The Massachusetts Supreme Judicial Court this week issued its decision inCommonwealth v. White, SJC–1197 (Sept 28, 2016). The case concerned the circumstances in which law enforcement officers may seize a cell phone to advance a criminal investigation. The SJC held that probable cause to seize a phone “may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation.” The Court also ruled that the Commonwealth had not met the burden of demonstrating that the delay between seizure of the phone and application for a search warrant — a delay of sixty-eight days — was reasonable.
The case involved allegations that the defendant in question had participated with others in the commission of a crime. In seizing defendant’s cell phone, the SJC noted, detectives did not rely on “information establishing the existence of particularized evidence likely to be found” on that phone. Rather, they based their seizure on the “commonsense notion” that cell phones are necessary to social interactions and an inference 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 . . . .”