How Long Can Police Hold Your Cell Phone Before Getting a Search Warrant in Massachusetts?
In Commonwealth v. Solis and Commonwealth v. Diaz, the Massachusetts Supreme Judicial Court held that delays of 109 and 123 days before police obtained warrants to search seized cell phones were not unconstitutional—but the Court rejected any rule allowing police to simply hold digital devices indefinitely.
On August 12, 2026, the Massachusetts Supreme Judicial Court decided two cases together that address an increasingly important issue under Article 14 of the Massachusetts Declaration of Rights: when does a delay between the seizure of a cell phone and the police obtaining a warrant to search it become unreasonable?
In Commonwealth v. Solis, SJC-13823, and Commonwealth v. Diaz, SJC-13835, police lawfully seized cell phones incident to the defendants' arrests but waited approximately four months before applying for warrants to search the phones' digital contents. The delays were 109 days in Solis and 123 days in Diaz. Two Superior Court judges suppressed the resulting evidence.
The SJC reversed.
The Court held that Massachusetts does not impose a fixed number of days after which a lawful cell-phone seizure becomes unconstitutional. Instead, courts must evaluate the totality of the circumstances, balancing the defendant's possessory interest in the phone against the government's justification for continuing to keep it.
The decision is important, but it should not be misunderstood as granting police unlimited time to obtain a digital search warrant. The SJC expressly warned at the end of the opinion that warrant applications involving digital devices must be treated as a priority, not an afterthought.
What Happened in Commonwealth v. Solis and Commonwealth v. Diaz?
The two cases involved separate criminal investigations, but they presented essentially the same constitutional question.
In both cases, police lawfully took possession of a smartphone incident to an arrest. Neither defendant argued that the initial seizure itself was unlawful. The question was whether the government held the devices for too long before obtaining judicial authorization to search their contents.
In Solis, police seized the defendant's phone on March 24, 2023. A child had reported that Solis used a cell phone to photograph him during an alleged sexual assault. Police did not apply for a search warrant until July 11—109 days later. The subsequent search recovered a photograph consistent with the child's description.
In Diaz, police seized a phone during the defendant's July 2019 arrest. Investigators believed that Diaz had used a cell phone in connection with alleged sexual offenses involving children. Police waited 123 days, until November 18, 2019, before obtaining a search warrant. The search resulted in the recovery of photographs that became significant evidence in the prosecution.
Both defendants moved to suppress the evidence.
Both Superior Court judges allowed the motions.
The SJC reversed both suppression orders.
Is There a Deadline for Police to Obtain a Cell Phone Search Warrant in Massachusetts?
No. Massachusetts does not have a bright-line rule establishing a specific number of days within which police must obtain a warrant after seizing a cell phone.
That is one of the most important holdings of Solis/Diaz.
The defendants relied heavily on Commonwealth v. White, a 2016 SJC case in which the Court found a 68-day delay unreasonable.
At first glance, that made the present cases appear straightforward. If 68 days was unconstitutional in White, why would 109 or 123 days be permissible?
Because, according to the SJC, the number of days is not dispositive.
The Court explained that White itself rejected a bright-line rule. A longer delay can be reasonable in one case while a considerably shorter delay can be unreasonable in another. The constitutional inquiry depends upon all of the surrounding circumstances.
That means defense lawyers should not analyze these cases by simply counting days.
The real question is why the government continued to possess the device during those days.
What Test Applies When Police Delay Obtaining a Cell Phone Search Warrant?
Under Article 14, a seizure that was lawful when it began can later become unreasonable because of its duration.
The SJC identified three principal considerations:
the defendant's possessory interest in the cell phone;
the extent of the government's intrusion on that interest; and
the strength of the government's justification for continuing to retain the phone.
The court then balances those considerations under the totality of the circumstances.
This is therefore not simply a question of police diligence.
Nor is it simply a question of how long the phone was held.
The strength of the government's original basis for seizing the phone, the importance of the phone itself as evidence, the complexity of the investigation, the defendant's demonstrated need for the device, and the reason for the delay can all matter.
Why Do Cell Phones Receive Special Constitutional Protection?
The SJC recognized that a modern smartphone is different from most other physical property police might seize.
Phones contain communications, photographs, financial information, location histories, and other information connected with nearly every aspect of a person's life.
As the Court recognized, a person's possessory interest in a smartphone may therefore be substantial and qualitatively different from the interest a person has in ordinary personal property.
That interest exists even before anyone searches the contents.
If police take someone's phone, that person loses access not merely to a piece of property, but potentially to communications, financial accounts, work information, photographs, passwords, contacts, and tools used in everyday life.
