Commonwealth v. Lugo

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SJC-12546

COMMONWEALTH vs. NATHAN LUGO.

Norfolk. November 5, 2018. - April 24, 2019.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Homicide. Constitutional Law, Sentence, Cruel and unusual

punishment, Search and seizure, Standing to question

constitutionality. Due Process of Law, Sentence. Cellular

Telephone. Search and Seizure, Standing to object,

Expectation of privacy, Emergency, Exigent circumstances.

Practice, Criminal, Sentence, Instructions to jury,

Assistance of counsel, Motion to suppress.

Indictments found and returned in the Superior Court

Department on December 21, 2011, and August 19, 2014.

Pretrial motions to suppress evidence were heard by Thomas

A. Connors, J., the cases were tried before him, and a motion

for a new trial and resentencing, filed on May 9, 2017, also was

heard by him.

The Supreme Judicial Court granted an application for

direct appellate review.

Katherine C. Essington for the defendant.

Stephanie Martin Glennon, Assistant District Attorney, for

the Commonwealth.

The following submitted briefs for amici curiae:

2

Marsha L. Levick, Karen U. Lindell, & Riya Saha Shah, of

Pennsylvania, & Laura Chrismer Edmonds for Juvenile Law Center &

others.

Nicholas K. Mitrokostas, Eric T. Romeo, & Jaime A. Santos

for Louis D. Brown Peace Institute & others.

Meredith Shih for Boston Bar Association.

Elizabeth Doherty for youth advocacy division of the

Committee for Public Counsel Services & others.

John P. Zanini, Assistant District Attorney, for District

Attorney for the Berkshire District & others.

CYPHER, J. In November 2011, the victim, Kyle McManus, was

murdered after a plan to rob him of marijuana failed. A jury

convicted the defendant, Nathan Lugo, of murder in the second

degree.1 The defendant, who was seventeen years old at the time

of the murder, was sentenced to the mandatory term of life

imprisonment with eligibility for parole after fifteen years.2

On appeal, the defendant argues that the mandatory sentence is

unconstitutional because it does not allow the judge to exercise

his or her discretion to impose anything less than a life

sentence with the possibility of parole. The defendant contends

that the judge erred in denying his motion to continue his

sentence so that he could present evidence related to his

juvenile status. He further argues that (1) the judge erred in

1 The defendant also was convicted of armed robbery,

possession of a firearm without a license, possession of

ammunition without a firearm identification card, and conspiracy

to violate the controlled substance law.

2 The defendant received concurrent sentences for the other

convictions.

3

denying his request to instruct the jury on accident; (2) his

counsel was ineffective for not requesting other jury

instructions; and (3) the judge erred in denying the defendant's

motion to suppress the warrantless "pinging" of his cellular

telephone (cell phone).

In Commonwealth v. Okoro, 471 Mass. 51, 62 (2015), we

concluded that the mandatory sentencing scheme as applied to

juveniles convicted of second-degree murder was constitutional.

We left for another day, however, the question whether juvenile

homicide offenders require individualized sentencing. We

stated: "Given the unsettled nature of the law in this area and

the indication that it is still evolving, we think it prudent to

allow this process to continue before we decide whether to

revisit our interpretation of [Miller v. Alabama, 567 U.S. 460

(2012),] and the scope of its holding." Okoro, supra at 61.

Now, nearly four years after our decision in Okoro, the

defendant asks us to address that very issue. For the same

reasons stated in Okoro, we continue to leave the individualized

sentencing question for another day and reject the defendant's

other arguments.3

3 We acknowledge the amicus briefs submitted by the Louis D.

Brown Peace Institute, Families for Justice as Healing, and the

National Council for Incarcerated and Formerly Incarcerated

Women and Girls; the Juvenile Law Center, the Center for Law,

Brain and Behavior, and the Center on Wrongful Convictions of

Youth; the Boston Bar Association; the youth advocacy division

4

Background. We summarize the facts that the jury could

have found, reserving pertinent facts for the discussion of the

defendant's arguments. In addition, we reserve the facts that

the motion judge found for the discussion of the defendant's

motion to suppress.

