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Appeals Court of Massachusetts.



Decided: March 18, 2021

By the Court (Massing, Sacks & Grant, JJ.1)


A jury convicted the defendant, Gilka Rolon-Arroyo, of involuntary manslaughter, G. L. c. 265, § 13; distribution of a class A substance (heroin), G. L. c. 94C, § 32 (a); and possession with intent to distribute a class A substance (heroin), G. L. c. 94C, § 32 (a).2 On appeal, the defendant contends that the motion judge improperly denied her motion to suppress evidence extracted from her two cell phones and that the prosecutor's closing argument gave rise to a substantial risk of a miscarriage of justice. We affirm.

Discussion. 1. Motion to suppress cell phone evidence. Prior to trial, the defendant moved unsuccessfully to suppress evidence from her two cell phones on the ground that the affidavit in support of the warrant application failed to establish probable cause that the cell phones “contain[ed] ‘particularized evidence’ relating to the crime” charged. Commonwealth v. Broom, 474 Mass. 486, 495 (2016), quoting Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016).

“[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the ‘four corners of the affidavit’ ” (citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297 (2003). The purpose of this inquiry is to determine whether the warrant affidavit established probable cause to conduct the search, as required by the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Morin, 478 Mass. 415, 425 (2017). We must consider “whether the magistrate had a substantial basis to conclude that a crime had been committed ․ and that the items described in the warrant were related to the criminal activity and probably in the place to be searched” (quotation and citation omitted). Commonwealth v. Richardson, 479 Mass. 344, 351 (2018). “While ‘definitive proof’ is not necessary to meet this standard, the warrant application may not be based on mere speculation” (citation omitted). Commonwealth v. Holley, 478 Mass. 508, 521 (2017). “We review a search warrant affidavit de novo to determine whether it establishes probable cause.” Commonwealth v. Ponte, 97 Mass. App. Ct. 78, 79 (2020).

Where police seek to search a cell phone, the affidavit must establish “a sufficient nexus between the cell phone[ ] and the crime.” Commonwealth v. Arthur, 94 Mass. App. Ct. 161, 166 (2018). “[E]ven 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). “With respect to cell phone searches, ‘police may not rely on the general ubiquitous presence of cellular telephones in daily life, or an inference that friends or associates most often communicate by cellular telephone, as a substitute for particularized information that a specific device contains evidence of a crime.’ ” Commonwealth v. Snow, 486 Mass. 582, 586 (2021), quoting Morin, 478 Mass. at 426.

Before they seized the cell phones, the police sought and obtained a warrant to search the defendant's apartment and her person for evidence related to the sale of heroin.3 The warrant authorized the search and seizure of heroin and all “implements (including cell phones or other types of electronic devices) [and] paraphernalia” related to the possession, manufacturing, or distribution of heroin. When police executed the warrant, the defendant had two cell phones in her possession -- an iPhone with a pink case and an iPhone with a black case -- both of which were seized. Police also seized the cell phone of Daryn Sampson, the codefendant, who was with the defendant at the time.4 The defendant was arrested and charged with possession with intent to distribute heroin. She was later charged with manslaughter after her neighbor, Rebekah Swotchak, was found dead from a drug overdose.5

Detective Brian Freeman subsequently prepared an affidavit in support of an application for a warrant to search the two cell phones seized from the defendant -- each identified by an assigned property number, make, and model -- as well as “all of their contents.”6 In the affidavit, Freeman stated that he and another officer conducted surveillance of the defendant's apartment, working with a reliable confidential informant who knew about the defendant's sale of heroin. The informant made at least two controlled buys of heroin from the defendant, both of which were arranged by cell phone in the presence of a police officer. The affidavit included the text of the defendant's arrest report, which detailed the discovery of large quantities of drugs packaged for sale and cash, including prerecorded buy money, in her apartment. When the officers arrived to execute the first search warrant, Freeman observed the defendant actively using both cell phones -- she was talking on one of them and manipulating the screen of the other. Police recovered $1,285 in cash, cards, and papers from the defendant's purse or wallet. Inside the apartment, they found two empty stack wrappers 7 in the kitchen trash barrel. In the defendant's bedroom, they discovered another empty stack wrapper, and fifty-two bags of heroin -- five bundles, each of which comprised ten bags, and a few loose bags. The cash seized from the defendant and from her bedroom included some prerecorded buy money.

Taken together, this information showed that “police had detailed and specific knowledge concerning the defendant's use of a cellular telephone to arrange drug transactions.” Commonwealth v. Perkins, 478 Mass. 97, 105 (2017). Contrast White, 475 Mass. at 590 (no probable cause where police had no information cell phone was used in crime and did not allege “particular piece of evidence” would be found on phone); Broom, 474 Mass. at 496 (no probable cause where affidavit offered “no ‘particularized evidence’ suggesting that the contents of the defendant's cellular telephone ․ were likely to contain information linking the defendant to the [crime]”). As the motion judge found, the large sum of cash seized from the defendant's person when she was arrested, as well as the more than fifty bags of heroin and the packaging materials found in her apartment, permitted the reasonable inference that the defendant “was actively involved in selling heroin.” The information about how the controlled buys were conducted supplied probable cause to conclude that the defendant used her cell phone or phones to make those sales. See Arthur, 94 Mass. App. Ct. at 166 n.8 (“In determining whether an affidavit justifies a finding of probable cause, all reasonable inferences that may be drawn from the information in the affidavit are considered as to whether probable cause has been established”).

