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SJC-13395
COMMONWEALTH vs. JOSEPH JAMES.
Norfolk. September 13, 2023. - April 23, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.
Forfeiture Proceeding. Search and Seizure, Computer, Return. Constitutional Law, Taking of property, Burden of proof. Due Process of Law, Taking of property, Burden of proof. Practice, Civil, Presumptions and burden of proof. Waiver. Search and Seizure, Warrant. Statute, Construction. Words, "Public interest."
Indictments found and returned in the Superior Court Department on June 6, 2017, and February 20, 2018.
A motion for return of property was heard by Robert C. Cosgrove, J., and a second motion for return of property, filed on April 21, 2022, was considered by him.
The Supreme Judicial Court granted an application for direct appellate review.
Patrick Levin, Committee for Public Counsel Services, for the defendant. Michael McGee, Assistant District Attorney, for the Commonwealth. 2
GEORGES, J. This case raises a question of statutory
interpretation: whether a judge may issue a forfeiture decree
for property seized pursuant to a search warrant under G. L.
c. 276, § 3, based solely on the judge's determination
forfeiture would be in the "public interest," or whether the
judge must instead follow the procedural requirements set forth
in G. L. c. 276, §§ 4 to 8, before any forfeiture decree may
issue. For the reasons that follow, we conclude the latter
interpretation should apply. Accordingly, we vacate the
Superior Court orders insofar as they denied the return of
certain property to the defendant, and we remand the case for
further proceedings consistent with this opinion.
1. Background. a. Facts.1 Over the course of several
months in 2016, the defendant, a thirty-eight year old
professional photographer, sexually exploited a fifteen year old
girl. The defendant initially contacted the victim through a
private message on a social networking website after the victim
"liked" one of his posts. The defendant then began
communicating with the victim through telephone calls, text
messages, and cell phone and computer applications that support
1 Our recitation of the facts relies in part on the Commonwealth's "Statement of the Case," which was filed in the Superior Court after the defendant was arraigned in two cases stemming from his sexual exploitation of a minor. The defendant does not dispute the facts contained within that statement for purposes of his appeal. 3
"video chat." Through these communications, the defendant
solicited and received nude and partially nude images of the
victim. The defendant eventually met the victim in person and
started sexually abusing her.
After learning of their daughter's exploitation, the
victim's parents notified the Weymouth police department, which,
alongside State police, began investigating the defendant. The
victim's parents provided investigators with the victim's two
cell phones. Upon examining the cell phones, the State police
were able to confirm that sexual abuse occurred and that the
defendant and the victim were in frequent communication. The
police also found dozens of photographs of the defendant and the
victim together, including photographs of the two kissing.
Based on the evidence obtained from the victim's cell
phones, the police obtained a warrant for the defendant's
arrest. While attempting to locate the defendant, a State
police trooper learned of an address where the defendant had
lived. The trooper spoke with a tenant living at that address
who reported the defendant had left behind some personal
belongings, including a computer tower2 and an external hard
2 "A computer tower is basically the shell of a computer, without the internal hardware such as disk drives and circuit boards installed." United States v. 10,510 Packaged Computer Towers, More or Less, 152 F. Supp. 2d 1189, 1191 (N.D. Cal. 2001). 4
drive. The police then obtained and executed a search warrant
for the defendant's property at this location. They seized a
computer battery with a power cord, a separate bag of additional
power cords, a computer mouse and speakers, a cell phone, the
external hard drive, and the computer tower, which contained
five internal hard drives.
After the internal hard drives were extracted from the
computer tower, their contents, along with the contents of the
external hard drive, were reviewed by a forensic examiner. The
examiner determined that one of the internal hard drives, a
Kingston HyperX internal drive (Kingston drive), was the "main
drive" in the computer tower and proceeded to "image" the
Kingston drive.3 The examiner only "previewed" the data stored
on the other internal hard drives, with the exception of one
internal hard drive that could not be examined due to damage.
