Commonwealth v. Fencher , 95 Mass. App. Ct. 618 ( 2019 )

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18-P-1383 Appeals Court
COMMONWEALTH vs. ALEXA H. FENCHER.
No. 18-P-1383.
Barnstable. May 3, 2019. - July 17, 2019.
Present: Wolohojian, Kinder, & Hand, JJ.
Cellular Telephone. Constitutional Law, Search and seizure,
Probable cause. Search and Seizure, Probable cause,
Consent. Probable Cause. Consent. Practice, Criminal,
Motion to suppress, Attorney's fees.
Indictments found and returned in the Superior Court
Department on January 27, 2017.
A pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Elspeth B. Cypher, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
Robert W. Nolan for the defendant.
KINDER, J. The indictments in this case allege that the
defendant, Alexa Fencher, and two coconspirators broke into the
2
home of her uncle, Alfred Boutiette, and beat him about the head
and face with a crowbar.1 Following an evidentiary hearing, a
Superior Court judge allowed the defendant's motion to suppress
the fruits of a search of her cellular telephone (cell phone).
The judge reasoned that the police lacked probable cause to
seize the cell phone, and that the illegal seizure tainted the
defendant's subsequent consent to search her cell phone. In
this interlocutory appeal, the Commonwealth claims error in that
ruling, arguing that the seizure of the cell phone was supported
by probable cause and that the defendant's consent to search her
cell phone was free and voluntary. We agree and reverse.
Background. The following facts are drawn from the judge's
findings and from undisputed facts in the record that were
implicitly credited by him. See Commonwealth v. Jones-Pannell,
472 Mass. 429, 436 (2015). On September 23, 2016, at
approximately 4:30 A.M., Barnstable Police officers responded to
an emergency call regarding a violent home invasion at 37
Wedgewood Drive in Centerville. Upon arrival, police observed
that the victim, Alfred Boutiette, had facial and head injuries
1 The defendant is charged with home invasion, G. L. c. 265,
§ 18C; armed burglary and assault, G. L. c. 266, § 14; assault
with intent to murder, G. L. c. 265, § 15; assault with intent
to maim, G. L. c. 265, § 15; mayhem, G. L. c. 265, § 14; two
counts of aggravated assault and battery by means of a dangerous
weapon, G. L. c. 265, § 15A (c); six counts of conspiracy, G. L.
c. 274, § 7; and violation of an abuse prevention order, G. L.
c. 209A, § 7.
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and was covered in blood. The victim told police that he had
been attacked by multiple individuals while he was sleeping and
that he thought the defendant, his niece, against whom he had an
active restraining order, was involved in the assault. The
victim explained that although he did not see his assailants, he
suspected his niece because earlier that evening "he saw [the
defendant's] white Hyundai Sonata parked in his driveway."2 The
victim further explained that a locked door to his house had
been opened and that the defendant had a key to the house.
There was no sign of forced entry and nothing appeared to have
been stolen.
Prior to the alleged home invasion, at approximately 3:06
A.M., an officer on patrol observed the same white Hyundai
Sonata turn from Route 28 onto Wedgewood Road. The officer
observed the car make a U-turn at the entrance to Wedgewood
Drive, where the victim lived, and return to Route 28.
Later that morning, after learning from her grandmother
that the police were looking for her in connection with
"something that happened to [her] uncle at the house," the
defendant agreed to go the Barnstable Police Department to be
interviewed.3 At 9:52 A.M., approximately five hours after the
2 The white Hyundai Sonata was owned by one of the
defendant's grandparents, but the defendant "was known to have
possession of the vehicle."
4
assault was reported, the defendant waived her Miranda rights
and agreed to speak with detectives. Over the course of
approximately two hours, the defendant responded to questions
regarding her activity the night before, her whereabouts, and
her relationship with her uncle.4 As relevant here, the
defendant told the detectives that she had been drinking and
watching football with several friends at two bars. Thereafter,
she went to a friend's house in Hyannis. The group arrived
there at 1:00 A.M., and left at 3:00 A.M. to "go smoke near the
bridge," where they stayed until sunrise. Someone else drove
the white Hyundai, because the defendant was intoxicated. The
defendant acknowledged that her car had been parked at 37
Wedgewood Drive the night before and that "[she] had somebody
get it for [her] because [of] the [r]estraining [o]rder." At
one point, when Detective David Foley pressed her on the details
of her explanation, the defendant, referring to her cell phone,
3 We allowed the Commonwealth's motion for transmission to
us of the hearing exhibit containing an audiovisual recording of
the defendant's police interview, and we have reviewed the
recording in addition to the transcript of the interview.
