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Massachusetts Appeals Court Approves of Warrantless Cell Phone Search of Child Pornographer

The Massachusetts Appeals Court today ruled that a probation officer’s search of a probationer’s cell phone, without a warrant, was constitutionally permissible.  The name of the case is Commonwealth v. Shipps.

The defendant pleaded guilty in 2011 to possessing and distributing thousands of images of children, including infants, engaged in sex acts.  A superior court judge sentenced him to serve between three and five years in state prison, followed by a period of 10 years of probation.  One of his probationary conditions prohibited him from possessing, viewing, or accessing pornographic movies or images of any kind.  To enforce this condition, the defendant’s probation officer was permitted pursuant to the sentencing judge’s order to conduct a warrantless search of the defendant’s electronic devices to ensure the defendant was not possessing child pornography.  In 2015, following his release from prison, the defendant reported for a regular visit to his probation officer’s office in the Suffolk Superior Courthouse.  The probation officer asked to look at the defendant’s phone, and the defendant handed it over for inspection.  The phone was turned on and unlocked, and the probation officer saw a photo application.  Upon opening the application, the probation officer immediately identified images of child pornography.  The probation officer asked the defendant if he believed the images were appropriate, and the defendant responded they were not.  The photo application was the only file opened by the probation officer during his examination of the phone.  The defendant was charged in court with violating the terms of his probation.  Shortly thereafter, the state police obtained a warrant for the defendant’s home.  During a search of the defendant’s home, the police found his laptop and two thumb drives, all of which contained child pornography.  As a result of the images found on the electronic devices at his home, the defendant was indicted and charged with possession of child pornography (subsequent offense).

The defendant filed motions to suppress the evidence found on his phone and on the devices seized at his home.  He argued the probation officer lacked the constitutional authority to search his phone, and the warrants subsequently obtained by the police were tainted as “fruit of the poisonous tree.”  The Appeals Court concluded the defendant’s motions should be denied in full, as the searches by the probation officer and the state police were appropriate.

The defendant relied on prior Supreme Judicial Court cases that ruled a probationer can not be subject to suspicionless searches just because he is on probation.  A probation officer must have at least reasonable suspicion of criminal conduct before conducting a search of a probationer.  The Appeals Court concluded those SJC rulings were inapplicable to the facts of this case.  The Court pointed out that a sentencing judge is permitted to impose probationary conditions that relate to the crime for which the defendant was convicted.  Ultimately, the Court concluded that the probation officer’s search of the defendant’s phone was so limited in scope that it did not violate his constitutional right to be free from unreasonable searches.  The Court characterized the probation officer’s search as a “one-time, minimal physical intrusion,” which is different than the “blanket” searches by probation officers that had been previously declared unlawful by the Supreme Judicial Court.  Accordingly, the search of the defendant’s cell phone was proper, as was the issuance of the search warrant for his home.

The defendant continues to be presumed to be innocent, and the Suffolk District Attorney’s Office will now bear the burden of proving his guilt beyond a reasonable doubt.

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