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18-P-1383                                             Appeals Court

                COMMONWEALTH    vs.   ALEXA H. FENCHER.


                             No. 18-P-1383.

            Barnstable.       May 3, 2019. - July 17, 2019.

             Present:     Wolohojian, Kinder, & Hand, JJ.


Cellular Telephone. Constitutional Law, Search and seizure,
     Probable cause. Search and Seizure, Probable cause,
     Consent. Probable Cause. Consent. Practice, Criminal,
     Motion to suppress, Attorney's fees.



     Indictments found and returned in the Superior Court
Department on January 27, 2017.

     A pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Elspeth B. Cypher, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
     Robert W. Nolan for the defendant.


    KINDER, J.    The indictments in this case allege that the

defendant, Alexa Fencher, and two coconspirators broke into the
                                                                    2


home of her uncle, Alfred Boutiette, and beat him about the head

and face with a crowbar.1    Following an evidentiary hearing, a

Superior Court judge allowed the defendant's motion to suppress

the fruits of a search of her cellular telephone (cell phone).

The judge reasoned that the police lacked probable cause to

seize the cell phone, and that the illegal seizure tainted the

defendant's subsequent consent to search her cell phone.      In

this interlocutory appeal, the Commonwealth claims error in that

ruling, arguing that the seizure of the cell phone was supported

by probable cause and that the defendant's consent to search her

cell phone was free and voluntary.    We agree and reverse.

     Background.   The following facts are drawn from the judge's

findings and from undisputed facts in the record that were

implicitly credited by him.    See Commonwealth v. Jones-Pannell,

472 Mass. 429, 436 (2015).    On September 23, 2016, at

approximately 4:30 A.M., Barnstable Police officers responded to

an emergency call regarding a violent home invasion at 37

Wedgewood Drive in Centerville.    Upon arrival, police observed

that the victim, Alfred Boutiette, had facial and head injuries


     1 The defendant is charged with home invasion, G. L. c. 265,
§ 18C; armed burglary and assault, G. L. c. 266, § 14; assault
with intent to murder, G. L. c. 265, § 15; assault with intent
to maim, G. L. c. 265, § 15; mayhem, G. L. c. 265, § 14; two
counts of aggravated assault and battery by means of a dangerous
weapon, G. L. c. 265, § 15A (c); six counts of conspiracy, G. L.
c. 274, § 7; and violation of an abuse prevention order, G. L.
c. 209A, § 7.
                                                                      3


and was covered in blood.   The victim told police that he had

been attacked by multiple individuals while he was sleeping and

that he thought the defendant, his niece, against whom he had an

active restraining order, was involved in the assault.    The

victim explained that although he did not see his assailants, he

suspected his niece because earlier that evening "he saw [the

defendant's] white Hyundai Sonata parked in his driveway."2     The

victim further explained that a locked door to his house had

been opened and that the defendant had a key to the house.

There was no sign of forced entry and nothing appeared to have

been stolen.

     Prior to the alleged home invasion, at approximately 3:06

A.M., an officer on patrol observed the same white Hyundai

Sonata turn from Route 28 onto Wedgewood Road.   The officer

observed the car make a U-turn at the entrance to Wedgewood

Drive, where the victim lived, and return to Route 28.

     Later that morning, after learning from her grandmother

that the police were looking for her in connection with

"something that happened to [her] uncle at the house," the

defendant agreed to go the Barnstable Police Department to be

interviewed.3   At 9:52 A.M., approximately five hours after the


     2 The white Hyundai Sonata was owned by one of the
defendant's grandparents, but the defendant "was known to have
possession of the vehicle."
                                                                      4


assault was reported, the defendant waived her Miranda rights

and agreed to speak with detectives.   Over the course of

approximately two hours, the defendant responded to questions

regarding her activity the night before, her whereabouts, and

her relationship with her uncle.4   As relevant here, the

defendant told the detectives that she had been drinking and

watching football with several friends at two bars.    Thereafter,

she went to a friend's house in Hyannis.    The group arrived

there at 1:00 A.M., and left at 3:00 A.M. to "go smoke near the

bridge," where they stayed until sunrise.   Someone else drove

the white Hyundai, because the defendant was intoxicated.       The

defendant acknowledged that her car had been parked at 37

Wedgewood Drive the night before and that "[she] had somebody

get it for [her] because [of] the [r]estraining [o]rder."       At

one point, when Detective David Foley pressed her on the details

of her explanation, the defendant, referring to her cell phone,




     3 We allowed the Commonwealth's motion for transmission to
us of the hearing exhibit containing an audiovisual recording of
the defendant's police interview, and we have reviewed the
recording in addition to the transcript of the interview.

