MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, John Lewis, appeals from his conviction after a Superior Court jury trial of carrying a firearm, G. L. c. 269, § 10 (a).
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We conclude that the motion judge properly denied the defendants motion to suppress, as the defendant did not demonstrate a reasonable expectation of privacy in the information that he posted on Snapchat. Further concluding that the trial judge acted within his discretion in denying the defendants motions to stay or continue the trial, we affirm the conviction.
1. Motion to suppress. a. Standard of review. In reviewing the denial of a motion to suppress, we “accept[ ] the judges subsidiary findings of fact absent clear error, give[ ] substantial deference to the judges ultimate findings and conclusions of law, but independently review[ ] the correctness of the judges application of constitutional principles to the facts found.” Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996).
b. Defendants Snapchat Story. To be entitled to the protections under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the defendant must show that the government conducted “a search in the constitutional sense.” Commonwealth v. Carrasquillo, 489 Mass. 107, 117 (2022). Accord Commonwealth v. DeJesus, 489 Mass. 292, 295 (2022). “[T]he government conducts a search when it ‘intrudes on a persons reasonable expectation of privacy.’ ” Commonwealth v. Fencher, 95 Mass. App. Ct. 618, 622 (2019), quoting Commonwealth v. Augustine, 467 Mass. 230, 241 (2014). “The measure of the defendants expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable.” Commonwealth v. Welch, 487 Mass. 425, 432 (2021), quoting Commonwealth v. Porter P., 456 Mass. 254, 259 (2010).
i. Subjective expectation of privacy. Whether one has a subjective expectation of privacy depends on “whether the individual, by his [or her] conduct, has exhibited an actual expectation of privacy.” Carrasquillo, 489 Mass. at 117, quoting Bond v. United States, 529 U.S. 334, 338 (2000). To have such an expectation, “one must perceive or otherwise genuinely believe that the object of the alleged search is private.” Carrasquillo, supra. “Thus, the inquiry turns in part on what an individual knows, that is, whether the individual was subjectively aware of the presence or absence of protections in place to preserve his or her privacy.” Id. at 118.
Here, the defendant argues that the police conducted a search by adding the defendant as a “friend” on the social media platform Snapchat and, after the defendant accepted the friend request, viewing a video that led to the discovery of a firearm. At the suppression hearing, there was no evidence, aside from the defendants Snapchat Story being visible only to “friends,” that the defendant “purposefully engaged in conduct aimed at ensuring privacy” and was “[ ]aware of these protections.” Carrasquillo, 489 Mass. at 119-120. In an affidavit, the defendant stated that he relied on Snapchats prohibition against “[p]retending to be someone youre not ․ or attempting to deceive people about who you are” in accepting the officers “friend” request. The defendants affidavit, however, was not offered into evidence at the hearing, and the motion judge warned the defendant that he would not consider it as such. See Commonwealth v. Mubdi, 456 Mass. 385, 389 n.4 (2010) (“The affidavit filed with the motion may not be offered in evidence by the defendant at the suppression hearing and is not a substitute for the defendants testimony at the hearing”). In addition, the defendant did not testify at the hearing. Absent evidence of the defendants awareness of the privacy settings on his Snapchat account, we will not infer a subjective expectation of privacy. Carrasquillo, supra.
ii. Objective expectation of privacy. The defendant must also show that his expectation of privacy was objectively reasonable given the totality of the circumstances “surrounding the search ․ and the nature of the search.” Carrasquillo, 489 Mass. at 118, 120, quoting Commonwealth v. Delgado-Rivera, 487 Mass. 551, (2021), cert. denied, 142 S. Ct. 908 (2022). In determining whether an individual has an objectively reasonable expectation of privacy, we consider “whether the individual took ordinary precautions to protect his or her privacy,” including “any protective measures an individual instituted to ensure that the object of the search remained within the individuals control, such that he or she could limit its exposure to others.” Carrasquillo, supra at 120.
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In addition, we consider “the character of the object searched,” “analyz[ing] whether a defendant ‘controlled access to [the object] as well as whether [it] was freely accessible to others.’ ” Id. at 120-121, quoting Commonwealth v. Krisco Corp., 421 Mass. 37, 42 (1995). Finally, we look to “the nature of the government intrusion, ․ consider[ing] the manner in which the government obtained the information sought to be suppressed,” Carrasquillo, supra at 121, “whether the person conducting the surveillance was entitled to be where he [or she] was,” id., quoting Commonwealth v. Panetti, 406 Mass. 230, 232 (1989), and “whether the government obtained ‘express or implied authorization’ to be there.” Carrasquillo, supra, quoting Commonwealth v. Almonor, 482 Mass. 35, 43 (2019).
Here, the defendant posted the video on his Snapchat Story, an “ephemeral” feature that “preserve[s] a certain level of privacy by design,” as the content is automatically “deleted” after twenty-four hours. Carrasquillo, 489 Mass. at 121. In addition, the defendants Snapchat Story could be viewed only by those whom he became “friends” with on the app. Finally, the defendant used a pseudonym, rather than his name, for his username.
Although the use of the Snapchat Story feature favors an objectively reasonable privacy interest, “the defendants privacy interest in this case was substantially diminished because, despite his asserted policy of restricting such access, he did not adequately ‘control[ ] access’ to his Snapchat account.” Carrasquillo, 489 Mass. at 124, quoting Krisco Corp., 421 Mass. at 42. The defendant granted an unknown user access to his content despite the users nondescript, unfamiliar name and profile picture of a cartoon person (or “Bitmoji”) whom the defendant presumably did not recognize.
