Commonwealth v. Mauricio , 477 Mass. 588 ( 2017 )

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SJC-12254
COMMONWEALTH vs. KEVIN A. MAURICIO.
Bristol. April 4, 2017. - August 14, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ.
Firearms. Receiving Stolen Goods. Constitutional Law, Search
and seizure. Search and Seizure, Search incident to lawful
arrest, Inventory, Fruits of illegal search.
Complaint received and sworn to in the Taunton Division of
the District Court Department on July 10, 2014.
A pretrial motion to suppress evidence was heard by Thomas
L. Finigan, J., and the case was tried before him.
The Supreme Judicial Court granted an application for
direct appellate review.
Mathew B. Zindroski for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney (Shawn
Guilderson, Assistant District Attorney, also present) for the
Commonwealth.
HINES, J. After a jury trial in the Taunton Division of
the District Court Department, the defendant, Kevin A. Mauricio,
was convicted of carrying a firearm without a license, in
2
violation of G. L. c. 269, § 10 (a); and receiving stolen
property with a value in excess of $250, in violation of G. L.
c. 266, § 60. The charges stem from a search of the defendant's
backpack after he was arrested for possession of a controlled
substance and breaking and entering a residence in Taunton.
During the course of the search, the police discovered a digital
camera, a ring, and other items. The firearm conviction was
based on images retrieved after a warrantless search of the
digital camera. The images depicted the defendant next to
firearms later determined to have been stolen. The receiving
stolen property conviction was based on the ring discovered in
the defendant's backpack.
The defendant appealed from the convictions, arguing that
the judge erred in denying the motion to suppress the images
discovered as the result of the warrantless search of the
digital camera, and that the evidence offered at trial was
insufficient to sustain the conviction of receiving stolen
property with a value in excess of $250. We granted the
defendant's application for direct appellate review, and
conclude that the warrantless search of the digital camera
constituted neither a valid search incident to arrest nor a
valid inventory search. Accordingly, the images discovered in
the unlawful search should have been suppressed. We conclude
further that, although the evidence was insufficient to sustain
3
the conviction of receiving stolen property with a value in
excess of $250, a conviction of the lesser included offense must
stand.
Background. We summarize the judge's findings of fact on
the motion to suppress the images, supplementing where
appropriate with uncontroverted testimony from the suppression
hearing. Commonwealth v. Melo, 472 Mass. 278, 286 (2015). We
reserve for later the recitation of the facts germane to the
defendant's argument that the evidence presented at trial was
insufficient to sustain the conviction of receiving stolen
property.
On May 28, 2014, Taunton police Officer Brett Collins
received a report that two "suspicious parties" were seen
running out of the side door of a residence on Downing Drive in
Taunton. According to the neighbor who called in the report,
one of the individuals was a man wearing a dark hooded
sweatshirt and red gloves and carrying a backpack. The second
person, a female, was wearing a gray sweatshirt.
Shortly thereafter, Collins located two individuals nearby
largely matching the neighbor's descriptions. The man was
identified as the defendant. Following a brief conversation,
Collins pat frisked the defendant and searched his backpack.
Inside the backpack, Collins found various items, including the
digital camera at issue, jewelry, hypodermic needles,
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prescription medications, and coins. Collins then drove the
defendant back to Downing Drive, where the neighbor who made the
report identified the defendant as the man he saw running from
another residence on the street. The police arrested the
defendant.
At the police station, Detective Dora Treacy, the evidence
officer for the Taunton police department, conducted an
inventory search of the defendant's backpack. Believing the
camera to have been stolen, Treacy, in the course of her
inventory search, turned the camera on and viewed the digital
images it contained in the hope of identifying its "true" owner.
In doing so, Treacy came across an image of a man with firearms.
Because Treacy knew a fellow detective, Michael Bonenfant, had
been investigating a housebreak on Plain Street in Taunton where
two firearms and jewelry had been reported stolen, Treacy showed
Bonenfant the digital images.
