Police Need ‘Particularized Evidence’ to Seize Electronic Devices Without a Search Warrant and Must Diligently Apply for a Warrant After the Seizure

In Commonwealth v. White, 475 Mass. 583, 59 N.E.3d 369 (2016), a Boston police detective investigated an armed robbery and shooting at a convenience store.  His investigation led him to the defendant as one of the suspects.  Visiting the defendant’s high school, the detective learned from one of the administrators that, under the school’s policy, she was holding the defendant’s cell phone.  At the time, the detective had no information that the phone was used in the planning, commission or cover up of the crime, but he was aware that crimes committed by multiple suspects frequently involved the use of cell phones by the suspects.  He thought there might be useful information on the phone; he obtained it from the administrator so that the suspect could not remove or destroy any evidence on it.  He logged it into the department’s evidence room.  Sixty-eight days later, the investigation developed enough information that the police were able to obtain a search warrant to search the phone.  Once charged, the defendant moved to suppress the evidence found on the cell phone.  A Superior Court judge allowed the motion, and the Supreme Judicial Court affirmed the decision after the Commonwealth appealed.

The Court held that, under the Fourth Amendment, the police must have probable cause at the time they seize a cell phone to believe that the phone likely contains evidence relevant to the crime.  The opinion or hunch of a detective that the phone might have such information is insufficient.  The police must “obtain information that establishes the existence of some ‘particularized evidence’ related to the crime.  Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016).  Only then, if police believe, based on training or experience, that this ‘particularized evidence’ is likely to be found on the device in question, do they have probable cause to seize or search the device in pursuit of that evidence.”  475 Mass. at ___, 59 N.E.3d at 375.

The Court also addressed the delay between the seizure of the phone and the search of the device.  A warrantless seizure permits the police to retain the device only for the short period of time required to obtain a search warrant.  The process of obtaining the warrant must be a priority, and failure to obtain a warrant requires the return of the property.  There is no bright line where a reasonable delay becomes unreasonable; it is a balancing test between the nature and quality of the intrusion versus the importance of the governmental interests alleged to justify the intrusion.  One of the important factors in the test is the police diligence in obtaining the warrant.  While the police in this case acted diligently to pursue their criminal investigation, they waited ten weeks to obtain the warrant, and the Court found that unreasonable.  That result is unsurprising given that the Court held that the police did not have probable cause to seize the phone because they had so little information at that point.