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Court OK’s police searches of cellphone call lists

The state’s highest court ruled today that police in Massachusetts do not necessarily need a search warrant to look at the call list of a person’s cellphone when searching personal property following an arrest.

But in two rulings involving the arrest of suspected drug dealers by Boston police, a unanimous Supreme Judicial Court said it would decide at another time whether people had constitutional rights to privacy for other cellphone contents, such as texts and e-mails.

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“Today’s cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms,’’ Justice Margot Botsford wrote for the court.

Botsford wrote that the court was leaving “open for another day questions concerning whether, when a cellular telephone is validly seized incident to arrest, it may always, or at least generally, be searched without a warrant, and, if so, the permissible extent of such a search.”

It was the first time the court had addressed the issue of the privacy of cellphone contents. The issue is being scrutinized by other courts across the country.

The court ruled that police had the right to examine the call list of Demetrius A. Phifer’s cellphone when they arrested him in East Boston on July 11, 2011, after they allegedly saw him get into a car with a known drug user and make what seemed to be a drug deal.

The SJC said that police pulled over the drug user’s car, got his cellphone number, and checked it against the cellphone they had seized from Phifer after his arrest. Police found the drug user’s number on Phifer’s call list, the court said.

Boston Municipal Court Judge Robert Ronquillo Jr. ruled that police acted within their legal authority because police have long been allowed to hunt for evidence of a crime from the person and their belongings when they are booking someone at the police station.

The SJC said today that Ronquillo was correct.

“The limited search of the recent call list on the defendant’s cellular telephone was permissible under both the Fourth Amendment and [Article 14]’’ of the state’s Declaration of Rights, Botsford wrote.

“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 ... the search of the call list in this case was a valid search incident to arrest,’’ Botsford wrote.

Phifer’s attorney, Patrick J. Murphy of Boston, said the SJC is exposing citizens to potential abuse of their rights at the hands of the police who can still fully explore someone’s cellphone after they show they obtain a search warrant from the courts.

“The court is allowing a limited intrusion, but no one is around to watch the police,’’ Murphy said. “There are no protections whatsoever. That’s why we have a constitution…I think they made the wrong decision. We don’t want to leave the scope of a warrantless search to police.’'

Murphy said Phifer is currently being held on $10,000 cash bail and is determined to challenge all of the evidence against him at a trial. He fully expects he will be exonerated,’’ at a trial, Murphy said.

In a separate case decided under the same legal principle, the SJC ruled that police did not have to examine a cellphone the moment they placed a person under arrest.

The SJC said Boston Municipal Court Judge Rosalind Miller was wrong when she threw out cellphone evidence against Christopher Y. Berry because Boston police did not check his cellphone immediately after they arrested him in 2009 for allegedly dealing drugs in Dorchester.

The SJC said the cellphone was found on Berry, who is in custody awaiting trial.

“The warrantless search of the cellular telephone here was not rendered invalid because it occurred sometime after the defendant’s arrest and at the police station rather than contemporaneously with his arrest,’’ Botsford wrote.

While giving police the green light to conduct limited searches of call lists on cellphones without warrants, the court also warned that the authority given to police today is not unlimited.

“We 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,’’ Botsford wrote.

In a concurring opinion, Justice Ralph Gants applauded the court’s decisions, but said he worried “misunderstandings may arise’’ from the legal precedents SJC relied upon in reaching its conclusions.

Suffolk District Attorney Daniel F. Conley, whose office is prosecuting both Phifer and Berry, said in a statement that the court has properly given law enforcement the chance to quickly obtain evidence sometimes needed to solve a crime.

“Cell phones often contain evidence that can solve or even prevent violent crime, but only if investigators have rapid access to them,’’ Conley said in the statement. “While there remains much more that needs to be done to ensure that Massachusetts law keeps pace with evolving technology, we are gratified by these decisions.”

Cheryl Fiandaca, spokeswoman for Boston Police Commissioner Edward Davis, said the department is studying the ruling and will update training of officers after discussing the legal issues with Conley and Attorney General Martha Coakley’s office.

Questions about how much privacy people have in their cellphones are being debated across by jurists and lawmakers across the country, The New York Times reported Monday.

John R. Ellement can be reached at ellement@globe.com.
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