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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After October, David Ortiz can have a career as a designated driver

Yes, of course David Ortiz put on a wig to masquerade as a Lyft driver.

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Boston City Council urges Congress to provide federal abortion funding

The council voted 12-0 today on a resolution urging Congress to repeal the Hyde Amendment and provide federal funding for abortions with government health coverage.

Councilor Ayanna Pressley (at large), who sponsored the measure, said that even in Massachusetts, which provides coverage to women on Medicaid, some women have to bear the full price, such as women in the military or Peace Corps. She added the resolution would also support women in the 33 states that do not cover the procedure, even though it is a constitutional right.

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Market with liquor proposed for Fan Pier

The Boston Licensing Board decides tomorrow whether to grant a packie license to a proposed neighborhood grocery on the first floor of the Vertex building on Northern Avenue.

Francesco Scire, who has owned the Going Bananas market on Hanover Street in the North End for 35 years, is planning a 2,745-square foot market that would sell groceries, deli meat, coffee, baked goods, produce - and, if the board approves, beer, wine and hard liquor.

His attorney, Daniel Toscano, said the grocery would be the first on Fan Pier and would be very similar to Going Bananas, only called Frank Anthony's Gourmet Market. "There's not anything of it's kind in the area," Toscano told the board at a hearing this morning.

The mayor's office and City Councilor Bill Linehan supported the proposal.

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Back Bay to get Cornish pasties

The Boston Licensing Board decides tomorrow whether to grant a food-serving license to a proposed Cornish-pasty restaurant on Mass. Ave. off Marlborough Street.

Brandon Volkenant is planning a full sit-down restaurant centered on the one-pound meat pies - although he told the board today he'll have vegetarian versions as well.

"They're traditional English meat pies that miners would take down into the mines and eat lunch," he said.

He added, however, he will be making a change in the traditional recipe: His crusts will be smaller - and edible. Traditionally, he explained, miners would leave the crusts of their pies down in the mines for the souls of all the miners who had died there.

The mayor's office and the Neighborhood Association of the Back Bay both supported the proposal.

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Police investigate whether bouncers at a Revere strip club beat a man into unconsciousness

Revere and State Police are investigating how a New Jersey man wound up on the ground, unconscious and with a serious head injury, after an apparent fight outside the Squire on Squire Road last night, according to Revere Police and the Suffolk County District Attorney's office:

The preliminary investigation suggests that a 29-year-old New Jersey man was escorted from The Squire at about 10:00 last night. Said to be intoxicated inside the establishment, the man became involved in a physical altercation with several members of club staff outside. A Revere Police officer observed a group gathered outside and stopped to investigate. He found the victim unconscious on the ground, and the man was transported to Massachusetts General Hospital for treatment of a serious head injury. As of early this morning, he was listed in serious but stable condition.

If you know anything, you can call Revere Police detectives at 781-286-8340 or the Suffolk County State Police Detective Unit at 617-727-8817.

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Roslindale casts wary eye at Forest Hills; residents wonder if they're next

For the second time this month, a community meeting on a proposed Roslindale development that would be small by South Boston or Forest Hills standards raised fears that Roslindale is about to be rushed by developers who will try to completely overwhelm the neighborhood with projects far denser than allowed under a rezoning plan worked out by residents and the city only a few years ago.

At least this time, the developer had some good news for neighbors: Tony Ferrara told about 30 residents, gathered at the Sons of Italy hall, that he will not tear down the large house at the top of the hill at 175 Poplar St. where Mary Baker Eddy briefly worked and lived.

Neighbors of the large house, who include City Council President Michelle Wu, agreed to postpone a hearing on the house before the city Landmarks Commission scheduled for mid-October for at least two months to try to work with Ferrara on a proposal that would keep the house, now divided into four condos, and build up to five additional units - four in two townhouse condos, one as a single-family house - on the 39,000-square-foot parcel.

Residents had sought the hearing to try for official landmark status to protect the house and its leafy property after Ferrara filed for a demolition permit this summer. They said tonight they would still need to see detailed plans for the new units on the relatively steep hill and for the trees that Ferrara would try to keep before agreeing to back his plans before the Boston Planning and Development Agency - what the BRA is now calling itself - and the Zoning Board of Appeals, where his current plans would require a use variance - but would meet zoning requirements for height and setback.

Several residents pointed to the possible look of the new buildings Ferrara might put on the Poplar Street land as a key factor for them - they don't want that clapboard stuff going up on apartment buildings across the city, but instead something that looks like all the old houses along Poplar and Augustus.

