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12-P-1292 Appeals Court

COMMONWEALTH vs. PETER CHAMBERLIN.

No. 12-P-1292.

Bristol. September 9, 2014. - December 5, 2014.

Present: Kantrowitz, Grainger, & Hanlon, JJ.

Cellular Telephone. Subpoena. Practice, Criminal, Motion to 

suppress, Subpoena, Warrant. Grand Jury. Search and 

Seizure, Warrant, Plain view. Due Process of Law. 

Evidence, Voice identification. Identification.

Indictments found and returned in the Superior Court 

Department on November 21, 2007.

Pretrial motions to suppress evidence were heard by D. 

Lloyd Macdonald, J., and the cases were tried before Robert J. 

Kane, J.

Merritt Schnipper for the defendant.

Tara L. Blackman, Assistant District Attorney, for the 

Commonwealth.

GRAINGER, J. A jury of the Superior Court found the 

defendant guilty of armed robbery while masked, G. L. 265, § 17, 

kidnapping for purposes of extortion, G. L. c. 265, § 26, and 

armed assault with intent to murder, G. L. c. 265, § 18(b). The 
2

convictions were based on the armed invasion of a real estate 

agency following telephone conversations between the defendant 

and the agency's owner during which the defendant made an 

evening appointment for the ostensible purpose of discussing one 

or more properties of interest to him. The defendant appeals,

asserting numerous procedural and evidentiary errors that we 

consider in turn, referring to the undisputed factual background 

as necessary to inform our discussion.

1. Production of telephone records. The victim told the 

police that although the defendant was masked, his voice was 

recognizable as belonging to an individual who identified 

himself as "Marco" during several telephone calls that 

culminated in an evening appointment at the victim's office for 

the time of the robbery. The victim reported that the defendant 

spoke repeatedly during the robbery, making threats to the 

victim and referring to the victim's wife. In the course of 

investigating the robbery, Fall River police Detective Lawrence 

Ferreira examined the victim's phone, retrieving a voicemail

message from "Marco." After obtaining call records from the 

victim's cellular telephone carrier, Detective Ferreira linked 

the defendant to the only number on the call list that the 

victim did not recognize. Ferreira then contacted the carrier, 

T-Mobile, and requested call records associated with that 

number. Ferreira informed the T-Mobile law enforcement 
3

relations officer, Ronald Witt, that the defendant's phone was 

being used to contact the victim's family and that the "suspect 

has threatened the victim's family with bodily harm."1

The defendant's phone records were produced by T-Mobile 

voluntarily and without the issuance of an administrative 

subpoena, G. L. c. 271, § 17B, although T-Mobile accompanied the 

production with a request for a subpoena within forty-eight

hours. The record indicates that the assistant district 

attorney in charge of the case sent a grand jury subpoena to 

Witt the day following T-Mobile's production; that subpoena was 

not in evidence and is not in the record.

a. General Laws c. 271, § 17B. The defendant asserts that 

the phone records produced by T-Mobile were obtained in 

violation of G. L. c. 271, § 17B, and that this violation 

warrants suppression of those records. Neither party contends 

that the defendant has a constitutional expectation of privacy 

in his phone records. Indeed, the defendant could not make such 

a claim. See Commonwealth v. Augustine, 467 Mass. 230, 244 

 

1 Witt characterized his understanding of the case as 

"murder suspect, threat to family," and testified that this 

understanding was based on "what the police would have told me." 

Detective Ferreira denied describing the case as one involving 

murder. The inconsistency does not affect our analysis.
4

(2014).2 Therefore, the question before us is one of a statutory 

or procedural, not constitutional, violation. 

First, we conclude that an administrative subpoena pursuant 

to G. L. c. 271, § 17B, was not required in this case. This 

issue appears to be one of first impression. While the Supreme 

Judicial Court and this court have addressed the use of the 

§ 17B procedure, neither court has addressed whether a § 17B 

subpoena is required to obtain phone records in all instances. 

The defendant's reliance on Commonwealth v. Vinnie, 428 Mass. 

161, cert. denied, 525 U.S. 1007 (1998), and Commonwealth v. 

Feodoroff, 43 Mass. App. Ct. 725 (1997), is unavailing on this 

question, as neither case suggests that § 17B is the exclusive 

procedure by which the Commonwealth may obtain phone records.3

We first look to the language of the statute itself to determine 

whether a § 17B subpoena is the exclusive means by which to 

obtain phone records. Commonwealth v. Boe, 456 Mass. 337, 347 

(2010).

 

2 The judge also found that both the police and T-Mobile 

followed the carrier's procedures in good faith and that 

consequently, also as a factual matter, there was a very limited 

expectation of privacy in these records that revealed only 

numbers contacted by the defendant's phone (contents of 

conversations are not at issue here).

