NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-192
COMMONWEALTH
vs.
CEDRIC D. WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge suppressed evidence of the contents
of a cell phone seized from the defendant in the aftermath of a
homicide. The Commonwealth obtained leave to file an
interlocutory appeal. See Mass. R. Crim. P. 15 (a) (2), as
amended, 476 Mass. 1501 (2017). We affirm.
Background. We recite the facts as found by the motion
judge. On December 21, 2018, at about 12:35 A.M., police
officers responded to a ShotSpotter activation in the Roxbury
section of Boston. Officers went behind a building and saw the
defendant and another man look at the approaching officers, turn
around, and walk away at a rapid pace. The two men complied
with the command of officers, at gunpoint, to stop and raise
their hands. An initial patfrisk indicated the men were
unarmed. While officers stayed with the two men, other officers
investigated noises heard on the rear staircase to the building.
In the meantime, the defendant held a cell phone in one hand and
appeared to be using it. On the staircase, officers found a man
suffering from several gunshot wounds that proved fatal. After
a woman at the scene told officers that the defendant had thrown
a firearm over the fence, officers handcuffed the defendant.
Through a second patfrisk, officers seized a black CoolPad cell
phone from the defendant's pocket. Searching the area behind
the fence as indicated by the witness, officers found a firearm.
After questioning the defendant at police headquarters,
officers released him, but kept the CoolPad cell phone as well
as a red iPhone they obtained from the defendant during the
course of the interrogation. The defendant never asked for the
cell phones before his release nor at any time thereafter. The
officers referenced the seizure of the cell phones in police
reports but did not document them in an inventory report.
Over the next thirty-four days, officers investigated the
homicide. On January 24, 2019, officers obtained a warrant to
search the contents of the black CoolPad cell phone. Six days
later, the police arrested the defendant. The motion judge
suppressed evidence of the contents of the CoolPad cell phone
after concluding that "waiting 34 days to obtain a search
2 warrant for the phone's contents was unreasonable under the
particular facts and circumstances of this case." We agree.
Discussion. "In reviewing a ruling on a motion to suppress
evidence, we accept the judge's subsidiary findings of fact
absent clear error" (citation omitted). Commonwealth v.
Villagran, 477 Mass. 711, 713 (2017). "A finding is clearly
erroneous if it is not supported by the evidence, or when the
reviewing court, on the entire evidence, is left with the firm
conviction that a mistake has been committed" (citation
omitted). Id. "We review independently the application of
constitutional principles to the facts found" (citation
omitted). Id. In its appeal, the Commonwealth faults the judge
for failing to consider the defendant's minimal interest in the
CoolPad cell phone, the government's strong interest in probing
the connection between the cell phone and a homicide, and the
significant duties and responsibilities that diverted police
officers from obtaining a search warrant at an earlier time. On
our independent review of the motion judge's analysis, we
discern no cause to disturb his conclusions of law.
Police officers "may seize property 'to prevent destruction
or removal of evidence during the relatively short period of
time needed . . . to obtain a search warrant.'" Commonwealth v.
Gentile, 437 Mass. 569, 573 (2002), quoting Commonwealth v.
Taylor, 426 Mass. 189, 195 (1997). The situation is analogous
3 to "securing a place to be searched" pending the issuance of a
search warrant. Taylor, supra. Once the police seize property
without a warrant, they are "required to 'make it a priority' to
acquire one" within that relatively short period of time.
Commonwealth v. White, 475 Mass. 583, 594 (2016), quoting United
States v. Burgard, 675 F.3d 1029, 1035 (7th Cir.), cert. denied,
568 U.S. 852 (2012). The delay between the warrantless seizure
and the application for the warrant must be "no longer than
reasonably necessary for the police, acting with diligence, to
obtain the warrant." Illinois v. McArthur, 531 U.S. 326, 332
(2001). The police "must release the item if a warrant is not
obtained within that period." White, supra at 593.
Here, the police applied for the search warrant thirty-four
days after seizing the CoolPad cell phone. There is no "bright
line" or simple tallying of days to gauge whether police conduct
exceeds constitutional limits (citation omitted). White, 475
Mass. at 593. "[T]he ultimate touchstone of the Fourth
Amendment [to the United States Constitution] is
'reasonableness.'" Brigham City v. Stuart, 547 U.S. 398, 403
(2006). "[T]he 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.'" White, supra at 593-594, quoting United States v.
4 Place, 462 U.S. 696, 703 (1983). Even if we agree that the
Commonwealth had a strong interest in probing the connection of
the phone to the homicide, we do not believe the defendant had a
diminished interest in his property merely because he did not
protest the seizure or demand the return of the cell phone.
Contrast Commonwealth v. Cruzado, 480 Mass. 275, 283-284 (2018)
(minimal possessory interest in cell phone, where defendant
disclaimed it belonged to him). Examining the nature and
quality of the intrusion on the defendant's possessory interest
in the cell phone, we conclude that the delay here was
unreasonable in a constitutional sense because the police did
not make it a priority to obtain the search warrant.
