Commonwealth v. Shipps

• Decision Date: 07 February 2020
• Docket Number: Nos. 18-P-944 & 18-P-945,s. 18-P-944 & 18-P-945
• Citation: 97 Mass.App.Ct. 32,142 N.E.3d 597
• Parties: COMMONWEALTH v. George SHIPPS.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 32

142 N.E.3d 597

COMMONWEALTH

v.George SHIPPS.¹

Nos. 18-P-944 & 18-P-945

Appeals Court of Massachusetts, Suffolk..

Argued March 1, 2019

Decided February 7, 2020

Eric A. Haskell, Assistant Attorney General, for the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Present: Maldonado, McDonough, & Englander, JJ.

McDONOUGH, J.

In this appeal, we address the constitutionality of a cell phone search conducted by a probation officer pursuant to a condition of probation. The condition was imposed following the defendant's guilty pleas to child pornography crimes committed while using an electronic device, namely, a computer. It authorized the probation department to conduct unannounced searches of the defendant's electronic devices "for the purpose of monitoring compliance with" other conditions, one of which required that the defendant not "view, possess, or access any pornographic images or movies of any kind."

During such a search of the defendant's cell phone, limited exclusively to opening a photograph application (photo application), a probation officer immediately recognized images of child pornography, at which point he ended the search. This discovery triggered a notice of probation violation for possession of child pornography (probation case). In addition, the discovery was used to obtain a search warrant for the defendant's residence.² When the State police executed that warrant, they seized two "thumb drives" and a laptop computer containing approximately one hundred images of child pornography. A grand jury indicted the defendant on a charge of possession of child pornography, as a subsequent offense (criminal case).

The defendant moved to suppress the child pornography images in both his probation case and his criminal case. A Superior Court judge denied the motion in the probation case, but allowed the motions in the criminal case. After denying the Commonwealth's motion for reconsideration, the judge allowed the Commonwealth's motion to report to this court the following two questions of law:

1. "Can the fruits of the probation officer's search of the defendant's cell phone pursuant to a probation condition authorizing the Department of Probation to inspect and search any of the defendant's electronic devices, including his cell phone, without prior announcement be admitted into evidence in a subsequent probation violation proceeding in SUCR2010-10335?"

2. "Can the fruits of a search of the defendant's residence pursuant to a search warrant, obtained based on information gathered as a result of the probation officer's search of the defendant's cell phone, be admitted into evidence in the defendant's criminal trial (SUCR2016-00512)?"

See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004).

On the facts and circumstances presented by this appeal, with certain qualifications explained infra, we answer both questions in the affirmative. We therefore affirm the order denying the defendant's motion to suppress in his probation case, and reverse the orders allowing the motions to suppress in his criminal case.

Background. 1. Probation conditions. In 2011, the defendant pleaded guilty to eight counts of child pornography, including possession and dissemination of several thousand images of child pornography depicting children, some prepubescent, and others as young as infants, engaged in sex acts.³ A judge sentenced the defendant to three to five years in prison, followed by an aggregate term of ten years' probation. One probation condition forbade the defendant from "view[ing], possess[ing], or access[ing] pornographic images or movies of any kind." A related condition required the defendant to "allow the Department of Probation to inspect and to search, without prior announcement, any computer, electronic device, digital media, videotape, photographs or other item capable of storing photographs, images, or depictions, for the purpose of monitoring compliance with these conditions of probation."⁴

2. Motions to suppress.⁵ "When reviewing a motion to suppress, we accept the subsidiary findings of fact made by the motion judge and give deference to the judge's ultimate conclusions that are supported by the evidence. Nevertheless, where the ultimate findings and rulings bear on issues of constitutional dimension, they are open for review" (quotation and citations omitted). Commonwealth v. McDermott, 448 Mass. 750, 762, 864 N.E.2d 471, cert. denied, 552 U.S. 910, 128 S.Ct. 257, 169 L.Ed.2d 188 (2007). The parties do not contest the judge's findings of fact, which we summarize, supplemented by uncontroverted testimony and representations that are consistent with the findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015).

