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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,
                                                                   4


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.
                                                                      5


    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"
                                                                      6


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
                                                                    7


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.
                                                                   8


    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.
                                                                    9


    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,
                                                                  10


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").
                                                                  12


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,
                                                                    14


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
                                                                   15


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
                                                                   16


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
                                                                   17


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).
                                                                  18


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).
                                                                   20


    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.
