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Commonwealth v. Salmons

Appeals Court of Massachusetts, Norfolk

September 11, 2019


          Heard: April 5, 2019.

          Indictments found and returned in the Superior Court Department on May 31, 2016. A motion for return of property was heard by Beverly J. Cannone, J., and a motion for clarification was heard by Kenneth J. Fishman, J.

          Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.

          Michael P. McGee, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Maldonado, & Sacks, JJ.

          SACKS, J.

         After pleading guilty to firearms, assaultive, and other offenses, and after being sentenced to a term of ten years in State prison, followed by terms of probation, the defendant sought the return of his three cell phones, which police had unlawfully seized without a warrant from the apartment in which he was arrested. A Superior Court judge ordered their return to the defendant's designated representative, but another judge subsequently allowed the Commonwealth's request to first "wipe" all data from two of the cell phones in order to erase two video recordings (videos) (one of which was sexually explicit) and some photographs of the victim. The defendant appealed. We conclude that the judge erred in these circumstances in ordering the cell phones wiped before their return.


         In February of 2016, police responded to an apartment in Braintree to investigate a report of a domestic altercation. The victim allowed the police into her apartment, where they found the defendant and arrested him for assault and battery and related charges. The victim told officers that she had been in a "dating relationship" with the defendant since Christmas. The officers observed drug paraphernalia in plain view, and they obtained the victim's permission to search the apartment. They found no drugs but seized the paraphernalia and the defendant's three cell phones. Further investigation resulted in the seizure of a sawed-off shotgun from the defendant's grandmother's apartment. Conversations reported by the victim and overheard on a recorded telephone line at the police station suggested that the defendant was attempting to intimidate the victim to discourage her from cooperating with the police.

         Six months after the cell phones were seized, police applied for and obtained a warrant to search them for evidence of drug offenses. Shortly thereafter, the Supreme Judicial Court decided in Commonwealth v. White, 475 Mass. 583, 590-591 (2016), that probable cause to seize or search a cell phone requires, among other things, "information establishing the existence of particularized evidence likely to be found there." The court further ruled that, when a cell phone or other item is seized without a warrant and police later obtain a warrant to search it, the search is unreasonable unless the Commonwealth shows, among other things, "that the delay between the seizure and the filing of the application for a search warrant was reasonable." Id. at 593.

         Based on White, the defendant here moved in November of 2016 to suppress the evidence found in the search of his cell phones. The Commonwealth did not oppose the motion, and a judge allowed it.[1]

         In February of 2017, the defendant pleaded guilty to possession of a sawed-off shotgun, an armed career criminal violation (G. L. c. 269, § 10G [b]), strangulation, assault and battery by means of dangerous weapon, four counts of intimidating a witness, and three counts of assault and battery.[2]An indictment for conspiracy to violate G. L. c. 94C was dismissed. The defendant was sentenced to concurrent State prison terms of ten years to ten years and one day on the sawed-off shotgun and armed career criminal charges, to be followed upon release by concurrent three-year probationary terms on the other offenses. One of the special conditions of probation requires the defendant to stay away from and have no contact, directly or indirectly, with the victim and her family.

         At the time of sentencing, the defendant moved for the return of his cell phones, asserting that they were no longer needed as evidence. The Commonwealth filed no opposition. A judge allowed the motion and ordered that the cell phones, being held by the Braintree police, be returned to the defendant or his authorized representative.

         More than eight months later, the Commonwealth filed a "motion for clarification" of the order that the cell phones be returned. The motion stated that, when the search warrants for the cell phones had been executed, two of the cell phones were found to contain "numerous and sexually explicit photographs and videos of the defendant and [the victim]." The Commonwealth sought approval, before returning those cell phones, to wipe their memories "by engaging the factory reset option" to ensure that "no sexually explicit photographs or videos of the victim [could] be given to the defendant's representatives for possible retaliation for her participation in the prosecution."

         Regrettably, the Commonwealth's motion was unsupported by any affidavit, the hearing on the motion was nonevidentiary, and the judge made no findings of fact.[3] From the representations of the prosecutor and defense counsel at the hearing, however, we glean the following. The defendant was serving a ten-year prison sentence, during which time he himself could not have access to the cell phones themselves even if they were returned to his representative (who was likely to be his brother). The Commonwealth made no claim that any data on the cell phones was still needed as evidence, [4] was contraband, was the fruit of any crime, or was the property of the victim or anyone other than the defendant.

         The Commonwealth's sole reason for seeking to wipe the cell phones was that materials like the videos and photographs had "been used against victims in the past, and [the prosecutor] certainly [did not] want it coming from [his] office or the Braintree police." Defense counsel responded that there was no evidence that the defendant would use any data on the cell phones against the victim and no motive for him to do so. He was already serving a ten-year sentence, and "[a]ny kind of threat or embarrassment on the [I]nternet against the victim . . . would certainly come back to [the defendant] immediately."

         When the cell phones were first searched, defense counsel had been given a compact disc or other storage medium containing a "dump" of the data on the cell phones. The prosecutor stated that he had "no doubt" that defense counsel could access any data the defendant wanted. Defense counsel disagreed, asserting that the data dump was generated by software designed to perform forensic searches of the cell phones, and she had found the data in the dump to be difficult for a lay person to search or navigate. She asserted that the defendant or his family would want access to material on the cell phones such as family photographs, [5] log-in information for social media applications, and contact information such as telephone numbers -- data that was difficult to find in the data dump. She further stated that, before the Commonwealth filed its motion, the defendant had unsuccessfully attempted to settle the matter on the basis that the defendant "doesn't want these controversial photos returned . . . if he can avoid it[, ] because it protects him from any future allegations. And we had suggested to the Commonwealth, maybe we can just delete the data that is of concern."

         The prosecutor asserted, however, that, due to the amount of data on the cell phones and the different forms in which it existed, it was not feasible to go through the cell phones to find and delete only the videos and photographs of the victim.[6]Even if certain files were found and deleted, he argued, they might still exist in other forms elsewhere on a given cell phone; "[t]he only thing that we reasonably can do is wipe the entire phone." In contrast, defense counsel stated her belief, based on her review of all of the images in the data dump, that the videos in question had already been deleted from the cell phones and appeared in the data dump only because the deleted data had been forensically recovered; they would not be accessible on the cell phones themselves. Defense counsel stated that, in her review, she had seen one video of "sexual activity" and one video and twenty-five ...

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