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Searching your cell phone and getting evidence against you

Contact Attorney Jason Chan

Attorney Jason Chan

244 Brighton Avenue, Suite 105
Allston MA 02134


Phone: 781-343-1DUI (781-343-1384)
Fax: (617) 254-8001

 Recently I blogged about the constitutional rights of each person has against unreasonable search and seizure.  I explained that there certain things that a police can search and use without it being considered a violation of a person’s constitutional rights.  One thing that the police are allowed to do is to put a license plate through their computer system to get more information about the driver or the car.  

The courts have also long allowed police to search a person after an arrest.  For the most part, the police are allowed to look for any weapons or drugs after an arrest.  The police are also allowed to do an inventory of all the items on a person during the booking process. The real point to the inventory search is to take all the items from the person prior to putting the suspect into a holding cell.  The police are supposed to account for each item that is taken from the suspect and return all items to the person upon release.  Obviously, the police are not required and will not give back any contraband to the suspect upon release. 

The courts have long allowed the police to take a cell phone from a suspect and put it with the person’s belongings.  Recently, the Supreme Judicial Court, Massachusetts highest court has ruled that the police do not need a search warrant to look at a person’s cell phone.  The case started with the arrest of two drug dealers in Boston.  The police ended up arresting both drug dealers and seized their cell phones.  The police didn’t get a search warrant and looked at the suspects’ call lists.  The defendants argued that the police violated their constitutional rights against unreasonable search and seizure by looking at the call lists on their phone without a warrant.  The Supreme Judicial Court ruled in favor of the police and said that they don’t necessarily need to obtain a warrant to look at the call list.  Under this ruling, the police can search the phone right away when the suspect is first arrested or later on at the police station without a warrant. 

The court stated that police have always been allowed to hunt for evidence of a crime from the person’s belongings.  The Supreme Judicial Court stated that the limited search of the cell phone’s call list didn’t violate the defendants’ constitutional rights.  It is unclear how far this ruling will actually allow the police to search.  The Supreme Judicial Court did not rule if the police would be able to look through text messages or listen to voice mails without a warrant.  With phones becoming more sophisticated, many phones are no longer a one purpose device. Smart phones have the capability to house incredible information that goes beyond making phone calls.  If you look at a person’s smart phone it looks more like a computer than a traditional land line. Smart phones can have a person’s Facebook account, Twitter feed, person documents, notes, contact information, and calendars on them. 

In the past, the police can still search the phone, but it would usually come after obtaining a search warrant from a judge.  Now, that judicial review, that check and balance of getting a search warrant has been taken out of the equation.  Though it may not seem like a big deal as this ruling has only focused on the right to look at a suspect’s call history on the phone, the ruling has a significant effect.  The Court is allowing the police look at a device that potentially has an incredible amount of personal information without any oversight at all.  The court did stated that this ruling doesn’t give the police unlimited authority to search a suspect.  As different state courts across the country debate this issue of a person’s cell phone and the right of privacy, it will be interesting to see how Massachusetts continues to deal with this problem.   


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