The Supreme Judicial Court ruled today that the call history on a simple flip phone is no different than any other evidence police might find on a person under arrest and that they can look at it without first obtaining a search warrant.
The state's highest court, however, said it was withholding judgment on the matter of more complex smartphones.
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.
In today's case, Demetrius Phipher, arrested on a drug trafficking charge in East Boston's Orient Heights section last year, was seeking to have the contents of his phone's call history - which linked him to another drug suspect - dismissed as evidence because the arresting officers called it up without first getting a warrant.
The court said the officers had the right to look under a principal that lets them search a person or his immediate surroundings for evidence directly linked to the crime for which he's being charged - which has been previously allowed to permit searches of such things as pocketbooks and clothing at the time of arrest.
The defendant 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 [an earlier case], 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: Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and [the other suspect\ took place; the police recognized [the other suspect] as a drug user and recovered cocaine from [him]; and Detective 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.
In a separate ruling today, the court upheld a similar call-history search of a phone in the police station, after a suspect had been arrested in Dorchester.
As in that case, the police here conducted a very limited search of the cellular telephone, pressing one button to view the recent call list, reading the most recent telephone number displayed, and calling it. And also like Phifer, the police had reasonable grounds to believe that the recent call list would reveal evidence related to the drug distribution crime for which the defendant was arrested, because, as the motion judge found, the experienced police officers involved knew that cellular telephones often are used to arrange for the purchase and sale of drugs.
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