4 The judge hearing the cell phone suppression motion
simultaneously heard and ruled on the defendant's separately
filed motion to suppress certain statements she made to the
police during the interview. The judge allowed the motion,
suppressing statements the defendant made to the police after
she requested an attorney at 10:57 A.M. That order is not a
subject of this appeal and, for reasons discussed infra, does
not affect our decision.
5
responded, "I actually have videos of me being at the bar and
stuff." When Detective Foley stated that he wanted to see the
videos later, the defendant replied, "Definitely." The
defendant admitted that she had a key to the house at 37
Wedgewood on her person, but denied any involvement in the
assault on her uncle.
At 10:15 A.M., the officers seized the defendant's cell
phone and her keys. Detective Foley testified that he seized
the defendant's cell phone because "she said that she had some
text messages that she had woken up to, but [sic] the fact that
she had talked to her grandmother about the assault," and "[t]he
fact that she said she had videos of her being at the bar the
previous night."
Meanwhile, as the detectives interviewed the defendant,
another officer observed what appeared to be blood stains near a
door handle on the white Hyundai Sonata in which the defendant
had arrived at the Barnstable Police Department. The officer
communicated that information to the detectives conducting the
interview before the defendant's keys and cell phone were
seized.
After he seized the defendant's cell phone, Detective Foley
asked the defendant "if she would be willing to consent to a
search of her cell phone" and said that, if she did not consent,
he would "write a search warrant to download the contents of the
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phone." The defendant "acted like she didn't care if [the
police] had looked at her phone" and "stated she was willing to
sign a consent form to search her phone." At 10:35 A.M., the
defendant signed a Barnstable Police Department form consenting
to the search of her cell phone and gave Detective Foley "the
password to unlock the phone and the passwords to her user
accounts that are in the consent forms." The account listed on
the consent form is "Snap chat."5 The defendant refused to give
consent for police to search the white Hyundai Sonata or to take
her fingerprints and fingernail scrapings.
At 10:57 A.M., the defendant asked Detective Foley, "Can I
talk to my grandmother and a lawyer please?" When Detective
Foley responded, "are you asking for a lawyer," the defendant
responded, "I just want to talk to my grandmother, so she can
tell you what type of kid I am." Thereafter, the interview
continued until 12:04 P.M. The judge found that the defendant's
request for counsel at 10:57 A.M. was unequivocal and allowed
the defendant's separate motion to suppress statements as to
anything the defendant said after 10:57 A.M. See note 4, supra.
The Commonwealth has not appealed that ruling and we do not
consider those statements in our decision.
5 The defendant stated that the video was on her Snapchat
account. "Snapchat is a social media website on which a member
may share information with a network of 'friends.'" F.K. v.
S.C., 481 Mass. 325, 327 (2019).
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During the course of the interview, the defendant, a
college student, was sober, communicative, and responsive to the
questions. The tone of the interview was conversational. The
judge concluded that, beyond a reasonable doubt, the defendant's
statements prior to 10:57 A.M. were voluntary.
Discussion. A search may be conducted without a warrant
provided the search is undertaken with the free and voluntary
consent of a person with the authority to give that consent.
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The
Commonwealth bears the burden of proving consent, Commonwealth
v. Aguiar, 370 Mass. 490, 496 (1976), but neither probable cause
nor reasonable suspicion are required to ask for consent to
search, J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters
Under Massachusetts Law § 11-3[b] (2018). However,
"[w]hen consent to search is obtained through exploitation
of a prior illegality, particularly very close in time
following the prior illegality, the consent has not been
regarded as freely given. Evidence gathered in a search
allowed by such a compromised consent has been thought to
be tainted and inadmissible."
Commonwealth v. Midi, 46 Mass. App. Ct. 591, 595 (1999). In
such circumstances, "[i]t is the Commonwealth's burden to
establish that the evidence it has obtained and intends to use
is sufficiently attenuated from the underlying illegality so as
to be purged from its taint." Commonwealth v. Fredericq, 482
Mass. 70, 78 (2019), quoting Commonwealth v. Damiano, 444 Mass.
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444, 454 (2005). Here, the judge concluded that the defendant's
consent to search her cell phone at 10:35 A.M. was tainted by
the illegal seizure of the cell phone from the defendant at
10:15 A.M. Specifically, the judge reasoned that the police
lacked probable cause to seize the cell phone at the time it was
taken from the defendant and that the defendant's subsequent
consent was not sufficiently attenuated from the illegal
seizure. We review the judge's decision under familiar
standards. We accept his factual findings unless they are
clearly erroneous, see Commonwealth v. Welch, 420 Mass. 646, 651
(1995), and "make an independent determination of the
correctness of the judge's application of constitutional
principles to the facts" as found, Commonwealth v. Mercado, 422
Mass. 367, 369 (1996). Because we conclude that the seizure of
the defendant's cell phone was supported by probable cause and
that the defendant's subsequent consent to search was free and
voluntary, we need not reach the question of attenuation.
