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SJC-11917

COMMONWEALTH vs. ONYX WHITE.

Suffolk. December 8, 2015. - September 28, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.1

Cellular Telephone. Constitutional Law, Search and seizure, 

Probable cause. Probable Cause. Search and Seizure, 

Probable cause, Warrant, Fruits of illegal search. 

Practice, Criminal, Warrant.

Indictment found and returned in the Superior Court 

Department on May 19, 2010.

A pretrial motion to suppress evidence was heard by Patrick 

F. Brady, J.

An application for leave to file an interlocutory appeal 

was allowed by Cordy, J., in the Supreme Judicial Court for the 

county of Suffolk, and the appeal was reported by him.

Cailin M. Campbell, Assistant District Attorney (David J. 

Fredette with her) for the Commonwealth.

J.W. Carney, Jr. (Danya F. Fullerton with him) for the 

defendant.

The following submitted briefs for amici curiae:

 

1 Justices Spina, Cordy, and Duffly participated in the 

deliberation on this case prior to their retirements.
2

David A.F. Lewis, Alexis L. Shapiro, & Christine Dieter for 

Massachusetts Association of Criminal Defense Lawyers.

Vivek Krishnamurthy & Andrew J. Sellars for American Civil 

Liberties Union of Massachusetts.

Alan Butler & John Tran, of the District of Columbia, Marc 

Rotenberg, & Caitriona Fitzgerald for Electronic Privacy 

Information Center.

Afton M. Templin for Committee for Public Counsel Services.

LENK, J. In February, 2010, a Boston police detective

investigating an armed robbery and shooting at a convenience 

store went to the defendant's high school, after suspicion had 

focused on the defendant as one of the three perpetrators. The 

detective spoke with a school administrator, who informed him

that, pursuant to school policy, she was holding the defendant's 

cellular telephone. 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 
3

moved to suppress on the ground that the seizure was not 

supported by probable cause. A judge of the Superior Court 

allowed the defendant's motion, and the Commonwealth appealed.

In considering the Commonwealth's appeal, we confront two 

issues under the Fourth Amendment to the United States 

Constitution and art. 14 of the Massachusetts Declaration of 

Rights. First, we consider whether the seizure was supported by 

probable cause, and, in particular, whether the detective's

opinion that the device was likely to contain evidence, without 

more, provided probable cause allowing him to seize it. We then

examine whether, under the circumstances here, it was reasonable 

for police to wait almost ten weeks after seizing the device 

before applying for a warrant to search it.

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. We separately 

conclude also that, in these circumstances, the Commonwealth has

not, in any event, met its burden of demonstrating that the

delay of sixty-eight days between the seizure and the

application for a search warrant was reasonable. We therefore 

affirm the Superior Court judge's order allowing the defendant's

motion to suppress.
4

1. Background. The following is drawn both from the 

motion judge's findings and from uncontested facts in the record

implicitly credited by him, with certain details reserved for 

later discussion. See Commonwealth v. Jones-Pannell, 472 Mass. 

429, 436 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 

334, 337 (2007), S.C., 450 Mass. 818 (2008).

On the morning of February 21, 2010, two men entered a 

convenience store in the Roxbury section of Boston. One 

brandished a gun and demanded money from the clerk, while the 

other, apparently without a firearm, walked to the rear of the 

store and demanded money from the victim. As the victim tried 

to flee towards the front of the store, he was shot and later 

died. The two men then left the store and, along with a third 

male who had been waiting outside, fled the scene.

The next day, the defendant, then sixteen years old, told 

his mother that he had participated in a robbery, along with his 

friend "Martin," and that someone had been shot. The defendant 

also stated that he had not believed that anyone had been 

killed, and that he had been surprised to learn of the victim's 

death from that morning's newspaper. Later that day, the 

defendant's mother called a Boston police officer whom she knew 

and asked him to visit her at home.

The officer came to the house the next day, February 23, 

2010, and the mother told him about her son's asserted
5

involvement in the robbery. She also said that, earlier that

day, the defendant had come to her house to wash his clothes, 

and had left them in her dryer. Later on the same day, she gave 

consent to police detectives to search the dryer and to seize 

the clothing; one of the detectives observed that it resembled

clothing worn by one of the perpetrators of a similar 

convenience store robbery one and one-half months earlier. Also 

on February 23, 2010, detectives obtained consent from the 

defendant's grandmother, with whom the defendant lived, to 

search his bedroom. There, detectives saw a jacket similar to 

one worn by one of the perpetrators of the robbery-homicide on 

February 21, 2010. The jacket subsequently was seized pursuant 

to a search warrant.

