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Leonardo Angiulo: Cell Phone Searches Now Allowed Without a Warrant

Monday, December 10, 2012


Leonardo Angiulo, GoLocalWorcester Legal Expert

The thing about the law is that it moves pretty slowly. Take the ubiquitous nature of cell phones as an example. For years nearly everyone over the age of 12 has carried a cell phone everywhere they go. But, until this past week, there was no precedent from Massachusetts on whether police can conduct warrantless searches of cell phone contents at arrest. As of December 5, 2012 the answer is a resounding “maybe.”   

The Massachusetts Supreme Judicial Court, or as we in the business say “the SJC,” released a pair of decisions last week dealing with this subject. In Commonwealth v. Phifer and Commonwealth v. Barry, the SJC was faced with two situations in which police arrested people for drug offenses and went through the defendant's cell phones after arrest. In both cases, the logic validating the searches focused on the limited nature of the search evidenced by the officers only opening the phone, pressing one button to review the recent call list, and either calling the number or collecting the recent telephone numbers as evidence.  

The central legal principle is the idea that when arrested, a full search of a person and the things they carry is traditionally reasonable.  This is known as a search-incident-to-arrest and, as stated in Commonwealth v. Phifer, allows police to search for weapons, instrumentalities of escape and recover evidence on the person of the crime for which they are being arrested. In Phifer the court went on to compare the search of this cellphone to that of a gym bag carried by an arrestee because in both cases the police had probable cause to believe there was evidence of the instant crime contained in the items.  

The court took considerable pains in both Phifer and Barry to help the reader know that their decisions were specific to these facts and these types of simple cell phones. In Phifer the device was specifically described as a “flip phone” type device rather than the more complex phones that the court acknowledged to be “essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms.”  In both cases, however, the SJC justified the arresting officers manipulation of the cell phones to gather information because the defendants were allegedly involved in a drug transaction and officers testified that they knew drug dealers often use cell phones to coordinate drug sales.

While the court says these cases are limited to these facts and this type of technology, there are interesting questions raised for the future.  Take the charge of Homicide by Motor Vehicle as an example.  If a person is arrested on that charge, and the arresting officer testifies that he knows fatal accidents are often caused by people texting while driving, does that justify the officer pressing a button or two and reviewing a persons text history during the booking process?  In another hypothetical, say arrest and search warrants are issued on the charge of drug distribution.  Do officers serving those warrants at a person's home now have the ability to access a person's tablet, and emails contained therein, if the device is not password protected?     
Interestingly, the justices seemed to focus on the minimal amount of button pushing needed to find the phone numbers in the cell phones.  In this age of ergonomic design and smart technology, nearly all information is accessible from devices with a mere swipe and double tap. They did not, however, comment at all on how privacy rights of information within complex devices like smart phones and tablets will be balanced against the ability of law enforcement to conduct searches incident to arrest.  

What may be occurring here is that, like many rights afforded by the state and federal constitutions, individuals may be solely responsible for safeguarding the privacy of their information. Just like we must invoke our right to remain silent and to counsel during custodial interrogation by police officers, it may be on you to set security parameters for your electronic devices.  

As an observation, it is nearly 2013 and we just got a ruling on how police can handle “flip phones.”  We may be another decade from the answers to the questions presented in this column. What is without question, however, is that before the court makes their decision you can keep some of these issues in mind. You don't have to be a criminal to be charged with a crime and you aren't necessarily being paranoid by wanting to keep your electronically stored information safe.  


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