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Commonwealth v. White

Supreme Judicial Court of Massachusetts, Suffolk

September 28, 2016


          Heard: December 8, 2015.

         Indictment found and returned in the Superior Court Department on May 19, 2010. A pretrial motion to suppress evidence was heard by Patrick F. Brady, J.

         An application for leave to file an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him.

          Cailin M. Campbell, Assistant District Attorney (David J. Fredette with her) for the Commonwealth.

          J.W. Carney, Jr. (Danya F. Fullerton with him) for the defendant.

         The following submitted briefs for amici curiae:

          David A.F. Lewis, Alexis L. Shapiro, & Christine Dieter for Massachusetts Association of Criminal Defense Lawyers.

          Vivek Krishnamurthy & Andrew J. Sellars for American Civil Liberties Union of Massachusetts.

          Alan Butler & John Tran, of the District of Columbia, Marc Rotenberg, & Caitriona Fitzgerald for Electronic Privacy Information Center.

          Afton M. Templin for Committee for Public Counsel Services.

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

          LENK, J.

         In February, 2010, a Boston police detective investigating an armed robbery and shooting at a convenience store went to the defendant's high school, after suspicion had focused on the defendant as one of the three perpetrators. The detective spoke with a school administrator, who informed him that, pursuant to school policy, she was holding the defendant's cellular telephone. After consultation with his supervisor, the detective seized the telephone to prevent the defendant from retrieving it and removing evidence or destroying the device. At that point, however, the detective had no information that the cellular telephone had been used to plan, commit, or cover up the crime, or that it contained any evidence of the crime. From experience, the detective was aware, however, that cellular telephones frequently are used when an offense involves multiple perpetrators. Sixty-eight days later, having held -- but not searched -- the telephone throughout that period, police obtained a warrant to search it on the basis of information that had emerged after the seizure. A forensic search yielded evidence relevant to the investigation, which the defendant then moved to suppress on the ground that the seizure was not supported by probable cause. A judge of the Superior Court allowed the defendant's motion, and the Commonwealth appealed.

         In considering the Commonwealth's appeal, we confront two issues under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. First, we consider whether the seizure was supported by probable cause, and, in particular, whether the detective's opinion that the device was likely to contain evidence, without more, provided probable cause allowing him to seize it. We then examine whether, under the circumstances here, it was reasonable for police to wait almost ten weeks after seizing the device before applying for a warrant to search it.

         We conclude that probable cause to search or seize a person's cellular telephone may not be based solely on an officer's opinion that the device is likely to contain evidence of the crime under investigation and, accordingly, that the seizure here was not supported by probable cause. We separately conclude also that, in these circumstances, the Commonwealth has not, in any event, met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable. We therefore affirm the Superior Court judge's order allowing the defendant's motion to suppress.

          1. Background.

         The following is drawn both from the motion judge's findings and from uncontested facts in the record implicitly credited by him, with certain details reserved for later discussion. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

         On the morning of February 21, 2010, two men entered a convenience store in the Roxbury section of Boston. One brandished a gun and demanded money from the clerk, while the other, apparently without a firearm, walked to the rear of the store and demanded money from the victim. As the victim tried to flee towards the front of the store, he was shot and later died. The two men then left the store and, along with a third male who had been waiting outside, fled the scene.

         The next day, the defendant, then sixteen years old, told his mother that he had participated in a robbery, along with his friend "Martin, " and that someone had been shot. The defendant also stated that he had not believed that anyone had been killed, and that he had been surprised to learn of the victim's death from that morning's newspaper. Later that day, the defendant's mother called a Boston police officer whom she knew and asked him to visit her at home.

         The officer came to the house the next day, February 23, 2010, and the mother told him about her son's asserted involvement in the robbery. She also said that, earlier that day, the defendant had come to her house to wash his clothes, and had left them in her dryer. Later on the same day, she gave consent to police detectives to search the dryer and to seize the clothing; one of the detectives observed that it resembled clothing worn by one of the perpetrators of a similar convenience store robbery one and one-half months earlier. Also on February 23, 2010, detectives obtained consent from the defendant's grandmother, with whom the defendant lived, to search his bedroom. There, detectives saw a jacket similar to one worn by one of the perpetrators of the robbery-homicide on February 21, 2010. The jacket subsequently was seized pursuant to a search warrant.

         The following day, February 24, 2010, the defendant arrived late to his high school. Pursuant to the school's usual practice for all arriving students, [2] he was searched and his "pay-as-you-go"[3] Samsung/Sprint cellular telephone, equipped with a camera, was confiscated. That afternoon, a detective investigating the robbery-homicide met with one of the school's administrators. The administrator told the detective that the defendant had become "agitated" earlier that day and had left the school without picking up his cellular telephone. The detective notified a supervisor that the school was holding the defendant's telephone. Neither the detective nor the supervisor had, at that point, any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators.[4] The supervisor instructed the detective to seize the device without a warrant apparently on the basis of his belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station, where it was logged as evidence and placed in a special bag designed "to prevent remote intrusion." Police did not search the device.

         The defendant was arrested later the same day and charged with murder. In the weeks that followed, detectives assigned to the case applied for and executed five search warrants, interviewed numerous witnesses, assisted with the grand jury ...

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