The defendant and three friends, Alison Deshowitz, Devante

Thames, and Brian Moulton, developed a plan to rob the victim of

marijuana. Deshowitz, who had dated the victim, contacted him

under the guise that she was arranging a drug transaction. The

plan was for the group to meet the victim at a restaurant, bring

him to his home to secure the marijuana, and then rob him of the

marijuana. The defendant drove the group in his mother's black

sport utility vehicle (SUV) to meet the victim. On the way to

the restaurant, he informed the group that he was armed with a

revolver.

The group met the victim at the restaurant and drove him to

his house to get the marijuana. After going inside the victim's

house to measure the marijuana, the victim and Thames walked

back to the SUV that was idling in the victim's driveway. The

victim leaned into the front passenger's side window of the SUV

of the Committee for Public Counsel Services, the Children's Law

Center of Massachusetts, Hon. Gail Garinger, and Robert

Kinscherff; and the district attorneys for the Berkshire,

Bristol, Cape and the Islands, Eastern, Hampden, Northwestern,

Plymouth, Middle, and Suffolk districts.

5

to collect the money for the marijuana that Thames already was

holding. Moulton displayed the money to be used to complete the

drug transaction, and the victim commented that it looked to be

less than the agreed-upon purchase price. Upon hearing the

victim's suspicions, the defendant "threw the car in reverse"

and backed out of the driveway with the victim still leaning

through the window. A scuffle ensued between the victim and

Moulton as the victim attempted to grab the money in Moulton's

hand and get out of the moving SUV. The victim did not have a

weapon but was carrying an open beer can or bottle that he had

taken from the restaurant. The victim shouted, "Help," before a

loud pop was heard; the SUV sped away, leaving the victim

behind. Thames testified that the defendant extended his hand

with the gun across the passenger seat. Moulton bent down, and

the defendant shot the victim in the chest. The victim was

pronounced dead at the hospital shortly thereafter.

Police quickly discovered that the victim was last seen

alive with Deshowitz. After going to Deshowitz's house and

learning that she was not home, police spoke to her on her cell

phone. Police then attempted to locate her cell phone by

"pinging" it. Deshowitz's cell phone location, coupled with

other information that police gathered, indicated that she was

located at the defendant's house. Police proceeded to the

6

defendant's house, where they arrested the defendant and the

group.

At the defendant's house, police discovered a black SUV in

the garage. Police recovered several bags of marijuana in the

defendant's bedroom and a .22 caliber revolver, later revealed

to be the murder weapon, hidden in a hollowed-out hole under a

patio brick.

2. Procedural history. The offenses were committed three

months before the defendant's eighteenth birthday. At the

conclusion of trial, he was sentenced to life in prison with the

possibility of parole after fifteen years on the charge of

murder in the second degree. At the sentencing hearing,

although defense counsel acknowledged that the judge had no

discretion in imposing a sentence for murder in the second

degree, he asked for a continuance so that he could present

evidence of mitigation. Defense counsel informed the judge that

he had retained an expert in juvenile psychology and that he

wanted to present the expert's testimony at sentencing.

According to defense counsel, this testimony would have

discussed "unique things about juveniles, their perception,

their need for instant gratification, their likelihood of

success and rehabilitation . . . all things that are important."

The judge acknowledged the possible importance of this

information when the defendant is eligible for parole, but

7

denied the defendant's request. The judge believed that the

information was better suited to be presented to the parole

board at the time of the parole hearing.

The defendant timely filed a notice of appeal, which was

stayed so that he could pursue a motion for a new trial. In his

motion, the defendant argued, among other things, that the

statutorily mandated sentence of life with the possibility of

parole after fifteen years violated provisions of the State and

Federal Constitutions; certain instructions given on the

homicide charge were erroneous; and counsel was ineffective in

failing to object to improper instructions. After a

nonevidentiary hearing, the motion was denied. The motion

judge, who was also the trial judge, found that

"[r]eview of the Okoro ruling makes clear that a person in

[the defendant's] position is not under the law as

presently enunciated in a position to argue that he must

receive an individualized sentencing hearing after his

conviction of second degree murder, an offense which

requires the imposition of the mandatory sentence called

for in [G. L. c. 265, § 2]."

The defendant's appeal from that denial was consolidated with

his direct appeal, and we granted his application for direct

appellate review.

