MA: SI of cell phone for recent call list with PC was reasonable

Search of defendants’ recent call list off a cell phone was reasonable as a part of search incident where there was probable cause to connect the phone to the offense of arrest. Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (2012):

This case falls squarely within the scope of Madera [and basic SI law]. 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 arrest. More to the point, like the police in Madera, 402 Mass. at 158, 160-161, 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.

We do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device. Determination of the reasonableness of a search “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). As other courts have noted, see, e.g., United States v. Flores-Lopez, 670 F.3d 803, 805-806 (7th Cir. 2012); State v. Smith, 124 Ohio St. 3d 163, 167-169 (2009), today’s cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms. They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights. Although an individual’s reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest. See People v. Diaz, 51 Cal. 4th 84, 110 (Werdegar, J., dissenting), cert. denied, 132 S. Ct. 94 (2011). However, we do not need to consider these questions in the present case.

Accord: Commonwealth v. Berry, 463 Mass. 800, 979 N.E.2d 218 (2012).