SJC Remakes Search-and-Seizure Law to Keep Pace with Modern Realities of Smartphone Technology and Race Relations
by Ruth O’Meara-Costello and David Rangaviz
In recent decisions, the Supreme Judicial Court (“SJC”) has cast an increasingly skeptical eye on law enforcement activities in two areas of perennial controversy: the search and seizure of cell phones and electronic data, and police encounters with young black men. The SJC’s review of search and seizure matters has been stringent, as the court has demanded a specific evidentiary basis for searches in both the digital and physical realms. These cases implement in practice the principles that absent reasonable suspicion, an individual may voluntarily terminate a police encounter; before obtaining a warrant, the police must have a particularized reason to believe that evidence will be found in a place to be searched (including a specific folder within an electronic device); and officers need individualized suspicion of a suspect’s involvement in a crime before stopping and seizing the individual. In a series of cases, the court has breathed new life into these oft-stated and staid legal rules, particularly in the context of digital searches.
The court has also explicitly addressed the role of race in interactions between the police and the minority residents of the communities they serve. In doing so, the court has recognized the reality in which many black targets of police investigations live. The SJC has forced the criminal justice system – and the overwhelmingly-white players within it – to imagine what it is to be African-American in an over-policed and underrepresented community. By analyzing what probable cause means in the context of digital searches and relying on social science to understand interactions between police and African-American suspects, the court has brought an added degree of rigor in applying Fourth Amendment principles to the realities of modern American life.
First, in Commonwealth v. Dorelas, 473 Mass. 496 (2016), the SJC reviewed whether a warrant to search an iPhone was supported by probable cause. Police had reason to suspect the defendant was involved in a shooting, and that his iPhone might contain incriminating evidence because the victim had been receiving threatening calls and texts. But the warrant did not authorize a search of just call and text history; it allowed officers to search all of the phone’s other contents, including photographs. Executing the warrant, officers found a photo of the defendant holding a gun and wearing clothing similar to that of the alleged shooter. The defendant sought to suppress the photograph, arguing that there was no probable cause to support the search of the photographs (as opposed to call or text history) and that the warrant did not identify the items to be seized or places to be searched with sufficient “particularity.”
The SJC rejected both arguments in a 4-3 decision, but announced a more demanding standard for searches of the digital contents of a smartphone.[i] The majority noted that given the vast “volume, variety, and sensitivity” of information stored in or accessed through a smartphone, permitting a digital search to extend anywhere targeted information could be found is a “limitation without consequence” in the digital world, because “data possibly could be found anywhere within an electronic device.” In light of those “properties that render an iPhone distinct from the closed containers regularly seen in the physical world,” searches of such electronic data require “special care” and must satisfy a “more narrow and demanding standard” than physical searches. But the majority reasoned that the search into the phone’s stored photographs met that standard because threatening photos received or sent via text could have been stored separately from the texts themselves.
The dissent argued that the potential connection to a threat did not justify a search of the phone’s photographs. It emphasized a forensic examiner’s testimony that extraction of call and text history would have retrieved photographs attached to messages, eliminating any need to search all photographs separately stored on the device. The dissent also argued that the warrant failed to satisfy the Fourth Amendment’s “particularity” requirement because it authorized a general search of the entire iPhone. Given the expansive capacity of today’s smartphones, the dissent likened this to “limiting a search to the entire city.” The dissent thus fully rejected the traditional “container” analogy that generally permits a search of any “container” or file that is capable of containing the evidence sought.
Dorelas reflects a closely-divided court struggling over how to translate analog constitutional rules to modern digital reality. Both the majority and dissenting opinions appreciated the need for a heightened standard on cell phone searches, though they took different approaches when considering the obligation to limit the search’s intrusiveness.
A few months later, in Commonwealth v. Broom, 474 Mass. 486 (2016), the SJC provided further guidance on the kind of evidence needed to justify a cell phone search. The defendant in Broom was charged with the first-degree murder and rape of his former neighbor. His statements to police put at issue his whereabouts the night before the murder. A search of “cellular site location information” (CSLI) – location data associated with the defendant’s cell phone – undercut the defendant’s claims about that night. A search of the contents of his cell phone call log and text messages yielded a crude text message from the defendant to his fiancé suggesting that he was sexually frustrated. On appeal, the defendant challenged admission of both the CSLI and the text message.
