MA: SW for a cell phone requires facts for nexus to crime, not just “experience shows”

Nexus between a cell phone’s contents and a crime has to be shown by evidence, not just the officer’s experience in similar cases. Also, the phone was seized without a warrant to protect the contents from tampering, and it was not subjected to the warranted search for 68 days. That, too, was unreasonable. Commonwealth v. White, 475 Mass. 583 (Sept. 28, 2016):

In February, 2010, a Boston police detective investigating an armed robbery and shooting at a convenience store went to the defendant’s high school, after suspicion had focused on the defendant as one of the three perpetrators. The detective spoke with a school administrator, who informed him that, pursuant to school policy, she was holding the defendant’s cellular telephone. After consultation with his supervisor, the detective seized the telephone to prevent the defendant from retrieving it and removing evidence or destroying the device. At that point, however, the detective had no information that the cellular telephone had been used to plan, commit, or cover up the crime, or that it contained any evidence of the crime. From experience, the detective was aware, however, that cellular telephones frequently are used when an offense involves multiple perpetrators. Sixty-eight days later, having held — but not searched — the telephone throughout that period, police obtained a warrant to search it on the basis of information that had emerged after the seizure. A forensic search yielded evidence relevant to the investigation, which the defendant then moved to suppress on the ground that the seizure was not supported by probable cause. A judge of the Superior Court allowed the defendant’s motion, and the Commonwealth appealed.

In considering the Commonwealth’s appeal, we confront two issues under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. First, we consider whether the seizure was supported by probable cause and, in particular, whether the detective’s opinion that the device was likely to contain evidence, without more, provided probable cause allowing him to seize it. We then examine whether, under the circumstances here, it was reasonable for police to wait almost ten weeks after seizing the device before applying for a warrant to search it.

We conclude that probable cause to search or seize a person’s cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation and, accordingly, that the seizure here was not supported by probable cause. We separately conclude also that, in these circumstances, the Commonwealth has not, in any event, met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable. We therefore affirm the Superior Court judge’s order allowing the defendant’s motion to suppress.