That deprivation has constitutional significance.
What Factors Affect a Defendant's Possessory Interest in a Seized Cell Phone?
The SJC gave lawyers a useful list of factors that can affect the analysis.
A court may consider whether the defendant:
asked for the phone to be returned;
demonstrated that the phone was necessary for work, family, financial, medical, or other obligations;
clearly owned the device;
was allowed to copy or retrieve personal information before the seizure;
had another phone with substantially equivalent functionality; or
made statements indicating that the device contained illegal material.
These considerations do not determine the outcome individually, but they can increase or decrease the weight given to the defendant's possessory interest.
That portion of the opinion has immediate practical significance for suppression litigation.
A defendant challenging a lengthy seizure should not merely establish how long police possessed the phone. The record should also establish why being deprived of that particular phone mattered.
Does It Matter Whether the Cell Phone Is Itself Evidence of the Crime?
Yes. This was perhaps the most important distinction between these cases and Commonwealth v. White.
In White, police primarily wanted the telephone because of information they believed might be stored inside it.
In Solis and Diaz, by contrast, the SJC concluded that the phones themselves had evidentiary significance independent of whatever a later digital search might reveal.
For example, in Solis, the alleged victim reported that Solis had used a phone to take a photograph during the charged conduct. The physical device could therefore potentially corroborate the allegation even if the digital search ultimately revealed nothing.
Similarly, in Diaz, police had evidence that a cell phone itself had been used to display sexual material to a child. The SJC concluded that the device was arguably an instrumentality of the offense, not merely a container that might hold evidence.
That gave the Commonwealth a stronger justification for keeping the devices.
But the Court refused to go as far as the Commonwealth requested.
Can Police Hold a Phone Indefinitely if the Phone Itself Is Evidence?
No.
Some federal courts have reasoned that once a lawfully seized device is itself evidence, the length of time police wait before searching it becomes essentially irrelevant. The government could retain the physical device for trial anyway, so a delay in searching the contents would supposedly impose no additional possessory harm.
The Massachusetts SJC expressly rejected that categorical rule under Article 14.
The Court emphasized the central place smartphones occupy in modern life. Even when police have a legitimate reason to retain the physical phone itself, unnecessary delay still matters.
Accordingly, the independent evidentiary value of a device can substantially strengthen the government's case for retaining it, but it “does not excuse neglect, and it does not permit extended delay in every case.”
That is an important limitation on the decision.
Does Police Workload Justify Waiting Months for a Search Warrant?
Generally, not by itself.
This part of Solis/Diaz is particularly important for defense attorneys.
In Solis, the detective explained that he had other trials and investigations, attended training, became sick, and had numerous professional responsibilities.
The SJC nevertheless said that general workload and staffing constraints do not excuse delay.
The Commonwealth must ordinarily provide warrant-specific reasons explaining why obtaining the particular warrant required additional time.
The Court was even more explicit later:
“Investigative workload alone cannot justify extended delay.”
The SJC concluded that the police in Solis had not acted with the diligence Article 14 demands.
That did not ultimately produce suppression because diligence is only one part of the balancing test.
But the language provides defendants with an important basis for challenging situations in which digital search warrants simply sit in an officer's pile of unfinished work.
What If Police Put a Cell Phone Warrant “On the Back Burner”?
That actually happened in Diaz.
The detective acknowledged that while managing approximately eighty open sexual-assault and child-abuse investigations, he placed the Diaz search-warrant application on the “back burner.”
The SJC did not approve of that.
The Court stated that putting the warrant application on the back burner “directly contravenes the requirement that warrant applications for digital devices be prioritized.”
Nevertheless, the Court concluded that other circumstances outweighed the lack of diligence.
The Diaz investigation involved multiple alleged victims, prior DCF investigations, several forensic interviews, and a lengthy twenty-seven-page affidavit that required substantial synthesis of information from multiple sources.
So although the lack of prioritization weighed against the Commonwealth, it did not require suppression.
Why Did the SJC Uphold the 109-Day Delay in Solis?
The Court emphasized the combined effect of several facts.
Police had probable cause to seize the phone. The phone allegedly had been used as an instrumentality of a serious offense. The physical device itself had evidentiary value. Solis never requested its return. And there was no evidence that the phone had particular importance to him for daily activities.
The Court acknowledged that the Commonwealth had not acted diligently, but concluded that the government's continuing interest in possessing the device nevertheless remained substantial.
On balance, the 109-day seizure was reasonable.
Why Did the SJC Uphold the 123-Day Delay in Diaz?
