Date: 08-21-2016

Case Style:

Case Number: SJC-12089

Judge: Francis X. Spina

Court: Massachusetts Supreme Judicial Court

Plaintiff's Attorney:

Teresa K. Anderson

Defendant's Attorney:

*James L. Sultan*

*Charles W. Rankin*

Description: On July 16, 2012, Daniel de Abreu and
Safiro Furtado were murdered in an alleged drive-by shooting in
the South End section of Boston. During the investigation of
the crimes, Alexander Bradley stated that he witnessed the
defendant shoot at five occupants of a 2003 BMW sedan on the
date in question. He further stated that on February 13, 2013,
while he and the defendant were on vacation together in Florida,
the defendant shot him in the head. Bradley also indicated
that, following this incident, he communicated with the
defendant on multiple occasions between February 14, 2013, and
June, 2013, either by calling the defendant or sending him text
messages on his cellular telephone. During these conversations,
Bradley threatened to sue the defendant and to publicly expose
his violent behavior. Around June 16, 2013, the defendant
purportedly delivered his cellular telephone to his attorney at
Ropes & Gray LLP (Ropes & Gray) for the purpose of seeking legal
advice on several matters.3
On March 24, 2014, the Commonwealth filed a motion in the
Superior Court pursuant to Mass. R. Prof. C. 3.8 (f), 426 Mass.
1397 (1998), for judicial approval of a grand jury subpoena
duces tecum to compel Ropes & Gray to produce the telephone.
Following a hearing, a judge denied the motion, but noted that
his denial was without prejudice to refiling based on a showing
of probable cause in conformity with the requirements of G. L.
c. 276, § 2B (affidavit in support of search warrant
3 Ropes & Gray LLP (Ropes & Gray) had begun to represent the defendant in April, 2013. On June 13, 2013, Alexander Bradley commenced a civil action against the defendant in the United States District Court for the Southern District of Florida (Miami), alleging assault, libel, and slander. Approximately two weeks later, the defendant was arrested and charged with murder in the shooting death of Odin Lloyd in Bristol County. Shortly thereafter, Rankin & Sultan joined the defendant's legal team. On April 15, 2015, a jury convicted the defendant of murder in the first degree, and he was sentenced to the mandatory term of life in prison without the possibility of parole. On March 14, 2016, Bradley's civil action against the defendant was dismissed with prejudice after the parties reached a settlement.
4
application). The Commonwealth immediately filed a second
motion for judicial approval of the grand jury subpoena directed
at Ropes & Gray. Following another hearing, the judge
authorized the issuance of the subpoena after finding probable
cause to believe that the telephone contained evidence of a
crime under investigation by the grand jury and was in the
possession of Ropes & Gray. However, the judge stayed the
issuance and execution of the subpoena to allow the defendant to
file a petition for relief in the county court pursuant to G. L.
c. 211, § 3. The judge also ordered that, if Ropes & Gray
indeed had the telephone in its possession, it not alter,
transfer, dispose of, return, or otherwise render the telephone
unavailable pending further court order. The defendant filed
his G. L. c. 211, § 3, petition, and the single justice reserved
and reported the matter to the full court.4
4 While these proceedings were ongoing, a Suffolk County grand jury indicted the defendant on May 15, 2014, in connection with the drive-by shooting in the South End on July 16, 2012. He was charged with murder in the first degree, G. L. c. 265, § 1 (two counts); armed assault with intent to murder, G. L. c. 265, § 18 (b) (three counts); assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); and carrying a firearm without a license, G. L. c. 269, § 10 (a). Approximately one year later, on May 8, 2015, a Suffolk County grand jury indicted the defendant on an additional charge of witness intimidation, G. L. c. 268, § 13B. The Commonwealth alleged that the defendant sought to intimidate Bradley by shooting him in the head because the defendant was concerned that Bradley would implicate him in the murders of Daniel de Abreu and Safiro Furtado.
5
On January 12, 2015, this court allowed the defendant's
petition for relief under G. L. c. 211, § 3, and reversed the
judge's order authorizing the issuance of a subpoena, concluding
that the attorney-client privilege protected the defendant
against compelled production of the cellular telephone by Ropes
& Gray, and that the protection afforded by such privilege could
not be set aside based on a showing of probable cause. Matter
