Commonwealth v. Shipps

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18-P-944 Appeals Court
18-P-945

COMMONWEALTH vs. GEORGE SHIPPS.1

Nos. 18-P-944 & 18-P-945.

Suffolk. March 1, 2019. - February 7, 2020.

Present: Maldonado, McDonough, & Englander, JJ.

Obscenity, Child pornography. Cellular Telephone. Practice,
Criminal, Revocation of probation, Motion to suppress.
Constitutional Law, Search and seizure. Search and
Seizure, Probationer, Expectation of privacy, Fruits of
illegal search.

Indictments found and returned in the Superior Court
Department on March 25, 2010.

A motion to suppress evidence in a proceeding for
revocation of probation was heard by Robert N. Tochka, J., and
questions of law were reported by him to the Appeals Court.

Indictments found and returned in the Superior Court
Department on July 7, 2016.

A pretrial motion to suppress evidence was heard by Tochka,
J.; a motion for reconsideration was considered by him; and
questions of law were reported by him to the Appeals Court.

1 This appeal involves two cases by the Commonwealth against
the same defendant.
2

Eric A. Haskell, Assistant Attorney General, for the
Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.

McDONOUGH, J. In this appeal, we address the

constitutionality of a cell phone search conducted by a

probation officer pursuant to a condition of probation. The

condition was imposed following the defendant's guilty pleas to

child pornography crimes committed while using an electronic

device, namely, a computer. It authorized the probation

department to conduct unannounced searches of the defendant's

electronic devices "for the purpose of monitoring compliance

with" other conditions, one of which required that the defendant

not "view, possess, or access any pornographic images or movies

of any kind."

During such a search of the defendant's cell phone, limited

exclusively to opening a photograph application (photo

application), a probation officer immediately recognized images

of child pornography, at which point he ended the search. This

discovery triggered a notice of probation violation for

possession of child pornography (probation case). In addition,

the discovery was used to obtain a search warrant for the

defendant's residence.2 When the State police executed that

2 The State police later obtained another search warrant
authorizing a search of the defendant's cell phone, which had
3

warrant, they seized two "thumb drives" and a laptop computer

containing approximately one hundred images of child

pornography. A grand jury indicted the defendant on a charge of

possession of child pornography, as a subsequent offense

(criminal case).

The defendant moved to suppress the child pornography

images in both his probation case and his criminal case. A

Superior Court judge denied the motion in the probation case,

but allowed the motions in the criminal case. After denying the

Commonwealth's motion for reconsideration, the judge allowed the

Commonwealth's motion to report to this court the following two

questions of law:

1. "Can the fruits of the probation officer's search of
the defendant's cell phone pursuant to a probation
condition authorizing the Department of Probation to
inspect and search any of the defendant's electronic
devices, including his cell phone, without prior
announcement be admitted into evidence in a subsequent
probation violation proceeding in SUCR2010-10335?"

2. "Can the fruits of a search of the defendant's
residence pursuant to a search warrant, obtained based on
information gathered as a result of the probation officer's
search of the defendant's cell phone, be admitted into
evidence in the defendant's criminal trial (SUCR2016-
00512)?"

See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004).

remained in the possession of the police after the child
pornography images were found by the probation officer.
4

On the facts and circumstances presented by this appeal,

with certain qualifications explained infra, we answer both

questions in the affirmative. We therefore affirm the order

denying the defendant's motion to suppress in his probation

case, and reverse the orders allowing the motions to suppress in

his criminal case.

Background. 1. Probation conditions. In 2011, the

defendant pleaded guilty to eight counts of child pornography,

including possession and dissemination of several thousand

images of child pornography depicting children, some

prepubescent, and others as young as infants, engaged in sex

acts.3 A judge sentenced the defendant to three to five years in

prison, followed by an aggregate term of ten years' probation.

