Commonwealth v. White

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SJC-11917

COMMONWEALTH vs. ONYX WHITE.

Suffolk. December 8, 2015. - September 28, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1

Cellular Telephone. Constitutional Law, Search and seizure,
Probable cause. Probable Cause. Search and Seizure,
Probable cause, Warrant, Fruits of illegal search.
Practice, Criminal, Warrant.

Indictment found and returned in the Superior Court
Department on May 19, 2010.

A pretrial motion to suppress evidence was heard by Patrick
F. Brady, J.

An application for leave to file an interlocutory appeal
was allowed by Cordy, J., in the Supreme Judicial Court for the
county of Suffolk, and the appeal was reported by him.

Cailin M. Campbell, Assistant District Attorney (David J.
Fredette with her) for the Commonwealth.
J.W. Carney, Jr. (Danya F. Fullerton with him) for the
defendant.
The following submitted briefs for amici curiae:

1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
 2

David A.F. Lewis, Alexis L. Shapiro, & Christine Dieter for
Massachusetts Association of Criminal Defense Lawyers.
Vivek Krishnamurthy & Andrew J. Sellars for American Civil
Liberties Union of Massachusetts.
Alan Butler & John Tran, of the District of Columbia, Marc
Rotenberg, & Caitriona Fitzgerald for Electronic Privacy
Information Center.
Afton M. Templin for Committee for Public Counsel Services.

LENK, J. In February, 2010, a Boston police detective

investigating an armed robbery and shooting at a convenience

store went to the defendant's high school, after suspicion had

focused on the defendant as one of the three perpetrators. The

detective spoke with a school administrator, who informed him

that, pursuant to school policy, she was holding the defendant's

cellular telephone. After consultation with his supervisor, the

detective seized the telephone to prevent the defendant from

retrieving it and removing evidence or destroying the device.

At that point, however, the detective had no information that

the cellular telephone had been used to plan, commit, or cover

up the crime, or that it contained any evidence of the crime.

From experience, the detective was aware, however, that cellular

telephones frequently are used when an offense involves multiple

perpetrators. Sixty-eight days later, having held -- but not

searched -- the telephone throughout that period, police

obtained a warrant to search it on the basis of information that

had emerged after the seizure. A forensic search yielded

evidence relevant to the investigation, which the defendant then
 3

moved to suppress on the ground that the seizure was not

supported by probable cause. A judge of the Superior Court

allowed the defendant's motion, and the Commonwealth appealed.

In considering the Commonwealth's appeal, we confront two

issues under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights. First, we consider whether the seizure was supported by

probable cause, and, in particular, whether the detective's

opinion that the device was likely to contain evidence, without

more, provided probable cause allowing him to seize it. We then

examine whether, under the circumstances here, it was reasonable

for police to wait almost ten weeks after seizing the device

before applying for a warrant to search it.

We conclude that probable cause to search or seize a

person's cellular telephone may not be based solely on an

officer's opinion that the device is likely to contain evidence

of the crime under investigation and, accordingly, that the

seizure here was not supported by probable cause. We separately

conclude also that, in these circumstances, the Commonwealth has

not, in any event, met its burden of demonstrating that the

delay of sixty-eight days between the seizure and the

application for a search warrant was reasonable. We therefore

affirm the Superior Court judge's order allowing the defendant's

motion to suppress.
 4

1. Background. The following is drawn both from the

motion judge's findings and from uncontested facts in the record

implicitly credited by him, with certain details reserved for

later discussion. See Commonwealth v. Jones-Pannell, 472 Mass.

429, 436 (2015), citing Commonwealth v. Isaiah I., 448 Mass.

334, 337 (2007), S.C., 450 Mass. 818 (2008).

On the morning of February 21, 2010, two men entered a

convenience store in the Roxbury section of Boston. One

brandished a gun and demanded money from the clerk, while the

other, apparently without a firearm, walked to the rear of the

store and demanded money from the victim. As the victim tried

to flee towards the front of the store, he was shot and later

died. The two men then left the store and, along with a third

male who had been waiting outside, fled the scene.