of a Grand Jury Investigation, 470 Mass. 399, 400, 403-407
(2015) (Grand Jury Investigation), citing Fisher v. United
States, 425 U.S. 391, 402-405 (1976).5 We pointed out that
because the Commonwealth had sought to obtain the telephone via
a subpoena, the provisions of G. L. c. 276, § 1, governing the
issuance of search warrants, had no bearing on the court's
analysis. Grand Jury Investigation, supra at 410. Instead, the
court's holding was predicated on its determination that "the
compelled production of the telephone via a subpoena directed at
5 In Fisher v. United States, 425 U.S. 391, 402 (1976), the United States Supreme Court held that "compelled production of documents from an attorney does not implicate whatever . . . privilege [under the Fifth Amendment to the United States Constitution] the [target of an investigation] might have enjoyed from being compelled to produce them himself." However, the Court also concluded that, separate from the right against self-incrimination, the attorney-client privilege protects certain materials from production by an attorney. If a client "transferred possession of . . . documents . . . from himself to his attorney in order to obtain legal assistance . . . , the papers, if unobtainable by summons from the client, are unobtainable by summons directed to the attorney by reason of the attorney-client privilege." Id. at 405.
6
[the defendant] would violate the act of production doctrine,
[which derives from the privilege against self-incrimination,]
and consequently that the compelled production of the telephone
via a subpoena directed at [Ropes & Gray] would violate the
attorney-client privilege under Fisher."6 Id. Significantly,
the court's analysis was confined to the limited record that was
before the Superior Court judge in March, 2014. Id. at 400,
416.
6 Although the Commonwealth sought to acquire the cellular telephone via a subpoena, it also indicated that if the court declined to authorize the issuance of a subpoena, the Commonwealth would apply for a search warrant to seize the device. Matter of a Grand Jury Investigation, 470 Mass. 399, 410 (2015) (Grand Jury Investigation). That being the case, this court proceeded to consider the availability of a search warrant under G. L. c. 276, § 1, and to "reject the Commonwealth's contention that documentary evidence is 'secreted' whenever an attorney invokes the Fisher rule to resist its compelled production." Id. at 414. Instead, we concluded that the exception to the general prohibition on the issuance of a search warrant for documentary evidence in the possession of a lawyer applies only where, based on a factspecific determination, "there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue." Id., quoting G. L. c. 276, § 1. In Grand Jury Investigation, nothing in the record that was before the Superior Court judge in March, 2014, suggested that Ropes & Gray was no longer engaged in providing legal advice to the defendant. Id. Therefore, the court stated that "[t]he privileged retention of client documents in such circumstances [could not] be said to be the secretion of those documents." Id. We left for another day "the question whether and under what circumstances the prolonged retention by counsel of client documents unprotected or no longer protected by any privilege might qualify as secreting under the meaning of G. L. c. 276, § 1." Id.
7
In a concurring opinion, three Justices agreed that Fisher,
425 U.S. at 402-405, controlled the subpoena question raised in
the case, and that the record was inadequate to make a judgment
about the propriety of the issuance of a search warrant. Grand
Jury Investigation, 470 Mass. at 417 (Cordy, J., concurring).
Nonetheless, the concurring Justices emphasized that "placing
the cell[ular] [tele]phone (or any other incriminating
documentary evidence) in the hands of an attorney does not
sequester it under Massachusetts law from the reach of law
enforcement pursuant to G. L. c. 276, § 1, where it is not
claimed that the cell[ular] [tele]phone itself is privileged or
contains privileged material, where there is probable cause to
believe that it contains evidence of crimes under investigation
by the grand jury, and where it is no longer being retained for
the purpose of rendering legal advice." Id. It was the view of
the concurring Justices that G. L. c. 276, § 1, "was never
intended to permanently shield from seizure unprivileged
evidence of criminal activity placed in the hands of an attorney
by a client under investigation, or to create a depository for
the secretion or sequestration of such evidence from law
enforcement."7 Id. at 419.