Much of the same reasoning applied.
Diaz did not request the return of his phone or establish a specific personal need for it.
The phone itself was potentially evidence because police reasonably believed it had been used in committing the alleged offenses. And as the investigation developed, the device acquired additional potential evidentiary significance.
The Court also found the Diaz investigation considerably more complex than Solis's investigation.
Although the 123-day delay was substantial, and although police failed to prioritize the warrant, the SJC concluded that the Commonwealth's continuing interest in the device outweighed Diaz's possessory interest under the particular circumstances.
Does Commonwealth v. Solis Create a Four-Month Rule for Cell Phone Warrants?
Absolutely not.
That may be the most important practical point about the decision.
Solis/Diaz does not hold that police automatically have 109 days, 123 days, four months, or any other set amount of time to obtain a warrant.
The SJC described its holding as narrow.
The result depended on a combination of:
probable cause supporting the original seizures
the independent evidentiary value of the phones themselves
the seriousness of the charged offenses;
the defendants' diminished possessory interests on the records presented; and
continuing case-specific reasons for retaining the devices.
And the Court concluded the opinion with an unmistakable warning:
“Article 14 requires that applications for warrants to search digital devices be treated as a priority, not as an afterthought.”
What Does This Decision Mean for Massachusetts Motions to Suppress Cell Phone Evidence?
For defense lawyers, Solis/Diaz changes the emphasis of the argument.
It is no longer enough to say:
The police held this phone longer than the 68 days found unreasonable in White.
Instead, a successful motion should develop a complete factual record concerning both sides of the constitutional balance.
The defense should investigate:
exactly when the phone was seized;
when police first had probable cause to search it;
when the warrant-writing process actually began;
what investigative work remained to be done;
whether the officer was actively working on the warrant or simply postponing it;
whether workload is the only explanation for the delay;
whether the physical phone had any genuine evidentiary value apart from its digital contents;
whether the investigation was actually complicated enough to justify the delay;
whether the defendant or counsel requested return of the phone; and
how deprivation of the device affected the defendant's work, family responsibilities, finances, communications, or daily life.
In other words, after Solis/Diaz, the factual record matters enormously.
The calendar remains important. But it is only one part of the constitutional inquiry.
Can Cell Phone Evidence Still Be Suppressed Because Police Waited Too Long?
Yes.
Nothing in Solis/Diaz eliminates that remedy.
A lawful seizure can become unreasonable because of its duration. The SJC continues to recognize Commonwealth v. White, where a 68-day delay was unconstitutional.
And Solis/Diaz repeatedly criticizes police delay, rejects workload as an adequate standalone excuse, and requires officers to prioritize applications for warrants to search digital devices.
The important question after Solis/Diaz is therefore not simply:
How many days did police wait?
It is:
Considering the defendant's interest in recovering the phone, the length and impact of the seizure, and the Commonwealth's actual reasons for continuing to possess the device, was the delay reasonable under Article 14?
That will remain a highly fact-specific suppression issue.
Massachusetts Cell Phone Search and Seizure Lawyers
Benzaken, Sheehan & Wood, LLP represents individuals charged with serious criminal offenses throughout Massachusetts, including cases involving unlawful searches and seizures, cell phone and digital evidence, search warrants, and motions to suppress. Constitutional challenges involving electronic evidence often turn on details concerning how police obtained, retained, and searched a device.
If police seized or searched your cell phone as part of a Massachusetts criminal investigation, contact Benzaken, Sheehan & Wood, LLP to speak with an experienced Massachusetts criminal defense attorney about your case.
FAQ Section
How long can Massachusetts police keep my cell phone before getting a warrant?
There is no fixed deadline. Courts examine the totality of the circumstances. Even a relatively short delay may be unreasonable in some circumstances, while a longer delay may be permissible in others.
Is four months automatically reasonable after Commonwealth v. Solis?
No. The SJC expressly rejected a bright-line rule. The 109- and 123-day delays were upheld because of the particular facts of those cases.
Can police workload justify delaying a cell phone search warrant?
Ordinary workload and staffing problems generally do not justify an extended delay by themselves. The Commonwealth should identify case-specific or warrant-specific reasons for the delay.
Does it matter if the phone itself was used to commit the alleged crime?
Yes. A phone's independent evidentiary value can substantially strengthen the government's justification for continuing to possess it, although it does not give police unlimited time to obtain a warrant.
Can delayed cell phone evidence still be suppressed in Massachusetts?
Yes. An initially lawful seizure can become unreasonable because of its duration. Whether suppression is warranted depends upon the facts of the particular case and the balancing required by Article 14.