On the Kingston drive, the examiner uncovered nude images
of the victim in the form of "selfies," which appeared to have
been taken by the victim and sent to the defendant. The
Kingston drive also contained images of the victim and the
defendant together, as well as communications between them
showing the defendant was aware the victim was only fifteen
3 "A forensic image is an exact replica, bit for bit, of the original storage device that allows investigation of past use without altering the original evidence." New Hampshire Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 424 (2009). 5
years old. Additionally, the Kingston drive contained "hundreds
of images of girls, in various stages of undress," but also
"typical 'photographer' pictures of families, kids, and/or
couples."4
The examiner did not uncover images of the victim or
communications between her and the defendant on any of the other
hard drives. However, the examiner found images of nude and
partially nude unidentified women on some of these hard drives.
Specifically, in a folder titled "Photography" on the external
hard drive, the examiner found "'boudoir' style" photographs
that featured women clothed or "scantily dressed," and who
"systematically undressed" over the course of the photography
sessions. As the women did so, the focus of the photographs
changed from the women generally, to specific nude body parts,
particularly their breasts and vaginas.
On one of the internal hard drives, in a folder titled
"Photo concepts, models, artists," the examiner discovered "one
hundred forty-two (142) image files -- mostly of naked women."
On another internal hard drive, the examiner found adult
pornography. On the last internal hard drive that the examiner
was able to access (Toshiba drive), the examiner mostly found
software applications, movie files, and music files.
4 The report does not specify the ages of these "girls." 6
A State police trooper with experience and training related
to child pornography investigations examined the images of the
nude and partially nude unidentified female subjects on the hard
drives. Although the trooper believed some of the images "may
constitute child pornography if the subjects [were] under
[eighteen] years old," the trooper was "not able to make a
determination of the age of the females in the images." The
trooper also noted "[i]t would be nearly impossible to make a
determination on the age of the females in the images without
identification."
The trooper further suggested, based on his training and
experience, the computer tower "should be looked at as one
interconnected system," comprised of all five internal hard
drives. While the trooper asserted there could be "backups of
the drives" -- otherwise referred to as "volume shadow
copies" -- within any of the five internal hard drives, he
stated "it is unknown" whether any such backups actually
existed.5 The trooper further stated the Kingston drive
5 The trooper defined "volume shadow copies" as a "technology that allows for manual or automatic backups or snapshot[s] o[f] computer volumes or files." 7
contained ".lnk files," which "could show . . .
interconnectivity between the drives in the tower."6
b. Procedural history. The defendant was indicted by a
Norfolk County grand jury on eight counts of aggravated rape of
a child, G. L. c. 265, § 23A, and three counts of enticement of
a minor, G. L. c. 265, § 26C (b). He was then separately
indicted on one count of possession of child pornography, G. L.
c. 272, § 29C, based on the nude images of the victim discovered
on the Kingston drive. No charges were brought relating to the
images of the nude and partially nude unidentified female
subjects found on the hard drives. The defendant eventually
pleaded guilty to all charges, except for the eight counts of
aggravated rape of a child, where he instead pleaded guilty to
the lesser included offense of statutory rape under G. L.
c. 265, § 23.
A Superior Court judge sentenced the defendant to a term of
from seven years to seven years and one day in State prison for
seven of the counts of statutory rape, and a term of from five
years to five years and one day for the one count of possession
of child pornography, all to be served concurrently. For one of
the counts of statutory rape and for the three counts of
6 As explained by the trooper, .lnk files "are shortcut files that link an application or file commonly found on a user's desktop, or throughout a system." 8
enticement of a minor, the judge sentenced the defendant to
three years of probation, from and after his prison sentence.
After being sentenced, the defendant filed a motion for
return of the property the Commonwealth seized from his former
residence, including the computer tower, the external hard
drive, four of the five internal hard drives (excluding the
Kingston drive), the video camera, the computer battery, the
power cords, the computer mouse, the speakers, and the cell
phone. The defendant also filed a motion to "stay data erasure
or destruction of the [Kingston drive]." In the latter motion,
the defendant asserted "[m]ost, if not all of [his] important
personal, business, or sentimental files are saved in the
desktop, documents and downloads folders" contained within the
Kingston drive. He requested the Commonwealth preserve the
Kingston drive and send him "a list of those files in order to
determine whether or not a subsequent motion to preserve or copy
that data is appropriate."
