Monday, December 31, 2012

“Trojan Virus” Defense Fails

Several years ago, I did a couple of posts on the Trojan horse defense, i.e., cases in which defendants argued, more or less successfully, that they were not responsible for a crime because they were framed. 

The argument, as I explain in the prior posts, was that they were framed because someone installed a Trojan horse program on their computer and that the program, not the defendant, downloaded child pornography and/or committed some other crime(s).

I recently ran across a recent case in which the defendant made a similar argument, and so decided to do a post about this new invocation of the Trojan horse defense.  The case is U.S. v. Brown, 2012 WL 5948085 (U.S. District Court for the Eastern District of Michigan 2012), and it involves child pornography charges against Matthew Brown.

All I know about the charges, and the facts underlying them, is that on March 10, 2011 Brown was charged with (i) possessing child pornography in violation of 18 U.S. Code § 2252A(a)(5)(B) (Count One) and (ii) receiving child pornography in violation of 18 U.S. Code § 2252A(a)(2) (Count Two).  U.S. v. Brown, supra.  The case went to trial and the jury convicted him on both counts. U.S. v. Brown, supra. 

Brown then moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. U.S. v. Brown, supra.  It argued that “the Government failed to present sufficient evidence to support the conclusion that Brown is guilty of knowing possession and receipt of child pornography.”  U.S. v. Brown, supra.  The district court judge began her analysis of his argument by noting that in ruling on such a motion the

court must consider, `whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ U.S. v. Caseer, 399 F.3d 828 (U.S.Court of Appeals for the 6th Circuit 2005). . . The Court is bound to make all reasonable inferences and credibility choices in support of the jury's verdict. . . . 

The question is merely one of legal sufficiency; the court does not substitute its judgment for that of the jury, independently weigh the evidence, or judge the credibility of trial witnesses. U.S. v. Ramirez, 635 F.3d 249 (U.S. Court of Appeals for the 6th Circuit 2011)  There is a strong presumption in favor of sustaining a jury conviction. . . .

U.S. v. Brown, supra. 

The judge began with the possession charge, noting that the government had to prove, beyond a reasonable doubt, that Brown “knowingly possessed child pornography that was transported using interstate or foreign commerce.” U.S. v. Brown, supra.  Brown argued that the prosecution failed to prove he knowingly possessed the digital images found in the family's shared desktop because there was evidence that other adults had

access to the computer, specifically, [his] mother and wife, and the 25 year old babysitter. . . . Brown argues that the Government's evidence regarding undercover LimeWire sessions cannot supply the evidence that the images were stored in the family computer.

Brown notes that the Government's expert witness admitted IP addresses can be hijacked or spoofed and computers can be remotely accessed as a result of malware, making it appear as though a computer is functioning in a way that it is not actually behaving. . . . 

Brown argues that absent any forensic analysis demonstrating that the child pornography images were saved in the allocated and accessible portion of the computer, the Government failed to prove [he] possessed the . . . images.

U.S. v. Brown, supra. 

And FBI Agent Draudelt testified that he examined the computer seized from Brown’s home and found “LimeWire logs, link files and images of child pornography”. U.S. v. Brown, supra. He testified that “someone had installed the LimeWire program in order to download child pornography, which requires an affirmative action by the user” and that the LimeWire logs “correlated with the images Couch downloaded in his session with the computer on December 3, 2009.” U.S. v. Brown, supra.

The government presented additional, similar evidence.  U.S. v. Brown, supra. It also relied on FBI Agent Bollinger’s testimony that when the agents searched Brown’s home, he “admitted he installed LimeWire on the desktop computer and had used it to download and view child pornographic images.”  U.S. v. Brown, supra.

The judge found Brown had not “carried his heavy burden under Rule 29.”  U.S. v. Brown, supra. She found the evidence was sufficient to support his conviction on the possessing child pornography count.  U.S. v. Brown, supra.  “Brown's argument that there was insufficient evidence presented at trial is not supported, in light of the testimonies of Agents Couch, Kraudelt, and Bollinger.”  U.S. v. Brown, supra. 

