Warrant Required for Police to Search Cellphone

The case was Commonwealth v. Dyette, decided in 2015.  After an alleged foot chase, the defendant was arrested for possession of a gun that was found in a public park garbage can.  At the time of the arrest, the defendant claimed that he was not out of breath because he had been running from other officers, but rather because he had been arguing with his girlfriend on his cellphone.

The defendant was booked at the police station, and given his statutory phone call, which the police allowed him to make from his cellphone.  Then, due to concerns that future incoming phone calls to the defendant’s cellphone might push the defendant’s recent calls out of the call log, the police looked at the defendant’s cellphone call log and determined that he had not been on the phone with his girlfriend, and that his girlfriend was not the person whom he had called from the police station.  This was done without a search warrant because the booking officer was concerned that obtaining a search warrant would take too long.

Defense counsel filed a motion to suppress the evidence of the defendant’s call history, on the grounds that the warrantless search of the cellphone without a search warrant was unreasonable (the 4th Amendment to the United States Constitution says, among other things, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”).  The Assistant District Attorney argued that the warrantless search was justified by the “search incident to arrest” exception to the warrant requirement, or alternatively by the “exigent circumstances/destruction of evidence” exception.  The judge denied the defendant’s motion to suppress.

By the time the case made its way to the Massachusetts Appeals Court, the United States Supreme Court had issued a decision right on point, in Riley v. California.  Referring to Riley, the Massachusetts Appeals Court recognized that the digital contents of cell phones “place vast quantities of personal information” in the hands of the police, and that the search of a cell phone “bears little resemblance to the type of brief physical search” that had previously been found reasonable as a search incident to arrest.

The Appeals Court next held that the warrantless cellphone search could not be justified to prevent destruction of evidence, e.g., encryption or “remote wiping,” because “remote wiping, a form of ‘destruction unique to digital data, . . . can be fully prevented’ by, among other things, turning the telephone off or removing its battery.  Encryption may be foiled by placing the telephone in a ‘Faraday bag,’ a ‘cheap, lightweight, and easy to use’ aluminum foil bag.”

I think this decision makes sense, since cellphones now contain an absolutely immense amount of information about their owner.  While it is doubtful that the Framers could have envisioned such a thing as a cellphone/handheld computer, it seems quite likely that they would have thought that the King’s agents should have to obtain a search warrant before searching one.

Attorney Kevin D. Quinlan

Uxbridge, Massachusetts



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