One probation condition forbade the defendant from "view[ing],

possess[ing], or access[ing] pornographic images or movies of

any kind." A related condition required the defendant to "allow

the Department of Probation to inspect and to search, without

prior announcement, any computer, electronic device, digital

media, videotape, photographs or other item capable of storing

3 At the defendant's change of plea hearing, he admitted to
using his computer to participate in online peer-to-peer file
sharing of child pornography, and to possessing thousands of
computer files of child pornography, some depicting children as
young as infants.
5

photographs, images, or depictions, for the purpose of

monitoring compliance with these conditions of probation."4

2. Motions to suppress.5 "When reviewing a motion to

suppress, we accept the subsidiary findings of fact made by the

motion judge and give deference to the judge's ultimate

conclusions that are supported by the evidence. Nevertheless,

where the ultimate findings and rulings bear on issues of

constitutional dimension, they are open for review" (quotation

and citations omitted). Commonwealth v. McDermott, 448 Mass.

750, 762, cert. denied, 552 U.S. 910 (2007). The parties do not

contest the judge's findings of fact, which we summarize,

supplemented by uncontroverted testimony and representations

that are consistent with the findings. See Commonwealth v.

Jones-Pannell, 472 Mass. 429, 431 (2015).

a. Probation officer's warrantless search of cell phone.

In April 2016, the defendant, who had completed the prison

sentence imposed in his prior criminal case, attended a

regularly scheduled visit with his probation officer, Edward

Phillips, at the Suffolk County Court House. Phillips reviewed

4 The defendant raised no objection to the probation
conditions at his sentencing, nor did he appeal from his
sentence, which included those conditions.

5 By agreement of counsel, the motion judge conducted a
single evidentiary hearing covering the defendant's motions to
suppress in both his probation case and his criminal case.
6

the defendant's probation conditions with him, as Phillips had

done "at least every other office visit." After reviewing the

condition permitting unannounced searches of the defendant's

electronic devices, Phillips asked the defendant, in a "[p]olite

and respectful" tone, "[M]ay I see your phone?"6 Phillips did

not then suspect that there were any pornographic images on the

cell phone. Without protest, the defendant, who remained

"relatively calm" and did not appear confused or intoxicated,

removed his cell phone from his pocket and handed it to

Phillips. The cell phone was already turned on and unlocked.

On the screen, Phillips saw a photo application "out in the

open"; it was not "in a hidden folder or anything like that."

Phillips accessed the application and saw "images that [he]

believe[d] to be child pornography," which "came right up."7

6 During past reviews of this probation condition, the
defendant never objected to it.

7 There was no finding from the motion judge concerning how
long the search took. From our reading of the transcript of
Phillips's testimony, it appears his search took but seconds:

Q.: "Can you tell us what happened during the visit?"

A.: "I reviewed the conditions of probation with Mr.
Shipps, and after reviewing the [device inspection]
condition . . . , I asked him to turn his phone over to me
for inspection. He voluntarily handed it over. I . . . hit
the photos app on the [unlocked] phone, observed images that
I believe to be child pornography. I showed him the phone,
asked him if he believed that those images were appropriate.
He answered, no. . . ."
7

Phillips asked the defendant if he thought the images were

appropriate. While remaining calm, the defendant responded,

"[N]o." Phillips did not access any other applications on the

cell phone. The child pornography images were the "first -- the

only thing" Phillips looked at on the cell phone, and he did not

"click on anything else."

When Phillips began preparing a probation violation notice,

the defendant asked if he could delete the pornographic images

from his cell phone. Phillips responded, "[A]bsolutely not."

Phillips then called in the probation department assistant

chief, who read Miranda rights to the defendant, brought him

into the magistrate session, and told him to stay there. When

Phillips subsequently saw the defendant standing in the hallway

near the elevators, Phillips advised the defendant that he

needed to stay in the court room. Instead, the defendant fled

the court house, and soon thereafter, at the probation

department's request, a judge issued a warrant for the

defendant's arrest.

The defendant filed a motion to suppress in his probation

case. He argued that the probation officer's search was not

based on reasonable suspicion that the cell phone contained

images of child pornography, relying on Commonwealth v.

