Commonwealth v. Ericson (Lawyers Weekly No. 11-050-14)

SIKORA, J.  A Superior Court jury convicted the defendant, Keith Ericson, of soliciting, enticing, or encouraging a child to pose in a state of nudity, G. L. c. 272, § 29A(a), as appearing in St. 1988, c. 226, § 1, and of possession of matter harmful to minors with intent to disseminate, G. L. c. 272, § 28, as appearing in St. 1982, c. 603, § 2.  He challenges the convictions upon multiple grounds.  For the following reasons, we affirm.

Factual background.  The relevant evidence in the light most favorable to the Commonwealth was the following.  See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).  On the afternoon of September 25, 2010, the defendant approached A.S., a sixteen year old female, and her boyfriend in a park in the town of Burlington.  The defendant claimed to have lost his cellular telephone (cell phone) and asked to borrow A.S.’s cell phone.  At the defendant’s direction, A.S. placed a number of calls to the defendant’s phone.  Each call ended with a voice-mail greeting for the construction company “H Super Construction” or “Super Construction.”  After five or ten minutes, the defendant reported that he had located his phone.  Upon leaving the park, A.S. observed the defendant’s black pickup truck.  The license plate read “H Super,” and the truck had a Superman symbol emblazoned on its side.

Later that afternoon, A.S. began to receive text messages from the defendant’s cell phone.  The messages included a number of personal questions.  The defendant asked A.S. her name and age, whether she had a boyfriend, and whether she smoked or drank.  After A.S. responded that she was sixteen years old and that she did not drink or smoke, the defendant asked, “So what can we do?”  He then asked whether she was a virgin, and when A.S. responded that she was not, the defendant replied:

“Ok driving now. Ill text u when stop. Can u text me some pics of u,please? And after u just answered that question, well im sure that we can find something to do,right?”

A.S. decided to go to the police.  During her walk to the Burlington police station, the defendant specified that he wanted pictures which showed him “[e]verything,” “ur face and body.”  When A.S. texted “clothes or not,” the defendant replied, “Not.”

At the police station, A.S. gave her cell phone to Burlington police Officers Matthew Creamer and Scott Lauder.  While the officers inspected the phone, the defendant sent another message requesting pictures of A.S.  The officers took possession of A.S.’s phone and in her persona began communicating with the defendant directly.  Over the next few hours, the defendant boasted about his sexual prowess, described sex acts which he wanted to perform with A.S., and requested pictures of her genitals and buttocks.  He also attempted to arrange a time to see her and told her to delete all of his text messages.  On multiple occasions the officers requested that the defendant send A.S. a nude picture of himself or at least a picture exposing his penis.  The defendant maintained that he would send the requested pictures only if A.S. first sent the pictures which he had requested.  The exchange never occurred.

At around 10:30 P.M., the defendant sent a picture of himself in a tank top from the waist up.  Just before midnight, Officer Creamer — still impersonating A.S. — sent a telephone number to the defendant and requested that he call it.  The defendant replied that he believed that the telephone number belonged to the police.  Officer Creamer then told him to report to the Burlington police station on the following day, September 26.

The defendant did not report as requested.  On the morning of September 27, an unidentified woman delivered the defendant’s cell phone to the Woburn police department as lost property.  While examining the phone to determine its owner, Woburn police Officer Eric Hill observed images of the defendant, his pickup truck, and a penis (the images).  The defendant appeared at the police station to retrieve his phone that afternoon, but he left without it when the police told him that it might be evidence of a crime.

On September 29, Officer Creamer retrieved the cell phone and applied for and obtained a warrant effectively authorizing the search of it and the seizure of, among other items, the digital tank top image.  Later that day, he arranged for the northeastern Massachusetts law enforcement council computer crimes unit (CCU) at the Medford police department to conduct the search.  Seven days later, on October 6, Officer Creamer contacted the CCU and learned that it lacked the proper software to analyze the phone’s contents.  On October 7, he filed the return of the warrant.  Eleven days later, on October 18, Sergeant Matthew Murphy of the cyber enforcement unit of the Middlesex district attorney’s office completed a forensic examination of the phone.

