Commonwealth v. Hernandez (Lawyers Weekly No. 10-132-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12089 COMMONWEALTH vs. AARON HERNANDEZ. Suffolk. May 3, 2016. – August 19, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Cellular Telephone. Search and Seizure, Warrant. Practice, Criminal, Warrant. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 1, 2015. A petition for relief under G. L. c. 211, § 3, filed on March 29, 2016, was reported by Botsford, J. Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan & Janis DiLoreto Smith, Assistant District Attorneys, with her) for the Commonwealth. James L. Sultan (Charles W. Rankin with him) for the defendant. SPINA, J. In this case, here on a reservation and report from a single justice of the county court, we consider whether the Commonwealth, by means of an anticipatory search warrant, can obtain possession of a cellular telephone that the defendant, Aaron Hernandez, gave to his attorney for the purpose of obtaining legal advice. For the reasons that follow, we conclude that, pursuant to G. L. c. 276, § 1, a search warrant may issue for the seizure of the telephone because, absent such issuance, there is probable cause to believe that the telephone will be secreted from view.[2] Accordingly, we vacate the order of the Superior Court that reached a contrary conclusion. Background. On July 16, 2012, Daniel de Abreu and Safiro Furtado were murdered in an alleged drive-by shooting in the South End section of Boston. During the investigation of the crimes, Alexander Bradley stated that he witnessed the defendant shoot at five occupants of a 2003 BMW sedan on the date in question. He further stated that on February 13, 2013, while he and the defendant were on vacation together in Florida, the defendant shot him in the head. Bradley also indicated that, following this incident, he communicated with the defendant on multiple occasions between February 14, 2013, and June, 2013, either by calling the defendant or sending him text messages on his cellular telephone. During these conversations, Bradley threatened to sue the defendant and to publicly expose his violent behavior. Around June 16, 2013, the defendant purportedly delivered his cellular telephone to his attorney at Ropes & Gray LLP (Ropes & Gray) for the purpose of seeking legal advice on several matters.[3] On March […]