The court concluded that probable cause did not exist to search the cell phone.[ii] The court emphasized the heightened Dorelas standard, and concluded that the affidavit in support of the search warrant failed to describe “particularized evidence” that the defendant’s phone would contain evidence relating to the crime. The court completely discounted the detective’s statement that, in his training and experience, cell phones “store vast amounts of electronic data” and thus “there is probable cause”, explaining that such a “general, conclusory statement adds nothing to the probable cause calculus.” While the court found the error in Broom to be harmless, its decision put lower courts on notice that they cannot authorize digital searches merely based on an officer’s training and experience without the kind of specific supporting information present in Dorelas.[iii]
In Commonwealth v. White, 475 Mass. 583 (2016), the court made explicit what it had implied in Broom: “Probable cause to search or seize a person’s cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation.” The search warrant affidavit’s factual basis for the request to search the cell phone in White amounted to two things: (a) there was evidence that the defendant had participated with others in a robbery-homicide, and (b) the officer’s “training and experience” suggested that cell phones generally contain incriminating evidence of communications in multi-defendant cases. The court found this basis insufficient, emphasizing that the existence of probable cause to arrest does not necessarily provide probable cause to search a suspect’s cell phone; the latter requires particularized evidence that the phone was reasonably likely to contain evidence related to the crime. Absent such particularized evidence, a suspect’s cell phone cannot be searched.
The court has also recently taken on the challenge of applying Fourth Amendment rules to the reality of modern racial dynamics. In Commonwealth v. Warren, 475 Mass. 530 (2016), the unanimous court held that an African-American defendant’s flight from the police does not give rise to probable cause for a subsequent search. The SJC emphasized reasons other than consciousness of guilt that an African-American might flee a police encounter: “Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” Citing an ACLU of Massachusetts report about the disproportionate impact of police stops on African-Americans, the court held that flight “add[s] nothing to the reasonable suspicion calculus.” (That study, examining the Boston Police Department’s “stop and frisk” activity, concluded that 63% of Boston police-civilian encounters from 2007 to 2010 targeted African-Americans, who are less than 25% of the city’s population. The Department itself acknowledged that “[t]he study did show some racial disparities that must be addressed.”)
The Warren opinion recognizes the importance of perspective in applying legal doctrine. It attempts to defeat stereotypes that only guilty people flee police encounters, and reconciles the justice system with the reality that black men in Boston have an innocent and legitimate reason to flee the police.
The court’s analytical approach is also noteworthy. As the foregoing cases make clear, the court has not hesitated to change the law to keep pace with changes in technology.[iv] Similarly, the SJC’s opinion in Warren suggests its willingness to alter criminal practice and procedure based on emerging social science research. This forward-thinking perspective is unusual – appellate practitioners are trained to rely upon legal sources: statutes, legislative history, constitutional provisions, and precedent. Indeed, the defense attorney litigating Warren never cited the report about racially-biased police stops in his brief to the Appeals Court and SJC – justices of the Appeals Court cited the study in dissent, and the SJC relied on it to effect a sweeping change in doctrine.[v] The court’s recent receptiveness to this type of outside-the-record social science information is worth noting by appellate advocates.[vi]
Finally, in Commonwealth v. Meneus, 476 Mass. 231 (2017), the court held that a search of a group of young black men who happened to be located near a crime scene was unconstitutional. After gunshots struck a woman’s car, she described having seen a group of young black men run away. The SJC held that such a vague description – “a group of young black males” – falls far short of justifying a search of all people fitting that description. In the court’s words: “[T]he mere presence of a nondescript group of young black males standing near the scene of a reported shooting did not, standing alone, sufficiently narrow the range of possible suspects to include this group of individuals.”[vii] As in Warren, the court refused to rely on the defendant’s flight to find reasonable suspicion. Ultimately, despite the seriousness of the crime under investigation, the court’s decision in Meneus was a rebuke to the conduct of the police. In its emphasis on the need for specific evidence to support suspicion and rejection of the importance of proximity to a crime or presence in a high-crime neighborhood, Meneus complements Warren and emphasizes the court’s determination to stringently uphold constitutional protections for minority groups who may be unfairly targeted by law enforcement.
