Commonwealth v. Ericson

• Decision Date: 23 May 2014
• Docket Number: No. 12–P–1639.,12–P–1639.
• Parties: COMMONWEALTH v. Keith ERICSON.
• Court: Appeals Court of Massachusetts

85 Mass.App.Ct. 326

10 N.E.3d 127

COMMONWEALTH

v.Keith ERICSON.

No. 12–P–1639.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 11, 2013.

Decided May 23, 2014.

Michael A. Nam–Krane for the defendant.

Michael A. Kaneb, Assistant District Attorney (Patrick Fitzgerald, Assistant District Attorney, with him) for the Commonwealth.

Present: GREEN, SIKORA, & MILKEY, JJ.

SIKORA, J.

A Superior Court jury convicted the defendant, Keith Ericson, of soliciting, enticing, or encouraging a child to pose in a state of nudity, G.L. c. 272, § 29A( a ), as appearing in St.1988, c. 226, § 1, and of possession of matter harmful to minors with intent to disseminate, G.L. c. 272, § 28, as appearing in St.1982, c. 603, § 2.¹ He challenges the convictions upon multiple grounds. For the following reasons, we affirm.

Factual background. The relevant evidence in the light most favorable to the Commonwealth was the following. See Commonwealth v. Latimore, 378 Mass. 671, 676–678, 393 N.E.2d 370 (1979). On the afternoon of September 25, 2010, the defendant approached A.S., a sixteen year old female, and her boyfriend in a park in the town of Burlington. The defendant claimed to have lost his cellular telephone (cell phone) and asked to borrow A.S.'s cell phone. At the defendant's direction, A.S. placed a number of calls to the defendant's phone. Each call ended with a voice-mail greeting for the construction company “H Super Construction” or “Super Construction.” After five or ten minutes, the defendant reported that he had located his phone. Upon leaving the park, A.S. observed the defendant's black pickup truck. The license plate read “H Super,” and the truck had a Superman symbol emblazoned on its side.

Later that afternoon, A.S. began to receive text messages from the defendant's cell phone. The messages included a number of personal questions. The defendant asked A.S. her name and age, whether she had a boyfriend, and whether she smoked or drank. After A.S. responded that she was sixteen years old and that she did not drink or smoke, the defendant asked, “So what can we do?” He then asked whether she was a virgin, and when A.S. responded that she was not, the defendant replied:

“Ok driving now. Ill text u when stop. Can u text me some pics of u, please? And after u just answered that question, well im sure that we can find something to do, right?” ²

A.S. decided to go to the police. During her walk to the Burlington police station, the defendant specified that he wanted pictures which showed him “[e]verything,” “ur face and body.” When A.S. texted “clothes or not,” the defendant replied, “Not.”

At the police station, A.S. gave her cell phone to Burlington police Officers Matthew Creamer and Scott Lauder. While the officers inspected the phone, the defendant sent another message requesting pictures of A.S. The officers took possession of A.S.'s phone and in her persona began communicating with the defendant directly. Over the next few hours, the defendant boasted about his sexual prowess, described sex acts which he wanted to perform with A.S., and requested pictures of her genitals and buttocks. He also attempted to arrange a time to see her and told her to delete all of his text messages. On multiple occasions the officers requested that the defendant send A.S. a nude picture of himself or at least a picture exposing his penis. The defendant maintained that he would send the requested pictures only if A.S. first sent the pictures which he had requested.³ The exchange never occurred.

At around 10:30 p.m., the defendant sent a picture of himself in a tank top from the waist up. Just before midnight, Officer Creamer—still impersonating A.S.—sent a telephone number to the defendant and requested that he call it. The defendant replied that he believed that the telephone number belonged to the police. Officer Creamer then told him to report to the Burlington police station on the following day, September 26.

The defendant did not report as requested. On the morning of September 27, an unidentified woman delivered the defendant's cell phone to the Woburn police department as lost property. While examining the phone to determine its owner, Woburn police Officer Eric Hill observed images of the defendant, his pickup truck, and a penis (the images). The defendant appeared at the police station to retrieve his phone that afternoon, but he left without it when the police told him that it might be evidence of a crime.

