Privacy SOS

Massachusetts: Your cell phone privacy rights just got a major boost from our state’s high court

Can the police seize your cell phone simply because they suspect you’ve committed a crime? Can law enforcement get a warrant to rifle through your digital life on the basis of a hunch, or because their prior experience tells them that people often use technology to commit crimes? No, according to the Supreme Judicial Court, which this week ruled in a landmark privacy case touching on student rights, the rights of the poor, and digital technologies. Together with the Supreme Court’s 2015 ruling in Wurie/Riley, the decision in Commonwealth v. White provides robust privacy protection for Massachusetts residents’ personal electronic devices, strengthens the warrant requirement, and importantly, clarifies that privacy is not a privilege solely for the rich.

The facts: A murder, a cell phone, and an unreasonable seizure

The case revolves around Onyx White, a Boston resident police suspected, along with two other accomplices, of involvement in a February 2010 convenience store robbery and shooting. Acting on a tip from White’s mother, a Boston police detective zeroed in on White as a suspect. The detective visited the Boston public school where White, then sixteen years old, was a student. An administrator informed the Boston police officer that the school was in possession of White’s cell phone, a pay as you go flip phone. After conferring with his supervisor, the Boston cop seized the phone—without a warrant, and most importantly for this case, without probable cause to believe information on the phone would reveal evidence of a crime.

Later that day, Boston police arrested White on murder charges. Over the next few months, the police obtained numerous search warrants, interviewed witnesses, and conducted other investigative activity related to White’s charges. All this time, White’s cell phone sat in a BPD evidence locker; no one had yet searched it. In April 2010, a witness told the police White had photographs of a robbery on his phone. The police used this information to obtain a search warrant to forensically examine the contents of the phone—which at this point had been in their possession, unsearched, for more than two months. Later, prosecutors introduced evidence from the phone into the prosecution against White.

White’s lawyers filed a motion to suppress the evidence from the cell phone, arguing that law enforcement officers didn’t have probable cause to seize the phone in the first place. A Superior Court agreed, and ordered the evidence suppressed. The Commonwealth of Massachusetts appealed, arguing that the detective’s experience as a law enforcement officer—and his knowledge that phones often contain evidence of crimes—satisfied the probable cause requirement. The SJC, Massachusetts’ high court, took the case. (The ACLU of Massachusetts filed an amicus brief supporting the defendant.)

The ruling: Probable cause doesn’t mean “a hunch”—it means specific, articulable facts

In examining the issue before the court, the Justices of the SJC asked and answered two questions:

  1. Was the seizure of Mr. White’s phone supported by probable cause? Specifically, was the government’s belief that cell phones contain sensitive information that can help solve crimes sufficient to satisfy the probable cause standard? And,
  2. Was it reasonable for the police to wait more than nine weeks to search the device, after they’d seized it?

On the first question, the court ruled no on both counts: “We conclude that 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 and, accordingly, that the seizure here was not supported by probable cause.” On the second question, the court also ruled no: “We separately conclude also that, in these circumstances, the Commonwealth has not, in any event, met its burden of demonstrating that the delay of sixty-eight days between the seizure and the application for a search warrant was reasonable.”

Absent limited emergency circumstances, law enforcement must obtain a warrant to seize a cell phone. If officers don’t get a warrant before seizing a phone, they later have to demonstrate that they had probable cause to seize it, and that evidence would have been destroyed or someone would have been injured had they not immediately seized it. The SJC ruled in White that officers failed to meet the probable cause standard.

What is probable cause? It’s a “substantial basis” for concluding that, in the court’s words, “the item searched or seized contains ‘evidence connected to the crime under investigation.’” While a police officer’s experience may figure into a probable cause determination in some circumstances, the court ruled that where cell phones and computers are concerned, such experience does not suffice. Instead, police have to have reason to believe “particularized evidence” relating to the crime in question will reside on the cell phone in order to meet the probable cause standard required to seize or search it. It’s not enough, in other words, for cops to say, “We know that most criminals use phones.”

The SJC:

Here, prior to seizing the defendant’s cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any “information that [a] cell phone was used in the crime under investigation,” nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant’s cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.

This, without more, does not satisfy the nexus requirement…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.

In short: Police can’t rifle through your electronic devices simply if they suspect you’re involved in criminal activity. After all, the probable cause standard is meant to protect sensitive information from unwarranted government scrutiny, not allow government access on the basis that it’s sensitive. Police have got to be very specific about why they want to search through your devices, and what they think they’ll find, related to the criminal activity in question.

Importantly, rejecting the government’s argument that the seizure was permissible because White’s phone was a cheap flip device, the also court held that this protection applies no matter what type of cell phone the police want to search—dumb or smart. (Imagine the police seizing your car without probable cause on the basis that it’s not the latest model!) Thankfully, the court rejected this line of thinking—and with it, the underlying implication that rich people are more deserving of privacy than poor people, with their not-as-nice stuff.

Finally, in answering the second question before the court, the justices ruled unreasonable the 68-day delay between the moment the detective seized the phone—absent probable cause—and the moment police obtained a warrant to search it.

The context: Bad facts don’t always make bad law

This week’s decision comes on the heels of a landmark decision the Supreme Judicial Court handed down last week, related to physical searches under the rubric of stop and frisk programs. In that case, known as Warren, the SJC ruled that a young Black man might run away from the police not because he’s done something wrong, but rather because he’s tired of being harassed by the police on the basis of his skin color. In that case, the police chased Warren down and arrested him. He was ultimately charged with gun possession. In this cell phone case, White, the defendant, is facing murder charges stemming from a 2010 robbery. But in both Warren and White, Massachusetts’ high court ruled in favor of expanding rights—even the rights of people charged with serious crimes. That’s how our system is designed to work, so kudos to the SJC.

© 2017 ACLU of Massachusetts.