Commonwealth v. Fredericq

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16-P-1542 Appeals Court

COMMONWEALTH vs. STANLEY FREDERICQ.1

No. 16-P-1542.

Plymouth. December 1, 2017. - March 12, 2018.

Present: Agnes, Blake, & McDonough, JJ.

Cellular Telephone. Controlled Substances. Constitutional Law,
Search and seizure, Standing, Privacy, Probable cause.
Search and Seizure, Consent, Expectation of privacy, Fruits
of illegal search, Multiple occupancy building, Probable
cause, Warrant. Privacy. Probable Cause. Consent.
Evidence, Result of illegal search, Business record.
Practice, Criminal, Motion to suppress, Standing, Warrant.

Indictments found and returned in the Superior Court
Department on August 22, 2008.

A pretrial motion to suppress evidence was heard by Thomas
J. McGuire, Jr., J.

An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.

1 In conformity with our practice, we spell the defendant's
name as it appears in the indictment.
2

Nathaniel Kennedy, Assistant District Attorney, for the
Commonwealth.
Jason Benzaken for the defendant.

BLAKE, J. As a result of information gathered in

connection with a homicide, an interstate narcotics

investigation began, which led police to discover cocaine and

cash at 220-222 Howard Street in the city of Brockton.2 This is

an interlocutory appeal by the Commonwealth from the order

allowing the defendant's motion to suppress evidence obtained as

a result of a warrantless search. We reverse in part and affirm

in part.

We set forth detailed facts and the procedural history of

this case as they are necessary to the analysis. The defendant

was indicted for trafficking in two hundred grams or more of

cocaine. He has twice filed motions to suppress. In his first

motion, the defendant argued that the search at 220 Howard

Street was conducted without a warrant and without his consent.

After a two-day evidentiary hearing, the first motion judge

denied the motion on grounds that the defendant consented to the

search. In the defendant's second, or so-called "amended"

motion to suppress, he argued that the evidence seized from 220

2 The building at this location consists of a multifamily
dwelling and has an address of 220-222 Howard Street, with the
numbers denoting two different doors at the front of the
residence. Because the witnesses primarily referred to the
building as 220 Howard Street, we will do so here.
3

Howard Street must be suppressed as the tainted fruit of the

unlawfully obtained cellular site location information (CSLI).3

The same judge denied the motion after a nonevidentiary hearing

and the defendant sought interlocutory review.

A single justice of the Supreme Judicial Court, while

retaining jurisdiction of the case, ordered an evidentiary

hearing on the motion. After the evidentiary hearing, a second

motion judge denied the motion, concluding that the defendant

lacked standing as he had no reasonable expectation of privacy

in the cellular telephone. Following receipt of the trial court

decision and the issuance of several appellate decisions

involving the police use of CSLI, the single justice again

remanded the case to for further consideration in light of

Commonwealth v. Augustine, 467 Mass. 230 (2014), and

Commonwealth v. Moody, 466 Mass. 196 (2013), as well as Riley v.

California, 134 S. Ct. 2473 (2014).

Thereafter, a third motion judge held a hearing at which no

additional evidence was presented, but the transcripts from the

3 CSLI "is a record of a subscriber's cellular telephone's
communication with a cellular service provider's base stations
(i.e., cell sites or cell towers) . . . ; this identifies the
approximate location of the 'active cellular telephone handset
within [the cellular service provider's] network based on the
handset's communication with a particular cell site.'"
Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2 (2015),
quoting from Commonwealth v. Augustine, 467 Mass. 230, 238
(2014), S.C., 470 Mass. 837 (2015). It also identifies the
subscriber of the cellular telephone number.
4

previous hearings were submitted together with additional briefs

from the parties. The third motion judge concluded that the

defendant had standing. He also reasoned that because the

police seized the cocaine "by exploiting the unlawful electronic

tracking through CSLI," and because "[t]he search and seizure

was not attenuated from the" illegal conduct, the motion must be

allowed. The Commonwealth's application for leave to appeal

from that order was granted and the case was entered in this

court.

