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SJC-13823
SJC-13835
COMMONWEALTH vs. JOSE SOLIS.
COMMONWEALTH vs. MICHAEL DIAZ.
Suffolk. January 5, 2026. – August 12, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Cellular Telephone. Constitutional Law, Search and seizure.
Search and Seizure, Warrant. Practice, Criminal, Warrant,
Motion to suppress. Time.
Indictments found and returned in the Superior Court Department on June 26, 2023.
A pretrial motion to suppress evidence was heard by Michael J. Pineault, J.
An application for leave to prosecute an interlocutory appeal was allowed by Gaziano, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Indictments found and returned in the Superior Court Department on December 19, 2019.
A pretrial motion to suppress evidence was heard by Sarah Weyland Ellis, J.
2
An application for leave to prosecute an interlocutory appeal was allowed by Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. After review by the Appeals Court, 105 Mass. App. Ct. 809 (2025), the Supreme Judicial Court granted leave to obtain further appellate review.
Brooke Hartley & Cailin M. Campbell, Assistant District Attorneys, for the Commonwealth.
Matthew Spurlock, Committee for Public Counsel Servies, for Jose Solis.
George F. Ohlson, Jr., for Michael Diaz.
The following submitted briefs for amici curiae:
David E. Sullivan, District Attorney, & Nicholas Atallah, Assistant District Attorney, for district attorney for the northwestern district.
Christine A. Monta & Andrew Eslich, of the District of Columbia, Jessie J. Rossman, Jennifer M. Herrmann, & Nathan Freed Wessler for American Civil Liberties Union of
Massachusetts, Inc., & others.
Eric R. Atstupenas for Massachusetts Chiefs of Police Association, Inc.
Michelle Menken & Hannah Taylor for Victor Arrington.
GEORGES, J. These appeals1 require us to decide whether
delays of approximately four months between the lawful seizures
of cell phones incident to arrest and subsequent applications
for warrants to search their contents rendered the continued
seizures of those devices unreasonable under art. 14 of the
Massachusetts Declaration of Rights.
1 Although the two appeals are not consolidated and were argued separately at oral argument, they are addressed in a single opinion because they raise essentially identical questions of law.
3
The defendants, Jose Solis and Michael Diaz, both filed
motions to suppress the evidence obtained from their cell
phones, arguing that the police unreasonably delayed seeking
search warrants. Superior Court judges allowed the motions,
relying on Commonwealth v. White, 475 Mass. 583, 595 (2016),
where we concluded that a sixty-eight day delay in obtaining a
warrant to search a cell phone was unreasonable under the
circumstances presented there.
The delays here, 109 days in Solis's case2 and 123 days in
Diaz's case, exceeded the delay in White. But White rejected
any bright-line temporal rule. White, 475 Mass. at 593.
Instead, it requires courts to balance the defendant's
possessory interest in the seized device against the
Commonwealth's justification for its continued retention under
the totality of the circumstances. Id. at 593-594.
Applying the totality of the circumstances analysis set out
in White, we conclude that the delays in these cases did not
render the continued seizures of the cell phones unreasonable.
See White, 475 Mass. at 593-594, citing United States v. Place,
462 U.S. 696, 703 (1983). See also Commonwealth v. Cruzado, 480
2 Although the motion judge and the parties calculate the delay as 110 days by counting the date of the seizure itself, the relevant inquiry concerns the days following the seizure. See White, 475 Mass. at 585-586. The one-day discrepancy does not affect our conclusion.
4
Mass. 275, 283-284 (2018) (applying standard from White to cell
phone seized under exigent circumstances). The orders allowing
the motions to suppress are reversed.3
Background. We summarize the facts as found by the motion
judges, supplemented by undisputed record evidence consistent
with those findings. See Commonwealth v. Robinson, 497 Mass.
156, 157 (2026).
1. Solis. a. Facts. On March 24, 2023, Chelsea police
responded to a 911 call made by Charlie,4 a thirteen year old who
reported that he had been sexually assaulted by a clerk at a
convenience store in Chelsea. After officers arrived outside
the store, Charlie identified Solis as the clerk who had
assaulted him.
Charlie told responding officers that Solis had forced him
to engage in sexual acts on at least three occasions while at
the store, including once in the store's basement. Charlie
further reported that during one of these incidents, Solis
3 We acknowledge the amicus briefs submitted in support of the defendants by the American Civil Liberties Union of Massachusetts, Inc., the Roderick & Solange MacArthur Justice Center, and the American Civil Liberties Union, Inc.; and Victor Arrington. We also acknowledge the amicus briefs submitted in support of the Commonwealth by the district attorney for the northwestern district. We further acknowledge the amicus brief submitted in support of the Commonwealth in its appeal from the allowance of Diaz's motion to suppress by the Massachusetts Chiefs of Police Association, Inc.
4 A pseudonym.
5
pulled out a cell phone, pointed it at Charlie's exposed
genitals, and appeared to take a photograph. Charlie also
stated that Solis had threatened him with a firearm during one
of the earlier sexual assaults. After obtaining permission to
search the store, officers observed a futon and "bluish blanket"
in the basement, consistent with Charlie's description of where
he was assaulted.
Later that same day, Solis was placed under arrest for,
among other offenses, posing or exhibiting a child in a state of
nudity. See G. L. c. 272, § 29A (a). Immediately prior to his
arrest, Solis handed the police his cell phone (a blue Nokia
"smart" cell phone in a black case) upon their request.
