In Commonwealth v. White (2016), the Massachusetts Supreme Judicial Court affirmed a Superior Court judge’s allowance of a defendant’s motion to suppress evidence found within the defendant’s cellphone, finding that the warrantless seizure of the cellphone was unreasonable, and that the subsequent search of the cellphone was similarly unlawful.

The case involved a high school student who was suspected of being involved in at least one armed robbery involving multiple perpetrators, in which someone was fatally shot.  The defendant’s mother advised the police that her son had admitted to being involved in a robbery during which someone was shot, and gave police the right to search a location where they found some evidence connecting the defendant to the crimes.  The defendant’s grandmother also gave the police access to incriminating evidence belonging to the defendant.

Subsequently, the police became aware that the defendant had left school early, without retrieving his cellphone, which was being held by school personnel.  The police then took possession of the defendant’s phone, place it into a bag to prevent it being erased remotely, and stored it at the police station.

Sixty-eight days later, the police applied for a search warrant to search the cellphone, which application was allowed.  The police then searched the defendant’s cellphone, and discovered certain evidence therein.  The defendant moved to suppress all evidence found on the cellphone, arguing that the seizure was unconstitutional, and that the subsequent search thereof was not rendered lawful by the obtaining of a search warrant.

The Superior Court judge allowed the defendant’s motion to suppress, and the government (i.e., district attorney) appealed.  On appeal, the SJC affirmed the allowance of the motion to suppress.

In making its decision, the SJC analyzed the cellphone’s seizure under both 4th Amendment and Article 14 (of the Massachusetts Declaration of Rights) jurisprudence, and concluded that there was no exception to the warrant requirement that made the seizure lawful.  Specifically, the government had argued that the “exigent circumstances” exception to the warrant requirement applied.  According to that exception, a warrantless seizure is nevertheless reasonable when there is probable cause to believe that there is evidence of criminality in the item seized, and where there is no time to obtain a warrant.  “Before police may search or seize any item as evidence, they must have ‘a substantial basis for concluding that’ the item searched or seized contains ‘evidence connected to the crime’ under investigation.”

The government argued that it was reasonable to suspect that a person suspected of committing a crime with other people would communicate with those people via cellphone, and that there was therefore probably evidence of the crime located within the cellphone.  The SJC rejected that claim, holding that there needs to more of a nexus between the crime and the cellphone.  “Information establishing that a person may be guilty of a crime does not necessarily constitute probable cause to search or seize the person’s cellular telephone  . . . [r]ather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there.”  Basically, the SJC found that the police had suspicions, but not the requisite probable cause, to believe that the cellphone contained evidence.

Because the police lacked probable cause, it was irrelevant whether there was time to obtain a warrant, and the exigency exception to the warrant requirement did not apply.

The SJC then turned to the issue of the search of the cellphone after the police obtained a search warrant, and easily determined that the evidence found as a result of the search of the cellphone was the “fruit of the poisonous tree,” i.e., the product of unconstitutional police action, because not supported by probable cause, and therefore inadmissible.  Although unnecessary, the Court also held that the delay of about two months in obtaining a search warrant for the cellphone was unreasonable.

Apparently, had the initial warrantless seizure been supported by probable cause, but not justified by exigency, then the Court nevertheless could have found that the evidence was admissible if it found that the two-month delay in obtaining the warrant was justified.  In any event, the SJC affirmed the suppression of the cellphone evidence.

Attorney Kevin D. Quinlan

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