must demonstrate "a substantial

basis to believe that the sought-after CSLI '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'" (emphasis added; citation

omitted). Hobbs, 482 Mass. at 545-546. The nexus requirement

of Hobbs "is satisfied as long as there is a substantial basis

to conclude that the defendant used [their] cellular telephone

during the relevant time frame, such that there is probable

cause to believe the sought after CSLI will produce evidence of

the crime." Commonwealth v. Perry, 489 Mass. 436, 455 (2022).
4

The majority seems to believe it is reasonable to infer

that the defendant was using both telephone numbers and two

phones, the one that was found in the defendant's car (home),

and some other phone that he discarded, even though he kept

other items used during the attacks that identify him as the

attacker (i.e., a large knife or machete, a red hooded

sweatshirt, a black hooded sweatshirt, light color pants, work

style boots, a black puffy jacket, a black mask, and a loaded

gun with extra ammunition).

Here, the affidavit does not offer a substantial basis to

conclude that the defendant was known to use the 857 number

during the time period of the attacks (November 10 to November

27, 2020). The only time the defendant was known to use the 857

number was on December 11, 2020, fourteen days after the last

attack. The affidavit offers no information to determine when

the defendant switched from the 781 number to the 857 number

even though the affidavit reports that the police have

subscriber data for both phones and that the police can access

the Zetx tool at will to verify the identity of the subscriber.1

1 The affiant describes Zetx as a "free phone look up tool."
Zetx is not available to the general public. See LexisNexis
Risk Solutions, Free Phone Lookup Tool,
https://risk.lexisnexis.com/law-enforcement-and-public-
safety/free-phone-look-up-tool [https://perma.cc/EWW5-8UKF].
The term "Zetx" has not been used in any case of the Supreme
Judicial Court or this court and the affidavit does not explain
its reliability. It might behoove future affiants to provide
5

This paucity of facts is distinguishable from Hobbs, 482

Mass. at 545, where the police obtained the defendant's phone

number from his brother and a former girlfriend offered

corroboration, and Commonwealth v. Lavin, 101 Mass. App. Ct.

278, 300 (2022), where the police obtained the defendant's phone

number from his mother. In those cases, the defendant was known

to have one phone and one phone number -- as established by

people with close personal ties to the defendant -- and

therefore, the reasonable inference was that the defendant had

been using that one number for some time, inferentially back to

the time of the crime or crimes.

Here, the affidavit established the opposite. The

affidavit attested that this unhoused defendant without

substantial resources was using one phone number (the 781

number) on November 22, which was during the crime spree, and

another phone number (the 857 number) on December 11, after the

attacks had ended. The affidavit offers no connection from any

source between the defendant and the 857 number during the

attacks or even during the two weeks after the attacks had

stopped.

I accept the majority's inference that if the defendant was

using the 781 number on November 22, 2020, even considering his

that information. For purposes of this appeal, I accept that
Zetx is reliable.
6

poverty, we can reasonably infer that he was using that number

up to twelve days earlier.2 And even the defendant does not

challenge the search warrant for the period November 22 to

November 28. However, nothing in the affidavit reasonably

allows the inference that this defendant was simultaneously

using a second phone number (the 857 number) and phone for the

period from November 10 to November 28, 2020, when nobody

associated him with that phone number or having two phones

during that time frame.3 See Perry, 489 Mass. at 455 (to satisfy

the nexus requirement established in Hobbs, there must be some

particular evidence showing the defendant used or owned a cell

phone during relevant time frame); Commonwealth v. Jordan, 91

2 This certainly is a debatable point, and a reasonable
magistrate or judge could reject an application for a search
warrant where the supporting affidavit did not provide
additional information to support an inference about how long a
particular defendant or a person with the same prepaid cell
phone plan might have had their phone number.

3 The majority acknowledges that its result suggests that
"the defendant may have had two different working mobile phone
numbers or cell phones at the same time, which may appear
inconsistent with his apparent poverty." Ante at .
Still, the majority concludes that we cannot draw conclusions
"about the mobile phone habits or proclivities of persons of
different levels of income." Ante at . Yet, the
question of probable cause is a fact-based inquiry and I do not
think we can ignore the defendant's poverty or draw
counterfactual inferences. Nor do I think we can ignore the
fact that the affidavit established that the defendant had just
one mobile phone -- not two, particularly where he kept the
instrumentalities and accoutrements of the attacks that identify
him.
7

Mass. App. Ct. 743, 751-752 (2017) (application for search

warrant for CSLI must establish "that the suspect possessed a

cellular telephone at the relevant times" [emphasis added]). It

simply is not reasonable to infer that the defendant was using

the 857 number over fourteen days earlier and, even more

unreasonable to infer his use over thirty days earlier.

