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Massachusetts Appeals Court Rules Imprisoned Convict is Entitled to the Return of his Phone Containing Explicit Images of Victim

The Massachusetts Appeals Court today ruled that a prisoner is entitled to have his cell phones returned to him, despite the presence of sexually-explicit images of the victim on the phones.  The name of the case is Commonwealth v. Salmons.

In 2016, the defendant and his girlfriend were in a fight in their Braintree apartment.  The cops responded and arrested the defendant, charging him with assault and battery.  When the police saw drug paraphernalia in the apartment, they obtained the victim’s consent to search the premises.  During the search, the officers seized the defendant’s three cell phones.  A follow up investigation revealed the defendant kept a sawed-off shotgun at his grandmother’s house.  The cops seized the shotgun and in the ensuing criminal case, the defendant was indicted and ultimately pleaded guilty to possession of a sawed-off shotgun, strangulation, assault and battery with a dangerous weapon, intimidation of a witness, assault and battery, and being an armed career criminal.  A superior court judge sentenced him to serve 10 years in state prison.  During the sentencing argument, the defendant requested that his cell phones be returned to him (his brother would take custody of them while the defendant was in prison).  The Commonwealth did not object and the sentencing judge ordered the Braintree Police Department to return the phones.  More than eight months later, the Commonwealth asked permission from a different judge to return the phones to their factory settings, which would erase all data they had previously contained.  The Commonwealth reasoned that the phones contained sexually explicit photos and videos of the victim that may be used to harm the victim if the defendant or his family members had access to them.  A judge agreed with the Commonwealth’s argument and ordered the phones to be wiped clean before being returned to the defendant’s family.  The defendant appealed, arguing there was insufficient evidence that he would use data on the phone against the victim and there was no legal authority for the Commonwealth to seize the defendant’s personal property (the data on the phone).  The Appeals Court reversed the order.

The Appeals Court noted that both parties agreed the police had seized the phones illegally.  The cops did not have a warrant and there was no constitutional justification for their seizure, and a different superior court judge had ruled that any evidence discovered on the phones would be suppressed.  There was, therefore, a “strong presumption” that the defendant was entitled to have his property returned.  While the Commonwealth had concerns the defendant would weaponize the data on the phones against the victim, there was no statute or prior case that allowed for the destruction of the defendant’s property.  According to the Appeals Court, the superior court judge who had ordered the phones to be wiped clean had wrongly placed a burden on the defendant to establish a need to possess what was already his.  Finally, the Court pointed out that if the defendant did use the data in an unlawful way, there are laws under which he could be prosecuted.

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