MA: Planning of homicide with co-conspirator was nexus for cell phone SW

It was reasonable for the magistrate to conclude that evidence of defendant’s planning of a homicide would be on his cell phone because he communicated with co-conspirators. Therefore, nexus to the phone was shown. Commonwealth v. Snow, 2021 Mass. LEXIS 2 (Jan. 11, 2021):

Here, the affidavit provided a substantial basis to conclude both that the defendant had committed the homicide as Diggs’s coventurer and that it was reasonable to expect that his cell phone would contain evidence related to that specific crime. Not only was the defendant apparently calling his girlfriend to ask her to retrieve the car soon after the crime, but his girlfriend had an improbable explanation for having rented a car at all, given that she already owned one. See, e.g., United States v. Winters, 782 F.3d 289, 299-301 (6th Cir. 2015) (implausible explanation for renting car was one factor giving rise to reasonable suspicion). When she was later interviewed by police, the defendant’s girlfriend asserted that, although she had a car, she had rented an extra car to assist in her move to Fall River. The rental car was a Nissan Altima — a sedan — not the typical truck or van one might rent for moving. Moreover, she noted that she had rented a different vehicle earlier in the week and had exchanged it for the Nissan on that day, but did not provide a reason for the change.

Additionally, when he was being booked, the defendant asked officers how his girlfriend could get her car back, and stated that he did not want to have a bill for a late fee. Given that the defendant was about to be arrested for murder, it seems unlikely that he was calling his girlfriend merely to ensure that she could pick up the rental car and avoid a charge for a late rental return. The rental car contained evidence related to the shooting: a T-shirt and a third cell phone, both of which presumably belonged to Diggs. Given the context, it seems probable that the defendant’s call was motivated by a concern that evidence could be discovered in the car, not by a possible late fee.

Finally, there was some evidence that the crime had been planned ahead of time. The search warrant affidavit noted that a witness saw “people moving around in the car leaving the impression on him that they might be changing their clothes.” This leads to an inference that the crime had involved, at a minimum, enough prior planning and coordination for the parties to bring a change of clothes. Further, the evidence that Diggs had been communicating with the victim via cell phone leading up to the murder gave rise to an inference that the coventurers also communicated about the crime via cell phone, particularly where the theory of the crime required a shared mental state. See Commonwealth v. Zanetti, 454 Mass. 449, 455, 910 N.E.2d 869 (2009) (joint venture theory requires that coventurers have shared mental state). Given these facts, one could infer from the affidavit that the call was related to the crime, that the crime was preplanned, and that some of that planning may have utilized cell phones, including the defendant’s.

Although in isolation none of these facts would be sufficient to support a nexus between the crime and the defendant’s cell phone, in determining whether an affidavit supports a finding of probable cause we must take it as a whole, and not “parse[ ], sever[ ], [or] subject[ ] [it] to hypercritical analysis” (quotation and citation omitted). Dorelas, 473 Mass. at 501. Here, the facts add up to a nexus between the defendant’s cell phone and the crime.

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