Opinion
No. 15–P–1584.
12-02-2016
COMMONWEALTH v. Robert WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Before us is the defendant's interlocutory appeal from the denial of his motion to suppress evidence discovered on his cellular telephone (iPhone), which was seized without a warrant. We reject the defendant's argument that the seizure was not supported by probable cause. Because exigent circumstances justified the warrantless seizure, we affirm.
Background. The motion judge found the following pertinent facts. Shortly after 5:30 P.M. on November 19, 2012, police responded to a shooting in the Brighton section of Boston and found the victim, Leroy Cooper, unresponsive. The victim had been in a car with two men, Athanasios Paloukos and Sadar Yaraghi, who told police that the three were engaged in a transaction to sell marijuana. The victim had made and received calls on his cellular telephone (cell phone) while sitting in the front passenger seat during the drive to Brighton in order to arrange the deal. The three men picked up two young men outside a housing development. One of the men (suspect one) sat in the middle back seat, and the other (suspect two) sat behind the front passenger seat. Marijuana was handed to one of the suspects, and both then exited the vehicle. After a dispute about payment for the marijuana, suspect two pulled out a gun and fatally shot the victim. Both suspects then fled on foot.
The victim's cell phone showed that he had exchanged text messages, arranging a meeting place, with a particular telephone number with an 857 area code (857 number) in the hours preceding the shooting. The victim had also answered a call from the 857 number just minutes before the shooting. The 857 number was associated with an individual named Patrick Malone, who had given the 857 number as his telephone number when booked for an unrelated crime two weeks before the shooting. Malone, who was wearing a global positioning system tracking device, was in the area of the shooting when it occurred. The 857 number was registered to a "Warren Sapp" (the name of a former professional football player); service to the cell phone associated with that number was terminated shortly after 6 P.M. on the day of the shooting.
Although the motion judge made no finding as to the date of the booking information, she had before her a police affidavit stating that the date was November 8, 2012. Because she generally credited the affidavit, and the defendant has not controverted its assertion on this issue, we are free to consider it. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
Yaraghi and Paloukos both gave physical descriptions of the suspects, and Paloukos told police he thought one of the suspects was named Robert. Four days after the shooting, both witnesses were shown photograph arrays including a picture of Malone, and both identified Malone as resembling suspect one. Malone was arrested eleven days after the shooting.
The victim's cell phone records led police to another individual who identified the defendant as one of two people who possibly matched the witness descriptions of suspect two. Police included a photograph of the defendant in a second set of photograph arrays, and both Yaraghi and Paloukos selected the defendant as bearing a resemblance to suspect two, although neither could so state with certainty. The defendant lived near Malone and near the location where the victim and the two witnesses had picked up the two suspects on the day of the shooting.
The defendant agreed to an interview with police two weeks after the shooting. He stated that he had known Malone for twenty years and that Malone had spoken to him (by telephone ) on the morning of the shooting. The defendant provided his iPhone number and shortly thereafter invoked his right to counsel. At the end of the interview, the police seized the defendant's iPhone. A detective switched the iPhone into "airplane mode," disabled security features, powered it off, and wrapped it in aluminum foil. The police returned the defendant to his residence and secured the iPhone until they obtained a warrant to search it a few days later.
That the conversation took place "on the phone" was set forth in the discussion section rather than the factual findings of the judge's decision. The statement was supported by the investigating officer's affidavit and testimony.
In this appeal the defendant does not challenge the subsequent actions taken by the police relating to his iPhone records, but only the seizure on the day of his interview.
The defendant was charged with and indicted for murder, armed robbery, and unlawful possession of a firearm. He filed several motions to suppress evidence from the warrantless seizure of his iPhone, which were denied. The motion judge concluded that police had probable cause to believe that evidence of the defendant's involvement in the shooting might be found on his iPhone, and that (as the defendant concedes) exigent circumstances justified its seizure to prevent destruction or removal of evidence during the time it would take to obtain a search warrant.
Discussion. The sole issue before us is whether there was probable cause to seize the defendant's iPhone. When reviewing a decision on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error, but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Jewett, 471 Mass. 624, 628 (2015) (quotation omitted).
Here, we conclude that there was probable cause to believe that the defendant's iPhone would contain evidence linking his alleged coventurer Malone to the 857 number and thus to the shooting. Before the seizure, the police had evidence that the 857 number associated with Malone as of two weeks earlier had been used to communicate with the victim just before the shooting, and the defendant admitted that he had spoken to Malone by telephone earlier that day. Although there was no evidence that the conversation took place by cell phone rather than by landline, it was a reasonable inference, even if not compelled, that cell phones were used. Accordingly, because the defendant admitted that he had known Malone for twenty years and had spoken with him by telephone that day, the police had probable cause to believe that the defendant's iPhone would contain evidence of a call between the iPhone and a cell phone being used by Malone on the day of the shooting. Establishing what cell phone number Malone was using on the day of the shooting was important because the 857 number was not registered in Malone's name.