     4 The judge hearing the cell phone suppression motion
simultaneously heard and ruled on the defendant's separately
filed motion to suppress certain statements she made to the
police during the interview. The judge allowed the motion,
suppressing statements the defendant made to the police after
she requested an attorney at 10:57 A.M. That order is not a
subject of this appeal and, for reasons discussed infra, does
not affect our decision.
                                                                   5


responded, "I actually have videos of me being at the bar and

stuff."   When Detective Foley stated that he wanted to see the

videos later, the defendant replied, "Definitely."    The

defendant admitted that she had a key to the house at 37

Wedgewood on her person, but denied any involvement in the

assault on her uncle.

    At 10:15 A.M., the officers seized the defendant's cell

phone and her keys.     Detective Foley testified that he seized

the defendant's cell phone because "she said that she had some

text messages that she had woken up to, but [sic] the fact that

she had talked to her grandmother about the assault," and "[t]he

fact that she said she had videos of her being at the bar the

previous night."

    Meanwhile, as the detectives interviewed the defendant,

another officer observed what appeared to be blood stains near a

door handle on the white Hyundai Sonata in which the defendant

had arrived at the Barnstable Police Department.    The officer

communicated that information to the detectives conducting the

interview before the defendant's keys and cell phone were

seized.

    After he seized the defendant's cell phone, Detective Foley

asked the defendant "if she would be willing to consent to a

search of her cell phone" and said that, if she did not consent,

he would "write a search warrant to download the contents of the
                                                                     6


phone."   The defendant "acted like she didn't care if [the

police] had looked at her phone" and "stated she was willing to

sign a consent form to search her phone."    At 10:35 A.M., the

defendant signed a Barnstable Police Department form consenting

to the search of her cell phone and gave Detective Foley "the

password to unlock the phone and the passwords to her user

accounts that are in the consent forms."     The account listed on

the consent form is "Snap chat."5   The defendant refused to give

consent for police to search the white Hyundai Sonata or to take

her fingerprints and fingernail scrapings.

     At 10:57 A.M., the defendant asked Detective Foley, "Can I

talk to my grandmother and a lawyer please?"    When Detective

Foley responded, "are you asking for a lawyer," the defendant

responded, "I just want to talk to my grandmother, so she can

tell you what type of kid I am."    Thereafter, the interview

continued until 12:04 P.M.   The judge found that the defendant's

request for counsel at 10:57 A.M. was unequivocal and allowed

the defendant's separate motion to suppress statements as to

anything the defendant said after 10:57 A.M.    See note 4, supra.

The Commonwealth has not appealed that ruling and we do not

consider those statements in our decision.


     5 The defendant stated that the video was on her Snapchat
account. "Snapchat is a social media website on which a member
may share information with a network of 'friends.'" F.K. v.
S.C., 481 Mass. 325, 327 (2019).
                                                                    7


    During the course of the interview, the defendant, a

college student, was sober, communicative, and responsive to the

questions.   The tone of the interview was conversational.    The

judge concluded that, beyond a reasonable doubt, the defendant's

statements prior to 10:57 A.M. were voluntary.

    Discussion.    A search may be conducted without a warrant

provided the search is undertaken with the free and voluntary

consent of a person with the authority to give that consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).   The

Commonwealth bears the burden of proving consent, Commonwealth

v. Aguiar, 370 Mass. 490, 496 (1976), but neither probable cause

nor reasonable suspicion are required to ask for consent to

search, J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters

Under Massachusetts Law § 11-3[b] (2018).   However,

    "[w]hen consent to search is obtained through exploitation
    of a prior illegality, particularly very close in time
    following the prior illegality, the consent has not been
    regarded as freely given. Evidence gathered in a search
    allowed by such a compromised consent has been thought to
    be tainted and inadmissible."

Commonwealth v. Midi, 46 Mass. App. Ct. 591, 595 (1999).     In

such circumstances, "[i]t is the Commonwealth's burden to

establish that the evidence it has obtained and intends to use

is sufficiently attenuated from the underlying illegality so as

to be purged from its taint."   Commonwealth v. Fredericq, 482

Mass. 70, 78 (2019), quoting Commonwealth v. Damiano, 444 Mass.
                                                                      8


444, 454 (2005).     Here, the judge concluded that the defendant's

consent to search her cell phone at 10:35 A.M. was tainted by

the illegal seizure of the cell phone from the defendant at

10:15 A.M.   Specifically, the judge reasoned that the police

lacked probable cause to seize the cell phone at the time it was

taken from the defendant and that the defendant's subsequent

consent was not sufficiently attenuated from the illegal

seizure.   We review the judge's decision under familiar

standards.     We accept his factual findings unless they are

clearly erroneous, see Commonwealth v. Welch, 420 Mass. 646, 651

(1995), and "make an independent determination of the

correctness of the judge's application of constitutional

principles to the facts" as found, Commonwealth v. Mercado, 422

Mass. 367, 369 (1996).     Because we conclude that the seizure of

the defendant's cell phone was supported by probable cause and

that the defendant's subsequent consent to search was free and

voluntary, we need not reach the question of attenuation.