If the defendant was using the 781 and 857 phone numbers

successively (and later reverting from the 857 number back to

the 781 number as the second search warrant establishes), then

it is not reasonable to infer that the defendant was using the

857 number during the time of the attacks.4 No case says that an

affidavit in support of a search warrant can support two

different possible inferences when we know only one is true.

4 The police checked the 781 number in Zetx on November 22,
2020. The fact that the detective did not check the 781 number
in Zetx again on December 11, 2020, also indicates that the
police thought the defendant had changed from the 781 phone
number to the 857 number. The majority acknowledges, as it
should, that the defendant's number changed from 857 to 781 by
January 15, 2021, apparently because the defendant was on a
minutes-based plan. See ante at . At the same time, the
majority rejects the defendant's poverty and minutes-based plan
as the explanation for why the defendant changed from the 781
number to the 857 number. See ante at . Leaving aside
this contradiction, this appeal is about CSLI -- it is not about
subscriber data for these numbers, which the police already had,
or consciousness of guilt. Of course, if the majority reads the
affidavit as indicating the defendant was not a subscriber for
the 857 number, that is another reason not to use inference to
conclude that the defendant was using the 857 number a month
before December 11 while simultaneously using the 781 number.
8

Yet this is exactly what the majority does when it concludes

that the defendant could have both the 781 and 857 numbers at

the same time when the reasonable inference is that he had just

one number at a time. I cannot agree.

The majority's analysis of the 857 number also is troubling

because it is based -- as it must be -- on the first search

warrant application, but that affidavit did not disclose

something the police knew to be true and that this court knows

the police knew. It is only in the second affidavit that the

police disclose that "Customers of TMobile who subscribe on a

'minutes based' contract will have their number change if their

contract lapses." There is no likelihood that the police

developed this knowledge between the date of the first affidavit

(December 16, 2020) and the date of the second affidavit

(January 15, 2021). The second affidavit offers this

information as an explanation for why, after the defendant was

arrested, the number for the one phone in the defendant's

possession reverted from the 857 number to the 781 number.5 This

information about the defendant's phone number switching between

5 I am in no way saying that the police withheld this
information. Rather, I assume that at the time of the first
affidavit, the affiant did not think he had a reason to disclose
it. Indeed, there was no reason for the police to hide this
information. Any cognizant resident of the Commonwealth is
aware that cell phone plans can lapse for nonpayment and the
customer can lose their number.
9

781 and 857, the defendant's poverty, and common sense allow the

reasonable inference that the defendant was a prepaid cellular

customer without enough money to pay his bill and keep his phone

number. The majority's reading means that it is acting contrary

to information it knows the police possessed.

The police have a duty to disclose information that they

knew or should have known to the issuing magistrate or judge.

Commonwealth v. Carrasco, 405 Mass. 316, 323 (1989), citing

Maryland v. Garrison, 480 U.S. 79, 85 (1987) (officers have duty

to disclose information that excludes one of two apartments on

same floor). Courts should not ignore information known to the

police to permit the conclusion that the four corners of the

affidavit support probable cause. This is willful ignorance

that could encourage the police to seek a search warrant early

in their investigation to gain the benefit of inferences, even

contradictory ones such as here (i.e., the defendant had two

phones and two phone numbers; or, the defendant had one phone

and two successive phone numbers, and the police may seek data

for both, even though one of those phone numbers may have been

given to a different customer).

The CSLI data associated with the 857 number from November

10 through November 28, 2020, should have been suppressed.

2. A cell phone number may no longer be routine booking

information. I write separately to flag a second, concerning
10

issue, readily apparent within the four corners of the first

affidavit. That affidavit reports that the defendant invoked

his right to remain silent on November 22, 2020. The affidavit

does not state that when the defendant was subsequently arrested

or booked, he was given Miranda warnings. This is important

because the police obtained the 857 number from the defendant

during booking but then immediately used that telephone number

for an investigatory purpose. The detective checked the 857

number in Zetx and determined it was "listed to Metro PCS, which

falls under T-Mobile under the name 'Clauvens Janvier.'" The

affiant then sent a text message to the 857 number from his work

cell phone and observed that his work cell number appeared on

the screen of the defendant's iPhone. Moreover, courts have

treated routine booking questions differently from questioning a

suspect. But here, the police immediately used that 857 number

obtained during booking to investigate.6

Even after the invocation of counsel, "[t]he police may ask

routine booking questions, but not about the crime that is under

investigation." Commonwealth v. Chadwick, 40 Mass. App. Ct.