Before trial, the defendant moved to suppress the extracted images of the defendant, the penis, and the pickup truck, seized in the execution of the search warrant.  The trial judge denied the motion.

Analysis.  1.  Search warrant.  The defendant argues that the judge should have suppressed the cell phone images because (a) the execution of the warrant occurred more than seven days after its issuance; (b) the police failed to file the return of the warrant within those seven days; and (c) the seizure by the police of three images of his penis was unlawful because the warrant did not specify their seizure and because the police were not intending to charge the defendant with possession of matter harmful to a minor with intent to disseminate at the time of the seizure.  Each contention presents a question of law.

a.  Execution of warrant.  General Laws c. 276, § 3A, as appearing in St. 1964, c. 557, § 5, provides that “[e]very officer to whom a warrant to search is issued shall return the same to the court by which it was issued as soon as it has been served and in any event no later than seven days from the date of issuance thereof . . . .”  General Laws c. 276, § 2A, inserted by St. 1964, c. 557, § 3, commands the officer executing a search warrant to “make an immediate search.”

Five years ago, the Supreme Judicial Court considered whether “failure to complete forensic examination of [a] defendant’s computer within seven days constitutes a violation of G. L. c. 276, § 3A, and requires suppression of the results of the search of [the] computer.”  Commonwealth v. Kaupp, 453 Mass. 102, 114 (2009).  Police had applied for a warrant to search the defendant’s computer and associated electronic data storage devices on May 30, made a “mirror image” of the computer’s hard drives and storage devices by June 6, and completed a forensic examination of the mirror images of the computer’s hard drives by November.  Id. at 109-110.  On appeal from the denial of his motion to suppress, the defendant argued that the search of his computer over a period of months was unreasonable and violative of G. L. c. 276, § 3A.  Id. at 103.

The court rejected this argument.  After recognizing the conclusion of other jurisdictions that “police do not need to complete forensic analysis of a seized computer and other electronic data storage devices within the prescribed period for executing a search warrant,” id. at 115, and cases cited, the court stated that “[b]ecause a written return listing the devices to be examined was filed seven days after the search warrant issued, there was no violation of G. L. c. 276, § 3A.”  Ibid.

Consistently with the reasoning of Kaupp, we conclude that, if police have obtained a warrant to search and seize evidence from a cell phone in their custody, they must attempt but need not complete a forensic examination of the device within seven days of the warrant’s issuance.^,  The reason for the rule prescribing execution of a warrant within seven days is that “[t]he longer the police wait before executing the warrant . . . the more likely it is that the situation will change so that the facts which supported the magistrate’s determination of probable cause will no longer exist.”  Commonwealth v. Cromer, 365 Mass. 519, 524 (1974).  Where, as here, the cell phone rests in the custody of the police and not of the suspect, the information (content of the cell phone) supporting the probable cause determination is less likely to change.  We conclude that a promptly begun but protracted forensic examination of a cell phone, by itself, does not invalidate an otherwise valid search.    Here, Officer Creamer arranged for a search of the defendant’s cell phone on the same day as the issuance of the warrant.  Seven days later, he learned that the agency assigned to perform the search lacked the necessary software.  A different agency completed a forensic analysis of the phone eleven days later.  On these facts, we hold that the completion of the forensic analysis beyond seven days from the issuance of the warrant did not require allowance of the defendant’s motion to suppress.  The motion judge found specifically that the police had engaged in no bad faith conduct.  Nor was there a lapse in the probable cause supporting the issuance of the warrant.