Background. The findings of fact made by each of the three

motion judges are consistent and are not in dispute on appeal.

We summarize the findings relevant to the issues raised in this

appeal, supplemented where necessary with undisputed evidence

that was implicitly credited by the particular judge ruling on

the motion. See Commonwealth v. Jones-Pannell, 472 Mass. 429,

431 (2015).

On June 8, 2008, there was a shooting that resulted in the

death of Bensney Toussaint. A few days later, on June 10, 2008,

police officers obtained an arrest warrant for Josener Dorisca.

Dorisca, for all relevant time periods relating to this matter,

was a fugitive from justice. On June 26, 2008, an indictment

was returned against Dorisca, charging him with murder.

During the homicide investigation, Detective Kenneth

Williams of the Brockton police department identified Cassio
5

Vertil4 as Dorisca's best friend. Detective Williams spoke to

Cassio; he was not cooperative, but he gave the detective his

cellular telephone number. Detective Williams obtained the

cellular telephone records for the number provided by Cassio,

which showed that "Bill Desops" was the subscriber. The records

also showed that telephone calls were made within moments of the

shooting to a cellular telephone number that police identified

as belonging to Dorisca. Thereafter, Detective Williams spoke

to Cassio again, but was unsuccessful in eliciting information

about the nature of those telephone calls or Dorisca's location.

During the interview, Detective Williams recognized Cassio from

a videotape that he had seen.5

As the second judge found, that videotape, recorded several

months before the homicide, captured Cassio, "a person named

Rinaldi Lauradin, and others flashing large sums of money and

discussing the movement of drugs from Florida to Massachusetts."

A gun could also be seen in the footage. Detective Williams

testified that "the tape clearly displays [Cassio] and other

members engaged in what seems to be very lucrative drug

dealings. . . . And bragging and boasting of going to Florida

4 As Cassio Vertil shares a surname with another witness,
his brother, Kennell Vertil, see infra, we use their first names
to avoid confusion.

5 The videotape was admitted in evidence at the suppression
hearing.
6

to obtain more drugs. And they're flashing tens of thousands of

dollars on this tape."

About one month after the homicide, Detective Williams

spoke to Cassio's brother, Kennell. Kennell reported that

Cassio was now using a different cellular telephone number, and

that Cassio was on his way to New York with "Paco" and

"Paquito." Further investigation revealed that Paco was the

defendant and Paquito was Stevenson Allonce. After speaking

with Kennell, the Commonwealth sought and obtained an order

pursuant to 18 U.S.C. § 2703(d) (2006) requiring the cellular

telephone carrier to provide the records and the so-called

"running location" of that different telephone, going forward,

to assist in finding Dorisca and to investigate Cassio.6 The

carrier was required to provide Detective Williams with the

cellular telephone's location every fifteen minutes

prospectively. The carrier "pinged" the telephone at fifteen-

minute intervals, an action that is not routinely undertaken by

6 The motion, the affidavit, and the § 2703(d) order were
admitted as an exhibit at the hearing. The second motion judge
referred in some detail to the facts recited by Detective
Williams; however, neither party has included a copy of the
exhibit in the record appendix for us to determine whether the
judge properly recited the facts therein. Accordingly, we
exercised our discretion and obtained the exhibit sua sponte.
See Mass.R.A.P. 9(b), as amended, 378 Mass. 935 (1979);
Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). Cf.
Iverson v. Board of Appeals of Dedham, 14 Mass. App. Ct. 951,
951-952 (1982).
7

cellular telephone carriers.7 The defense expert explained that

the "ping" sends a communication signal to the cellular

telephone and requires the cellular telephone to communicate

with the nearby cell tower. See generally Commonwealth v.