7 The concurring Justices in Grand Jury Investigation, 470 Mass. at 420, articulated a protocol for the seizure, by way of a search warrant, of unprivileged evidence of criminal activity held by an attorney for a client under investigation. They
8
On May 4, 2015, the Commonwealth, in reliance on the
protocol articulated by the concurring Justices in Grand Jury
Investigation, 470 Mass. at 420, see note 7, supra, filed an
application for a search warrant pursuant to G. L. c. 276, §§ 1
7, together with a supporting affidavit, to seize the telephone
from Ropes & Gray. Five months later, on October 6, 2015, the
Commonwealth filed a motion pursuant to Mass. R. Crim. P. 17,
378 Mass. 885 (1979), for production of the telephone by Ropes &
concluded that in circumstances "where it appears that an item of evidence sought by the Commonwealth cannot be obtained from [a] law firm by the issuance of a subpoena because of its client's privilege regarding production, and where, as a consequence, a search warrant would ordinarily be necessary, the warrant application should be presented to a judge, with those circumstances set out in an affidavit. The judge should then issue a short order of notice to the law firm, giving it an opportunity to raise any privilege that might protect the item from seizure. Along with the short order of notice, the judge should issue an order barring the law firm from transferring or destroying the item pending further ruling of the court. In this manner, the unprivileged and relevant evidence [would] not [be] lost to the Commonwealth, and there [would be] an opportunity prior to a search for privileges to be raised and litigated. If the judge concludes that no privilege applies to the item and that its retention by the law firm is no longer for the purpose of or necessary to the rendering of legal advice, the judge may properly order the warrant to issue. In such circumstances, the continued retention of the evidence would constitute its concealment within the meaning of the term 'secreted' as used in G. L. c. 276, § 1. The judge may further direct the parties to fashion a protocol unlikely to pose a risk to the privileges of other documents or clients or to result in a production that is testimonial and incriminating" (footnotes omitted). The majority opinion acknowledged the protocol articulated by the concurring Justices, but took no view as to its propriety. Grand Jury Investigation, 470 Mass. at 416 n.7.
9
Gray (rule 17 motion).8 Following several hearings, the Superior
Court judge made proposed findings of fact relating to whether
the telephone, if in the possession of Ropes & Gray, continued
to be held in connection with and for the purpose of providing
legal advice and services to the defendant. Distribution of
these proposed findings to the Commonwealth was stayed pending
the filing of a petition for interlocutory relief by the
defendant, and certain of the proposed findings were placed
under seal until further order of the court.
On December 1, 2015, the defendant filed a petition for
relief in the county court pursuant to G. L. c. 211, § 3,
challenging the process employed by the Superior Court judge to
adjudicate the Commonwealth's pending application for a search
warrant and rule 17 motion, and seeking to preclude the judge
from releasing his proposed findings of fact to the
Commonwealth. Following several hearings, the single justice
ordered that the petition be allowed to the limited extent that
publication and distribution to the Commonwealth of the judge's
sealed proposed findings of fact remain stayed until further
order of the county court. The single justice also ordered that
8 Rule 17 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 885 (1979), governs the issuance of subpoenas in criminal cases. See Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810, 819 (2013). Under rule 17 (a) (2), a subpoena may issue for the production of "books, papers, documents, or other objects designated therein."
10
the matter be remanded to permit the judge to decide the
Commonwealth's pending submissions.
On March 7, 2016, the Superior Court judge denied the
Commonwealth's application for a search warrant and rule 17
motion. With respect to the latter, the judge determined that,
consistent with Grand Jury Investigation, 470 Mass. at 403-407,
and Fisher, 425 U.S. at 402-405, the attorney-client privilege
shielded the cellular telephone, which had been given to Ropes &
Gray in connection with its representation of the defendant in
several matters, from the Commonwealth's reach. The judge also
found that as a consequence of the court's prior order
precluding Ropes & Gray from returning, transferring, or
disposing of the telephone, the defendant's successor counsel,
