Commonwealth v. Snow, SJC-12938

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LOWY, J.
• Citation: 486 Mass. 582,160 N.E.3d 277
• Parties: COMMONWEALTH v. Dondre SNOW.
• Docket Number: SJC-12938
• Decision Date: 11 January 2021

486 Mass. 582
160 N.E.3d 277

COMMONWEALTH
v.
Dondre SNOW.

SJC-12938

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 11, 2020
Decided January 11, 2021

Cailin M. Campbell, Assistant District Attorney (David D. McGowan, Assistant District Attorney, also present) for the Commonwealth.

Amy M. Belger, Holliston, for the defendant.

Jennifer Lynch, Andrew Crocker, & Mark Rumold, of California, Hannah Zhao, of New York, Matthew R. Segal, Jessie J. Rossman, & Jessica J. Lewis, Boston, for American Civil Liberties Union of Massachusetts, Inc., & another, amici curiae, submitted a brief.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.¹

LOWY, J.

486 Mass. 583

160 N.E.3d 280

On the night of December 5, 2015, the defendant, Dondre Snow, and two other men were arrested in connection with a fatal shooting that had occurred earlier that evening in Boston. Police officers seized the defendant's cell phone, and a police detective later applied for and received a search warrant to search it for evidence related to the crime. Before trial, the Commonwealth moved to introduce certain evidence found on the defendant's cell phone. The defendant moved to suppress the cell phone evidence. The judge allowed the defendant's motion, ruling that the warrant had issued without probable cause because it lacked a sufficient nexus between the murder and the defendant's cell phone. Although the judge did not explicitly rule on whether the search authorized by the warrant was sufficiently particular, she apparently factored it into her analysis, noting at the hearing that the search was not limited in time.

The Commonwealth filed an application for interlocutory review in the county court, which a single justice of this court allowed and reported to the Appeals Court. The Appeals Court, in a divided opinion, reversed the judge's decision and remanded for a determination whether the warrant was properly limited in scope. The matter was entered in this court following our grant of further appellate review.

We consider, first, whether there was probable cause to search the defendant's cell phone and, second, whether the search exceeded the permissible scope of the warrant. We conclude there was probable cause to search the defendant's cell phone, based on the defendant's cell phone call shortly after the crime had been committed to the person who had rented the getaway car, as well as on the inference that the joint venture crime was planned ahead of time. We also conclude that the search of the phone was not sufficiently particular because it lacked any temporal limit. The order allowing the defendant's motion to suppress is vacated, and we remand to the Superior Court for further rulings regarding partial suppression.²

486 Mass. 584

1. Background. The following facts are taken from the search warrant affidavit. On the evening of December 5, 2015, Maurice Scott was shot several times as he stood on a Boston street. He later died from gunshot wounds. One eyewitness heard a number of shots fired and then

160 N.E.3d 281

saw a "heavy set black male" standing over the victim as he lay on the ground.

The shooter fled the scene in a light-colored car with out-of-State license plates driven by another party. During the shooting, the getaway car had been parked up the street. The car then headed toward the Dorchester neighborhood of Boston. Several minutes later, a second witness saw a light gray sedan being driven quickly down a street in Dorchester. The driver of the car slammed on its brakes, backed up, and took a left turn onto a dead-end street before coming to a stop. The witness noticed the occupants of the car moving about, as if they were changing their clothes. A large man climbed out of the passenger's seat, pulled his sweatshirt down, and returned to the car. The witness telephoned the police.

When police arrived, they noticed a light gray 2016 Nissan Altima with a New Hampshire license plate parked near the dead end of the street. Three men were sitting in the car: the defendant in the driver's seat, Dwayne Diggs in the front passenger's seat, and Daquan Peters in the back seat. Officers noted that Diggs had a heavy build and fit the eyewitness's description of the shooter. Based on the matching witness descriptions of the car used in the shooting and Diggs as the shooter, the officers removed all three men from the car. The defendant was talking on his cell phone as officers removed him from the car.

Officers discovered a .40 caliber firearm near the car and, by using thermal imaging, found that the heat signature indicated that the firearm recently had been discarded. Officers also discovered nine .40 caliber spent shell casings at the scene of the shooting. A fingerprint from the magazine of the gun matched Diggs's fingerprint. Both the defendant and Diggs were wearing global positioning system (GPS) monitors, which placed each of them at the crime scene at the time of the shooting. Police seized the defendant's cell phone, Peters's cell phone, and a third cell phone from the Nissan's center console with Diggs's partial fingerprint on it.

The defendant told officers that the car was rented to his girlfriend, and asked repeatedly during the booking process how she could get it back. The next day, police interviewed the defendant's girlfriend. She told officers that although she had a car,

486 Mass. 585

she had rented the Nissan to assist her with a move to Fall River. She also noted that she had rented a different car earlier in the week, but switched it for the Nissan on December 5. Finally, she told officers that the defendant had called her from his cell phone to let her know he was about to be arrested.

Officers also recovered the victim's cell phone, and a search revealed violent and threatening text messages exchanged with a contact named "Slime Buttah." Interviews with the victim's acquaintances revealed that the victim and Diggs had been arguing via text message and social media in the days before the murder. Diggs's street names included "Butta" and "Butta Bear." Based on both of these pieces of information, detectives believed "Slime Buttah" to be Diggs.

On February 23, 2016, a detective applied for and received a warrant to search the defendant's cell phone for the following information:

"Cellular telephone number; electronic serial number, international mobile equipment identity, mobile equipment identifier or other similar identification number; address book; contact list; personal calendar, date book entries, and to-do lists; saved, opened, unopened, draft, sent, and deleted electronic mail; incoming, outgoing, draft, and deleted text messages and video messages; history

160 N.E.3d 282

of calls sent, received, and missed; any voicemail messages, including those that are opened, unopened, saved, or deleted; GPS information; mobile instant message chat logs, data and contact information; internet browser history; and any and all of the fruits or instrumentalities of the crime of Murder."

The detective requested and received permission to search unfettered by date restriction because, he said, it was unknown "when the weapon used was acquired and when any related conspiracy may have been formed."

2. Discussion. a. Probable cause. On appeal, the Commonwealth challenges the judge's ruling that the contents of the warrant affidavit failed to establish a nexus between the crime and the defendant's cell phone sufficient support a finding of probable cause to search it. The Commonwealth contends that a sufficient nexus may be derived from the affidavit's allegations concerning the defendant's call to his girlfriend, who had rented the getaway car, the reasonable inferences of planning and coordination that

486 Mass. 586

may be drawn from the change of clothing, and Diggs's violent text messages to the victim. For the reasons explained infra, we agree and thus vacate the judge's order suppressing the evidence recovered from the search of the defendant's cell phone.

"Both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights ‘require a magistrate to determine that probable cause exists before issuing a search warrant.’ " Commonwealth v. Holley, 478 Mass. 508, 521, 87 N.E.3d 77 (2017), quoting Commonwealth v. Cavitt, 460 Mass. 617, 626, 953 N.E.2d 216 (2011). Probable cause requires a " ‘substantial basis’ to conclude that ‘the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.’ " Holley, supra, quoting Commonwealth v. Kaupp, 453 Mass. 102, 110, 899 N.E.2d 809 (2009). In other words, the government must show not only that there is probable cause that the individual committed a crime but also that there is a "nexus" between the alleged crime and the article to be searched or seized. Commonwealth v. White, 475...