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.
. . .
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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)