Supreme Judicial Court, December 5, 2012

Commonwealth v. Phifer

When seized pursuant to a lawful search incident to arrest, a limited search of a cellular telephone’s recent call history for evidence directly relating to the crime for which the defendant was arrested is permissible under the Fourth Amendment and art. 14.

On July 11, 2011, Boston police officers observed the defendant involved in what appeared to be a drug transaction.  They placed the defendant under arrest for outstanding warrants, transported him to the police station, and seized money and a cellular telephone from him.  After booking, one officer checked the listing of incoming and outgoing calls on that phone and discovered the recent call logs displayed several received calls from a phone number that they knew to be associated to the buyer in the drug transaction.

The defendant moved to suppress the warrantless search of his cellular telephone at booking, arguing it violated the Fourth Amendment of the Constitution and art. 14 of the Massachusetts Declaration of Rights. The motion judge denied this motion after an evidentiary hearing.  A single justice allowed the defendant’s application for leave to file an interlocutory appeal, pursuant to Mass. R. Crim. P. 15(a)(2) and ordered the appeal to proceed in the Supreme Judicial Court. 

The Court acknowledged that “[n]either the SJC nor the Supreme Court has addressed whether the contents of cellular telephones may be searched in whole or in part incident to a lawful arrest.”  The SJC held that this case falls squarely within the scope of Commonwealth v. Madera, 402 Mass. 156 (1988), in which the Court upheld the search of a gym bag carried by the defendant at the time of his arrest as a search incident to his arrest.  In the instant case, Phifer did not contest that the cellular phone was lawfully seized incident to arrest and the officers had probable cause to believe the telephone’s recent call list would contain evidence of the crime for which he was arrested.  Therefore, the limited search of the defendant’s cellular telephone’s recent call list was a permissible search incident to the defendant’s lawful arrest. 

The Court did not suggest that the “assessment would necessarily be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.”  Further, it left “open for another day questions concerning whether, when a cellular telephone is validly seized incident to arrest, it may always, or at least generally, be searched without a warrant, and if so, the permissible extent of such a search.” 

Justice Gants wrote a concurring opinion to warn against interpreting Madera as providing a safe harbor to conduct a search incident to arrest of a party’s text messages or electronic mail messages that may be found in some cellular telephones.

Commonwealth v. Berry

In a case decided on similar facts, the SJC found that a search of the recent call list of a cellular telephone, seized incident to arrest, was permissible.   Citing to federal and state precedent, the Court held that “such a search of a person and items found on him may take place not only contemporaneously with the arrest, but also at a later point at the police station.”