Discussion. 1. Constitutionality of the defendant's

sentence. The defendant argues that the statutory sentencing

scheme for juveniles convicted of murder in the second degree,

G. L. c. 127, § 133A, which mandates a sentence of life in

8

prison with the possibility of parole after fifteen years,

violates the Eighth Amendment to the United States Constitution

and art. 26 of the Massachusetts Declaration of Rights. He

contends that the statutory scheme does not allow judges to

exercise their discretion to impose anything less than a life

sentence, with the possibility of parole, after an

individualized hearing.4 He argues that such a mandatory

sentence for a conviction of murder in the second degree is

disproportional in light of the decisions in Okoro, 471 Mass.

51; Diatchenko v. District Attorney for the Suffolk Dist., 471

Mass. 12 (2015) (Diatchenko II); Diatchenko v. District Attorney

for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I); and

Miller, 567 U.S. 460. The defendant asks us to consider whether

to expand Miller's due process interpretation, post-Diatchenko I

and post-Okoro, to require individualized sentencing hearings

for juveniles facing statutorily imposed mandatory life

sentences with parole eligibility. Further, relying on Miller,

the defendant argues that the denial of his motion to continue

the sentencing hearing prohibited him from presenting mitigating

4 The defendant does not contend that parole eligibility

after fifteen years is cruel and unusual or disproportional to

the offense, but is instead "challenging the legislature's one

size fits all determination that a life sentence is necessary

for every juvenile convicted of second degree murder."

9

evidence concerning his "distinctive mental attributes and

environmental vulnerabilities."

In Diatchenko I, we held that, in light of the United

States Supreme Court's decision in Miller,5 the Massachusetts

statute imposing a sentence of mandatory life without parole,

G. L. c. 265, § 2, violated the defendant's right of protection

against cruel and unusual punishment and that the discretionary

sentence of life without parole upon the defendant violated the

State constitutional prohibition against cruel or unusual

punishment. Diatchenko I, 466 Mass. at 667-671. We concluded

that a juvenile homicide offender who is convicted of murder in

the first degree and receives a mandatory sentence of life in

prison must be afforded a "meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation," and

that this opportunity must come through consideration for

release on parole. Id. at 674, quoting Graham v. Florida, 560

U.S. 48, 75 (2011). As a key distinguishing factor to the case

before us, however, the sentencing statute was invalid only with

respect to language prescribing life without the possibility of

parole for juvenile offenders. Diatchenko I, supra.

5 In Miller v. Alabama, 567 U.S. 460, 465, 469-480 (2012),

the United States Supreme Court held that mandatory sentences of

life without parole for offenders under the age of eighteen at

the time of their crimes violates the prohibition against cruel

and unusual punishment in the Eighth Amendment to the United

States Constitution.

10

Two years after the decision in Diatchenko I, we expanded

its holding in Okoro, supra. In Okoro, the defendant argued

that the Eighth Amendment, as established in Miller, required

individualized sentencing hearings in every case in which a

juvenile homicide offender received a life sentence. Okoro, 471

Mass. at 56. While we agreed with the defendant in Okoro that

certain language in Miller could be read to suggest that

individualized sentencing was required when juvenile homicide

offenders faced a sentence of life in prison, that holding was

narrow and specifically tailored to the cases before the Supreme

Court at that time. Id. at 56-57. We concluded that "a

mandatory life sentence with parole eligibility after fifteen

years for a juvenile homicide offender convicted of murder in

the second degree does not offend the Eighth Amendment or art.

26." Id. at 62. We accepted this on the understanding that it

is for the parole board to take into account the unique

characteristics that make juvenile offenders constitutionally

distinct from adults and ensure they are afforded a "meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation." Id. at 58, quoting Diatchenko I, 466 Mass. at

674.

In Okoro, 471 Mass. at 58, we "[left] for later day the

question whether juvenile homicide offenders require

individualized sentencing" for several reasons. First, we held

11

that the narrow holding in Miller was particularly directed at

juveniles who were sentenced to life without parole. Id. See

Miller, 567 U.S. at 489. Second, the constitutional distinction

between adults and juveniles for purposes of sentencing was of

fairly recent origin. Okoro, supra at 59. The scientific and

social scientific bases for this distinction were subject to

continuing research, and we could not predict the ultimate

results of that research. Id. at 59-60. The law relating to

this distinction was continuing to change and develop. Id. at

60. Finally, we cited the constitutional differences between

adults and juveniles in our sentencing laws. Id. at 61-62. The

Legislature had determined that every defendant convicted of

murder in the second degree must serve a life sentence with the

possibility of parole, but adult offenders must wait twenty-five

years before becoming eligible while juvenile offenders become

eligible in fifteen years. See G. L. c. 279, § 24; G. L.

c. 119, § 72B.