In Perkins, 478 Mass. at 105, the court held that a search warrant application established probable cause to search nine cell phones seized from the defendant because the affidavit offered “specific knowledge” that the defendant used a cell phone to arrange drug transactions, as well as “a particular telephone number with which that cellular telephone had been in contact at a specific time.” The defendant argues that Freeman's affidavit was insufficient because it did not specify the telephone numbers associated with the defendant's cell phones and did not describe the content of the messages exchanged between the informant and the defendant or the timing of their communications. These omissions are not fatal to a finding of probable cause. In making a probable cause determination, “we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (quotation and citation omitted). Arthur, 94 Mass. App. Ct. at 167. Even without specific information about the transactions with the informant, it was reasonable to infer that the defendant used the cell phones found in her possession to arrange her drug transactions.

Neither the broad statements in the affidavit concerning the potential for cell phones to contain vast amounts of data that may be related to criminal activity, nor Freeman's observation that “people who sell narcotics will often have two or more phones,” preclude a finding of probable cause. Alone, these statements would have been insufficient. See White, 475 Mass. at 589; Broom, 474 Mass. at 496-497 & n.13. However, taken together with the evidence that the defendant used a cell phone to arrange drug transactions at least twice, as well as the evidence of drug dealing seized from her apartment, the information in the affidavit provided a substantial basis to conclude that the defendant had committed a crime and that evidence of that crime would be on her cell phones; it was far more than “mere speculation.” Holley, 478 Mass. at 521. The defendant's motion to suppress was properly denied.8

2. Prosecutor's closing. Because a trial court order prohibited substances containing any amount of fentanyl from being brought into the court room, the Commonwealth introduced photographs in lieu of physical evidence of the drugs seized from the defendant's apartment that contained fentanyl. After stating that fentanyl is “a dangerous substance,” the trial judge informed the jury of the order and instructed them “not [to] draw any inference about the actual chemical composition of the substance at issue in this case based on the application of the trial court's ban.” He further instructed that they must decide the case “based only on the evidence that's been admitted in the trial.”

In closing, after marshaling the specific evidence that Sampson and the defendant knew that the drugs they were selling were dangerous, the prosecutor added, “And not to mention the directive from the Court not to bring fentanyl into the courtroom. It can't even be in the room. These defendants knew what they were selling, and they knew how dangerous it was.” The Commonwealth concedes that the prosecutor's reference to the court order was improper; it was not based on the evidence. See Commonwealth v. Mack, 482 Mass. 311, 322 (2019); Commonwealth v. Parker, 481 Mass. 69, 74 (2018). However, because the defendant did not object, we review the error for a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015). We consider the prosecutor's remark “in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.” Commonwealth v. Martinez, 476 Mass. 186, 200 (2017), quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

Given the overwhelming evidence that the defendant knew the heroin she was selling was dangerous, particularly her text messages,9 the prosecutor's comment likely had little, if any, influence on the jury. See Commonwealth v. McCravy, 430 Mass. 758, 765 (2000). Furthermore, the judge's instruction not to draw an inference about the drugs based on the application of the court's fentanyl ban, and his instruction that opening and closing arguments are not evidence, mitigated any potential risk of prejudice. Finally, the jury acquitted the defendant of the charges related to the possession and distribution of fentanyl, undermining any claim that the reference to the court order created a substantial risk of a miscarriage of justice.

Judgments affirmed.


2.   The jury acquitted the defendant of distribution of a class B substance (fentanyl) and of possession with intent to distribute a class B substance (fentanyl), G. L. c. 94C, § 32A (a).

3.   The defendant does not challenge the validity of the first warrant.

4.   The defendant was tried together with Sampson, who filed a separate appeal. See Commonwealth vs. Sampson, A.C. No. 19-P-1055.

5.   Swotchak and the defendant lived in the same multifamily house owned by Swotchak's parents -- Swotchak on the first floor, and the defendant on the second floor.

6.   We note that given the immense potential of a cell phone to store large amounts of data, “a search of its many files must be done with special care.” Dorelas, 473 Mass. at 502. The defendant does not challenge the scope of the warrant.

7.   Stack or pack wrappers are used for bundling bags of heroin.

8.   Accordingly, we need not address the defendant's argument that evidence extracted from Sampson's cell phone should have been suppressed as “fruit of the poisonous tree” (quotation and citation omitted). White, 475 Mass. at 596.

9.   About a week before Swotchak's death, the defendant and Sampson exchanged text messages about Swotchak's recent near overdose, which Sampson had witnessed and described to the defendant. In addition, the defendant sent and received text messages characterizing the heroin she was selling as “fire,” which an officer testified meant that the drugs were “potent.”

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