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    Court lets police search phones without warrants

    The state’s highest court, in its first decision on cellphone privacy for criminal suspects, ruled Wednesday that police in Massachusetts do not need a search warrant to examine the cellphone of someone they have arrested to see who has been in recent phone contact.

    The Supreme Judicial Court’s ruling was limited in scope, giving police access only to the cellphone call log; it did not address constitutional rights to privacy for other cellphone content, such as texts and e-mails. The court will leave that broader issue “open for another day,” wrote Justice Margot Botsford.

    “Whatever may be said of a cellular telephone search in other contexts, the facts here make clear that [a detective’s] limited search of the recent call list on the defendant’s cellular telephone was permissible” ­under the law, Botsford wrote.


    Despite the narrow scope, prosecutors praised the ruling as one that will make their jobs easier. But defense lawyers ­expressed concerns about an erosion of suspects’ rights.

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    The case involved a suspected drug deal in East Boston. The court ruled that police had the right to examine the call list of Demetrius A. Phifer’s cellphone when they arrested him 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 his belongings when they are booking someone at the police station.

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

    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 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 being held on $10,000 cash bail and is determined to challenge all the evidence against him at a trial.

    In a separate case issued Wednesday 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 police did not check his cellphone immediately after they arrested him in 2009 for allegedly dealing drugs in Dorchester. “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 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.

    Michael O’Keefe, top prosecutor for the Cape and Islands and president of the Massachusetts District Attorneys Association, praised the rulings. He said they were narrowly tailored and appropriate, “particularly under the circumstances of an imminent or just recently concluded drug deal, in which there is generally probable cause to assume” that the sale was arranged via cellphone.

    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.

    “Cellphones often contain evidence that can solve or even prevent violent crime, but only if investigators have rapid ­access to them,’’ Conley said. “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.”

    John R. Ellement can be reached at ellement@
    . Travis Andersen can be reached at tandersen@
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