She therefore held that the evidence on the possessing child pornography count was sufficient to support the jury’s verdict, and so denied Brown’s motion for a judgment of acquittal on this charge.  U.S. v. Brown, supra. 

The judge then took up Brown’s argument that he was entitled to a judgment of acquittal on the receiving child pornography count.  U.S. v. Brown, supra.  According to the opinion, Brown argued that the prosecution failed to prove that he

knowingly received two files of an identical video through the LimeWire network. Brown asserts there was no evidence showing that the videos were ever opened, viewed, or accessed. Brown argues that the videos were saved on the computer within one to two minutes after the installation of LimeWire.

Brown asserts that a Trojan downloaded virus was also downloaded on the computer via LimeWire at approximately the same time, which was deposited into the same folder, making it possible that the virus resulted in the propagation of the videos and not by a human user of the computer.

Brown states that the same video was downloaded twice -- one into a shared file and the other into an incomplete file, even though the video was fully downloaded and not incomplete. Brown claims it was more probable that a virus caused the downloading of these two identical videos. Brown asserts that his statement to Bollinger does not overcome this lack of proof.

At most, Brown claims he only admitted to viewing 100 photos of child pornography, not videos of child pornography. Brown argues that the jury's verdict on the receipt of child pornography charge should be set aside.

U.S. v. Brown, supra (emphasis in the original).

The prosecution, argued, in response, that the evidence

extracted by [FBI] Agent Kraudelt and Brown's expert, Vassel, supports the guilty verdict that Brown knowingly received the two videos of child pornography. The LimeWire logs confirmed that a user took affirmative steps to download and save the files to the computer.

The Government argues that Kraudelt's testimony that finding a virus in a music file on November 10, 2009, four minutes after the installation of LimeWire did not hinder the functionality of the peer-to-peer program, disputes Brown's claim that a virus downloaded the videos, instead of a human user.

Kraudelt testified that the virus was `inactive’, but the file in which the virus was embedded suggests the file was inadvertently acquired while a user was attempting to download child pornography. 

The Government argues that the testimonies of Kraudelt and Couch, and Brown's own expert, that there exists no virus which would cause LimeWire to download child pornography, absent the direction of a user, support the jury's verdict.

As to Brown's claim that the videos were never opened, the Government argues Brown completely ignored his own expert's testimony that the computer's most recently used files showed that a user at the computer accessed and played one of the saved videos of child pornography, not long before the execution of the search warrant.

U.S. v. Brown, supra. 

The judge ultimately found that, based on the evidence presented at trial

by the Government and the defense, there is sufficient evidence to support the jury's finding that Brown knowingly received child pornography. Without weighing the witnesses' credibility, which this Court cannot do in a Rule 29 motion, the jury's verdict supports the finding that Brown downloaded the two videos of child pornography.

The jury was free to consider the testimonies of the Agents and Brown's own expert as to whether a virus downloaded the child pornography rather than a human user. The jury returned with a verdict of guilty on the receipt of child pornography charge.

U.S. v. Brown, supra. 

She therefore denied Brown’s motion for a judgment of acquittal on the receiving child pornography count.  U.S. v. Brown, supra. 

Saturday, December 29, 2012

Telephones, Computers and Sending Indecent Text Messages

As this news story explains, in May of 2011 Marlek E. Holmes was “arrested . . . and charged with sending indecent text messages to a minor” in violation of New York law. 

He was later convicted “upon his guilty plea of, inter alia, disseminating indecent material to minors in the first degree” in violation of New York Penal Law § 235.22People v. Holmes,  ___ N.Y.S.2d ___, 2012 WL 6634795 (New York Supreme Court Appellate Division 2012). 