LaFrance, 402 Mass. 789, 795 (1988) ("art. 14 bars . . . blanket

threat of warrantless searches"), and Commonwealth v. Waller, 90
8

Mass. App. Ct. 295, 304-305 (2016) (probation condition allowing

suspicionless searches of defendant's home impermissible). The

judge denied the defendant's motion. He concluded that because

Phillips did not have reasonable suspicion that the defendant's

cell phone contained pornographic images, the search and seizure

were unlawful under the principles of Commonwealth v. Moore, 473

Mass. 481, 487 (2016) (noting that court "decided in LaFrance[,

402 Mass. at 792-793,] that art. 14 guarantees that any

condition of probation compelling a probationer to submit to

searches must be accompanied by reasonable suspicion . . . [and]

[t]his interpretation remains the standard for probationer

searches under art. 14"); LaFrance, 402 Mass. at 792 ("for art.

14 purposes . . . 'reasonable suspicion' . . . will justify a

search of a probationer and her premises"); and Waller, 90 Mass.

App. Ct. at 304 ("Under art. 14, a reduced level of suspicion,

such as 'reasonable suspicion,' will justify a search of a

probationer and her premises, but any standard below . . .

reasonable suspicion will not" [quotations and citation

omitted]). Nevertheless, the judge declined to apply the

exclusionary rule to the evidence in the defendant's probation

case. He reasoned that "[i]n the unique circumstances of this

case, where Phillips . . . was merely enforcing the probation

conditions that the court imposed on [the defendant] . . . ,

applying the exclusionary rule . . . would have no deterrent
9

effect on police misconduct or the misconduct of probation

officers and 'would be unlikely to serve any deterrent purpose.'

Commonwealth v. Simon, 57 Mass. App. Ct. 80, 87 (2003)."8

b. State police searches conducted pursuant to warrants.

State Police Sergeant Erik Gagnon obtained a search warrant

based on the child pornography images seized through Phillips's

search of the defendant's cell phone, and on his flight from the

court house. The warrant sought child pornography images on the

defendant's electronic devices located in the bedroom and common

areas of his residence. The execution of the warrant led to the

seizure of two thumb drives and a laptop computer containing

approximately one hundred images of child pornography.

Thereafter, Gagnon applied for and was granted a warrant to

search the defendant's cell phone. The defendant then filed, in

his criminal case, two motions to suppress: (1) a motion to

suppress the evidence obtained from Phillips's warrantless

8 In denying the defendant's motion to suppress in his
probation case, the judge relied on Commonwealth v. Olsen, 405
Mass. 491, 493 (1989) ("In Federal law and in most
jurisdictions, the exclusionary rule does not apply as a matter
of course to probation revocation proceedings because the
application of the exclusionary rule is restricted to those
areas where its remedial objectives are thought most
efficaciously served [quotation and citation omitted]), and
Simon, 57 Mass. App. Ct. at 88 (even if involuntary,
probationer's admission that he had been driving without license
was admissible in probation revocation proceeding because there
was no evidence of police harassment or improper police focus).
10

search of the cell phone, in which he argued that the search was

unconstitutional because it was not supported by reasonable

suspicion; and (2) a motion to suppress the evidence obtained

from the cell phone, laptop computer, and thumb drives that were

seized pursuant to search warrants, in which he argued, in

essence, that this evidence was the "fruit of the poisonous

tree," as the search warrants were issued based on evidence

obtained from Phillips's unlawful search of the cell phone. The

judge allowed the defendant's motions to suppress in the

criminal case. In a margin order, the judge indicated that

while Phillips's suspicionless search of the cell phone was

unlawful, the evidence obtained from that search was admissible

in the probation case because the exclusionary rule was not

applicable to a probation violation hearing; however, the

exclusionary rule applied in the criminal case and prohibited

the admission of the evidence obtained from Phillips's search

and the evidence obtained from the execution of the search

warrants.