Augustine, 467 Mass. at 237-238. The carrier can identify the

location of the cell tower by coordinates of longitude and

latitude. The carrier then sends, in this case to Detective

Williams, this information and the maximum distance the cellular

telephone can be from that cell tower, based on the strength and

location of nearby cell towers.

The CSLI records showed that the defendant, not Desops, was

the subscriber of the cellular telephone that Cassio was then

using. The billing address on those records was 220-222 Howard

Street, apartment 2. The records also reflected that the

defendant had yet another cellular telephone number.

State police Trooper Eric Telford assisted in the homicide

investigation. He knocked on doors, spoke to family members,

7 A cellular telephone will regularly send a signal to
nearby cell towers or cell sites to insure that service is
maintained. Commonwealth v. Augustine, 467 Mass. at 237-240.
There is a second type of "historical CSLI" identified in
Augustine as "registration CSLI" but that type was neither at
issue in Augustine, nor is it at issue in this case. Id. at 238
n.18. Registration CSLI is created when cellular telephones
"regularly identify themselves to the nearest cell site with the
strongest signal, through a process known as 'registration.'
Registration is automatic, occurring every seven seconds."
Ibid.
8

and tried to obtain information about individuals close to

Dorisca. On the evening of July 2, 2008, Trooper Telford was

contacted by a confidential informant. The informant told

Trooper Telford that Cassio was headed to Florida in a brown

Toyota RAV4 sport utility vehicle (SUV) rental to pick up a

large quantity of narcotics. As a result, Trooper Telford

thought that Dorisca may intend to hide out in Florida.

From July 2 to July 8, 2008, Detective Williams confirmed,

through CSLI data, that Cassio, Allonce, and the defendant made

a trip to Florida. The CSLI data also showed that the cellular

telephone was traveling south toward Florida and came to a stop

in Sunrise, Florida. When the signal was stationary in Sunrise,

Detective Williams contacted the local police. Using the CSLI

data, the Sunrise police found a brown Toyota, with a

Massachusetts registration, and through additional surveillance

and communication with Massachusetts police, identified Cassio,

Allonce, and the defendant as the three individuals using the

Toyota. On July 7, 2008, the CSLI data indicated that the

cellular telephone was moving north. When the telephone was

shut off for a period of time during the trip, Detective

Williams could not track it.

On July 8, 2008, Detective Williams again began receiving

CSLI information as the Toyota approached the Massachusetts
9

border. He alerted the Brockton and the Randolph8 police that

the Toyota was returning to the area. At 2:15 P.M., Detective

Williams was notified that the telephone pinged at or near

Howard Street. Trooper Telford and State police Trooper Francis

Walls, together with other officers, arrived at 220 Howard

Street shortly after this ping was received.

Trooper Telford observed Cassio standing in front of the

Howard Street building with an individual who matched Dorisca's

description. He watched Cassio and the other individual get

into the Toyota and drive away. Troopers Telford and Walls

followed. When the driver made a left turn without using a

directional signal, the troopers stopped the Toyota. The driver

was identified as Cassio and the passenger was identified as

Allonce, not Dorisca. The two stated that the defendant had

been traveling with them, that they had just come from his

house, and that they were going to the Brockton police

department to speak to Detective Williams about the homicide.

The Toyota was filled with clothing, luggage, a pillow, a

cooler, and other items. Trooper Telford had the two occupants

step out of the Toyota so they could check for Dorisca. When

Trooper Telford confirmed Dorisca was not hiding in the Toyota,

he permitted Cassio and Allonce to continue on their way. Ping

8 Cassio lived in Randolph.
10

data that Detective Williams received showed that the cellular

telephone came to rest near the Brockton police station at about

3:45 P.M. on July 8, 2008.

Troopers Telford and Walls returned to 220 Howard Street to

look for Dorisca, to find and speak to the defendant, and to

investigate the possible drug connection to the property.