b.  Return of the warrant.  The late return of the warrant by one day did not compel suppression of the extracted evidence.  “[R]equired warrant return procedures are ministerial, and failure to comply therewith is not ground for voiding an otherwise valid search.”  Commonwealth v. Kaupp, 453 Mass. at 114-115, quoting from Commonwealth v. Cromer, 365 Mass. at 521 n.3.  See Commonwealth v. Pellegrini, 405 Mass. 86, 88 (1989); Commonwealth v. Torres, 45 Mass. App. Ct. 915 (1998).

c.  Incidental discovery of harmful matter.  The defendant contends that police unlawfully secured the images of the penis because the warrant did not authorize their seizure and the police were not intending to charge the defendant with possession of matter harmful to minors with intent to disseminate at the time of the seizure.

Article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution require that a warrant describe with particularity the objects to be seized.  Commonwealth v. Balicki, 436 Mass. 1, 7-8 (2002).  Seizure of objects not identified in a warrant is presumptively unreasonable, and the Commonwealth bears the burden of demonstrating that an exception to the warrant requirement applies.  Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306 (2010).  One such exception is the plain view doctrine.  Ibid.  Under the Fourth Amendment, police may execute a seizure of an object in plain view “(1) where the police are lawfully in a position to view the object; (2) where the police have a lawful right of access to the object; and (3) in cases concerning (a) contraband, weapons, or other items illegally possessed, where the incriminating character of the object is immediately apparent, see Horton v. California, 496 U.S. 128, 136 (1990); Commonwealth v. D’Amour, 428 Mass. 725, 731 (1999) . . . ; or (b) other types of evidence (‘mere evidence’), where the particular evidence is plausibly related to criminal activity of which the police are already aware.”  Commonwealth v. Sliech-Brodeur, 457 Mass. at 306-307.  Article 14 “adds the requirement that the police come across the object inadvertently.”  Id. at 307.

Here, the police executed a valid plain view seizure of three images of the penis.  The defendant acknowledges that they were lawfully situated to view and to secure the images because the warrant authorized the seizure of the tank top image which the defendant had sent on the night of September 25.  Commonwealth v. McDermott, 448 Mass. 750, 776-777 (2007), and cases cited (police may conduct “cursory” inspection of files on a computer to determine whether they match items listed in warrant).  The images of the defendant’s penis were “plausibly related to criminal activity of which the police [were] already aware.”  Commonwealth v. Sliech-Brodeur, 457 Mass. at 306-307.  On the basis of the defendant’s statements of his intent to exchange pictures of his nude body for pictures of A.S.’s, the police had reasonable ground to believe that the images of the penis constituted evidence of his solicitation, enticement, or encouragement of A.S. to pose in a state of nudity, G. L. c. 272, § 29A(a), as well as evidence of possession of matter harmful to minors with intent to disseminate, G. L. c. 272, § 28.  Finally, police discovered the images inadvertently.  See Commonwealth v. Balicki, 436 Mass. at 9-10 (“inadvertence requirement means only that the police lacked probable cause to believe, prior to the search, that specific items would be discovered during the search”).

2.  “Matter” harmful to minors.  General Laws c. 272, § 28, as appearing in St. 1982, c. 603, § 2, provides:  “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished . . . .”  In charging the jury, the trial judge defined “matter” as

“any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, and plays.”

Section 28 draws its definition of “matter” from G. L. c. 272, § 31.  As of the time of the charged conduct on September 25, 2010, § 31 contained the very words used by the judge as well as the word “dances” (“statues, plays, dances”).  See G. L. c. 272, § 31 (definition of “matter”), as amended by St. 2002, c. 161, § 1.  Shortly before, effective July 11, 2010, the Legislature had amended that provision by addition of the following language to the definition of “matter”:

“or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.”

G. L. c. 272, § 31 (definition of “matter”), as appearing in St. 2010, c. 74, § 2.  The Legislature enlarged the definition in response to the decision of Commonwealth v. Zubiel, 456 Mass. 27, 30 (2010), that “the term ‘visual representation’ in § 31 refers to photographs and other images, but not text.”