New York Penal Law § 235.22 provides as follows:

A person is guilty of disseminating indecent material to minors in the first degree when:

1. knowing the character and content of the communication which, in whole or in part, depicts or describes, either in words or images actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor; and

2. by means of such communication he importunes, invites or induces a minor to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit.

Disseminating indecent material to minors in the first degree is a class D felony.

After pleading guilty, Holmes appealed, arguing that the

indictment is jurisdictionally defective because it accuses him of acts, i.e., sending sexually explicit text messages to a 16–year–old girl, that do not constitute a crime.

According to [Holmes], the act of sending telephone text messages does not involve the use of `any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another’ as required by [New York] Penal Law § 235.22(1).

People v. Holmes, supra.

I am not familiar with the practice of challenging an indictment as jurisdictionally defective, but as Holmes’ argument suggests, it apparently involves claiming that a charging instrument – an indictment, an information ora complaint – is substantively defective because it does not adequately charge the crime at issue.  

In another, older case, the New York Court of Appeals explained the relationship between guilty pleas and arguing that a charging instrument is jurisdictionally defective:

A guilty plea does not . . . extinguish every claim on appeal. The limited issues surviving a guilty plea in the main relate either to jurisdictional matters (such as an insufficient accusatory instrument) or to rights of a constitutional dimension that go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant's competency to stand trial). . . .

People v. Hansen, 95 N.Y.2d 227, 738 N.E.2d 773 (New York Court of Appeals 2000).  

The Hansen court also noted that

[a]n indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all. . . .
People v. Hansen, supra.

The Supreme Court Appellate Division found, first, that Holmens had not waived his right to raise this issue by pleading guilty because "it concerns a nonwaivable jurisdictional defect.People v. Holmes, supra. But while the court found  Holmes had not forfeited his right to raise the issue of whether the charging instrument was inadequate, it did not buy his argument. 

The Holmes court noted, first, that

`[t]he common-law policy that a penal provision should be strictly construed has been expressly abolished by the Legislature.’ (People v. Teicher, 52 N.Y.2d 638 (New York Court of Appeals 1980). 

Instead, `penal statutes are to be interpreted “according to the fair import of their terms to promote justice and effect the objects of the law” . . . and are not to be given hyper technical or strained interpretations.’ (People v. Teicher, supra, quoting New York Penal Law § 5.00). . . .

People v. Holmes, supra.

The court then turned to Holmes’ argument, explaining that the

term computer is broadly defined in the Penal Law as `a device or group of devices which, by manipulation of electronic, magnetic, optical or electrochemical impulses, pursuant to a computer program, can automatically perform arithmetic, logical, storage or retrieval operations with or on computer data, and includes any connected or directly related device, equipment or facility which enables such computer to store, retrieve or communicate to or from a person, another computer or another device the results of computer operations, computer programs or computer data’ (New York Penal Law § 156.00[1]).

`Computer data’ is defined as `a representation of information, knowledge, facts, concepts or instructions which are being processed, or have been processed in a computer and may be in any form, including magnetic storage media, punch cards, or stored internally in the memory of the computer’ (New York Penal Law § 156.00[3]).

People v. Holmes, supra.

As to whether a telephone qualifies as a “computer” under New York Penal Law § 235.22(1), the court noted that while the

issue whether a telephone is included in the statutory definition of `computer’ has not been addressed by an appellate court in this state, in People v. Johnson, 148 Misc.2d 103, 560 N.Y.S.2d 238 (Criminal Court – City of New York 1990), the court concluded that it is.

The Johnson court reasoned that `[t]he instrumentality at issue here is not merely a telephone . . ., but rather a telephone inextricably linked to a sophisticated computerized communication system. . . . 

This telephone system, of which the telephone itself is the essential first component, does comport with the statutory definition of “computer” that is, the system is a “group of devices which, by manipulation of electronic . . . impulses . . . can automatically perform . . . logical, storage or retrieval operations with or on computer data”. . . . 

The system also meets the definitional inclusion of “any connected or directly related device, equipment or facility which enables such computer to . . . communicate to or from a person”’.