We acknowledge that the police proceeded in the belief, and the motion judge ruled that there was probable cause to believe, that the iPhone would contain evidence connecting the defendant himself (rather than Malone) to the shooting. But our inquiry is not bounded by police officers' subjective belief as to what evidence would probably be found. Rather, "[t]he inquiry into probable cause is an objective one, requiring, as it does, a determination whether the facts would warrant a reasonable person in believing the action taken to be appropriate. The subjective beliefs of the police officer are not conclusive on this issue." Commonwealth v.. Hason, 387 Mass. 169, 175 (1982) (quotation omitted). Likewise, we are "free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
Probable cause does "not require a prima facie showing ..., only a fair probability that evidence of ... a crime would be found in particular locations." Commonwealth v. Anthony, 451 Mass. 59, 72 (2008). Probable cause for a search "does not mean that it must appear more likely than not that the items are in a particular place to be searched." Matter of a Grand Jury Investigation, 427 Mass. 221, 225, cert. denied, 525 U.S. 873 (1998). See Commonwealth v. Dolby, 50 Mass.App.Ct. 545, 547–548 (2000).
Thus the seizure of the iPhone was supported by probable cause to believe it contained evidence relevant to who was involved in the shooting, even if the defendant himself had not been suspected of involvement in the shooting. Compare Matter of a Grand Jury Investigation, 427 Mass. 221, 225, cert. denied, 525 U.S. 873 (1998) ("[T]here is no requirement at all that the person to whom a search warrant is directed should himself even be suspected of crime, much less that there be probable cause to believe him guilty"); Commonwealth v. Augustine, 472 Mass. 448, 456 n. 11 (2015).
The decisions in Matter of a Grand Jury Investigation, supra, and Augustine, supra, appear to have implicitly resolved the question left open in Commonwealth v. Jean–Charles, 398 Mass. 752, 760 n. 11 (1986) : whether the Supreme Judicial Court would follow, as a matter of State law, the United States Supreme Court's holding that the Fourth Amendment to the United States Constitution does not prohibit a "search for evidence simply because the owner or possessor of the place to be searched is not then reasonably suspected of criminal involvement." Zurcher v. Stanford Daily, 436 U.S. 547, 560 (1978). In any event, the defendant here has made no argument, either to the motion judge or on appeal, as to why art. 14 of the Declaration of Rights of the Massachusetts Constitution should be interpreted to provide more protection than the Fourth Amendment in these circumstances. Any such argument is therefore waived. See Commonwealth v. Neilson, 423 Mass. 75, 77 n. 2 (1996).
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Like the motion judge, we are not persuaded by the defendant's remaining argument: that the police had insufficient grounds to infer that the iPhone seized from him at his interview two weeks after the shooting was the same cell phone he had been using on the day of the shooting. Where an object possessed by a defendant is "durable, of continuing utility to the defendant[ ], and ... not inherently incriminating to possess," it is reasonable to infer that the object has not been disposed of and may be found at the defendant's home. Commonwealth v. James, 424 Mass. 770, 778 (1997). See Commonwealth v. Wilson, 427 Mass. 336, 343 (1998) ; Commonwealth v. Thevenin, 82 Mass.App.Ct. 822, 827 (2012). We think the same factors make it reasonable to infer that the defendant here had not disposed of the cell phone he used on the day of the shooting, but instead that he continued to keep it on his person (as is typical of a cell phone), including when he came to the police station for an interview two weeks later. Compare Commonwealth v. Fleurant, 2 Mass.App.Ct. 250, 255 (1974) (because, "[u]nlike drugs or liquors, a collection of weapons is not likely to be consumed or destroyed," age of information in search warrant application was of less significance). See Commonwealth v. Blye, 5 Mass.App.Ct. 817, 818 (1977).
Finally, this case is quite unlike Commonwealth v. White, 475 Mass. 583, 588–591 (2016), where the court held that there was no probable cause to seize a murder suspect's cell phone, absent information that the cell phone had any "nexus" with the crime. There, the police had "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 telephone, and that evidence of these communications would be found on the device." Id. at 591. The court held that this inference did not establish a nexus; "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." Id. at 590–591. Here, unlike in White, the police had information suggesting that the defendant's iPhone would contain particularized evidence: the cell phone number that Malone was using on the day of a crime of which Malone was suspected and in which it was known that cell phone communications played a central role.
Order denying motion to suppress affirmed.