At that point, we thought it prudent to allow this area of

the law to settle further before revisiting our interpretation

of Miller. For the same reasons we stated in Okoro, we remain

unwilling to revisit our interpretation in regard to

individualized sentencing. The Commonwealth suggests that in

the four years since Okoro, our case law has only affirmed that

the opportunity to seek parole after fifteen years is an

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appropriate and proportional minimum sentence for murder in the

second degree. The defendant points to extrajurisdictional

cases, dicta, and one scientific study to suggest that there

have been significant changes in the relevant law and science

since Okoro. We are unpersuaded that the law and science are

firmly established to warrant further consideration at this

time. In sum, we leave the question open and conclude, as we

did in Okoro, that a mandatory life sentence with parole

eligibility after fifteen years for a juvenile homicide offender

convicted of murder in the second degree is constitutional. The

motion judge did not abuse his discretion in concluding that the

defendant is not entitled to individualized sentencing.

The defendant further contends that the judge violated his

due process rights in denying his request for a continuance of

sentencing so that he could present evidence of mitigation. He

argues that evidence available to him at the time of sentencing

-- at a minimum, evidence of his mental state and immaturity --

may not be available to him at the time of his first parole

hearing. The judge acknowledged the possible importance of this

evidence when the defendant is eligible for parole but denied

the defendant's request. The judge believed that the

information was better suited to be presented to the parole

board at the time of the parole hearing.

13

In Diatchenko II, 471 Mass. at 24, 27, 32, we extended

certain due process protections to juveniles sentenced to life

appearing before a parole board. See Okoro, 471 Mass. at 62-63

(due process protections of Diatchenko II apply to juveniles

convicted of murder in second degree). These protections

included the right to appointment of counsel and the right to

access funds to retain expert witnesses.

Here, we agree with the judge. Although the defendant

constitutionally is entitled to funds to establish mitigating

evidence that will be relevant before the parole board, he or

she is not entitled to make a record through an adversarial

process before sentencing. The defendant may, for example,

immediately seek funds for an expert report explaining the

relationship between a defendant's neurobiological immaturity

and culpability. However, the appropriate time to make a record

of any expert evidence will be at the parole board hearing.6

2. Jury instructions. At trial, the defendant sought, but

did not receive, jury instructions on accident, involuntary

6 We determine that juvenile homicide offenders are allowed

to seek funds to investigate immediately because of the

closeness in time to the conduct that resulted in their

incarceration. We also recognize that there is no mechanism --

in rule or procedure -- that grants a juvenile homicide offender

the opportunity to seek immediate funds. Allowing the defendant

to seek immediate funds is necessary to ensure that the juvenile

homicide offender receives a meaningful opportunity for release.

See Diatchenko v. District Attorney for the Suffolk Dist., 471

Mass. 12, 27-28 (2015). (Diatchenko II).

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manslaughter, and voluntary manslaughter. He argues that two of

these instructions, on involuntary manslaughter and voluntary

manslaughter by reason of sudden combat, would have allowed the

jury to consider a lesser charge than murder and that an

instruction on accident would have given the jury the

opportunity to acquit. We review the denial of a motion for a

new trial for an abuse of discretion. See Commonwealth v.

Acevedo, 446 Mass. 435, 441–442 (2006). We are cognizant that

"[r]eversal for abuse of discretion is particularly rare where,"

as here, "the judge acting on the motion was also the trial

judge." Id., quoting Commonwealth v. Lucien, 440 Mass. 658, 670

(2004).

a. Accident instruction. The judge declined to instruct

the jury on the defense of accident. The defendant argues that

the evidence at trial was sufficient to warrant such an

instruction. The Commonwealth argues that the judge was correct

in not providing the accident instruction because the evidence

did not support one and it would have contradicted the

defendant's theory at trial of self-defense or defense of

another. We conclude that the evidence presented at trial did

not warrant an accident instruction.

