KATZMANN, J.
This is an interlocutory appeal taken from rulings in a suppression proceeding, and presents the following questions: whether a statement, given in an interview prior to grand jury testimony by a defendant who had been subpoenaed to testify after previously asserting that he did not wish to speak without an attorney, was voluntary; whether testimony before the grand jury was given in violation of the privilege against self-incrimination; and whether cellular tower data and cell site location information were obtained in violation of the protections against unreasonable searches and seizure.
The case arises from the shooting murder of Paul Fagan. The two defendants here, Yonas Tewolde and Karl Prescott, were each indicted on charges of murder in the first degree of Paul Fagan, unlawful possession of a firearm, and unlawful possession of a loaded firearm. They were both subpoenaed to testify before a grand jury; they did so testify, and subsequently moved to suppress that testimony. Tewolde also submitted to an interview on June 7, 2010, prior to his grand jury testimony, and moved to suppress his interview statements. A Superior Court judge (motion judge) allowed both of Tewolde's motions to suppress, suppressing the interview statements on the grounds that Tewolde's submission to the interview was involuntary and suppressing the grand jury testimony on the grounds that he should not have been compelled to testify because it violated his privilege against self-incrimination. Prescott's motion was denied because the motion judge concluded that he testified voluntarily and without objection. Finally, both defendants moved to suppress cellular (cell) tower data and cell site location information (CSLI). The Commonwealth obtained this information by court order to find evidence about the shooting. The motion judge denied these motions.
The Commonwealth now appeals from the motion judge's rulings allowing Tewolde's motions to suppress. Prescott appeals from the denial of his motion to suppress his grand jury testimony.
Background. We summarize the facts relevant to the crime as found by the motion judge in his thorough and very thoughtful decision.
On May 2, 2010, at 7:59 P.M., a police gunshot notification system indicated gunshots fired on Stafford Street in the Roxbury section of Boston. Witnesses told the police that they saw two dark-skinned African-American males, one with "loose dreadlocks" and the other with "tighter braids," fire several gunshots on Stafford Street. The police found the victim, Paul Fagan, on Stafford Street with multiple gunshot wounds in the chest and back. He died later that night from the wounds.
Witnesses told the police that the shooters were standing next to a gold Cadillac motor vehicle with a brown top, which "was on Stafford Street near the intersection of Dennis Street," and that the shooters fled in the Cadillac. At 8:00 P.M. that same night, "a gold Cadillac hit a woman on Clifford Street in a hit-and-run accident. The hit-and-run accident happened about three-tenths of a mile from the shooting scene." Two witnesses (one of the shooting and the other of the hit-and-run) reported the Cadillac's registration plate numbers, their accounts varying only by one number.
The next day the police responded to Langford Park in Roxbury. When they arrived, a witness told them that he saw three males in their late teens and early twenties around a Cadillac, wearing gloves. They wiped down the Cadillac with wipes from a container of cleaning wipes. One of the males told the police that a man he did not know offered them $100 to clean the Cadillac. He said that the man gave them gloves and cleaning wipes to use. The police photographed and took custody of the Cadillac. They took several items that they found in the Cadillac and in the vicinity of Langford Park. Several of these items,
Discussion. 1. Suppression of Tewolde's statements in the interview and grand jury testimony. The motion judge determined that Tewolde's submission to the interview was involuntary and that the order to compel him to testify before a grand jury violated his rights against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Howard, 469 Mass. 721, 726 (2014) (quotations omitted). "We make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Ibid. (quotations omitted).
a. Tewolde's interview statements. On June 2, 2010, Sergeant Detective Daniel Duff and Detective Joshua Cummings went to Tewolde's home.
Tewolde went to the court house on June 7, 2010, as the subpoena required, and a detective met him in the lobby. The detective ushered him through security and into the offices of the district attorney. They proceeded into a small interview room
With respect to Tewolde's statements during the interview prior to the grand jury testimony, the main question before us is whether they were voluntary.
Commonwealth v. Baye, 462 Mass. 246, 256 (2012) (quotations omitted). See Commonwealth v. Molina, 467 Mass. 65, 75-76 (2014). The motion judge found that Tewolde's statements in the interview prior to his grand jury testimony were involuntary and therefore allowed his motion to suppress. The motion judge based his decision on the special circumstances leading up to the interview and the testimony of the detectives, which he did not find credible.
Specifically, the motion judge was not convinced that Tewolde was informed of his right to counsel prior to the end of the interview.
