Commonwealth v. Cedric D. Williams.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-192

COMMONWEALTH

vs.

CEDRIC D. WILLIAMS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge suppressed evidence of the contents

of a cell phone seized from the defendant in the aftermath of a

homicide. The Commonwealth obtained leave to file an

interlocutory appeal. See Mass. R. Crim. P. 15 (a) (2), as

amended, 476 Mass. 1501 (2017). We affirm.

Background. We recite the facts as found by the motion

judge. On December 21, 2018, at about 12:35 A.M., police

officers responded to a ShotSpotter activation in the Roxbury

section of Boston. Officers went behind a building and saw the

defendant and another man look at the approaching officers, turn

around, and walk away at a rapid pace. The two men complied

with the command of officers, at gunpoint, to stop and raise

their hands. An initial patfrisk indicated the men were

unarmed.
While officers stayed with the two men, other officers

investigated noises heard on the rear staircase to the building.

In the meantime, the defendant held a cell phone in one hand and

appeared to be using it. On the staircase, officers found a man

suffering from several gunshot wounds that proved fatal. After

a woman at the scene told officers that the defendant had thrown

a firearm over the fence, officers handcuffed the defendant.

Through a second patfrisk, officers seized a black CoolPad cell

phone from the defendant's pocket. Searching the area behind

the fence as indicated by the witness, officers found a firearm.

After questioning the defendant at police headquarters,

officers released him, but kept the CoolPad cell phone as well

as a red iPhone they obtained from the defendant during the

course of the interrogation. The defendant never asked for the

cell phones before his release nor at any time thereafter. The

officers referenced the seizure of the cell phones in police

reports but did not document them in an inventory report.

Over the next thirty-four days, officers investigated the

homicide. On January 24, 2019, officers obtained a warrant to

search the contents of the black CoolPad cell phone. Six days

later, the police arrested the defendant. The motion judge

suppressed evidence of the contents of the CoolPad cell phone

after concluding that "waiting 34 days to obtain a search

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warrant for the phone's contents was unreasonable under the

particular facts and circumstances of this case." We agree.

Discussion. "In reviewing a ruling on a motion to suppress

evidence, we accept the judge's subsidiary findings of fact

absent clear error" (citation omitted). Commonwealth v.

Villagran, 477 Mass. 711, 713 (2017). "A finding is clearly

erroneous if it is not supported by the evidence, or when the

reviewing court, on the entire evidence, is left with the firm

conviction that a mistake has been committed" (citation

omitted). Id. "We review independently the application of

constitutional principles to the facts found" (citation

omitted). Id. In its appeal, the Commonwealth faults the judge

for failing to consider the defendant's minimal interest in the

CoolPad cell phone, the government's strong interest in probing

the connection between the cell phone and a homicide, and the

significant duties and responsibilities that diverted police

officers from obtaining a search warrant at an earlier time. On

our independent review of the motion judge's analysis, we

discern no cause to disturb his conclusions of law.

Police officers "may seize property 'to prevent destruction

or removal of evidence during the relatively short period of

time needed . . . to obtain a search warrant.'" Commonwealth v.

Gentile, 437 Mass. 569, 573 (2002), quoting Commonwealth v.

Taylor, 426 Mass. 189, 195 (1997). The situation is analogous

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to "securing a place to be searched" pending the issuance of a

search warrant. Taylor, supra. Once the police seize property

without a warrant, they are "required to 'make it a priority' to

acquire one" within that relatively short period of time.

Commonwealth v. White, 475 Mass. 583, 594 (2016), quoting United

States v. Burgard, 675 F.3d 1029, 1035 (7th Cir.), cert. denied,

568 U.S. 852 (2012). The delay between the warrantless seizure

and the application for the warrant must be "no longer than

reasonably necessary for the police, acting with diligence, to

obtain the warrant." Illinois v. McArthur, 531 U.S. 326, 332

(2001). The police "must release the item if a warrant is not

obtained within that period." White, supra at 593.

Here, the police applied for the search warrant thirty-four

days after seizing the CoolPad cell phone. There is no "bright

line" or simple tallying of days to gauge whether police conduct

exceeds constitutional limits (citation omitted). White, 475

Mass. at 593. "[T]he ultimate touchstone of the Fourth

Amendment [to the United States Constitution] is

'reasonableness.'" Brigham City v. Stuart, 547 U.S. 398, 403

(2006). "[T]he reasonableness of the delay is determined by

'balanc[ing] the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the importance

of the governmental interests alleged to justify the

intrusion.'" White, supra at 593-594, quoting United States v.

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Place, 462 U.S. 696, 703 (1983). Even if we agree that the

Commonwealth had a strong interest in probing the connection of

the phone to the homicide, we do not believe the defendant had a

diminished interest in his property merely because he did not

protest the seizure or demand the return of the cell phone.

