This case involves law enforcement’s seizure of a student’s cell phone obtained without a warrant from the student’s high school, where it was stored pursuant to school policy on the student’s behalf. At issue in this case is whether schools may turn over to the police a student’s cell phone without a warrant. The answer is simply “no.” Cell phones provide access to detailed, sensitive personal information and should not be seized by the police without a warrant. If the police need to obtain a cell phone, the U.S. Supreme Court has made clear the answer: “get a warrant.”
The Massachusetts Supreme Judicial Court presented the issues as follows in its amicus announcement:
Whether police lawfully searched the contents of the defendant’s cell phone, where the phone was obtained without a warrant from a locked cabinet at the defendant’s high school, where it had been stored pursuant to school policy on the defendant’s behalf; where it was held by the police for approximately ten weeks before they obtained a search warrant; and where during that time it was preserved in a manner that prevented a third party from remotely erasing its contents.
Appellee Onyx White, along with a co-defendant, has been charged with committing a homicide during the course of a robbery of a convenience store in Boston on February 21, 2010, as well as several other convenience store robberies leading up to that date. It is alleged that during the robbery/homicide, two young masked men entered the store and, while one suspect was demanding money from the clerk, the victim struggled with one of the suspects. The other suspect then fired two shots in the direction of the victim. The victim was struck by one of the bullets and died. The suspects fled the store.
Two days after the robbery/homicide, police spoke with Appellee White’s mother. White’s mother told police that her son had been involved in a robbery and that he had come to her house [on February 22, 2010] looking worried and upset. She stated that White had told her the robbery and homicide that took place on February 21, 2010 “was not supposed to go down like it did,” and that “no one was supposed to get hurt.” White’s mother further stated that White had told her “a person who was with him, by the name of Martin, who resides in a blue house two doors down from where [White’s] grandmother lives on Hartford Street shot and killed the store owner.” White’s mother stated that she knew Martin was a friend of the defendant, but she did not know Martin’s last name. She also told police that White had a cell phone and while she didn’t know the number, she knew that it had run out of minutes the night before.
In the early morning hours of February 24th, homicide detectives interviewed White. He told police he was not involved and was at home asleep at the time of the robbery. White then asked for an attorney and the interview ended. Later that day, White went to school, bringing his cell phone with him. The motion judge described the school’s electronic devices policy as follows:
Every morning when the students come to school they are searched and all electronic equipment is taken by school authorities and held for the students in individual bins or slots in a locked cabinet. The equipment is then returned to the student when the school day ends at 1:35 p.m. If at the end of the day the student does not pick up his or her device or devices, they are returned for storage to the cabinet and given back to the student the next day or whenever he (or perhaps a responsible representative such as a parent) requests his property.
White left school early after telling his guidance counselor he had been questioned by police that morning. Teachers reported that he seemed “off” and was crying in class. White left without his cell phone, and “neither he nor anyone on his behalf requested that the school authorities return his cell phone to him.”
Later that afternoon, around 1:45 p.m., a detective was sent to White’s school to inquire about another student connected to White. Vice Principal Clark did not know Dominique, but knew White. According to the detective, Vice Principal Clark volunteered that she had White’s cell phone. The detective called a homicide detective who instructed him to take the cell phone and bring it to him. At police headquarters, police put the cell phone into a Faraday bag and logged it into evidence. It remained there for ten weeks until after a search warrant was sought and issued on May 3, 2010. The phone was searched, and a photo of White holding money believed to be proceeds from one of the robberies was located.
On May 19, 2010, a Suffolk County (MA) grand jury issued an indictment against Onyx White for murder. On May 1, 2014, White filed a motion to suppress a cell phone. On May 23, 2014, Superior Court Judge Patrick Brady allowed White’s motion to suppress after a non-evidentiary hearing, finding that police did not have probable cause, or even reasonable suspicion, to believe that White’s cell phone contained evidence of the robbery/homicide at the time of the seizure. Further, Judge Brady ruled that the delay of 10 weeks in obtaining a search warrant was “troubling,” and that “the police cannot seize a cell phone and then hold it in the hope that the investigation might later turn up sufficient probable cause to search it.”
The Commonwealth immediately filed an appeal. On May 28, 2014, Judge Brady held an evidentiary hearing after allowing a motion from the Commonwealth to reopen the evidence. Detective Monroe, who applied for the search warrant, testified that cell phones generally contain information useful to criminal investigations, including a list of contacts. He conceded that the police had no information that any cell phone was used in the crime. The Judge found that the only information in Detective Monroe’s affidavit in support of the search warrant that pertained to the cell phone was a reference to a witness who told the police that after one of the robberies, White took a photograph of himself with the proceeds of the robbery with his cell phone. This information was obtained on April 21, 2010, nearly two months after the cell phone was seized by police.
The following day, Judge Brady denied the Commonwealth’s motion to reconsider and affirmed the earlier suppression order, holding that although a list of a suspect’s contacts might be useful in most criminal investigations, it does not constitute probable cause to search a suspect’s cell phone. The Judge determined that the three friends may have communicated by cell phone about the robberies because many people do communicate by cell phone, but that alone is not enough to seize or search a cell phone. Additionally, the Judge rejected arguments made by the Commonwealth that White abandoned his cell phone or that the “plain view” doctrine justified the seizure of White’s phone. The Commonwealth has not offered these arguments on appeal. No finding was made regarding exigent circumstances.
On June 6, 2014, the Commonwealth filed a timely application for interlocutory review, which was denied by a Single Justice of the SJC on July 9, 2014. On June 16, 2014, the Commonwealth filed a motion to reconsider. On June 30, 2015, the Single Justice allowed the motion to reconsider and ordered that the case be transmitted to the full SJC.
EPIC seeks to preserve Fourth Amendment privacy protections in the digital age. Commonwealth v. White is relevant to EPIC’s mission because of its potential impact on student privacy, cell phone privacy, and law enforcement overreach. As an expert on constitutional privacy rights, including student privacy, EPIC is uniquely qualified to support the argument that students do not lose a reasonable expectation of privacy at the schoolhouse gate.
This case builds on EPIC’s prior work. EPIC frequently files amicus briefs in state and federal courts on important Fourth Amendment issues related to new technologies. Most recently, EPIC filed an amicus brief in Riley v. California advocating for greater Fourth Amendment protections for digital data. A unanimous Supreme Court agreed, holding that the traditional rule governing the seizure of physical items incident to a lawful arrest does not authorize a search of the digital contents of a seized cell phone. The Court cited EPIC’s brief twice in its opinion.
EPIC also works to protect student privacy. EPIC has proposed a Student Privacy Bill of Rights to safeguard student data and security, obtained documents regarding the misuse of education records through the Freedom of Information Act, and sued the Department of Education regarding changes in an agency regulation that diminished the safeguards set out in the Family Educational Rights and Privacy Act, a federal student privacy law.