Sergeant Detective Anthony D'Alba of the Chelsea police
department, the supervising detective on call, had recommended
that the police seize Solis's cell phone because it was
"evidence that . . . would be shown to the reported victim" for
identification at trial, and because the cell phone might
contain digital evidence.
Approximately three weeks after the seizure of Solis's cell
phone, Charlie reported during a forensic interview5 that Solis
had used a gray or black Samsung cell phone to photograph his
5 A forensic interview is, as explained by D'Alba, a type of interview that is designed to be "nonsuggestive and nontraumatic for the child."
6
exposed genitals. Around that time, D'Alba began preparing a
warrant application to search the cell phone for evidence of
ownership and the alleged picture.
In the intervening time between Solis's arrest and D'Alba's
submission of the warrant application, D'Alba testified in two
evidentiary hearings, assisted in preparing four or five
Superior Court trials and two District Court matters,
participated in offsite trainings for a total of eight days, and
was unable to work for approximately eight or nine days due to a
serious respiratory infection.
On July 11, 2023, 109 days after the seizure of the cell
phone, D'Alba applied for a warrant to search its contents and
submitted an eighteen-page affidavit in support. The warrant
issued that same day. A subsequent search uncovered a
photograph consistent with Charlie's description.
b. Procedural history. On March 27, 2023, a criminal
complaint issued in the Chelsea Division of the District Court
Department (Chelsea District Court), charging Solis with two
counts of indecent assault and battery on a child under the age
of fourteen, G. L. c. 265, § 13B, and one count of assault by
means of a dangerous weapon, G. L. c. 265, § 15B (b). Two days
later, an additional criminal complaint issued charging Solis
with one count of aggravated assault and battery on a child
under the age of fourteen, G. L. c. 265, § 13B 1/2.
7
On June 26, 2023, a grand jury returned indictments
charging Solis with one count of indecent assault and battery on
a child under the age of fourteen, G. L. c. 265, § 13B; one
count of posing or exhibiting a child in a state of nudity,
G. L. c. 272, § 29A (a); one count of open and gross lewdness
and lascivious behavior, G. L. c. 272, § 16; and one count of
rape of a child between the ages of twelve and sixteen,
aggravated by a more than ten-year age difference, G. L. c. 265,
§ 23A (b).6
In February 2024, Solis moved to suppress evidence obtained
from his cell phone. Following an evidentiary hearing, a
Superior Court judge (Solis's motion judge) allowed the motion,
concluding that the 109-day delay rendered the seizure
unreasonable pursuant to White. The Commonwealth sought and
obtained interlocutory review pursuant to Mass. R. Crim.
P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). The appeal
was entered in the Appeals Court and later transferred to this
court on our own motion.
2. Diaz. a. Facts. From the summer of 2018 to March
2019, Diaz served as the foster parent of two minor children,
6 The Commonwealth subsequently nol prossed the District Court charges.
8
twelve year old Amanda7 and eleven year old Betty,8 who resided
with him in his home during that period.
In June 2019, Amanda disclosed to her biological mother
that Diaz had sexually abused her and that she had observed
similar abuse of Betty. Law enforcement thereafter conducted
forensic interviews of both children, which were attended by
D'Alba of the Chelsea police department.
During her forensic interview on July 16, 2019, Amanda
reported that Diaz sexually assaulted her daily while she lived
in his home. She further reported that the abuse continued
after she was removed from the home. Diaz would communicate
with Amanda via cell phone, coordinating meetings with her
before school, during which time he would rape her. Amanda
informed the interviewer that Diaz had photographed her with his
cell phone, but she could not recall whether she was dressed or
undressed at the time.
Two days later, Betty participated in a separate forensic
interview. Betty likewise reported that Diaz sexually abused
her during the same general time frame. Betty further reported
that Diaz had used his cell phone to show her an image of him
7 A pseudonym.
8 A pseudonym.
9
and his wife engaging in oral sex. Betty confirmed that she had
seen Diaz sexually abuse Amanda.
Based on these interviews, on July 18, 2019, D'Alba applied
for and obtained an arrest warrant from the Chelsea District
Court charging Diaz with several offenses, including
dissemination of matter harmful to a minor, in violation of
G. L. c. 272, § 28. Later that day, officers contacted Diaz on
his cell phone and arranged to meet him at a public location,
where they arrested him pursuant to the warrant. At the time of
his arrest, the defendant possessed a cell phone -- an iPhone 6S
in a distinctive black and copper case with a plastic disk
affixed to the back bearing a United States Army emblem.
Officers seized the device incident to the arrest as it was
believed to be "the device that was used to display the harmful
matter to [Betty]" and because it "contain[ed] evidence that may
be related to [Diaz's] offenses."
About two weeks after Diaz's arrest, in August 2019, D'Alba
learned that Diaz's wife may have also sexually assaulted Betty.
Betty then participated in a second forensic interview, during
which she described an incident in which Diaz used his cell
phone's flashlight while photographing her with her shirt
lifted.
