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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 fifteenminute 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 narcoticstrained 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 

 

10 Contrary 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). 

 

11 Although 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.