Discussion. On appeal, the defendant contends that

Phillips's search violated his rights under the Fourth Amendment

to the United States Constitution and art. 14 of the

Massachusetts Declaration of Rights because Phillips had no

reasonable suspicion that the cell phone contained pornographic

images. We disagree. We conclude that on the facts and
11

circumstances before us, Phillips properly conducted an

unannounced, limited search of the defendant's cell phone photo

application pursuant to an enforceable condition of his

probation.9

Pursuant to G. L. c. 276, § 87, a judge may place a

defendant on probation "for such time and upon such conditions

as [the judge] deems proper." As a result, a probationer

"lawfully may be subjected to reasonable restraints on freedoms

enjoyed by law-abiding citizens" (quotation and citation

omitted). Commonwealth v. Feliz, 481 Mass. 689, 700 (2019). A

probationer's "liberty interest is conditional, granted . . . as

a matter of grace by the Commonwealth" (quotation and citation

omitted). Commonwealth v. Kelsey, 464 Mass. 315, 321 (2013).

Consequently, that liberty interest "depends on that defendant's

9 In the Superior Court, the defendant raised no facial
challenge to the constitutionality of the probation condition at
issue. On appeal, his brief devotes two sentences to the issue,
claiming, in conclusory fashion, that the condition "was not
'facially valid.'" Thus, we do not address that issue. See
Commonwealth v. Harris, 481 Mass. 767, 774 (2019) (issue not
raised below is waived); Adjartey v. Central Div. of the Hous.
Court Dep't, 481 Mass. 830, 848 n.26 (2019) (court need not
address issue not adequately briefed). We note, however, that
"[a] facial challenge is an attack on a statute itself as
opposed to a particular application . . . [and] [f]acial
challenges are disfavored because they run contrary to the
fundamental principle of judicial restraint" (quotations and
citations omitted). Harris, supra at 771.
12

compliance with the conditions imposed by the sentencing judge."

Commonwealth v. Eldred, 480 Mass. 90, 97 (2018).

When crafting a probation condition, the judge should

consider "[t]he primary goals of probation[,] . . .

rehabilitation of the defendant and protection of the public

from the defendant's potential recidivism." Eldred, 480 Mass.

at 95. See Waller, 90 Mass. App. Ct. at 304 (noting goals of

probation also include punishment, deterrence, and retribution).

In order to effectuate those goals, a judge may impose a

condition that "remove[s] the defendant from situations in which

[the defendant] presents a danger and . . . eliminate[s] the

risk" of future recidivism. Commonwealth v. Lapointe, 435 Mass.

455, 460 (2001). A sentencing judge has "great latitude in

imposing conditions of probation" because "[t]he success of

probation as a correctional tool depends on judges having the

flexibility at sentencing to tailor probation conditions to the

circumstances of the individual defendant and the crime that

[the defendant] committed" (quotation and citation omitted).

Eldred, supra at 95, 96. Consequently, a probation condition is

"enforceable so long as the condition is reasonably related to

the goals of sentencing and probation . . . [e]ven where a

condition of probation affects a constitutional right"
13

(quotation omitted).10 Id. at 96 (random drug and alcohol

testing reasonably related to goal of addressing substance abuse

issue that motivated defendant to commit larceny). See, e.g.,

Commonwealth v. Obi, 475 Mass. 541, 542, 548 (2016) (upholding

probation condition mandating that defendant landlord disclose

conviction of assaulting tenant and harassment prevention orders

obtained by tenants to all prospective tenants in interest of

promoting public safety); Lapointe, supra (probation condition

forbidding defendant from residing with minor children

[including his own] properly tailored to prevent recidivism

where defendant lived with prior victims, sexually abused his

own daughter, and leveraged familial connections to perpetrate

sexual abuse); Waller, supra (probation condition prohibiting

defendant from owning animals reasonably related to conviction

of animal cruelty); Commonwealth v. Veronneau, 90 Mass. App. Ct.

