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Commonwealth v. Hernandez

Supreme Judicial Court of Massachusetts, Suffolk

August 19, 2016

COMMONWEALTH
v.
AARON HERNANDEZ.

          Heard: May 3, 2016.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 1, 2015.

         A petition for relief under G. L. c. 211, § 3, filed on March 29, 2016, was reported by Botsford, J.

          Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan & Janis DiLoreto Smith, Assistant District Attorneys, with her) for the Commonwealth.

          James L. Sultan (Charles W. Rankin with him) for the defendant.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [1]

          SPINA, J.

         In this case, here on a reservation and report from a single justice of the county court, we consider whether the Commonwealth, by means of an anticipatory search warrant, can obtain possession of a cellular telephone that the defendant, Aaron Hernandez, gave to his attorney for the purpose of obtaining legal advice. For the reasons that follow, we conclude that, pursuant to G. L. c. 276, § 1, a search warrant may issue for the seizure of the telephone because, absent such issuance, there is probable cause to believe that the telephone will be secreted from view.[2] Accordingly, we vacate the order of the Superior Court that reached a contrary conclusion.

         1. Background.

         On July 16, 2012, Daniel de Abreu and Safiro Furtado were murdered in an alleged drive-by shooting in the South End section of Boston. During the investigation of the crimes, Alexander Bradley stated that he witnessed the defendant shoot at five occupants of a 2003 BMW sedan on the date in question. He further stated that on February 13, 2013, while he and the defendant were on vacation together in Florida, the defendant shot him in the head. Bradley also indicated that, following this incident, he communicated with the defendant on multiple occasions between February 14, 2013, and June, 2013, either by calling the defendant or sending him text messages on his cellular telephone. During these conversations, Bradley threatened to sue the defendant and to publicly expose his violent behavior. Around June 16, 2013, the defendant purportedly delivered his cellular telephone to his attorney at Ropes & Gray LLP (Ropes & Gray) for the purpose of seeking legal advice on several matters.[3]

         On March 24, 2014, the Commonwealth filed a motion in the Superior Court pursuant to Mass. R. Prof. C. 3.8 (f), 426 Mass. 1397 (1998), for judicial approval of a grand jury subpoena duces tecum to compel Ropes & Gray to produce the telephone. Following a hearing, a judge denied the motion, but noted that his denial was without prejudice to refiling based on a showing of probable cause in conformity with the requirements of G. L. c. 276, § 2B (affidavit in support of search warrant application). The Commonwealth immediately filed a second motion for judicial approval of the grand jury subpoena directed at Ropes & Gray. Following another hearing, the judge authorized the issuance of the subpoena after finding probable cause to believe that the telephone contained evidence of a crime under investigation by the grand jury and was in the possession of Ropes & Gray. However, the judge stayed the issuance and execution of the subpoena to allow the defendant to file a petition for relief in the county court pursuant to G. L. c. 211, § 3. The judge also ordered that, if Ropes & Gray indeed had the telephone in its possession, it not alter, transfer, dispose of, return, or otherwise render the telephone unavailable pending further court order. The defendant filed his G. L. c. 211, § 3, petition, and the single justice reserved and reported the matter to the full court.[4]

         On January 12, 2015, this court allowed the defendant's petition for relief under G. L. c. 211, § 3, and reversed the judge's order authorizing the issuance of a subpoena, concluding that the attorney-client privilege protected the defendant against compelled production of the cellular telephone by Ropes & Gray, and that the protection afforded by such privilege could not be set aside based on a showing of probable cause. Matter of a Grand Jury Investigation, 470 Mass. 399, 400, 403-407 (2015) (Grand Jury Investigation), citing Fisher v. United States, 425 U.S. 391, 402-405 (1976) .[5] We pointed out that because the Commonwealth had sought to obtain the telephone via a subpoena, the provisions of G. L. c. 276, § 1, governing the issuance of search warrants, had no bearing on the court's analysis. Grand Jury Investigation, supra at 410. Instead, the court's holding was predicated on its determination that "the compelled production of the telephone via a subpoena directed at [the defendant] would violate the act of production doctrine, [which derives from the privilege against self-incrimination, ] and consequently that the compelled production of the telephone via a subpoena directed at [Ropes & Gray] would violate the attorney-client privilege under Fisher."[6] Id. Significantly, the court's analysis was confined to the limited record that was before the Superior Court judge in March, 2014. Id. at 400, 416.

         In a concurring opinion, three Justices agreed that Fisher, 425 U.S at 402-405, controlled the subpoena question raised in the case, and that the record was inadequate to make a judgment about the propriety of the issuance of a search warrant Grand Jury Investigation, 470 Mass. at 417 (Cordy, J, concurring). Nonetheless, the concurring Justices emphasized that "placing the cell[ular] [tele]phone (or any other incriminating documentary evidence) in the hands of an attorney does not sequester it under Massachusetts law from the reach of law enforcement pursuant to G. L. c. 276, § 1, where it is not claimed that the cell[ular] [tele]phone itself is privileged or contains privileged material, where there is probable cause to believe that it contains evidence of crimes under investigation by the grand jury, and where it is no longer being retained for the purpose of rendering legal advice." Id. It was the view of the concurring Justices that G. L. c. 276, § 1, "was never intended to permanently shield from seizure unprivileged evidence of criminal activity placed in the hands of an attorney by a client under investigation, or to create a depository for the secretion or sequestration of such evidence from law enforcement."[7] Id. at 419.

         On May 4, 2015, the Commonwealth, in reliance on the protocol articulated by the concurring Justices in Grand Jury Investigation, 470 Mass. at 420, see note 7, supra, filed an application for a search warrant pursuant to G. L. c. 276, §§ 1-7, together with a supporting affidavit, to seize the telephone from Ropes & Gray. Five months later, on October 6, 2015, the Commonwealth filed a motion pursuant to Mass. R. Crim. P. 17, 378 Mass. 885 (1979), for production of the telephone by Ropes & Gray (rule 17 motion).[8] Following several hearings, the Superior Court judge made proposed findings of fact relating to whether the telephone, if in the possession of Ropes & Gray, continued to be held in connection with and for the purpose of providing legal advice and services to the defendant. Distribution of these proposed findings to the Commonwealth was stayed pending the filing of a petition for interlocutory relief by the defendant, and certain of the proposed findings were placed under seal until further order of the court.

         On December 1, 2015, the defendant filed a petition for relief in the county court pursuant to G. L. c. 211, § 3, challenging the process employed by the Superior Court judge to adjudicate the Commonwealth's pending application for a search warrant and rule 17 motion, and seeking to preclude the judge from releasing his proposed findings of fact to the Commonwealth. Following several hearings, the single justice ordered that the petition be allowed to the limited extent that publication and distribution to the Commonwealth of the judge's sealed proposed findings of fact remain stayed until further order of the county court. The single justice also ordered that the matter be remanded to permit the judge to decide the Commonwealth's pending submissions.

         On March 7, 2016, the Superior Court judge denied the Commonwealth's application for a search warrant and rule 17 motion. With respect to the latter, the judge determined that, consistent with Grand Jury Investigation, 470 Mass. at 403-407, and Fisher, 425 U.S. at 402-405, the attorney-client privilege shielded the cellular telephone, which had been given to Ropes & Gray in connection with its representation of the defendant in several matters, from the Commonwealth's reach. The judge also found that as a consequence of the court's prior order precluding Ropes & Gray from returning, transferring, or disposing of the telephone, the defendant's successor counsel, Rankin & Sultan, had not been able to access the device in connection with their provision of legal services to the defendant. The judge stated that it would be appropriate to vacate the prior order ...


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