Bonenfant, suspecting that the firearms in the digital
images matched the firearms stolen from the Plain Street
residence, contacted the homeowner and showed him a printed
photograph of one of the digital images. After viewing the
photograph, the homeowner confirmed that the firearms and the
other items in the photograph were taken from his home during
the break-in.
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Discussion. 1. Motion to suppress. The defendant filed
two motions to suppress, both of which were ultimately denied.
In his first motion, the defendant sought to suppress "all
physical evidence and any alleged statements obtained by law
enforcement authorities as a result of a search and seizure by
the Taunton [p]olice [d]epartment." Initially, the motion
judge, who also decided the defendant's subsequent motion to
suppress, granted the defendant's motion, concluding that the
backpack search constituted neither a valid search incident to
arrest nor a valid patfrisk for weapons. The judge explained
that, at the time of the search, the defendant was "detained
upon specific articulable facts that he might be responsible for
a housebreak," but that the defendant was not under arrest and,
therefore, the search of the backpack by Collins could not be
justified as a search incident to arrest. Nor could it be
justified as part of a patfrisk for weapons, because Collins
lacked specific facts warranting a reasonable person to believe
that he was in danger. Based on these conclusions, the judge
granted the defendant's first motion to suppress.
Thereafter, the Commonwealth filed a motion for
reconsideration of the judge's ruling on this first motion to
suppress, arguing that because the contents of the backpack
would have been discovered during a later search incident to
arrest, they are admissible under the "inevitable discovery"
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exception to the exclusionary rule. Persuaded by the
Commonwealth's argument, the motion judge granted the motion for
reconsideration and denied the motion to suppress. Accordingly,
the Commonwealth could introduce all the items in the backpack
at trial. Because this ruling did not specifically address the
search of the digital camera, the defendant filed a second
motion to suppress focusing exclusively on that issue. The
judge denied the motion on the ground that the viewing of the
digital images was part of a valid inventory search.
On appeal, the defendant argues that the judge wrongly
denied the motion to suppress the images recovered from the
warrantless search of the digital camera because the search did
not fall within the purview of the search incident to arrest
exception to the warrant requirement and exceeded the scope of a
valid inventory search. We agree.
a. Standard of review. In evaluating the grant or denial
of a motion to suppress, "we accept the judge's subsidiary
findings of fact absent clear error and leave to the judge the
responsibility of determining the weight and credibility to be
given oral testimony presented at the motion hearing."
Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). However,
"[w]e review independently the application of constitutional
principles to the facts found." Id. Our inquiry, therefore, is
whether the search of the digital camera was proper on either of
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the grounds on which the judge relied in denying the motion to
suppress.
b. Search incident to arrest. The judge denied the
defendant's first motion to suppress the search of his backpack,
agreeing with the Commonwealth's position on the motion for
reconsideration that the items in the backpack inevitably would
have been discovered as part of a search incident to a lawful
arrest for breaking and entering. On appeal, the defendant does
not challenge the search of the backpack. Instead, he argues
that the search of the digital camera cannot be justified on
this ground. Specifically, the defendant argues that the
principles underlying Riley v. California, 134 S. Ct. 2473
(2014), which foreclosed the application of the search incident
to arrest exception to cellular telephones (cell phones), also
forecloses the application of this exception to warrantless
searches of digital cameras under both the Fourth Amendment to
the United States Constitution and art. 14 of the Massachusetts
Declaration of Rights. The Commonwealth counters that Riley
does not apply because digital cameras, lacking the ability to
function as computers, are not analogous to cell phones for
Fourth Amendment purposes. We decline to address the
constitutionality of the search of the digital camera on Fourth
Amendment grounds, but we apply the reasoning in Riley in
holding that the search of the camera violated art. 14.
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A search incident to a custodial arrest is well established
as an exception to the warrant requirement under both the Fourth
Amendment and art. 14. See United States v. Edwards, 415 U.S.