The following day, February 24, 2010, the defendant arrived 

late to his high school. Pursuant to the school's usual 

practice for all arriving students,2 he was searched and his

"pay-as-you-go"3 Samsung/Sprint cellular telephone, equipped with 

a camera, was confiscated. That afternoon, a detective 

investigating the robbery-homicide met with one of the school's

 

2 School policy required that all arriving students be 

searched and "all electronic equipment [be] taken by school 

authorities and held for the students in individual bins or 

slots in a locked cabinet."

3 The user of a "pay-as-you-go" cellular telephone pays the 

telephone carrier a certain amount of money in advance, which is 

drawn down as the user makes calls or sends text messages.
6

administrators. The administrator told the detective that the 

defendant had become "agitated" earlier that day and had left 

the school without picking up his cellular telephone. The 

detective notified a supervisor that the school was holding the 

defendant's telephone. Neither the detective nor the supervisor 

had, at that point, any information that a cellular telephone 

contained evidence of the robbery and shooting, but they were 

aware, based on their experience, that such devices often 

contained useful information in cases involving multiple 

perpetrators.4 The supervisor instructed the detective to seize 

the device without a warrant apparently on the basis of his 

belief that, if the defendant retrieved the device before a 

warrant could be obtained, he would destroy the device or erase

relevant evidence. Thereafter, the device was transported to 

the police station, where it was logged as evidence and placed 

in a special bag designed "to prevent remote intrusion." Police 

did not search the device.

The defendant was arrested later the same day and charged 

with murder. In the weeks that followed, detectives assigned to 

the case applied for and executed five search warrants,

interviewed numerous witnesses, assisted with the grand jury 

 

4 Such information may include perpetrators' contact 

information and logs of their communications with each other.
7

investigation, and also were assigned to work on two other 

homicide investigations.

On April 21, 2010, a witness told police that the defendant 

had participated in multiple robberies similar to the one on 

February 21, 2010, and that, following one of those other

robberies, "the defendant took a photograph of the proceeds of 

[that other] robbery with his cell phone equipped with a 

camera." On May 3, 2010, a detective applied for a warrant to 

search the defendant's cellular telephone, which was still in 

police possession, for, among other things, photographs related

to the robbery.5 The application was allowed, and police 

thereafter searched for and seized the aforementioned 

photograph.6

On May 19, 2010, a Suffolk County grand jury returned an 

indictment against the defendant charging him with murder in the 

first degree. On May 1, 2014, the defendant filed a motion to 

suppress the evidence recovered from the cellular telephone. 

 

5 The warrant also sought permission to search for the 

"subscriber telephone number"; "contact list, address book, 

calendar, schedules, and date book entries"; "group" and "speed 

dial" lists; "phone configuration information settings"; 

"incoming, outgoing, draft, sent and deleted text messages"; 

"saved, opened, and unopened voice mail messages"; "saved, 

opened, unopened, draft, sent and deleted electronic mail 

messages"; "mobile instant message chat logs, data, and contact 

information"; "any saved and[/]or stored, downloaded, or 

uploaded photographs"; and "any message alerts or WEB history."

6 There is no indication whether any other evidence was 

obtained from the device.
8

Concluding that the seizure was not supported by probable cause, 

a Superior Court judge allowed the motion. He also noted that 

the "delay from February 24 to May 3 [approximately ten weeks]

in obtaining the search warrant is . . . troubling." The 

Commonwealth filed a motion to reconsider and to reopen the 

evidence. The judge allowed the motion, conducted an 

evidentiary hearing, and affirmed the order of suppression. The 

Commonwealth filed an application for leave to pursue

interlocutory review in the county court, and a single justice

denied the motion. The single justice then allowed the 

Commonwealth's motion to reconsider, and ordered the appeal to 

proceed in this court.