3 Feodoroff holds that an officer of the court, and not a 

police official, may issue a § 17B subpoena, 43 Mass. App. Ct.

at 727-728; Vinnie provides that suppression is an appropriate 

remedy for a violation of § 17B, 428 Mass. at 178.
5

The language of § 17B4 is permissive, not mandatory, and is 

entirely silent with respect to the voluntary production of 

documents by a third-party phone company. The Supreme Judicial 

Court has recognized that, while many mechanisms exist to obtain 

documents through judicial process, documents can also be 

obtained by law enforcement personnel through informal, 

extrajudicial process for investigative purposes. See

Commonwealth v. Odgren, 455 Mass. 171, 186 n.26 (2009), citing 

Commonwealth v. Mitchell, 444 Mass. 786, 791-792 n.12 (2005). 

Nothing in the language of § 17B changes that reality. While

§ 17B may be the only available mechanism in certain 

circumstances, neither statute nor case law renders it the 

exclusive method by which to obtain third-party records. 

b. Stored Communications Act. Moreover, we discern no 

provision of the Federal Stored Communications Act (the act), 18 

 

4 General Laws c. 271, § 17B, as in effect in September, 

2007, see St. 1966, c. 352, reads, in pertinent part: 

"Whenever the attorney general or a district attorney 

has reasonable grounds for belief that the service of a 

common carrier . . . is being or may be used for an 

unlawful purpose he may, acting within his jurisdiction, 

demand all the records in the possession of such common 

carrier relating to any such service. Such common carrier 

shall forthwith deliver to the attorney general or district 

attorney all the records so demanded." (Emphasis 

supplied.)

Section 17B was subsequently amended in 2008. See St. 

2008, c. 205, § 3. That revised version is not applicable here; 

the differences are not material to our analysis.
6

U.S.C. §§ 2701 et seq. (2006), that compels a different 

conclusion. The act "directs how governmental entities may 

obtain communication records from third-party providers of 

electronic communication services." Commonwealth v. Augustine, 

467 Mass. at 235. The section of the act at issue here is 

§ 2702, entitled "Voluntary disclosure of customer 

communications or records" (emphasis added). We are not aware 

of any reported cases in Massachusetts which interpret § 2702 of 

the act,

5 and the act's plain language contemplates the voluntary 

disclosure of records in certain circumstances. One such 

circumstance, relevant here, is when the custodian believes in 

good faith, that there are exigent circumstances. 18 U.S.C.

§ 2702(c)(4) (2006).

6

The motion judge found that a § 17B subpoena was not 

required because there was no demand for the records; they were 

voluntarily produced to Detective Ferreira after what amounted 

to no more than an inquiry to T-Mobile. We accept the motion 

judge's findings of fact absent clear error. See Commonwealth

v. Watson, 36 Mass. App. Ct. 252, 257 (1994), citing 

 

5 The only reported Massachusetts cases discussing the act 

interpret § 2703, which governs compelled disclosure of phone 

records. See Commonwealth v. Augustine, 467 Mass. 230 (2014). 

See also Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810, 

818-819 (2013).

6 Congress has also decreed that suppression is not a remedy 

for violation of the act absent a constitutional violation. 18 

U.S.C. §§ 2707, 2708 (2006). 
7

Commonwealth v. Harmon, 410 Mass. 425, 428-429 (1991). Finding 

no error, we conclude for purposes of our analysis that T-Mobile 

produced the records voluntarily after inquiry by the Fall River 

police. 

While, as stated, the Commonwealth was not required to use 

a § 17B administrative subpoena, the voluntary disclosure of 

phone records here was only proper under Federal law if there 

were exigent circumstances. 18 U.S.C. § 2702(c)(4) (2006). The 

motion judge found that exigent circumstances did exist at the 

time T-Mobile produced the records. That factual determination 

is again reviewed under an abuse of discretion standard and, 

again, we find none. In doing so, we refer particularly to the 

violent nature of the crime and the perceived ongoing threat to 

the victim and his family.7 The denial of the motion to suppress 

was proper.