    1.     Probable cause to seize the cell phone.   "Although art.

14 [of the Massachusetts Declaration of Rights] and the Fourth

Amendment [to the United States Constitution] guard against

both, a search and a seizure are distinct legal concepts."

Commonwealth v. Almonor, 482 Mass. 35, 56 (2019) (Lenk, J.,

concurring).    "[T]he government conducts a search when it

'intrudes on a person's reasonable expectation of privacy,'" and
                                                                     9


it "conducts a seizure when it interferes with an individual's

property rights."   Id., quoting Commonwealth v. Augustine, 467

Mass. 230, 241 (2014).   Before the police may seize an item as

evidence, "they must have 'a substantial basis for concluding

that' the item . . . contains 'evidence connected to the crime'

under investigation."    Commonwealth v. White, 475 Mass. 583, 588

(2016), quoting Commonwealth v. Escalera, 462 Mass. 636, 642

(2012).   There must be a timely nexus between evidence of

criminal activity and the object of the seizure.     See

Commonwealth v. Holley, 478 Mass. 508, 521 (2017).    "The concept

of 'nexus' means nothing more than a factually based connection

between criminal activity and the particular place to be

searched and things to be seized."   J.A. Grasso, Jr., & C.M.

McEvoy, Suppression Matters Under Massachusetts Law § 8-2[e][5],

at 8-17 (2018).

    To determine whether the police had a substantial basis to

believe the defendant's cell phone contained evidence connected

to the crime, we examine the facts of which the police were

aware at 10:15 A.M., the moment they seized it.    At that point,

the police had the following information:   the victim had been

badly beaten by multiple assailants during a home invasion

approximately six hours earlier; the white Hyundai Sonata

associated with the defendant was seen in the area of the

victim's residence less than two hours before the assault; the
                                                                  10


defendant had a key to the victim's residence and there was no

sign that the home invasion involved forced entry; the victim

told police he suspected the defendant was involved because he

had seen the white Hyundai Sonata parked at his residence

earlier in the evening and he had an active restraining order

against her; there were suspected blood stains on the exterior

of the Hyundai Sonata when the defendant arrived at the police

station in that vehicle the next morning; the defendant's

explanation of her whereabouts at various times on the night of

the assault was not consistent with other information the police

had developed; and the defendant told the detectives that she

"[had] videos of me being at the bar and stuff" on her cell

phone.

    Because such video evidence could establish where, when,

and with whom the defendant was in the hours before the home

invasion, the police had "a substantial basis for concluding"

that video evidence stored on the defendant's cell phone

contained "'evidence connected to the crime' under

investigation" (citation omitted).   White, 475 Mass. at 588.

See Commonwealth v. Jordan, 91 Mass. App. Ct. 743, 751 (2017)

(evidence of suspect's location a component of probable cause

analysis if it would be helpful in proving crime).   Accordingly,

we conclude there was probable cause to believe that video

recordings connected to the investigation would be located in
                                                                     11


the defendant's cell phone, and therefore there was probable

cause to seize it.

    The motion judge relied on White, supra, to support his

conclusion that the police lacked probable cause to seize the

defendant's cell phone.     There, the Supreme Judicial Court

concluded that

    "'[i]nformation 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 . . . . 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" (emphasis added).

White, 475 Mass. at 590-591, quoting Commonwealth v. Pina, 453

Mass. 438, 441 (2009).      In White, the fruits of the cell phone

search were suppressed because there was no evidence that any

particular piece of evidence would be found on the defendant's

cell phone.   Id. at 592.    The police relied exclusively on their

experience and opinion that it was likely that the suspects

communicated using the defendant's cell phone.      Id. at 591.    The

situation here was different.     The defendant volunteered that

she had taken videos the night before -- videos that could

reveal where she was and who she was with on the night of the

crime.   This admission provided the kind of particularized
                                                                     12


evidence not present in White.6     For these reasons, the seizure

of the cell phone was lawful.

     2.    Consent to search.   After the cell phone was seized,

the police used a standard Barnstable Police Department form to

document the defendant's consent to permit them "to take custody

of, copy, and analyze the items detailed below for evidence."7

The form further identified the defendant's "iPhone 6" under the

heading "Digital Device Information" and her "Snap chat" account

under the heading "User Accounts To Be Searched."     Following the

signed execution of the written consent form, the police




     6 We are not persuaded by the Commonwealth's contention that
evidence of text messages to the defendant from her grandmother
on the morning after the assault added to the probable cause
calculus. Based on the evidence produced at the hearing, those
text messages simply informed the defendant that the police
wanted to speak with her about "something that happened to [her]
uncle at the house."

