COMMONWEALTH v. HOWARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from an order suppressing evidence seized from the search of two cell phones recovered from the defendant three days after a double shooting, in which there was probable cause to believe the defendant was involved. Because we agree with the Superior Court judge that the warrants authorizing the search of the cell phones failed to establish a sufficient nexus to the shootings, we affirm.

Background. On June 4, 2013, the police arrested the defendant on an outstanding warrant for an unrelated matter. At the time, he was seated in the driver's seat of a Dodge Durango believed to be involved in a double shooting three days earlier. During the search incident to arrest, the police seized two cell phones from the defendant's person. On June 12, 2013, the police obtained warrants to search the contents of the two cell phones, alleging that there was probable cause to believe that the items contained within the cell phones were “intended for use or ha[d] been used as a means of committing a crime” or that they constituted “evidence of a crime or ․ criminal activity.”²

The affidavits in support of the search warrants recounted the events of June 1, 2013, when the police responded to two shootings at different locations in Boston, one at approximately 6 a.m. and the other at approximately 3:30 p.m. The affidavits further set out the subsequent investigation, which indicated that a Dodge Durango was involved in both shootings. As the Durango left the scene of the afternoon shooting, it side-swiped three parked cars. Further investigation connected the Durango to the defendant.³

The police were unable to locate the defendant until June 4, 2013, after surveillance of the woman who had rented the Durango led them to a Holiday Inn in Dedham when she drove into the parking lot in her own Chevy Cobalt. The defendant's girlfriend came out of the Holiday Inn and got into the Cobalt's passenger seat. A few minutes later, the defendant's girlfriend returned to the hotel. She then walked back into the parking lot while making a short telephone call. After the girlfriend's telephone call, the defendant pulled into the Holiday Inn parking lot in the Durango. As the defendant's girlfriend was walking to the Durango, the police intervened and arrested the defendant.⁴ The exterior of the Durango appeared as if paint had recently been applied. A search of the Durango's interior turned up spent shell casings similar to the ones recovered at both shooting scenes.⁵ Ballistics testing concluded that all the casings were discharged from the same weapon.

The following year, in the fall of 2014, the defendant was charged with committing the crimes involved in the June 1, 2013, shootings. A codefendant was similarly charged in the spring of 2015. Two years later, in July 2017, the defendant moved to suppress the two cell phones seized from his person during the search incident to arrest as well as the evidence obtained from the cell phones pursuant to the search warrants. After an evidentiary hearing on the search incident to arrest and a nonevidentiary hearing on the warranted searches, the judge ruled that the cell phones were initially seized properly in connection with the defendant's arrest on an unrelated matter. Nevertheless, the judge suppressed the cell phones and their content because the search warrants for the cell phones were not supported by probable cause.⁶

Discussion. With respect to a search warrant for the contents of a cell phone, the supporting affidavit “must establish probable cause to believe (i) that a ‘particularly described offense has been, is being, or is about to be committed’; and (ii) that the cell phone's contents ‘will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense’ ” (citation omitted). Commonwealth v. Mack, 482 Mass. 311, 320 (2019). The Commonwealth contends that the judge erred in allowing the defendant's motion to suppress because the affidavits in support of the search warrants for the cell phones met this standard.

There is no dispute that the first requirement was met as the police were investigating a double shooting with four victims, including a fatality. There is also no real dispute that the affidavits established probable cause to believe that the defendant was involved in the shootings. However, “even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there.” Commonwealth v. White, 475 Mass. 583, 590-591 (2016).