Trooper Telford directed other officers to that location to

assist him. When Troopers Telford, Walls, and Jackson arrived,

they approached a man on the front porch. As Trooper Walls

began to speak to him, a female and a male came out of the

first-floor apartment. While Trooper Telford walked around to

the rear of the house, Trooper Walls explained to the couple

that the police were looking for a homicide suspect and that

they thought that he might be inside their apartment. The

couple agreed to allow both troopers inside and walked them

through every room of their apartment. The troopers were taken

through the back door to the exit, which opened into a common

rear entry area. There was a door to the outside from that

common area, as well as stairs to the second and third floors.

Troopers Walls and Jackson used the rear stairs to go to

the second-floor apartment, where the occupant of that apartment

met them in the hallway. They repeated their request and were

again granted permission to look for Dorisca in that apartment.

Finding nothing, both troopers continued to the attic. At the
11

top of the stairs there was a large open landing area, without

any door. Off of the landing area, there were four doors, which

led to two bedrooms, a storage area, and a crawl space. The

only way to secure the attic would be to lock the entry door

located in the common area on the first floor. Three of the

four doors in the attic were open and the troopers looked in

each space. A television was in the front bedroom, and junk was

piled in the storage room. There was no bathroom or shower on

this floor.

The troopers knocked on the closed, fourth door several

times before the defendant opened it and came into the landing

area. They asked the defendant his name and, when he told them,

they asked if he had a nickname; he said it was Paco. Because

Trooper Walls knew Paco was a name related to the drug

investigation Trooper Telford was working on, he contacted

Trooper Telford and asked him to come up to the attic. In the

meantime, Troopers Jackson and Walls explained that they were

looking for Dorisca. They obtained the defendant's verbal

permission to do a quick walk-through of the defendant's room,

which turned up nothing significant. The defendant said he

lived there and was paying $400 in rent per month.

Trooper Telford, who had been outside, walked through the

rear entry door to the common hallway and came up the back

stairs to the attic. Trooper Telford read the defendant his
12

Miranda rights and explained to him why the troopers were there.

The defendant said that he had gone to Florida with his friends

to attend a family reunion for Allonce. The defendant denied

having any drugs in his room and signed a consent to search

form.

During the subsequent search, police found about $2,200 in

a cupboard in the defendant's bedroom. After a narcotics-

trained dog arrived in the attic, police located a pillowcase in

the crawl space that contained about two kilograms of what

police believed to be cocaine. That pillowcase matched a

pillowcase found in the Toyota. The defendant denied any

knowledge of the contraband.

Based on this evidence, the third motion judge ruled that

the defendant had standing to challenge the search because the

tracking continued while the police searched 220 Howard Street.

The judge also determined that the defendant's reasonable

expectation of privacy under art. 14 of the Massachusetts

Declaration of Rights was violated where the police tracked his

"movements for seven days through the collection of CSLI

obtained from a cell phone registered to him but used by

[another]." With respect to the search, the judge agreed with

the Commonwealth that no warrant was required to obtain

subscriber information from the carrier. However, the judge

determined that under Commonwealth v. Augustine, 467 Mass. at
13

257, the failure of the Commonwealth to acquire a warrant for

the CSLI rendered that evidence illegally obtained. The judge

found that because the police learned, only through the unlawful

CSLI, that the cocaine was likely brought to Howard Street,

their seizure of the cocaine was the result of "exploiting the

unlawful electronic tracking through CSLI." The judge further

found that "[t]he search and seizure was not attenuated" from

the illegality and thus "[t]he evidence obtained during that

search must therefore be suppressed."

Discussion. In reviewing a judge's 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.

Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.

Jimenez, 438 Mass. 213, 218 (2002).

1. Standing. On appeal, the Commonwealth does not dispute

that the CSLI was illegally obtained. Rather, the Commonwealth

argues that the defendant does not have standing to challenge

the search of the cellular telephone.

