Opinion
19-P-77
04-01-2020
COMMONWEALTH v. Teddy BROWAR-JARUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant was convicted of twenty-five counts of secretly photographing or videotaping a person in a state of nudity, in violation of G. L. c. 272, § 105 (b ) ; one count of attempting to commit the same crime, in violation of G. L. c. 274, § 6 ; and eleven counts of unlawful wiretapping, in violation of G. L. c. 272, § 99 C 1. On appeal, the defendant contends that the motion judge erred in denying: (1) the defendant's motion to suppress evidence seized from his cell phones, tablet computer, and other electronic devices; and (2) his request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to challenge the validity of the search warrant. We affirm.
Background. We summarize the facts set forth in the August 18, 2015, search warrant affidavit executed by Detective Sergeant Scott Whalen of the Somerville Police Department. K.S. and her boyfriend, A.B., woke up in K.S.'s bedroom at around 6:00 A.M. to the sound of an alarm they did not recognize. The source of the noise was an LG cell phone that had been placed on the bookshelf in K.S.'s bedroom. Its camera lens was pointed towards her bed. The cell phone did not belong to K.S. or A.B. When they illuminated the cell phone screen, they saw the name "Teddy." Teddy is the defendant, and he was K.S.'s housemate at the time.
Shortly thereafter, A.B. confronted the defendant, who acknowledged that the cell phone belonged to him. He gave the cell phone password to A.B. Upon unlocking the cell phone, A.B. saw that it was set to the camera function. He also observed that it was set to airplane mode. A.B. then accessed the "Gallery" application on the cell phone, which stores photos and videos. He viewed the most recent photos and videos stored on the cell phone, and nothing looked out of the ordinary. A.B. took a photo of the screen on his own cell phone. A.B. then told the defendant that he was keeping the cell phone. K.S. and A.B. ultimately turned the cell phone over to the Somerville Police Department. Prior to that, A.B. observed the cell phone restart itself, after which the screen looked slightly different than when he originally found the cell phone.
Whalen applied for and was issued two search warrants. The first warrant authorized Somerville police officers to search the defendant's LG cell phone that had been discovered in K.S.'s room. The second search warrant authorized the police to search the defendant's residence and storage areas, and to seize the defendant's tablet computer, cell phones, and other enumerated electronic devices. The defendant challenges only this second search warrant (hereinafter "search warrant").
In support of the application for the search warrant, Whalen stated in his affidavit that:
"I have ... personal knowledge that cell phones like the LG are capable of being ‘backed up’ and/or synced to other devices and/or computers. I know[,] based on my training and experience[,] that users of devices such as the LG [c]ell [p]hone can sync their devices so that the data received and sent on one device will be synced to the other device. In addition, users of cell phones like the LG are able to connect the phone to their computers and backup the contents of their cell phones to their computers. Furthermore, [I know] that these phones are capable of broadcasting the phone screen of the phone to other devices, phones[,] and televisions using the [W]i[F]i and/or cellular data. By doing so[,] a person would be able to watch live and/or record what is being shown on the remote device[,] like another cell phone[,] by using an application on the phone and the other remote device used to retrieve the video signal."
On May 23, 2017, the defendant filed a motion to suppress the evidence seized from his residence pursuant to the search warrant. He subsequently filed a supplement to his motion in which he requested a Franks hearing. The defendant alleged that Whalen made two material misrepresentations of fact in his affidavit in support of the search warrant, and that such misrepresentations either were deliberate falsehoods, or they "constitute[d] a reckless disregard of the truth." The allegedly false statements were that the cell phone appeared to be connected to a wireless network in the defendant's residence, and based on that, the cell phone's data could be backed up, synced, and viewed on other electronic devices. The defendant's motions were supported by affidavits from Lars E. Daniels, an expert in the field of cell phone and computer forensics.
