[Orin Kerr] Probable cause and cellphone searches

The Massachusetts Supreme Judicial Court has handed down a new case, Commonwealth v. White, that considers this question: When the police have strong reason to believe that a suspect committed a conspiracy crime, and they know the suspect has a cellphone, what showing must they make to establish probable cause that there is evidence of the crime on the phone? The court ruled that there needs to be specific reason to think there is specific evidence on the phone, and that generalized police experience that conspirators have evidence of their crimes on their phones isn’t enough.

I’m not sure the court is right, so I thought I would explain the case and why I’m not entirely persuaded by its reasoning.

The facts of the case are simple. In 2010, three men robbed a convenience store and shot and killed the store clerk. White was a a 16-year-old high school student at the time. The day after the robbery, White confessed to his mother that he was one of the robbers. White’s mom contacted the police, and the police searched her home and White’s grandmother’s house (where White lived) and found clothing that appeared similar to that seen at the crime and at an earlier similar robbery.

The police then seized White’s cellphone. The phone is described as a “pay-as-you-go Samsung/Sprint cellular telephone.” The crime occurred in February 2010, so presumably the phone was from anywhere from a 2010 model to (more likely) a somewhat earlier model. A footnote tells us that the phone “appears to have had various capabilities associated with modern computers, including the ability to do the following: browse the Internet and keep a log of sites visited; send, receive, and store electronic mail messages; support instant messaging; create an address book and calendar; and take and store photographs.” However, the opinion also says the phone “does not appear to have all the capabilities of an upmarket ‘smart phone.'”

When the police searched the phone, they found a photograph of the loot that White had stolen in another similar robbery he had participated in around the same time as the robbery investigated in this case. The police want to use the photograph in their case against White.

For reasons I won’t bore you with, the legal question now is whether the police had probable cause based on the facts at the time they took the phone that there was evidence of crime on the phone.

In a 4-0 opinion by Justice Barbara Lenk, the SJC ruled that the police lacked probable cause because they did not establish a reason to think there was particularized evidence of the robbery on the phone. That is, they didn’t show a specific nexus between the crime and the phone:

[To have probable cause,] police first 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. Id. at 498, 503 (police knew that defendant had been “receiving threatening [tele]phone calls and threatening text messages on his [tele]phone”; probable cause to search telephone for that “particularized evidence”).

They did not have that information in this case, the court rules:

“Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search” or seize the person’s cellular telephone, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence (citation omitted). Commonwealth v. Pina, 453 Mass. 438, 441 (2009). Rather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there.

The Commonwealth argues, however, that the detectives possessed the functional equivalent of such information in the form of the commonsense notion that “cellular telephones are . . . necessary to social interactions.” See Commonwealth v. Augustine, 467 Mass. 230, 245-246 (2014), S.C., 470 Mass. 837 (2015). On this basis, police inferred 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, and that evidence of these communications would be found on the device.

It may well be the case that “many of [those] . . . who own a cell phone [in effect] keep on their person a digital record of nearly every aspect of their lives,” including, presumably, communications with their coventurers. See Riley v. California, 134 S. Ct. 2473, 2490 (2014).