Just in Time for Ski Season – SJC’s Latest Slippery Slope…
Last week, in a matter of first impression in the Commonwealth of Massachusetts, the Supreme Judicial Court (SJC) issued rulings in two cases, Commonwealth v. Berry, No. SJC-11056 and Commonwealth v. Phifer, No. SJC-11242, pertaining to the permissibility of police viewing certain contents of a lawfully arrested person’s cell phone. In short, the Justices ruled it was permissible for police to perform a ("limited") search of the arrestee’s cell phone’s recent call list(s) incident to a lawful arrest, without first obtaining a warrant.
Both Berry and Phifer involved the arrest of suspected drug dealers based upon sufficient probable cause, and the police’s subsequent warrantless search of their respective phones post-arrest under the longstanding premise that police are entitled to search for evidence of a crime on the person of an arrestee, including any belongings on their person. Both Berry and Phifer are still awaiting trial in their respective matters, but their cases reached the Commonwealth’s High Court via interlocutory appeal of their respective motions to suppress evidence obtained as result of the police search of their respective cell phones.
Today’s cell phones are basically miniature computers, capable of storing vast amounts of data and personal information. To its credit, the Court took this into account when limiting its ruling and narrowly tailoring the scope of the permissible search, going so far as to state that while the facts and circumstances of these particular cases gave rise to the permissible conduct by the police, other such circumstances might not. Also, the Court left for another day the question of its rulings applicability to more complex cell phones or built-in storage devices, which suggests a stronger expectation of privacy. While I appreciate such limiting language, it creates a slippery slope I and other criminal defense attorneys must remain wary of and should continue to challenge at each opportunity.
In conducting his search, one of the officers relied "on his training and experience" (an oft cited basis for police searches) that cell phones were often used in the coordination of drug transactions. Whether true or not, probable cause should never be based on such broad generalities or blanket assumptions, as otherwise, under that logic, everyone arrested for drug offense(s) can be presumed to have participated in past drug deals/transactions and by extension most law-abiding Americans could be suspected of drug dealing simply because they possess cell phones. In my opinion, the 4th Amendment demands much more than that, particularly in terms of policing the police and providing safeguards against "unwarranted" invasions into the privacy of all citizens; not to mention the possible chilling effect such searches may have upon the "free association" of persons guaranteed under the 1st Amendment.
The reality is that such searches cannot be justified on the basis of exigency, a limited intrusion, or constructs describing them as "incident to arrest." The records are maintained by the cellular service providers and are not likely to be endangered by spoliation. Police can already obtain the records at issue through appropriate process to the cellular service providers or by obtaining a search warrant for the cell phone itself. Either means would be far less intrusive than warrantless search and seizure of any nature no matter how narrowly tailored. Even if the police are only searching a recent call list, should they "happen" to see any other information stored on the cell phone, that bell cannot be unrung, and taking the time to first obtain a search warrant ensures the privacy rights of the arrestee without unduly burdening law enforcement.
While I disagree with the SJC’s ruling, my simple advice - password protect your cell phone, decline any requests from the police seeking your consent to search it, and insist on speaking to an experienced criminal defense attorney like me before saying anything to law enforcement, in the event you are arrested.