Rankin & Sultan, had not been able to access the device in
connection with their provision of legal services to the
defendant. The judge stated that it would be appropriate to
vacate the prior order so the telephone could be transferred to
Rankin & Sultan, subject to the limitations set forth in Mass.
R. Prof. C. 3.4 (a), as appearing in 471 Mass. 1425 (2015),9 but
the judge did not actually vacate this order.
9 Rule 3.4 (a) of the Massachusetts Rules of Professional Conduct, as appearing in 471 Mass. 1425 (2015), states that a lawyer shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value."
11
With respect to the Commonwealth's application for a search
warrant, the judge found that there was probable cause to
believe that the data on the telephone would provide evidence of
"the relationship between Bradley and the defendant" and "their
presence together in Florida in February, 2013," and that text
messages would reference "the circumstances surrounding Bradley
being shot and the defendant's role and possible culpability in
that criminal incident." The judge stated that such evidence
undoubtedly was relevant to the defendant's indictment on a
charge of witness intimidation. See note 4, supra. However,
the judge also stated that there was good reason to believe that
continued possession of the telephone by counsel still was
necessary for the provision of legal services to the defendant.
Accordingly, the judge concluded that the Commonwealth had not
shown probable cause to believe that the telephone was at risk
of being "destroyed, secreted, or lost in the event a search
warrant [did] not issue." G. L. c. 276, § 1.
On March 17, 2016, the Commonwealth filed a motion in the
Superior Court to compel Ropes & Gray to transfer the cellular
telephone to Rankin & Sultan by a date certain. The
Commonwealth did not dispute the judge's finding that Rankin &
Sultan needed a reasonable period of time to review the device
and conduct a forensic examination of its contents. However,
the Commonwealth asserted that counsel could download and
12
preserve the contents of the telephone within a matter of days,
if not hours. Once that occurred, the Commonwealth continued,
Rankin & Sultan would no longer have to possess the telephone,
and the protections afforded by Fisher would no longer apply.
See note 5, supra. In the Commonwealth's view, counsel did not
need prolonged, indefinite, or unilateral access to the
telephone itself in order to render legal advice. The
Commonwealth also requested that the court maintain its prior
order which precluded defense counsel from returning,
transferring, or disposing of the telephone, pending further
court order, with notice to the Commonwealth and an opportunity
to be heard.
On March 18, 2016, the single justice in the county court
held another hearing on the defendant's December 1, 2015,
petition for relief pursuant to G. L. c. 211, § 3. She ordered
that the matter be remanded to the Superior Court for further
proceedings, including, but not limited to, motions previously
filed or anticipated to be filed by the Commonwealth. The
single justice stated that, following the issuance of the
judge's rulings on these motions, counsel for any aggrieved
party could again petition the county court for interlocutory
appellate relief. The single justice further ordered that the
sealed proposed findings of fact made by the Superior Court
judge on November 17, 2015, remain under seal, and that their
13
publication and distribution to the Commonwealth remain stayed
until further order of the county court.
On March 22, 2016, the Commonwealth filed in the Superior
Court an application for an anticipatory search warrant to seize
the cellular telephone from Rankin & Sultan at the conclusion of
a "legal advice period." In an affidavit in support of the
search warrant, Boston police Sergeant Detective Kevin
Witherspoon, the director of the computer forensics laboratory
at the Suffolk County district attorney's office, stated that,
based on his research and past experience, the extraction of
data from the telephone should take less than two hours to
complete. If the device's battery was not already charged, one
additional hour would be required. The defendant opposed the
Commonwealth's application for an anticipatory search warrant.
By memorandum of decision and order dated March 25, 2016,
the judge allowed, in part, the Commonwealth's motion to compel
the transfer of the cellular telephone. The judge ordered Ropes
& Gray to transfer the telephone to Rankin & Sultan on or before
March 28, 2016, so that the defendant could obtain legal advice
from his current attorneys. Based on the uncontested affidavit
