Massachusetts Appeals Court Reverses Gun Conviction After Police Examine Defendant’s Cell Phone Without a Warrant

The Massachusetts Appeals Court today reversed the conviction of a defendant charged with carrying a gun because a Boston police officer looked at the contents of his cell phone without a warrant.  The name of the case is Commonwealth v. Dyette

The defendant was charged with carrying a loaded firearm following his arrest in Roxbury in July of 2010.  Police officers were patrolling the city in an unmarked cruiser late at night.  When they drove past Washington Park, they saw a group of people drinking and lighting fireworks.  As the officers approached, the group of people began to disperse.  The officers saw two men, including the defendant, standing on the far side of a basketball court looking at them with concern.  The two men began to walk away at a normal pace but then started to run (bumping into each other as they fled).

Several officers ran after the men as they approached a wooded area.  The men split up and ran in different directions and the officers pursued the defendant.  Meanwhile, another officer drove to the back of the park where the defendant was likely to exit.  When the defendant ran out of the woods, the officer ordered him to the ground at gunpoint.  The officer then pat-frisked and handcuffed the defendant.  The other officers who had been chasing the defendant found a handgun near his flight path.  They also found clothing that the defendant had shed as he was running away.

The defendant told the arresting officer, and later the booking officer, that he had not been running from the police, but instead had been engaging in a phone argument with his girlfriend.  Both officers looked at his phone’s call log and discovered that the defendant had not been speaking to his girlfriend as he claimed.

The defendant filed a motion to suppress, arguing that the police officer’s order for him to stop, and the subsequent search of his cell phone, violated his Fourth Amendment right to be free from an unreasonable search and seizure.  The motion judge ruled that the police conduct was constitutional.  At trial the prosecutor harped on the lie the defendant told about being on the phone with his girlfriend and argued that he had concocted the story to avoid responsibility for possessing the gun.  The jury convicted the defendant and he appealed.

The Appeals Court ruled that the police properly detained and arrested the defendant.  However, relying on a recent United States Supreme Court decision, the Appeals Court said that the police were not permitted to look at the content of the defendant’s cell phone without a warrant.  The Commonwealth suggested that the search was proper as “incident to arrest.”  When a person is arrested, the police may search his clothes and the area immediately surrounding him to: (1) make sure that he does not have access to a weapon; or (2) prevent the destruction of evidence.  The Commonwealth argued that it was necessary to immediately search the defendant’s phone’s call log to make sure that subsequent calls did not push out the earlier data.  The Appeals Court, relying on the Supreme Court decision, rejected that argument by reasoning that there are methods (such as removing the phone’s battery) to ensure that no additional data is received by the phone while the police wait for a warrant.  The Court also disagreed that “exigent circumstances” permitted the search, because measures could be taken to protect the data already on the phone.

Because of the importance of the evidence regarding the cell phone, the Appeals Court ruled that the error in allowing its admission was not harmless, and the defendant is therefore entitled to a new trial.  Police officers will try to avoid this decision by simply asking people who are under arrest if they can look at their cell phones.  If the arrestee gives permission, the police do not need a warrant.  It is extremely important that if a police officer ever asks you for permission to search anywhere, you respectfully insist that the officer first obtain a search warrant.