Owning a Cellphone Is Not Probable Cause

BOSTON (CN) — A Boston police officer was wrong to hang onto the cellphone of a robbery suspect for two months without a warrant, the state's Supreme Judicial Court declared Wednesday.

The Supreme Judicial Court affirmed a ruling in Suffolk County Superior Court that evidence from the seized cellphone must be suppressed because the officer improperly obtained and kept it for 68 days before he could get a warrant to search the device.

The phone belongs to Onyx White, a high school student who was suspected of involvement in the armed robbery of a convenience store. The police officer was able to obtain his phone from White's high school administration office.

The police already had seized clothing that belonged to White, which matched the description of one of three people who robbed a store in the Roxbury neighborhood of Boston. A victim in the store was shot during the robbery and later died from the wound.

The police gained access to White's clothes after he allegedly told his mother that he was involved in a robbery and his mom called the police.

The officer took the cellphone on a hunch that it might contain information relevant to the robbery, but the Supreme Judicial Court said that's not sufficient to justify the seizure.

"We conclude that probable cause to search or seize a person's cellular telephone may not be based solely on an officer's opinion that the device is likely to contain evidence of the crime under investigation and, accordingly, that the seizure here was not supported by probable cause," Associate Justice Barbara Lenk wrote.

Although the state claimed it had already obtained information that implicated White in the robbery, it failed to get information that specifically indicated that White's phone contained evidence of the crime.

Instead, the police seized the phone under the assumption that if someone were to perpetrate a robbery, or perhaps multiple robberies with multiple people, then it was likely that the suspect used his or her phone to communicate with the accomplices.

The Supreme Judicial Court called that assumption inadequate for justifying the warrantless seizure.

The American Civil Liberties Union of Massachusetts, which filed an amicus brief for White, celebrated the decision.

"As the ACLU of Massachusetts and the Berkman Center Cyber Law Clinic at Harvard Law School argued in its amicus, the Commonwealth's position in this case would have turned the constitutional warrant requirement on its head," staff attorney Jessie Rossman said in a statement.

"Cellphones can store an enormous amount of private information. The courts have already recognized that this capability triggers the need for probable cause protection; it cannot, as the Commonwealth argued, satisfy the probable cause requirement. The Court's ruling preserves the protections of the Fourth Amendment and Article Fourteen in our new technological age and ensures that simply owning a cellphone does not establish probable cause."

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