The defendant contends that the cell phone images here constitute an “electronic communication” contemplated by the 2010 enlargement but omitted by the judge so as to render her instruction deficient.  The argument is not logical.  Both before and after the 2010 enlargement, the statutory definition included the “visual representation” clause communicated by the judge to the jury.  That language covered the defendant’s cell phone images.  See Perry v. Commonwealth, 438 Mass. 282, 285 (2002) (“The phrase ‘any . . . photograph’ means what it says, any photograph without limitation”); Commonwealth v. Zubiel, 456 Mass. at 30-31 (itemization of visual representations); Commonwealth v. Buswell, 468 Mass. 92, 107 (2014) (nude photographs constitute matter harmful to a minor); Commonwealth v. Washburn, 55 Mass. App. Ct. 493, 496 (2002) (computer images “fit comfortably” within the terms “visual representation” and “pictures”).

3.  Conditional intent.  The defendant asserts that his persistent refusal to send A.S. a picture of his nude body until she had transmitted one of hers left the Commonwealth short of proof beyond a reasonable doubt of the essential element of wrongful intent to disseminate matter harmful to minors under G. L. c. 272, § 28.

Viewed in the light most favorable to the prosecution, see Commonwealth v. Latimore, 378 Mass. at 676-678, the evidence established that the defendant, with knowledge of her age, repeatedly offered to send A.S. a picture of his nude body.  His refusal to send the picture unless A.S. first sent him equivalent pictures of herself does not prevent proof beyond a reasonable doubt of the intent to disseminate prohibited by the statute.  Intent may be conditional and still punishable.  See Commonwealth v. Moran, 453 Mass. 880, 885 n.8 (2009); Commonwealth v. Hanright, 466 Mass. 303, 312 (2013) (criminal intent may be “conditional or contingent” on the part of a joint venturer), and cases cited.  It is a “core principle” that “a defendant may not negate a proscribed intent by requiring the victim to comply with a condition that the defendant has no right to impose.”  Holloway v. United States, 526 U.S. 1, 9-11 & n.11 (1999), citing Model Penal Code § 2.02(6) (1985) (“When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense”).  See 1 LaFave, Substantive Criminal Law § 5.2(d), at 350-351 (2d ed. 2003).  Here the condition imposed by the defendant did not nullify the harm or evil of the statutory offense, but rather aggravated it by proposal of a second crime (posing a minor in a state of nudity by solicitation, enticement, or encouragement).

4.  Sufficiency of evidence.  The defendant contends also that the evidence failed to show beyond a reasonable doubt his knowledge of A.S.’s age and his authorship of the text messages to her.  As for the first argument, A.S. testified that she had informed the defendant by text message of her age of sixteen.  He did not object to that testimony and does not now argue that its admission was improper.

As to the second argument, ample circumstantial evidence identified the defendant as the transmitter of the offending text messages through the afternoon and evening of September 25, 2010.  Their timing closely followed the meeting in the park.  The tank top image extracted from the cell phone showed the user of the cell phone as the man in the park.  The law does not require the prosecution to eliminate other potential perpetrators.  Commonwealth v. Salemme, 395 Mass. 594, 601 (1985).  See Commonwealth v. Robinson, 30 Mass. App. Ct. 62, 72 (1991).  Circumstantial evidence alone will satisfy the Latimore standard.  Commonwealth v. Martino, 412 Mass. 267, 272 (1992).  Commonwealth v. Platt, 440 Mass. 396, 401 (2003).

5.  Curfew.  On the conviction of soliciting, enticing, or encouraging a child to pose in a state of nudity, G. L. c. 272, § 29A(a), the judge sentenced the defendant to a term of not less than ten and not more than twenty years in State prison; and on the conviction of possession of matter harmful to minors with intent to disseminate, G. L. c. 272, § 28, to a consecutive probationary term of ten years, including among its conditions a nighttime curfew from 10:00 P.M. to 6:00 A.M., seven days per week.