People v. Holmes, supra (quoting People v. Johnson, supra).

As Wikipedia explains, “[i]n common law legal systems, a precedent . . . is a principle or rule established in a previous legal case that is either binding on or persuasive for a court . . . when deciding subsequent cases with similar issues or facts.” As Wikipedia’s entry on precedent also explains, a court’s decision is binding precedent, i.e., precedent that courts must follow) when it is issued by a higher or the highest court in a judicial system (like the U.S. Supreme Court).  

So, lower courts in a judicial system, like the New York state court system, are required to follow the precedential decisions of higher courts in that system.  But, as Wikipedia also explains, a lower court’s decision can be persuasive precedent, i.e., something a judge can rely on in making a decision, for other courts if they believe that the decision “applied the correct legal principle and reasoning.” 

The Supreme Court Appellate Division seems to have found that the Johnson court applied “the correct legal principle and reasoning” because it held that           

[i]n light of the foregoing and the fact that the Court of Appeals has approved of constructions of [New York] Penal Law § 235.22 that `criminalize the use of any "sexually explicit communications" intended to lure children into sexual contact’ (People v. Kozlow, 8 N.Y.3d 554, 870 N.E.2d 118 (Court of Appeals of New York 2007) (quoting People v. Foley, 94 N.Y.2d 668, 731 N.E.2d 123 (New York Court of Appeals 2000)), we conclude that sending telephone text messages falls within the conduct proscribed by section 235.22.

Thus, the indictment is not jurisdictionally defective.

People v. Holmes, supra.

Wednesday, December 26, 2012

Stalking, Hacking And Sentencing

As Wikipedia notes, stalking “is a term commonly used to refer to unwanted or obsessive attention by an individual or group toward another person.”  It is also a crime, a relatively new crime: As Wikipedia also notes, between 1990 and 1993, “every state in the United States” made stalking a crime. Indiana was one of those states.

And over the last decade and a half, a new type of stalking – cyber-stalking – emerged and became a serious problem.  This post examines a recent decision from the Indiana Court of Appeals in which it reviewed a challenge to a cyber-stalking conviction and the sentence imposed on the defendant:  McClellan v. State, 2012 WL 6082749 (Indiana Court of Appeals 2012).

After a jury convicted him of “two counts of class C felony stalking” in violation of Indiana Code § 35-45-10-5, Michael D. McClellan appealed.  McClellan v. State, supra.  Under the statute, stalking is a Class D felony unless the case involved one of a number of circumstances, two of which were at issue in this case:

(1) A person. . . stalks a victim; and . . . makes an explicit or an implicit threat with the intent to place the victim in reasonable fear of. . . [serious bodily injury or death].

(2) A protective order to prevent domestic or family violence, a no contact order, or other judicial order under any of the following statutes has been issued by the court to protect the same victim or victims from the person and the person has been given actual notice of the order. . . .

McClellan v. State, supra (quoting Indiana Code § 35-45-10-5(b)).

A lot went on that led to the charges against McClellan, but I’ll summarize as best I can.  It began in July, 2005, when Dawn Hillyer (then, Krohn) ended a “dating relationship” with him. McClellan v. State, supra. The next summer they “resumed” a friendship, which Hillyer ended  in August, 2006 “after a falling out with McClellan.”  McClellan v. State, supra. They had “no further contact” until October 12, 2006. McClellan v. State, supra. 

That evening, as Hillyer and her new boyfriend drove back from Chicago, McClellan called her twenty-six times “and sent texts” saying “she needed to call him right away.” McClellan v. State, supra.  She eventually answered a call and refused to let him come to her house that night. McClellan v. State, supra.  He came “anyway and presented her with an alleged background check” on her and said “she had some explaining to do.” McClellan v. State, supra.  When she “denied  the background check had anything to do with her,” McClellan said “he loved her and that was the real reason for his visit.”  McClellan v. State, supra.  Hillyer rejected him. McClellan v. State, supra. 

