The Massachusetts Appeals Court ruled today that Boston Police did nothing wrong in getting a cell-phone provider to let them track a woman in real time without a warrant because they had overheard her saying she was on her way to shoot somebody.
At issue is both the police use of phone tracking data and the loaded gun detectives say they pulled out of Takii Raspberry's trunk, and the stun gun from her purse, after she was ordered out of her car outside the apartment of her intended target's girlfriend. The ruling means Suffolk County prosecutors can use the evidence against her at a trial on charges of carrying a dangerous weapon, carrying a loaded weapon and unlawful possession of ammunition.
Raspberry's attorney wanted tracking data and the guns tossed as evidence because police had no warrant for either. But the court ruled today that Suffolk County prosecutors can use the evidence against her at trial under an "emergency aid exception" to constitutional warrant requirements - in this case that they had good evidence that somebody was about to be shot.
The police overheard a phone call in which an angry, upset individual said she was "going to get the fucking gun" and was "about to go shoot up [someone] right now . . . . I'm going to his, I'm going right there, right now." The police identified the person making the threat as the defendant and thus inferred that she was likely talking about shooting [the man]. 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 case against Raspberry began around 4:30 p.m. on April 14, 2015, according to the court's summary. An officer in the "wire room" at BPD headquarters was monitoring the phone calls of Columbia Point Dawgs member "Dirty Mike" Coke, as part of a BPD/FBI investigation into the gang - which resulted in 48 indictments against alleged gang members (Coke pleaded guilty earlier this year to one count of conspiracy to distribute cocaine). According to the court decision, Coke called up Raspberry, who launched into a tirade against a man she said owed him money and was refusing to pay her back:
"I'm about to go shoot up this nigga right now, I'm going to get the fucking gun, I'm sick of this bitch ass nigga yo. He fucking took my fucking money and don't want to give it the fuck back. I'm going to his, I'm going right there, right now. Right fucking now, by my fucking self. ..."
The wire room officer found the call "alarming" in that the woman on the call "intended to use a firearm to shoot someone." He checked her telephone number in various databases and identified her as the defendant.
The narrative continues:
Within fifteen minutes of hearing the defendant's threat, the officer called AT&T to initiate an "exigent request." He stated that the Boston police had reliable information that a person using an AT&T cellular telephone (cell phone) might have a gun and might be about to harm another person. He provided the defendant's cell phone number and asked AT&T to perform "emergency pings" and give the police real-time CSLI about the approximate location of the defendant's cell phone. AT&T agreed to assist, and it began sending the results of the pings to a designated Boston police electronic mail (e-mail) address at approximately fifteen-minute intervals. The officer mapped the location of each ping result as it was received and shared this information with officers in the field attempting to find the defendant.
The first result, received at 5:06 P.M., showed the cell phone within a 1,880 meter radius of a cell site in Braintree. Subsequent results showed the cell phone to be moving toward Boston, leading police to believe that the defendant was on her way to locate [the man]. Specifically, a 5:37 P.M. result showed the cell phone somewhere in the Dorchester section of Boston, and a 5:53 P.M. result showed the cell phone in the Roxbury section of Boston, within a 652-meter radius of a cell site atop a food market. In the meantime, police had learned that [the man]at 6:25 P.M. and 6:41 P.M. showed the cell phone in an area with a 487-meter radius that included that housing project.
At 6:46 P.M., the officer in the wire room, still monitoring Coke's phone calls, listened to a second conversation between Coke and the defendant. In this call, the defendant said, "I'm sitting right in front of her house," which the police knew referred to the house of [the man]'s girl friend. The defendant further stated that she was going to "shoot him and his bitch in the face"; that she knew [the man] was in the apartment because he had been texting her; that she was waiting for him; that if he did not come out, she would be back at 7:00 A.M. in a motor vehicle that he would not recognize; and that she would jump out and "pistol whip" him. She added that if [the man] sent anyone to attack her, it would be a "firefight," which the detective understood to mean a "shootout."
At this time, a Boston police sergeant, who had been kept informed of the defendant's threats and suspected location, was in a motor vehicle near the market and the housing project. At approximately 6:50 P.M., the sergeant turned onto the street where Dorsey's girl friend lived and observed a woman sitting in a motor vehicle parked about 100 yards away from, and with a clear line of sight to, the girl friend's residence. The woman was talking on a cell phone. The sergeant knew that the defendant was on the phone with Coke at the time.
The sergeant radioed for help. Three plainclothes officers pulled up to Raspberry's car and, when she was unable to produce a driver's license, ordered her out. A search revealed a stun gun in her purse and a loaded gun in the trunk.
In his bid to have both the tracking info and the guns thrown out, Raspberry's attorney argued that police should not have gotten access to the tracking information because they had no warrant for it and that because that was invalid, so was anything found in a search of her car based on that data - specifically, the gun.
Breaking new legal ground in Massachusetts, the court said that cell-phone tracking data can be covered by the same emergency exceptions to constitutional warrant requirements as searches of homes where police believed a man was turning on the gas in an attempt to blow his house up or where police believed a woman might be lying inside, seriously injured or even dead at the hands of her husband. Basically, police have to show that if they waited until they could find a judge to issue a warrant, something might blow up or somebody might die.
Based on the overheard conversations during a lawful wiretap, the court said, it had no problem concluding a life was potentially at stake in this case - and that gaining access to the tracking data was the only way they could possibly intercept a would-be shooter:
What police did not know here, at the time of the call, was the whereabouts of the defendant. In the circumstances, it was objectively reasonable for the police to request real-time CSLI, in order to determine the defendant's current location and the direction in which she was moving, and thus to find and intercept her before she could shoot [the man].
The court ruled that searching the car without a warrant was also OK in this case; Raspberry's attorney argued that the discovery of the stun gun in her purse should have ended the search:
The defendant stated in the first call that she was going to "get the fucking gun" and "shoot up" the intended victim. She stated in the second call, from outside his girl friend's residence, that she was going to "shoot him and his bitch in the face," that she was prepared to "pistol whip" him, and that if he sent anyone to attack her, it would be a "firefight." These statements furnished ample objective grounds -- in no way weakened by the discovery of a stun gun in her handbag -- to believe that the defendant possessed and was prepared to use a loaded firearm, and that it was somewhere in the motor vehicle.