MA: Anticipatory SW for cell phone held by attorneys is granted; PC shown there is evidence available

Defendant gave his attorneys his cell phone, and it likely had text messages on it relevant to a murder investigation. A subpoena for the phone previously failed because of attorney-client privilege. Now the state seeks an anticipatory search warrant for the cell phone on probable cause, and the court orders it granted. The phone is not immune from production just because it is in the hands of a criminal defense lawyer, and the attorneys can do without it for the duration of the download and get it back. Commonwealth v. Hernandez, 2016 Mass. LEXIS 608 (Aug. 19, 2016). Note also that the process for the search warrant was an adversary proceeding, as it should have been:

2. Discussion. The Commonwealth contends that where an attorney’s continued retention of documentary evidence is no longer necessary for the provision of legal services to a client, such evidence is being “secreted” within the meaning of G. L. c. 276, § 1, and a search warrant properly may issue for its seizure. We agree.

In Grand Jury Investigation, 470 Mass. at 417, the concurring Justices pointed out that G. L. c. 276, § 1, was amended in 1986 to protect from search and seizure, except in limited circumstances, “documentary evidence” in the possession of lawyers, psychotherapists, and clergymen. See St. 1986, c. 691. The Legislature recognized that “the law provides special privileges to the consultations [these professionals] have with their clients, patients, or parishioners,” and that “a search of their files for nonprivileged documents (pursuant to a search warrant) would pose a significant risk that the privileges of innocent third parties would be compromised.” Id. at 417-418 (Cordy, J., concurring), and sources cited. Consequently, as pertinent here, the Legislature determined that a search warrant shall not issue for documentary evidence transferred to a lawyer by a client for the provision of legal advice unless “a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” Notwithstanding this limitation on the powers of search and seizure, the concurring Justices in Grand Jury Investigation, supra at 419, also pointed out that nothing in the extensive legislative history of the 1986 amendment to G. L. c. 276, § 1, suggested that the Legislature intended for its provisions “to permanently shield from seizure unprivileged evidence of criminal activity placed in the hands of an attorney by a client under investigation, or to create a depository for the secretion or sequestration of such evidence from law enforcement.” That being the case, we construe the statute in accordance with the Legislature’s intent and proceed to consider whether the necessary factual showing has been made for the issuance of a search warrant to Rankin & Sultan for the cellular telephone. In so doing, we resolve the question left unanswered in Grand Jury Investigation, supra at 414, mindful of our observation that nothing in that opinion should be interpreted as suggesting that “a lawyer, having received materials whose contents are not themselves privileged for purposes of rendering legal advice, may retain such materials indefinitely, absent a continuing bona fide need and purpose related to the provision of legal advice.” Id. at 415. See note 6, supra.

This court’s discussion in Grand Jury Investigation, 470 Mass. at 410-416, about the availability of a not yet requested search warrant under G. L. c. 276, § 1, was confined to the limited record that was before the Superior Court judge in March, 2014. Id. at 414, 416. At that time, nothing in the record suggested that Ropes & Gray was no longer engaged in the provision of legal services to the defendant. Id. at 414. Consequently, the law firm’s retention of the telephone could not be said to be the “secretion” of documentary evidence. Id. Since the issuance of our decision in that case, however, the circumstances surrounding the defendant’s cellular telephone have changed.

First, the Commonwealth now has filed an application for the issuance of an anticipatory search warrant. Second, no claim has been raised that the telephone itself is privileged, or that it contains any privileged communications. Third, the judge already has found probable cause to believe that the telephone contains evidence of the crimes under investigation. Finally, the judge accepted and credited the representations set forth in Sergeant Detective Witherspoon’s affidavit that the contents of the telephone could be downloaded in a few hours. That being the case, the judge determined that, after a fourteen-day period of time during which the download could occur, Rankin & Sultan no longer needed to retain possession of the telephone itself for the provision of legal services to the defendant.

In order to obtain the search warrant, the Commonwealth was required to show that “there is probable cause to believe that the documentary evidence will be … secreted … in the event a search warrant does not issue.” G. L. c. 276, § 1. The term “secrete” is defined in Black’s Law Dictionary 1557 (10th ed. 2014) as meaning “[t]o remove or keep from observation, … to conceal … to hinder or prevent officials … from finding it.” Once Rankin & Sultan has downloaded the contents of the telephone, it has no legitimate purpose for the telephone’s retention. Rankin & Sultan no longer requires possession of the telephone for the provision of legal advice to the defendant. In such circumstances, the continued retention of this device can only be understood as having the effect of concealing or removing it from the observation of others, namely the Commonwealth. The Superior Court judge’s order directing Rankin & Sultan not to “alter, transfer, dispose of, return, or otherwise render the telephone unavailable pending further court order” merely is designed to preserve the status quo. Because continued retention of the telephone by Rankin & Sultan means that the device is being “secreted” within the meaning of G. L. c. 276, § 1, the limited exception to the prohibition on the issuance of a search warrant for documentary evidence in the possession of a lawyer is applicable. A search warrant may issue for the seizure of the telephone.

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