“From that evening on, McClellan contacted Hillyer multiple times daily by phone, text, email, and/or in person.”  McClellan v. State, supra.  He left “long, rambling voicemail messages and emails about how they belonged together and how much he loved her” and came to her home and workplace “on multiple occasions”.  McClellan v. State, supra. He left gifts, cards, and flowers despite her pleas for him to leave her alone. McClellan v. State, supra.  He confronted her then-boyfriend at her home and only left when Hillyer called the police. McClellan v. State, supra. 

On November 1, McClellan came to Hillyer's work and home multiple times before going to Florida. McClellan v. State, supra.  He returned on November 4 with champagne and glasses, saying he was “moving to Florida”, but did not.  McClellan v. State, supra.  On November 8, he came to her work multiple times, “demanding to see her.” McClellan v. State, supra. She eventually “took him outside,” demanding “that he stop harassing her.”  McClellan v. State, supra.  He kept calling, so Hillyer filed a police report. McClellan v. State, supra.  McClellan came to her house and one of her children called the police while “she pleaded with him to leave.” McClellan v. State, supra.  Officers arrived and told him to leave; the next day, Hillyer got a protective order against him.  McClellan v. State, supra. 

McClellan continued to repeat the pattern of calling and showing up at her place of work. McClellan v. State, supra.  After he came to her work on November 22, she spent the night with a friend and sent her children to her ex-husband; she filed another police report the next day.  McClellan v. State, supra.  A few days later, McClellan confronted her, saying “`he was gonna “kill the bitch”, meaning [Hillyer]’”.  He also told her she “`was gonna be sorry’” if she did not drop the police reports.  McClellan v. State, supra.  Instead, she filed another police report. McClellan v. State, supra. 

This pattern repeated itself throughout December, when she began dating Christopher Hillyer, whom she eventually married.  McClellan v. State, supra.  One evening when they were out together, McClellan confronted Hillyer and when Christopher “stepped in,” asked if he “wanted to `take this outside’”. McClellan v. State, supra.  A police officer escorted McClellan off the premises, after which “Hillyer's cell phone started `getting blasted with text messages’”. McClellan v. State, supra. 

Hillyer changed her phone number and email address, but McClellan hacked into her new email account and changed the password.”  McClellan v. State, supra. Hillyer had to change accounts because she could not log into her “new” email account.  McClellan v. State, supra. “As a result of the hacking," McClellan "obtained personal emails and photos, as well as her address list of friends, family, and clients.”  McClellan v. State, supra.  He emailed “everyone on her contact list (including business contacts) using a number of anonymous email addresses.”  McClellan v. State, supra.   

The emails “became increasingly vulgar and threatening and often had photos, including a topless picture of Hillyer.”  McClellan v. State, supra.   In February, McClellan began making “phone calls with computer-generated messages to Hillyer's home, cell, and work phones, as well as to her friends and family.”  McClellan v. State, supra.  She also saw him “constantly near her home, office, and `everywhere’”. McClellan v. State, supra. 

McClellan was charged with “three counts of stalking”:  Hillyer was the victim in Counts I and II; her husband was the victim in Count III.  McClellan v. State, supra.  The jury convicted McClellan on Counts I and II but acquitted him on Count III.  McClellan v. State, supra.  The judge sentenced him “to consecutive sentences of five years on each count, for an aggregate executed sentence of ten years.” McClellan v. State, supra.  McClellan appealed, claiming the sentence was “inappropriate in light of his character and the nature of the offense.”  McClellan v. State, supra. 

In ruling on his appeal, the Court of Appeals noted that it has “the constitutional authority to revise a sentence if, after careful consideration of the trial court's decision, we conclude the sentence is inappropriate in light of the nature of the offense and character of the offender.”  McClellan v. State, supra.  As to the nature of the offenses, McClellan argued that the

`circumstances [in this case], a pattern of extensive and extended harassment, are already inherent in the language of the level of the offense charged.’ Appellant's Brief at 19. He then asserts: `the very aspects that elevate these offenses to C felonies should not also be employed to impose enhanced, executed sentences at the greater C felony level.’ Appellant's Brief at 19.