In response, the Commonwealth filed a "motion for leave to
destroy and dispose of certain computer equipment, digital media
and contraband seized from [the] defendant via search warrant."
Aside from the Toshiba drive -- which only contained
applications, movies, and music -- the Commonwealth sought to
destroy the hard drives and cell phone pursuant to G. L. c. 276,
§ 3, asserting a "public interest" in destroying the devices. 9
However, the Commonwealth agreed to return the computer tower
(with the hard drives removed), along with the Toshiba drive,
the video camera, the computer battery, the power cords, the
computer mouse, and the speakers.
After holding a nonevidentiary hearing, the motion judge
granted the defendant's motion for return of property with
respect to the uncontested property, but denied his request for
the remaining property, including three of the five internal
hard drives, as well as the external hard drive. The motion
judge also granted the defendant's motion to stay destruction of
the Kingston drive and ordered the Commonwealth to provide a
list of files on the drive, but only to the extent that such a
list already existed.7 The judge took no action on the
Commonwealth's motion to destroy the hard drives and cell phone.8
The defendant timely appealed from the motion judge's
rulings in November 2018.9 The Appeals Court subsequently
granted a stay of his appeal to allow the defendant to file a
renewed motion for return of property in the Superior Court,
which the defendant filed in March 2022. In his renewed motion,
7 The motions were considered by a different Superior Court judge from the sentencing judge.
8 Although it is unclear from the record, the cell phone may have been returned to the defendant.
9 The defendant's appeal only relates to the seized property and not to his pleas, convictions, or sentences. 10
the defendant principally raised, for the first time, the issue
of lack of process under G. L. c. 276, §§ 4 to 8. The same
motion judge denied the renewed motion in September 2022. The
defendant appealed from the denial, which was consolidated with
his prior appeal, and we granted his application for direct
appellate review.
2. Discussion. In reviewing the denial of a motion for
return of property pursuant to G. L. c. 276, § 3, "[w]e begin by
acknowledging the strong constitutional protections against
governmental deprivations of private property." Commonwealth v.
Salmons, 96 Mass. App. Ct. 61, 65 (2019). Among these
constitutional protections, "no part of the property of any
individual can, with justice, be taken from him, or applied to
public uses, without his own consent, or that of the
representative body of the people." Art. 10 of the
Massachusetts Declaration of Rights. Additionally, "no subject
shall be . . . deprived of his property . . . or estate, but by
the judgment of his peers, or the law of the land." Art. 12 of
the Massachusetts Declaration of Rights.
a. The search warrant statute. Before proceeding with our
analysis, we summarize the various sections of the statutory
scheme at issue. General Laws c. 276, §§ 1 et seq. (search
warrant statute), concerns the seizure, retention, and disposal
of property obtained pursuant to a search warrant. See G. L. 11
c. 276, §§ 1 (describing types of property that may be subject
of search warrant), 2-2C (describing requirements for issuing
valid search warrant). Most notably, § 3 provides that, apart
from certain exceptions not relevant here, "all other property
seized in execution of a search warrant shall be disposed of as
the court or justice orders and may be forfeited and either sold
or destroyed, as the public interest requires, in the discretion
of the court or justice." G. L. c. 276, § 3.
Immediately following § 3, the statutory scheme sets forth
detailed procedures for issuing a decree of forfeiture regarding
property seized in execution of a search warrant. See G. L.
c. 276, §§ 4-8. Pursuant to § 4, the owner of the property, and
others with an interest in the property, are entitled to notice
"[b]efore a decree of forfeiture . . . is issued." G. L.
c. 276, § 4. Such notice must "set[] forth the substance of the
complaint" and provide a "time and place" for the owner to
appear to "show cause why the articles seized should not be
forfeited." Id. Section 5 describes service of process for the
notice, which must be served "not less than fourteen days before
the time appointed for trial." G. L. c. 276, § 5. Section 6
allows for the postponement of "the time appointed for the
trial" if notice has not been properly served, if the property
needs to be retained for use as evidence in a trial, or "if
other sufficient cause appears." G. L. c. 276, § 6. Section 7 12
describes the procedure for forfeiture "[i]f upon trial the
property is adjudged forfeited." G. L. c. 276, § 7. Finally,
§ 8 describes the process for appealing from a forfeiture
decree, indicating, inter alia, that "[a]ll proceedings [on
appeal] . . . shall conform so far as may be to proceedings in
criminal cases." G. L. c. 276, § 8.
