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How much evidence is enough to establish probable cause to search a cell phone in Massachusetts?

May 29, 2020
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Recent cases from the Massachusetts Supreme Judicial Court offer some guidance.

Nearly six years have passed since the Supreme Court of the United States decided the landmark case of Riley v. California,573 U.S. 373 (2014), holding that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. After Riley, courts around the country have been tasked with deciding how much evidence is enough to justify issuing a warrant to seize and search the digital contents of a cell phone. 

The Fourth Amendment to the United States Constitution requires probable cause before a court is permitted to issue a search warrant. Probable cause exists when the facts can support a reasonable inference that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  Illinois v. Gates, 462 U.S. 213, 238, (1983). Moreover, the United States Supreme Court has explained that the demanding requirements of the Fourth Amendment require more than an “unparticularized suspicion” and cannot be based on just a “hunch.” See Brown v. Texas, 443 U.S. 47 (1979); see also Terry v. Ohio, 392 U.S. 1 at 22 (1968). 

How does the probable cause analysis apply to cell phone searches?

The Supreme Judicial Court of Massachusetts (SJC) has explained that a warrant to search the contents of a cellular phone must include facts which establish a sufficient nexus, or connection, between a defendant’s cell phone and the particular crime the defendant is suspected of committing. 

In Commonwealth v. White, 475 Mass. 583, 591 (2016), the SJC explained the ‘nexus’ requirement’s rationale: “police first must obtain information that establishes the existence of some “particularized evidence” related to the crime… Only then, if police believe, based on training or experience, that this “particularized evidence” is likely to be found on the device in question, do they have probable cause to seize or search the device in pursuit of that evidence. Commonwealth v. White, 475 Mass. 583, 589, 59 N.E.3d 369, 375 (2016). 

The Court added: “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” in the cell phone.

The SJC explained the facts of the White case: “prior to seizing the defendant’s cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any information that a cell phone was used in the crime under investigation, nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant’s cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.”

However, the SJC held the police did not have probable cause to search the defendant’s phone, explaining that the information known by police, “without more, does not satisfy the nexus requirement. Information establishing that a person may be guilty of a crime does not necessarily constitute probable cause to search or seize the person’s cellular telephone, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence.”

Determining when a sufficient nexus between a crime and a cell phone exists will always be decided on the particular facts of the case, and there is no hard and fast rule about what constitutes a sufficient nexus in a particular case. Here are some case examples.

In Commonwealth v. Fulgiam, 477 Mass 20, 34 (M.A. 2017), the SJC found no sufficient nexus even where multiple calls and text messages between a defendant and a murder victim on the day of the killing were described in the warrant; the SJC held there was no probable cause to search the contents of the defendant’s cell phone. 

On the other hand, probable cause to search a phone possessed by a defendant existed where “the police encountered the defendant sleeping in the stairwell with the cell phone on the floor near his head, they had information that the defendant and victim had been together on the day of the murder, and that [a witness] had recently overheard the defendant confessing to the murder to an unidentified person on a cell phone.” Commonwealth v. Cruzado, 480 Mass. 275, 282 (2018).

And in another case, probable cause was established to search nine cell phones in a defendant’s apartment when “police had detailed and specific knowledge,” including from wiretaps, that the defendant used a cell phone to set up drug transactions, and he was talking on a cell phone when he arrived in a parking lot for a drug transaction.  Commonwealth v. Perkins, 478 Mass. 97, 105-106, 82 N.E.3d 1024 (2017).

A review of these cases, and others, suggest that the SJC and the lower courts in Massachusetts are still navigating the nuances of the ‘nexus’ requirement in the context of probable cause to search a cell phone. As our lives become more and more inter-dependent on the use of our mobile devices, the concerns about digital privacy will likely produce more and more litigation, and courts will continue to grapple with deciding just how much evidence is enough to meet the demanding requirements of the Fourth Amendment before allowing the police to search through our digital devices. 

Because the SJC has noted that the Massachusetts Declaration of Rights, art. 14, “might provide greater protection against search and seizure than the Fourth Amendment does,” good lawyering may be able to get you a better outcome than you would get by relying on the Fourth Amendment alone. If you have questions about whether the police were justified in searching your cell phone, you should speak to an attorney right away about the facts of your particular case.

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