On September 29, Officer Creamer retrieved the cell phone and applied for and obtained a warrant effectively authorizing the search of it and the seizure of, among other items, the digital tank top image. Later that day, he arranged for the northeastern Massachusetts law enforcement council computer crimes unit (CCU) at the Medford police department to conduct the search. Seven days later, on October 6, Officer Creamer contacted the CCU and learned that it lacked the proper software to analyze the phone's contents. On October 7, he filed the return of the warrant. Eleven days later, on October 18, Sergeant Matthew Murphy of the cyber enforcement unit of the Middlesex district attorney's office completed a forensic examination of the phone.

Before trial, the defendant moved to suppress the extracted images of the defendant, the penis, and the pickup truck, seized in the execution of the search warrant. The trial judge denied the motion.

Analysis. 1. Search warrant. The defendant argues that the judge should have suppressed the cell phone images because (a) the execution of the warrant occurred more than seven days after its issuance; (b) the police failed to file the return of the warrant within those seven days; and (c) the seizure by the police of three images of his penis was unlawful because the warrant did not specify their seizure and because the police were not intending to charge the defendant with possession of matter harmful to a minor with intent to disseminate at the time of the seizure. Each contention presents a question of law.⁴

a. Execution of warrant.General Laws c. 276, § 3A, as appearing in St.1964, c. 557, § 5, provides that “[e]very officer to whom a warrant to search is issued shall return the same to the court by which it was issued as soon as it has been served and in any event no later than seven days from the date of issuance thereof....” General Laws c. 276, § 2A, inserted by St. 1964, c. 557, § 3, commands the officer executing a search warrant to “make an immediate search.”

Five years ago, the Supreme Judicial Court considered whether “failure to complete forensic examination of [a] defendant's computer within seven days constitutes a violation of G.L. c. 276, § 3A, and requires suppression of the results of the search of [the] computer.” Commonwealth v. Kaupp, 453 Mass. 102, 114, 899 N.E.2d 809 (2009). Police had applied for a warrant to search the defendant's computer and associated electronic data storage devices on May 30, made a “mirror image” of the computer's hard drives and storage devices by June 6, and completed a forensic examination of the mirror images of the computer's hard drives by November. Id. at 109–110, 899 N.E.2d 809. On appeal from the denial of his motion to suppress, the defendant argued that the search of his computer over a period of months was unreasonable and violative of G.L. c. 276, § 3A. Id. at 103, 899 N.E.2d 809.

The court rejected this argument. After recognizing the conclusion of other jurisdictions that “police do not need to complete forensic analysis of a seized computer and other electronic data storage devices within the prescribed period for executing a search warrant,” id. at 115, 899 N.E.2d 809, and cases cited, the court stated that “[b]ecause a written return listing the devices to be examined was filed seven days after the search warrant issued, there was no violation of G.L. c. 276, § 3A.” Ibid.

Consistently with the reasoning of Kaupp, we conclude that, if police have obtained a warrant to search and seize evidence from a cell phone in their custody, they must attempt but need not complete a forensic examination of the device within seven days of the warrant's issuance. ^5,6 The reason for the rule prescribing execution of a warrant within seven days is that “[t]he longer the police wait before executing the warrant ... the more likely it is that the situation will change so that the facts which supported the magistrate's determination of probable cause will no longer exist.” Commonwealth v. Cromer, 365 Mass. 519, 524, 313 N.E.2d 557 (1974).⁷ Where, as here, the cell phone rests in the custody of the police and not of the suspect, the information (content of the cell phone) supporting the probable cause determination is less likely to change.⁸ We conclude that a promptly begun but protracted forensic examination of a cell phone, by itself, does not invalidate an otherwise valid search.⁹

Here, Officer Creamer arranged for a search of the defendant's cell phone on the same day as the issuance of the warrant. Seven days later, he learned that the agency assigned to perform the search lacked the necessary software. A different agency completed a forensic analysis of the phone eleven days later. On these facts, we hold that the completion of the forensic analysis beyond seven days from the issuance of the warrant did not require allowance of the defendant's motion to suppress.¹⁰ The motion judge found specifically that the police had engaged in no bad faith conduct. Nor was there a lapse in the probable cause supporting the issuance of the warrant.

b. Return of the warrant. The late return of the warrant by one day did not compel suppression of the extracted evidence. “[R]equired warrant return procedures are ministerial, and failure to comply therewith is not ground for voiding an otherwise valid search.” Commonwealth v. Kaupp, 453 Mass. at 114–115, 899 N.E.2d 809, quoting from Commonwealth v. Cromer, 365 Mass. at 521 n. 3, 313 N.E.2d...