We now proceed to address the primary question in this
case: whether there is any interplay between G. L. c. 276, § 3,
on the one hand, and §§ 4 to 8, on the other. As with all
questions of statutory interpretation, we exercise de novo
review. See Matter of Expungement, 489 Mass. 67, 73 (2022).
The Commonwealth asks us to construe the phrase "as the
public interest requires" in § 3 as a stand-alone provision
unrelated to the ensuing procedural requirements of §§ 4 to 8.
The defendant counters that the Commonwealth and the courts must
strictly adhere to the procedural requirements of §§ 4 to 8
before seized property can be lawfully forfeited pursuant to
§ 3. We conclude the Legislature intended for the procedural
safeguards laid out in §§ 4 to 8 to apply whenever a decree of
forfeiture is issued under § 3.10
Our opinion today is limited to the forfeiture of 10
property under the search warrant statute not covered by another forfeiture statute. See, e.g., G. L. c. 94C, § 47 (forfeiture of controlled substances); G. L. c. 265, § 56 (forfeiture of property used in human trafficking); G. L. c. 266, § 143H 13
"We interpret a statute according to the intent of the
Legislature, which we ascertain from all the statute's words,
construed by the ordinary and approved usage of the language
. . ." (quotation and citation omitted). Ciani v. MacGrath, 481
Mass. 174, 178 (2019). "Ordinarily, where the language of a
statute is plain and unambiguous, it is conclusive as to
legislative intent" (citation omitted). Id. "Ultimately, we
must avoid any construction of statutory language . . . that
. . . would frustrate the Legislature's intent" (citation
omitted), Conservation Comm'n of Norton v. Pesa, 488 Mass. 325,
332 (2021), or "render . . . any portion of it meaningless,"
Williams v. Board of Appeals of Norwell, 490 Mass. 684, 690
(2022).
Interpreting § 3 in isolation would violate the well-
established rule of statutory construction that "[w]e do not
interpret . . . statutory language . . . so as to render it or
any portion of it meaningless." Williams, 490 Mass. at 690. If
we were to adopt the interpretation of § 3 advocated by the
Commonwealth and view § 3 in isolation, a court could forgo the
procedures set forth in §§ 4 to 8 to issue a decree of
(forfeiture of illegal sound recordings); G. L. c. 267A, § 4 (forfeiture of laundered money and property). Our opinion also does not reach the enumerated exceptions under G. L. c. 276, § 3 (a)-(c), including the "dangerous weapons" exception under § 3 (b), which we recently construed in Commonwealth v. Fleury, 489 Mass. 421, 429-430 (2022). 14
forfeiture, so long as the court concluded that "the public
interest requires" forfeiture. The procedures in §§ 4 to 8,
therefore, would merely be superfluous suggestions. In
contrast, reading G. L. c. 276, §§ 4 to 8, as prescribing the
procedures a court must follow to determine if "the public
interest requires" forfeiture under § 3 gives meaning and
harmony to all sections of the search warrant statute and thus
effectuates the Legislature's over-all intent. See Marengi v. 6
Forest Rd. LLC, 491 Mass. 19, 25 (2022) (we "harmonize . . .
related provisions . . . of the same statutory scheme so as to
give full effect to the expressed intent of the Legislature"
[citation omitted]).