The next day, the defendant, then sixteen years old, told

his mother that he had participated in a robbery, along with his

friend "Martin," and that someone had been shot. The defendant

also stated that he had not believed that anyone had been

killed, and that he had been surprised to learn of the victim's

death from that morning's newspaper. Later that day, the

defendant's mother called a Boston police officer whom she knew

and asked him to visit her at home.

The officer came to the house the next day, February 23,

2010, and the mother told him about her son's asserted
 5

involvement in the robbery. She also said that, earlier that

day, the defendant had come to her house to wash his clothes,

and had left them in her dryer. Later on the same day, she gave

consent to police detectives to search the dryer and to seize

the clothing; one of the detectives observed that it resembled

clothing worn by one of the perpetrators of a similar

convenience store robbery one and one-half months earlier. Also

on February 23, 2010, detectives obtained consent from the

defendant's grandmother, with whom the defendant lived, to

search his bedroom. There, detectives saw a jacket similar to

one worn by one of the perpetrators of the robbery-homicide on

February 21, 2010. The jacket subsequently was seized pursuant

to a search warrant.

The following day, February 24, 2010, the defendant arrived

late to his high school. Pursuant to the school's usual

practice for all arriving students,2 he was searched and his

"pay-as-you-go"3 Samsung/Sprint cellular telephone, equipped with

a camera, was confiscated. That afternoon, a detective

investigating the robbery-homicide met with one of the school's

2
School policy required that all arriving students be
searched and "all electronic equipment [be] taken by school
authorities and held for the students in individual bins or
slots in a locked cabinet."
3
The user of a "pay-as-you-go" cellular telephone pays the
telephone carrier a certain amount of money in advance, which is
drawn down as the user makes calls or sends text messages.
 6

administrators. The administrator told the detective that the

defendant had become "agitated" earlier that day and had left

the school without picking up his cellular telephone. The

detective notified a supervisor that the school was holding the

defendant's telephone. Neither the detective nor the supervisor

had, at that point, any information that a cellular telephone

contained evidence of the robbery and shooting, but they were

aware, based on their experience, that such devices often

contained useful information in cases involving multiple

perpetrators.4 The supervisor instructed the detective to seize

the device without a warrant apparently on the basis of his

belief that, if the defendant retrieved the device before a

warrant could be obtained, he would destroy the device or erase

relevant evidence. Thereafter, the device was transported to

the police station, where it was logged as evidence and placed

in a special bag designed "to prevent remote intrusion." Police

did not search the device.

The defendant was arrested later the same day and charged

with murder. In the weeks that followed, detectives assigned to

the case applied for and executed five search warrants,

interviewed numerous witnesses, assisted with the grand jury

4
Such information may include perpetrators' contact
information and logs of their communications with each other.
 7

investigation, and also were assigned to work on two other

homicide investigations.

On April 21, 2010, a witness told police that the defendant

had participated in multiple robberies similar to the one on

February 21, 2010, and that, following one of those other

robberies, "the defendant took a photograph of the proceeds of

[that other] robbery with his cell phone equipped with a

camera." On May 3, 2010, a detective applied for a warrant to

search the defendant's cellular telephone, which was still in

police possession, for, among other things, photographs related

to the robbery.5 The application was allowed, and police

thereafter searched for and seized the aforementioned

photograph.6

On May 19, 2010, a Suffolk County grand jury returned an

indictment against the defendant charging him with murder in the

first degree. On May 1, 2014, the defendant filed a motion to

suppress the evidence recovered from the cellular telephone.
5
The warrant also sought permission to search for the
"subscriber telephone number"; "contact list, address book,
calendar, schedules, and date book entries"; "group" and "speed
dial" lists; "phone configuration information settings";
"incoming, outgoing, draft, sent and deleted text messages";
"saved, opened, and unopened voice mail messages"; "saved,
opened, unopened, draft, sent and deleted electronic mail
messages"; "mobile instant message chat logs, data, and contact
information"; "any saved and[/]or stored, downloaded, or
uploaded photographs"; and "any message alerts or WEB history."
6
There is no indication whether any other evidence was
obtained from the device.
 8

Concluding that the seizure was not supported by probable cause,

a Superior Court judge allowed the motion. He also noted that

the "delay from February 24 to May 3 [approximately ten weeks]

in obtaining the search warrant is . . . troubling." The

Commonwealth filed a motion to reconsider and to reopen the

evidence. The judge allowed the motion, conducted an

evidentiary hearing, and affirmed the order of suppression. The

Commonwealth filed an application for leave to pursue

interlocutory review in the county court, and a single justice

denied the motion. The single justice then allowed the

Commonwealth's motion to reconsider, and ordered the appeal to

proceed in this court.