The defendant proposes that we vacate the curfew condition because (1) it is not related to his personal characteristics or the underlying crime, and (2) it will interfere with his capacity to conduct a business and to support his family.  Because he did not preserve this argument below, we review to determine only whether an error has occurred and, if so, whether it created a substantial risk of a miscarriage of justice.  Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 858 (2009) (unpreserved issue of probationary terms), citing Commonwealth v. Simmons, 448 Mass. 687, 690-691 (2007).

General Laws c. 276, § 87, confers broad discretion upon a judge to place a defendant on probation and to impose reasonable conditions.  See Commonwealth v. Goodwin, 458 Mass. 11, 16 (2010); Commonwealth v. Rousseau, 465 Mass. 372, 389 (2013).  The primary goals of a probation program are the rehabilitation of the probationer and protection of the public by supervision of the probationer.  Commonwealth v. LaFrance, 402 Mass. 789, 795 (1988).  “Other recognized goals . . . include punishment, deterrence, and retribution.”  Commonwealth v. Power, 420 Mass. 410, 415 (1995).  The objectives “are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.”  Commonwealth v. Pike, 428 Mass. 393, 403 (1998).

If a probation condition restricts the exercise of a constitutionally protected right, the condition must reasonably relate to a probationary goal.  Commonwealth v. Power, supra at 416-417.  That standard turns closely on “the circumstances and characteristics of the particular defendant and his offenses.”  Commonwealth v. Gomes, 73 Mass. App. Ct. at 859.  As a general rule, “probationer[s do not] have a right to be free from conditions that severely restrain [their] freedom of action.”  Commonwealth v. Power, supra at 416, quoting from United States v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979).

In the present circumstances, the imposition of the curfew did not constitute an abuse of discretion.  Before sentencing, the Commonwealth submitted information that the defendant had been a level three sex offender at the time of the underlying offenses; that he had a history of twenty-eight criminal convictions; and that the history included convictions of rape and abuse of a child, and annoying and accosting a person of the opposite sex.  See Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001) (“A judge, in furnishing an appropriate individualized sentence, may consider ‘many factors which would not be relevant at trial including hearsay information about the defendant’s character, behavior, and background’”), quoting from Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993).

That history established the defendant’s dangerous behavior as recidivist.  The judge reasonably could have concluded that imposition of the curfew was properly related to the probationary goals of protection of the public and deterrence.  See Commonwealth v. Lapointe, 435 Mass. at 457-458, 459-461 (upholding condition preventing the probationer from living with any of his minor children, current or future, even though it affected his right to association, because the condition was reasonably related to the goals of probation); Commonwealth v. Kendrick, 446 Mass. 72, 75-77 (2006) (upholding condition that the probationer have no contact with children under sixteen and implied condition that he avoid any locations where he was likely to come into contact with children under sixteen); Commonwealth v. Williams, 60 Mass. App. Ct. 331, 332 (2004) (upholding condition that the probationer refrain from any use of alcohol even though his criminal case did not involve any evidence of alcohol use or abuse).

The law permits the modification of probationary terms.  Although statutory authority does not expressly confer that power, Commonwealth v. Goodwin, 458 Mass. at 16 n.7, “[u]nder our common law, a judge has authority to modify or add conditions of probation ‘to serve the ends of justice and the best interests of both the public and the defendant.’”  Id. at 16, quoting from Buckley v. Quincy Div. of the Dist. Court Dept., 395 Mass. 815, 817 (1985).  Successful performance of the original terms of his program would make the opportunity for discretionary modification available to the defendant.

Conclusion.  We therefore affirm both judgments, including the terms of probation imposed upon the offense of possession of matter harmful to minors with intent to disseminate.

Judgments affirmed.

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