Well, except for Joe Cappuccio of Augustus Avenue, who said he's fought three times since the 1940s with developers who wanted to tear the big old house down and who said he would fight whatever Ferrara proposes. Noting that Ferrara lives in West Roxbury, Capppuccio told him: "There's plenty of land you can build on there. Go to West Roxbury where you belong!"

Ferrara said he is giving up one of the total of ten new units he could put on the land under its existing zoning to work with neighbors to preserve the unique property. But Wu told residents they should look out for what's best for them, not worry about what a developer says is necessary to make a project economically viable for him.

Wu said she's hearing from all over the city that negotiations between developers and residents are starting from the developer's financial minimums, not what's best for their neighborhoods.

It's a particularly sensitive issue in Roslindale, where residents and Menino-administration officials came up with a new zoning map for the neighborhood that preserved the less dense nature of the area while still allowing for some commercial and residential development.

Dennis Kirkpatrick, who spent long hours at some of those meetings, warned that Roslindale is in danger of being subsumed by developers who aren't content to live within the neighborhood's zoning and are beginning to start "stripping this community of the zoning that has kept Roslindale what it is."

He pointed to the demolition of two houses on Taft Hill Terrace to make way for a new condo project and a proposal on Cummins Highway to tear down a three-family house to make way for a four-story, 14-unit apartment building - which would require several zoning variances for being too tall, too dense and too close to neighboring properties.

Given the BRA/BPDA's penchant for approving dense projects and then backing them before the zoning board, he worried Roslindale could one day become as dense as the South End - something he said people moved to Roslindale to escape. "It's not going to be quirky Roslindale anymore," he said.

The largest current proposal for Roslindale is a 137-unit apartment complex on Walk Hill Street, off American Legion Highway.

Cathy Slade, president of the Roslindale Historical Society, had something even closer to worry about: The massive apartment projects along Washington Street in Forest Hills, where she said the BRA approved "boxes with punched out windows" that she said are "ugly as hell."

At a meeting last week on the Cummins Highway proposal, residents expressed similar concerns about the neighborhood's future - and also pointed to Forest Hills as something they don't want Roslindale to turn into.

In that case, the developer, City Realty, agreed to consider a request from residents to take a floor off the four-story proposal.

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DA: Man was shot to death in argument he started with another man over an old flame

Ed. note: Story rewritten to reflect what the DA said, not what the reporter stupidly thought he'd read.

Rogers Jordan shot Jermaine Good to death after Good showed up at Jordan's Doone Avenue apartment in June and started an argument over a former girlfriend who was staying with Jordan, the Suffolk County District Attorney's office charges.

Jodran, 51, was ordered held without bail today at his arraignment on first-degree murder in Suffolk Superior Court for the death of Good, 43.

According to the DA's office:

Evidence collected over the course of a three-month investigation suggests that Good was upset that a former girlfriend was staying at Jordan’s Doone Avenue apartment when he arrived at the apartment on June 24. Jordan and the woman were not involved in a romantic relationship. Prosecutors say Good and Jordan became involved in a confrontation in the street, during which Jordan allegedly shot Good multiple times.

Innocent, etc.

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Another bit of old Chinatown going away

Adam Cheung reports Sun Sun Supermarket on Oxford Street is closing.

Sun Sun was one of the first Chinese Supermarkets in Boston's Chinatown if not the first. And it is one of the last old school style mom and pop supermarkets to last.

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Councilor honking mad about all those goddamn geese

Blame Canada geese: The honey badgers of the avian world.

Councilor Annissa Essaibi-George refuses to duck the issue any longer: Boston has become infested by Canada geese that befoul our parks, sidewalks and waterways and chase after other animals, little children and even small adults.

In a request to fellow councilors for a formal hearing on what to do about the fowl beasts, Essaibi-George writes each bird can "produce as much as three pounds of fecal matter every day, causing little league teams to spend time cleaning fields, dog owners to clean goose feces from their pets’ paws, and walkers to walk in the street to avoid fouled sidewalks."

Also, they're territorial as all get-out and that makes them a menace to "other wildlife, children and small adults, hissing and even slapping and biting."

She notes that in Washington, the National Park Service has successfully used border collies to "haze" the birds away from the National Mall.

The council will consider her request at its regular meeting tomorrow, which starts at noon in the council's fifth-floor chambers in City Hall.

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