2. Discussion. The Commonwealth contends that the motion

judge erred because both the seizure of the cellular telephone

and the subsequent search were proper under the Fourth Amendment

and art. 14.

a. Standard of review. "In reviewing a ruling on a motion

to suppress, we accept the judge's subsidiary findings of fact

absent clear error 'but conduct an independent review of his

ultimate findings and conclusions of law.' . . . We [therefore]

'make an independent determination of the correctness of the

judge's application of constitutional principles to the facts as

found'" (citations omitted). Commonwealth v. Hernandez, 473

Mass. 379, 382-383 (2015).
 9

b. Seizure. The Fourth Amendment and art. 14 provide

"that every person has the right to be secure against

unreasonable searches and seizures" of his or her possessions.

Commonwealth v. Porter P., 456 Mass. 254, 260 (2010). If the

Commonwealth conducts a search or seizure without first

obtaining a warrant, the search or seizure is "presumptively

unreasonable" and, therefore, presumptively unconstitutional.

Commonwealth v. Craan, 469 Mass. 24, 28 (2014). See

Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162 (1991).

The search or seizure nonetheless may be justified where the

Commonwealth can "show that [it] 'falls within a narrow class of

permissible exceptions' to the warrant requirement." Craan,

supra, quoting Commonwealth v. Perkins, 465 Mass. 600, 603

(2013).

One such exception is where there are "'exigent

circumstances' that make obtaining a warrant impracticable."

Commonwealth v. Washington, 449 Mass. 476, 480 (2007). To

justify a search or seizure on that basis, the Commonwealth

bears "a heavy burden" to show (1) that the search or seizure

was supported by "probable cause," such that a warrant would

have issued had one been sought,7 and (2) that there

7
Thus, if police seize property without a warrant because
they believe it to contain evidence of a crime, they must
already have probable cause supporting the issuance of a warrant
to search that property. See, e.g., Illinois v. McArthur, 531
 10

"exist[ed] . . . exigent circumstances" that made obtaining a

warrant impracticable. See Commonwealth v. Tyree, 455

Mass. 676, 684 (2010). This showing must be based on

information known to police at the time, and not on knowledge

acquired after the fact. See Commonwealth v. Antobenedetto, 366

Mass. 51, 66 (1974); Commonwealth v. Holloway, 81 Mass. App. Ct.

910, 911 (2012).

Here, the Commonwealth argues that, based on information

then known to police, the seizure of the defendant's cellular

telephone was supported by probable cause, and obtaining a

warrant was impracticable because of exigent circumstances. We

turn first to the Commonwealth's argument concerning probable

cause.

Before police may search or seize any item as evidence,

they must have "a substantial basis for concluding that" the

item searched or seized contains "evidence connected to the

crime" under investigation (citation omitted). Commonwealth v.

Escalera, 462 Mass. 636, 642 (2012). In other words, the

government must "demonstrate[] . . . a 'nexus' between the crime

U.S. 326, 331-333 (2001) (only if police already have probable
cause for search may they temporarily seize dwelling for period
required to obtain warrant); Commonwealth v. DeJesus, 439 Mass.
616, 619 & n.2 (2003) (same); 3 W.R. LaFave, Search and Seizure
§ 6.5(c), at 134 (5th ed. 2012) (officers impounding property
without warrant must "have probable cause to search the
impounded property at the time the impounding is imposed"
[citation omitted]).
 11

alleged" and the article to be searched or seized (citation

omitted). See Commonwealth v. Matias, 440 Mass. 787, 794

(2004). "The nexus 'need not be based on direct

observation.' . . . It may be found in the type of crime, the

nature of the [evidence] sought, and normal inferences as to

where such" evidence may be found. Id., quoting Commonwealth v.

Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983).

While police "need not make a showing beyond a reasonable doubt,

. . . '[s]trong reason to suspect is not adequate.'"

Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), quoting

Commonwealth v. Upton, 394 Mass. 363, 370 (1985).

"The experience and expertise of a police officer may be

considered as a factor in the [nexus] determination."

Commonwealth v. West, 55 Mass. App. Ct. 467, 470 (2002).

Nonetheless, where the location of the search or seizure is a

computer-like device, such as a cellular telephone,8 the opinions

8
Based on the warrant application, the cellular telephone
in question here appears to have had various capabilities
associated with modern computers, including the ability to do
the following: browse the Internet and keep a log of sites
visited; send, receive, and store electronic mail messages;
support instant messaging; create an address book and calendar;
and take and store photographs. See Commonwealth v. Phifer, 463
Mass. 790, 797 (2012) ("today's cellular telephones are
essentially computers"); United v. Flores-Lopez, 670 F.3d 803,
805-806 (7th Cir. 2012) ("a modern cell phone [should be treated
as] a computer" even where "the record does not indicate the
brand, model, or year of the defendant's cell phone, so we do
not know how dumb or smart it is").
 12

of the investigating officers do "not, alone, furnish the

requisite nexus between the criminal activity and the [device]

to be searched" or seized. Commonwealth v. Anthony, 451 Mass.

59, 72 (2008) (computer search). See Commonwealth v. Kenney,

449 Mass. 840, 846 (2007) ("We do not rely on [the officer]'s

conclusion as to what the facts in the affidavit mean to him as

'a talismanic formula' . . . to provide probable cause [to

search computer] where evidence to support such a finding is

otherwise lacking" [citation omitted]).

Rather, police first must obtain information that

establishes the existence of some "particularized evidence"

related to the crime. Commonwealth v. Dorelas, 473 Mass. 496,

502 (2016). 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. Id.

at 498, 503 (police knew that defendant had been "receiving

threatening [tele]phone calls and threatening text messages on

his [tele]phone"; probable cause to search telephone for that

"particularized evidence").9

9
See Commonwealth v. Kaupp, 453 Mass. 102, 107-114 (2009)
(police knew that defendant possessed electronic copies of
pirated movies, but not that he had child pornography; officer
averred that movies and pornography often stored on personal
computer; probable cause only for pirated movies, as police had
prior information establishing their existence); Commonwealth v.
 13

Here, 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.

Anthony, 451 Mass. 59, 70-71 (2008) (police knew that defendant
collected and transmitted illicit images; probable cause to
search computer because detective "opined . . . that individuals
who collect [such images] tend to keep this information in
various media forms, including computers"); Commonwealth v.
Kenney, 449 Mass. 840, 845-846 (2007) (same); Commonwealth v.
McDermott, 448 Mass. 750, 764-766, cert. denied, 552 U.S. 910
(2007) ("defendant had asked several coworkers to witness the
execution of his will just days before the shootings"; probable
cause to search computer for will).
 14

This, 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

(citation omitted). Commonwealth v. Pina, 453 Mass. 438, 441

(2009). Rather, 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.10

The Commonwealth argues, however, that the detectives

possessed the functional equivalent of such information in the

form of the commonsense notion that "cellular telephones

are . . . necessary to social interactions." See Commonwealth

v. Augustine, 467 Mass. 230, 245-246 (2014), S.C., 470 Mass. 837

(2015). On this basis, police inferred that, if the defendant

planned and committed multiple crimes with two coventurers, it

was likely he did so, at least in part, using his cellular

10
Of course, if the device is not seized as evidence, but,
for example, is temporarily impounded following an inventory
search of an arrestee, this requirement has no relevance. See
Illinois v. Lafayette, 462 U.S. 640, 643 (1983) ("justification
for such searches [and seizures] does not rest on probable
cause").
 15

telephone, and that evidence of these communications would be

found on the device.