 

7 During the robbery the defendant repeatedly told the 

victim, "I know where you live." The defendant ascribes 

significance to the fact that in the delivery of this threat the

robber recited an incorrect address, leading the victim to 

reply, "Sir, you have the wrong guy." We do not agree that the 

police were required to rely on this mistake and therefore 

required to conclude that the defendant's threats were not 

serious, especially in light of the robber having shot the 

victim point blank in the head, having instructed an accomplice 

to "plug" the victim some more, and the subsequent anonymous

calls to the victim's actual residence. It is undisputed that 

the robbery was undertaken in a very violent manner including 

the attempt to murder the victim in cold blood while he was 

bound and on the floor. 
8

c. Grand jury subpoena. Finally, while we conclude the 

Commonwealth was not required to use a § 17B administrative 

subpoena, we agree with the defendant that the Commonwealth's 

use of a grand jury subpoena was procedurally improper. The 

grand jury subpoena issued here was issued at the request of the 

phone company after the records had already been produced to the 

police. The records could not have been intended to be produced 

at a grand jury, as none had been convened at the time. This is 

a statutory or ethical violation, not a constitutional one. See 

Commonwealth v. Mitchell, 444 Mass. at 798 n.17. Suppression is 

not the appropriate remedy absent a showing of prejudice to the 

defendant. See Commonwealth v. Smallwood, 379 Mass. 878, 887-

888 (1980); Commonwealth v. Cote, 407 Mass. 827, 832-833 (1990). 

We note that the defendant appropriately conceded at oral 

argument that there was no prejudice flowing from the improper 

use of the grand jury subpoena.

2. "No-knock" search warrant: reappraisal. The defendant 

asserts that evidence seized in his residence should have been 

suppressed because the police failed to conduct a threshold 

reappraisal to ensure the necessity of the no-knock entry 

authorized by the search warrant. We do not agree.

The defendant does not argue that the inclusion of the noknock provision in the warrant was itself improper, and such an 

argument would be unavailing under the circumstances we have 
9

already recited relating to the violent nature of the crime and 

the threats uttered during its commission. See note 7, supra.

Rather, the argument made to the motion judge and pressed on 

appeal is that a reappraisal is required in all cases, and that 

the failure to engage in one renders the search invalid. Our 

case law does not apply such a categorical rule. Commonwealth

v. Scalise, 387 Mass. 413 (1982), on which the defendant relies,

is a case in point: "We recognize that the facts existing at 

the time the warrant is issued may no longer exist at the time 

the warrant is executed. In those instances, the officers would 

be required to knock and announce their purpose." (Emphasis 

added.) Id. at 421. Reappraisal is not a formalistic exercise 

mandated in all circumstances -- it is a recognition that the 

provisions of a warrant are conditioned on the continued 

existence of the sworn facts justifying the abrogation of 

constitutional rights until the warrant is executed.8 

Circumstances commonly justifying a failure to knock were 

present here. In the context of the all-important consideration 

of officer safety, we refer again to the violent nature of the 

crime and the demonstrated disregard for life shown by the 

 

8 In applying a flexible approach, the Supreme Judicial 

Court has also recognized the converse -- that an unannounced 

entry may be justified by circumstances at the time of 

execution, even though the warrant itself does not contain a noknock provision. Commonwealth v. Jimenez, 438 Mass. 213, 217

(2002), citing Commonwealth v. Scalise, 387 Mass. at 422 n.8.
10

suspect.9 With reference to preservation of evidence, the 

articles enumerated in the warrant included gloves, checks, zip

ties, and ammunition casings; such items are in many cases small 

and capable of concealment or destruction. These factors, 

clearly, remained unchanged from the time of issuance until 

execution of the warrant.

The defendant argues that because the police were spotted 

by the defendant's wife prior to entry, and then engaged in 

conversation with her, a reappraisal was mandated. The loss of 

the element of surprise, however, is a factor that justifies a 

prompt unannounced entry, rather than the contrary.

Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 836-837 (1989),

and cases cited therein. As several police witnesses pointed 

out in testimony at the suppression hearing, the entry team was 

faced with the possibility that the defendant had been alerted 

by his wife to the police presence, and that she was seeking to 

delay their access at his behest.

10

 

9 The defendant characterizes the motion judge as having 

adopted a per se rule that a threshold reappraisal is not 

possible when the suspect of a violent crime remains at large.

We find no such holding, explicit or implied, in the record.

10 In the sensible words of one of the officers, challenged

to explain why being seen by the defendant's wife, who then 

promised to open the door for the police, was not a reason to 

reappraise: "Well, we get lied to a lot, yeah." 
11

The defendant also asserts a violation of his due process 

rights because the motion judge did not allow him to compel the 

testimony of three additional members of the police entry team 

after three officers had already testified. The defendant has 

failed to specify the relevant issue that the additional 

testimony would cover, or to make a proffer of the evidence he 

was anticipating.11 The Commonwealth stipulated to the affidavit 

provided by the defendant's wife for purposes of determining 

whether additional witnesses were needed and whether the warrant 

was properly executed. The motion judge was well within his 

discretion in ruling that additional witnesses would not be 

called. See Commonwealth v. Carroll, 439 Mass. 547, 552-553 

(2003) (trial judge's discretion to exclude cumulative 

testimony).