The Commonwealth argues that the motion judge's findings were clearly erroneous because the detectives testified that Tewolde was informed earlier. This argument ignores the fact that the judge can make credibility determinations. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004); Commonwealth v. Baye, supra at 255 ("The weight and credibility to be given oral testimony is for the judge"); Commonwealth v. Bernard, 84 Mass.App.Ct. 771, 774 (2014). The conflicting testimony regarding
it is apparent that the motion judge, in his resolution of the conflicting testimony, only credited portions of the testimony and discredited others. See ibid.
We note that under many circumstances, eliciting testimony pursuant to a subpoena is not considered coercive. See Commonwealth v. Beauchamp, 49 Mass.App.Ct. 591, 607 (2000), quoting from United States v. Washington, 431 U.S. 181, 187-188 (1977) ("testimony given under oath pursuant to grand jury subpoena is not so coercively compelled"). Cf. Commonwealth v. Smallwood, 379 Mass. 878, 887 n.3 (1980). Because of the unique circumstances here, however, reviewing it within the context of Tewolde's silence and previously expressed desires not to speak and to get an attorney, the record supports the motion judge's conclusion that Tewolde was operating under the impression that the subpoena applied to the interview. We conclude that the motion judge's findings and conclusions of law were not clearly erroneous, and we affirm the suppression of the interview statements.
b. Tewolde's grand jury testimony. After the interview, Tewolde spoke briefly with a court-appointed defense attorney. Tewolde was not forthright with his attorney about his involvement in the case, and instead claimed that he had nothing to hide and that he had no involvement. The prosecutor explained to defense counsel that she knew Tewolde had, at some point, been in possession of a motor vehicle that the police suspected had been used in a homicide and that she was trying to determine whether he was in possession of the vehicle on the date of the homicide. Defense counsel proceeded to advise Tewolde that he had no Fifth Amendment privilege; Tewolde then briefly testified before the grand jury.
The prosecutor cut this first grand jury proceeding short because Tewolde stated that he did not want to testify.
We note that the first session judge was told by defense counsel that he believed that Tewolde did not have a Fifth Amendment privilege. See note 12, supra. We also note that the prosecutor did not share certain details of the investigation that would have highlighted Tewolde's available privilege. However, we determine that what the prosecutor did share should have been enough to alert the first session judge to it. See Commonwealth v. Leclair,
In determining whether a witness has a Fifth Amendment and art. 12 right not to testify before the grand jury, we look to the purpose of the privilege against self-incrimination and the duty of the judge to regulate it. We apply Federal standards. Commonwealth v. Martin, 423 Mass. 496, 502 (1996). "The right of a witness not to incriminate himself is secured by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights." Taylor v. Commonwealth, 369 Mass. at 187. The standards we apply to determine whether a claim of privilege is justified are "highly protective of the constitutionally guaranteed right against self-incrimination." In the Matter of Proceedings Before a Grand Jury, 55 Mass.App.Ct. 17, 20 (2002), quoting from Commonwealth v. Martin, 423 Mass. at 502. See Commonwealth v. Leclair, 469 Mass. at 783. "The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime."
"Because the privilege against self-incrimination is `a fundamental principle of our system of justice,' it `is to be construed liberally in favor of the claimant.'" Commonwealth v. Leclair, 469 Mass. at 782, quoting from Commonwealth v. Borans, 388 Mass. 453, 455 (1983). "[A] refusal to testify on Fifth Amendment grounds must be upheld unless it is `perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate" (emphasis in original). Commonwealth v. Borans, supra at 456, quoting from Hoffman v. United States, 341 U.S. at 488. See Commonwealth v. Alicea, 464 Mass. 837, 841-842 (2013); Commonwealth v. Pixley, 77 Mass. App. Ct. at 626-627. "The privilege afforded not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute." Commonwealth v. Martin, 423 Mass. at 502 (quotation omitted).
It is the judge's duty to determine whether a witness has a valid claim against self-incrimination, and the first session judge erred when she determined that Tewolde did not have such a claim. See ibid. ("It is for a judge, rather than a witness or his attorney, to decide whether a witness'[s] silence is justified") (quotation omitted). The transcript of the hearing before the first session judge reveals a limited judicial inquiry about the circumstances of the case, not the required "particularized inquiry." In the Matter of Proceedings Before a Special Grand Jury, 27 Mass. App. Ct. at 698.