To the extent there is any lingering ambiguity in the
statutory language, we turn to the legislative history. See
Ciani, 481 Mass. at 178. In 1870, the Legislature passed an
earlier version of G. L. c. 276, §§ 4 to 8, one year after this
court held the forfeiture provision of the search warrant
statute then in place was procedurally deficient. See St. 1870,
c. 242, §§ 1-4; Attorney Gen. v. Justices of the Mun. Court of
Boston, 103 Mass. 456, 463-469 (1869). Before the decision in
Attorney Gen., under the historic search warrant statute, courts
could issue a warrant for several types of contraband, including 15
gambling apparatuses or implements.11 See R.S. (1836), c. 142,
§§ 1-5. When seized property was no longer needed as evidence,
it was to be destroyed under the direction of the court.12 See
R.S. (1836), c. 142, § 5. The statute did not require the court
to conduct any proceedings or issue any notice whatsoever before
ordering the destruction of the seized property. See id.
Subsequently, in 1869, the Legislature expanded the reach
of the search warrant statute beyond contraband to allow
"furniture, fixtures, and personal property" to be seized from
"gaming-houses."13 See St. 1869, c. 364 (amending historic
search warrant statute). Because possession of this property
was not inherently unlawful, such property was to be sold rather
than destroyed if "upon [a] hearing" the court "adjudged" that
the property was seized from a gaming-house at a time when
gambling was taking place. See St. 1869, c. 364, § 3.
11Specifically, pursuant to R.S. (1836), c. 142, §§ 1 and 2, courts could issue a search warrant for (1) stolen or embezzled property, (2) counterfeit money, (3) obscene materials, (4) lottery tickets, and (5) gambling apparatuses or implements.
12Stolen property was returned to the owner rather than destroyed. See R.S. (1836), c. 142, § 5.
13As the name suggests, "gaming-houses" were buildings where gambling took place. See Commonwealth v. Blankinship, 165 Mass. 40, 42-43 (1895). 16
The historic search warrant statute and the 1869 amendment
were considered by this court in Attorney Gen., 103 Mass. at
457, after an agent of the Commonwealth seized gambling
implements, furniture, and personal property from an alleged
gaming-house but did not arrest any persons in connection with
the alleged gambling. As a result, the lower court was faced
with deciding whether to order the sale and destruction of
property belonging to unknown persons who had received no notice
of the proceedings. Id. at 457, 463.
On appeal, this court determined the lower court could not
order the sale and destruction of the property because proper
procedures had not been carried out. Id. at 469. We observed
that "[t]he terms of the statute, taken literally" did not
require "any formal[] . . . notice or trial," id. at 464, but we
nonetheless read these requirements into the statute on the
grounds that it would be "entirely contrary to the spirit of our
laws that property which may be valuable should be literally
destroyed without some attempt to notify the owner . . . or
[without] hav[ing] a hearing on the question whether the
property can be said to be of that class which the statute
intends to condemn," id. at 465. Regarding the 1869 amendment,
the court concluded "to fall within the familiar provisions of
our Constitution . . . [t]he hearing and adjudication spoken of
in the [amendment] must be understood to mean a judicial 17
hearing, with all its incidents, of notice, actual or
constructive[,] trial, and the right of appeal to a jury." Id.
468.
One year after this court's decision in Attorney Gen., the
Legislature passed St. 1870, c. 242, which required notice and a
trial prior to the issuance of a forfeiture decree and provided
the right to appeal from a forfeiture decree. Specifically, the
statute required
"written notice . . . setting forth the substance of the [forfeiture] complaint, [and] commanding the persons, if any, in whose possession the things were found, and the owner, if alleged, and all other persons claiming any interest therein, to appear before said court or magistrate at a time and place therein named, to show cause, if any they have, why the things seized should not be forfeited."
St. 1870, c. 242, § 2. The statute also detailed how notice was
to be served and permitted the trial to be postponed if such
notice was not "duly served." St. 1870, c. 242, §§ 3-4.
It is no coincidence that St. 1870, c. 242, was passed
directly after this court's decision in Attorney Gen., and that
it codified the procedures this court read into the search
warrant statute. The Legislature's intent in passing these
provisions was clearly to ensure that proper procedure was
followed for the issuance of a decree of forfeiture.
Considering this history, we conclude the legislative intent
behind G. L. c. 276, §§ 4 to 8, much like its precursor, is to
provide the necessary procedural process to ensure that 18
forfeiture is not "contrary to the spirit of our laws" and
"fall[s] within the familiar provisions of our Constitution."