477, 481-482 (2016) (holding that probation condition requiring

firearms surrender was reasonable given defendant's conviction

10In Eldred, 480 Mass. at 96, the Supreme Judicial Court
concluded that "[a]lthough random drug and alcohol testing
constitutes a search and seizure for constitutional purposes
under art. 14 of the Massachusetts Declaration of Rights, such
testing is nonetheless a permissible condition of probation so
long as it is reasonably related to legitimate probationary
goals." Here, the defendant maintains that any reference to
art. 14 in Eldred is dictum, because the defendant in that case
challenged the probation condition requiring her to remain drug-
free, rather than the condition imposing the drug screens
themselves. We are unpersuaded by the distinction.
14

of carrying loaded firearm while under influence of intoxicating

liquor). Cf. Commonwealth v. Guzman, 469 Mass. 492, 493, 497-

500 (2014) (judge erred by not imposing statutory global

positioning system monitoring as condition of probation of

person convicted of dissemination of visual material depicting

child in state of nudity or sexual conduct; applying "rational

basis" test, statutory condition did not violate due process).

Contrast Commonwealth v. Pike, 428 Mass. 393, 393-394, 404-405

(1998) (invalidating probation condition banning defendant from

Commonwealth following conviction of unauthorized use of motor

vehicle where condition did not advance any public safety goal

or aid rehabilitation).

Although probation conditions may infringe on

constitutional rights, "the government does not have an

'unlimited' ability to infringe upon a probationer's still-

existing, albeit diminished, expectations of privacy." Feliz,

481 Mass. at 700-701. See id. at 690-691 ("Article 14 requires

an individualized determination of reasonableness in order to

conduct more than minimally invasive searches, and [global

position system] monitoring is not a minimally invasive

search"); LaFrance, 402 Mass. at 795 ("art. 14 bars the

imposition on probationers of a blanket threat of warrantless

searches"). Cf. Moore, 473 Mass. at 487 (individualized

suspicion is required to search parolee's home). The case law
15

accordingly requires that courts assess whether the burden

imposed on the probationer is reasonable in light of the

Commonwealth's legitimate interests in rehabilitation of the

probationer and protection of the public. See Feliz, supra at

700-701. "The more tenuous the relationship between a given

condition and the goals of probation, and the more extensively a

constitutional right is burdened, the less likely the condition

is to be permissible." Obi, 475 Mass. at 547.

When assessing a search for "constitutional

reasonableness," "courts conduct a balancing test that weighs

the need to search or seize against the invasion that the search

or seizure entails," based on the "totality of the

circumstances" (quotations and citations omitted). Feliz, 481

Mass. at 700, 701. A probationer's "diminished expectation of

privacy relative to the general population . . . informs our

assessment of both the degree to which [a search] intrudes upon

an individual's privacy and the degree to which it is needed for

the promotion of legitimate governmental interests" (quotations

and citation omitted). Id. at 700. In Commonwealth v. Feliz,

the Supreme Judicial Court held that a statute11 requiring judges

to impose global positioning system (GPS) monitoring as a

condition of probation for individuals convicted of most sex

11 See G. L. c. 256, § 47.
16

offenses was "overinclusive in that GPS monitoring will not

necessarily constitute a reasonable search for all individuals

convicted of a qualifying sex offense." Id. at 690. Thus,

"[t]o comport with art. 14, prior to imposing GPS monitoring on

a given defendant, a judge is required to conduct a balancing

test that weighs the Commonwealth's need to impose GPS

monitoring against the privacy invasion occasioned by such

monitoring." Id. at 691. As to Feliz, the court concluded that

the privacy invasion (specifically, the breadth of continuous

information the GPS monitor collected, the physical intrusion of

a device attached to the body for an extended period of time,

and the level of intrusion into Feliz's ability to work)

outweighed the Commonwealth's reason for imposing GPS monitoring

because the Commonwealth did not establish that Feliz posed a

threat of violating the terms of his probation or that the GPS

monitoring assisted in his rehabilitation or protected children.