An accident instruction is warranted where "the evidence at

trial fairly raised the possibility that [the defendant caused

the victim's death] unintentionally while engaged in conduct

15

that was neither wanton nor reckless." Commonwealth v. Moore,

92 Mass. App. Ct. 40, 48 (2017), quoting Commonwealth v.

Figueroa, 56 Mass. App. Ct. 641, 650 (2002). In cases in which

the cause of death of a victim is by shooting, a defendant may

be entitled to an accident instruction where such a defense is

"fairly raised." Commonwealth v. Palmariello, 392 Mass. 126,

145 (1984). "Where there is no evidence of accident, the issue

is not fairly raised and the judge need not give an accident

instruction." Commonwealth v. Podkowka, 445 Mass. 692, 699

(2006). When analyzing whether a judge erred in declining to

give an accident instruction, a reviewing court considers the

evidence in the light most favorable to the defendant.

Figueroa, supra at 651.

Here, viewed in the light most favorable to the defendant,

there is no evidence that the victim's fatal injuries were

caused by an accident. The evidence at trial showed that the

defendant, along with his cohorts, planned to rob the victim of

marijuana. The defendant armed himself with a revolver and told

his confederates not to "worry" about the robbery because he had

ready access to the weapon and that he "wouldn't be afraid to

use it." Once the victim realized that the payment was short,

the defendant effectuated the plan, "threw the car in reverse,"

and backed out of the victim's driveway with the victim still

16

leaning through the vehicle window. Before the victim could get

out of the moving SUV, the defendant shot him in the chest.

Citing testimony from the Commonwealth's firearms expert,

the defendant argues that evidence that the firearm used in the

killing required a small amount of trigger pressure supported

his request for an accident instruction because it would have

been "very easy" for the gun to have discharged accidentally.

This evidence does not warrant an accident instruction alone,

and there was no additional evidence to support the contention

that the firearm was discharged accidentally. In fact, the jury

heard evidence that the defendant extended his arm with the gun

across the passenger seat and shot the victim in the chest. The

evidence showed that the defendant's intentional conduct caused

the gun to fire, not mere "inadvertence, mistake, or

negligence." See Figueroa, 56 Mass. App. Ct. at 650.

b. Involuntary and voluntary manslaughter instructions.

The defendant argues that the judge erred in denying his request

to instruct the jury on involuntary manslaughter. He further

contends that trial counsel was ineffective in failing to object

to the judge's decision not to give the instruction. We review

for a substantial risk of a miscarriage of justice. See

Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) (equating

ineffective assistance of counsel standard to substantial risk

17

standard in cases where waiver stems from omission by defense

counsel).

We have "stated repeatedly that, 'when the evidence permits

a finding of a lesser included offense, a judge must, upon

request, instruct the jury on the possibility of conviction of

the lesser crime.'" Commonwealth v. Gaouette, 66 Mass. App. Ct.

633, 639 (2006), quoting Commonwealth v. Woodward, 427 Mass.

659, 662-663 (1998). If a manslaughter charge is not supported

by any view of the evidence, however, then a judge does not

commit error by declining to give such an instruction.

Commonwealth v. Nichypor, 419 Mass. 209, 216 (1994). "In

deciding whether the evidence might have supported a

manslaughter instruction, we draw all reasonable inferences in

the defendant's favor." Commonwealth v. Bins, 465 Mass. 348,

368 (2013), quoting Commonwealth v. Masello, 428 Mass. 446, 449

(1998).

Involuntary manslaughter is an unintentional killing

occurring while a defendant is engaged in wanton or reckless

conduct that creates a high degree of likelihood that

substantial harm will result to another. Commonwealth v. Power-

Koch, 69 Mass. App. Ct. 735, 736-737 (2007). "[W]here a

defendant is charged with murder, an instruction on involuntary

manslaughter is appropriate if any 'reasonable view of the

evidence would [permit] the jury to find "wanton [or] reckless"

18

conduct rather than actions from which a "plain and strong

likelihood" of death would follow.'" Commonwealth v. Tavares,

471 Mass. 430, 438 (2015), quoting Commonwealth v. Braley, 449

Mass. 316, 331 (2007).

