Emergency justified warrantless tracking of defendant by cell location

Defendant argued that the circumstances did not fit under emergency aid exception

By Eric T. Berkman
BridgeTower Media Newswires
BOSTON, MA — The “emergency aid exception” justified a warrantless use of cell site location information to track a woman who Boston police believed was about to carry out a shooting, the Appeals Court has ruled.
Officers were wiretapping another individual’s phone when they heard defendant Takii Raspberry tell the suspect in an “angry, upset and emotional” manner that she intended to use a firearm to shoot a man, Alvin Dorsey, with whom she had been in a romantic relationship. Raspberry’s cell carrier, AT&T, voluntarily provided officers her real-time CSLI information. Once they intercepted her, a vehicle search produced allegedly illegal weapons.

The defendant argued that the circumstances did not fit under the emergency aid exception and thus the use of CSLI information constituted an unreasonable search.

But the Appeals Court disagreed, affirming a Superior Court judge’s denial of the defendant’s motion to suppress.

“The police overheard a phone call in which an angry, upset individual said she was ‘going to get the ... gun’ and was ‘about to go shoot up [someone] right now,’” Judge Peter Sacks wrote for the court. “The police identified the person making the threat as the defendant and thus inferred that she was likely talking about shooting Dorsey. The judge, after listening to a recording of the call, found that ‘the police were reasonable in having grave concerns about the defendant imminently causing serious bodily harm,’ and we see no basis for rejecting that finding.”

The 19-page decision is Commonwealth v. Raspberry, Lawyers Weekly No. 11-095-18. The full text of the ruling can be found here.

‘Textbook example’

In a prepared statement, Suffolk County District Attorney Daniel F. Conley, whose office represented the commonwealth, said that if investigators had not acted quickly to locate Raspberry, she easily could be facing a murder charge instead of a gun charge.

“A situation like this one, with the imminent danger of a specific threat to shoot a specific person, offers a textbook example of an emergency that can’t wait for a judge to sign a warrant,” Conley said. “The officers’ steps were eminently reasonable, the motion judge’s decision was appropriate, and the Appeals Court clearly reached the right conclusion in affirming it.”

Defense counsel Timothy St. Lawrence of Providence, Rhode Island, said he and his client plan to petition the Supreme Judicial Court for further review.

According to St. Lawrence, the facts of the case established only “the mere existence of a potentially harmful circumstance,” which is not enough to justify the warrantless use of CSLI for real-time tracking of a person’s location.

Instead, the law requires the harm to be imminent, St. Lawrence said. In other words, it has to be about to happen or likely to occur at any moment.

“Because the commonwealth did not sustain its heavy burden of establishing imminence in this case, we lament that a ‘narrow’ exception to the search warrant requirement has once again been judicially expanded,” he said.

However, Cambridge criminal defense lawyer Derege B. Demissie said he did not view the ruling as an expansion of existing police powers or further erosion of privacy rights.

“The court decided the issue on a very narrow exception to the warrant requirement, an exception that is as rare as the facts of the case,” he said. “The emergency aid exception is applied only in extreme circumstances.”
He added that the decision boils down to a recognition that, in rare and extreme situations, police can use available technology to conduct warrantless “searches” or “entries” in order to save lives.

Murat Erkan, a criminal defense lawyer in Andover, had a similar take, describing the decision as an application of established constitutional principles in a modern context.

Still, he said, he hopes judges construe the decision narrowly and permit warrantless surveillance only when it is clear that such measures are absolutely necessary to prevent disaster.

“The courts should reject any claimed emergency electronic surveillance where the circumstances as they appeared at that time suggest that police inexcusably eschewed available, less intrusive means that would be equally effective in preventing injury,” Erkan said. “While the sanctity of life justified the police action in this case, we must remain vigilant that the sanctity of our liberty is not an unintended casualty.”

Remote tracking

On April 14, 2015, as part of a joint investigation with federal law enforcement, Boston police were wiretapping the phone line of a criminal suspect, Mike Coke.

That afternoon, an officer monitoring a call from Coke to an unidentified woman heard the woman say, “I’m about to go shoot up this n***a right now, I’m going to get the f***ing gun,” and “I’m going to his, I’m going there right now. Right f***ing now, by my f***ing self.”

Alarmed by the call, the officer checked the woman’s phone number in various databases and identified her as the defendant. At that point, police realized the defendant was referring to Dorsey, with whom she had been romantically involved.

Within 15 minutes, the officer called AT&T to initiate an “exigent request,” telling AT&T that police had reliable information that an individual using an AT&T cellphone might have a gun and might be on the verge of harming someone.

The officer asked AT&T to perform “emergency pings” to give police real-time information about the location of the defendant’s phone. AT&T agreed to help, sending ping results via email every 15 minutes.

The pings apparently showed the defendant’s phone moving from Braintree toward Boston, leading police to believe she was on her way to find Dorsey. Subsequent pings showed the phone in Roxbury, within 700 meters of a cell site near the residence of a female friend they knew Dorsey may have been with.

At 6:47 p.m., the officer, listening to a second conversation between Coke and the defendant, heard the defendant say, “I’m sitting right in front of her house,” and state her intention to “shoot [Dorsey] and his bitch in the face.” She also apparently said she knew Dorsey was in the apartment because he had been texting her and that if he did not come out soon, she would be back at 7 a.m. in a vehicle he would not recognize and “pistol whip” him.

At that point, a sergeant who was kept apprised of the defendant’s threats and suspected location observed a woman sitting in a vehicle parked 100 yards from the apartment in question, called in the plate number, and learned it was registered to the defendant.

He and two other officers approached the car, ordering her out when she could not produce a license. A vehicle search turned up a stun gun in the passenger compartment and a loaded gun in the trunk. In response to weapons charges filed against the defendant in Superior Court, she moved to suppress the fruits of the warrantless CSLI search of her location and the warrantless search of her motor vehicle.

Judge Catherine K. Byrne denied the motion pursuant to the emergency aid exception, finding a “good faith, reasonable belief” on the part of police of a “serious and imminent threat to human life.”

The defendant filed an interlocutory appeal.

Admissible evidence

The Appeals Court found the commonwealth sufficiently showed that the officers reasonably believed an emergency existed and acted reasonably under the circumstances.

In doing so, the court rejected the defendant’s argument that police did not need her CSLI information because they already knew her home address at that point and could have asked Braintree police to look for her at her home.

“This ignores, among other factors, that the police had no information suggesting that she was actually at her home or would still be there when police arrived,” Sacks wrote.

The defendant also could not persuade the court that once police figured that Dorsey was her target and might be at his female friend’s address, they should have gone there instead of tracking her with CSLI.

“Even assuming (although the record does not show it) that the police formed this belief about Dorsey’s whereabouts before they obtained any CSLI, their belief was merely that Dorsey ‘may have been’ at that address,” Sacks said. “It was reasonable for the police to believe that a more direct and sure way of preventing the defendant from shooting Dorsey was to find and intercept the defendant herself.”

Accordingly, the court concluded that police use of CSLI voluntarily provided by AT&T “was justified on these facts.”