Because Tewolde was compelled to testify before the grand jury in violation of his privilege against self-incrimination and was subsequently charged with the crimes about which he testified, the appropriate remedy is to suppress the statements for use as trial evidence. See Lawn v. United States, 355 U.S. 339, 345-349 (1958) (incriminating evidence obtained from defendant in violation of his Fifth Amendment rights could be reviewed by grand jury but may be suppressed for use at trial); United States v. Blue, 384 U.S. 251, 255 (1966) (grand jury can review incriminating evidence even if government acquired it in violation of Fifth Amendment rights but defendant may be entitled to suppress evidence at trial).
We further note that because "voluntariness always is a factor to be considered when evaluating the admissibility of a defendant's statements against him in a criminal trial," Commonwealth v. Molina, 467 Mass. at 75 n.12, we also affirm the suppression on the basis that the first session judge's order and her warning that Tewolde would be jailed if he did not testify caused him to testify against his will before the grand jury. The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself," Commonwealth v. Austin A., 450 Mass. 665, 667 n.4 (2008), and art. 12 provides in relevant part that "[n]o subject shall ... be compelled to accuse, or furnish evidence against himself." Ibid. Under the circumstances, Tewolde's statements before the grand jury were involuntary and must be suppressed. See Commonwealth v. Leclair, 469 Mass. at 784-785. See also Commonwealth v. Clemente, 452 Mass. 295, 318 n.33 (2008), cert. denied, 555 U.S. 1181 (2009) (witness's "grand jury testimony could hardly be considered voluntary; he had sought to claim his privilege against self-incrimination and a judge had ruled that he had no such privilege").
2. Denial of Prescott's motion to suppress grand jury testimony. The motion judge heard testimony that the prosecutor advised Prescott of his right to counsel and that Prescott indicated that he did not need counsel. The motion judge concluded that Prescott had in fact been advised of this right and stated that he did not need to exercise it. The motion judge explicitly distinguished Prescott's circumstances from the unique and material circumstances in Tewolde's case, noting that Prescott voluntarily testified before the grand jury, that he did not object to testifying, and that he "did not abruptly end an interview a few days earlier by refusing to answer any more questions without an attorney and without a warrant."
The motion judge denied Prescott's motion to suppress on the grounds that there was no violation of his right to counsel or privilege against self-incrimination and that his statements in both the interview prior to the grand jury testimony and in his grand jury testimony were voluntary. We affirm this denial as we do not see any clear error in the motion judge's findings of fact nor do we see error in his conclusions of law. See Commonwealth v. Howard, 469 Mass. 721, 726 (2014).
3. Suppression of defendants' cell tower data and CSLI. Pursuant to 18 U.S.C. § 2703 (2006) of the Federal Stored Communications Act, the Commonwealth sought and obtained court orders to compel the defendants' cellular telephone (cell phone) service providers to provide both defendants' cell tower data and CSLI. The records sought and obtained here covered a time period of five days for Prescott (April 29 through May 3, 2010) and seven days for Tewolde (April 29 through May 5, 2010). The searches sought to obtain information including the cell phones users' proximity to the location of the homicide and calls made to and from the cell phones around the time of the homicide. The motion judge denied the motions to suppress on the ground that the evidence was obtained by orders that complied with 18 U.S.C. § 2703.
The motion judge did not have the benefit of Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine I), S.C., 470 Mass. 837
The duration of the search or surveillance is an important factor in determining an individual's reasonable expectation of privacy in cell tower monitoring cases. See Augustine I, supra at 254. Some periods of time are "too brief to implicate the person's reasonable privacy interest," ibid.; tracking for a six-hour period would likely be too short, id. at 255 n.37. By contrast, "the tracking of the defendant's movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant's expectation of privacy safeguarded by art. 14" (emphasis added). Id. at 254-255. While the searches here may cover a shorter time period than in Augustine I, each covers a significant amount of time, including both weekdays and weekends, serving as a comprehensive surveillance of the target's daily lives. The surveillances here intruded into the defendants' reasonable expectations of privacy and violate art. 14 if they do not comply with the warrant requirement. See id. at 255.
The defendants argue that the Commonwealth's applications for orders pursuant to 18 U.S.C. § 2703 do not demonstrate probable cause. Because Augustine I was issued after the applications were granted here, the motion judge was not required, at the time he made his decision, to determine whether there was probable
Conclusion. We affirm the orders suppressing Tewolde's interview statements and grand jury testimony. We affirm the denial of Prescott's motion to suppress his grand jury testimony. We vacate the denial of the defendants' motions to suppress cellular tower data and CSLI, and remand for further proceedings consistent with this opinion.
So ordered.