The motion judge denied the defendant's motion to suppress and his request for a Franks hearing. The judge stated that it was unclear from the record whether the challenged statements were actually false, but she credited Whalen's supplemental affidavit explaining the factual bases for the statements in his affidavit in support of his application for the search warrant. The judge determined that the defendant had not satisfied his burden of making a substantial showing that any purportedly false statements were made knowingly and intentionally, or with reckless disregard for the truth. The judge also concluded that, even absent the challenged statements, the facts were sufficient to establish probable cause for the issuance of the search warrant for the defendant's cell phones, tablet computer, and other electronic devices. The present appeal ensued.
Discussion. 1. Franks hearing. The defendant contends that the motion judge should have allowed his motion for a hearing pursuant to Franks, 438 U.S. at 155-156. He argues that he made a "substantial preliminary showing that [Whalen made] a false statement knowingly and intentionally, or with reckless disregard for the truth," and that this statement was included in the affidavit in support of the warrant. Id. at 155. As such, the defendant asserts that he should have been afforded the opportunity to impeach Whalen's veracity.
Affidavits accompanying an application for a search warrant are presumptively valid. Franks, 438 U.S. at 171. In Franks, the Supreme Court held that:
"[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request."
Id. at 155-156. We review a judge's determination as to the necessity of a Franks hearing for an abuse of discretion. See Commonwealth v. Perez, 87 Mass. App. Ct. 278, 285 (2015) ; Commonwealth v. Davis, 83 Mass. App. Ct. 484, 492-493 (2013).
Here, the judge found Whalen's affidavits to be credible. In his search warrant affidavit, Whalen stated that, based on personal knowledge, "[cell] phones like the LG are capable of being ‘backed up’ and/or synced to other devices using the wifi and/or cellular data ...." The defendant's expert opined that Whalen mistook the location services icon for the Wi-Fi connectivity icon. Whalen responded by explaining his conclusion that the defendant's phone was connected to a wireless network.
Even assuming that Daniels is correct in his assertion that Whalen misunderstood a cell phone icon, there is no indication in the record that Whalen made any "false statement knowingly and intentionally, or with reckless disregard for the truth." Franks, 438 U.S. at 155. See Commonwealth v. Nine Hundred & Ninety-Two Dollars, 383 Mass. 764, 774-775 (1981) (although affidavit in support of search warrant included factual errors, no Franks hearing required where defendant did not allege affiant knew statements were false or show that affiant had reason to doubt their truth). Because the defendant failed to make the necessary preliminary showing, we conclude that the judge acted within her discretion when she denied the defendant's request for a Franks hearing.
2. Denial of motion to suppress. The defendant argues that the motion judge erred in finding that even absent the two challenged statements, there was probable cause to issue the search warrant. He contends that Whalen's affidavit failed to establish a nexus between the cell phone discovered in K.S.'s bedroom and the other electronic devices in the defendant's residence. We disagree.
For a search warrant to be valid, its issuance must be based on probable cause. See Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). "Probable cause means a ‘substantial basis’ to conclude that ‘the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.’ " Commonwealth v. Holley, 478 Mass. 508, 521 (2017), quoting Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009). For an electronic device, this means that the contents of the device will produce such evidence. See Commonwealth v. Mack, 482 Mass. 311, 320 (2019) (discussing affidavit in support of search warrant for cell phone). "All reasonable inferences which may be drawn from the information in the affidavit may also be considered as to whether probable cause has been established" (quotation and citation omitted). Holley, 478 Mass. at 521-522. "The question whether there was probable cause to issue the search warrant is a question of law that we review de novo ... in a commonsense and realistic manner." Perkins, 478 Mass. at 102.
Based on our review of the search warrant affidavit, the motion judge properly denied the defendant's motion to suppress. The affidavit established a nexus between the instrumentality of the crime -- the cell phone -- and the defendant's other electronic devices. The defendant's cell phone was found in K.S.'s room, pointed at her bed with the camera function open when it was discovered, and because the cell phone seemingly did not store photographs or videos of K.S. or A.B. and had wireless and cellular data capabilities and the defendant had several other electronic devices with wireless and cellular capabilities in the apartment, it was reasonable to infer that the defendant's secret recordings were stored remotely on another electronic device owned by him. Accordingly, there was probable cause for the issuance of the search warrant.
Judgments affirmed.