D.A. reports Appeals Court allows cellphone evidence in home invasion case

From Cape and Islands District Attorney’s Office: Cape & Islands District Attorney Michael O’Keefe announced today that on July 17, 2019, the Massachusetts Appeals Court issued a published opinion reversing the decision of the Barnstable Superior Court allowing a motion to suppress in the case of Commonwealth v. Alexa Fencher. Ms. Fencher was indicted on January 27, 2017 by a Barnstable County Grand Jury on charges of home invasion, armed burglary and assault, assault with intent to murder, assault with intent to maim, mayhem, two counts of aggravated assault and battery by means of a dangerous weapon, six counts of conspiracy, and violation of an abuse prevention order.

The indictments allege that the defendant, Alexa Fencher, and two co-conspirators broke into the home of her uncle, and beat him about the head and face with a crowbar, causing serious injuries. Ms. Fencher, during an interview with police, explained that she was out at bars with
friends on the evening of the assault. She told detectives she took videos while at the bars. She told police they could “definitely” see the videos. The phone was subsequently seized, and the Ms. Fencher filled out a consent to search form. Ms. Fencher’s attorney filed a motion to
suppress the cellphone, alleging that the police did not have probable cause to seize the phone. The Honorable Gary A. Nickerson, now retired, allowed the motion.

The Commonwealth appealed the judge’s allowance of the motion to suppress. The Commonwealth argued that the seizure of the cell phone was supported by probable cause and that the defendant’s consent to search her cell phone was free and voluntary. The Appeals Court, in a published opinion written by Justice Kinder, held that “because such video evidence could establish where, when, and with whom the defendant was in the hours before the home invasion, the police had ‘a substantial basis for concluding’ that video evidence stored on the defendant’s cell phone contained ‘evidence connected to the crime’ under investigation.’” The Court held that the defendant’s statements provided “the kind of particularized evidence” necessary for probable cause, and reversed the judge’s finding that the police had no probable cause to seize the phone. The Court found no circumstances that established that the defendant’s consent was not voluntary.

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