1. Probable cause to seize the cell phone. "Although art.
14 [of the Massachusetts Declaration of Rights] and the Fourth
Amendment [to the United States Constitution] guard against
both, a search and a seizure are distinct legal concepts."
Commonwealth v. Almonor, 482 Mass. 35, 56 (2019) (Lenk, J.,
concurring). "[T]he government conducts a search when it
'intrudes on a person's reasonable expectation of privacy,'" and
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it "conducts a seizure when it interferes with an individual's
property rights." Id., quoting Commonwealth v. Augustine, 467
Mass. 230, 241 (2014). Before the police may seize an item as
evidence, "they must have 'a substantial basis for concluding
that' the item . . . contains 'evidence connected to the crime'
under investigation." Commonwealth v. White, 475 Mass. 583, 588
(2016), quoting Commonwealth v. Escalera, 462 Mass. 636, 642
(2012). There must be a timely nexus between evidence of
criminal activity and the object of the seizure. See
Commonwealth v. Holley, 478 Mass. 508, 521 (2017). "The concept
of 'nexus' means nothing more than a factually based connection
between criminal activity and the particular place to be
searched and things to be seized." J.A. Grasso, Jr., & C.M.
McEvoy, Suppression Matters Under Massachusetts Law § 8-2[e][5],
at 8-17 (2018).
To determine whether the police had a substantial basis to
believe the defendant's cell phone contained evidence connected
to the crime, we examine the facts of which the police were
aware at 10:15 A.M., the moment they seized it. At that point,
the police had the following information: the victim had been
badly beaten by multiple assailants during a home invasion
approximately six hours earlier; the white Hyundai Sonata
associated with the defendant was seen in the area of the
victim's residence less than two hours before the assault; the
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defendant had a key to the victim's residence and there was no
sign that the home invasion involved forced entry; the victim
told police he suspected the defendant was involved because he
had seen the white Hyundai Sonata parked at his residence
earlier in the evening and he had an active restraining order
against her; there were suspected blood stains on the exterior
of the Hyundai Sonata when the defendant arrived at the police
station in that vehicle the next morning; the defendant's
explanation of her whereabouts at various times on the night of
the assault was not consistent with other information the police
had developed; and the defendant told the detectives that she
"[had] videos of me being at the bar and stuff" on her cell
phone.
Because such video evidence could establish where, when,
and with whom the defendant was in the hours before the home
invasion, the police had "a substantial basis for concluding"
that video evidence stored on the defendant's cell phone
contained "'evidence connected to the crime' under
investigation" (citation omitted). White, 475 Mass. at 588.
See Commonwealth v. Jordan, 91 Mass. App. Ct. 743, 751 (2017)
(evidence of suspect's location a component of probable cause
analysis if it would be helpful in proving crime). Accordingly,
we conclude there was probable cause to believe that video
recordings connected to the investigation would be located in
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the defendant's cell phone, and therefore there was probable
cause to seize it.
The motion judge relied on White, supra, to support his
conclusion that the police lacked probable cause to seize the
defendant's cell phone. There, the Supreme Judicial Court
concluded that
"'[i]nformation establishing that a person [may be] guilty
of a crime does not necessarily constitute probable cause
to search' or seize the person's cellular telephone, even
where the police believe, based on their training and
experience in similar cases, that the device is likely to
contain relevant evidence . . . . Rather, even where there
is probable cause to suspect the defendant of a crime,
police may not seize or search his or her cellular
telephone to look for evidence unless they have information
establishing the existence of particularized evidence
likely to be found there" (emphasis added).
White, 475 Mass. at 590-591, quoting Commonwealth v. Pina, 453
Mass. 438, 441 (2009). In White, the fruits of the cell phone
search were suppressed because there was no evidence that any
particular piece of evidence would be found on the defendant's
cell phone. Id. at 592. The police relied exclusively on their
experience and opinion that it was likely that the suspects
communicated using the defendant's cell phone. Id. at 591. The
situation here was different. The defendant volunteered that
she had taken videos the night before -- videos that could
reveal where she was and who she was with on the night of the
crime. This admission provided the kind of particularized
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evidence not present in White.6 For these reasons, the seizure
of the cell phone was lawful.
2. Consent to search. After the cell phone was seized,
the police used a standard Barnstable Police Department form to
document the defendant's consent to permit them "to take custody
of, copy, and analyze the items detailed below for evidence."7
The form further identified the defendant's "iPhone 6" under the
heading "Digital Device Information" and her "Snap chat" account
under the heading "User Accounts To Be Searched." Following the
signed execution of the written consent form, the police
6 We are not persuaded by the Commonwealth's contention that
evidence of text messages to the defendant from her grandmother
on the morning after the assault added to the probable cause
calculus. Based on the evidence produced at the hearing, those
text messages simply informed the defendant that the police
wanted to speak with her about "something that happened to [her]
uncle at the house."