Where a defendant claims the search of the cellular

telephone violated his rights under art. 14 and the Fourth and

Fourteenth Amendments to the United States Constitution, we must

determine initially whether the defendant has "standing to

contest the search and then whether [he] had an expectation of
14

privacy in the area searched." Commonwealth v. Williams, 453

Mass. 203, 207-208 (2009). "Although the two concepts are

interrelated, we consider them separately. . . . A defendant

has standing either if [he] has a possessory interest in the

place searched or in the property seized or if [he] was present

when the search occurred." Id. at 208. Here, regardless of

whether the defendant allowed Cassio to use the cellular

telephone, because the defendant was the registered owner of the

telephone and the billing address was his, he had a possessory

interest in the telephone sufficient to grant him automatic

standing. He also had actual standing because his movements

were being tracked when the telephone was pinged by the carrier

during the trip he took with Cassio to Florida.

There also was a search in the constitutional sense. The

defendant has a reasonable expectation not to be subjected to

extended CSLI tracking by the government, even if he is merely a

passenger in a vehicle controlled by the primary suspect. The

government's monitoring of the defendant's movements -- for more

than six days -- is sufficient to establish that he has standing

to challenge the validity of the search of the cellular

telephone. Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013).9

9 The second motion judge, who denied the suppression motion
on grounds that the defendant lacked standing because he had no
reasonable expectation of privacy in the cellular telephone, did
not have the benefit of Rousseau which was subsequently decided.
15

2. Exclusionary rule. The Commonwealth argues

alternatively, that the CSLI information was so attenuated from

the seizure of the inculpatory evidence that suppression is not

required. Specifically, the Commonwealth argues that the

evidence subsequently seized from the Howard Street attic ought

not to be excluded because it is too attenuated from the

illegality. The Commonwealth's concession is based on

Augustine, where the court held that government-compelled

production of CSLI data by cellular telephone carriers is a

search in the constitutional sense, requiring a warrant under

art. 14. 467 Mass. at 252-255.

We pause to note that the CSLI ordered to be produced in

Augustine involved historical CSLI, which was generated from

telephone calls already made to or from the cellular telephone

in question. The related records, which show the cell towers

from which connection to telephone calls were made, and through

which the locus of the cellular telephone's location can be

pinpointed, are maintained by the carrier in the ordinary course

of business. Id. at 239-240 & n.24. The § 2703(d) order

obtained in this case required the carrier to create CSLI that

was not routinely created or retained. That is, the carrier was

Rousseau addressed, for the first time, privacy expectations of
a passenger in a motor vehicle when the driver is being
monitored by the government.
16

required to prospectively ping a cellular telephone every

fifteen minutes for more than six days, solely for the purpose

of finding and providing location information for the police.

There is no question that under the rationale of Augustine, a

warrant was also required in this case, where the carrier not

only was compelled to turn over CSLI data, but to create

particular prospective CSLI that it otherwise would not have

created. See id. at 240 n.24 ("The privacy interest raised by

historical CSLI may be the same as prospective, or 'real-time,'

CSLI").

Because a warrant for the particular evidence from the

cellular telephone registered to the defendant was required but

not obtained, the "crucial question" regarding whether the

evidence must be suppressed as tainted fruit is whether it came

"by exploitation of . . . [the illegal search] or instead by

means sufficiently distinguishable to be purged of the primary

taint." Commonwealth v. Estabrook, 472 Mass. 852, 860 (2015)

(citation omitted). See Commonwealth v. Bradshaw, 385 Mass.

244, 258 (1982), citing Wong Sun v. United States, 371 U.S. 471,

488 (1963). Relying on these principles, we consider the

evidence at issue.

