Commonwealth v. Brandyn Lapage: Third-Party Doctrine Applies to Call Detail Records, CSLI, and Ping Data Despite Federal SCA

Brandyn Lepage was convicted of first-degree murder for the shooting death of Aja Pascual in her car on September 29, 2012. The jury found that Pascual was shot and killed around 1:23 PM on Cherry Street in Fall River. Cocaine packages were found on her person. Lepage had called Pascual's phone shortly before the shooting, and his number was identified in her call logs. He was living nearby at the time and had been in a dating relationship with Jared Skomiro, who received a strange call from Lepage after the shooting. Lepage later confessed to being near the scene, claiming involvement in a fight and showing drugs to Skomiro.

Evidence found in a search of a friend's apartment where Lepage stayed implicated him further, including a handgun with his DNA matching. The DNA profiles from bloodstained clothing matched both Lepage and the victim.

Lepage appealed his conviction, primarily contesting the denial of his pretrial motions to suppress certain cell phone records and related evidence. The contention was that the police unlawfully obtained call detail records, cell site location information (CSLI), and ping data from his cell phone, using it to build their case against him.

The court determined that the police did not illegally obtain Lepage's call detail records and did not use the CSLI or ping data as alleged. Additionally, they found no grounds to reduce the verdict or grant a new trial under G. L. c. 278, § 33E. Let’s take a look at how the Court got there:

Procedural History:

The defendant, Brandyn Lepage, was indicted on December 20, 2012, by a Bristol County grand jury on charges including murder in the first degree, armed robbery, and unlawful possession of a firearm. Prior to his trial, Lepage filed motions to suppress evidence, specifically targeting cell phone records obtained without a warrant from his service provider, T-Mobile, and the evidence derived from these records. These motions were filed in December 2014 and June 2015. After a three-day evidentiary hearing, a Superior Court judge (motion judge) denied both motions in April 2016.

The jury trial commenced on June 13, 2016, presided over by a different Superior Court judge (trial judge). The prosecution pursued all three theories of murder in the first degree. On the ninth day of the trial, the jury found Lepage guilty of first-degree murder under the felony-murder theory, with armed robbery as the underlying felony. Lepage then filed a notice of appeal.

On February 10, 2020, Lepage filed a motion for a new trial in the Superior Court. After a four-day evidentiary hearing, on July 6, 2022, the same motion judge who had previously denied Lepage's motions to suppress also denied his motion for a new trial. The defendant's direct appeal and his appeal from the denial of his motion for a new trial were subsequently consolidated.

Basis of Appeal:

The defendant contends that the motion judge erred in denying his motions to suppress and his motion for a new trial. He argues that the police violated his Fourth and Fourteenth Amendment rights and his rights under art. 14 of the Massachusetts Declaration of Rights by illegally obtaining his call detail records, CSLI, and ping data. Additionally, he alleges that the police utilized this information during their investigation to identify witnesses, secure search warrants, and surveil him prior to his arrest. The defendant also asserts that both the police and prosecutors purposefully withheld from him the fact that they had obtained and utilized this information during their investigation.

Court’s Analysis:

In the context of the defendant's direct appeal from a first-degree murder conviction and an appeal from the denial of a motion for a new trial, the entire case is reviewed under G. L. c. 278, § 33E (Commonwealth v. Wilson, 486 Mass. 328, 333, 2020). Despite significant overlap in the issues raised by the defendant in his motions to suppress and his motion for a new trial, they are analyzed separately for clarity, beginning with the defendant's motions to suppress.

Motions to Suppress:

The defendant's primary argument was that obtaining his call detail records without a warrant infringed upon his Fourth and Fourteenth Amendment rights. However, the court determined that the defendant did not have a reasonable expectation of privacy in his call detail records, based on the precedent set by Commonwealth v. Augustine. The court clarified that while recent technological advancements have narrowed the application of the third-party doctrine in some contexts, it still applies to call detail records. The court reasoned that individuals voluntarily convey this information to service providers for legitimate business purposes, thus diminishing any reasonable expectation of privacy.

The defendant also invoked the Federal Stored Communications Act (SCA) to argue that the limitations it imposes on the disclosure of call detail records create a reasonable expectation of privacy. However, the court dismissed this argument, asserting that the SCA does not alter the application of the third-party doctrine. The court concluded that the defendant assumed the risk of disclosure to the government when voluntarily providing this information to the service provider.

Motion for a New Trial:

In his motion for a new trial, the defendant reiterated his Fourth Amendment claims and further alleged due process violations based on the purported concealment of cell phone location data usage by law enforcement. The court meticulously examined the factual findings of the motion judge and concluded that there was no evidence to suggest that law enforcement had misused the CSLI or ping data during their investigation. Therefore, the court upheld the denial of the motion for a new trial.

The defendant also raised concerns about ineffective assistance of counsel, contending that his trial counsel failed to adequately investigate the alleged misuse of CSLI and ping data. However, the court found no basis for this claim, emphasizing that the defendant had not shown how further investigation would have materially benefited the defense.

Holding:

In conclusion, the court affirmed the defendant's conviction of murder in the first degree and the denial of his motion for a new trial. However, it vacated the defendant's conviction of unlawful possession of a firearm, remanding for a new trial on that indictment. The court's analysis underscored the importance of legal precedents, the third-party doctrine, and the burden of proof in establishing constitutional violations in cases involving electronic communication records.