The Kickham Comment - Boston Criminal Attorney Blog
Whether you know it or not, your smartphone just got a lot smarter – for police departments and prosecutors, that is.
In an important ruling released on Wednesday of this week, the Supreme Judicial Court (SJC) ruled that police officers can conduct a limited search of an arrested person’s cell phone, to determine if recent calls were made or received on the phone, which might relate to the crime for which the suspect was arrested. This is a pretty significant ruling, because to tap a person’s phone or request phone records of someone, police must usually seek a search warrant first.
Very importantly, the justices went to some lengths to emphasize that the ruling allowed only limited searches of cell phones – specifically, only to the cell phone’s calls list – not to other areas of the phone – which, these days, store just about every piece of data imaginable about the user, including emails, texts, web searches, even GPS locations. As to those extremely important constitutional questions surrounding these other areas of a person’s cell phone, the court pointedly did not address those questions, leaving examination of those questions “open for another day” to quote the opinion’s author, Justice Margot Botsford.
The case on appeal revolved around a suspected drug deal that allegedly occurred in East Boston. A suspect named Demetrius A. Phifer was arrested by Boston Police on July 11 2011, after police allegedly saw him enter a car with someone they knew to be a drug user, and conduct what appeared to be a drug deal. Afterward, police pulled over the drug user’s car, obtained his cellphone number, and then cross-checked it against Phifer’s cellphone which they had seized when arresting him. The result? Police found the drug user’s phone number on Phifer’s calls list.
At Phifer’s trial on drug charges in Boston Municipal Court, Judge Robert Ronquillo Jr. ruled that police did not violate the defendant’s privacy interests in searching his cell phone’s call log, because police have typically been allowed to look for evidence of a crime from a suspect and his belongings when they booking the suspect at a police station. In legal terms, this type of police search is referred to as a “Search incident to arrest.” The defendant’s lawyer appealed, arguing that the officer’s actions of looking into the supect’s cell phone call list, and the SJC ruled on Wednesday that the trial judge was correct in his evidentiary ruling. According to the court, “The limited search of the recent call list on the defendant’s cellular telephone was permissible under both the Fourth Amendment and” Article 14 of the state’s Declaration of Rights. The officers here had probable cause to believe the telephone’s recent call list would contain evidence relating to the crime for which he was arrested. The search of the call list in this case was a valid search incident to arrest.” (Known among lawyers as a “Search incident to.”
Predictably, prosecutors praised the ruling. Equally predictably, defense lawyers see in this decision the prospect of suspects’ rights being dangerously eroded. As a Quincy Massachusetts criminal defense attorney, I agree that this decision, however narrowly crafted, poses the potential for abuse. The reason is this: The court’s decision allows police to make a limited intrusion into the cell phone of a person who has been arrested – in theory, just to look at the “recent calls” list only. If we could be assured that the real world would reflect the very limited searches of a person’s cell phone envisioned by the SJC, I would not necessarily object to this ruling. But here’s the pivotal question: What is to stop police from going beyond looking into someone’s calls list only? Who’s to know? In far more than just theory, police – out in the field when no one is looking – could mine all kinds of data in a person’s cell phone, and later claim they found the information through legitimate investigative measures.
Don’t think that’s beyond possibility. It’s not. While most police officers that I know are honest and hard-working, there are always “bad apples.” Envision this situation: You or someone you care about has been arrested by police as a suspect to a crime. They seize your smartphone. They start to search through it, but you’re either handcuffed in the back seat of a cruiser, or you’re somewhere else where you can’t see exactly what they’re doing with the phone. Would you trust that they wouldn’t look into other areas of the phone, aside from just the “recent calls” list? I don’t think that smartphone manufacturers currently incorporate separate lock-outs or passwords for separate areas of a phone’s data banks, and that’s about the only way that I can think of to lock away all other data aside from a call log.
This is a type of situation where theory and practice diverge. It’s a tough legal question to balance.