Wassem M. Amin
On December 5, 2012, the Supreme Judicial Court, in two cases with almost identical fact patterns, upheld the warrantless search of a defendant’s cell phone as a search incident to an arrest. Although the cases certainly were a disappointing setback for privacy rights advocates, it is critical to note what the SJC did not rule on. An in-depth reading of both opinions reveals that the Justices carefully limited their holding to the specific facts at issue. The result is that police may in fact still need a warrant for many cell phone searches that fall outside the scope of these holdings.
The twin cases are Commonwealth v. Phifer, Slip-Op SJC-11242 (December 5, 2012), and Commonwealth v. Berry, Slip-Op SJC-11056 (December 5, 2012).
The Defendants in Phifer and Berry were lawfully arrested after Boston Police Detectives observed them engaging in a drug sale. After the arrest, officers seized the cell phones that were in the defendants’ possession. Subsequent to the seizure, the officers scrolled through the list of the incoming and outgoing calls on the cell phones. In both instances, the police reasonably believed that the recent call list would reveal evidence related to the drug distributions, justifying the “search”.
The SJC upheld both searches as a “search incident to an arrest (SITA).” A SITA is an exception to the warrant requirement for searches which is justified by the need to search for weapons, evidence of a crime, or instruments of escape–only when a person is taken into official custody and lawfully detained.
The SJC, however, expressly articulated a very limited scope for its holdings. The act of searching the recent call lists was upheld because “…police conducted a very limited search of the cellular telephone, pressing one button to view the recent call list…[and] the police had reasonable grounds to believe that the recent call list would reveal evidence related to the drug distribution crime for which the defendant was arrested….”
Aware that modern-day “smartphones” are capable of storing vast amounts of personal data that extend far beyond incoming and outgoing calls, the SJC noted, repeatedly throughout both cases, that this same outcome may not “necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that [a defendant] is carrying at the time of arrest.” Although the Justices declined to address the constitutionality of, for example, a search of a defendant’s emails and text messages, they made it clear that their holding did not apply to the “type of intrusion into a more complex telephone or other information storage device.”
Despite what was initially reported by most news outlets, the SJC’s rule is very limited in scope. It is not a carte blanche for law enforcement. It applies only to a brief search of the call list on a lawfully seized cell phone stemming from an arrest. Justice Gants, in a separate concurrence succinctly stated:
“[The SJC] has not yet ruled whether a more intrusive search of a smartphone, or any other device capable of storing highly personal information, may be conducted as a search incident to arrest, even where the police may have probable cause to believe that evidence of the crime of arrest may be found in text messages, e-mails, or other data storage area of the telephone….”
Therefore, the rule would certainly not apply to an extensive search of a smart phone or another more complex data storage device, such as a tablet. As the law continues to play catch up with technology, we are likely to see the SJC address these other issues in the near future.