Massachusetts Appeals Court Upholds Seizure of Cell Phone from Suspect in Barnstable Home Invasion Case

The Massachusetts Appeals Court today concluded Barnstable police officers acted in a constitutional manner in seizing a home invasion suspect’s cell phone without a warrant.  The name of the case is Commonwealth v. Fencher.

On September 23, 2016, the victim of a home invasion called the police.  When the cops arrived, they observed the victim to be covered in blood.  He had sustained injuries to his face and head after being beaten with a crowbar.  He told the police he had been having problems with his niece, against whom he had a restraining order, and suspected she was involved in the attack.  He had seen her car parked in his driveway earlier in the evening and whoever had entered his house had done so with a key (a copy of which the niece possessed).  Further, nothing was stolen from his home, which suggested the beating was not part of a robbery.

Approximately five hours after the assault, the niece (soon to be the defendant) showed up on her own to the Barnstable Police Department and agreed to be interviewed by detectives.  For the next two hours, the defendant answered questions about her whereabouts from the night before and her relationship with the victim.  She said she had been watching football and drinking with friends the evening before the assault until approximately 1:00 a.m., at which point she hung out at a friend’s house.  She stayed there until 3:00 when she left to “go smoke near the bridge,” where she remained until the sun rose.  While the defendant acknowledged her car had been in the victim’s driveway, she claimed she had a friend retrieve it because she did not want to violate the restraining order.  The defendant then told the police she had videos on her cell phone proving she had been at the bar the previous night, and she said she would “definitely” share the videos with the cops.  The defendant admitted she had a key to her uncle’s house, and the police noticed what appeared to be blood stains near the door handle to her car.  At that point, the cops seized the defendant’s phone without a warrant and asked the defendant if she would consent to having her phone searched.  The defendant consented to the search and provided her passwords to the police.

The defendant was indicted and charged with home invasion.  Once the case got into court, she filed a motion to suppress all evidence discovered on her cell phone.  She argued the police lacked the constitutional authority to seize the phone without a warrant.  A superior court judge agreed and suppressed the evidence on the phone.  The Commonwealth appealed and the Appeals Court reversed.  The Court determined the police had probable cause to believe evidence related to the home invasion would be located on the phone.  There was circumstantial evidence that the defendant had been involved in the beating, and she told the police there were videos on the phone establishing she had been at a bar the previous evening.  Because the purported videos would establish where the defendant was and who she was with immediately before the home invasion, there was probable cause to believe evidence of a crime would be found on the phone.  Although the Court does not mention it, a warrant is usually required to seize property even if there is probable cause.  In this case, because the phone could be easily hidden or destroyed, the Court probable relied on the exigency exception to the warrant requirement.

The seizure and search of cell phones has been an evolving area of the law during the past several years and as this case illustrates, the rules are still not clearly defined.