In this case, the troopers first spoke to the defendant

when he responded to their repeated knocking by opening the only
17

closed door in the attic and entering the landing area.10 After

the defendant gave permission to Troopers Walls and Jackson to

do a quick walk-through of his room for Dorisca, Trooper Telford

arrived and spoke to the defendant. He read the defendant his

Miranda rights and then "explained to him that [they] were there

searching for [Dorisca], who was a homicide suspect, and that

[they] also had information that he, and Mr. Azario [sic], and

the other defendant there, Allonce, had just gone down to

Florida and purchased a large amount of narcotics and they were

possibly storing it there." This statement was based directly

on the tainted CSLI and while it was intertwined with other

10Contrary to the defendant's claim on appeal, the arrival
of the police at 220 Howard Street did not result from
exploiting the CSLI. Troopers Telford and Walls had stopped the
Toyota when it failed to signal before turning. Regardless of
whether the police were in a position to observe the traffic
infraction because of the illegally obtained CSLI, "the stop is
valid 'so long as the police are doing no more than they are
legally permitted and objectively authorized to do.'"
Commonwealth v. Santana, 420 Mass. 205, 209 (1995) (citation
omitted). See Commonwealth v. Buckley, 478 Mass. 861, 866-867
(2018) (Examining "police's underlying motives for conducting
the stop" would "require that courts discern not only whether
the police initially possessed some underlying motive that
failed to align with the legal justification for their actions,
but also whether the police were acting on that 'improper'
motive"). Here, the police observed a traffic infraction and
were permitted to stop the vehicle. See Commonwealth v. Bacon,
381 Mass. 642, 644 (1980).

The police established a sound basis to return to 220
Howard Street to speak with the defendant once they identified
Cassio and Allonce in the Toyota, and Cassio confirmed the
information independently acquired from the CSLI.
18

independent evidence, the inquiry exploited the improperly

obtained CSLI. Commonwealth v. Estabrook, supra at 864-865.

Specifically, the police knew from a somewhat dated

videotape that existed prior to the CSLI that Cassio had

traveled to Florida to buy large amounts of narcotics. In

addition, they had statements from Kennell that Cassio was

traveling to New York with the defendant and Allonce. They also

had statements from an informant (who Trooper Telford had not

previously used) that Cassio (without reference to any other

individuals) was going to Florida to buy narcotics in a brown

Toyota. They also knew from Kennell that Cassio was using a

cellular telephone number that was registered to the defendant

and was billed to 220 Howard Street. The CSLI, however,

provided the only direct and reliable evidence that the

defendant had "just" participated in a trip to Florida. Indeed,

Massachusetts authorities used the CSLI to direct police in

Sunrise, Florida, to the location where the cellular telephone

came to rest, and from where, through surveillance,

identification details from the Toyota and its occupants were

relayed back.

The Commonwealth argues that the defendant's statements and

the subsequent discovery of the evidence are admissible because

they were attenuated from the initial illegal search of the

CSLI. We disagree for the reasons stated in Commonwealth v.
19

Estabrook, supra. The defendant was not confronted with any

question based on his CSLI until he spoke with Trooper Telford,

after the defendant answered the knock on his attic room door.

Indeed, when Trooper Telford confronted the defendant with

evidence of this tainted CSLI, including that the information

that the defendant had just returned from Florida, there is no

evidence that the defendant was aware that the police knew he

had traveled to Florida. Insofar as the defendant is concerned,

his statement and his consent to search, given "in direct

response to confrontation with evidence of his CSLI[,] were made

in close proximity to the illegality, and there were no

intervening circumstances between the police questions based on

the CSLI and [the defendant's] responses thereto."11 Ibid. The

defendant's statements therefore must be suppressed. "[T]he

connection between the illegality and the granting of consent

was 'sufficiently intimate' that the consent cannot be found to

have been so attenuated from the [exploitation of the CSLI] as

to be purged from its taint." Commonwealth v. Gentile, 466

Mass. 817, 831 (2014).

11Although the third motion judge did not specifically
reference the defendant's statements when he ordered suppression
of the evidence obtained during the search, he concluded by
allowing "[t]he defendant's Amended Motion to Suppress Evidence
II," which included a request to suppress the defendant's
statements.
20

As for the cash found in the cupboard in the defendant's

bedroom, there is certainly some question that the defendant was

not being truthful when he said the room was his home,

particularly given the lack of a bathroom or a shower.

