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
Present: Agnes, Maldonado, & Sacks, JJ.
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.
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.
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.
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.
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.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.
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.
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."
the Commonwealth's motion was unsupported by any
affidavit, the hearing on the motion was nonevidentiary, and
the judge made no findings of fact. 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,  was contraband,
was the fruit of any crime, or was the property of the victim
or anyone other than the defendant.
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."
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,
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."
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.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 ...