2. Discussion. The Commonwealth contends that the motion 

judge erred because both the seizure of the cellular telephone

and the subsequent search were proper under the Fourth Amendment

and art. 14.

a. Standard of review. "In reviewing a ruling on a motion 

to suppress, we accept the judge's subsidiary findings of fact 

absent clear error 'but conduct an independent review of his 

ultimate findings and conclusions of law.' . . . We [therefore] 

'make an independent determination of the correctness of the 

judge's application of constitutional principles to the facts as 

found'" (citations omitted). Commonwealth v. Hernandez, 473 

Mass. 379, 382-383 (2015).
9

b. Seizure. The Fourth Amendment and art. 14 provide 

"that every person has the right to be secure against 

unreasonable searches and seizures" of his or her possessions. 

Commonwealth v. Porter P., 456 Mass. 254, 260 (2010). If the 

Commonwealth conducts a search or seizure without first 

obtaining a warrant, the search or seizure is "presumptively 

unreasonable" and, therefore, presumptively unconstitutional. 

Commonwealth v. Craan, 469 Mass. 24, 28 (2014). See 

Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162 (1991). 

The search or seizure nonetheless may be justified where the 

Commonwealth can "show that [it] 'falls within a narrow class of 

permissible exceptions' to the warrant requirement." Craan,

supra, quoting Commonwealth v. Perkins, 465 Mass. 600, 603 

(2013).

One such exception is where there are "'exigent 

circumstances' that make obtaining a warrant impracticable." 

Commonwealth v. Washington, 449 Mass. 476, 480 (2007). To 

justify a search or seizure on that basis, the Commonwealth 

bears "a heavy burden" to show (1) that the search or seizure

was supported by "probable cause," such that a warrant would 

have issued had one been sought,7 and (2) that there 

 

7 Thus, if police seize property without a warrant because 

they believe it to contain evidence of a crime, they must 

already have probable cause supporting the issuance of a warrant 

to search that property. See, e.g., Illinois v. McArthur, 531 
10

"exist[ed] . . . exigent circumstances" that made obtaining a 

warrant impracticable. See Commonwealth v. Tyree, 455 

Mass. 676, 684 (2010). This showing must be based on 

information known to police at the time, and not on knowledge 

acquired after the fact. See Commonwealth v. Antobenedetto, 366 

Mass. 51, 66 (1974); Commonwealth v. Holloway, 81 Mass. App. Ct. 

910, 911 (2012).

Here, the Commonwealth argues that, based on information 

then known to police, the seizure of the defendant's cellular 

telephone was supported by probable cause, and obtaining a 

warrant was impracticable because of exigent circumstances. We 

turn first to the Commonwealth's argument concerning probable 

cause.

Before police may search or seize any item as evidence, 

they must have "a substantial basis for concluding that" the 

item searched or seized contains "evidence connected to the 

crime" under investigation (citation omitted). Commonwealth v. 

Escalera, 462 Mass. 636, 642 (2012). In other words, the 

government must "demonstrate[] . . . a 'nexus' between the crime 

 

U.S. 326, 331-333 (2001) (only if police already have probable 

cause for search may they temporarily seize dwelling for period 

required to obtain warrant); Commonwealth v. DeJesus, 439 Mass. 

616, 619 & n.2 (2003) (same); 3 W.R. LaFave, Search and Seizure 

§ 6.5(c), at 134 (5th ed. 2012) (officers impounding property 

without warrant must "have probable cause to search the 

impounded property at the time the impounding is imposed" 

[citation omitted]).
11

alleged" and the article to be searched or seized (citation 

omitted). See Commonwealth v. Matias, 440 Mass. 787, 794 

(2004). "The nexus 'need not be based on direct 

observation.' . . . It may be found in the type of crime, the 

nature of the [evidence] sought, and normal inferences as to 

where such" evidence may be found. Id., quoting Commonwealth v. 

Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). 

While police "need not make a showing beyond a reasonable doubt, 

. . . '[s]trong reason to suspect is not adequate.'" 

Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), quoting

Commonwealth v. Upton, 394 Mass. 363, 370 (1985).

"The experience and expertise of a police officer may be 

considered as a factor in the [nexus] determination." 

Commonwealth v. West, 55 Mass. App. Ct. 467, 470 (2002). 

