The Supreme Judicial Court today upheld the second-degree murder convictions of two gang members for the shooting death of a rival gang member out on a snow-shoveling detail after one of the 2015 blizzards.
The court ruled that Donte Henley and Josiah Zachery got a fair trial leading to their conviction for murdering Kenny Lamour as he shoveled snow on Centre Street near the Arborway rotary on Feb. 11, 2015.
The court did rule that police erred in a request for a search warrant for convicted shooter Zachery's phone by not setting a time limit on the information they wanted to extract, which raised privacy issues, but the justices concluded that the mistake did not affect the ultimate outcome of the trial.
The court spent considerable time considering the way police tracked Zachery's path from Jackson Square to the shooting scene in part from his CharlieCard data, obtained without a warrant from the MBTA, along with video from T surveillance cameras, obtained based on the time in the data, that showed a man matching Zachery's description on his way on the T in the direction of the murder, at least up until the point he exited Forest Hills.
The court said that CharlieCard data, which the T retains for 14 months, can present privacy issues that would normally require a judge to issue a search warrant first. But as it has in earlier cases involving cell-phone location data and pole-mounted surveillance cameras, the court said the length of time for which police obtain the data is one deciding factor whether obtaining the data constitutes a "search" for which a warrant is required.
In this case, although a Boston detective asked a Transit Police counterpart for fare-gate times based on the card without saying how far back to go, the court said he only got data and surveillance images for two days - the days of the murder and a day the previous month. That was not enough to raise issues of privacy for travel not related to the investigation, the court said.
The court added that the prevalence of security cameras all over the T should be enough to alert passengers that at least some of their movements are being monitored, which it said made data from CharlieCards different than, say, location data from cell phones, which users might have no idea is being recorded by the phone company. Also, the justices continued, CharlieCard data is far from complete - it shows when and where somebody enters the subway, but doesn't allow for the tracking of a user once he's past the fare gates.
The court acknowledged that "individuals do not purchase a CharlieCard with the purpose or expectation of sharing information about their location with the MBTA," but concluded "the minimal amount of data obtained in this case does not constitute a violation" of somebody's constitutional privacy rights.
Here, we conclude that the limited extent and use of the MBTA data does not implicate the defendant's expectation of privacy in the whole of his public movements.
And while the court ruled the police also did not specify a time limit for a similar search of Zachery's phone for the warrant they did get, they did have enough information for obtain a warrant for data possibly related to the murder:
We emphasize that this case presents a highly unusual combination of factors: there was no apparent instigating event for the murder; two rival gang members, one of whom was the victim, were part of the same work crew at the time of the murder; and, finally, another rival gang member of the victim, who did not live near the work site or have any plausible reason to be there, arrived at the work site at around the time of murder. Based on these factors, it was reasonable for police to believe that the murder was planned. More specifically, the fact that Henley, one of Zachery's fellow gang members, was part of the same work crew as the victim on the day of the murder permitted the inference that Henley may have coordinated the murder with Zachery. This type of coordination is improbable without real-time communication through cell phone calls or text messages. Accordingly, these facts, combined with police experience and expertise, established a sufficient nexus for the search warrant.
Lamour, 21 at the time of his death, was part of a crew assigned to shovel snow on Centre Street by Roca, Inc., which ran a "transitional employment program" trying to steer young people with troubled pasts away from violence, which in Lamour's case involved helping to stomp a DYS worker in Roslindale and belonging to the Thetford Avenue Buffalos gang.
Henley was also a participant in the program, and according to the court summary of the case, he was a member of the rival Franklin Hill Giants gang. On the morning of the murder, he texted his supervisor at Roca to let him know he was on his way to Centre Street to shovel snow. The supervisor alerted him that Lamour was also assigned to the crew and told Henley to "keep it cool."
Henley agreed, but then texted his pal, Zachery, to ask him to come over to help "punch the kidd up." Zachery journeyed over, but with a gun, which he used to shoot Lamour in the head. As he fled, he fired at a Boston police officer, but missed.
Police found Zachery a couple blocks away, no longer wearing the hoodie he'd worn to Centre Street and holding a shovel he claimed to be using to help dig out "old ladies" for free in the neighborhood - police later found he'd stolen the shovel from a nearby residence, near where they eventually found the gun he'd discarded.
Although witnesses, including the officer who'd been shot at, were unable to positively ID Zachery when brought to the scene, the court ruled police had enough probable cause to detain him - initially by putting him in a cruiser - and to frisk him, the court said..
We conclude that police had reasonable suspicion to justify an investigatory stop of the defendant based on a convergence of
supporting factors, including the physical description detailed in the police dispatch, the defendant's physical and temporal proximity to the crime, the defendant's suspicious demeanor, and the ongoing danger to public safety.