Defendant received ineffective assistance of counsel by counsel’s failure to file a motion to suppress the search of defendant’s cell phone. The affidavit for the search warrant did not establish probable cause to search the phone. The mere fact two people communicated with each other means only that they have a professional relationship, not that they talked about a crime. “Nothing in the affidavit indicated the defendant’s cellular telephone would contain particular evidence related to the crime under investigation. … That the defendant used his cellular telephone at unspecified times to communicate with someone implicated in the crime ‘“elevated their relationship to a matter of importance in the investigation[;], it did not, without more, justify intrusion into the content of that communication’”. Commonwealth v. Morin, 2017 Mass. LEXIS 842 (Nov. 21, 2017):
Whether there is probable cause to believe that a cellular telephone contains evidence of a crime is a fact-intensive inquiry, and must be resolved based on the particular facts of each case. See Commonwealth v. White, 475 Mass. 583, 594, 59 N.E.3d 369 (2016). Nonetheless, some guidance may be drawn from our recent jurisprudence on the search of cellular telephones. To begin, police may not rely on the general ubiquitous presence of cellular telephones in daily life, or an inference that friends or associates most often communicate by cellular telephone, as a substitute for particularized information that a specific device contains evidence of a crime. See White, supra, at 590-591 (“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”).
In addition, information that an individual communicated with another person, who may have been linked to a crime, without more, is insufficient to establish probable cause to search either individual’s cellular telephone. See Commonwealth v. Fulgiam, 477 Mass. 20, 34, 73 N.E.3d 798, cert. denied, ___ S. Ct. ___ (2017). In that case, we considered whether an application for disclosure of stored wire and electronic communications, pursuant to 18 U.S.C. § 2703 (d), established probable cause to obtain the contents of the text messages on a defendant’s cellular telephone. Id. at 30, 34. We noted that the application “established a personal relationship” between the homicide victim and the defendant, that the defendant had sent text messages to the victim and his alleged accomplice on the day of the murder, and that “the circumstances of the murders suggested a connection to drugs.” Id. These facts suggested that the text messages were a “matter of importance in the investigation,” but were not sufficient to establish probable cause. Id. at 34-35. We concluded that, “Other than the cellular telephone communication between [the victim] and [the defendant], the application failed to recite any facts that might have implicated [the defendant] in the crimes or suggested that the content of his text messages would aid in the apprehension of a suspect in the murders.” Id. at 35.
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Here, the affidavit stated that the codefendant “made several telephone calls to [the defendant] before and after” the time of the homicide. At best, it established a personal relationship between the individual who brought the victim to the hospital and the defendant, and that they had communicated by cellular telephone before and after the killing. Nothing in the affidavit indicated the defendant’s cellular telephone would contain particular evidence related to the crime under investigation. See Dorelas, 473 Mass. at 501-502. That the defendant used his cellular telephone at unspecified times to communicate with someone implicated in the crime “elevated their relationship to a matter of importance in the investigation[;], it did not, without more, justify intrusion into the content of that communication” (emphasis omitted). Fulgiam, 477 Mass. at 34. Based on the limited information presented, the affiant’s statement that the defendant’s telephone would lead to evidence of “the individuals involved” in the victim’s death is merely conclusory and cannot support a determination of probable cause.