Nonetheless, the defendant kept it locked and he was inside when

the police arrived. For the reasons discussed supra, we

conclude that the defendant's consent to search was tainted by

the police exploitation of the illegally obtained CSLI and

therefore, his statement to police before the search and the

cash found in his bedroom must be suppressed.

With respect to the search of the crawl space, however, the

defendant's consent was not required. The facts regarding the

access to, use, and layout of the attic were carefully developed

during the evidentiary hearings. The crawl space was accessible

to any tenant by entering through the ground level exterior door

in the rear of the dwelling, which was apparently left unlocked,

and walking up the stairs to the attic. There, off of the main

landing, were several rooms or areas with open doors, including

the crawl space. Items found in the rooms with open doors

suggested that tenants stored or disposed of possessions they

did not need or want in that location. The cocaine was found in

a pillowcase in that attic crawl space. Because the crawl space

was within this common area in a multiunit building, there is no

reasonable expectation of privacy in items left there. See
21

Commonwealth v. Thomas, 358 Mass. 771, 774-775 (1971);

Commonwealth v. Montanez, 410 Mass. 290, 302 (1991);

Commonwealth v. Holley, 79 Mass. App. Ct. 542, 551-552 (2011).

See also Commonwealth v. Connolly, 356 Mass. 617, 624, cert.

denied, 400 U.S. 843 (1970) ("Since the basement was a common

area freely available to all the tenants, one tenant could give

permission to its search"). As a matter of law, the police were

permitted to search the crawl space without the defendant's

consent and without a warrant. See, e.g., Commonwealth v.

Williams, 453 Mass. at 209 (Because defendant had no reasonable

expectation of privacy in space searched, he "cannot challenge

the police action that occurred there"). The cocaine therefore,

need not be suppressed.

We address one outstanding issue. When this case was

remanded in 2015 by the single justice, it was with the

instruction to consider the defendant's motion to suppress in

light of several recently decided cases, specifically

Commonwealth v. Augustine. Despite this instruction, neither

the Commonwealth nor the third motion judge addressed that

portion of Augustine in which the court considered whether the

§ 2703(d) application provided probable cause to obtain the CSLI

and, if so, the failure to seek a warrant to obtain CSLI would

not require suppression of that evidence. 467 Mass. at 255-256.

Nor did the Commonwealth raise the issue in its brief on appeal,
22

although the matter was briefly touched on at oral argument,

over the defendant's objection. Because of the lengthy and

somewhat unusual procedural posture of this case and the

specific instruction from the single justice to consider

Augustine, we address the issue in the interest of judicial

economy. See Commonwealth v. Beale, 434 Mass. 1024, 1024 n.1

(2001).

Here, the only detailed statement in Detective Williams's

affidavit accompanying the § 2703(d) application for the CSLI

reads: "The current and recent location of Cassio Vertil is

necessary and important to my investigation because other

witnesses and obtained phone records indicate that Cassio Vertil

has been, and continues to provide aid and support to the

indicted Josener Dorisca." The statement fails to identify the

witnesses and does not identify the requisite basis for

assessing their reliability or their veracity. See Commonwealth

v. Burt, 393 Mass. 703, 710 (1985) (discussing various kinds of

informers and witnesses). Similarly, the particular "phone

records" are not identified and Detective Williams did not

articulate how those records reveal that Cassio provided aid and

support to Dorisca. Contrast, e.g., Commonwealth v. Lopes, 455

Mass. 147, 164-165 (2009). This conclusory statement is so

bereft of the factual details required to establish probable

cause that, unlike the situation presented in Augustine, we need
23

not remand the matter to the trial court for further findings.

See, e.g., Commonwealth v. Moran, 353 Mass. 166, 169-170 (1967)

(distinguishing between facts and conclusions).

Conclusion. So much of the order as allowed the

defendant's motion to suppress with respect to the cocaine is

reversed. In all other respects, the order is affirmed.

So ordered.