800, 802 (1974), and cases cited; Commonwealth v. Santiago, 410
Mass. 737, 742-743 (1991), and cases cited. Under both Fourth
Amendment and art. 14 jurisprudence, the purpose of the search
incident to arrest exception is twofold: (1) to prevent the
destruction or concealing of evidence of the crime for which the
police have probable cause to arrest; and (2) to strip the
arrestee of weapons that could be used to resist arrest or
facilitate escape. See Chimel v. California, 395 U.S. 752, 762-
763 (1969); Santiago, supra at 743.
In recent years, the United States Supreme Court has
grappled with defining the contours of the search incident to
arrest exception in our increasingly digital world. In Riley,
134 S. Ct. at 2494, the Supreme Court addressed whether the
search incident to arrest exception to the warrant requirement
applies to cell phones, and concluded that it does not. In
reaching this conclusion, the Court reasoned that applying the
search incident to arrest doctrine to the search of digital data
serves neither of the two justifications announced in Chimel,
395 U.S. at 762-763: "harm to officers and destruction of
evidence." Riley, supra at 2484-2485.
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This reasoning presents a compelling basis to exclude
digital cameras from the reach of the search incident to a
lawful arrest exception to the warrant requirement. Like the
cell phone, the twin threats of "harm to officers and
destruction of evidence" are not present with regard to the data
on a digital camera. See id. Once the camera has been secured
and potential threats eliminated, "data on the [camera] can
endanger no one." Id. at 2485 (officers free to "examine the
physical aspects of a phone to ensure that it will not be used
as a weapon" [emphasis supplied]). Likewise, the risk of
destruction of incriminating data is also mitigated once the
camera has been secured. Although the concern regarding the
destruction of cell phone data via remote wiping and data
encryption was considered and rejected by the Supreme Court, see
id. at 2486, this issue poses even less of a risk with respect
to digital cameras, which, like the camera at issue here, may
lack Internet or network connectivity.
Also, like cell phones, digital cameras "place vast
quantities of personal information literally in the hands of
individuals." Id. at 2485. See Schlossberg v. Solesbee, 844 F.
Supp. 2d 1165, 1170 (D. Or. 2012) (noting that "[e]lectronic
devices such as . . . digital camera[s] hold large amounts of
private information, entitling them to a higher standard of
privacy"). But see United States v. Miller, 34 F. Supp. 3d 695,
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699-700 (E.D. Mich. 2014) (suggesting cameras do not implicate
same privacy concerns as cell phones because cameras do not
"boast the extensive amount of personal information commonly
present in cell phones"). Although digital cameras do not allow
storage of information as diverse and far ranging as a cell
phone, they nevertheless possess the capacity to store enormous
quantities of photograph and often video recordings, dating over
periods of months and even years, which can reveal intimate
details of an individual's life. As the United States Supreme
Court aptly recognized, "an individual's private life can be
reconstructed through a thousand photographs labeled with dates,
locations, and descriptions; the same cannot be said of a
photograph or two of loved ones tucked into a wallet," Riley,
134 S. Ct. at 2489, and "the fact that a search in the pre-
digital era could have turned up a photograph or two in a wallet
does not justify a search of thousands of photos in a digital
gallery." Id. at 2493.
While this logic supports the applicability of Riley to
digital cameras, the Supreme Court has not yet determined
whether the Fourth Amendment permits warrantless searches of
digital cameras as a search incident to a lawful arrest.1 Thus,
1
Following the United States Supreme Court's decision in
Riley v. California, 134 S. Ct. 2473 (2014), no Federal Courts
of Appeals and only three Federal District Courts have decided
the issue. See, e.g., United States v. Miller, 34 F. Supp. 3d
11
we hesitate to extend the holding in Riley under the Fourth
Amendment to digital cameras when the Supreme Court has not yet
done so. Instead, we decide the issue based on our State
Constitution, bearing in mind that "art. 14 . . . does, or may,
afford more substantive protection to individuals than that
which prevails under the Constitution of the United States."