Here, an involuntary manslaughter instruction was not

warranted. The evidence showed that the defendant armed himself

with a firearm and planned to rob the victim. A reasonable view

of the evidence suggests that the defendant exhibited conduct

from which a plain and strong likelihood of death would result.

The defendant pulled out a revolver and pointed it at the victim

before shooting him in the chest. See Commonwealth v. Alebord,

68 Mass. App. Ct. 1, 7 (2006) ("The likelihood of death ensuing

when a loaded weapon is aimed at a person or group of people and

then intentionally discharged is plain and strong indeed").

The defendant also raises the same arguments regarding the

judge's denial of his request for a voluntary manslaughter

instruction. Specifically, he argues that the judge erred in

not instructing the jury on reasonable provocation and sudden

combat.7

Voluntary manslaughter is "a killing from a sudden

transport of passion or heat of blood, upon a reasonable

7 The judge instructed the jury on voluntary manslaughter

and imperfect self-defense, but did not mention reasonable

provocation or sudden combat.

19

provocation and without malice, or upon sudden combat."

Commonwealth v. Walden, 380 Mass. 724, 727 (1980), quoting

Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). Not all

physical confrontations, even those initiated by the victim, are

sufficient. See, e.g., Commonwealth v. Curtis, 417 Mass. 619,

629 & n.6 (1994); Commonwealth v. Parker, 402 Mass. 333, 344–345

(1988), S.C., 412 Mass. 353 (1992) and 420 Mass. 242 (1995);

Walden, supra at 727-728. Cf. Commonwealth v. Iacoviello, 90

Mass. App. Ct. 231, 242 (2016). Rather, "[t]here must be

evidence that would warrant a reasonable doubt that something

happened which would have been likely to produce in an ordinary

person such a state of passion, anger, fear, fright, or nervous

excitement as would eclipse his capacity for reflection or

restraint, and that what happened actually did produce such a

state of mind in the defendant." Gaouette, 66 Mass. App. Ct. at

639-640, quoting Walden, supra at 728. The defendant's actions

must be "both objectively and subjectively reasonable. That is,

the jury must be able to infer that a reasonable person would

have become sufficiently provoked and would not have 'cooled

off' by the time of the homicide, and that in fact a defendant

was provoked and did not cool off." Commonwealth v. Groome, 435

Mass. 201, 220 (2001).

In cases where sudden combat is the claimed provocation,

the victim generally must attack the defendant, or at least

20

strike a blow against the defendant in order to warrant a

manslaughter instruction. See Curtis, 417 Mass. at 629. Here,

there is no evidence that the victim struck the defendant, much

less created a risk of serious harm. Nor is there evidence that

the defendant objectively believed at the time of the shooting

that the victim was armed with a firearm. The defendant relies

on Moulton's testimony, in which Moulton stated that after the

victim realized that the money in exchange for the marijuana was

short he "tussled" with Moulton through the open passenger's

side window. Moulton claimed that the victim had "a beer can or

a bottle . . . in his hand" and was yelling "help." This

evidence is insufficient to support a sudden combat instruction.

See Commonwealth v. Bianchi, 435 Mass. 316, 329 (2001) (sudden

combat instruction not warranted where defendant's illegal

conduct "intentionally precipitated the confrontation" and

defendant was armed with loaded weapon); Curtis, supra.

3. Motion to suppress cell phone location. Prior to

trial, the defendant filed a motion to suppress the evidence of

his cell site location information (CSLI) that police obtained

from his cell phone carrier. The motion judge denied the

motion, concluding that the emergency aid exception justified

the warrantless pinging of Deshowitz's and the defendant's cell

phones. In reviewing a decision on a motion to suppress, "we

accept the judge's subsidiary findings absent clear error 'but

21

conduct an independent review of [the] ultimate findings and

conclusions of law.'" Commonwealth v. Jones-Pannell, 472 Mass.

