The Massachusetts Supreme Judicial Court today upheld a superior court judge’s decision to prohibit the Commonwealth from introducing evidence seized by the police from a cell phone found in the defendant’s pocket when he was arrested in connection with a murder investigation. The name of the case is Commonwealth v. Barillas.
The 20-year-old victim died after being stabbed in the neck in Lynn in March of 2017. The cops received information from the victim’s sister that the defendant might have been involved in the murder. The defendant had outstanding warrants for cases involving drugs charges and larceny, and the cops found him hiding beneath a tarp in the basement of his mother’s house. The defendant was placed under arrest and eventually charged with murder. While taking the defendant into custody, the police found a cell phone in his pocket. One of the officers took the cell phone and placed it into his own pocket. A short time later, the investigating officers met with the defendant’s father and 13-year-old brother at the Lynn police station. The brother told the cops that he was the owner of the cell phone that had been seized by the police from the defendant’s pocket. The officers asked the brother for the phone’s password and he was able to provide it (which allowed the officers to open the phone). The brother also provided the phone number, the service provider, and the manner in which the phone had been damaged. He said his mother paid the phone bill and the defendant often used the phone. The brother gave permission for the cops to look through the phone’s contents and officers found a video recording of the defendant talking about the crime.
The defendant filed a motion to suppress the evidence taken from the cell phone, arguing the cops had conducted an unlawful warrantless search. A Salem Superior Court judge agreed and ruled the contents of the phone would not be admissible at the defendant’s trial. The Commonwealth appealed and the Supreme Judicial Court affirmed. The SJC first found that it had been proper for the police to seize the phone during a search incident to arrest. This legal principle allows a police officer to seize property on the defendant’s person (or within grabbing distance) when the defendant is being arrested in order: (1) to prevent the defendant from destroying or hiding evidence of the crime for which he is being arrested; or (2) to remove potential weapons in the defendant’s possession. In this case, the SJC concluded it was appropriate for the arresting officers to remove the cell phone (a hard object that could be used as a weapon) from the defendant’s pocket. The question becomes, then, whether it was legally permissible for the police to further examine the phone without a warrant. The Commonwealth argued the phone had been examined pursuant to an inventory search. The inventory exception to the warrant requirement allows the police to seize and inventory any property taken from a person under arrest. However, the inventory process must be conducted pursuant to a written policy and it must not be investigatory in nature. In this case, the police department’s written inventory policy required the officer who seized the cell phone to promptly turn it over to the booking officer to secure it in a property envelope and store it in a property locker. Instead, the cop here kept the phone in his pocket even after he arrived at the police station. But the police misconduct didn’t end there – the cop also made investigative use of the phone by questioning the defendant’s brother about its ownership, password, and usage. Because the cops searched the phone without a warrant and the search did not qualify as an inventory, all of the evidence contained in the phone will be inadmissible at the defendant’s upcoming murder trial.