Commonwealth v. James

231 N.E.3d 328

COMMONWEALTH

v.Joseph JAMES.

SJC-13395

Supreme Judicial Court of Massachusetts, Norfolk.

Argued September 13, 2023.

Decided April 23, 2024.

Forfeiture Proceeding. Search and Seizure, Computer, Return. Constitutional Law, Taking of property, Burden of proof. Due Process of Law, Taking of property, Burden of proof. Practice, Civil, Presumptions and burden of proof. Waiver. Search and Seizure, Warrant. Statute, Construction. Words, "Public interest."

Indictments found and returned in the Superior Court Department on June 6, 2017, and February 20, 2018.

A motion for return of property was heard by Robert C. Cosgrove, J., and a second motion for return of property, filed on April 21, 2022, was considered by him.

The Supreme Judicial Court granted an application for direct appellate review.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Michael McGee, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

GEORGES, J.

This case raises a question of statutory interpretation: whether a judge may issue a forfeiture decree for property seized pursuant to a search warrant under G. L. c. 276, § 3, based solely on the judge’s determination forfeiture would be in the "public interest," or whether the judge must instead follow the procedural requirements set forth in G. L. c. 276, §§ 4 to 8, before any forfeiture decree may issue. For the reasons that follow, we conclude the latter interpretation should apply. Accordingly, we vacate the Superior Court orders insofar as they denied the return of certain property to the defendant, and we remand the case for further proceedings consistent with this opinion.

1. Background. a. Facts.¹ Over the course of several months in 2016, the de- fendant, a thirty-eight year old professional photographer, sexually exploited a fifteen year old girl. The defendant initially contacted the victim through a private message on a social networking website after the victim "liked" one of his posts. The defendant then began communicating with the victim through telephone calls, text messages, and cell phone and computer applications that support "video chat." Through these communications, the defendant solicited and received nude and partially nude images of the victim. The defendant eventually met the victim in person and started sexually abusing her.

After learning of their daughter’s exploitation, the victim’s parents notified the Weymouth police department, which, alongside State police, began investigating the defendant. The victim’s parents provided investigators with the victim’s two cell phones. Upon examining the cell phones, the State police were able to confirm that sexual abuse occurred and that the defendant and the victim were in frequent communication. The police also found dozens of photographs of the defendant and the victim together, including photographs of the two kissing.

Based on the evidence obtained from the victim’s cell phones, the police obtained a warrant for the defendant’s arrest. While attempting to locate the defendant, a State police trooper learned of an address where the defendant had lived. The trooper spoke with a tenant living at that address who reported the defendant had left behind some personal belongings, including a computer tower² and an external hard drive. The police then obtained and executed a search warrant for the defendant’s property at this location. They seized a computer battery with a power cord, a separate bag of additional power cords, a computer mouse and speakers, a cell phone, the external hard drive, and the computer tower, which contained five internal hard drives.

After the internal hard drives were extracted from the computer tower, their contents, along with the contents of the external hard drive, were reviewed by a forensic examiner. The examiner determined that one of the internal hard drives, a Kingston HyperX internal drive (Kingston drive), was the "main drive" in the computer tower and proceeded to "image" the Kingston drive.³ The examiner only "previewed" the data stored on the other internal hard drives, with the exception of one internal hard drive that could not be examined due to damage.

On the Kingston drive, the examiner uncovered nude images of the victim in the form of "selfies," which appeared to have been taken by the victim and sent to the defendant. The Kingston drive also contained images of the victim and the defendant together, as well as communications between them showing the defendant was aware the victim was only fifteen years old. Additionally, the Kingston drive contained "hundreds of images of girls, in various stages of undress," but also "typical ‘photographer’ pictures of families, kids, and/or couples."⁴

The examiner did not uncover images of the victim or communications between her and the defendant on any of the other hard drives. However, the examiner found images of nude and partially nude unidentified women on some of these hard drives. Specifically, in a folder titled "Photography" on the external hard drive, the examiner found "‘boudoir’ style" photographs that featured women clothed or "scantily dressed," and who "systematically undressed" over the course of the photography sessions. As the women did so, the focus of the photographs changed from the women generally, to specific nude body parts, particularly their breasts and vaginas.

On one of the internal hard drives, in a folder titled "Photo concepts, models, artists," the examiner discovered "one hundred forty-two (142) image files -- mostly of naked women." On another internal hard drive, the examiner found adult pornography. On the last internal hard drive that the examiner was able to access (Toshiba drive), the examiner mostly found software applications, movie files, and music files.

A State police trooper with experience and training related to child pornography investigations examined the images of the nude and partially nude unidentified female subjects on the hard drives. Although the trooper believed some of the images "may constitute child pornography if the subjects [were] under [eighteen] years old," the trooper was "not able to make a determination of the age of the females in the images." The trooper also noted "[i]t would be nearly impossible to make a determination on the age of the females in the images without identification."

The trooper further suggested, based on his training and experience, the computer tower "should be looked at as one interconnected system," comprised of all five internal hard drives. While the trooper asserted there could be "backups of the drives" -- otherwise referred to as "volume shadow copies" -- within any of the five internal hard drives, he stated "it is unknown" whether any such backups actually existed.⁵ The trooper further stated the Kingston drive contained ".Ink files," which "could show … interconnectivity between the drives in the tower."⁶

b. Procedural history. The defendant was indicted by a Norfolk County grand jury on eight counts of aggravated rape of a child, G. L. c. 265, § 23A, and three counts of enticement of a minor, G. L. c. 265, § 26C (b). He was then separately indicted on one count of possession of child pornography, G. L. c. 272, § 29C, based on the nude images of the victim discovered on the Kingston drive. No charges were brought relating to the images of the nude and partially nude unidentified female subjects found on the hard drives. The defendant eventually pleaded guilty to all charges, except for the eight counts of aggravated rape of a child, where he instead pleaded guilty to the lesser included offense of statutory rape under G. L. c. 265, § 23.

A Superior Court judge sentenced the defendant to a term of from seven years to seven years and one day in State prison for seven of the counts of statutory rape, and a term of from five years to five years and one day for the one count of possession of child pornography, all to be served concurrently. For one of the counts of statutory rape and for the three counts of enticement of a minor, the judge sentenced the defendant to three years of probation, from and after his prison sentence.

After being sentenced, the defendant filed a motion for return of the property the Commonwealth seized from his former residence, including the computer tower, the external hard drive, four of the five internal hard drives (excluding the Kingston drive), the video camera, the computer battery, the power cords, the computer mouse, the speakers, and the cell phone. The defendant also filed a motion to "stay data erasure or destruction of the [Kingston drive]." In the latter motion, the defendant asserted "[m]ost, if not all of [his] important personal, business, or sentimental files are saved in the desktop, documents and downloads folders" contained within the Kingston drive. He requested the Commonwealth preserve the Kingston drive and send him "a list of those files in order to determine whether or not a subsequent motion to preserve or copy that data is appropriate."

In response, the Commonwealth filed a "motion for leave to destroy and dispose of certain computer equipment, digital media and contraband seized from [the] defendant via search warrant." Aside from the Toshiba drive -- which only contained applications, movies, and music -- the Commonwealth sought to destroy the hard drives and cell phone pursuant to G. L. c. 276, § 3, asserting a "public interest" in destroying the devices. However, the Commonwealth agreed to return the computer tower (with the hard drives removed), along with the Toshiba drive, the video camera, the computer battery, the power cords, the computer mouse, and the speakers.

After holding a nonevidentiary hearing, the motion judge granted the defendant’s motion for return of property with respect to the uncontested property, but denied his request for the remaining property, including three of the five...