of Sergeant Detective Witherspoon, the judge determined that
fourteen days would be a reasonable period of time for Rankin &
Sultan to retain the telephone for the provision of such legal
advice. A limited extension of time could be allowed, if
14
necessary. The judge directed Rankin & Sultan, and its agents,
not to "alter, transfer, dispose of, return, or otherwise render
the telephone unavailable pending further court order," but the
judge expressly permitted Rankin & Sultan to transfer the
telephone to its agents or experts, if any, to conduct a review
of the device. Immediately after the expiration of the
reasonable period of time, Rankin & Sultan was ordered to place
the telephone in a sealed envelope or box and to retain it until
further order of the court. Ropes & Gray was directed to file a
written notice with the court on or before March 29, 2016,
indicating whether it had complied with the court's order. In
his memorandum of decision and order, the judge also denied,
without prejudice, the Commonwealth's application for an
anticipatory search warrant to seize the telephone from Rankin &
Sultan at the end of the "legal advice period." The judge's
conclusion was based on the fact that the concurring opinion in
Grand Jury Investigation, 470 Mass. at 416-421, and the protocol
articulated therein, had no precedential value. See note 7,
supra.
On March 29, 2016, the Commonwealth filed a petition for
relief in the county court pursuant to G. L. c. 211, § 3,
challenging the denial of its application for an anticipatory
search warrant. On March 31, 2016, in accordance with the order
of the Superior Court judge, Ropes & Gray filed a certification
15
stating that the cellular telephone had been delivered to Rankin
& Sultan on March 30. On April 7, 2016, the single justice
reserved and reported the matter without decision to the full
court.
2. Discussion. The Commonwealth contends that where an
attorney's continued retention of documentary evidence is no
longer necessary for the provision of legal services to a
client, such evidence is being "secreted" within the meaning of
G. L. c. 276, § 1, and a search warrant properly may issue for
its seizure. We agree.
In Grand Jury Investigation, 470 Mass. at 417, the
concurring Justices pointed out that G. L. c. 276, § 1, was
amended in 1986 to protect from search and seizure, except in
limited circumstances, "documentary evidence" in the possession
of lawyers, psychotherapists, and clergymen.10 See St. 1986,
c. 691. The Legislature recognized that "the law provides
special privileges to the consultations [these professionals]
have with their clients, patients, or parishioners," and that "a
10 For purposes of this statutory provision, the term "documentary evidence" includes, but is not limited to, "writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films or papers of any type or description." G. L. c. 276, § 1. This broad definition would encompass a cellular telephone, which may contain any and all of these enumerated categories of evidence. See Grand Jury Investigation, 470 Mass. at 412 (stating that search for cellular telephone is search for "documentary evidence" within meaning of G. L. c. 276, § 1).
16
search of their files for nonprivileged documents (pursuant to a
search warrant) would pose a significant risk that the
privileges of innocent third parties would be compromised." Id.
at 417-418 (Cordy, J., concurring), and sources cited.
Consequently, as pertinent here, the Legislature determined that
a search warrant shall not issue for documentary evidence
transferred to a lawyer by a client for the provision of legal
advice unless "a justice is satisfied that there is probable
cause to believe that the documentary evidence will be
destroyed, secreted, or lost in the event a search warrant does
not issue."11 Notwithstanding this limitation on the powers of
search and seizure, the concurring Justices in Grand Jury
Investigation, supra at 419, also pointed out that nothing in
the extensive legislative history of the 1986 amendment to G. L.
c. 276, § 1, suggested that the Legislature intended for its
provisions "to permanently shield from seizure unprivileged
evidence of criminal activity placed in the hands of an attorney
by a client under investigation, or to create a depository for
the secretion or sequestration of such evidence from law
enforcement." That being the case, we construe the statute in
11 The 1986 amendment to G. L. c. 276, § 1, also provided that a search warrant for such documentary evidence could issue if there was probable cause to believe that the lawyer in possession of the evidence had committed, was committing, or was about to commit a crime. St. 1986, c. 691. This provision is not relevant to the matter before us.
