Court: Police can't hold a phone for two months without getting a warrant to search it

The Supreme Judicial Court ruled today that prosecutors can't use evidence found on the phone of a man charged with murdering an Uphams Corner convenience-store clerk because police seized the phone without any initial proof it had a connection to the murder, then waited 68 days before submitting a search-warrant request based on evidence that it might.

The ruling won't stop prosecutors - who dispute that 68 days is too long - from trying Onyx White on charges he fatally shot Geraldo Serrano, 71, in the Hermanos Unidos store on Dudley Street on Feb. 21, 2010. "The decision will take one piece of evidence from the jury's consideration, but it was by no means the heart of the case," Jake Wark, spokesman for the Suffolk County District Attorney's office, said.

Prosecutors charge White, just 16 at the time, shot Serrano once and that when he saw Serrano was still alive, shot him again. Serrano was allegedly joined in the robbery by Martin Freeles, at the time 17. Freeles pleaded guilty in 2013 to manslaughter, armed robbery, armed robbery while masked, and unlawful possession of a firearm. Both were suspects in a series of similar armed robberies in the Uphams Corner area before the murder.

The phone comes up in his case because after Serrano's murder, but before his arrest, White continued to go to classes at McKinley Preparatory High School on Peterborough Street in the Fenway. Students who brought phones to school had to surrender them on the way in; they could pick them up at the end of the day. On Feb. 24, White arrived at school and left his phone with an administrator. But then, a BPD detective arrived to talk to administrators because White had become a suspect in the murder. The administrator the detective talked to said she was holding White's phone:

After consultation with his supervisor, the detective seized the telephone to prevent the defendant from retrieving it and removing evidence or destroying the device. At that point, however, the detective had no information that the cellular telephone had been used to plan, commit, or cover up the crime, or that it contained any evidence of the crime. From experience, the detective was aware, however, that cellular telephones frequently are used when an offense involves multiple perpetrators. Sixty-eight days later, having held -- but not searched -- the telephone throughout that period, police obtained a warrant to search it on the basis of information that had emerged after the seizure. A forensic search yielded evidence relevant to the investigation, which the defendant then moved to suppress on the ground that the seizure was not supported by probable cause.

A lower-court judge and the SJC agreed with the request. In its ruling today, the state's highest court said detectives shouldn't have seized the phone to begin with because they had no probable cause - the fact that everybody uses a phone these days is not enough of a cause by itself to seize a phone as possible evidence in the murder case.

The detectives here lacked any information establishing the existence of evidence likely to be found on the defendant's cellular telephone. We conclude, accordingly, that they lacked the nexus required for probable cause to seize that device.

In any case, the justices continued, 68 days is longer than the "relatively short period of time" police can hold a phone and the time they have to get a search warrant for it. The court acknowledged the case against White and his alleged accomplice was particularly complex and the detectives investigating the murder were also responsible for investigating two other murders at the same time, but said:

We do not question that the detectives diligently performed their difficult jobs. The relevant inquiry, however, does not concern the detectives' general diligence in performing their duties, but, rather, whether they acted "diligen[tly] in obtaining the warrant." Laist, 703 F.3d at 614. Once police seized the defendant's cellular telephone without a warrant, they were required to "make it a priority" to acquire one. ...

Here, it does not appear that they did so, having instead focused on, among other things, applying for and executing five other search warrants related to this case. There also is no evidence that the complexity of the warrant application itself caused the approximately ten-week delay, or that the detectives' responsibility for other cases prevented them from working on this one.

Wark countered:

There was not even a hint of impropriety in the phone’s lawful seizure, careful storage, or court-authorized search. There is no allegation of wrongly retaining the phone where the defendant had no minutes left on his calling plan, never asked for the phone’s return, and indeed had a new one by the time he was arrested. The court found issue only with the span of time between the phone's seizure and search, which was attributable to numerous interviews and search warrants on this homicide and two others picked up shortly thereafter by the same homicide squad.

Investigators are not held to a set deadline for seeking a search warrant. In fact, some courts have provided police up to a year to do so. The SJC suppressed this evidence because of 68 days during which detectives exhausted every avenue to solve three murders. To what do they attribute the 275-day delay between hearing oral arguments and issuing this decision?

A trial date had not yet been set as lawyers awaited the SJC ruling.

Innocent, etc.

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