     7   The form states in part,

     "I, Alexa Fencher, hereby authorize Det. Foley of the
     Barnstable Police Department, or any other law enforcement
     officer or digital evidence analyst working with the
     aforementioned officer, to take custody of, copy, and
     analyze the items detailed below for evidence. I
     understand that copies of the contents of the items,
     including all files and data, may be created and retained
     for analysis. I also understand that the analysis of the
     copies of the media may continue even after the items
     designated for analysis are returned. I provide my consent
     to this analysis freely, willingly, and voluntarily, and
     with the knowledge that I have the right to refuse consent.
     I provide my consent without fear, threat, coercion, or
     promise of any kind."
                                                                  13


extracted "text messages, call logs, videos, pictures, device

location information, [and] contact information" from the

defendant's cell phone.   The record is silent regarding what

sources within the cell phone were searched to locate and

extract the seized information, but the Commonwealth conceded at

argument that information was extracted from sources other than

the defendant's Snapchat account.   The Commonwealth argued that

the consent form indicated the defendant's consent to search all

databases within her cell phone.    Although the defendant's brief

does not claim that her consent was limited to the Snapchat

account, the consent form itself is ambiguous on that point.

Accordingly, we consider the scope of the defendant's consent.

    A search may be conducted without a warrant provided it is

undertaken with free and voluntary consent, Schneckloth v.

Bustamonte, 412 U.S. at 222, but "[a] search that is based on

consent may not exceed the scope of that consent," Commonwealth

v. Ortiz, 478 Mass. 820, 824 (2018).    The standard for measuring

the scope of consent "is that of 'objective' reasonableness -—

what would the typical reasonable person have understood by the

exchange between the officer and the suspect?"    Id., quoting

Florida v. Jimeno, 500 U.S. 248, 251 (1991).    "The focus is

solely on what a typical reasonable person would understand the

scope of the consent to be," based on the "totality of the
                                                                   14


circumstances," including the words spoken and the context in

which they are spoken.   Ortiz, supra at 824, 826.

    Viewing the form in the context of the entire exchange

between Detective Foley and the defendant, we are confident that

a reasonable person would conclude that the defendant's consent

to search her cell phone was without limitation.     The judge

found that Detective Foley communicated the police's intent to

search the entire cell phone when he stated as the objective,

whether by warrant or by obtaining consent, "we're taking your

car and your cell phone . . . we're going to, at some point,

examine your cell phone for any potential evidence in here . . .

[a]nd that will allow us to go in there and read all your text

messages and everything from last night all through this

morning."   The judge further found that, thereafter, the

defendant consented to the search of her cell phone and provided

passwords to both the phone and her Snapchat account.      He found

no limitation on the scope of the defendant's consent to search

her cell phone.

    Our conclusion is supported by the fact that the defendant

clearly understood that she had the right to refuse consent to

search, even though proof of such knowledge is not required.

See Ortiz, 478 Mass. at 826.   During the interview with

Detective Foley, the defendant declined consent to a search of

the white Hyundai Sonata and she also declined consent to take
                                                                    15


her fingerprints and swab her fingernails for possible genetic

evidence.    At no time, however, did the defendant express any

reluctance to allow the search of her cell phone or express any

limitation on what within her cell phone could be searched.

Finally, our independent review of the video recording of the

defendant's interview reveals that the specific reference to the

Snapchat account was added to the form by Detective Foley after

the defendant had signed the form authorizing a general search

of her cell phone.     Simply put, when we apply a common sense

interpretation to the entire exchange between the defendant and

Detective Foley, see id. at 824, it is objectively reasonable to

conclude that the defendant's consent to search her cell phone

was free, voluntary, and unlimited.

    3.      Attorney's fees and costs.   Prior to the scheduling of

argument in this appeal, the defendant filed a request for

reasonable appellate attorney's fees and costs with supporting

documentation pursuant to Mass. R. Crim. P. 15 (d), as amended,

476 Mass. 1501 (2017).     The request was premature.   See

Commonwealth v. Ennis, 441 Mass. 718, 720 (2004) ("a defendant

shall file a rule 15 [d] request within thirty days of . . . the

issuance of the rescript from the appellate court that decides

the appeal . . . " [emphasis added]).     We allowed the

Commonwealth to defer filing its opposition as to the amount

requested, and we now further order as follows:     The defendant
                                                                   16


shall have thirty days from the date the rescript issues to file

any revised rule 15 (d) request and supporting materials.    The

Commonwealth shall then have thirty days to file its response.

See id. at 721 n.3.

    Conclusion.   Because the police had probable cause to seize

the defendant's cell phone, and because the defendant

voluntarily consented to the search without limitation, we

reverse the judge's order suppressing evidence obtained from the

search of the defendant's cell phone.

                                   So ordered.