Before applying for a warrant to search Diaz's cell phone,
D'Alba prioritized other responsibilities, managing
10
approximately eighty open sexual assault and child abuse
investigations, while placing the search warrant application on
the "back burner." Once he turned his attention to the
application, however, D'Alba devoted four or five eight-hour
shifts to writing the twenty-seven page affidavit in support of
the search warrant application. In preparing the search warrant
affidavit, D'Alba relied on not only the victims' forensic
interviews, but also the August 2018 and February 2019
investigations by the Department of Children and Families (DCF)
into allegations that Diaz had inappropriately touched Amanda.
On November 18, 2019, 123 days after the seizure of the
cell phone, D'Alba applied for and obtained a search warrant
authorizing the search of Diaz's cell phone. Executing the
search warrant, police recovered a photograph of the defendant
and his wife engaged in oral sex, photographs of Amanda in a
partial state of undress, a photograph of an "unidentified child
with a penis penetrating the child's mouth," and two photographs
of Betty naked.
b. Procedural history. In July 2019, a criminal complaint
issued from the Chelsea District Court, charging Diaz with,
among other things, one count of dissemination of matter harmful
to a minor, G. L. c. 272, § 28.
On December 19, 2019, a grand jury returned thirteen
indictments against Diaz charging him with four counts of rape
11
of a child between the ages of twelve and sixteen, aggravated by
a more than ten-year age difference, G. L. c. 265, § 23A (b);
six counts of indecent assault and battery on a child under the
age of fourteen, G. L. c. 265, § 13B; one count of distribution
of material depicting a child engaged in a sexual act, G. L.
c. 272, § 29B (b); one count of posing or exhibiting a child in
a state of nudity, G. L. c. 272, § 29A (a); and one count of
possession of child pornography, G. L. c. 272, § 29C.9
In October 2022, Diaz moved to suppress evidence obtained
from his cell phone. Following an evidentiary hearing, a
Superior Court judge (Diaz's motion judge) allowed the motion,
concluding that D'Alba's 123-day delay in seeking a search
warrant rendered the cell phone's continued seizure unreasonable
pursuant to White. The Commonwealth obtained leave to pursue an
interlocutory appeal pursuant to Mass. R. Crim. P. 15 (a) (2),
and the case was entered in the Appeals Court.
In a divided decision, the Appeals Court affirmed. See
Commonwealth v. Diaz, 105 Mass. App. Ct. 809, 822 (2025). We
granted the Commonwealth's application for further appellate
review.
9 After the warrant to search Diaz's cell phone had been executed, the District Court charges against Diaz were dismissed by request of the Commonwealth.
12
Discussion. In reviewing a ruling on a motion to suppress,
we accept the motion judge's subsidiary findings of fact absent
clear error and defer to the judge's credibility determinations.
Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306 (2010). Our
review of the ultimate findings and conclusions of law is
conducted independently. Commonwealth v. Jones-Pannell, 472
Mass. 429, 431 (2015).
Neither defendant disputes that the police lawfully seized
his cell phone incident to arrest. The contested question is
whether the delay in seeking a search warrant rendered the
initially lawful seizure unreasonable. The Commonwealth
contends that the motion judges misread White and that the
police were not required to "diligently obtain" a warrant when
the device itself was evidence of the crime.
1. Balancing test. Article 14 guarantees that "[e]very
subject has a right to be secure from all unreasonable searches,
and seizures, of his person, his houses, his papers, and all his
possessions." A seizure that is "reasonable at its inception
. . . may become unreasonable as a result of its duration"
(citation omitted). White, 475 Mass. at 593.
To assess whether a delay in seeking a warrant to search a
cell phone has crossed that line, we balance "the nature and
quality of the intrusion on the individual's [possessory]
interests against the importance of the governmental interests
13
alleged to justify the intrusion." White, 475 Mass. at 593-594,
quoting Place, 462 U.S. at 703. The inquiry turns on the
totality of the circumstances. See United States v. Laist, 702
F.3d 608, 613 (11th Cir. 2012).
In White, 475 Mass. at 593-595, we applied this balancing
framework to a sixty-eight day delay between the seizure of a
cell phone and the application for a warrant to search it.
Because the motion judges relied on White in allowing the
defendants' motions, we briefly describe the facts underlying
that decision before turning to the materially different records
before us.
In White, the police were investigating an armed robbery
and shooting. Id. at 584. Three days after the incident, one
of the defendant's high school administrators confiscated his
cell phone under school policy. Id. at 585-586. Later that
same day, the police took the cell phone from the school. Id.
at 586. Although the police suspected that the defendant was
involved in the robbery and had used the cell phone to
coordinate with his suspected coventurers, they did not apply
for a search warrant until sixty-eight days after they seized
the device. Id. at 584, 590.
The reasonableness analysis in White rested on several
related factors. Although the police lacked probable cause to
seize the cell phone, we assumed probable cause for purposes of
14
evaluating the delay. See id. at 584-585 ("We conclude that
. . . the seizure here was not supported by probable cause. We
separately conclude also that, in these circumstances, the
Commonwealth has not, in any event, met its burden of
demonstrating" that delay in seeking search warrant was
reasonable [emphasis added]). The police also failed to treat
the warrant application as a priority. See id. at 594.
Additionally, the Commonwealth offered no warrant-specific
justification for the sixty-eight day delay regarding either the
complexity of the investigation or the demands of the
application. See id. at 594-595. Taken together, those
circumstances left the Commonwealth with a minimal interest in
retaining the device, one that could not justify the substantial
delay, which "affects [not] only the person's possessory
interest[], but also the ability of the judiciary promptly [to]
evaluat[e] and correct[] improper seizures" (quotations and
citation omitted). Id. at 595.