Commonwealth v. Blood, 400 Mass. 61, 68 n.9 (1987). We hold,
for the same reasons articulated by the Supreme Court in Riley
and as set forth above, that digital cameras may be seized
incident to arrest, but that the search of data contained in
digital cameras falls outside the scope of the search incident
to arrest exception to the warrant requirement. See
Commonwealth v. Madera, 402 Mass. 156, 160 (1988) ("We have
excluded evidence under art. 14 without regard to whether the
695, 700 (E.D. Mich. 2014) (noting, without deciding whether
Riley extends to digital cameras, that cameras do not implicate
same privacy concerns as cell phones because cameras "contain a
limited type of data . . . that do not touch the breadth or
depth of information that a cell phone's data offers"); United
States vs. Whiteside, U.S. Dist. Ct., No. 13 Cr. 576 (S.D.N.Y.
June 29, 2015) (concluding that "Supreme Court's grant of
protection to a device with the capacity to store a vast number
of images directly applies to search of [defendant's] digital
camera"); American News & Info. Servs., Inc. vs. Gore, U.S.
Dist. Ct., No. 12-CV-2186 BEN (S.D. Cal. Sept. 17, 2014)
(dismissing plaintiff's Fourth Amendment unlawful search claim
on qualified immunity grounds, where it is open question whether
Riley applies to video cameras, but acknowledging that "[t]here
are qualities associated with cell phones, significant in the
court's analysis, that are both similar to and different from
cameras").
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evidence was inadmissible under [the] Fourth Amendment . . .").2
Indeed, with the twin threats justifying the search incident to
arrest exception mitigated here because the camera was secure in
the custody of the police, the officers had ample opportunity to
obtain a search warrant.
The Commonwealth argues that because the defendant failed
to establish that he owned, and thus had a reasonable
expectation of privacy in, the digital camera, he has no
standing to challenge the search. The Commonwealth, however,
failed to raise this issue in the proceedings below. As a
result, the merits of the issue were never meaningfully
addressed during the motion to suppress hearing, and the motion
judge made only the single factual finding that the camera "may
or may not have been owned by the defendant." Because the
Commonwealth failed to raise the issue below, it is waived.
Therefore, we decline to address the merits of the issue here.
See Steagald v. United States, 451 U.S. 204, 209 (1981)
(government may forfeit argument that defendant lacks reasonable
expectation of privacy in area searched where issue not raised
"in a timely fashion during the litigation"). See also
2
General Laws c. 276, § 1, which codifies the search
incident to arrest exception, and which we have recognized, "is
more restrictive than the Fourth Amendment," Commonwealth v.
Blevines, 438 Mass. 604, 607 (2003), quoting Commonwealth v.
Blevines, 54 Mass. App. Ct. 89, 93 (2002). Where we suppress
the search of the digital camera under art. 14, we need not
address whether suppression would also be required under § 1.
13
Commonwealth v. Lawson, 79 Mass. App. Ct. 322, 327 (2011),
overruled on other grounds by Commonwealth v. Campbell, 475
Mass. 611 (2016) ("Whether a defendant has a reasonable
expectation of privacy may not be challenged for the first time
on appeal by the Commonwealth . . ."); Commonwealth v. Martinez,
74 Mass. App. Ct. 240, 249-250 (2009) (same).
Furthermore, we decline the Commonwealth's invitation to
apply the doctrine that allows an appellate court "to affirm a
ruling on grounds different from those relied on by the motion
judge if the correct or preferred basis for affirmance is
supported by the record and the findings." Commonwealth v. Va
Meng Joe, 425 Mass. 99, 102 (1997). Aside from the motion
judge's single finding that the camera "may or may not have been
owned by the defendant," the record is devoid of factual
findings supporting the Commonwealth's argument. Although we
have determined that "if the facts found by the judge support an
alternative legal theory, a reviewing court is free to rely on
an alternative legal theory," id., no such facts were found
here.
c. Inventory search. The motion judge ruled, on the
defendant's second motion to suppress the warrantless search of
the digital camera, that the search constituted a valid
inventory search. The defendant claims error in this ruling,
arguing that the search was investigatory in nature and,
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therefore, outside the scope of the inventory search exception
to the warrant requirement.