Nonetheless, where the location of the search or seizure is a

computer-like device, such as a cellular telephone,8 the opinions

 

8 Based on the warrant application, the cellular telephone 

in question here appears to have had various capabilities 

associated with modern computers, including the ability to do 

the following: browse the Internet and keep a log of sites 

visited; send, receive, and store electronic mail messages;

support instant messaging; create an address book and calendar; 

and take and store photographs. See Commonwealth v. Phifer, 463 

Mass. 790, 797 (2012) ("today's cellular telephones are 

essentially computers"); United v. Flores-Lopez, 670 F.3d 803, 

805-806 (7th Cir. 2012) ("a modern cell phone [should be treated 

as] a computer" even where "the record does not indicate the 

brand, model, or year of the defendant's cell phone, so we do 

not know how dumb or smart it is").
12

of the investigating officers do "not, alone, furnish the 

requisite nexus between the criminal activity and the [device] 

to be searched" or seized. Commonwealth v. Anthony, 451 Mass. 

59, 72 (2008) (computer search). See Commonwealth v. Kenney, 

449 Mass. 840, 846 (2007) ("We do not rely on [the officer]'s 

conclusion as to what the facts in the affidavit mean to him as 

'a talismanic formula' . . . to provide probable cause [to 

search computer] where evidence to support such a finding is 

otherwise lacking" [citation omitted]).

Rather, police first must obtain information that

establishes the existence of some "particularized evidence"

related to the crime. Commonwealth v. Dorelas, 473 Mass. 496,

502 (2016). Only then, if police believe, based on training or 

experience, that this "particularized evidence" is likely to be 

found on the device in question, do they have probable cause to 

seize or search the device in pursuit of that evidence. Id.

at 498, 503 (police knew that defendant had been "receiving 

threatening [tele]phone calls and threatening text messages on 

his [tele]phone"; probable cause to search telephone for that 

"particularized evidence").

9

 

9 See Commonwealth v. Kaupp, 453 Mass. 102, 107-114 (2009) 

(police knew that defendant possessed electronic copies of 

pirated movies, but not that he had child pornography; officer

averred that movies and pornography often stored on personal 

computer; probable cause only for pirated movies, as police had 

prior information establishing their existence); Commonwealth v. 
13

Here, prior to seizing the defendant's cellular telephone, 

police had received information that the robbery and homicide

under investigation had been committed by several people, that 

the defendant likely was one of those people, and that he owned 

a cellular telephone. They also knew from experience that 

coventurers often use cellular telephones to communicate with 

each other, and that these devices may contain evidence of such

communications. According to their own statements, however, the

detectives here did not have any "information that [a] cell 

phone was used in the crime under investigation," nor did they 

claim that there existed a particular piece of evidence likely 

to be found on such a device. In essence, then, their decision 

to seize the defendant's cellular telephone was made because 

(a) they had reason to believe that the defendant had 

participated with others in the commission of a robbery-homicide

and (b) their training and experience in cases involving 

multiple defendants suggested that the device in question was 

likely to contain evidence relevant to those offenses.

 

Anthony, 451 Mass. 59, 70-71 (2008) (police knew that defendant 

collected and transmitted illicit images; probable cause to 

search computer because detective "opined . . . that individuals 

who collect [such images] tend to keep this information in 

various media forms, including computers"); Commonwealth v. 

Kenney, 449 Mass. 840, 845-846 (2007) (same); Commonwealth v. 

McDermott, 448 Mass. 750, 764-766, cert. denied, 552 U.S. 910 

(2007) ("defendant had asked several coworkers to witness the 

execution of his will just days before the shootings"; probable 

cause to search computer for will).
14

This, without more, does not satisfy the nexus requirement. 

"Information 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

(citation omitted). Commonwealth v. Pina, 453 Mass. 438, 441

(2009). 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.

10

The Commonwealth argues, however, that the detectives 

possessed the functional equivalent of such information in the 

form of the commonsense notion that "cellular telephones 

are . . . necessary to social interactions." See Commonwealth

v. Augustine, 467 Mass. 230, 245-246 (2014), S.C., 470 Mass. 837 

(2015). On this basis, police inferred that, if the defendant 

planned and committed multiple crimes with two coventurers, it 

was likely he did so, at least in part, using his cellular 

 

10 Of course, if the device is not seized as evidence, but, 

for example, is temporarily impounded following an inventory 

search of an arrestee, this requirement has no relevance. See 

Illinois v. Lafayette, 462 U.S. 640, 643 (1983) ("justification 

for such searches [and seizures] does not rest on probable 

cause").
15

telephone, and that evidence of these communications would be 

found on the device.