The fact that the delays here exceed the sixty-eight day
delay in White does not determine the outcome. See White, 475
Mass. at 593 ("no bright line past which a delay becomes
unreasonable" [citation omitted]). See also Laist, 702 F.3d at
614 (cautioning that, given fact-intensive nature of inquiry, it
is "unwise to establish a duration beyond which a seizure is
definitively unreasonable or . . . even presumptively
15
unreasonable"). These cases differ from White in material
respects. Unlike in White, supra at 592, the police here had
probable cause to seize the devices, and the devices had
evidentiary significance apart from the data they might contain.
See Cruzado, 480 Mass. at 284 (distinguishing White based on
existence of probable cause to seize). See also Commonwealth v.
Arthur, 94 Mass. App. Ct. 161, 165-166 (2018) (distinguishing
White based on, among other things, independent evidentiary
value of seized devices). The question remains whether, under
the totality of the circumstances, each defendant's possessory
interest outweighs the Commonwealth's justification for
continuing to retain his cell phone.
With White properly framed, we turn to the three
considerations that guide the balancing inquiry here: the
defendants' possessory interest in the seized cell phones, the
extent of the governmental intrusion on that interest, and the
strength of the Commonwealth's justification for continuing to
retain the devices.
a. Possessory interest. When examining a defendant's
interest in a cell phone that has been subject to a delayed
search, we specifically consider his or her possessory interest.
See Cruzado, 480 Mass. at 284 ("Judged against the defendant's
minimal possessory interest, the governmental interests
16
justified a ten-day delay" [emphasis added]).10 Cell phones,
like computers, may implicate a substantial possessory interest.
See Laist, 702 F.3d at 614 (persons may have powerful possessory
interest in computers). See also Commonwealth v. Phifer, 463
Mass. 790, 797 (2012) ("today's cellular telephones are
essentially computers"). They often store a wide range of
personal information, including communications, financial data,
location data, and photographs. See Riley v. California, 573
U.S. 373, 396 (2014) ("Historic location information is a
standard feature on many smart phones" and can "reveal where a
person has been"); United States v. Mitchell, 565 F.3d 1347,
1351 (11th Cir. 2009). There is a significant likelihood that
10This approach is consistent with the analysis applied under the Fourth Amendment to the United States Constitution by multiple United States Circuit Courts of Appeals. See, e.g., United States v. Mays, 993 F.3d 607, 617 (8th Cir. 2021) ("On the private-interests side, relevant considerations include the significance of the interference with the person's possessory interest . . ."); United States v. Smith, 967 F.3d 198, 206 n.1 (2d Cir. 2020) (acknowledging that other United States Circuit Courts of Appeals use "similar relevant factors" to also "balance the individual's possessory interest against the government's continuing interest in retaining the property for investigation or prosecution"); United States v. Pratt, 915 F.3d 266, 271 (4th Cir. 2019) ("To determine if an extended seizure violates the Fourth Amendment, we balance the government's interest in the seizure against the individual's possessory interest in the object seized"); United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir.), cert. denied, 568 U.S. 852 (2012) ("On the individual person's side of this balance, the critical question relates to any possessory interest in the seized object, not to privacy or liberty interests").
17
"much of the data on the device that has been seized will be
deeply personal and have nothing to do with the investigation of
criminal activity." United States v. Smith, 967 F.3d 198, 207
(2d Cir. 2020). As a result, a person's possessory interest in
certain personal electronic devices, like the "smart" cell
phones (smartphones) here,11 is different in kind from the
possessory interests one may have in other personal belongings.
See id. at 208 ("vital" consideration to assessing importance of
seized property of defendant that personal electronic devices
"implicate[] different privacy and possessory concerns" from
other personal property). See also Riley, supra at 393
(argument that search of data on cell phone is materially
indistinguishable from search of physical items is "like saying
a ride on horseback is materially indistinguishable from a
flight to the moon. Both are ways of getting from point A to
point B, but little else justifies lumping them together").
While a person's possessory interest in a smartphone
generally may be substantial, in determining the reasonableness
of a delay, we must examine the circumstances of each case. See
Smith, 967 F.3d at 208 ("Notwithstanding the distinctive
11A smartphone can make telephone calls, send text
messages, operate as both a camera and video recorder, operate various applications, and connect to the Internet. Commonwealth v. Dorelas, 473 Mass. 496, 497 n.1 (2016).
18
qualities of [defendant's] tablet as a personal electronic
device," facts demonstrated diminished importance of seized
tablet to defendant, weighing in government's favor). The
record may show that the possessory interest is reduced.
Relevant circumstances may include whether the defendant
requested the cell phone's return; whether the record shows a
defendant's concrete need for the device for work, family,
financial, medical, or other daily obligations; the strength of
the defendant's claim of ownership; whether officers permitted
the defendant the opportunity to copy or remove personal content
from the cell phone before the seizure; the defendant's
ownership of another cell phone with equivalent functionality;
and the defendant's admission that the cell phone contains
illicit material. See, e.g., Cruzado, 480 Mass. at 283-284
(strength of claim of ownership); Smith, 967 F.3d at 206, 208
(demonstrated importance of seized device and ownership of
functionally equivalent device); United States v. Sullivan, 797
F.3d 623, 633-634 (9th Cir. 2015), cert. denied, 578 U.S. 1024
(2016) (failure to seek return of seized device); Laist, 702
F.3d at 616 (opportunity to copy contents and admission of
illicit contents).
b. Significance of the intrusion. After assessing a
defendant's possessory interest in a cell phone, we determine
the extent of the governmental intrusion, including the length
19
of delay and whether the defendant consented to the seizure.