Here, the affidavits in support of the search warrants related no information concerning the use of any cell phones connected to the commission of the crimes. The only explicit mention of a cell phone or even a telephone call was three days after the crimes, when the defendant's girlfriend used one briefly, after which the defendant appeared. Even assuming that the girlfriend's telephone call was with the defendant, the nexus to the crimes was still lacking. See Commonwealth v. Morin, 478 Mass. 415, 427-428 (2017) (where affidavit established personal relationship between defendant and person who brought deceased victim to hospital, as well as cell phone communications between them, both before and after killing, nexus to crime was not established); Commonwealth v. Jordan, 91 Mass. App. Ct. 743, 750-751 (2017) (where defendant used cell phone four hours before murder and telephoned relatives around time of murder, nexus to crime was not established). Contrast Commonwealth v. Dorelas, 473 Mass. 496, 503 (2016) (nexus established where defendant had received threats on his cell phone and “immediately prior to the shooting,” had argued with someone on it).

The Commonwealth argues that “the search warrant affidavits established probable cause to believe that the defendant had at least one cell phone with him in the Durango at all relevant times.” Without identifying which portions of the affidavits established this, the Commonwealth goes on to argue that, given the durable nature and continuing utility of a cell phone, it is reasonable to believe that the defendant continued to keep the cell phones on his person or in the Durango after the shootings. The fact that the defendant was arrested in possession of cell phones is important, the Commonwealth insists, because it could reveal his location at the time of the crimes as well as in the aftermath, when the defendant hid out in hotels and tried to cover up the damage to the Durango.

Essentially, the Commonwealth's argument reduces to the assumption that at least one of the cell phones the defendant possessed at the time of his arrest was with him at the time of the crimes and that a search of the cell phones would, at a minimum, help establish his whereabouts and thereby corroborate his involvement in the crimes. While the assumption is not an unreasonable one, it is precisely the type of reasoning rejected by White. There, the police had information that the crimes under investigation were committed by multiple people, that the defendant was likely one of them, and that he had a cell phone. White, 475 Mass. at 590. The Supreme Judicial Court acknowledged that many of those who own a cell phone in effect “keep on their person a digital record of nearly every aspect of their lives” and that therefore cell phones may be generally helpful to investigators (citation omitted). Id. at 591. Nonetheless, it rejected the argument that this generalized utility was enough to establish a nexus between a cell phone of someone suspected of a crime and that criminal activity. Id.

The Commonwealth's case here fares no better. Its argument for probable cause rests on general averments in the affidavits that cell phones can track the location of those who possess them. This is insufficient to meet the requirement that “particularized evidence” related to the crime is likely to be found on the cell phones. See White, 475 Mass. at 591-592 (noting that if generalized averments about information likely to be found on cell phones were sufficient, “it would be a rare case where probable cause to charge someone with a crime would not open the person's cellular telephone to seizure and subsequent search” and rejecting this result). The motion to suppress was properly allowed.

Order allowing motion to suppress affirmed.

FOOTNOTES

2.   The search warrants authorized the police to search the cell phones for broad categories of information for an unspecified time period; however, the affidavits in support of the search warrants requested a limited date range corresponding to when the Durango was first rented from an agency in May 15, 2013, to the time of the defendant's arrest on June 4, 2013.

3.   The police were able to obtain the license plate of the Durango. Though they learned that the car had been rented from Logan airport by a woman a few weeks earlier, they also learned that the defendant and another man had been seen getting into the Durango at a car dealership in Dorchester ten days earlier. The general description of the two individuals in the Durango during the afternoon shooting was consistent with the appearance of the defendant and his companion at the dealership.

4.   When interviewed by the police, the defendant's girlfriend indicated that she and the defendant had stayed at a Sheraton Hotel in Needham from June 2 through June 3, 2013, and had relocated to the Holiday Inn in Dedham on June 4, 2013. She further stated that the defendant had left the Holiday Inn at 4:30 p.m. that day, using what she referred to as a “gypsy cab.”

5.   Also recovered from the Durango were two memory cards, a digital camera, and three cell phones. These additional cell phones were not the subject of the defendant's motion to suppress.

6.   In his motion to suppress, the defendant also alleged that the search warrants were overbroad, but the judge did not reach this issue.