See id. at 704-709. Conversely, in Commonwealth v. Johnson, 481

Mass. 710, 726-727 (2019), the court held that "[s]imply

comparing subsets of the defendant's GPS location data recorded

while he was on probation to the general times and places of

suspected criminal activity during the probationary period is

not a search in the constitutional sense." The court concluded

that the "targeted" use of this stored data was "quite different

from . . . rummaging through the defendant's historical GPS
17

location data indiscriminately." Id. at 727. In addition, the

court noted that "[s]o long as the review is targeted at

identifying the defendant's presence at the time and location of

particular criminal activity during the probationary period, it

is not a search, as such review is consistent with a

probationer's limited expectations of privacy." Id.

Here, the Commonwealth argues that Phillips's targeted,

limited search of a single photo application on the defendant's

cell phone for prohibited pornography in accordance with a

condition of probation was proper. The Commonwealth contends

that the condition was tailored to the child pornography crimes

using an electronic device for which the defendant was placed on

probation, and advanced the probationary goals of rehabilitation

and protection of the public. We agree. Phillips's limited

cell phone photo application search precisely targeted the very

criminal conduct to which the defendant admitted when he pleaded

guilty -- using his electronic device to possess child

pornography. Consequently, we conclude that Phillips's search

was "narrowly tailored" to fit the defendant's crimes. Eldred,

480 Mass. at 95, quoting Criminal Sentencing in the Superior

Court: Best Practices for Individualized Evidence-Based

Sentencing, Principle 8 (2016) ("Special conditions of probation

should be narrowly tailored to the criminogenic needs of the

defendant/probationer while providing for the protection of the
18

public and any victim"). See Obi, 475 Mass. at 547 ("The goals

[of probation] are best served if the conditions of probation

are tailored to address the particular characteristics of the

defendant and the crime" [quotation and citation omitted]).

See, e.g., Lapointe, 435 Mass. at 457, 460-461; Veronneau, 90

Mass. App. Ct. at 481-482; Waller, 90 Mass. App. Ct. at 304.

Contrast Pike, 428 Mass. at 405 (invalidating probation

condition prohibiting defendant, who was convicted of

unauthorized use of motor vehicle, from entering Massachusetts

because Commonwealth failed to "explain how the defendant's

presence on a Massachusetts roadway, as opposed to a roadway in

some other State, was a critical influence sparking his criminal

conduct").

Just as importantly, Phillips's search reasonably advanced

the probationary goals of rehabilitation and public safety.

"The prevention of sexual exploitation and abuse of children

constitutes a government objective of surpassing importance.

. . . In addition, the Commonwealth has a vital interest in

rehabilitating convicted sex offenders, . . . in part because

rehabilitation protects the public, by reducing the possibility

of future offenses" (quotations omitted). Feliz, 481 Mass. at

702. "[T]he Commonwealth also has a vital interest in

protecting the children exploited by the [child pornography]

production process. . . . The reproduction and dissemination of
19

child pornography itself harms the children who are depicted and

revictimized with each viewing" (quotation omitted). Id. at

703. See Lapointe, 435 Mass. at 460 (judge may impose probation

condition "remov[ing] the defendant from situations in which

[the defendant] presents a danger" to others to deter future

offenses).

