Commonwealth v. Phifer

• Decision Date: 05 December 2012
• Docket Number: SJC-11242
• Parties: COMMONWEALTH v. Demetrius A. PHIFER.
• Court: United States State Supreme Judicial Court of Massachusetts

COMMONWEALTH
v.
Demetrius A. PHIFER.

SJC-11242

Supreme Judicial Court of Massachusetts

Suffolk. September 6, 2012
December 5, 2012

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Controlled Substances. Practice, Criminal, Motion to suppress. Telephone. Cellular Telephone. Search and Seizure, Search incident to lawful arrest.

COMPLAINT received and sworn to in the East Boston Division of the Boston Municipal Court Department on July 12, 2011.

A pretrial motion to suppress evidence was heard by Robert Ronquillo, Jr., J.

An application for leave to file an interlocutory appeal was allowed by Cordy, J. in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him.

Patrick J. Murphy for the defendant.

Zachary Hillman, Assistant District Attorney, for the Commonwealth.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

BOTSFORD, J.

The defendant, Demetrius A. Phifer, was charged in a two-count complaint with distribution of a class B substance and a drug violation near a school or park, in violation of G.L. c. 94C, §§ 32 (a) and 32J, respectively. He moved to suppress evidence obtained from a warrantless search of his cellular telephone, which had been seized from him after his arrest and at the time of booking, arguing that the telephone was searched without probable cause or his consent, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276. ¹ A judge in the Boston Municipal Court denied the motion after an evidentiary hearing. A single justice allowed the defendant's application for leave to file an interlocutory appeal pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and ordered the appeal to proceed in this court.

We decide only that on the particular facts of this case, where the defendant agrees his arrest was lawful and does not appear to challenge the seizure of his cellular telephone incident to that arrest, and where the officer performed only a limited search of the cellular telephone's recent call history for evidence directly relating to the crime for which the defendant was arrested, the defendant's motion to suppress properly was denied. In reaching this decision, we leave 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.

1. Background. We recite the facts as found by the motion judge, supplemented by certain facts presented in the testimony of officers whom the judge implicitly found credible. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).

At approximately 5:46 P.M. on July 11, 2011, Officer Peter Fontanez and Detective John A. McCarthy, two officers in the drug control unit of the Boston police department, were conducting a drug investigation in the Orient Heights neighborhood of the East Boston section of Boston. The officers saw the defendant standing at a street corner, and Officer Fontanez noticed that the defendant was talking on his cellular telephone and apparently waiting for or looking for someone. Both officers recognized the defendant and knew he had two outstanding warrants relating to drug charges. After a couple of minutes, Officer Fontanez observed the defendant enter a vehicle at the corner of Meridian and Falcon Streets; the vehicle was driven by a woman, and Dennis Claiborne, whom Officer Fontanez also recognized and knew to be a drug user, was a passenger in the front seat. While the car drove around the block, Officer Fontanez observed the defendant and Claiborne conduct what appeared to be an exchange and saw the defendant "stuff[ ] something" into his right pants pocket. The driver then dropped off the defendant close to where she had picked him up. Based on the officers' training and prior experience, they believed a drug transaction had occurred. Officer Fontanez then approached the defendant and placed him under arrest on the outstanding warrants. Detective McCarthy approached the vehicle and recovered cocaine from Claiborne, who provided Detective McCarthy with his cellular telephone number.

Following the defendant's arrest and transport to the police station, Officer Fontanez booked the defendant and seized $364 that the defendant had with him as well as his cellular telephone. After booking, Detective McCarthy conducted a few "simple manipulations" of the cellular telephone, which he believed to be a "flip phone," to "check" the list of incoming and outgoing calls. Based on his experience, Detective McCarthy knew cellular telephones were often used in the drug business. He discovered that the recent call log displayed several received calls from the number associated with Claiborne's cellular telephone.

In his memorandum of decision, the motion judge concluded that the search of the defendant's cellular telephone was a lawful search incident to arrest. The judge wrote that no appellate decision in Massachusetts has addressed the question whether an officer can conduct a warrantless search of a suspect's cellular telephone after his arrest, but noted that several Federal District Courts and circuit courts of the United States court of appeals have held that it is consistent with the Fourth Amendment for police generally to search cellular telephones incident to arrest. The judge determined that because the defendant's arrest was lawful, the detective had the right to perform a search incident to that arrest, and that because the cellular telephone was lawfully seized during the search, he had the right to search its contents.

2. Discussion. The defendant claims that warrantless search of his cellular telephone at the time of his booking violated both the Fourth Amendment to the United States Constitution ² and art. 14 of the Massachusetts Declaration of Rights. ³ "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 133 S.Ct. 433 (2012), citing Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

The United States Supreme Court has stated that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). See Commonwealth v. Bostock, 450 Mass. at 623-624, quoting Commonwealth v. Cast, 407 Mass. 891, 901 (1990). "[A] search incident to a lawful arrest" is one of these "well settled" exceptions. United States v. Robinson, 414 U.S. 218, 224, 233 (1973). Weeks v. United States, 232 U.S. 383, 392 (1914). "It is the fact of the lawful arrest which establishes the authority to search, and ... in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." United States v. Robinson, supra at 235.

The search-incident-to-arrest exception "has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained." ⁴ United States v. Edwards, 415 U.S. 800, 802-803 (1974). See United States v. Robinson, 414 U.S. at 230-234; Chimel v. California, 395 U.S. 752, 762-763 (1969). This court has similarly explained: "The purpose, long established, of a search incident to an arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape. A search incident to arrest, similar to the search of a...