429, 431 (2015), quoting Commonwealth v. Ramos, 470 Mass. 740,

742 (2015). The motion judge found the following. After the

shooting, police learned that the victim was last seen alive

with Deshowitz. Through records held by the registry of motor

vehicles (registry), police determined that Deshowitz lived in

Stoughton. A Stoughton police detective, Michael Tuitt, who was

familiar with both Deshowitz and her sister, went to their

residence where he learned that Deshowitz was not home, but her

sister offered to call her cell phone. Tuitt recognized

Deshowitz's voice on the call, but was concerned that she was

speaking in a whisper and pausing before answering his

questions. Tuitt said to Deshowitz that if she was not able to

talk freely she should say "Tennessee." She responded,

"Tennessee." He then said that if she could not speak because

people were with her to say "seven." Deshowitz responded,

"Seven." He then asked her if she could not get away to say

"four." She responded, "Four." Finally, the detective told her

that if she were not really in Abington (where she claimed to be

with friends) to say "seven." She responded, "Seven." After

his conversation with Deshowitz, Tuitt believed that she was in

danger.

22

Tuitt returned to the police station, where he spoke with

Sergeant Detective Melissa McCormack about obtaining the

location of Deshowitz's cell phone. McCormack began the process

of "pinging" Deshowitz's cell phone through her cell phone

carrier. McCormack contacted a representative of the carrier

and stated that there were exigent circumstances that

necessitated the request for the cell phone's location based

upon her certification of "imminent danger of death or serious

physical injury."

In the interim, Tuitt received a telephone call from

Deshowitz's mother, who told Tuitt that she believed something

was wrong with her daughter. When police received Deshowitz's

cell phone coordinates at 1:26 A.M., they discovered that the

cell phone was located in Brockton. Tuitt asked Deshowitz's

mother if Deshowitz knew anyone in Brockton. The mother replied

that she knew a "Nate" and gave his address. The mother

accompanied Tuitt to the address, where Tuitt observed a vehicle

registered to the defendant's mother parked in the driveway.

McCormack also learned from registry records that a licensed

driver named "Nathan Lugo" resided at the residence.

As part of the exigency request, the cell phone carrier

also provided police with the cell phone numbers and subscriber

names for cell phones that either received or made calls to

Deshowitz's cell phone. Among those numbers was a cell phone

23

subscribed to the defendant's mother. McCormack had that cell

phone pinged via its carrier, which showed it to be in the same

general location as Deshowitz's cell phone.

At approximately 3 A.M., police arrived at the defendant's

residence and were allowed in by the defendant's mother. Police

retrieved Deshowitz and asked her to speak with responding

officers. Later that morning, the officers procured a search

warrant. During their search, police discovered evidence

linking the defendant to the killing, including the murder

weapon. The officers proceeded to arrest the defendant,

Deshowitz, Thames, and Moulton.

On appeal, the defendant argues that the motion judge erred

in denying his motion to suppress the evidence obtained as a

result of the pinging of Deshowitz's and his cell phones. He

argues that the emergency aid exception to the warrant

requirement does not apply because police had no objectively

reasonable basis to believe that Deshowitz was injured or was in

"imminent danger of physical harm" (citation omitted).

Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert.

denied, 568 U.S. 1129 (2013). The Commonwealth argues that the

defendant lacked standing to contest the real-time "pinging" of

Deshowitz's cell phone and that the motion judge's undisputed

factual findings supported the application of the emergency

exception to the search.

24

To prevail on a motion to suppress under art. 14 of the

Massachusetts Declaration of Rights, a defendant must

demonstrate that he or she has standing to contest the search

and that he or she had an expectation of privacy in the area

searched or in the item seized that society recognizes as

reasonable. See Commonwealth v. Figueroa, 468 Mass. 204, 216

(2014). "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."

Commonwealth v. Fulgiam, 477 Mass. 20, 35, cert. denied, 138 S.

Ct. 330 (2017), quoting Commonwealth v. Williams, 453 Mass. 203,

208 (2009).

We conclude that the action by police of causing

Deshowitz's and the defendant's cell phones to reveal their

real-time location constituted a search in the constitutional

sense. See Commonwealth v. Almonor, 482 Mass. , (2019)

("society reasonably expects that the police will not be able to

secretly manipulate our personal cell phones for any purpose,

let alone for the purpose of transmitting our personal location

data"). Although the police's conduct was a search in the

constitutional sense, our analysis does not end there.

a. Deshowitz's cell phone. We first look to determine if

the defendant has standing to challenge the search of

Deshowitz's cell phone. We conclude that he does not. See

25

Commonwealth v. Estabrook, 472 Mass. 852, 857 n.9 (2015)

(defendants did not have standing to contest collection of CSLI

associated with cell phones that they were not using). Cf.