7 The form states in part,
"I, Alexa Fencher, hereby authorize Det. Foley of the
Barnstable Police Department, or any other law enforcement
officer or digital evidence analyst working with the
aforementioned officer, to take custody of, copy, and
analyze the items detailed below for evidence. I
understand that copies of the contents of the items,
including all files and data, may be created and retained
for analysis. I also understand that the analysis of the
copies of the media may continue even after the items
designated for analysis are returned. I provide my consent
to this analysis freely, willingly, and voluntarily, and
with the knowledge that I have the right to refuse consent.
I provide my consent without fear, threat, coercion, or
promise of any kind."
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extracted "text messages, call logs, videos, pictures, device
location information, [and] contact information" from the
defendant's cell phone. The record is silent regarding what
sources within the cell phone were searched to locate and
extract the seized information, but the Commonwealth conceded at
argument that information was extracted from sources other than
the defendant's Snapchat account. The Commonwealth argued that
the consent form indicated the defendant's consent to search all
databases within her cell phone. Although the defendant's brief
does not claim that her consent was limited to the Snapchat
account, the consent form itself is ambiguous on that point.
Accordingly, we consider the scope of the defendant's consent.
A search may be conducted without a warrant provided it is
undertaken with free and voluntary consent, Schneckloth v.
Bustamonte, 412 U.S. at 222, but "[a] search that is based on
consent may not exceed the scope of that consent," Commonwealth
v. Ortiz, 478 Mass. 820, 824 (2018). The standard for measuring
the scope of consent "is that of 'objective' reasonableness -—
what would the typical reasonable person have understood by the
exchange between the officer and the suspect?" Id., quoting
Florida v. Jimeno, 500 U.S. 248, 251 (1991). "The focus is
solely on what a typical reasonable person would understand the
scope of the consent to be," based on the "totality of the
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circumstances," including the words spoken and the context in
which they are spoken. Ortiz, supra at 824, 826.
Viewing the form in the context of the entire exchange
between Detective Foley and the defendant, we are confident that
a reasonable person would conclude that the defendant's consent
to search her cell phone was without limitation. The judge
found that Detective Foley communicated the police's intent to
search the entire cell phone when he stated as the objective,
whether by warrant or by obtaining consent, "we're taking your
car and your cell phone . . . we're going to, at some point,
examine your cell phone for any potential evidence in here . . .
[a]nd that will allow us to go in there and read all your text
messages and everything from last night all through this
morning." The judge further found that, thereafter, the
defendant consented to the search of her cell phone and provided
passwords to both the phone and her Snapchat account. He found
no limitation on the scope of the defendant's consent to search
her cell phone.
Our conclusion is supported by the fact that the defendant
clearly understood that she had the right to refuse consent to
search, even though proof of such knowledge is not required.
See Ortiz, 478 Mass. at 826. During the interview with
Detective Foley, the defendant declined consent to a search of
the white Hyundai Sonata and she also declined consent to take
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her fingerprints and swab her fingernails for possible genetic
evidence. At no time, however, did the defendant express any
reluctance to allow the search of her cell phone or express any
limitation on what within her cell phone could be searched.
Finally, our independent review of the video recording of the
defendant's interview reveals that the specific reference to the
Snapchat account was added to the form by Detective Foley after
the defendant had signed the form authorizing a general search
of her cell phone. Simply put, when we apply a common sense
interpretation to the entire exchange between the defendant and
Detective Foley, see id. at 824, it is objectively reasonable to
conclude that the defendant's consent to search her cell phone
was free, voluntary, and unlimited.
3. Attorney's fees and costs. Prior to the scheduling of
argument in this appeal, the defendant filed a request for
reasonable appellate attorney's fees and costs with supporting
documentation pursuant to Mass. R. Crim. P. 15 (d), as amended,
476 Mass. 1501 (2017). The request was premature. See
Commonwealth v. Ennis, 441 Mass. 718, 720 (2004) ("a defendant
shall file a rule 15 [d] request within thirty days of . . . the
issuance of the rescript from the appellate court that decides
the appeal . . . " [emphasis added]). We allowed the
Commonwealth to defer filing its opposition as to the amount
requested, and we now further order as follows: The defendant
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shall have thirty days from the date the rescript issues to file
any revised rule 15 (d) request and supporting materials. The
Commonwealth shall then have thirty days to file its response.
See id. at 721 n.3.
Conclusion. Because the police had probable cause to seize
the defendant's cell phone, and because the defendant
voluntarily consented to the search without limitation, we
reverse the judge's order suppressing evidence obtained from the
search of the defendant's cell phone.
So ordered.