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An Argument That Proves Too Much

  • October 30, 2016
  • Clayton Rice, Q.C.

On September 28, 2016, the Massachusetts Supreme Judicial Court released its unanimous opinion in Commonwealth v White, No. SCJ-11917, upholding an evidence suppression ruling that probable cause to search or seize a suspect’s cellular telephone may not be based solely on a police officer’s opinion that the device was likely to contain evidence of the crime under investigation. Here’s the story.

On February 24, 2010, sixteen year old Onyx White was arrested for the murder of popular store clerk Geraldo Serrano in the Roxbury neighbourhood of Boston. Earlier that day the investigation had led a detective to White’s Samsung pay-as-you-go phone that was being held by one of his high school administrators. The phone had been confiscated by the school authorities pursuant to the practice of searching all students on arrival. The police did not have any information that the phone contained evidence of the robbery and homicide. But the detective and a supervisor were aware, based on experience, that cellphones often contain useful information such as contact lists and call details in cases involving multiple suspects. The supervisor told the detective to seize the cellphone without a warrant based on his belief that, if White retrieved the phone before a warrant could be obtained, he would destroy it or erase relevant evidence. The phone was placed in a special bag “to prevent remote intrusion” but it was not searched.

Two months later a witness told the police that White had participated in other similar robberies and that, in one of them, he took a photograph of the proceeds with his cellphone camera. The police then obtained a warrant to search the phone for photographs related to the Serrano robbery as well as data such as subscriber information, speed dial lists and text messages. There was a delay of 68 days from the time the phone was seized to the date of the search warrant application.

The case raised two issues under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights that Judge Barbara Lenk, writing for the court, described at, slip. op., p. 3: (a) whether the detective’s opinion that the device was likely to contain evidence, without more, amounted to probable cause allowing him to seize it and (b) whether it was reasonable for the police to wait almost ten weeks after seizing the phone before applying for a warrant to search it.

1. Probable Cause

The basics are well settled in Massachusetts law. Before the police may search or seize an item as evidence, they must have a substantial basis to conclude that the item contains evidence connected to the crime under investigation. The state must demonstrate a nexus between the crime alleged and the article to be searched or seized. The experience and expertise of a police officer may be considered in the nexus analysis. But, where the location of the search is a device like a computer, such as a cellular telephone, the opinions of the investigating officers do not, alone, provide the requisite nexus between criminal activity and the device to be searched or seized. [See, e.g. Commonwealth v Matias, 440 Mass 787, 794 (2004); and, Commonwealth v Anthony, 451 Mass 59. 72 (2008)]

The decision of the police to seize White’s cellphone was, in essence, based on two things: (1) they had reason to believe that White had participated with others in the commission of a robbery-homicide and (2) their training and experience in cases involving multiple suspects suggested that the cellphone was likely to contain evidence relevant to those offences. In holding that this failed to satisfy the nexus requirement, Judge Lenk stated, slip. op., at pp. 12 and 14:

“…[P]olice first must obtain information that establishes the existence of some ‘particularized evidence’ related to the crime. Commonwealth v Dorelas, 473 Mass 496, 502 (2016). Only then, if police believe, based on training or experience, that this ‘particularized evidence’ is likely to be found on the device in question, do they have probable cause to seize or search the device in pursuit of that evidence.

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, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence. Commonwealth v Pina, 453 Mass 438, 441 (2009). Rather, 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.” [Emphasis added]

The Commonwealth argued, however, that the police possessed the “functional equivalent” of such information in the form of the common sense notion that cellular telephones are a modern day necessity for social interaction. The police thus properly inferred that if White committed crimes with coventurers, it was likely that he used his cellphone. Judge Lenk rejected this argument at slip. op. pp.15-6:

“…[T]he argument simply ‘proves too much.’ See Coolidge v New Hampshire, 403 US 443, 480 (1971) (rejecting Fourth Amendment argument that would sweep too broadly). In essence, the Commonwealth is suggesting that there exists a nexus between a suspect’s criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offence, accompanied by an officer’s averment that, given the type of crime under investigation, the device likely would contain evidence. If this were sufficient, however, it would be a rare case where probable cause to charge someone with a crime would not open the person’s cellular telephone to seizure and subsequent search…We cannot accept such a result, which is inconsistent with our admonition that ‘individuals have significant privacy interests at stake in their [cellular telephones] and that the probable cause requirement…under both the Fourth Amendment…and art. 14…[must] serve to protect these interests’. See Dorelas, 473 Mass at 502 n. 11.”

2. Length of Delay

Under Fourth Amendment doctrine, the police may retain an item seized without a warrant for the relatively short period of time that is needed to obtain a search warrant. Otherwise, the item must be returned. The police must apply for a search warrant at the earliest reasonable opportunity. There is no bright line past which a delay becomes unreasonable. The reasonableness of the delay is determined by the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. [See: US v Place, 462 US 696, 703 (1983)]

The court did not question that the police “diligently performed their difficult jobs” but whether they “acted diligently in obtaining the warrant”. Judge Lenk concluded, at slip. op. p. 21, that the detectives did not act diligently and focused on applying for and executing five other search warrants during the investigation. There was no evidence that the complexity of the warrant application caused the delay or that responsibility for other investigations depleted available manpower.

However, the Commonwealth also contended that the police actions were justified because White did not exhibit a significant “possessory interest” in his cellphone. Judge Lenk gave this argument short shrift, at slip. op. p. 22, holding that possessory interest is only one factor in the “over-all reasonableness calculus” and was not controlling because unreasonable delay not only affects an individual’s possessory interest but also the ability of the judiciary to promptly evaluate and correct improper seizures. The Commonwealth thus failed to meet its burden of showing that the delay of 68 days was reasonable.

3. Conclusion 

The opinion has implications not only in Massachusetts but potentially for other jurisdictions in the United States. The ruling was praised by White’s attorney, J.W. Carney, Jr., who described it as an important decision for the right to privacy. “We use cellphones to store very personal information,” he said. “A search of it exposes all aspects of a person’s life.” And Professor Daniel Medwed of the Northeastern University, School of Law, described it as potentially having “vast ramifications on police conduct”. (See: John R. Ellement. SJC ruling makes it harder for police to seize cellphones. The Boston Globe. September 28, 2016)

The ruling will be of interest to Canadian lawyers in assessing searches and seizures under s. 8 of the Charter of Rights and s. 487 of the Criminal Code. It may also be instructive in the context of provisions dealing with other specific circumstances such as transmission data recorders under s. 492.2. The pedigree of particularized evidence in Canadian search and seizure law is rooted in the requirement that the belief of a police officer must be “sufficiently particularized, and not amount merely to a generalized suspicion”. (See: R v Chehil, [2013] 3 SCR 220 per Karakatsanis J., at para. 30; and, R v Navales (2014), 307 CCC (3d) 219 (Alta CA) per Paperny JA, at para. 19)

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