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See Carrasquillo, supra. The judges findings show that the officer gained access to the defendants account not “by masquerading as a close friend or family member,” id. at 125 n.20, but by getting “the necessary permissions to do so” from the defendant himself. Id. at 126. Thus, even though the defendants “choice to share social media content with others ․ [did] not per se defeat” his privacy interests, id. at 124, the defendant nonetheless has not shown an objectively reasonable expectation of privacy, as the officer viewed the defendants Snapchat Story with the defendants authorization. See id. at 126. Accordingly, the motion judge properly denied the defendants motion to suppress.
2. Motions for a continuance. “Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion.” Commonwealth v. Fernandez, 480 Mass. 334, 340 (2018), quoting Commonwealth v. Pena, 462 Mass. 183, 189 (2012). “[T]here is no ‘mechanical test’ for determining whether the denial of a continuance constituted an abuse of discretion.” Fernandez, supra at 340, quoting Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976). Instead, we “examine the unique circumstances of each case, particularly the reasons underlying the request,” Pena, supra at 190, mindful that the judge “may not exercise his or her discretion ‘in such a way that ․ deprives a defendant of the right to effective assistance of counsel and to due process of law.’ ” Fernandez, supra, quoting Pena, supra.
a. Continuance to join pending case. Five days before trial in this case, a different judge allowed a Mass. R. Crim. P. 17, 378 Mass. 885 (1979), motion in another pending Superior Court case, Commonwealth vs. Dilworth, Mass. Sup. Ct., No. 1884-CR-00469 (Suffolk County January 18, 2019), where the defendant was arguing that the Boston Police Department uses Snapchat in a racially discriminatory manner.
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Defense counsel in the instant case learned, on the day of trial, about the ruling in Dilworth and moved for (1) a stay or continuance to join the case, (2) a continuance to file a similar rule 17 motion, or (3) a stay pending the outcome of Dilworth. The judge denied the motion and proceeded to trial. The judge acted within his discretion.
Despite the lack of written findings on the factors listed above, “we can glean from the record the apparent rationale for the trial judges decision.” Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 563 (2002). Accord Commonwealth v. Ray, 467 Mass. 115, 129 (2014) (“we do not require that a judge make explicit findings on the record demonstrating that she has balanced the concerns implicated by a potential delay”). Significantly, allowing a continuance would have produced a substantial delay. The defendants request “amount[ed] to the functional equivalent of a continuance at least several months long.” Fernandez, 480 Mass. at 341. Indeed, a stay pending the outcome of Dilworth would have stopped the case indefinitely.
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Further, the defendant had ample time to pursue his own discrimination claim and could have done so at the suppression or motion to dismiss hearings. See Carsetti, 53 Mass. App. Ct. at 563. Dilworth was arrested just seventeen days before the defendant was, and the two men were, according to the defendant, “targeted by [BPDs] Snapchat investigation during the same time period.” We discern no abuse of discretion where the defendant waited until the eve of trial to raise an issue that could have been raised earlier. See Commonwealth v. Haltiwanger, 99 Mass. App. Ct. 543, 555 n.10 (2021) (denial of motion for continuance is not abuse of discretion where “basis for the requested continuance was a problem of defense counsels own making”).
b. Continuance to pursue a plea agreement. The defendant also moved, the day before trial, for a one- to two-week continuance to pursue a plea agreement. The judge noted that, because of the trial schedule, this would effectively be at least a four-month continuance. At the judges request, the trial prosecutor contacted the First Assistant District Attorney, who confirmed that the plea offer should remain the same. The judge nonetheless gave the defendant an additional day, but no reduction in the plea offer was achieved.
The record shows that “the defendant failed to provide a persuasive,” Commonwealth v. Cruz, 456 Mass. 741, 748 (2010), “case-specific argument for granting a continuance” at the last minute. Fernandez, 480 Mass. at 343, quoting Ray, 467 Mass. at 129 (denial of continuance not abuse of discretion where motion was unsupported by evidence). The defendant merely claimed that, “with additional time, it is likely the parties could reach an agreement.” “[G]eneral assertions that the defense could ‘benefit’ from more time,” however, are not adequate to compel a continuance. Cruz, supra. Moreover, in light of the trial prosecutors communications with his supervisor at the judges request, “the judge was appropriately unpersuaded that a delay would ‘measurably contribute to the resolution of the case.’ ” Cruz, supra at 748, quoting Commonwealth v. Miles, 420 Mass. 67, 85 (1995). The judge acted within his discretion.
Judgment affirmed.
FOOTNOTES
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. At a subsequent jury-waived trial, the trial judge adjudicated the defendant a subsequent offender, G. L. c. 269, § 10 (d).
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. In the context of social media, protective measures that may “g[i]ve rise to some level of privacy” include maintaining a private account, using a pseudonym for ones username, adding “friends” deliberately, and posting content in a way that makes it “ephemeral,” “temporar[y],” Carrasquillo, 489 Mass. at 121-122 & n.15, or “not as easily ‘disbursable by the intended recipient.’ ” Id. at 122, quoting Delgado-Rivera, 487 Mass. at 561. The more fleeting the means of sharing information, the greater control one maintains over the object of a search. See Carrasquillo, supra at 122 n.18.
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. The officer did not use a stock photo for his profile picture, as in Carrasquillo. 489 Mass. at 110, 119, 124. Instead, the officer used a Bitmoji, or a cartoon depiction of a person, that the officer customized. The officer testified at the hearing that he did not design the Bitmoji to look like someone whom the defendant knew or was friends with. At trial, the officer testified that he designed the Bitmoji not to look like himself.
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. In Dilworth, supra at 1, the motion judge found that the defendant had “made an initial, limited statistical showing suggesting that the Boston Police Department ․ uses Snapchat as an investigative tool almost exclusively against [B]lack males.”
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. As the defendant concedes, Dilworth is still ongoing.