3. Plain view exception to the warrant requirement: 

inadvertence. During their search of the defendant's home the 

police seized the defendant's computer containing, among other 

evidence, Fall River real estate listings that had been sent by 

electronic mail message (e-mail) to the defendant after he 

feigned interest in purchasing property so that he could gain 

 

11 We do not consider the defendant's reference to a 

discrepancy on the subject of any possible prior interaction 

between any of the officers and the defendant's wife to raise a 

relevant issue. Regardless of whether or not the officers had 

had previous contact with the defendant's wife, they were not 

required to accept assurances from her that she was alone or 

that she would provide prompt access.
12

entrance to the victim's office. They also discovered printouts 

of such listings. Neither the computer nor the hard copy 

listings were identified in the search warrant and they are not 

mentioned in the supporting affidavit. The defendant argues 

that the police had probable cause to anticipate the presence of 

both the computer and the real estate listings and that, 

therefore, the requirement of inadvertence for seizure of items 

in plain view mandates their suppression.

We do not agree with the defendant that the police had 

probable cause to anticipate finding printed real estate 

listings at his residence. They were informed by the victim 

that e-mail messages containing requested real estate listings

had been sent to the defendant. The evidence on which the 

police investigation was based led to the conclusion that the 

defendant had no genuine interest in Fall River real estate. He 

requested the listings merely as a pretense to gain access to 

the office he planned to rob. The police had no reason to 

anticipate that the defendant would print and retain listings of 

seven different properties in which he had no interest, and that 

these would be kept at his residence. 

"The anticipation of finding some additional contraband or 

other evidence of criminality is not the same as having probable 

cause to believe that specific items of evidence will be present 

at the location to be searched. Such generalized anticipation 
13

undoubtedly exists in conjunction with almost every search, and 

to conclude that its presence negates inadvertence would stretch 

that requirement beyond its intent and limited purpose." 

Commonwealth v. Balicki, 436 Mass. 1, 14 (2002). 

Under these circumstances we do not need to address the 

seizure of the computer. Even were we to agree with the 

defendant's argument, we would be hard pressed to deem the 

resulting evidence prejudicial. The real estate listings found 

on the computer are duplicative of the printouts, which were in 

plain sight and not subject to the inadvertence exception. To 

the extent the defendant claims that other evidence was seized 

in error, we discern no prejudice in light of the overall 

strength of the Commonwealth's case involving, as it did, 

eyewitness voice and facial identification, phone records, real 

estate listings, and the defendant's incriminating statements. 

4. Voice identifications. Finally, the defendant 

complains that the trial judge improperly admitted the voice 

identification of the defendant by two witnesses. The gravamen 

of this assertion is that the procedures used were one-on-one 

rather than including the defendant's voice among others, that 

the police officers specifically mentioned the defendant to the 

witnesses before the identifications, and that the 

identifications were not performed until several years after the 

witnesses had last spoken with the defendant.
14

This complaint overlooks the long association between the 

witnesses and the defendant,12 a factor that renders these 

alleged defects nonsuggestive. Suggestiveness is typically an 

issue when the police are seeking an identification from a 

witness who has had a single, perhaps brief, exposure to a 

suspect. In such a case a prompt opportunity to make an 

identification under neutral conditions provides assurance that 

the result is not unduly influenced by extraneous factors such 

as a deteriorated memory and a perception of undisclosed 

additional police knowledge. See, e.g., Commonwealth v. 

Leaster, 395 Mass. 96, 102-104 (1985) (discussing factors 

creating suggestiveness in a show-up identification). In 

reviewing a claim that a voice identification was unduly 

suggestive we look to a totality of the circumstances. See

Commonwealth v. Saunders, 50 Mass. App. Ct. 865, 874 (2001), 

S.C., 435 Mass. 691 (2002) (discussing circumstances of voice 

identification in the context of five-prong test set forth in 

Commonwealth v. Marini, 375 Mass. 510, 516-517 [1978]). See

generally Mass. G. Evid. § 901(b)(5) (2014).

"In the discretion of a trial judge, a voice identification 

may be considered by a jury as long as the witness expresses 

 

12 Each witness had known the defendant for about twenty 

years; one was a good friend, and the other had a child with 

him.
15

some basic familiarity with the voice he or she claims to 

identify." Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522, 

527 (1988). We conclude under these circumstances that the 

judge did not abuse his discretion.13

Judgments affirmed.

 

13 Even were we to assign error, we would be hard pressed to deem

the voice identification testimony prejudicial in light of the 

overall strength of the Commonwealth's case.