Facts: The alleged victim of a robbery, a
student attending the same high school as the juvenile, reported that on
October 10, 2008, he was walking down the street with a few people after
getting off the public bus he had taken after school. One of his companions, whom the alleged
victim knew only by an initial, produced a knife and stole the victim’s
cellular telephone and “iPod.” The
police suspected the juvenile of the robbery because a backpack containing an
item with the juvenile’s name on it was found at the scene. To confirm the suspicion, the investigating
detective asked a police officer assigned to the juvenile’s public high school
to retrieve a photograph of the juvenile.
At the time the detective made the request, the police had no search
warrant or subpoena for the photograph and had not obtained or sought the
consent of the juvenile’s parents.
Someone from the school provided the Boston police, through the police
officer assigned to the school, with a student identification card that
contained the juvenile’s name, photograph, and birth date. The juvenile first
moved to dismiss the complaint for loss of exculpatory evidence because the
Commonwealth had lost the student identification card from which the enlarged
photograph of the juvenile was derived.
At a hearing, the judge denied the motion. However, he expressed concern at that
hearing about the method by which the student identification photograph had
been obtained. A second hearing on
whether the identification should be suppressed because of how the photograph
was obtained was held on March 24, 2010.
The motion judge allowed the juvenile’s motion to suppress the
identification based on his assumption that the student identification card was
required for school attendance, the judge ruled that the juvenile had a
reasonable expectation that the school would not disclose the student
identification card to others for noneducational purposes, pursuant to this
court’s decision in Commonwealth v. Buccella, 434 Mass. 473. The judge also determined that the juvenile
has a reasonable expectation of privacy because the photograph was part of the
juvenile’s student record that is required to be kept confidential by
regulations promulgated by the Department of Elementary and Secondary
Education. The judge then reasoned that
to hand over the juvenile’s photograph, a warrant was required.
Issue: Whether the motion judge correctly ruled
that the juvenile had a reasonable expectation of privacy in his student
identification card photograph that if violated, required suppression of
evidence of the identification made by the alleged victim.
Holding: “In reviewing a motion to suppress, we
accept the judge’s subsidiary findings of fact unless they are clearly erroneous
but independently review the judge’s ultimate findings and conclusions of
law.” However, applying this standard to
this present case is not possible. In
ruling as he did, the judge made certain assumptions about the photograph that
may well be correct, but evidence supporting the assumptions is not in the
record before us. The judge stated that
the juvenile was required to take a picture for a school identification card in
order to attend the high school and the student identification photograph was
maintained by the school for “intended educations purposes” but there was no
testimony or other evidence presented on these critical issues of fact. Without evidence regarding how the student
identification card and photographs are created and how and by whom they are
used within and outside of the school, we are not in a position to review the
judge’s conclusion that the juvenile had a reasonable expectation of privacy in
the photograph and the legal consequences that follow from such a
conclusion. We conclude, therefore, that
the decision allowing the juvenile’s motion to suppress must be vacated. The judge’s allowance of the motion to
suppress is vacated and the case is remanded to the Juvenile Court for further
proceedings. (JB)