We also agree with the Commonwealth that the search

permitted by this probation condition strikes a proper balance

between maintaining the defendant's privacy interests and

advancing the Commonwealth's interests in rehabilitation and

public safety. See Feliz, 481 Mass. at 700-701. Phillips's

brief and limited search of a single cell phone photo

application is akin to the "one-time, minimal physical

intrusion" generated through deoxyribonucleic acid, drug, and

alcohol testing. Id. at 704. See Eldred, 480 Mass. at 96. The

probation condition at issue limited Phillips to "monitoring

[the defendant's] compliance" with the condition forbidding

Phillips from possessing pornographic images of any kind on his

electronic devices. Phillips's limited, defined search stands

in stark contrast to the impermissible "blanket" searches in

LaFrance, 402 Mass. at 790 (concluding that probation condition

requiring defendant to "submit to search of herself, her

possessions, and any place where she may be, with or without a

search warrant, on request of a probation officer" was
20

unconstitutional), and Waller, 90 Mass. App. Ct. at 304

(concluding that probation condition ordering that defendant's

home "be open for mandatory random inspections" was

unconstitutional).12 Although the defendant correctly highlights

that cell phones contain a great deal of personal information,13

in this case, Phillips hardly "rummag[ed] through . . . [the

12We reject the defendant's contention, raised in a letter
submitted pursuant to Mass. R. A. P. 16 (l), as appearing in 481
Mass. 1634 (2019), that Phillips's search was unlawful under our
recent decision in Commonwealth v. Judge, 95 Mass. App. Ct. 103
(2019). There, we held that evidence seized from a parolee's
home during a routine unannounced parole home visit -- permitted
under the terms of the parole manual -- without prior reasonable
suspicion must be suppressed because, among other reasons, the
visit was not conducted pursuant to a neutral written policy
providing standard procedures and limiting parole officer
discretion. See id. at 109-110. The defendant argues that
Phillips's search was unlawful under Judge because
administrative and special needs searches "generally must be
conducted pursuant to a neutral policy that limits both
arbitrariness and the discretion of the officials conducting the
search." Id. at 108. We disagree. Unlike in the instant case,
there was no discussion in Judge of any relationship between the
nature of the defendant's underlying offense and whether the
subject parole condition addressed any unique circumstance of
his offense.

13"It is well established that under the Fourth Amendment
to the United States Constitution and art. 14 of the
Massachusetts Declaration of Rights, the police are ordinarily
required to obtain a search warrant before a search of the
contents of an electronic device may take place. See, e.g.,
Riley v. California, 573 U.S. 373, 386 (2014) (cell phones);
Commonwealth v. Mauricio, 477 Mass. 588, 594 (2017) (digital
cameras); Commonwealth v. McDermott, 448 Mass. [at] 776 . . .
(computers)." Commonwealth v. Jones, 481 Mass. 540, 549 n.11
(2019) (remanding for entry of order compelling defendant to
enter password into cell phone for which Commonwealth had search
warrant).
21

defendant's cell phone] data indiscriminately." Johnson, 481

Mass. at 727. When the defendant, upon request and without

protest, handed Phillips his activated and unlocked cell phone,

Phillips -- almost immediately and without searching through

other images or opening any other applications -- accessed child

pornography images in the photo application; thus, the

inspection was minimally invasive.14 The narrow, targeted manner

in which Phillips's search was performed allowed the probation

department to advance the defendant's rehabilitation, and

protect the public, while still maintaining the defendant's

legitimate rights of privacy. Indeed, we find it difficult to

imagine how the probation department could effectively monitor

the defendant's adherence to the condition that he not possess

child pornography on his cell phone, absent a condition

permitting this unannounced, targeted search.

14We reiterate that before the defendant permitted Phillips
to search his cell phone photo application, the defendant was
well aware that the conditions of his probation prohibited him
from viewing, possessing, and accessing pornography and allowed
unannounced searches of all his electronic devices, both from
having reviewed the conditions with his counsel, and from
Phillips's regular spoken reminders about these conditions.
Consequently, as with the GPS monitoring data at issue in
Johnson, the defendant "could not reasonably expect that" the
images of child pornography he stored on his cell phone "would
remain private from government eyes." Johnson, 481 Mass. at
725. Thus, the defendant "could have no reasonable expectation
of privacy" in the images Phillips discovered pursuant to the
conditions of probation imposed "to target [the defendant's]
criminal activity during the probationary period." Id.
22

