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Commonwealth v. Fencher

Appeals Court of Massachusetts, Barnstable

July 17, 2019


          Heard: May 3, 2019.

         Indictments found and returned in the Superior Court Department on January 27, 2017. A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Elspeth B. Cypher, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

          Robert W. Nolan for the defendant.

          Present: Wolohojian, Kinder, & Hand, JJ.

          KINDER, J.

         The indictments in this case allege that the defendant, Alexa Fencher, and two coconspirators broke into the home of her uncle, Alfred Boutiette, and beat him about the head and face with a crowbar.[1] Following an evidentiary hearing, a Superior Court judge allowed the defendant's motion to suppress the fruits of a search of her cellular telephone (cell phone). The judge reasoned that the police lacked probable cause to seize the cell phone, and that the illegal seizure tainted the defendant's subsequent consent to search her cell phone. In this interlocutory appeal, the Commonwealth claims error in that ruling, arguing that the seizure of the cell phone was supported by probable cause and that the defendant's consent to search her cell phone was free and voluntary. We agree and reverse.


         The following facts are drawn from the judge's findings and from undisputed facts in the record that were implicitly credited by him. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015). On September 23, 2016, at approximately 4:30 A.M., Barnstable Police officers responded to an emergency call regarding a violent home invasion at 37 Wedgewood Drive in Centerville. Upon arrival, police observed that the victim, Alfred Boutiette, had facial and head injuries and was covered in blood. The victim told police that he had been attacked by multiple individuals while he was sleeping and that he thought the defendant, his niece, against whom he had an active restraining order, was involved in the assault. The victim explained that although he did not see his assailants, he suspected his niece because earlier that evening "he saw [the defendant's] white Hyundai Sonata parked in his driveway."[2] The victim further explained that a locked door to his house had been opened and that the defendant had a key to the house. There was no sign of forced entry and nothing appeared to have been stolen.

         Prior to the alleged home invasion, at approximately 3:06 A.M., an officer on patrol observed the same white Hyundai Sonata turn from Route 28 onto Wedgewood Road. The officer observed the car make a U-turn at the entrance to Wedgewood Drive, where the victim lived, and return to Route 28.

         Later that morning, after learning from her grandmother that the police were looking for her in connection with "something that happened to [her] uncle at the house," the defendant agreed to go the Barnstable Police Department to be interviewed.[3] At 9:52 A.M., approximately five hours after the assault was reported, the defendant waived her Miranda rights and agreed to speak with detectives. Over the course of approximately two hours, the defendant responded to questions regarding her activity the night before, her whereabouts, and her relationship with her uncle.[4] As relevant here, the defendant told the detectives that she had been drinking and watching football with several friends at two bars. Thereafter, she went to a friend's house in Hyannis. The group arrived there at 1:00 A.M., and left at 3:00 A.M. to "go smoke near the bridge," where they stayed until sunrise. Someone else drove the white Hyundai, because the defendant was intoxicated. The defendant acknowledged that her car had been parked at 37 Wedgewood Drive the night before and that "[she] had somebody get it for [her] because [of] the [r]estraining [o]rder." At one point, when Detective David Foley pressed her on the details of her explanation, the defendant, referring to her cell phone, responded, "I actually have videos of me being at the bar and stuff." When Detective Foley stated that he wanted to see the videos later, the defendant replied, "Definitely." The defendant admitted that she had a key to the house at 37 Wedgewood on her person, but denied any involvement in the assault on her uncle.

         At 10:15 A.M., the officers seized the defendant's cell phone and her keys. Detective Foley testified that he seized the defendant's cell phone because "she said that she had some text messages that she had woken up to, but [sic] the fact that she had talked to her grandmother about the assault," and "[t]he fact that she said she had videos of her being at the bar the previous night."

         Meanwhile, as the detectives interviewed the defendant, another officer observed what appeared to be blood stains near a door handle on the white Hyundai Sonata in which the defendant had arrived at the Barnstable Police Department. The officer communicated that information to the detectives ...

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