Search Incident, the Cell Phone and the Call List

As Wikipedia notes, and as I explained in earlier posts, search incident to arrest is an exception to the 4th Amendment’s default requirement that officers obtain a search warrant before they search a place or thing.  This post examines a recent decision of the Massachusetts Supreme Court in which it addressed whether the exception applied to the search of a particular cell phone. 

The case is Commonwealth v. Phifer, 463 Mass. 790, --- N.E.2d ----, 2012 WL 6013907 (Massachusetts Supreme Judicial Court 2012), and this is how it arose:

At approximately 5:46 P.M. on July 11, 2011, Officer Peter Fontanez and Detective John A. McCarthy, two officers in the drug control unit of the Boston police department, were conducting a drug investigation in the Orient Heights neighborhood of the East Boston section of Boston. The officers saw [Demetrius A. Phifer] standing at a street corner, and Fontanez noticed that [Phifer] was talking on his cellular telephone and apparently waiting for or looking for someone.

Both officers recognized [Phifer] and knew he had two outstanding warrants relating to drug charges. After a couple of minutes, Fontanez observed [Phifer] enter a vehicle at the corner of Meridian and Falcon Streets; the vehicle was driven by a woman, and Dennis Claiborne, whom Fontanez also recognized and knew to be a drug user, was a passenger in the front seat. While the car drove around the block, Fontanez observed [Phifer] and Claiborne conduct what appeared to be an exchange and saw [Phifer] `stuff[] something’ into his right pants pocket. The driver then dropped off [Phifer] close to where she had picked him up.

Based on the officers' training and prior experience, they believed a drug transaction had occurred. Fontanez then approached [Phifer] and placed him under arrest on the outstanding warrants. McCarthy approached the vehicle and recovered cocaine from Claiborne, who provided McCarthy with his cellular telephone number.

Following [Phifer’s] arrest and transport to the police station, Fontanez booked [him] and seized $364 that [Phifer] had with him as well as his cellular telephone. After booking, McCarthy conducted a few `simple manipulations’ of the cellular telephone, which he believed to be a `flip phone,’ to `check’ the list of incoming and outgoing calls. Based on his experience, McCarthy knew cellular telephones were often used in the drug business. He discovered the recent call log displayed several received calls from the number associated with Claiborne's cellular telephone.

Commonwealth v. Phifer, supra.

After he was “charged in a two-count complaint with distribution of a class B substance and a drug violation near a school or park, in violation of Massachusetts General Laws 94C §§ 32(a) and 32J”, Phifer moved to suppress “evidence obtained from a warrantless search of his cellular telephone”.  Commonwealth v. Phifer, supra. He argued that “the telephone was searched without probable cause or his consent,” in violation of the” 4th Amendment. Commonwealth v. Phifer, supra.  The trial court judge denied the motion and a Justice of the Massachusetts Supreme Court granted Phifer’s “application for leave to file an interlocutory appeal pursuant to Massachusetts Rules of Criminal Procedure Rule 15(a)(2)”, which meant the court would hear the issue prior to Phifer’s going to trial.  Commonwealth v. Phifer, supra.

The trial judge denied Phifer’s motion on this basis:  “[B]ecause [Phifer’s] arrest was lawful, the detective had the right to perform a search incident to that arrest, and that because the cellular telephone was lawfully seized during the search, he had the right to search its contents.”  Commonwealth v. Phifer, supra.  The Supreme Judicial Court began its analysis of Phifer’s challenge to the judge’s ruling by explaining that

The U.S. Supreme Court has stated that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment -- subject only to a few specifically established and well-delineated exceptions.’ Katz v. U.S., 389 U.S. 347 (1967). `[A] search incident to a lawful arrest’ is one of these `well settled’ exceptions. U.S. v. Robinson, 414 U.S. 218 (1973). `It is the fact of the lawful arrest which establishes the authority to search, and . . . a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a ‘reasonable’ search under that Amendment.’ U.S. v. Robinson, supra.

The search-incident-to-arrest exception `has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.’  U.S. v. Edwards, 415 U.S. 800 (1974). This court has similarly explained: “The purpose . . . of a search incident to an arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon. . . . A search incident to arrest . . . is limited . . . to the body of the person arrested and the area and items within his or her immediate possession and control at the time.’ Commonwealth v. Santiago, 410 Mass. 737, 575 N.E.2d 350 (Massachusetts Supreme Judicial Court 1991).