Attorney Gen., 103 Mass. at 465, 468. It would therefore be
contrary to the Legislature's intent to read G. L. c. 276, § 3,
as a stand-alone provision, separated from the procedural
safeguards in §§ 4 to 8.
The Commonwealth cites Beldotti v. Commonwealth, 41 Mass.
App. Ct. 185 (1996), cert. denied, 520 U.S. 1173 (1997), in
support of its argument that the "public interest" clause of
G. L. c. 276, § 3, is untethered to the procedural requirements
of §§ 4 to 8. The defendant in Beldotti was convicted of murder
in the first degree for a "brutal sex crime" and sentenced to a
term of imprisonment of life without the possibility of parole.
Id. at 185. The Appeals Court denied the defendant's motion for
the return of property seized from his house pursuant to a
search warrant, reasoning that "[a]lthough property may not be
forfeited simply because it is offensive or repugnant," there
was "a connection between the property . . . and the crime . . .
committed" that warranted forfeiture. Id. at 189.
In deciding Beldotti, the Appeals Court gave no
consideration as to whether the procedural requirements in §§ 4
to 8 had been followed, and it is unclear whether either party
raised the issue on appeal. Accordingly, to the extent that
Beldotti may be read as allowing forfeiture to be accomplished 19
outside of the parameters §§ 4 to 8, it is not correct and not
to be followed. When the Commonwealth seizes property pursuant
to a search warrant, unless another statute governs forfeiture
or the property falls under one of the exceptions enumerated in
§ 3, the procedural requirements of the ensuing sections must be
complied with before a forfeiture decree may be entered.
b. Standard of proof at forfeiture proceedings. Having
determined the procedural requirements of §§ 4 to 8 must be
followed prior to a determination whether forfeiture is in the
"public interest" under § 3, we take this opportunity to clarify
the standard of proof to be applied under the search warrant
statute, as the statute does not specify the applicable
standard. We hold that a preponderance of the evidence
standard, as the general standard in civil cases, applies here
and the burden of proof falls upon the Commonwealth. See Doe,
Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry
Bd., 473 Mass. 297, 309 (2015) (Doe), and cases cited. See also
Andrews, petitioner, 449 Mass. 587, 591 (2007) ("the baseline
rule [is] that the fact finder in a civil case usually employs a
fair preponderance of the evidence standard"). Therefore, in a
forfeiture action brought under the search warrant statute, the
Commonwealth has the burden of proving by a preponderance of the
evidence that "the public interest requires" forfeiture. G. L.
c. 276, § 3. In arriving at this conclusion, we have balanced 20
"the private interests affected, the risk of erroneous
deprivation, the probable value of additional or substitute
safeguards, and the governmental interests involved," and we are
satisfied that this standard of proof accords with due process
(citation omitted). Doe, supra at 311.
c. Waiver. It is undisputed that the procedures set forth
in G. L. c. 276, §§ 4 to 8, were not followed here. As a
threshold matter, the Commonwealth argues that the defendant's
claim of entitlement to such procedure is untimely and waived
because he raised the issue of procedural deficiencies for the
first time in his renewed motion for return of property, rather
than in his original motion. We disagree.
Rather than denying the defendant's renewed motion on
waiver grounds, the Superior Court judge instead reached the
merits of the defendant's claim. Although Rule 61 of the Rules
of the Superior Court (2023), which governs motions for the
return of property, prescribes a particular time period for the
filing of such motions, it also confers discretion upon Superior
Court judges to entertain these motions "at such other time as
the court may allow." Therefore, it was within the judge's
discretion to reach the merits of the defendant's renewed
motion. See Commonwealth v. Haskell, 438 Mass. 790, 792-793
(2003) (discussing judge's discretion to hear renewed pretrial 21
motions pursuant to Mass. R. Crim. P. 13 [a] [5], 378 Mass. 871
[1979]).
d. Application of § 3. Irrespective of any procedural
deficiencies, the Commonwealth argues forfeiture is in the
"public interest" and appropriate in this case because of the
odious nature of the crimes for which the defendant was
convicted, and because of the possibility the disputed hard
drives "may" contain child pornography. We believe such a
determination is premature.