The Commonwealth argues forcefully that during this delay
the police officers in this case conducted a methodical
investigation while simultaneously carrying out significant
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-192
COMMONWEALTH
vs.
CEDRIC D. WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge suppressed evidence of the contents
of a cell phone seized from the defendant in the aftermath of a
homicide. The Commonwealth obtained leave to file an
interlocutory appeal. See Mass. R. Crim. P. 15 (a) (2), as
amended, 476 Mass. 1501 (2017). We affirm.
Background. We recite the facts as found by the motion
judge. On December 21, 2018, at about 12:35 A.M., police
officers responded to a ShotSpotter activation in the Roxbury
section of Boston. Officers went behind a building and saw the
defendant and another man look at the approaching officers, turn
around, and walk away at a rapid pace. The two men complied
with the command of officers, at gunpoint, to stop and raise
their hands. An initial patfrisk indicated the men were
unarmed. While officers stayed with the two men, other officers
investigated noises heard on the rear staircase to the building.
In the meantime, the defendant held a cell phone in one hand and
appeared to be using it. On the staircase, officers found a man
suffering from several gunshot wounds that proved fatal. After
a woman at the scene told officers that the defendant had thrown
a firearm over the fence, officers handcuffed the defendant.
Through a second patfrisk, officers seized a black CoolPad cell
phone from the defendant's pocket. Searching the area behind
the fence as indicated by the witness, officers found a firearm.
After questioning the defendant at police headquarters,
officers released him, but kept the CoolPad cell phone as well
as a red iPhone they obtained from the defendant during the
course of the interrogation. The defendant never asked for the
cell phones before his release nor at any time thereafter. The
officers referenced the seizure of the cell phones in police
reports but did not document them in an inventory report.
Over the next thirty-four days, officers investigated the
homicide. On January 24, 2019, officers obtained a warrant to
search the contents of the black CoolPad cell phone. Six days
later, the police arrested the defendant. The motion judge
suppressed evidence of the contents of the CoolPad cell phone
after concluding that "waiting 34 days to obtain a search
2 warrant for the phone's contents was unreasonable under the
particular facts and circumstances of this case." We agree.
Discussion. "In reviewing a ruling on a motion to suppress
evidence, we accept the judge's subsidiary findings of fact
absent clear error" (citation omitted). Commonwealth v.
Villagran, 477 Mass. 711, 713 (2017). "A finding is clearly
erroneous if it is not supported by the evidence, or when the
reviewing court, on the entire evidence, is left with the firm
conviction that a mistake has been committed" (citation
omitted). Id. "We review independently the application of
constitutional principles to the facts found" (citation
omitted). Id. In its appeal, the Commonwealth faults the judge
for failing to consider the defendant's minimal interest in the
CoolPad cell phone, the government's strong interest in probing
the connection between the cell phone and a homicide, and the
significant duties and responsibilities that diverted police
officers from obtaining a search warrant at an earlier time. On
our independent review of the motion judge's analysis, we
discern no cause to disturb his conclusions of law.
Police officers "may seize property 'to prevent destruction
or removal of evidence during the relatively short period of
time needed . . . to obtain a search warrant.'" Commonwealth v.
Gentile, 437 Mass. 569, 573 (2002), quoting Commonwealth v.
Taylor, 426 Mass. 189, 195 (1997). The situation is analogous
3 to "securing a place to be searched" pending the issuance of a
search warrant. Taylor, supra. Once the police seize property
without a warrant, they are "required to 'make it a priority' to
acquire one" within that relatively short period of time.
Commonwealth v. White, 475 Mass. 583, 594 (2016), quoting United
States v. Burgard, 675 F.3d 1029, 1035 (7th Cir.), cert. denied,
568 U.S. 852 (2012). The delay between the warrantless seizure
and the application for the warrant must be "no longer than
reasonably necessary for the police, acting with diligence, to
obtain the warrant." Illinois v. McArthur, 531 U.S. 326, 332
(2001). The police "must release the item if a warrant is not
obtained within that period." White, supra at 593.
Here, the police applied for the search warrant thirty-four
days after seizing the CoolPad cell phone. There is no "bright
line" or simple tallying of days to gauge whether police conduct
exceeds constitutional limits (citation omitted). White, 475
Mass. at 593. "[T]he ultimate touchstone of the Fourth
Amendment [to the United States Constitution] is
'reasonableness.'" Brigham City v. Stuart, 547 U.S. 398, 403
(2006). "[T]he 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.'" White, supra at 593-594, quoting United States v.
4 Place, 462 U.S. 696, 703 (1983). Even if we agree that the
Commonwealth had a strong interest in probing the connection of
the phone to the homicide, we do not believe the defendant had a
diminished interest in his property merely because he did not
protest the seizure or demand the return of the cell phone.
