On Wednesday, December 5, the Supreme Judicial Court of Massachusetts ruled that police do not necessarily need a search warrant to examine the call log of an arrestee’s cell phone to see that person’s recent contacts. The case had to do with the search of a person arrested for dealing drugs. The police had seen the man get into the car with a known drug user. Once back at the station, after having already been arrested, the police went through the suspect’s call log to find that he had recently been in contact with the known drug user, supporting their belief that the drug deal had been arranged via cell phone. The Court limited the scope of its decision to a simple view of the call log based on the circumstances surrounding the arrest, and did not say that the search would be valid in other circumstances, such as a complicated cell phone that might require a more intrusive search, or the viewing of text messages. The Court made its decision based on the permitted “search incident to arrest”, where police officers have long been allowed to perform a very limited search of an arrestee’s person and readily-accessible belongings.
As a Massachusetts criminal defense attorney, I am not surprised by the ruling. While Massachusetts generally has more procedural safeguards to protect the civil liberties of its citizens than most other states, the facts surrounding this case seem to have provided strong probable cause for the police to believe that the drug user’s phone number would have been listed in the arrestee’s recent call history. And with the intrusion being very minimal, as it was just a viewing of the phone numbers rather than any substantive search of texts, emails, or other data, I would have guessed that the SJC would validate this type of search as “incident to arrest.” I am, however, concerned that police officers may take this to mean that they can view text messages or more personal information that may be contained within a suspect’s cell phone. I anticipate that this is not the last we see of a challenge to this type of search. I believe that anything beyond looking at a “call list” could, and should, be held as beyond the scope of search incident to arrest, and would therefore require a search warrant before police could obtain such personal information.
If you have been arrested for a drug offense or any other crime in Massachusetts, contact my office for your free initial consultation:
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