Our cases have determined that "the police, without a
warrant, but pursuant to standard written procedures, may
inventory and retain in custody all items on [a] person [to be
placed in a cell], including even those within a container."
Commonwealth v. Vuthy Seng, 436 Mass. 537, 550, cert. denied,
537 U.S. 942 (2002), and cases cited. The exception is
predicated on the need to "safeguard the defendant's property,
protect the police against later claims of theft or lost
property, and keep weapons and contraband from the prison
population." Id. at 550-551. Thus, an inventory search is not
intended to be investigatory or an occasion for police to "hunt
for information by sifting and reading materials taken from an
arrestee which do not so declare themselves." Id. at 553,
quoting Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 770
(1989).
Applying these principles, we conclude that the search of
the digital camera exceeded the bounds of the inventory search
exception to the warrant requirement because it was
investigatory in nature. The investigative purpose is
established by the judge's finding that Treacy, suspecting that
the camera was stolen, took steps to investigate its ownership
by activating the camera and viewing the stored images. The
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Commonwealth argues that Treacy's "sole objective was to
identify its true owner." But this objective confirms rather
than refutes the conclusion that the examination of the digital
camera was an investigatory search rather a benign inventory of
the contents of the backpack. Treacy's objective is founded on
the assumption that the camera was stolen. Indeed, during the
motion hearing, before explaining that she viewed the camera's
stored images, Treacy pointed out that the camera "came in as --
with a bunch of stolen property." Treacy also explained that
while she does not usually go through an individual's electronic
property, the camera "was stolen property."
Given these facts, we cannot conclude that Treacy's conduct
was "noninvestigatory." See Vuthy Seng, 436 Mass. at 552-554.
See also Commonwealth v. White, 469 Mass. 96, 101-102 (2014)
(officer's examination of pills seized from unlabeled pill
container found during inventory of defendant's vehicle exceeded
parameters of inventory search exception where officer examined
pills "solely for an investigative rather than an inventory
purpose"). Therefore, the search exceeded the scope of and was
inconsistent with the purposes underlying the inventory search
exception to the warrant requirement, and is thus at odds with
our law. See Vuthy Seng, supra at 554, quoting Sullo, 26 Mass.
App. Ct. at 772 ("In making an inventory . . . the police are to
act more or less mechanically, according to a set routine, for
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to allow then a range of discretion in going about a warrantless
search would be to invite conduct which by design or otherwise
would subvert constitutional requirements").
Because the Commonwealth has failed to show that the
warrantless search of the digital camera fell within one of the
"'permissible exceptions' to the warrant requirement,"
Commonwealth v. White, 475 Mass. 583, 588 (2016), quoting
Commonwealth v. Craan, 469 Mass. 24, 28 (2014), the search was
unreasonable and, thus, art. 14 requires the exclusion of
evidence seized during the search. Accordingly, the denial of
the defendant's motion to suppress the images found on the
digital camera was error.
d. Suppression of the ring. The defendant contends that
the ring should also be suppressed as fruit of the poisonous
tree. "The 'fruit of the poisonous tree' doctrine . . . has
been applied to evidence derived from violations of both the
Fourth and Fifth Amendments to the United States Constitution"
(citation omitted). Commonwealth v. Damiano, 444 Mass. 444, 453
(2005). Unlike in the cases relied on by the defendant, here
the police did not discover the ring as either a direct or
indirect result of unlawful conduct. Compare Wong Sun v. United
States, 371 U.S. 471, 484, 487-488 (1963) (excluding narcotics
seized from another individual where they were discovered only
as result of statements made by defendant following police
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officers' unlawful entry into defendant's home and unlawful
arrest of defendant).
