MA: PC was shown for searching def’s cell phone for messages to and from murder victim; SW’s overbreadth was cured by searchers’ limiting scope of search

Probable cause was shown to search defendant’s cell phone for text messages and calls from the murder victim. The victim’s phone wasn’t found, and it was logical there could be information on the phone and the victim’s was taken to hide the fact of the calls. The search warrant for the phone data wasn’t all that particular, but the state limited the search and defendant suffered no prejudice from overbreadth. Commonwealth v. Holley, 2017 Mass. LEXIS 889 (Dec. 14, 2017):

There was a substantial basis to conclude that Holley’s text messages were related to the crime under investigation. The warrant affidavit discussed information contained in the victim’s call records and the apartment surveillance footage in order to establish that Holley used his cellular telephone to call the victim immediately prior to the shooting, just as Holley was entering the victim’s apartment building, where the victim was ultimately shot. The affiant also stated that the victim’s girl friend had told him that the victim sold marijuana from the vacant apartment and kept his marijuana in Enfamil cans. The girl friend had observed an Enfamil can top, but not the container, near the victim’s body. The shooting was therefore likely connected to a drug deal, which the affiant explained commonly is arranged by a telephone call “to verify contact and to arrange for the transaction.” Contrast White, 475 Mass. at 589 (“the opinions of the investigating officers do not, alone, furnish the requisite nexus between the criminal activity and the [device] to be searched or seized” [emphasis added, quotations and citation omitted]).

The victim’s girl friend also told the affiant that “it was unusual for the victim not to have his phone with him.” Moreover, she had tried to video-call the victim while he was in the vacant apartment that morning, from which it reasonably may be inferred that the victim had had his cellular telephone in his possession, and yet his telephone was not found at the scene of the crime. From this information, the affidavit reasonably inferred that “people involved in the victim’s homicide may have taken the victim’s phone to hide any information such as recent contact information and caller history.”

The motion judge properly concluded that there was a nexus between Holley’s text messages and the shooting, even though the warrant affidavit did not state specifically that Holley was sending text messages. A nexus also may be “found in the type of crime, the nature of the items sought, and the normal inferences as to where such items might be kept by the suspect.” Commonwealth v. Matias, 440 Mass. 787, 794, 802 N.E.2d 546 (2004). See, e.g., Dorelas, 473 Mass. at 503 (defendant’s receipt of threatening calls and text messages on his cellular telephone supported reasonable inference that his photograph files, and not just his calls and text messages, would contain evidence of contentious communications in days leading up to shooting). Here, it was reasonable to infer that Holley’s cellular communications were instrumental in committing the crime because Holley called the victim as he was entering the victim’s apartment building only a few minutes before the shooting. Thus, there was probable cause to search for contemporaneous communications that were related to the criminal activity under investigation, which includes real-time text messages. Contrast White, 475 Mass. at 591 (only connection between fatal armed robbery and defendant’s cellular telephone was speculation in warrant affidavit that cellular telephone was related to crime because cellular telephones are “necessary to social interactions”); Commonwealth v. Broom, 474 Mass. 486, 496-497, 52 N.E.3d 81 (2016) (only connection between fatal aggravated rape and defendant’s cellular phone was conclusory statement in search warrant affidavit that “cellular telephones contain multiple modes used to store vast amounts of electronic data” and that there was “probable cause to believe that the [defendant's] cell phone and its associated accounts … will likely contain information pertinent to this investigation.”).

B. Particularity. “The Fourth Amendment, art. 14, and G. L. c. 276, § 2, require that a search warrant describe with particularity the places to be searched and the items to be seized.” Perkins, 478 Mass. 97, 106, 82 N.E.3d 1024 (2017). The dual purposes of the particularity requirement are “(1) to protect individuals from general searches and (2) to provide the Commonwealth the opportunity to demonstrate, to a reviewing court, that the scope of the officers’ authority to search was properly limited.” Commonwealth v. Valerio, 449 Mass. 562, 566-567, 870 N.E.2d 46 (2007). We have cautioned that “given the properties that render [a modern cellular telephone] distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard.” Dorelas, 473 Mass. at 502.

The warrant to search Holley’s cellular telephone records sought the following information from October 1 through October 18, 2012:

“[S]ubscriber information; billing records and detailed airtime; outbound call detail; call origination and termination location; stored GPS location information, and/or stored cellular tower records, cell tower sector information, range from cell tower information (RTT) and physical address of cell sites; and all stored contents of electronic or wire communications including stored or deleted voicemail, read, unread, deleted, or sent electronic mail or text messages, and stored files; and listing of all associated phone numbers, of a subscriber to or customer of such service.”

That the warrant sought “all stored contents of electronic or wire communications” and “stored files” in Holley’s cellular telephone records for seventeen days raises significant concerns as to whether the warrant was “sufficiently limited in scope to allow a search of only that content that is related to the probable cause that justifies the search” (citation omitted). Dorelas, 473 Mass at 511 n.8 (Lenk, J., dissenting). See Perkins, 478 Mass. at 106 (“By defining and limiting the scope of the search, these constitutional and statutory particularity requirements prohibit general warrants amounting to exploratory rummaging in a person’s belongings” [quotations and citation omitted]).

The warrant here was hardly a model of particularity, and did not sufficiently limit the scope of the search so as to prevent “exploratory rummaging.” See id. The record is silent, however, as to how MetroPCS conducted its search in order to comply with the warrant, and does not indicate what information, if any, MetroPCS provided to the Commonwealth beyond Holley’s text messages. Indeed, it is unclear from the record whether MetroPCS even kept any stored content apart from text messages as part of its business records. See Commonwealth v. Sheppard, 394 Mass. 381, 390, 476 N.E.2d 541 (1985) (exclusion not warranted where record demonstrated that officers did not exploit defect in warrant and properly limited scope of their search such that defendant was not prejudiced by lack of particularity). The only stored communications used at trial consisted of Holley’s text messages, which the Commonwealth had redacted so that only the content relevant to the crime under investigation was presented to the jury. The redacted text messages were all sent or received in the two days before the shooting, when the drug transaction was arranged; on the day of the shooting, when the crime was carried out; or on the day after the shooting, when Holley discussed the disposition of the proceeds of the armed robbery. On this record, Holley suffered no prejudice because the text messages were sufficiently limited in content and scope such that the Commonwealth did not capitalize on the lack of particularity in the warrant. We cannot say that the judge erred in denying the motion to suppress on this basis.

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