It may well be the case 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," including, presumably,

communications with their coventurers. See Riley v. California,

134 S. Ct. 2473, 2490 (2014). Nonetheless, the Commonwealth's

argument is unavailing. While probable cause may be based in

part on police expertise or on "the practical considerations of

everyday life," see Kaupp, 453 Mass. at 111, such considerations

do "not, alone, furnish the requisite nexus between the criminal

activity and the places to be searched" or seized. Anthony, 451

Mass. at 72. See Pina, 453 Mass. at 441-442 (officer's

practical experience insufficient basis for probable cause where

no "particularized information").

Moreover, the argument simply "proves too much." See

Coolidge v. New Hampshire, 403 U.S. 443, 480 (1971) (rejecting

Fourth Amendment argument that would sweep too broadly). In

essence, the Commonwealth is suggesting that there exists a

nexus between a suspect's criminal acts and his or her cellular

telephone whenever there is probable cause that the suspect was

involved in an offense, accompanied by an officer's averment

that, given the type of crime under investigation, the device

likely would contain evidence. If this were sufficient,
 16

however, 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. See Riley, 134

S. Ct. at 2492 (only "inexperienced or unimaginative law

enforcement officer . . . could not come up with several reasons

to suppose evidence of just about any crime could be found on a

cell phone"). We cannot accept such a result, which is

inconsistent with our admonition that "individuals have

significant privacy interests at stake in their [cellular

telephones] and that the probable cause requirement . . . under

both the Fourth Amendment . . . and art. 14 . . . [must] serve[]

to protect these interests." See Dorelas, 473 Mass. at 502

n.11.11

11
These interests exist even where, as here, the device
does not appear to have all the capabilities of an upmarket
"smart phone." See Flores-Lopez, 670 F.3d at 806 ("Even the
dumbest of modern cell phones gives the user access to large
stores of information"; "pay-as-you-go" cellular telephone "sold
by Walgreens for $14.99, includes a camera, MMS [multimedia
messaging service] picture messaging for sending and receiving
photos, video, etc., mobile web access, text messaging,
voicemail, call waiting, a voice recorder, and a phonebook that
can hold 1000 entries"). Were the device to possess the
enhanced capabilities of a "smart phone," that would merely
implicate even greater privacy concerns. See Riley v.
California, 134 S. Ct. 2473, 2491 (2014) ("cell phone search
would typically expose to the government far more than the most
exhaustive search of a house"); United States v. Wurie, 728 F.3d
1, 8 (1st Cir. 2013), aff'd sub nom. Riley v. California, supra
(cellular telephones contain "the kind of information one would
previously have stored in one's home").
 17

The detectives here lacked any information establishing the

existence of evidence likely to be found on the defendant's

cellular telephone. We conclude, accordingly, that they lacked

the nexus required for probable cause to seize that device.

Lacking probable cause, the seizure was by definition improper,12

and we need not address whether there were exigent circumstances

justifying the decision to do so without a warrant.

c. Search. Here, police eventually obtained a search

warrant and searched the defendant's cellular telephone for

evidence of the robbery-homicide. Because the device initially

was seized without a warrant, evidence recovered as a result of

the search is not admissible unless the Commonwealth meets its

burden of demonstrating that the search was reasonable.13 See

Craan, 469 Mass. at 28.

12
The Commonwealth suggests that the seizure nonetheless
was proper under the plain view doctrine. See Commonwealth v.
Perkins, 465 Mass. 600, 603-604 (2013) ("Under [the plain view]
doctrine, if police are lawfully in a position from which they
[inadvertently encounter] an object, if its incriminating
character is immediately apparent, and if the officers have a
lawful right of access to the object, they may seize it without
a warrant"). This argument fails, at a minimum, because the
warrantless seizure of evidence found in plain view is proper
only where "there is probable cause to associate the property
with criminal activity." Commonwealth v. Balicki, 436 Mass. 1,
8 n.10 (2002), quoting Payton v. New York, 445 U.S. 573, 587
(1980). Here, as discussed, there was no such probable cause.
13
The fact that, following the warrantless seizure, a
search warrant was obtained does not shift the burden of this
inquiry to the defendant. See State v. Johnson, 335 Or. 511,
521 (2003) (burden to prove reasonableness remains with State
 18

The Commonwealth has not met this burden for two

independent reasons. First, the Commonwealth has not shown that

the delay between the seizure and the filing of the application

for a search warrant was reasonable.14 Second, the search was

the fruit of a seizure made without probable cause. As a

result, any evidence obtained from the search must be

suppressed.

i. Length of delay. Police may retain an item seized

without a warrant for "the relatively short period of time

needed . . . to obtain a search warrant," but must release the

item if a warrant is not obtained within that period.

