Commonwealth v. White (Lawyers Weekly No. 10-154-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11917 COMMONWEALTH vs. ONYX WHITE. Suffolk. December 8, 2015. – September 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Cellular Telephone. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Probable cause, Warrant, Fruits of illegal search. Practice, Criminal, Warrant. Indictment found and returned in the Superior Court Department on May 19, 2010. A pretrial motion to suppress evidence was heard by Patrick F. Brady, J. An application for leave to file an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him. Cailin M. Campbell, Assistant District Attorney (David J. Fredette with her) for the Commonwealth. J.W. Carney, Jr. (Danya F. Fullerton with him) for the defendant. The following submitted briefs for amici curiae: David A.F. Lewis, Alexis L. Shapiro, & Christine Dieter for Massachusetts Association of Criminal Defense Lawyers. Vivek Krishnamurthy & Andrew J. Sellars for American Civil Liberties Union of Massachusetts. Alan Butler & John Tran, of the District of Columbia, Marc Rotenberg, & Caitriona Fitzgerald for Electronic Privacy Information Center. Afton M. Templin for Committee for Public Counsel Services. LENK, J. In February, 2010, a Boston police detective investigating an armed robbery and shooting at a convenience store went to the defendant’s high school, after suspicion had focused on the defendant as one of the three perpetrators. The detective spoke with a school administrator, who informed him that, pursuant to school policy, she was holding the defendant’s cellular telephone. After consultation with his supervisor, the detective seized the telephone to prevent the defendant from retrieving it and removing evidence or destroying the device. At that point, however, the detective had no information that the cellular telephone had been used to plan, commit, or cover up the crime, or that it contained any evidence of the crime. From experience, the detective was aware, however, that cellular telephones frequently are used when an offense involves multiple perpetrators. Sixty-eight days later, having held — but not searched — the telephone throughout that period, police obtained a warrant to search it on the basis of information that had emerged after the seizure. A forensic search yielded evidence relevant to the investigation, which the defendant then […]