It may well be the case that "many of [those] . . . who own 

a cell phone [in effect] keep on their person a digital record 

of nearly every aspect of their lives," including, presumably,

communications with their coventurers. See Riley v. California, 

134 S. Ct. 2473, 2490 (2014). Nonetheless, the Commonwealth's 

argument is unavailing. While probable cause may be based in 

part on police expertise or on "the practical considerations of 

everyday life," see Kaupp, 453 Mass. at 111, such considerations

do "not, alone, furnish the requisite nexus between the criminal 

activity and the places to be searched" or seized. Anthony, 451 

Mass. at 72. See Pina, 453 Mass. at 441-442 (officer's 

practical experience insufficient basis for probable cause where 

no "particularized information").

Moreover, the argument simply "proves too much." See 

Coolidge v. New Hampshire, 403 U.S. 443, 480 (1971) (rejecting 

Fourth Amendment argument that would sweep too broadly). In 

essence, the Commonwealth is suggesting that there exists a 

nexus between a suspect's criminal acts and his or her cellular 

telephone whenever there is probable cause that the suspect was 

involved in an offense, accompanied by an officer's averment 

that, given the type of crime under investigation, the device

likely would contain evidence. If this were sufficient,
16

however, it would be a rare case where probable cause to charge 

someone with a crime would not open the person's cellular 

telephone to seizure and subsequent search. See Riley, 134 

S. Ct. at 2492 (only "inexperienced or unimaginative law 

enforcement officer . . . could not come up with several reasons 

to suppose evidence of just about any crime could be found on a 

cell phone"). We cannot accept such a result, which is 

inconsistent with our admonition that "individuals have 

significant privacy interests at stake in their [cellular 

telephones] and that the probable cause requirement . . . under 

both the Fourth Amendment . . . and art. 14 . . . [must] serve[] 

to protect these interests." See Dorelas, 473 Mass. at 502 

n.11.

11

 

11 These interests exist even where, as here, the device 

does not appear to have all the capabilities of an upmarket 

"smart phone." See Flores-Lopez, 670 F.3d at 806 ("Even the 

dumbest of modern cell phones gives the user access to large 

stores of information"; "pay-as-you-go" cellular telephone "sold 

by Walgreens for $14.99, includes a camera, MMS [multimedia 

messaging service] picture messaging for sending and receiving 

photos, video, etc., mobile web access, text messaging, 

voicemail, call waiting, a voice recorder, and a phonebook that 

can hold 1000 entries"). Were the device to possess the 

enhanced capabilities of a "smart phone," that would merely

implicate even greater privacy concerns. See Riley v. 

California, 134 S. Ct. 2473, 2491 (2014) ("cell phone search 

would typically expose to the government far more than the most 

exhaustive search of a house"); United States v. Wurie, 728 F.3d 

1, 8 (1st Cir. 2013), aff'd sub nom. Riley v. California, supra

(cellular telephones contain "the kind of information one would 

previously have stored in one's home").
17

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. 

Lacking probable cause, the seizure was by definition improper,12

and we need not address whether there were exigent circumstances 

justifying the decision to do so without a warrant.

c. Search. Here, police eventually obtained a search

warrant and searched the defendant's cellular telephone for 

evidence of the robbery-homicide. Because the device initially 

was seized without a warrant, evidence recovered as a result of 

the search is not admissible unless the Commonwealth meets its 

burden of demonstrating that the search was reasonable.

13 See 

Craan, 469 Mass. at 28.

 

12 The Commonwealth suggests that the seizure nonetheless 

was proper under the plain view doctrine. See Commonwealth v. 

Perkins, 465 Mass. 600, 603-604 (2013) ("Under [the plain view] 

doctrine, if police are lawfully in a position from which they 

[inadvertently encounter] an object, if its incriminating 

character is immediately apparent, and if the officers have a 

lawful right of access to the object, they may seize it without 

a warrant"). This argument fails, at a minimum, because the 

warrantless seizure of evidence found in plain view is proper 

only where "there is probable cause to associate the property 

with criminal activity." Commonwealth v. Balicki, 436 Mass. 1, 

8 n.10 (2002), quoting Payton v. New York, 445 U.S. 573, 587 

(1980). Here, as discussed, there was no such probable cause.

