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A Night To Remember

Massachusetts Supreme Court: Officer’s Handling of Cellphone Exceeded Scope of Inventory Search

The Supreme Judicial Court of the Commonwealth of Massachusetts (“SJC”) upheld a superior court’s order suppressing evidence obtained from a cellphone because the search of the cellphone was unsupported by probable cause, and the officer failed to follow guidelines relating to inventory of property.

Tomas Barillas was arrested in March 2017 on an outstanding warrant for three different criminal cases for larceny and drug offenses.

Lynn police had also received a tip that he was responsible for the fatal stabbing of Jason Arias. Lieutenant Thomas Reddy of the Lynn Police Department and Trooper Matthew Wilson of the Massachusetts State Police both participated in the arrest at the home of Barillas’ parents, but it was Trooper Wilson who, upon arresting Barillas, patfrisked him and seized a cellphone from his pocket.

Barillas was transferred to the Lynn Police Department Station. Trooper Wilson kept the cellphone on his person instead of submitting it as part of the detainee’s property, as was required by policy. Barillas’ father, Eduardo, and his minor brother, James (a court pseudonym), were voluntarily interviewed while Barillas was being booked. James disclosed to Wilson that the cellphone belonged to him, not Barillas, and described its unique markings, including two scratches. Wilson asked for the code to unlock the phone, then confirmed the code provided did work. James and Eduardo were presented with a form to consent to a voluntary search of the phone, which they signed. Another officer conducted a “hand search” of the phone and found video of Barillas talking about the stabbing.

Prior to trial, Barillas moved to suppress evidence from the cellphone. The motion was granted, and the Commonwealth immediately sought interlocutory review, which was granted by the SJC.

First, the Court determined that the patfrisk and seizure of the cellphone were warranted. “A search incident to a custodial arrest is well established as an exception to the warrant requirement under both the Fourth Amendment and art. 14.” Commonwealth v. Mauricio, 80 N.E.3d 318 (Mass. 2017). Mass. Gen. Laws ch. 276, §1, specifically limits a search incident to a lawful arrest to two types of property: “fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, ... [and] weapons that the arrestee might use to resist arrest or effect his escape.”

However, in order to search the cellphone’s contents, a warrant was needed. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant.” Riley v. California, 573 U.S. 373 (2014).

The Commonwealth argued that the cellphone was a weapon and thus subject to search and seizure under Mass. Gen. Laws ch. 276, § 1. The Court rejected this argument as being also clearly contradicted by Riley, which said search of a phone as a weapon is limited to “examin[ation of] the physical aspects of a phone ... say, to determine whether there is a razor blade hidden between the phone and its case.”

As for how the phone was handled, the SJC has repeatedly upheld suppression orders where investigatory use is made of the items seized for inventory purposes. Mauricio. Under Commonwealth v. Vuthy Seng, 766 N.E.2d 492 (Mass. 2002), police may “retain in custody all items on the person” pursuant to a written policy for inventory but not investigative purposes. Trooper Wilson did not deliver the cellphone to the booking officer as he should have done under the official policy, but he instead asked investigatory questions of James using the phone.

Quoting Mauricio, the Court concluded “the search exceeded the scope of and was inconsistent with the purposes underlying the inventory search exception to the warrant requirement, and is thus at odds with our law.”

Related legal case

Commonwealth v. Barillas

 

 

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