Commonwealth v. Gentile, 437 Mass. 569, 573 (2002), quoting

Commonwealth v. Taylor, 426 Mass. 189, 195 (1997). For this

reason, once a warrantless seizure has been executed, the police

"must make it a priority to secure a search warrant that

complies with the Fourth Amendment. This will entail diligent

where evidence seized without warrant even though search warrant
ultimately obtained). Cf. Commonwealth v. Midi, 46 Mass. App.
Ct. 591, 595 (1999) (where "evidence derived from prior
illegality," "burden [on] the government to prove that the taint
was attenuated enough to allow admission").
14
The Commonwealth contends that the issue of the delay is
not properly before us because the defendant did not raise it in
the Superior Court. The issue of the delay was noted in the
motion judge's first memorandum of decision, however, following
which an evidentiary hearing was conducted at the Commonwealth's
request. At that hearing, it was the Commonwealth's burden to
present evidence establishing the reasonableness of the delay.
Based on the evidence introduced, we are in a position to assess
whether the Commonwealth met its burden.
 19

work to present a warrant application to the judicial officer at

the earliest reasonable time." See United States v. Burgard,

675 F.3d 1029, 1035 (7th Cir.), cert. denied, 133 S. Ct. 183

(2012). If the police fail to do so, the seizure, even if

"reasonable at its inception because based upon probable cause,"

"may become unreasonable as a result of its duration." Segura

v. United States, 468 U.S. 796, 812 (1984). See Burgard, supra

at 1032 ("When officers fail to seek a search warrant, at some

point the delay becomes unreasonable and is actionable under the

Fourth Amendment").

There is "no bright line past which a delay becomes

unreasonable." See Burgard, supra at 1033. Rather, the

reasonableness of the delay is determined by "balanc[ing] the

nature and quality of the intrusion on the individual's Fourth

Amendment interests against the importance of the governmental

interests alleged to justify the intrusion." United States v.

Place, 462 U.S. 696, 703 (1983). See Kaupp, 453 Mass. at 106.

"[C]ourts have identified several factors highly relevant to

this inquiry," see United States v. Laist, 702 F.3d 608, 613

(11th Cir. 2012), among them, and of particular importance here,

whether police acted "diligen[tly] in obtaining the warrant."

Id. at 614.

The Commonwealth argues that the delay of sixty-eight days

was justified by the complexity of the investigation. During
 20

the period between the seizure of the cellular telephone and the

filing of the application for a search warrant, the detectives

were involved in "interviews of witnesses, an ongoing grand jury

investigation, and the application for and execution of [five]

other search warrants." Where an investigation is highly

complex, "courts 'can almost always imagine some alternative

means by which the objectives of the police might have been

accomplished,' but that does not necessarily mean that the

police conduct was unreasonable" (citation omitted). See

Burgard, 675 F.3d at 1034. In addition, the Commonwealth notes

that, during the period immediately following the seizure in

question, the team of detectives assigned to this case

apparently also was assigned to two other homicide

investigations. See Laist, 702 F.3d at 614 ("we consider . . .

whether overriding circumstances arose, necessitating the

diversion of law enforcement personnel to another case"

[citation omitted]). Because of the detectives'

responsibilities in this and other cases, there existed, in the

Commonwealth's view, an "importan[t] . . . governmental

interest[]," see Place, 462 U.S. at 703, in delaying the

application for a search warrant until the police had time to

focus properly on that task.

Although the information to which the Commonwealth points

might go some way in explaining the reasons for the delay, it
 21

does not suffice to meet the Commonwealth's burden of

demonstrating that the delay was reasonable. We do not question

that the detectives diligently performed their difficult jobs.

