The Massachusetts Appeals Court this week overturned a judge's decision to toss the contents and call data police found on the phone of Dondre Snow of Dorchester, one of two men charged with murder Maurice Scott on Old Colony Avenue in South Boston in December, 2015.
However, before prosecutors can use the information against Snow, they must first convince a judge that they had enough detail to warrant grabbing specific files on his phone, because while police detectives who sought to look at his phone established a valid potential link between the phone and the crime, prosecutors did not prove the need to look at specific files, the appeals court ruled.
Snow is one of two men charged with Scott's murder - Dewayne Diggs was charged as the gunman who shot Scott, then, as he lay on the ground, fired several more shots into him. A third man who allegedly accompanied them was arrested on gun charges.
Snow was originally scheduled for trial in 2017 on the first-degree murder charge, but shortly before trial, a Suffolk Superior Court judge ruled the contents inadmissble because Boston Police detectives had failed to show enough proof that the phone "contained evidence of the crime" to warrant a search that turned up text messages between Snow and Diggs - and the third man in the car with them - as well as logs showing additional calls between the two and Snapchat videos showing Snow.
The Suffolk County District Attorney's office appealed. In its ruling this week, the appeals court said police had met criteria to establish a "nexus" between the phone's contents with the murder, as required by "evolving" Massachusetts case law on phone searches.
The court said that, specifically, investigators seeking a search warrant for Snow's phone had met several criteria established in earlier rulings on cell-phone evidence, among them that the shooting "required planning and coordination" between the men and that the phone was "in a car that [Snow] allegedly used to arrive at and flee from the scene of the crime." And:
It is a reasonable inference that a telephone call made by a defendant while fleeing from a crime, especially one as horrendous as a shooting, is probably related to the crime. See Commonwealth v. Barbosa, 477 Mass. 658, 667 (2018) (defendant's flight from scene and telephone calls immediately prior to and after crime to coventurers allowed reasonable inference of participation and shared intent). It is conceivable that a nonchalant criminal would, minutes after a crime, communicate with another person about an unrelated and mundane topic, but it is not probable.
Finally, there was the Slime Butta connection:
A final factor in establishing nexus is that one of the defendant's coventurers, who was known as Butta Bear or Butta, was probably the same person as Slime Buttah, who exchanged threatening and violent text messages with the victim on their cell phones. See Holley, 478 Mass. at 526 (nexus between crime and coventurer's cell phone was partly established by text messages with Holley, and Holley talking on cell phone with victim). Thus, a sufficient nexus existed, and the affidavit established probable cause to search the defendant's cell phone. His motion to suppress the search should not have been allowed.
But while detectives and prosecutors provided enough of a possible connection between the phone and crime, they did not provide any arguments as to the "particularity" of specific evidence, including copies of Snapchat videos on the phone in relation to the crime. The Supreme Judicial Court has ruled in the past that gaining access to specific files on a phone also requires probable cause and that because so much of a person's identity is tied to things on his or her smart phone, prosecutors have to limit themselves to files that might be directly related to their case. The court sent the matter back to a Superior Court judge:
[T}o allow the Commonwealth and the defendant to present arguments on whether there was sufficient particularity to search the designated files of the cell phone. Argument is also necessary as to those files for which there is a sufficient nexus to determine whether the search that was conducted was within the scope allowed by the warrant.