One question that now frequently arises for Massachusetts criminal defense lawyers is:
A recent case gave an answer.
The Supreme Judicial Court of Massachusetts recently addressed the question of whether an officer is able to search a defendant's recent call list on his cell phone after a warrantless arrest in Commonwealth v. Berry. The Court held that in certain circumstances, a limited search of a defendant's cell phone is permissible.
On December 28, 2009, two Boston police officers from the drug control unit were on duty in Dorchester. The officers were in an unmarked car when they observed a man, Berry's codefendant, walking towards them. Since the officers suspected him of being a drug user, they decided to follow the man after he got into the defendant's car. Upon following the two men, the officers observed them leaning into one another during the car ride and the codefendant exiting the car within five minutes.
The officers believed they observed a drug deal, so one of the officers followed the codefendant on foot. There was a struggle between them, and the officer arrested the codefendant after seeing a small bag of heroin on the ground next to the codefendant. At the time of the arrest, the officer confiscated the codefendant's cell phone from him.
At this time, the officer in the car stopped Berry, who was speeding down a one-way street. Berry was then arrested for selling heroin to his codefendant. Berry's cell phone was also seized during the search incident to the arrest.
While at the police station the officer picked up one of the defendant's cell phones, pressed a button to reveal a list of recent calls, and called the most recent number dialed. The most recent number dialed was that of the other defendant. The officer could not remember which defendant's cell phone he had searched to make the call.
The Court held that this search was permissible because it did not violate the Fourth Amendment of the Constitution or Article 14 of the Massachusetts Declaration of Rights. This is because the search preformed on the defendant qualified as one of the exceptions to a warrantless arrest, which is search incident to an arrest. This exception includes the search of an arrestee and anything found on him. A search of an arrestee and the items found on him can be made upon arrest or at the police station.
The SJC held that the officer's search of the cell phone was permissible. The Court largely based the holding on Com. v. Phifer, 979 N.E.2d 210 (Mass. 2012), a case where there was a similar cell phone search. Like Phifer, it was a limited search and the police had reason to believe it would provide evidence for the crime that the defendant was suspected of committing.
Although the Court determined that the search was permissible, they did suggest that upon a different fact pattern or an intrusion of a more complex cell phone that the outcome might have been different. It seems that Commonwealth v. Berry draws a line with limited cell phone searches of a defendant who is searched incident to an arrest.