The complex legal issues posed by digital searches, and the reality of racial profiling, will undoubtedly continue to confront the criminal justice system in Massachusetts and elsewhere. With a quartet of new members, and an additional seat to be filled in the near future, it remains to be seen how the SJC’s search and seizure jurisprudence will grapple with these questions going forward.
[i] The Majority opinion was written by Justice Cordy, and joined by Chief Justice Gants and Justices Spina and Botsford; Justice Lenk wrote the dissent, joined by Justices Duffly and Hines. The defendant was represented by an attorney in the CPCS Public Defender Division Appeals Unit. David Rangaviz, co-author of this piece, had no involvement in the case.
[ii] As to the CSLI, the SJC had previously ruled that the Commonwealth may obtain CSLI only pursuant to a warrant. Commonwealth v. Augustine, 467 Mass. 230 (2014). The Broom court held that the Commonwealth should have sought a warrant for the defendant’s CSLI, but that the error did not require reversal. The SJC found no prejudice in the evidence’s admission because (1) the CSLI was only for the day of and day before the murder, and (2) in light of the defendant’s DNA on the victim police had sufficient probable cause to retrieve his CSLI for those two days anyway. The court thus seemed to suggest that there was no prejudice because a warrant would have issued if sought. (The court has, however, previously rejected the notion that “an illegal warrantless search could be cured by proof that a search warrant, if sought, would have been issued and the evidence inevitably discovered.” Commonwealth v. O’Connor, 406 Mass. 112, 115 (1989).)
[iii] The admission of the contents of the defendant’s cell phone was thus error, but the court upheld the conviction based on the strength of other evidence against the defendant, coupled with the fact that only a single text message was erroneously admitted.
[iv] Another recent opinion follows this trend. In Commonwealth v. Martinez, 476 Mass. 410 (2017), the court held that probable cause that the user of a certain IP address possesses child pornography is generally sufficient to justify a search of the residence assigned that IP address. The court nonetheless recognized that its holding may not “always” hold true as future technology “may further erode the connection between an IP address and a physical address” and “analysis hinges on fluid and rapidly changing technologies.” The court has recently heard argument in Commonwealth v. Keown (SJC-10593), in which the defendant argues that a warrant to search his laptop was insufficiently particularized, and therefore is likely to weigh in again on this issue in the near future.
[v] Justices Peter Agnes and Peter Rubin first cited the study in their dissenting Appeals Court opinions. After their views did not carry the day – a three-justice majority of Chief Justice Rapoza and Justices Cypher and Green disagreed – a unanimous SJC embraced the dissenters’ opinion and rationale.
[vi] The SJC’s interest in evidence-based rulemaking is also apparent in recent decisions (all written by Chief Justice Ralph Gants) regarding eyewitness identification. In Commonwealth v. Crayton, 470 Mass. 228 (2014) and Commonwealth v. Collins, 470 Mass. 255 (2014), the court cited social science to limit the admissibility of in-court identifications. In Commonwealth v. Gomes, 470 Mass. 352 (2015), the court changed its model jury instruction regarding eyewitness identification to incorporate updated research, while “acknowledg[ing] the possibility that, as the science evolves, we may need to revise our new model instruction . . .”. Similarly, in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), the SJC described a protocol, designed to decrease the risk of misidentification, for police to use before providing an eyewitness with a photographic array of potential suspects. The court recently reaffirmed this protocol’s importance in Commonwealth v. Thomas, 476 Mass. 451 (2017). The court will determine whether to extend Crayton and Collins in Commonwealth v. Dew (SJC-12225), currently pending.
[vii] The court also discounted the relevance of a police claim that the events occurred in a “high-crime area” and reiterated calls for caution regarding that claim in a reasonable suspicion analysis.
David Rangaviz is a staff attorney in the Appeals Unit of the Public Counsel Division of CPCS.
Ruth O’Meara-Costello is a partner at Zalkind Duncan & Bernstein LLP. Her practice focuses on criminal defense and student disciplinary matters