13 The fact that, following the warrantless seizure, a 

search warrant was obtained does not shift the burden of this 

inquiry to the defendant. See State v. Johnson, 335 Or. 511, 

521 (2003) (burden to prove reasonableness remains with State
18

The Commonwealth has not met this burden for two 

independent reasons. First, the Commonwealth has not shown that 

the delay between the seizure and the filing of the application 

for a search warrant was reasonable.

14 Second, the search was 

the fruit of a seizure made without probable cause. As a 

result, any evidence obtained from the search must be 

suppressed.

i. Length of delay. Police may retain an item seized 

without a warrant for "the relatively short period of time 

needed . . . to obtain a search warrant," but must release the 

item if a warrant is not obtained within that period. 

Commonwealth v. Gentile, 437 Mass. 569, 573 (2002), quoting 

Commonwealth v. Taylor, 426 Mass. 189, 195 (1997). For this 

reason, once a warrantless seizure has been executed, the police 

"must make it a priority to secure a search warrant that 

complies with the Fourth Amendment. This will entail diligent 

 

where evidence seized without warrant even though search warrant 

ultimately obtained). Cf. Commonwealth v. Midi, 46 Mass. App. 

Ct. 591, 595 (1999) (where "evidence derived from prior 

illegality," "burden [on] the government to prove that the taint 

was attenuated enough to allow admission").

14 The Commonwealth contends that the issue of the delay is 

not properly before us because the defendant did not raise it in 

the Superior Court. The issue of the delay was noted in the 

motion judge's first memorandum of decision, however, following 

which an evidentiary hearing was conducted at the Commonwealth's 

request. At that hearing, it was the Commonwealth's burden to 

present evidence establishing the reasonableness of the delay. 

Based on the evidence introduced, we are in a position to assess 

whether the Commonwealth met its burden.
19

work to present a warrant application to the judicial officer at 

the earliest reasonable time." See United States v. Burgard, 

675 F.3d 1029, 1035 (7th Cir.), cert. denied, 133 S. Ct. 183 

(2012). If the police fail to do so, the seizure, even if

"reasonable at its inception because based upon probable cause," 

"may become unreasonable as a result of its duration." Segura

v. United States, 468 U.S. 796, 812 (1984). See Burgard, supra

at 1032 ("When officers fail to seek a search warrant, at some 

point the delay becomes unreasonable and is actionable under the 

Fourth Amendment").

There is "no bright line past which a delay becomes 

unreasonable." See Burgard, supra at 1033. Rather, the 

reasonableness of the delay is determined by "balanc[ing] the 

nature and quality of the intrusion on the individual's Fourth 

Amendment interests against the importance of the governmental 

interests alleged to justify the intrusion." United States v. 

Place, 462 U.S. 696, 703 (1983). See Kaupp, 453 Mass. at 106. 

"[C]ourts have identified several factors highly relevant to 

this inquiry," see United States v. Laist, 702 F.3d 608, 613 

(11th Cir. 2012), among them, and of particular importance here,

whether police acted "diligen[tly] in obtaining the warrant." 

Id. at 614.

The Commonwealth argues that the delay of sixty-eight days 

was justified by the complexity of the investigation. During
20

the period between the seizure of the cellular telephone and the 

filing of the application for a search warrant, the detectives 

were involved in "interviews of witnesses, an ongoing grand jury 

investigation, and the application for and execution of [five] 

other search warrants." Where an investigation is highly

complex, "courts 'can almost always imagine some alternative 

means by which the objectives of the police might have been 

accomplished,' but that does not necessarily mean that the 

police conduct was unreasonable" (citation omitted). See

Burgard, 675 F.3d at 1034. In addition, the Commonwealth notes 

that, during the period immediately following the seizure in 

question, the team of detectives assigned to this case

apparently also was assigned to two other homicide 

investigations. See Laist, 702 F.3d at 614 ("we consider . . . 

whether overriding circumstances arose, necessitating the 

diversion of law enforcement personnel to another case" 

[citation omitted]). Because of the detectives' 

responsibilities in this and other cases, there existed, in the 

Commonwealth's view, an "importan[t] . . . governmental 

interest[]," see Place, 462 U.S. at 703, in delaying the 

application for a search warrant until the police had time to

focus properly on that task.