See Laist, 702 F.3d at 613-614; United States v. Stabile, 633
F.3d 219, 235 (3d Cir.), cert. denied, 565 U.S. 942 (2011) (no
infringement of possessory interest where defendant consents to
seizure). Although the length of delay carries significant
weight in our analysis, no bright-line rule defines when a delay
becomes unreasonable. See Cruzado, 480 Mass. at 283. Indeed,
courts have upheld delays of several months in some
circumstances, while finding shorter delays unreasonable in
others. Compare, e.g., Arthur, 94 Mass. App. Ct. at 165-166
(eighty-five day delay reasonable), United States v. Burris, 22
F.4th 781, 785 (8th Cir. 2022) (eight months reasonable), United
States v. Wells, 804 F. Supp. 3d 1000, 1009-1010 (D. Neb. 2025)
(six months reasonable), and United States v. Blanchard, 544 F.
Supp. 3d 166, 172 (D. Mass. 2021) (four months reasonable), with
United States v. Pratt, 915 F.3d 266, 273 (4th Cir. 2019)
(thirty-one days unreasonable), and Mitchell, 565 F.3d at 1353
(twenty-one days unreasonable).
c. Government's interest. We next identify the
government's interest that justifies the continued seizure and
weigh it against the intrusion on the defendant's possessory
interest. See White, 475 Mass. at 593-594.
In evaluating the government's interest, we consider
various factors, including the basis for the seizure of the cell
20
phone;12 the device's evidentiary value independent of its
contents; the nature of the offense; the strength of the
government's justification for the delay as demonstrated by the
complexity of the investigation and the effort required to
obtain a warrant; the use of secure storage to prevent remote
destruction of evidence; and whether police acted diligently.
See, e.g., Cruzado, 480 Mass. at 284 (nature of crime); White,
475 Mass. at 594 (diligence in obtaining warrant); United States
v. Sykes, 65 F.4th 867, 879 (6th Cir. 2023), cert. denied, 144
S. Ct. 576 (2024) (secure storage of device); Burris, 22 F.4th
at 785 (independent evidentiary value of device); United States
v. Mays, 993 F.3d 607, 617-618 (8th Cir. 2021) (probable cause
to seize and effort required to obtain warrant); Smith, 967 F.3d
at 210-211 (strength of justification for delay); Laist, 702
F.3d at 617 (investigation's scope and complexity).
One factor -- independent evidentiary value -- has been
treated by some Federal courts as effectively dispositive under
the Fourth Amendment to the United States Constitution. See
Burris, 22 F.4th at 785. See also Smith, 967 F.3d at 209
(acknowledging that if defendant's tablet had independent
12Because "[t]he [S]tate has a stronger interest in
seizures made on the basis of probable cause than in those resting only on reasonable suspicion," greater delays are tolerated after probable-cause seizures. Burgard, 675 F.3d at 1033.
21
evidentiary value, such value "would have justified the police's
retention of the tablet without regard" to search warrant
application). Under that approach, when a lawfully seized cell
phone is evidence of the crime, any delay in obtaining a warrant
to search its contents is considered "immaterial." Burris,
supra. The rationale is straightforward. Because the
government may retain the device itself as evidence for trial,
its continued possession does not depend on what a search of the
device's contents might reveal. A delay in searching the
contents therefore does not postpone the owner's recovery of the
device. By contrast, where a device has no evidentiary
significance apart from its potential digital contents, "the
government would be obligated to return" the device if the
search "reveal[s] no such incriminating evidence." Mitchell,
565 F.3d at 1352.
We decline to adopt this categorical approach under art.
14. See Commonwealth v. Augustine, 467 Mass. 230, 244 (2014),
S.C., 470 Mass. 837 and 472 Mass. 448 (2015) (art. 14 may afford
greater substantive protection than Fourth Amendment). Such a
rule would sweep too broadly, treating the police's burden to
seek a warrant as fully discharged the moment a device qualifies
as evidence. That premise is in tension with the central role
that cell phones play in modern life. See Commonwealth v.
Cronin, 495 Mass. 170, 180 (2025) (cell phones are
22
"ubiquitous"); Commonwealth v. Hobbs, 482 Mass. 538, 546 (2019)
("cell phones have become an indispensable part of daily life"
[quotation and citation omitted]). The longer a device sits in
police custody, the longer its owner is deprived of access to
records, communications, and tools on which daily life
increasingly depends. See United States v. Burgard, 675 F.3d
1029, 1033 (7th Cir.), cert. denied, 568 U.S. 852 (2012). That
deprivation has constitutional weight, even where a judge
ultimately determines that the Commonwealth has a substantial
independent basis for retention, because avoidable delays
disserve the judiciary's role in promptly "evaluat[ing] and
correct[ing] improper seizures" when they do occur (citation
omitted). White, 475 Mass. at 595. Accordingly, a cell phone's
independent evidentiary value may substantially strengthen the
Commonwealth's interest in retaining the device, but it does not
excuse neglect, and it does not permit extended delay in every
case.