a. Probation officer's warrantless search of cell phone. In April 2016, the defendant, who had completed the prison sentence imposed in his prior criminal case, attended a regularly scheduled visit with his probation officer, Edward Phillips, at the Suffolk County Court House. Phillips reviewed the defendant's probation conditions with him, as Phillips had done "at least every other office visit." After reviewing the condition permitting unannounced searches of the defendant's electronic devices, Phillips asked the defendant, in a "[p]olite and respectful" tone, "[M]ay I see your phone?"⁶ Phillips did not then suspect that there were any pornographic images on the cell phone. Without protest, the defendant, who remained "relatively calm" and did not appear confused or intoxicated, removed his cell phone from his pocket and handed it to Phillips. The cell phone was already turned on and unlocked. On the screen, Phillips saw a photo application "out in the open"; it was not "in a hidden folder or anything like that." Phillips accessed the application and saw "images that [he] believe[d] to be child pornography," which "came right up."⁷ Phillips asked the defendant if he thought the images were appropriate. While remaining calm, the defendant responded, "[N]o." Phillips did not access any other applications on the cell phone. The child pornography images were the "first -- the only thing" Phillips looked at on the cell phone, and he did not "click on anything else."

When Phillips began preparing a probation violation notice, the defendant asked if he could delete the pornographic images from his cell phone. Phillips responded, "[A]bsolutely not." Phillips then called in the probation department assistant chief, who read Miranda rights to the defendant, brought him into the magistrate session, and told him to stay there. When Phillips subsequently saw the defendant standing in the hallway near the elevators, Phillips advised the defendant that he needed to stay in the court room. Instead, the defendant fled the court house, and soon thereafter, at the probation department's request, a judge issued a warrant for the defendant's arrest.

The defendant filed a motion to suppress in his probation case. He argued that the probation officer's search was not based on reasonable suspicion that the cell phone contained images of child pornography, relying on Commonwealth v. LaFrance, 402 Mass. 789, 795, 525 N.E.2d 379 (1988) ("art. 14 bars ... blanket threat of warrantless searches"), and Commonwealth v. Waller, 90 Mass. App. Ct. 295, 304-305, 58 N.E.3d 1070 (2016) (probation condition allowing suspicionless searches of defendant's home impermissible). The judge denied the defendant's motion. He concluded that because Phillips did not have reasonable suspicion that the defendant's cell phone contained pornographic images, the search and seizure were unlawful under the principles of Commonwealth v. Moore, 473 Mass. 481, 487, 43 N.E.3d 294 (2016) (noting that court "decided in LaFrance [, 402 Mass. at 792-793, 525 N.E.2d 379,] that art. 14 guarantees that any condition of probation compelling a probationer to submit to searches must be accompanied by reasonable suspicion ... [and] [t]his interpretation remains the standard for probationer searches under art. 14"); LaFrance, 402 Mass. at 792, 525 N.E.2d 379 ("for art. 14 purposes ... ‘reasonable suspicion’ ... will justify a search of a probationer and her premises"); and Waller, 90 Mass. App. Ct. at 304, 58 N.E.3d 1070 ("Under art. 14, a reduced level of suspicion, such as ‘reasonable suspicion,’ will justify a search of a probationer and her premises, but any standard below ... reasonable suspicion will not" [quotations and citation omitted] ). Nevertheless, the judge declined to apply the exclusionary rule to the evidence in the defendant's probation case. He reasoned that "[i]n the unique circumstances of this case, where Phillips ... was merely enforcing the probation conditions that the court imposed on [the defendant] ..., applying the exclusionary rule ... would have no deterrent effect on police misconduct or the misconduct of probation officers and ‘would be unlikely to serve any deterrent purpose.’

Commonwealth v. Simon, 57 Mass. App. Ct. 80, 87 (2003)."⁸

b. State police searches conducted pursuant to warrants. State Police Sergeant Erik Gagnon obtained a search warrant based on the child pornography images seized through Phillips's search of the defendant's cell phone, and on his flight from the court house. The warrant sought child pornography images on the defendant's electronic devices located in the bedroom and common areas of his residence. The execution of the warrant led to the seizure of two thumb drives and a laptop computer containing approximately one hundred images of child pornography. Thereafter, Gagnon applied for and was granted a warrant to search the defendant's cell phone. The defendant then filed, in his criminal case, two motions to suppress: (1) a motion to suppress the evidence obtained from Phillips's warrantless search of the cell phone, in which he argued that the search was unconstitutional because it was not supported by reasonable...