In light of the importance of the probationary goals that

the condition promoted, especially the vital public safety

interest in preventing the sexual exploitation and abuse of

children, we conclude that Phillips's brief, limited, and

targeted search permitted by this probation condition, was

reasonably enforced, and did not violate the defendant's rights

under the Fourth Amendment and art. 14. Further, as Phillips's

search was proper, the use of the evidence obtained from that

search to secure the search warrants was proper. Thus, the

evidence obtained through Phillips's search and the execution of

the search warrants is not subject to the exclusionary rule.15

15We disagree with the defendant's argument -- advanced for
the first time on appeal -- that suppression of the seized child
pornography images stored on his cell phone is mandated by Riley
v. California, 573 U.S. 373 (2014), where the United States
Supreme Court held that a warrant is generally required prior to
the search of a cell phone incident to arrest. Riley is
inapposite to the facts and circumstances of the present case.
Riley involved an unrestricted search of a cell phone in the
possession of an arrestee, not a probationer, who has a
significantly lower expectation of privacy. See United States
v. Knights, 534 U.S. 112, 119 (2001) ("Inherent in the very
nature of probation is that probationers do not enjoy the
absolute liberty to which every citizen is entitled" [quotations
and citations omitted]). There is no suggestion in Riley that
its rationale extends to targeted cell phone searches restricted
to monitoring compliance with lawfully imposed conditions of
probation. To the contrary, Riley, supra at 401-402, makes
clear that "even though the search incident to arrest exception
does not apply to cell phones, other case-specific exceptions
may still justify a warrantless search of a particular phone."
When the police seized and later searched Riley's cell phone, he
had not been convicted of any crime. Thus, unlike the
defendant, Riley enjoyed the presumption of innocence. See
United States v. Pacheco, 884 F.3d 1031, 1043-1044 (10th Cir.
23

Conclusion. We answer the reported questions in the

affirmative, as follows:

1. Where the probation officer's unannounced,

suspicionless, and targeted search of the defendant's cell phone

photo application, which yielded images of child pornography,

(i) was conducted pursuant to a valid condition of probation

permitting such searches of the defendant's electronic devices,

(ii) was narrowly tailored to the defendant's underlying

conviction of possessing child pornography images on an

electronic device, (iii) advanced legitimate probationary and

2018) (declining to apply Riley to cell phone search following
arrest of parolee); United States v. Johnson, 875 F.3d 1265,
1275 (9th Cir. 2017) (same); United States v. Jackson, 866 F.3d
982, 985 (8th Cir. 2017) (warrantless search of cell phone while
defendant was on supervised release was constitutional because
"Riley addressed privacy interests of an arrestee, not the
circumscribed interests of an offender serving a term of
supervised release"); United States v. Hilton, 625 F. App'x 754,
760 (6th Cir. 2015) (defendant's "supervised release terms
surely provide one of the[] exceptions" to warrant requirement
noted in Riley); Commonwealth v. Murray, 174 A.3d 1147, 1155
(Pa. Super. 2017) ("Riley is inapplicable to [a search of a
parolee's cell phone] because of [his] status as a parolee").
But see United States v. Lara, 815 F.3d 605, 609-612 (9th Cir.
2016) (holding that suspicionless searches of defendant's cell
phone pursuant to probation agreement were unreasonable because
under Riley defendant had substantial privacy interest in his
cell phone data and although that interest was diminished, it
outweighed government's interest where search condition of
probation agreement was unclear, defendant had not been
convicted of particularly serious offense, and strength of
government's interest depended on reason it suspected
probationer was reoffending or jeopardizing his reintegration
into community and defendant had merely missed meeting with
probation officer).
24

public safety objectives, and (iv) balanced the defendant's

privacy interest and the Commonwealth's interests in the

rehabilitation of the defendant and the protection of the

public, the fruits of that search are admissible in the

probation violation proceeding.

2. Where the State police searches of the defendant's

residence -- conducted pursuant to warrants issued based on the

probation officer's search of the defendant's cell phone --

yielded additional images of child pornography, the fruits of

those searches are admissible in the defendant's criminal case.

Accordingly, we affirm the order denying the defendant's

motion to suppress in his probation case, and we reverse the

orders allowing the defendant's motions to suppress in his

criminal case.

So ordered.