The Commonwealth posits that returning any of the drives
would "result in a high likelihood" of returning child
pornography to the defendant because the drives "may" have been
interconnected with the Kingston drive. In support of these
assertions, the Commonwealth relies entirely on the affidavit of
a State police trooper averring there are "hundreds of images of
unidentified nude or semi-nude females" of indeterminate ages on
the disputed drives that "may" constitute child pornography "if"
the subjects were under eighteen years of age. Additionally,
the trooper asserted that the presence of .lnk files "could"
signify that the drives were "interconnected" to the Kingston
drive, which contains pictures of the victim. The trooper does
not purport to know the likelihood of either possibility being
true. 22
The Commonwealth's arguments here are analogous to those
that it previously presented in Salmons, 96 Mass. App. Ct. at
65, where the Commonwealth objected to the return of the
defendant's seized property based only on speculation. In
Salmons, the defendant was "arrested . . . for assault and
battery and related charges" stemming from an incident of
domestic violence. Id. at 62. As part of the investigation,
the police seized the defendant's three cell phones, two of
which "contain[ed] 'numerous and sexually explicit photographs
and videos of the defendant and [the victim].'" Id. at 63.
The Commonwealth in Salmons filed a motion to erase the
data on the defendant's cell phones based solely on the
possibility "the data on them could be used to harm the victim"
in the future (emphasis added). Id. at 68. To avoid this
purported risk, a judge granted the Commonwealth's motion
without any "finding of fact that such harm was in any sense
likely." Id. at 69. The Appeals Court reversed, reasoning that
mere speculation that "lawful property . . . might be used to
commit a crime or inflict other harm in the future" cannot
overcome "the strong constitutional protections against
governmental deprivations of private property." Id. at 65, 68.
Here, as in Salmons, the defendant's property may not be
forfeited based merely on the speculative concern that harm
could occur if the disputed property were to be returned. There 23
has been no showing (as of yet) to justify that concern.
Significantly, the trooper's supporting affidavit, the only
basis for the Commonwealth's concerns, does not establish that
future harm is likely to occur or that the property in question
constitutes illegal contraband. Instead, the trooper only makes
vague assertions about potential illegality, in that the images
on the disputed drives "may" constitute child pornography "if"
the subjects were under eighteen years old. Such assertions on
their own cannot justify forfeiture at this juncture.
To balance all the competing interests, what is required
are appropriate proceedings in accordance with G. L. c. 276,
§§ 4 to 8, including notice and a trial, so a judge may
evaluate, on a full factual record, the merits of the competing
arguments to determine if a forfeiture decree is in the "public
interest" under § 3. Indeed, this case hinges on numerous
factual disputes and thus requires a fact finder to resolve
them. To be clear, we do not suggest it would be impossible or
even unlikely for the Commonwealth to demonstrate the hard
drives contain child pornography or forfeiture is not otherwise
in the public interest; we conclude only that proceedings
consistent with the requirements of §§ 4 to 8 are necessary for
a judge to make such a determination.
3. Conclusion. The orders of the Superior Court denying
in part the defendant's motion for return of property and 24
denying the defendant's renewed motion for return of property
are vacated and set aside insofar as they denied the return of
certain property. The matter is remanded to the Superior Court
for forfeiture proceedings consistent with this opinion.14 We
express no view on the merits of the issues to be decided.
So ordered.
14We reject the defendant's argument that the only lawful remedy in this case would be an order requiring the return of his property. None of the cases the defendant cites requires this remedy, and in fact, remand was ordered in the majority of these cases. See, e.g., Lindell v. United States, 82 F.4th 614, 622 (8th Cir. 2023), cert. denied, U.S. Supreme Ct., No. 23-950 (Apr. 15, 2024) (remanding to determine whether continued retention of plaintiff's cell phone was justified when "the record ha[d] not been developed on this issue"). See also Nelson v. Colorado, 581 U.S. 128, 139 (2017) (remanding when State had "zero claim of right" to property at issue).