Contributor, The Volokh Conspiracy

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). Nonetheless, the Commonwealth’s argument is unavailing. While probable cause may be based in part on police expertise or on “the practical considerations of everyday life,” see Kaupp, 453 Mass. at 111, such considerations do “not, alone, furnish the requisite nexus between the criminal activity and the places to be searched” or seized. Anthony, 451 Mass. at 72. See Pina, 453 Mass. at 441-442 (officer’s practical experience insufficient basis for probable cause where no “particularized information”).

Moreover, the argument simply “proves too much.” See Coolidge v. New Hampshire, 403 U.S. 443, 480 (1971) (rejecting Fourth Amendment argument that would sweep too broadly). In essence, the Commonwealth is suggesting that there exists a nexus between a suspect’s criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offense, accompanied by an officer’s averment that, given the type of crime under investigation, the device likely would contain evidence. If this were sufficient, however, it would be a rare case where probable cause to charge someone with a crime would not open the person’s cellular telephone to seizure and subsequent search. See Riley, 134 S. Ct. at 2492 (only “inexperienced or unimaginative law enforcement officer . . . could not come up with several reasons to suppose evidence of just about any crime could be found on a cell phone”). We cannot accept such a result, which is inconsistent with our admonition that “individuals have significant privacy interests at stake in their [cellular telephones] and that the probable cause requirement . . . under both the Fourth Amendment . . . and art. 14 . . . [must] serve[] to protect these interests.” See Dorelas, 473 Mass. at 502 n.11.

In a footnote, the court adds:

These interests exist even where, as here, the device does not appear to have all the capabilities of an upmarket “smart phone.” Were the device to possess the enhanced capabilities of a “smart phone,” that would merely implicate even greater privacy concerns.

The court concludes:

The detectives here lacked any information establishing the existence of evidence likely to be found on the defendant’s cellular telephone. We conclude, accordingly, that they lacked the nexus required for probable cause to seize that device. Lacking probable cause, the seizure was by definition improper, and we need not address whether there were exigent circumstances justifying the decision to do so without a warrant.

Maybe some of this is based on Massachusetts law specifically. But to the extent it’s about the Fourth Amendment, I’m not sure this is right.

Here’s my thinking: First, the evidence was quite strong that White had committed the robbery together with two other people. My intuition is that when a mom calls the police saying that her teenage son confessed to committing a robbery yesterday, it’s pretty likely he did it. Second, in 2010, most teenagers had cellphones and used them constantly. According to a 2010 Pew study, three-quarters of 12-to-17-year-olds owned cellphones, and half used them to send at least 50 text messages a day. Phones of that vintage would keep records of the texts, the pictures, phone calls and the like. Given this, I would think the odds are pretty good that a teenager who committed a robbery with two other people and who then confessed about the crime to his mother would have some evidence of the crime somewhere on the phone shortly after the crime occurred.

Are those “pretty good” odds good enough to establish to probable cause? Off the top of my head, it seems like a relatively close call. But without taking a clear position on either side, I’m not particularly convinced by the SJC’s argument that probable cause was lacking.

The SJC ruled that there was no probable cause because the officers lacked a specific reason to know a specific file or kind of file was on the phone. But I’m not sure that “particularized evidence” is required to establish probable cause. First, the requirement of particularized evidence comes from caselaw on the particularity requirement of the warrant clause. It’s not clear it relates at all to the nexus between the crime and the phone, which is about probable cause instead of particularity.

Second, there’s lots of Fourth Amendment caselaw in which a generalized conclusion about certain kinds of crimes has been deemed sufficient to create probable cause to search particular property. Consider the cases in which the government establishes that a suspect is an active drug dealer and then seeks a warrant based on probable cause to search the suspect’s house. Courts have not demanded specific reason to think specific evidence is inside the house. Rather, the understanding is that active drug dealers need a place to put contraband and instrumentalities of crime, and that in general at least some of that is likely to be in the home. Probable cause to believe the person is a drug dealer establishes probable cause to search the person’s home for contraband and the usual instrumentalities of drug dealing.

As Judge Hartz wrote for the 10th Circuit in United States. v. Sanchez, 555 F.3d 910 (10th Cir. 2009):

[W]e think it merely common sense that a drug supplier will keep evidence of his crimes at his home. In United States v. Sparks, 291 F.3d 683, 689–90 (10th Cir.2002), we said that when police officers have probable cause to believe that a suspect is involved in drug distribution, there is also probable cause to believe that additional evidence of drug-trafficking crimes (such as drug paraphernalia or sales records) will be found in his residence. A leading treatise notes our decision in Sparks as among those in which courts have not required particular facts to support the inference that a drug trafficker keeps his supply at his residence. See 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 421–22 n. 170 (4th ed.2004); cf. id. at 421–22 (“[I]t is commonly held that this gap can be filled merely on the basis of the affiant-officer’s experience that drug dealers ordinarily keep their supply, records and monetary profits at home.”)

This kind of intuition came up in the Supreme Court’s oral argument in Riley v. California. The justices wanted to know why it would make a difference to require a warrant to search a cellphone incident to arrest. Given that cellphones store so much evidence, several justices wanted to know, won’t getting a warrant be pretty easy whenever there is probable cause to make the arrest? Consider this exchange with the chief justice:

CHIEF JUSTICE ROBERTS:  The point you make elsewhere in your brief and argument is that the cell phone or the smartphone has everything.
MR. FISHER:  Right.
CHIEF JUSTICE ROBERTS: It’s got the person’s whole life. Well, if you’re arresting somebody on the grounds of suspicion that he’s a gang member and you have evidence to support that, what part of the smartphone is not likely to have pertinent evidence? What application is not? I mean, here you’ve got pictures, you’ve got videos, you’ve got calls.

The SJC’s response, if I am reading it correctly, is that it is interpreting probable cause to make sure that probable cause doesn’t exist in the routine case. To protect privacy, the court is demanding stronger probable cause. And if the phone were a smart phone with a greater likelihood of evidence on the phone, the court would be even more concerned (and, I take the implication to be, perhaps require even more cause).

If my reading is correct, however, I think it’s a bit backward. As I have often written, the massive storage capacity of electronic storage devices raises special privacy concerns that should require some different Fourth Amendment rules. But I don’t think it makes sense to say that the more stuff there is on the phone, the harder it should be to establish probable cause to search it. A more modern phone means a greater likelihood of evidence being found inside it. That should mean it’s easier to establish probable cause, not that it’s harder. The better response to the massive storage capacity of computers is use restrictions on nonresponsive data, not a higher probable cause standard.