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Commonwealth v. Salmons

Appeals Court of Massachusetts, Norfolk

September 11, 2019

Timothy SALMONS.

         Argued April 5, 2019

         [132 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.

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

         Present: Agnes, Maldonado, & Sacks, JJ.


         SACKS, J.

         [132 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

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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.

          Background .

          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, 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 369.

         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

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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 [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 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 ...

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