McClellan v. State, supra (quoting McClellan’s brief on appeal).

In ruling on the argument, the Court of Appeals noted, first, that with regard to the nature of the

offenses, McClellan contends that the `circumstances [in this case], a pattern of extensive and extended harassment, are already inherent in the language of the level of the offense charged.’ Appellant's Brief at 19. He then asserts: `the very aspects that elevate these offenses to C felonies should not also be employed to impose enhanced, executed sentences at the greater C felony level.’ Appellant's Brief at 19.

McClellan v. State, supra. 

The court then noted that the charge in

Count I was elevated to a class C felony based upon McClellan making a threat, while stalking Hillyer, with the intent to place her in reasonable fear of serious bodily injury or death. Count II was elevated based upon the existence of a protective order . . . of which McClellan had actual knowledge at the time he stalked her. McClellan fails to explain how the trial court relied upon these additional elements to impose enhanced sentences.

McClellan v. State, supra. 

The Court of Appeals also did not “agree with McClellan's apparent assertion that his crimes otherwise constituted run-of-the-mill stalking.”  McClellan v. State, supra.  It found that “that the nature of McClellan's offenses clearly merited a lengthy executed sentence.”  McClellan v. State, supra.  The court explained that the trial judge based her

decision to order consecutive sentences on `the separate nature of the offenses and the fact that each involves a separate time frame and course of conduct.’ . . . While the time periods listed in the charges overlapped to some extent, . . . the State established at trial that McClellan engaged in a two-stage attack on Hillyer.

The first stage (Count I) was focused on the direct harassment of Hillyer through emails, phone calls, text messages, and personal encounters at work, home, and out in public. This stage included the threat made in a public establishment on November 26, 2007, and continued until the issuance of the protective order on December 22, 2007.

The second stage (Count II) occurred after the protective order was issued and involved a ramped-up, high-tech assault on Hillyer, in which McClellan's harassment of Hillyer quickly spread to her friends and business contacts.

McClellan v. State, supra. 

The court also addressed McClellan’s character, which he brought up by submitting “`testimonials from family and acquaintances who knew firsthand of positive aspects in Mr. McClellan's life’”.  McClellan v. State, supra.  It noted that while his convictions for five “`lower misdemeanor offenses’” were not significant aggravating factors in his sentencing, he had a 1998 conviction “for invasion of privacy, which involved the violation of a protective order issued in favor of his ex-wife.” McClellan v. State, supra. 

But what the court found “most telling” as to McClellan’s character was his

long history of harassing women. . . . [T]here is substantial evidence in the record of at least two other women whom he has terrorized over the years. The first began in 1998 with the harassment of his ex-wife, who remains in `constant fear’ of him even to this day. . . . That harassment lasted about a year and involved following his victim and making repeated phone calls and threats, much like stage one of his attack in [this] case.

The record also reveals that McClellan turned his sights to . . . Crystal Teixeria sometime in 2008 or 2009 through 2011. Teixeria testified that he went to `desperate attempts’ to contact her, through phone calls, texts, and death threats. . . . According to Teixeria, McClellan `opened accounts in my name like Facebook, he pretended to be me. Stole my identity.’ . . . 

Detective [Lorrie] Bandor, [who investigated the case], testified at the sentencing hearing that McClellan even took aim at her and her family during the investigation, using `very personal’ information `he truly should not have had.’

McClellan v. State, supra. 

The court therefore found that “McClellan's ten-year executed sentence is not inappropriate in light of the nature of his offenses and his character.”  McClellan v. State, supra.  So it affirmed his conviction and sentence.  McClellan v. State, supra. 

If you would like to read a little more about the case plus see a photo of McClellan, check out the news story you can find here.

Monday, December 24, 2012

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 4th 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).