Although the information to which the Commonwealth points

might go some way in explaining the reasons for the delay, it 
21

does not suffice to meet the Commonwealth's burden of 

demonstrating that the delay was reasonable. 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. See Burgard, 675 F.3d at 

1035.

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. Contrast Burgard, supra at 1034-1035 (six-day delay 

reasonable where officer called away to work on another case and 

where he requested help from others, including from assistant 

United States attorney, to draft affidavit). On this record, 

the Commonwealth has not shown that the prolonged delay 

following the warrantless seizure was reasonable.

The Commonwealth contends, however, that, even if police 

had a relatively minimal interest in waiting to apply for a
22

warrant, their actions were proper because the defendant did not 

exhibit a significant "possessory interest" in his cellular 

telephone. See Laist, 702 F.3d at 613 (courts consider

"significance of the interference with the person's possessory 

interest"). In particular, the Commonwealth notes that the 

cellular telephone at issue was a "pay-as-you-go" device, that 

the defendant possessed another such device, and that the 

defendant did not request that the device be returned.

This argument does not carry the day. Possessory interest

is only one factor to be considered in the over-all 

reasonableness calculus.15 See id. at 613-614. Even in 

circumstances where a defendant's possessory interest is weak, a

delay may be unreasonable if police do not act diligently in 

applying for a warrant. This is so in part because unreasonable 

delay "affects [not] only the person's possessory interest[]," 

but also the ability of the judiciary "promptly [to] evaluat[e] 

and correct[] improper seizures." See Burgard, 675 F.3d at 

1033, quoting Segura, 468 U.S. at 806.

Because the Commonwealth has not demonstrated that the 

police acted diligently in applying for a warrant, we conclude 

 

15 We also do not share the view that the defendant's 

possessory interest was lessened because he owned a "pay-as-yougo" cellular telephone. See Pew Internet & American Life 

Project, Teens and Mobile Phones, at 20 (Apr. 20, 2010) (such 

devices common among people who cannot afford subscription 

plans).
23

that it has not met its burden to show that the delay of sixtyeight days from the time the device was seized to the date of

the search warrant application was reasonable.

ii. Fruit of unreasonable seizure. Even if the delay were 

reasonable, any evidence recovered from the telephone would 

nonetheless require suppression on the ground that it was the 

fruit of an unlawful seizure.

"The general rule is that evidence is to be excluded if it 

is found to be the 'fruit' of a police officer's unlawful 

actions."16 Commonwealth v. Balicki, 436 Mass. 1, 15 (2002), 

citing Wong Sun v. United States, 371 U.S. 471, 484 (1963). 

Where an item is seized without probable cause, the item and its 

"fruits" may not be introduced in evidence. See Commonwealth v. 

Keefner, 461 Mass. 507, 518 (2012), quoting Wong Sun, supra at 

488 (evidence from search without probable cause, including 

"cellular telephone" and "all text messages" on telephone, "must 

be suppressed under the 'fruit of the poisonous tree' 

doctrine"); Upton, 394 Mass. at 364 ("exclusionary rule 

requir[es] the exclusion of evidence seized without a showing of 

probable cause"). That probable cause for a seizure emerges at 

 

16 Although suppression may not always be required where 

evidence was seized unlawfully, the Commonwealth has not argued 

that any recognized exception is applicable here. See, e.g., 

DeJesus, 439 Mass. at 624 (independent source doctrine); 

Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997) (inevitable 

discovery doctrine).
24

some point after the seizure occurred does not alter this 

conclusion. See, e.g., Upton, supra at 367-368; Commonwealth v. 

Wedderburn, 36 Mass. App. Ct. 558, 563 (1994). Cf. United 

States v. Reed, 443 F.3d 600, 603 (7th Cir.), cert. denied, 549 

U.S. 874 (2006). Here, because the cellular telephone was 

seized unlawfully, without probable cause, any evidence 

recovered from it must be suppressed.

Order allowing motion

 to suppress affirmed.