Articles Posted in Search and Seizure

The Supreme Judicial Court recently issued a decision – Commonwealth v. Campbell – affirming the allowance of the defendant’s motion to suppress on the ground that his operation of the vehicle, which had been rented by his mother, did not constitute use without authority under G. L. c. 90, § 24(2)(a), and therefore the police had no lawful basis to seize the vehicle and conduct an inventory search.

The basic facts were as follows. A state trooper “stopped [the] vehicle … for failing to stop at a stop sign. The trooper determined that the vehicle had been rented by the defendant’s mother, who has a last name that is different from the defendant’s. Upon request, the defendant provided [the trooper] with a valid driver’s license and the rental agreement. The agreement listed only the mother as the renter and stated, ‘[N]o other drivers permitted.’ [The trooper] concluded that the defendant was using the vehicle without authority, in violation of G.L. c.90, §24(2)(a), which makes it illegal to ‘use[] a motor vehicle without authority knowing that such use is unauthorized.’ Accordingly, [the trooper] decided to impound the vehicle. During an inventory search in preparation for impoundment, a loaded handgun and a box of ammunition were seized from the vehicle.” There was evidence that “upon learning of the seizures, the defendant made incriminating statements to [the] police.” After he was charged with firearm and other offenses, the defendant moved successfully to suppress the physical evidence and his statements. Continue reading →

This past week, the United States Supreme Court issued a decision holding that “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The decision addressed two unrelated cases – Riley v. California and United States v. Wurie. Riley was stopped for a traffic violation in California. While searching Riley, a police officer seized Riley’s cell phone and searched it. The police found photos and video on the phone that linked Riley to a shooting that had occurred several weeks prior. Riley was subsequently charged with the shooting as a result of the evidence recovered from the phone. Wurie was arrested in Boston for drug distribution. After he was arrested, the police seized his phone. When they arrived at the police station, officers noticed that the phone was receiving several calls from a number saved as “my house.” Officers traced the number to what they believed was Wurie’s apartment, got a search warrant for the apartment, and ultimately recovered drugs, a gun, and ammunition from the apartment. Wurie was subsequently charged with additional drug and firearm charges as a result. While the underlying facts of each case were different, they both deal with the same issue: whether the police have the right to conduct a warrantless search of a suspect’s cellular phone after the suspect has been arrested.

Under the Fourth Amendment, a warrant is required before police can legally conduct a search. Despite this rule, however, there are a number of exceptions to the warrant requirement, including an exception for a search incident to lawful arrest. The search incident to lawful arrest exception allows for the warrantless search of a suspect after his arrest, which includes a search of the suspect’s person, and the area within the suspect’s immediate control. The rationale for the exception is that such a search is necessary to both ensure officer safety, and to prevent the destruction of evidence. In the cases of Riley and Wurie, the court was tasked with determining whether the police should be able to search the data contained on a suspect’s cellular phone in the same way that they can search a suspect’s pockets, or whether standards for cell phones should be different because of the vast amount of personal information they often contain.

When deciding whether an exception to the warrant requirement should be applied, the court must balance the degree of intrusion of an individual’s privacy interests against law enforcement’s need to promote a legitimate government interest. In these cases, the government argued that cell phones should not be treated differently from other objects found on an arrested suspect’s person, such as wallets, purses or address books, and noted that there was an inherent risk that data contained on cell phones could be remotely wiped and evidence lost if officers were required to obtain a warrant before searching the phone. Riley and Wurie argued that the very nature of cell phones and the quantity and quality of information that they contain set them apart from other items typically found on an suspect’s person, and therefore that a search of a cell phone constituted a greater intrusion on individuals’ privacy interests than the typical search incident to lawful arrest. Continue reading →

On February 18, 2013, the Supreme Judicial Court issued a decision in Commonwealth v. Augustine.  In the decision, the court ruled that the Commonwealth must obtain a warrant supported by probable cause before getting cell site location information (CSLI) associated with a particular cellular telephone from cellular telephone providers.  CSLI records include information about a subscriber’s location when using the cellular telephone, and therefore can be used to reconstruct the subscriber’s movements and location over time.

The underlying facts of the case are as follows:  The victim was murdered in 2004.  During the course of the criminal investigation, the police began to focus on Augustine, who had previously dated the victim.  As part of the investigation, the police sought certain records from Augustine’s cellular phone provider (Sprint), including CSLI information that spanned two weeks, beginning on the date of the victim’s disappearance, August 24, 2004.

The Commonwealth applied for the records under a federal statute – 18 U.S.C. § 2703 – which governs the compelled disclosure of customer communications and records to law enforcement.  The statute requires that law enforcement demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.”  The Commonwealth’s application for Augustine’s records was supported by an affidavit from one of the state troopers involved in the murder investigation.  The affidavit stated that the police sought the records to determine the “general location” of Augustine and the victim at the time of the victim’s disappearance, and to potentially include or exclude Augustine as a suspect in the murder.  A Superior Court judge allowed the Commonwealth’s application.  An order compelling the production of the records was sent to Sprint and the CSLI records were subsequently provided to the Commonwealth.  Augustine was charged with the victim’s murder 7 years later, in 2011.

During the course of the court case, Augustine filed a motion to suppress evidence of the CSLI on the ground he had a “reasonable expectation of privacy” in the records, and therefore the police were required to get a valid search warrant based on probable cause before obtaining the records (probable cause is a higher standard of proof than the “specific and articulable facts” required by 18 U.S.C. § 2703).  A reasonable expectation of privacy exists if (1) a person subjectively expects privacy; and (2) the expectation is one that society as a whole would think is legitimate.  Under both the Federal and Massachusetts Constitutions, a search in the constitutional sense occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy.

Augustine argued that because he had a reasonable expectation of privacy, and because the police failed to get a warrant supported by probable cause, his constitutional rights were violated, and therefore the Commonwealth should not be able to use the CSLI records against him at trial.  The Commonwealth argued that there was no search in the constitutional sense because the CSLI records were business records of Augustine’s cellular served provider and therefore Augustine did not have a reasonable expectation of privacy in them. Continue reading →