Search of Cell Phone May Be Incident to Arrest Even When Not During Arrest – Commonwealth v. Berry

December 12, 2012 by David S. Seltzer

One ongoing issue in criminal defense law is to what extent police may search cell phones they find on defendants. The U.S. Constitution forbids unreasonable searches and seizures, but the Constitution was written well before we developed computers small enough to carry around in a pocket or purse, and only a small amount of caselaw addresses the subject. That’s unfortunate, because an illegal search can determine whether or not someone is prosecuted, particularly for crimes that stem solely from possession, such as drug possession or felon in possession of a firearm. So I was interested to read Commonwealth v. Berry, in which the Massachusetts Supreme Judicial Court reversed an order suppressing evidence from a warrantless cell phone search. The decision means prosecutors will be permitted to present evidence found on the phone.

Police were on patrol in a high-crime area of Boston when they noticed a gaunt-looking man nearby. A car pulled up and he got in; the officers followed it as it circled the block several times. When the man got out again, one officer followed him on foot, arrested him and discovered a bag of drugs he had dropped. The other officer pulled over the car, with help from a marked police cruiser, and arrested the driver, defendant Christopher Berry. Both men’s phones were seized. After they were taken to the police station, one officer picked up one of the phones, pulled up the list of recent calls, and dialed the most recently called number; the other phone rang. In trial court, both Berry and the customer moved to suppress evidence from this search, arguing that it was illegal and warrantless. The trial judge agreed, finding the search was not “incident to arrest,” making it lawful to search without a warrant, because it was distant in time and space from the arrest.

The Commonwealth appealed and the high court took up the case from the appeals court. After dismissing standing arguments from both sides, the high court ultimately reversed the partial suppression of the evidence. The phone belonging to Berry was on his person when he was arrested. Under Fourth Amendment caselaw, the court said, a warrantless search incident to arrest may include a search of the arrestee and items found on his person. In fact, the court said, a 1974 case found that a search that could have been made on the spot during the arrest may lawfully take place later, at the police station. Thus, the timing of the search did not render it invalid, the high court said. It went on to find that the scope of the search was also limited enough to make it incident to arrest. As with this year’s Commonwealth v. Phifer, the police in this case pressed one button to see a call list, reviewed it and placed one call; they had reasonable grounds to believe it would reveal evidence of a drug deal. Thus, the court said, this search under these circumstances was legal.

The court in this case took some trouble to emphasize that the result may not be the same under different facts, with a more invasive search or using a different advice. In essence, it was saying not to take this opinion as an indication that all searches of electronic devices will be upheld—and that’s good news for criminal defense attorneys in the state. Though the court found this search limited, I have read about plenty of other warrantless cell phone searches that cross the line. This may provide evidence to support criminal charges, but when it’s an illegal search, an experienced lawyer can get the evidence thrown out of court, and that can destroy or set back the entire case.

Based in downtown Miami, Seltzer Law, P.A., represents clients throughout south Florida who are facing serious criminal charges of all kinds. To learn more or tell us about your situation, call us today for a free, confidential consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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