425, 427 (1996). In the context of alleged violations of

6 As the majority notes, the defendant has not argued that
the affiant sending a text message to a phone to see if the text
causes a notification to pop up on the lock screen constitutes
manipulating the defendant's phone and therefore is a search.
See ante at .
11

Miranda v. Arizona, 384 U.S. 436 (1966), we have held that

routine biographical questions such as those about name, age, or

address, asked during a defendant's booking, are not

interrogation within the meaning of Miranda. Commonwealth v.

Kacavich, 28 Mass. App. Ct. 941, 941-942 (1990). However,

"[a]lthough a booking officer proceeding down a litany of

routine questions may have no investigatory purpose in asking

the arrested person [certain questions], the content of that

person's response may be incriminating" (emphasis in original).

Commonwealth v. Woods, 419 Mass. 366, 373 (1995). The key

inquiry is whether questions posed during booking "are designed

to elicit incriminatory admissions" or have that potential.

Id., citing Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14

(1990). Here, asking the defendant for his phone number was

tantamount to asking him to potentially place himself at the

crime scenes. Indeed, while we call these devices "phones,"

they are personal tracking devices that are sometimes used to

communicate with others by a messaging application, social

media, or a phone call. Accordingly, in every case involving a

crime where location is relevant, asking a suspect for their

cell phone number is asking them to place themself at the scene

of the crime. People being booked may not understand this, even

with Miranda warnings. I need not and do not reach this issue,
12

which the magistrate should have noticed, but having seen the

potential constitutional issue, I cannot ignore it.7

3. CSLI for the 781 number and the phone. As to the 781

number and the phone, though I agree with the result, we are

basing our result on an inference and thereby implicitly

assuming that the police had no contrary information. Given

this record, I would make the implicit assumption an explicit

condition of our holding.

I agree with the majority that our case law allows us to

use inference and only inference to find probable cause to

believe that the defendant "was known to own or use" the 781

phone number during the eighteen-day crime spree. However, I do

not think we should be using mere inference to reach back from

November 22 to November 10, 2020, for the 781 number where the

police can –- and here did – obtain subscriber information with

an administrative subpoena that does not require a search

warrant. That information should have included length of

service (including start date).8 The affidavit establishes that

7 We can affirm (though not reverse) a suppression order on
any ground supported by the record. See Commonwealth v. Rosado,
84 Mass. App. Ct. 208, 217 (2013).

8 "The police may obtain subscriber information and toll
records pursuant to a court order issued under 18 U.S.C.
§ 2703(d), but under art. 14 of the Massachusetts Declaration of
Rights, the police may not use CSLI for more than six hours to
track the location of a cellular telephone unless authorized by
a search warrant based on probable cause." Commonwealth v.
13

on December 14, 2020, police sought and obtained one such

administrative subpoena, identifying the defendant as the

subscriber of record for the 781 number. We should not rely on

inference when the police have or could have had actual

information.

Based on these concerns, I would condition our holding

accordingly to state that the affidavit established probable

cause to obtain the CSLI for the 781 phone number from November

10 to November 22, 2020, provided that the police had no

information that contradicts the inference we draw here. I

conclude this based on information disclosed and not disclosed

in the affidavit. The police spoke to the defendant on the 781

number on November 22. The affiant does not state how the

police obtained the 781 number. If the police had knowledge

that the 781 number was not one that the defendant was known to

use prior to November 22, 2020, they cannot withhold that

information and benefit from an inference that is contrary to

Fredericq, 482 Mass. 70, 75-76 (2019). See Carpenter v. United
States, 138 S. Ct. 2206, 2221 (2018) (notwithstanding standard
of "reasonable grounds" stated in 18 U.S.C. § 2703(d), "the
[g]overnment must generally obtain a warrant supported by
probable cause before acquiring [CSLI] records"). Cell phone
service providers served with an administrative subpoena are
required to disclose to the government certain subscriber
information, including, information such as the subscriber's
name, address, the "length of service (including start date) and
types of service utilized[,]" and the "means and source of
payment for such service (including any credit card or bank
account number)." 18 U.S.C. § 2703(c)(2).
14

facts in their possession. See Carrasco, 405 Mass. at 323-324.

This is implicit in our ruling; I would make it explicit.

Conclusion. Given the "significant constitutional

questions" at issue, Hobbs, 482 Mass. at 549, I would suppress

the CSLI for the 857 phone number. As for the 781 number, I

agree with the majority that we should reverse the order

granting the defendant's motion to suppress the CSLI for the 781

number from November 10 at 6 P.M. to November 22, 2020, but I

would condition that holding on confirmation that the police had

no information in their possession on December 16, 2020, that

the defendant was using a different phone (or no phone) prior to

November 22, 2020.