17
accordance with the Legislature's intent and proceed to consider
whether the necessary factual showing has been made for the
issuance of a search warrant to Rankin & Sultan for the cellular
telephone. In so doing, we resolve the question left unanswered
in Grand Jury Investigation, supra at 414, mindful of our
observation that nothing in that opinion should be interpreted
as suggesting that "a lawyer, having received materials whose
contents are not themselves privileged for purposes of rendering
legal advice, may retain such materials indefinitely, absent a
continuing bona fide need and purpose related to the provision
of legal advice." Id. at 415. See note 6, supra.
This court's discussion in Grand Jury Investigation, 470
Mass. at 410-416, about the availability of a not yet requested
search warrant under G. L. c. 276, § 1, was confined to the
limited record that was before the Superior Court judge in
March, 2014. Id. at 414, 416. At that time, nothing in the
record suggested that Ropes & Gray was no longer engaged in the
provision of legal services to the defendant. Id. at 414.
Consequently, the law firm's retention of the telephone could
not be said to be the "secretion" of documentary evidence. Id.
Since the issuance of our decision in that case, however, the
circumstances surrounding the defendant's cellular telephone
have changed.
18
First, the Commonwealth now has filed an application for
the issuance of an anticipatory search warrant. Second, no
claim has been raised that the telephone itself is privileged,
or that it contains any privileged communications. Third, the
judge already has found probable cause to believe that the
telephone contains evidence of the crimes under investigation.
Finally, the judge accepted and credited the representations set
forth in Sergeant Detective Witherspoon's affidavit that the
contents of the telephone could be downloaded in a few hours.
That being the case, the judge determined that, after a
fourteen-day period of time during which the download could
occur, Rankin & Sultan no longer needed to retain possession of
the telephone itself for the provision of legal services to the
defendant.12
In order to obtain the search warrant, the Commonwealth was
required to show that "there is probable cause to believe that
the documentary evidence will be . . . secreted . . . in the
event a search warrant does not issue." G. L. c. 276, § 1. The
term "secrete" is defined in Black's Law Dictionary 1557 (10th
ed. 2014) as meaning "[t]o remove or keep from observation,
. . . to conceal . . . to hinder or prevent officials . . . from
12 The seizure of the telephone by law enforcement officials pursuant to a search warrant does not involve an act of production by Rankin & Sultan implicating the attorney-client privilege. See Grand Jury Investigation, 470 Mass. at 404, 415, citing Fisher, 425 U.S. at 405.
19
finding it." Once Rankin & Sultan has downloaded the contents
of the telephone, it has no legitimate purpose for the
telephone's retention. Rankin & Sultan no longer requires
possession of the telephone for the provision of legal advice to
the defendant. In such circumstances, the continued retention
of this device can only be understood as having the effect of
concealing or removing it from the observation of others, namely
the Commonwealth. The Superior Court judge's order directing
Rankin & Sultan not to "alter, transfer, dispose of, return, or
otherwise render the telephone unavailable pending further court
order" merely is designed to preserve the status quo. Because
continued retention of the telephone by Rankin & Sultan means
that the device is being "secreted" within the meaning of G. L.
c. 276, § 1, the limited exception to the prohibition on the
issuance of a search warrant for documentary evidence in the
possession of a lawyer is applicable.13 A search warrant may
issue for the seizure of the telephone.14
13 We do not suggest, in any way, that Rankin & Sultan intentionally sought to conceal the telephone from law enforcement officials or acted unprofessionally in retaining possession of the telephone pending further court order.

Outcome:

We remand this matter to the single
justice for entry of a judgment allowing the Commonwealth's
petition for relief under G. L. c. 211, § 3, vacating the order
of the Superior Court that denied the Commonwealth's application
for an anticipatory search warrant, and remanding the matter to
the Superior Court for such other proceedings as are consistent
with this opinion.

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Comments:

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