2. Application. We now apply that balancing test to each
case before us, starting with Solis's case.
a. Solis. i. Possessory interest. Solis's possessory
interest was substantial at the outset because the seized item
was a smartphone. On this record, however, that interest was
diminished in two respects. First, the record offers no
indication, and Solis does not contend, that he sought the
23
return of his cell phone. See Sullivan, 797 F.3d at 633-634,
quoting United States v. Johns, 469 U.S. 478, 487 (1985) (person
who "never sought return of the property" had not made
sufficient showing that delay was unreasonable). See also Rule
61 of the Rules of the Superior Court (1980) (governing motions
for return of property); United States v. Nkongho, 107 F.4th
373, 384 (4th Cir.), cert. denied, 145 S. Ct. 776 (2024)
(defendant's possessory interest was "no doubt high" where,
among other things, she and her attorney "contacted law
enforcement to request that [her devices] be returned").
Second, the record contains no evidence that the cell phone held
any "particular significance" to Solis. Smith, 967 F.3d at 208
(defendant's testimony about use and significance of device was
"spare in detail"). Contrast United States v. Eisenberg, 707 F.
Supp. 3d 406, 415 (S.D.N.Y. 2023) (defendant showed particular
significance by explaining his "extensive[]" use of devices to
communicate with friends and to store "large amount of personal
and business data" and that devices contained information for
accessing funds). Taken together, these considerations reduce,
but do not eliminate, the weight of Solis's possessory interest.
ii. Extent of intrusion. Although Solis's possessory
interest was diminished, "[p]ossessory interest is only one
factor to be considered in the over-all reasonableness
calculus." White, 475 Mass. at 595. We also consider the
24
extent of the government's intrusion on Solis's interest in the
seized cell phone. The 109-day delay in Solis's case
constitutes a significant intrusion on his possessory interest.
See Laist, 702 F.3d at 616 (twenty-five day delay was "not
insubstantial"). Solis did not consent to the initial seizure,
which otherwise could have minimized or negated any intrusion on
his possessory interest. See Sullivan, 797 F.3d at 634
("minimal" interference with possessory interest where, among
other things, defendant consented to ongoing seizure); Stabile,
633 F.3d at 235 (no infringement of possessory interest where
defendant consented to seizure).13
iii. The government's interest in seizing and retaining
Solis's cell phone. Several factors strongly support the
government's interest. First, the police had probable cause to
seize the cell phone, a "key factor" in the analysis (citation
omitted). Mays, 993 F.3d at 617. At the time of Solis's arrest
and the seizure of his cell phone, the police were aware of
Charlie's report that Solis had used a cell phone to photograph
Charlie's genitals during one of several sexual assaults. They
were also aware that, according to Charlie, one of the incidents
13As neither defendant here consented to the initial seizure, we need not determine the exact impact consent may have on the "nature and quality of the intrusion" (citation omitted). White, 475 Mass. at 593-594.
25
occurred in a room in the store's basement containing a bed with
a "bluish blanket." Charlie's account was corroborated by the
officers' subsequent observation of a futon and "bluish blanket"
in the store's basement. These facts established probable cause
to seize Solis's cell phone.
Based on these same facts, the cell phone also had
meaningful evidentiary value independent of its contents: it
was allegedly used to commit the offense of posing a child in a
state of nudity. See Burris, 22 F.4th at 785 (where cell phone
had independent evidentiary value, eight-month delay was not
unreasonable). That value did not depend on what a later search
of the cell phone might reveal. A conviction under G. L.
c. 272, § 29A (a), does not require proof that the photograph
was successfully created, and the device itself may serve as
corroborating evidence if successfully identified by the victim.
See Commonwealth v. Bresilla, 470 Mass. 422, 430 (2015)
(identification of tangible objects seen during crime by
percipient witness provides "indirect evidence of the
defendant's guilt"); Commonwealth v. Lawrence, 68 Mass. App. Ct.
103, 105 (2007) (violation of G. L. c. 272, § 29A [a], does not
require successful creation of photograph).14
14We do not ignore the discrepancy between the blue Nokia smartphone in a black case seized from Solis and Charlie's later description of a gray or black Samsung cell phone. That discrepancy weakens the cell phone's independent evidentiary
26
The government's interest is further strengthened by the
nature of the offense, which involves the sexual exploitation of
a child, an area in which the Commonwealth's interest is
"particularly strong." Cruzado, 480 Mass. at 284. Cf.
Commonwealth v. Feliz, 486 Mass. 510, 517 (2020) ("Preventing
sexual exploitation and abuse of children constitutes a
government objective of surpassing importance" [quotation and
citation omitted]).
Countervailing considerations diminish the weight of the
government's interest. The case was relatively straightforward,
involving a single victim and a single defendant. More
importantly, the Commonwealth's justification for the delay
reflects a lack of warrant-specific diligence. Some initial
delay could be attributed to the timing of the victim's forensic
interview, but most of the remaining time was attributed to the
value. It does not eliminate that value, however, because Charlie initially reported that Solis used the cell phone during the sexual assault, the seized cell phone matched the general color when covered with its case, and probable cause does not require certainty about identification at trial. Cf. United States v. Smith, 9 F.3d 1007, 1014 (2d Cir. 1993) (minor inconsistencies in informant's description did not undermine probable cause); Ellis v. United States, 264 F.2d 372, 374 (D.C. Cir.), cert. denied, 359 U.S. 998 (1959) (probable cause existed where descriptions shared basic similarities and fairly matched suspect). Moreover, because "tangible objects are typically not unique," Bresilla, 470 Mass. at 430, it is not necessarily fatal to the cell phone's independent evidentiary value that the cell phone was, as Solis's motion judge described it, "nondescript."