Commonwealth v. Augustine, 467 Mass. 230, 255 (2014), S.C., 470

Mass. 837 (2015) (person has reasonable expectation of privacy,

to certain extent, in historical CSLI relating to cell phone).

The defendant does not have automatic standing to contest the

search of Deshowitz's cell phone because he does not have a

possessory interest in it. See Commonwealth v. Cruzado, 480

Mass. 275, 282 (2018). Furthermore, the defendant does not have

actual standing to contest the search of Deshowitz's cell phone.

Police first pinged Deshowitz's cell phone at 1:26 A.M. Police

entered the defendant's home to talk with Deshowitz at 3 A.M.

Although the defendant was with Deshowitz when her location was

searched, the period of the search -- less than two hours -- was

not sufficiently significant to allow the defendant standing in

Deshowitz's cell phone. Contrast Commonwealth v. Rousseau, 465

Mass. 372, 382 (2013) (police tracking codefendant's vehicle for

thirty-one days gave defendant, who was often with codefendant,

standing to contest search); Commonwealth v. Fredericq, 482

Mass. , (2019) (defendant had automatic standing because

police knew that he was in car with murder suspect whose

movements were being tracked through CSLI of another cohort's

cell phone for more than six days).

26

Likewise, at the time of the initial search of Deshowitz's

cell phone, police did not know that she was with the defendant.

Police only knew that she was the last person seen with the

victim. It was not until the investigation unfolded that police

discovered Deshowitz was at the defendant's house. The

defendant cannot establish a reasonable expectation of privacy

in Deshowitz's cell phone when it was tracked for a brief period

of time and he was never a target of the tracking. Contrast

Rousseau, 465 Mass. at 382 (CSLI search was specifically

"targeted at [defendant's] movements").

In any event, the defendant's challenge of the search of

Deshowitz's cell phone would be futile because the search was

justified by the emergency aid exception. See Commonwealth v.

Raspberry, 93 Mass. App. Ct. 633, 640-641 (2018) (emergency

exception applied where police had objectively reasonable

grounds to believe that emergency aid might be needed). Police

were investigating a homicide and learned that the victim was

last seen alive with Deshowitz. Tuitt spoke with her on her

cell phone, but was concerned that she was speaking in a whisper

and pausing before answering his questions. There were

reasonable grounds to believe emergency aid might be needed

especially after Deshowitz, in answering Tuitt's coded

questions, indicated that she was not able to speak freely.

27

b. Defendant's cell phone. The defendant has standing to

challenge the search of his cell phone. However, the

information gathered from the pinging of the defendant's cell

phone -- confirmation of the location of his residence --

already had been gathered by other means, the search of

Deshowitz's cell phone. Put another way, all of the evidence

that led police to locate the defendant was obtained through the

initial search of Deshowitz's cell phone. Prior to pinging the

defendant's cell phone, police had gathered the following

information: (1) Deshowitz's cell phone's coordinates were at

an address located in Brockton; (2) Deshowitz's mother informed

police that she knew her daughter frequently visited an address

in Brockton with a person named "Nate"; (3) at the address in

Brockton, police discovered a vehicle in the driveway registered

to the defendant's mother; (4) registry records also indicated

that a driver named "Nathan Lugo" resided at the residence; and

(5) Deshowitz's cell phone carrier provided police with

information that her cell phone had been in contact with a cell

phone registered to the defendant's mother. Only then did

police ping the defendant's cell phone and discover that it was

in the same location as Deshowitz's cell phone -- the

defendant's address. Therefore, even if the pinging of the

defendant's cell phone was improper, in the circumstances, the

police eventually would have found the defendant, and all the

28

evidence that tied him to the crime, at his residence when they

conducted the search for Deshowitz. See Commonwealth v.

Hernandez, 473 Mass. 379, 386 (2015). The use of the

defendant's cell phone's global positioning system coordinates

merely confirmed the evidence gleaned from Deshowitz's cell

phone. See United States v. Ellis, 270 F. Supp. 3d 1134, 1158

(N.D. Cal. 2017). We do not need to analyze whether there was

probable cause and exigency to ping the defendant's phone,

because no evidence came from the search.

Conclusion. We affirm the defendant's convictions and the

order denying his motion for a new trial.

So ordered.