Nevertheless, the defendant argues that the fruit of the
poisonous tree doctrine should be applied because, but for the
investigation stemming from the unlawful search of the camera,
the police never would have learned the significance of the ring
-- that it was stolen. We disagree. Where the connection
between the ring and the illegality -- the unlawful search of
the camera -- is so tenuous, the application of the fruit of the
poisonous tree doctrine would risk untethering it from its
underlying principles. See Damiano, 444 Mass. at 453-454
("[I]nfection will be held to have occurred when the illegality
of the police behavior is sufficiently grave and the connection
between the illegality and [the evidence discovered] is
sufficiently intimate").
2. Sufficiency of the evidence. The defendant last argues
that the judge erred in denying his motion for a required
finding of not guilty of receiving stolen property with a value
in excess of $250, where the Commonwealth failed to present
sufficient evidence of the value of the ring. To review a claim
of sufficiency of the evidence we ask whether, "after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (emphasis in original).
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Commonwealth v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In
determining the sufficiency of the evidence, we consider "the
evidence in its entirety, including, not excluding, that
admitted [at] trial but found inadmissible on appeal."
Commonwealth v. DiBenedetto, 414 Mass. 37, 46 (1992), quoting
Glisson v. Georgia, 192 Ga. App. 409, 410 (1989).
To obtain a conviction of receiving stolen property, the
Commonwealth must prove beyond a reasonable doubt that the
defendant (1) bought, received, or aided in the concealment of
property that was stolen or embezzled; and (2) knew the property
had been stolen. Commonwealth v. Yourawski, 384 Mass. 386, 387
(1981). Under G. L. c. 266, § 60, the "value of the property
stolen determines the punishable offense." Commonwealth v.
Tracy, 27 Mass. App. Ct. 455, 467 (1989). Because a finding
that the value of the stolen property received is in excess of
$250 triggers an increased sentencing range, the value must be
treated as an element of the crime, and thus proved by the
Commonwealth beyond a reasonable doubt. See Commonwealth v.
Beale, 434 Mass. 1024, 1025 (2001).
Even when viewed in the light most favorable to the
Commonwealth, the evidence at trial was insufficient to
establish that the value of the ring exceeded $250. The
Commonwealth presented testimony that the mesh ring was of the
19
Tiffany brand and submitted to the jury a photograph of the
ring. However, there was no evidence of the ring's value. Nor
was the jury presented with the ring itself. It is true, as the
Commonwealth points out, that the trier of fact may employ
"common sense" and common experience to determine the valuation
issue. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643
(2003), citing Commonwealth v. Hosman, 257 Mass. 379, 385-386
(1926). Here, however, equipped only with the brand and
photograph of the ring, we cannot conclude that the application
of common sense and experience is sufficient to fill the
evidentiary gap. Compare Muckle, supra (noting jury may apply
"common sense" to conclude that value of vehicle exceeded $250),
with Tracy, 27 Mass. App. Ct. at 467 (concluding common
experience of jurors insufficient to establish that value of
firearm exceeded one hundred dollars). Although the evidence of
the ring's value was insufficient as a matter of law to prove
the value of the property, it is undisputed that the
Commonwealth proved all the other elements of the offense
charged. Thus, we conclude that a finding of guilty of the
lesser included misdemeanor offense of receiving stolen property
with a value of $250 or less, in violation of G. L. c. 266,
§ 60, shall enter against the defendant. See Commonwealth v.
Deberry, 441 Mass. 211, 224 (2004).
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Conclusion. For the reasons stated above, the order
denying the motion to suppress the images from the digital
camera is reversed. Accordingly, the judgment of conviction of
carrying a firearm without a license, in violation of G. L.
c. 269, § 10 (a), is vacated, and the matter is remanded for
further proceedings consistent with this opinion. With respect
to the defendant's conviction of receiving stolen property
valued over $250, the judgment is vacated, and the case is
remanded to the District Court, where a finding of guilty of the
lesser included offense of receiving stolen property with a
value of $250 or less shall enter.
So ordered.