PAX Centurion - May / June 2013

Page 28 • PAX CENTURION • May/June 2013 617-989-BPPA (2772) Legal Thoughts: Kenneth H. Anderson, Esq. Byrne & Drechsler, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association When the bright lights for you to follow are not so bright A lthough this article is about three recent cases dealing with a police officer’s ability to view information on an arrested suspect’s cell phone, I want to begin this article by tipping my cap to all of the law enforcement and emergency medical personnel who responded to the chaos of MarathonMonday and who behaved so conscientiously and heroically during the events of the followingweek. The BostonMarathon has always been special to me, and I have junior highmemories of listening to themarathon on an a.m. transistor radio as I watched a Patriot’s Day parade as a thirteen year old kid. I later ran the Boston marathon twelve times, and when I stopped running it myself, every year I took my kids to cheer on the runners in the heat and in the pouring rain, trying to instill in them the message that this is what we are supposed to do if we are from here. Given this, I was disappointed when my wife planned a four day road trip to visit colleges that took us away for Patriot’s Day weekend. Wewere driving throughDelawarewhenmydaughter received a text message telling her that two bombs had just gone off at the marathon finish line. That night I sat glued to the television watching the news, completelyoverwhelmed as the cameras revealed almost asmanypolice officers, EMTs, andmarathon volunteers running toward the explosions as there were innocent people running away from them. I commend all of youwhowere in the area of the finish line at this harrowing time.Your responsewas a testament to the courage and heroismshown by somany people, somethingwhichmademe tobe proud tobe aBostonian. Several days later Imet with and represented some of the officers involved in the shootout inWatertown, I was again amazed by these officers’reactions. Those from the Youth Violence Strike Force and the District 14 Drug Control Unit did an amazing job that morning, alongwith everyone else who responded toWatertown or who responded elsewhere to keep our city safe. I am proud of you all, and want to offer many thanks to all of you who saw things that should never have been seen, who worked twelve hour shifts and had their lives disrupted, andwho left loved ones at home waiting nervously by the phone.You folks are the best. Shifting gears now, on a daily basis I read the decisions rendered by the Supreme Judicial Court and the Massachusetts Appeals Court, but I must say that I take extra notice of these cases when I person- ally know the officers involved in the arrests. In December of 2012, the Supreme Judicial Court released two separate cases related to the ability of police officers to look at information on an arrested suspect’s cell phone, ruling in these two cases that police can examine the list of “recent calls” in these cell phones once the phone is seized pursuant to an arrest. Unfortunately, onMay 17, 2013 the First Circuit Court ofAp- peals issued a decision that seems to contradict our state supreme court, making the future of this issue unclear. Below is a quick examination of these cases which may guide you should you confront this issue in the course of your work. In Commonwealth v. Phifer , 463 Mass. 790 (2012), Boston Police Officer Peter Fontanez and Detective John McCarthy were on patrol when they saw an individual named Demetrius Phifer, a person who was known to them to have two outstanding warrants for drug charges. Phifer was talking on a cell phone and appeared to bewaiting or looking for someone.Amotor vehicle pulled upwhichwas driven by a woman, although a male named Dennis Claiborne was the front seat passenger. Mr. Claiborne was known to the officers to be a known drug user. While this car drove around the block, the officers witnessed an appar- ent exchange in the vehicle between Phifer and Claiborne. Phifer was then dropped off in an area near where he had been picked upmoments earlier. Phifer was arrested on the outstanding warrants and the vehicle was then approached. Cocaine was recovered fromMr. Claiborne, who gave Detective McCarthy his cell phone number. Back at the station during booking, Detective McCarthy examined the list of recent received calls on Phifer’s cell phone and noted several calls from Claiborne. Phifer’s lawyer moved to suppress Detective McCarthy’s examination of the phone, and a judge in the East Boston District Court allowed that motion. The Commonwealth appealed and the Supreme Judicial Court accepted the case, eventually overturning the decision from the East Boston District Court. In ruling that the evidence gained from the list of recent calls was admissible, the court stated the following: The evidence at issue here consists of the contents of the recent call list on the defendant’s cellular telephone. The defendant does not appear to dispute that the cellular telephone itself -- the physical object -- was seized properly during a permissible search incident to his lawful ar- rest. More to the point, like the police in [ Commonwealth v.] Madera , 402 Mass. 156, 158, 160-161 (1998) 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: Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and Claiborne took place; the police recognized Claiborne as a drug user and recovered cocaine from Claiborne; and Detective McCarthy testified that based on his experience, telephones are commonly used in the drug trade. Thus, the search of the call list in this case was a valid search incident to arrest. It is significant that the search performedwas a simple examination of the recent call list, and that no further intrusion into the telephone’s contents occurred. As discussed in the text, infra , there is no need in this case to consider whether a more extensive search of the cellular telephone or even a limited search of a different feature of the telephone would have been permissible. The court was quick to note that this case only involved “a simple examination of the recent call list” and no further intrusions into the phone’s contents occurred. The court, therefore, did not rule on what other information could be taken from a cell phone. On the same day the Phifer decisionwas released, the Supreme Judi- cial Court also released the case of Commonwealth v. Berry , 463Mass. 800 (2012), a similar case involving Boston Police Sergeant Detective MarkHandrahan andDetective JimmyRattigan. In Berry , both the buyer and seller were arrested after a drug transaction was observed. Back at the station Detective Rattigan took one of the cell phones seized by one of the defendants and dialed the most recent number in the dialed See Anderson on page 29