Contrast Commonwealth v. Cruzado, 480 Mass. 275, 283-284 (2018)
(minimal possessory interest in cell phone, where defendant
disclaimed it belonged to him). Examining the nature and
quality of the intrusion on the defendant's possessory interest
in the cell phone, we conclude that the delay here was
unreasonable in a constitutional sense because the police did
not make it a priority to obtain the search warrant.
The Commonwealth argues forcefully that during this delay
the police officers in this case conducted a methodical
investigation while simultaneously carrying out significant
duties and responsibilities. For example, officers interviewed
witnesses, obtained and reviewed surveillance video, and
obtained phone records. Officers also underwent extensive trial
preparation in another case and investigated other homicides
while balancing holiday and vacation time demands.
We agree that there is nothing in the record to suggest
that the police investigators in this case generally lacked
diligence in the performance of their various duties. "The
relevant inquiry, however, does not concern the detectives'
5 general diligence in performing their duties, but, rather,
whether they acted 'diligen[tly] in obtaining the warrant.'"
White, 475 Mass. at 594, quoting United States v. Laist, 702
F.3d 608, 614 (11th Cir. 2012). The Commonwealth asserts that,
at the time of the seizure, the police had probable cause to
believe that the cell phone "would contain evidence related to
the murder"; yet, the police did not articulate that probable
cause in a search warrant affidavit until thirty-four days
later. "Once police seized the defendant's cellular telephone
without a warrant, they were required to 'make it a priority' to
acquire one," but the record shows that they did not so
prioritize it. White, supra, quoting Burgard, 675 F.3d at 1035.
After depriving the defendant of his property, the police had an
obligation, with due diligence, to obtain a warrant or to return
the property. See, e.g., Commonwealth v. Kaup, 453 Mass. 102,
109 (2009) (police seized computer hard drive and obtained
search warrant nine days later). Contrary to the concern the
Commonwealth expressed in its brief, we are not "second
guessing" how the police allocated resources during the
investigation. Instead, we are concluding that the valid,
competing priorities chosen by the police in this case did not
comport with the constitutional mandate for a prompt search
warrant application.
6 We have reviewed the Commonwealth's cited Federal cases
that countenance delays of comparable or significantly longer
duration than the delay presented here. These cases, however,
are distinguishable in at least one significant respect. In the
present case, the police seized the defendant's cell phone
without his consent. The two Federal cases cited involved
consensual seizures of property that did not infringe a
constitutionally protected property interest. See Laist, 702
F.3d at 618 (twenty-five day delay reasonable where "initial
seizure [of computer] was based on consent"); United States v.
Stabile, 633 F.3d 219, 235 (3d Cir.), cert. denied, 565 U.S. 942
(2011) (three-month delay reasonable "where a person consents to
search [of home] and seizure [of computer]"). Because there is
no evidence in the present case that the defendant consented to
the seizure of the cell phone, these Federal cases are
inapposite.
We have also reviewed an out-of-State case cited by the
Commonwealth as additional persuasive authority. In People v.
Shinohara, 375 Ill. App. 3d 85, 91 (2007), the Appellate Court
of Illinois approved a delay of seventy-five days in seeking a
search warrant following the seizure of a computer. The holding
in that case, however, was limited. The defendant there claimed
"without elaboration or citation to authority" that the delay in
obtaining the warrant rendered the search unreasonable. Id. at
7 101. Given this bare claim, the Illinois court expressly
limited its review to determining whether the delay in obtaining
the search warrant vitiated probable cause where "the facts
supporting the underlying probable cause may have grown stale or
the item or place to be searched is subject to change." Id. at
101. Unlike the defendant in Shinohara, the defendant here
squarely presented an argument that the search of the CoolPad
cell phone was unreasonable because the police failed to
prioritize obtaining a warrant within a relatively short period
of time after seizing it. See White, 475 Mass. at 594.
Therefore, on close examination, the Shinohara case did not
address the same question that is before us.
Finally, at oral argument, the Commonwealth presented an
additional argument to justify the delay in obtaining the
warrant. According to this argument, the police needed
additional time to sort out which of the two cell phones seized
from the defendant actually belonged to him. During the
interview, the defendant told the police that the red iPhone was
his phone and never mentioned the black Coolpad cell phone. As
it turned out, the police later determined that the statement
about the red iPhone was false. The red iPhone belonged to the
victim. An effort by a defendant to throw the police
investigation off track is certainly a valid consideration in
determining the reasonableness of a delay in obtaining a
8 warrant; however, because the Commonwealth did not raise this
argument in the Superior Court, and neither the defendant nor
the judge had an opportunity to address it on a fully developed
record, we will not consider the implications of that argument
for the first time on appeal. See Mass. R. A. P. 16 (a) (9)
(A), as appearing in 481 Mass. 1628 (2019).
Conclusion. That portion of the order entered January 14,
2022, allowing the suppression of the contents of the CoolPad
cell phone is affirmed.
So ordered.
By the Court (Shin, Brennan & Hodgens, JJ. 1),
Assistant Clerk
Entered: January 23, 2024.
1 The panelists are listed in order of seniority.