SJC Offers No Coverage for Cops Performing Warrantless Searches of Cell Phones

On June 25, 2014, the Supreme Court of the United States (SCOTUS), in California v. Riley, issued a ruling which essentially held that law enforcement cannot search a person's cell phone "incident to their arrest." Chief Justice John Roberts, the author of the opinion, put it in terms just about everyone can understand: "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple - get a warrant." (emphasis added).

The Massachusetts Supreme Judicial Court issued an opinion in Commonwealth v. Dyette, almost 1 year to the day after Riley was decided (364 days to be exact), essentially making clear that it will be enforcing the dictates of SCOTUS' decision in Riley, without exception. In Dyette, members of the Youth Violence Strike task force were patrolling Martin Luther King Boulevard in Roxbury on the night of the 4th of July in 2010. They observed individuals in a closed park around midnight setting off fireworks and drinking. When the partiers noticed an unmarked cruiser, 2 of the individuals fled. Law enforcement, after losing sight of 1 of the fleeing partiers, saw an individual very shortly thereafter who matched the fleer's description, talking on his cell phone. When asked why he was breathing heavily, he said he had just been having an argument on the phone with his girlfriend; he denied being in the park. Law enforcement then took his cell phone, looked at the call log, and saw that numbers were dialed which did not represent a phone number. Shortly thereafter, law enforcement found a firearm stashed away near the park and arrested the person with the cell phone. Five hours later, the booking officer also reviewed the call log; apparently while he was being booked he called his girlfriend and the number he called did not match any of the numbers dialed into the phone.

So what's the big deal? Shouldn't this be open and shut in light of Riley? The Commonwealth tried to argue that the phone could be searched under an exception to the warrant requirement-the exigent circumstances exception. Essentially, under this exception, the police can get around the warrant requirement if there is a need to prevent imminent destruction of evidence, to pursue a fleeing suspect, or to assist persons who are threatened with imminent injury. Applying this exception, the Commonwealth tried to argue that because it can take "up to a week" to get a warrant for a phone, and because further calls to the cell phone could cause prior calls to be "bumped" out of the call log, law enforcement needed to search the phone in order to prevent the destruction of evidence. The SJC flatly rejected this argument, as did SCOTUS in Riley. Law enforcement could have done a variety of things short of invading the privacy of the owner of the phone: they could have put the phone in "Faraday bag" (it's basically a light-weight bag made of tinfoil which blocks incoming signals); they could have sought an administrative warrant for the defendant's phone records (which law enforcement does ALL THE TIME); or they could have simply removed the battery from the phone.

In the end, both SCOTUS and the SJC have now gone on the record that warrantless police searches of cell phones incident to arrest are impermissible. Does that mean such searches won't happen? No, but hopefully any evidence obtained by such a search would be properly excluded. Here's the bottom line: password (and/or fingerprint) protect your phone, and if you find yourself in the situation where the police are asking for access to your phone, do NOT just give them the password — first they'll have to do what Chief Justice Roberts told them they would need to do a year ago today: "get a warrant!"

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.