MA: Trial court erred in ordering cell phone purged of potential evidence as a condition of returning it after it was suppressed

Defendant succeeded in suppressing his cell phone, and the trial court erred in ordering defendant’s phone erased of the evidence suppressed before returning it. It was his property. Commonwealth v. Salmons, 2019 Mass. App. LEXIS 119 (Sept. 11, 2019):

Even if, on some record, such seizure and destruction might be allowed, the judge here made no finding that the harm would occur unless the cell phones were wiped. The judge’s statement that wiping the cell phones would “avoid[ ] a risk which is far greater than the perceived needs of the defendant,” was not a finding of fact that such harm was in any sense likely. Rather, it was an interest-balancing conclusion — one that erroneously put the burden on the defendant to show a need to possess what was already his.

Nor has the Commonwealth persuaded us that wiping the cell phones was authorized by the “public interest” standard of G. L. c. 276, § 3, as interpreted in Beldotti v. Commonwealth, 41 Mass. App. Ct. 185, 669 N.E.2d 222 (1996), cert. denied, 520 U.S. 1173, 117 S. Ct. 1443, 137 L. Ed. 2d 549 (1997). …

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