Contrast Commonwealth v. Cruzado, 480 Mass. 275, 283-284 (2018)

(minimal possessory interest in cell phone, where defendant

disclaimed it belonged to him). Examining the nature and

quality of the intrusion on the defendant's possessory interest

in the cell phone, we conclude that the delay here was

unreasonable in a constitutional sense because the police did

not make it a priority to obtain the search warrant.

The Commonwealth argues forcefully that during this delay

the police officers in this case conducted a methodical

investigation while simultaneously carrying out significant

duties and responsibilities. For example, officers interviewed

witnesses, obtained and reviewed surveillance video, and

obtained phone records. Officers also underwent extensive trial

preparation in another case and investigated other homicides

while balancing holiday and vacation time demands.

We agree that there is nothing in the record to suggest

that the police investigators in this case generally lacked

diligence in the performance of their various duties. "The

relevant inquiry, however, does not concern the detectives'

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general diligence in performing their duties, but, rather,

whether they acted 'diligen[tly] in obtaining the warrant.'"

White, 475 Mass. at 594, quoting United States v. Laist, 702

F.3d 608, 614 (11th Cir. 2012). The Commonwealth asserts that,

at the time of the seizure, the police had probable cause to

believe that the cell phone "would contain evidence related to

the murder"; yet, the police did not articulate that probable

cause in a search warrant affidavit until thirty-four days

later. "Once police seized the defendant's cellular telephone

without a warrant, they were required to 'make it a priority' to

acquire one," but the record shows that they did not so

prioritize it. White, supra, quoting Burgard, 675 F.3d at 1035.

After depriving the defendant of his property, the police had an

obligation, with due diligence, to obtain a warrant or to return

the property. See, e.g., Commonwealth v. Kaup, 453 Mass. 102,

109 (2009) (police seized computer hard drive and obtained

search warrant nine days later). Contrary to the concern the

Commonwealth expressed in its brief, we are not "second

guessing" how the police allocated resources during the

investigation. Instead, we are concluding that the valid,

competing priorities chosen by the police in this case did not

comport with the constitutional mandate for a prompt search

warrant application.

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We have reviewed the Commonwealth's cited Federal cases

that countenance delays of comparable or significantly longer

duration than the delay presented here. These cases, however,

are distinguishable in at least one significant respect. In the

present case, the police seized the defendant's cell phone

without his consent. The two Federal cases cited involved

consensual seizures of property that did not infringe a

constitutionally protected property interest. See Laist, 702

F.3d at 618 (twenty-five day delay reasonable where "initial

seizure [of computer] was based on consent"); United States v.

Stabile, 633 F.3d 219, 235 (3d Cir.), cert. denied, 565 U.S. 942

(2011) (three-month delay reasonable "where a person consents to

search [of home] and seizure [of computer]"). Because there is

no evidence in the present case that the defendant consented to

the seizure of the cell phone, these Federal cases are

inapposite.

We have also reviewed an out-of-State case cited by the

Commonwealth as additional persuasive authority. In People v.

Shinohara, 375 Ill. App. 3d 85, 91 (2007), the Appellate Court

of Illinois approved a delay of seventy-five days in seeking a

search warrant following the seizure of a computer. The holding

in that case, however, was limited. The defendant there claimed

"without elaboration or citation to authority" that the delay in

obtaining the warrant rendered the search unreasonable. Id. at

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101. Given this bare claim, the Illinois court expressly

limited its review to determining whether the delay in obtaining

the search warrant vitiated probable cause where "the facts

supporting the underlying probable cause may have grown stale or

the item or place to be searched is subject to change." Id. at

101. Unlike the defendant in Shinohara, the defendant here

squarely presented an argument that the search of the CoolPad

cell phone was unreasonable because the police failed to

prioritize obtaining a warrant within a relatively short period

of time after seizing it. See White, 475 Mass. at 594.

Therefore, on close examination, the Shinohara case did not

address the same question that is before us.

Finally, at oral argument, the Commonwealth presented an

additional argument to justify the delay in obtaining the

warrant. According to this argument, the police needed

additional time to sort out which of the two cell phones seized

from the defendant actually belonged to him. During the

interview, the defendant told the police that the red iPhone was

his phone and never mentioned the black Coolpad cell phone. As

it turned out, the police later determined that the statement

about the red iPhone was false. The red iPhone belonged to the

victim. An effort by a defendant to throw the police

investigation off track is certainly a valid consideration in

determining the reasonableness of a delay in obtaining a

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warrant; however, because the Commonwealth did not raise this

argument in the Superior Court, and neither the defendant nor

the judge had an opportunity to address it on a fully developed

record, we will not consider the implications of that argument

for the first time on appeal. See Mass. R. A. P. 16 (a) (9)

(A), as appearing in 481 Mass. 1628 (2019).

Conclusion. That portion of the order entered January 14,

2022, allowing the suppression of the contents of the CoolPad

cell phone is affirmed.

So ordered.

By the Court (Shin, Brennan &
Hodgens, JJ. 1),

Assistant Clerk

Entered: January 23, 2024.

1 The panelists are listed in order of seniority.

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