The relevant inquiry, however, does not concern the detectives'

general diligence in performing their duties, but, rather,

whether they acted "diligen[tly] in obtaining the warrant."

Laist, 703 F.3d at 614. Once police seized the defendant's

cellular telephone without a warrant, they were required to

"make it a priority" to acquire one. See Burgard, 675 F.3d at

1035.

Here, it does not appear that they did so, having instead

focused on, among other things, applying for and executing five

other search warrants related to this case. There also is no

evidence that the complexity of the warrant application itself

caused the approximately ten-week delay, or that the detectives'

responsibility for other cases prevented them from working on

this one. Contrast Burgard, supra at 1034-1035 (six-day delay

reasonable where officer called away to work on another case and

where he requested help from others, including from assistant

United States attorney, to draft affidavit). On this record,

the Commonwealth has not shown that the prolonged delay

following the warrantless seizure was reasonable.

The Commonwealth contends, however, that, even if police

had a relatively minimal interest in waiting to apply for a
 22

warrant, their actions were proper because the defendant did not

exhibit a significant "possessory interest" in his cellular

telephone. See Laist, 702 F.3d at 613 (courts consider

"significance of the interference with the person's possessory

interest"). In particular, the Commonwealth notes that the

cellular telephone at issue was a "pay-as-you-go" device, that

the defendant possessed another such device, and that the

defendant did not request that the device be returned.

This argument does not carry the day. Possessory interest

is only one factor to be considered in the over-all

reasonableness calculus.15 See id. at 613-614. Even in

circumstances where a defendant's possessory interest is weak, a

delay may be unreasonable if police do not act diligently in

applying for a warrant. This is so in part because unreasonable

delay "affects [not] only the person's possessory interest[],"

but also the ability of the judiciary "promptly [to] evaluat[e]

and correct[] improper seizures." See Burgard, 675 F.3d at

1033, quoting Segura, 468 U.S. at 806.

Because the Commonwealth has not demonstrated that the

police acted diligently in applying for a warrant, we conclude

15
We also do not share the view that the defendant's
possessory interest was lessened because he owned a "pay-as-you-
go" cellular telephone. See Pew Internet & American Life
Project, Teens and Mobile Phones, at 20 (Apr. 20, 2010) (such
devices common among people who cannot afford subscription
plans).
 23

that it has not met its burden to show that the delay of sixty-

eight days from the time the device was seized to the date of

the search warrant application was reasonable.

ii. Fruit of unreasonable seizure. Even if the delay were

reasonable, any evidence recovered from the telephone would

nonetheless require suppression on the ground that it was the

fruit of an unlawful seizure.

"The general rule is that evidence is to be excluded if it

is found to be the 'fruit' of a police officer's unlawful

actions."16 Commonwealth v. Balicki, 436 Mass. 1, 15 (2002),

citing Wong Sun v. United States, 371 U.S. 471, 484 (1963).

Where an item is seized without probable cause, the item and its

"fruits" may not be introduced in evidence. See Commonwealth v.

Keefner, 461 Mass. 507, 518 (2012), quoting Wong Sun, supra at

488 (evidence from search without probable cause, including

"cellular telephone" and "all text messages" on telephone, "must

be suppressed under the 'fruit of the poisonous tree'

doctrine"); Upton, 394 Mass. at 364 ("exclusionary rule

requir[es] the exclusion of evidence seized without a showing of

probable cause"). That probable cause for a seizure emerges at

16
Although suppression may not always be required where
evidence was seized unlawfully, the Commonwealth has not argued
that any recognized exception is applicable here. See, e.g.,
DeJesus, 439 Mass. at 624 (independent source doctrine);
Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997) (inevitable
discovery doctrine).
 24

some point after the seizure occurred does not alter this

conclusion. See, e.g., Upton, supra at 367-368; Commonwealth v.

Wedderburn, 36 Mass. App. Ct. 558, 563 (1994). Cf. United

States v. Reed, 443 F.3d 600, 603 (7th Cir.), cert. denied, 549

U.S. 874 (2006). Here, because the cellular telephone was

seized unlawfully, without probable cause, any evidence

recovered from it must be suppressed.

Order allowing motion
to suppress affirmed.