JURIST - Paper Chase: Massachusetts top court rules police can search cell phones without warrants

[JURIST] The Massachusetts Supreme Judicial Court [official website] ruled [opinion] Wednesday that police do not need a warrant to search a suspect's cell phone once the suspect been lawfully arrested. The defendant was arrested after police observed him participating in an apparent drug transaction, and, upon being booked the police seized his cell phone. From the defendant's phone police found numerous calls had been placed to the other party to the drug deal. The trial court ruled that the search of the phone was covered by the search incident to arrest exception to the Fourth Amendment warrant requirement, which permits "searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained." Phifer appealed claiming cell phones are "inherently different" from other items a person may be carrying at the time of an arrest because of the "telephone's capacity to store vast quantities of private information." Writing for a unanimous court, Justice Botsford upheld the search:

Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and Claiborne took place; the police recognized Claiborne as a drug user and recovered cocaine from Claiborne; and Detective McCarthy testified that based on his experience, telephones are commonly used in the trug trade. Thus, the search of the call list in this case was a valid search incident to arrest.

The court handed down a similar ruling the same day in the case of Commonwealth v. Berry [opinion], which also involved a search incident to arrest of a cellular phone. In both cases the court ruled only on the facts of those particular cases and declined to rule on whether a cellphone seized incident to arrest may always be searched without a warrant.

Issues surrounding communications privacy and police use of technology have become controversial over the past several years in light of technological advancements. Last month, the Senate Judiciary Committee approved a bill [JURIST report] that would require police officers to obtain a warrant before searching e-mails and other electronic content. Earlier this year, the US Supreme Court reversed [SCOTUSblog backgrounder; JURIST report] a drug trafficking conviction after police obtained evidence to convict the defendant by attaching a GPS tracking device to his car. In 2007, the Supreme Court ruled [JURIST report] that warrantless searches of e-mails stored by an Internet Service Provider violates the Fourth Amendment because email users maintain a reasonable expectation of privacy.