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.
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)