27
officer's general workload and the department's staffing
constraints. Generalized workloads do not excuse delay. See
White, 475 Mass. at 594.
The effort required to prepare the warrant application
likewise does not justify the delay. See Mays, 993 F.3d at 618.
Although the affidavit spanned eighteen pages, only a limited
portion contained case-specific facts. Unlike more complex
cases involving multiple agents or extended investigations, the
affidavit here drew on a limited set of sources and did not
require substantial investigative synthesis. Contrast id.
(eighteen-page affidavit supported reasonableness where affiant
compiled specific information about defendant's alleged conduct
from four separate investigative teams); Laist, 702 F.3d at 617
(three pages of information was "very substantial" where affiant
compiled information from "numerous [Federal Bureau of
Investigation] agents" related to year-long investigation).
The police did not act with the diligence that art. 14
demands. Investigative workload alone cannot justify extended
delay; the Commonwealth must identify warrant-specific reasons
for the lapse. See White, 475 Mass. at 594. That said, lack of
diligence does not end the inquiry where other circumstances
provide a continuing, case-specific basis to retain the device.
See Cruzado, 480 Mass. at 283 n.9. Cf. Asinor v. District of
Columbia, 111 F.4th 1249, 1260 (D.C. Cir. 2024) (government "can
28
reasonably retain contraband or evidence in an ongoing criminal
investigation or trial"). The point is not that diligence
becomes optional. It is that the absence of diligence must be
weighed with the remaining facts.
iv. Balancing the interests. On this record, the 109-day
delay did not render the seizure of Solis's cell phone
unreasonable. This conclusion rests on the combined force of
several factors, not on any single factor. The police had
probable cause to believe that the device was an instrumentality
of a serious felony involving child sexual abuse; the cell phone
carried meaningful evidentiary value independent of its
contents, particularly where Charlie could identify it at trial,
subject to the discrepancy in his later description; Solis never
sought the device's return; and Solis offered no evidence that
it held any particular significance to him. Although the
Commonwealth's interest was tempered by the lack of diligence,
it remained substantial. The continued seizure was therefore
reasonable.
b. Diaz. i. Possessory interest. Diaz's possessory
interest was substantial at the outset for the same reason: the
seized item was a smartphone. Like Solis, however, Diaz did not
request the return of his cell phone, which reduces the weight
of his possessory claim, but does not defeat it. See Sullivan,
797 F.3d at 633. Diaz also failed to present any evidence that
29
the cell phone held any particular importance to him. See
Smith, 967 F.3d at 208. Contrast Eisenberg, 707 F. Supp. 3d at
415. As in Solis's case, Diaz's possessory interest, while
real, carries reduced weight in the balance.
ii. Extent of intrusion. The 123-day delay in Diaz's case
constitutes a substantial intrusion on his possessory interest.
See Laist, 702 F.3d at 616. As with Solis, Diaz did not consent
to the seizure of his cell phone. See Sullivan, 797 F.3d at
634; Stabile, 633 F.3d at 235.
iii. The government's interest in seizing and retaining
Diaz's cell phone. Here, the government's interest in Diaz's
cell phone was also substantial, particularly at the time of the
initial seizure. The police had probable cause to seize Diaz's
cell phone incident to his arrest -- again, a "key factor" in
the analysis (citation omitted). Mays, 993 F.3d at 617. See
Cruzado, 480 Mass. at 284. Diaz argues, however, that because
it is "common for an individual to carry two or more [cell]
phones," it was unreasonable to infer that the device seized
incident to his arrest was the same one used in the alleged
offenses, particularly in the absence of any description of the
cell phone from the victims. See United States v. Fletcher, 978
F.3d 1009, 1016-1017 (6th Cir. 2020) ("possessing more than one
cell phone is a practice common in the general public"). As a
30
result, Diaz contends, the seized cell phone cannot have any
evidentiary value independent of its contents. We disagree.
Diaz was arrested for, among other things, dissemination of
matter harmful to a minor, in violation of G. L. c. 272, § 28.
At the time of his arrest, the police were aware from forensic
interviews that Diaz had used his cell phone to display to Betty
a sexually explicit photograph of himself and his wife.
Immediately before the arrest, D'Alba called Diaz on his cell
phone and asked him to come outside; Diaz did so, holding a cell
phone in his hand.
In these circumstances, it was reasonable to infer that the
seized cell phone was the same device used in the crime of
arrest. Although the police lacked a specific description of
the cell phone, they could rely on "normal inferences" regarding
where the at-issue cell phone might have been found (citation
omitted). White, 475 Mass. at 589. Those inferences were
especially strong here because D'Alba called Diaz on his cell
phone immediately before the arrest, Diaz came outside in
response to that call, and Diaz was holding a cell phone when
officers arrested him. See Augustine, 467 Mass. at 246 (cell
phones "physically accompany their users everywhere -- almost
permanent attachments to their bodies"). Cf. Commonwealth v.
