PAX Centurion - May / June 2013

www.bppa.org PAX CENTURION • May/June 2013 • Page 29 Representing and providing counsel to members of the Boston Police Patrolmen’s Association since 1993 regarding critical incidents, criminal and departmental investigations, and civil rights matters. Many members have also sought our guidance and representation in a wide variety of matters, particularly personal injury claims on behalf of injured officers and/or their family and friends. We also provide representation in criminal and civil litigation, real estate and estate planning. We invite you to learn more about Byrne & Drechsler, LLP by visiting our website – ByrneDrechsler.com JAMES E. BYRNE XXXXXXXX THOMAS DRECHSLER KENNETH H. ANDERSON • RICHARD P. MAZZOCCA • ERIC S. GOLDMAN • JONATHAN E. TOBIN • JOSEPH A. MERLINO 50 Redfield Street, Boston, MA 02122 (617) 265-3900 • Fax (617) 265-3627 calls list. Not surprisingly, the other defendant’s phone began to ring. A judge in the Dorchester District Court suppressed the information obtained from the cell phones. Following their decision in the Phifer case, the Supreme Judicial Court overturned the decision of the judge in the Dorchester District Court. As such, the law from the Massachu- setts courts is that information from an arrested suspect’s recent call log on their cell phone may be obtained without a warrant. Additional information obtained beyond information on recent calls may well be suppressed, but since those potential issues were not before the court, the extent of information you can gather from an arrested suspect’s cell phone is not fully known. To end this article with the common maxim that nothing in life is simple, the First Circuit Court ofAppeals in Boston reached an entirely contrary decision in their May 17, 2013 decision in United States v. Wurie , ___ F.3d _____ (2013 WL2129119) (1 st Cir. 2013). Although the fact pattern in Wurie was more complicated than in the Phifer case and the Berry case, the analysis was the same. In Wurie, Boston Police Sergeant Detective PaulMurphy observed a person namedBrimaWurie pick up a second individual by a convenience store and engage in what Murphy believed was a drug deal. Boston police officers stopped the person believed to be the buyer and found two plastic bags in his pocket, each containing 3.5 grams of crack cocaine. The buyer admitted pur- chasing the drugs.Wurie was then arrested. Through some nifty police work by Sergeant Detective Paul Murphy that included an examination of Wurie’s call log and his phone “wallpaper,” the police were able to get a number which, by doing a reverse look up, lead them to a house where they found awomanmatching the photograph inWurie’s phone’s wallpaper.Wurie claimed he lived in Dorchester, yet the phone log and the woman who matched the phone’s wallpaper revealed he lived on Silver Street in South Boston. A search warrant was obtained for the Silver Street address and 215 grams of crack cocaine, a firearm and other goodies were obtained. In a two to one decision, the court held: . . . that the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestees person, because the government has not convinced us that such a search is ever necessary to protect arresting officers or preserve destructible evidence. See Chimel , 395 U.S. at 763. Instead, warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest -- or other, as yet undiscovered crimes -- without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a “general evidence-gathering search.” Interestingly, a judge who wrote a concurring decision in the Phifer case discussed the importance of having a “bright-line-rule” so law en- forcement officerswill know if their actionswill lead to the suppression of evidence. As these cases teach us, sometimes the “bright-line” you have to guide you can be faded or crooked.Your job as police officers is not easy.As these cases illustrate, there is a very fine line between what is acceptable and what is not, and often times the lines become blurred. Like those running the BostonMarathon, all you can do is keepmoving forward, keep thinking positive, and hope for the best. Thanks for all you do. Stay safe out there. The bright lights for you to follow are not so bright From Anderson on page 28