Argued April 7, 2015.
Indictments found and returned in the Superior Court Department on September 27, 2011.
A pretrial motion to suppress evidence was heard by Patrick F. Brady, J.
An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.
Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant.
John P. Zanini, Assistant District Attorney, for the Commonwealth.
Robert E. McDonnell, John Frank Weaver, Arcangelo S. Cella, Matthew R. Segal, Jessie J. Rossman, & Mason Kortz, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
In this case we consider whether, where there was probable cause for the issuance of a warrant to search an Apple
iPhone, the search and seizure of certain photograph files conducted in reliance thereon was reasonable.
The warrant authorized a search of the defendant's iPhone for evidence of communications that would link him and another suspect to a shooting that occurred in the Hyde Park section of Boston. The search tool used to extract data from the iPhone was programmed to extract not only contact lists and text messages (texts), but also photographs. Among the photographs extracted and examined by the police were photographs depicting the defendant holding a gun and dressed in the same color jacket described by witnesses to the shooting.
We conclude that where there was probable cause that evidence of communications relating to and linking the defendant to the crimes under investigation would be found in the electronic files on the iPhone, and because such communications can be conveyed or stored in photographic form, a search of the photograph files was reasonable. Finally, we conclude that the photographs in question were properly seized as evidence linking the defendant to the crimes under investigation.
On July 3, 2011, at approximately 7 p.m., Detective Richard Walker and other Boston police officers responded to reports of a shooting at 74 Pierce Street in Hyde Park. On arrival, the responding officers found Michael Lerouge with gunshot wounds to his back. The police found a black Glock, model 23, .40 caliber firearm in the middle of the roadway between 73 and 74 Pierce Street. Witnesses told the police that Lerouge and another person had shot at one another and that Lerouge had discarded the firearm under a parked motor vehicle, after which it slid further into the road. The police were also informed that the other shooter, described as wearing a green-colored shirt or jacket with writing on it, had run down Pierce Street toward Walter Street, dropping a firearm in the process. Witnesses stated that this man stopped, retrieved the dropped firearm, and then continued to run in the direction of 86 Pierce Street. The defendant was subsequently found on the left side of 86 Pierce Street, wearing a green jacket with emblems and suffering from gunshot wounds to his left leg.
When the police found the defendant, he was with Jamal Boucicault, who was subsequently interviewed at the police station. Boucicault told the police that he was visiting the defendant in an apartment at 86 Pierce Street when the defendant received a telephone call. The defendant began arguing with the caller and subsequently left the apartment. A short time later, Boucicault heard what sounded like gunshots and went outside to find the defendant on the left side of the house at 86 Pierce Street. The defendant handed Boucicault a gun and asked him to hide it, and he then did so in the apartment at 86 Pierce Street.
The defendant's brother, Bricknell Dorelas, also spoke with the police after the incident. He stated that earlier in the evening he had received a telephone call from the defendant, in which the defendant stated that he " was receiving threatening [tele]phone calls and threatening text messages on his [tele]phone." Bricknell did not know the identity of the person who was threatening the defendant. The police also spoke with a cousin of the defendant, Ohuinel Normil, who said the defendant " had been getting a lot of telephone threats because he owes money to people." Normil did not know the identity of these people.
The owner of 86 Pierce Street told the police that he rented the rear apartment on the second floor of the building to the defendant, and that the defendant was the apartment's sole occupant. Thereafter, the police applied for, received, and executed a search warrant for the defendant's apartment. Pursuant to that warrant, the police seized a gun and an iPhone.
Based on the information above, Walker believed that the defendant's iPhone contained information linking both the defendant and Lerouge to the crimes of assault and battery by means of a dangerous weapon (firearm) and assault with intent to murder that were under investigation. Accordingly, he applied for a warrant to search the iPhone. In his affidavit, which was attached to his application for the warrant, Walker set out the substance of the investigative interviews and concluded by stating: " Based on the above facts ... I have probable cause to believe [the defendant's] cell phone contains valuable information that will link the victim/suspect ([the defendant]) and
suspect/victim (Lerouge) to the crime." Walker received and executed a warrant to search the defendant's iPhone for the following:
" Subscriber's name and telephone number, contact list, address book, calendar, date book entries, group list, speed dial list, phone configuration information and settings, incoming and outgoing draft sent, deleted text messages, saved, opened, unopened draft sent and deleted electronic mail messages, mobile instant message chat logs and contact information mobile Internet browser and saved and deleted photographs on an Apple iPhone, silver and black, green soft rubber case. Additionally, information from the networks and carriers such as subscribers information, call history information, call history containing use times and numbers dialed, called, received and missed." 
Among other items, the search resulted in the discovery and seizure of photographs of the defendant wearing a green jacket and holding a gun. The date the photographs were taken, stored, or received is not apparent in the record on the motion to suppress, and the defendant does not claim that the photographs were taken, stored, or received at times remote from the shooting.
In September, 2011, the defendant was charged by a Suffolk County grand jury with possession of a firearm without a license, in violation of G. L. c. 269, § 10 ( a ); possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 ( h ); carrying a loaded firearm, in violation of G. L. c. 269, § 10 ( n ); and possession of a large capacity feeding device without a license, in violation of G. L.
c. 269, § 10 ( m ...