Commonwealth v. Phifer, supra.

The opinion says Phifer did not

challenge these general principles, but argues that cellular telephones are different from other types of items a person might be carrying on his person at the time of arrest on account of the telephone's capacity to store vast quantities of private information. And because cellular telephones are inherently different, [Phifer] claims, they must be treated differently under the 4th Amendment. . . .

Commonwealth v. Phifer, supra.

The Massachusetts Supreme Court noted that

[n]either this court nor the U.S. Supreme Court has addressed whether the contents of cellular telephones may be searched in whole or in part incident to a lawful arrest.  We decline [Phifer’s] invitation to venture very far into this thicket because there is no need to do so in order to decide this case. Whatever may be said of a cellular telephone search in other contexts, the facts here make clear that McCarthy's limited search of the recent call list on [Phifer’s] cellular telephone was permissible under the 4^th Amendment. . . .

Commonwealth v. Phifer, supra.

The court then explained that in Commonwealth v. Madera, 402 Mass. 156, 521 N.E.2d 738 (1988), it upheld the search of a

gym bag carried by the defendant at the time of his arrest as a search incident to arrest that was permissible under the 4th Amendment. . . . In so holding, we . . . explained:

`The police are entitled to a bright line rule that permits them . . . to search a bag carried by a person whom they lawfully arrest on probable cause . . . where there is also probable cause to believe the bag contains evidence of the crime for which the arrest was made. . . .’  Commonwealth v. Madera, supra.

This case falls squarely within the scope of Madera. The evidence at issue here consists of the contents of the recent call list on the defendant's cellular telephone. [Phifer] does not appear to dispute that the cellular telephone itself -- the physical object -- was seized properly during a permissible search incident to his lawful arrest. 

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

Commonwealth v. Phifer, supra.  The court pointed out, in a footnote, that “[i]t is significant that the search performed was a simple examination of the recent call list, and that no further intrusion into the telephone's contents occurred.”  Commonwealth v. Phifer, supra. 

It followed up on that point in the body of its opinion, explaining that

[w]e do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device. Determination of the reasonableness of a search `requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ Bell v. Wolfish,441 U.S. 520 (1979)

As other courts have noted, . . . today's cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms. They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights.

Although an individual's reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest. . . . However, we do not need to consider these questions in the present case.

Commonwealth v. Phifer, supra.  I cannot help but wonder why the court took the case if it was not going to address this issue.

One of the justices may have had similar concerns, because as he noted in a concurring opinion,  he “worr[ied] that misunderstandings may arise from the court's apparent reliance on the bright-line rule announced in Commonwealth v. Madera, 402 Mass. 156, 521 N.E.2d 738 (1988).”  Commonwealth v. Phifer, supra (Justice Gants, concurring). 

First, I believe we have yet to decide whether this `bright-line rule’ is simply a safe harbor, or a constitutional requirement. . . . At a minimum, Madera declares that, where the police have both probable cause to arrest and probable cause to believe that a container carried by the arrestee will yield evidence of the crime for which the arrest is made, the police need not fear that a search incident to arrest of that container will be suppressed. 

I know of no case where we have considered the admissibility of evidence found in a container searched incident to arrest when there was probable cause to arrest . . . but there was not probable cause that the container would yield evidence of the crime of arrest. . . .

Second, for the reasons set forth in the court's opinion, the `bright-line rule’ in Madera does not provide a safe harbor to conduct a search incident to arrest of text messages or electronic mail messages (e-mail) that may be found in a `smart’ cellular telephone (smartphone) found on the arrestee's person. 

The search in this case was permissible because it was limited to a search of the telephone numbers recently called from that telephone, a search that is not particularly invasive of privacy. See Smith v. Maryland, 442 U.S. 735 (1979) (individual has no reasonable expectation of privacy in numbers dialed on his telephone).

We have wisely 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 the text messages, e-mails, or other data storage areas of the telephone where an individual maintains a reasonable expectation of privacy. See U.S. v. Flores–Lopez, 670 F.3d 803 (U.S. Court of Appeals for the 7th Circuit 2012) (invasive cellular telephone searches may require greater police justification).

Commonwealth v. Phifer, supra (Justice Gants, concurring).