James, 424 Mass. 770, 777-778 (1997) (probable cause supported
belief that instrumentalities of crime were located within
31
defendants' homes where items were "durable, of continuing
utility to the defendants, and . . . not inherently
incriminating to possess").
The general possibility that Diaz possessed several cell
phones does not defeat probable cause. Probable cause "deal[s]
with probabilities," not certainties, and does not require proof
"beyond a reasonable doubt" that the seized device was the one
used in the crimes (citation omitted). Commonwealth v. Kaupp,
453 Mass. 102, 110–111 (2009). The facts known to the police at
the time of arrest provided probable cause to believe that the
seized cell phone was an instrumentality of the dissemination
offense for which Diaz was arrested. Consequently, the seized
cell phone also had significant evidentiary value independent of
its contents. See Burris, 22 F.4th at 785. Diaz's purported
use of the cell phone as the instrumentality by which he
disseminated matter harmful to a child carries particular weight
given that a conviction under G. L. c. 272, § 28, does not
require the Commonwealth to produce the offending material
itself. See Ferrari v. Commonwealth, 448 Mass. 163, 169 (2007)
(holding evidence was sufficient to convict under G. L. c. 272,
§ 28, where Commonwealth relied solely on child's testimony as
to entire contents of "porn" videotapes she personally
observed). The government's interest is further strengthened by
32
the nature of the offenses, which involve the sexual
exploitation of children. See Feliz, 486 Mass. at 517.
Additionally, the cell phone acquired further independent
evidentiary value after its seizure.15 In a subsequent forensic
interview, Betty reported that Diaz had used his cell phone to
photograph her while her shirt was lifted. The device itself
thus became evidence of two offenses, dissemination and posing,
further strengthening the governmental interest in retaining it.
See Burris, 22 F.4th at 785. Also, the police reasonably could
infer from the forensic interviews that the victims would be
able to identify the device at trial, thereby corroborating
their allegations and providing circumstantial evidence of
Diaz's guilt. See Bresilla, 470 Mass. at 430.
D'Alba's admission that the warrant application was placed
"on the back burner" directly contravenes the requirement that
warrant applications for digital devices be prioritized, see
White, 475 Mass. at 593, and weighs against the Commonwealth's
interest. The police investigation, however, was more complex
than in Solis's case. It spanned nearly half a year, involved
15We may consider these developments because the police did not obtain this information as a result of the continued seizure of the cell phone. See Commonwealth v. Oliveira, 474 Mass. 10, 16 (2016) (seizure "cannot be justified by information learned from the seizure").
33
multiple victims, and drew on information from several sources,
including prior related DCF investigations and multiple forensic
interviews. That complexity bears on the time reasonably
required to prepare a warrant application. See Laist, 702 F.3d
at 617.
The effort required to prepare the affidavit likewise
supports the Commonwealth's interest. See Mays, 993 F.3d at
617. D'Alba's twenty-seven page affidavit included extensive,
case-specific information drawn from multiple investigations and
agencies. Unlike in Solis's case, the affidavit here reflected
a substantial synthesis of evidence developed over an extended
period. See id.; Laist, 702 F.3d at 617. D'Alba's testimony
that he devoted four or five eight-hours shifts to drafting the
application is consistent with the scope of the investigation
and does not reflect undue delay. See Laist, supra at 614.
iv. Balancing the interests. In Diaz's case, the 123-day
delay did not render the seizure of Diaz's cell phone
unreasonable. The device was not merely a repository of
evidence. It was allegedly used as an instrumentality of
offenses involving the sexual abuse of children, and its
evidentiary significance -- independent of its contents -- was
present at the time of seizure and grew with subsequent
investigative developments. Diaz's possessory interest was also
diminished, both by his failure to seek the return of the device
34
and by the absence of any record evidence that the cell phone
was important to him. These facts do not make the length of the
delay immaterial. They do, however, give the Commonwealth a
continuing case-specific basis to retain the device while the
warrant application was prepared, which, in turn, acts as a
countervailing consideration to the length of the delay.
The delay in seeking the warrant exceeded the delay in
Solis's case, and, by D'Alba's own admission, the warrant
application was not prioritized. The lack of prioritization is
serious and weighs against the reasonableness of the delay.
Still, "we have never said that [diligence] is a dispositive
factor." Cruzado, 480 Mass. at 283 n.9. Here, the delay is
mitigated by the greater complexity of the investigation, the
substantial effort required to prepare the twenty-seven page
affidavit (including the synthesis of information from multiple
forensic interviews and prior investigations), and, importantly,
the device's continuing evidentiary value in relation to the
charged offenses. On balance, the Commonwealth's interest
outweighed the intrusion on Diaz's possessory interest.
Conclusion. The motion judges erred in concluding that the
delays in seeking warrants rendered the seizures unreasonable.
The orders allowing the motions to suppress are reversed, and
the matters are remanded to the Superior Court.
35
Nothing in this opinion should be read to condone delay.
Article 14 requires that applications for warrants to search
digital devices be treated as a priority, not as an
afterthought. Our holding is narrow, and rests on the
combination of probable cause, a continuing evidentiary basis
for retaining the cell phones apart from their contents, serious
offenses involving child sexual exploitation, and diminished
possessory interests.
So ordered.