April 5, 2019
N.E.3d 1032] Cellular Telephone . Personal
Property, Property seized at time of arrest.
Constitutional Law, Taking of property. Due
Process of Law, Taking of property. Search and
Seizure, Return. Practice, Criminal, Property
seized at time of arrest.
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.
P. McGee, Assistant District Attorney, for the Commonwealth.
Agnes, Maldonado, & Sacks, JJ.
N.E.3d 1033] 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
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, 59 N.E.3d 369 (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, 59 N.E.3d
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 [132 N.E.3d 1034] 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
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 ...