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Massachusetts Cell Phone Searches Incident to Arrest

Warrantless Searches of Cell Phone Call Lists in Massachusetts
By Richard E. Kühn, III, Esquire


The Supreme Judicial Court (SJC) recently held that a limited search of a person's cellular telephone to examine the recent call list was a permissible search incident to the their lawful arrest. Recently Commonwealth v. Phifer, SJC-11242, produced some headlines that provoked fear that a person's cell phone could be searched without limitation; this is patently untrue.

By way of background, the defendant in Phifer was charged in a two-count complaint with "distribution of a class B substance and a drug violation near a school or a park." Prior to the defendant's arrest, the officers on scene recognized the defendant as a person with multiple warrants out for his arrest, and also noted the presence of a woman who was, according to the police, a known drug user. After the police witnessed what they described as an exchange, they arrested the defendant.  At the time of the defendant's arrest, the arresting officer examined Mr. Phifer's cell phone which the officer described as a "flip phone" and read the call list which included phone numbers that the prosecution sought to introduce at trial to establish that defendant was engaged in the sale of illegal narcotics. Defendant's counsel moved to suppress the evidence obtained through the cellular phone, his motion was denied, and the defendant filed an interlocutory appeal, appealing the decision to the Supreme Judicial Court.



The defendant's argument focused on the unique nature of a cellphone distinguished from other items, like a cigarette pack, that a person might be carrying on their person at the time of arrest. The defendant noted that cellular phones have the ability to carry vast quantities of information on them, and based on these inherent differences, defendant argued that they must be treated differently under the Fourth Amendment and Article 14.



The SJC noted that neither the Supreme Court of the United States or the Supreme Judicial Court "has addressed whether the contents of cellular telephones may be searched in whole or in part incident to a lawful arrest."  It should be noted that Phifer addresses one of the exceptions to the requirement of a search warrant; a search incident to a lawful arrest. This means that but for the arrest in Phifer the search of the contents of the cellphone would not have been permitted without a warrant or circumstances falling into another exception to the warrant requirement.

The SJC relied on their decision in  Commonwealth v. Madera, 402 Mass. 156, 159-161 (1988) (Madera ),where the court upheld the search of a gym bag carried by the defendant at the time of his arrest as a search incident to arrest that was permissible under the Fourth Amendment, art. 14, and G.L. c. 276, § 1.  Under Madera the SJC established that  "(t)he police are entitled to a bright line rule that permits them, even in the absence of exigent circumstances, to search a bag carried by a person whom they lawfully arrest on probable cause, or otherwise, where there is also probable cause to believe that the bag contains evidence of the crime for which the arrest was made. Because art. 14 does not forbid such a rule, the search of the defendant's bag was lawful under art. 14."


On of the most important facts in the Phifer case is that the defendant's phone was a relatively unsophisticated "flip phone." The SJC commented that they declined the invitation into the "thicket" of discussing the scope of a search permitted into the contents of a smart phone under the same circumstances, leaving the question open for another day. The SJC noted  "(w)e 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). "

The court then held that  the limited search of the defendant's cellular telephone to examine the recent call list was a permissible search incident to the defendant's lawful arrest.


Contrary to some of the headlines, there is nothing new about the Phifer case other than the fact that it poses a material risk that officers will exceed the scope of its authority when conducting a search incident to a lawful arrest. Additionally, the court did not address phones that contain passwords in order to retrieve the call list or other contents of the phone.  The SJC's decision is restricted to the facts presented in Phifer ; the court specifically disavowed any intention to delve into the world of smart phone searches. 

Richard E. Kühn, III, Esquire
155 N. Main Street
Suite E
Fall River, MA 02720
774.955.0808 (MA)
401.388.0412 ( RI )

Richard E. Kühn, III, is an attorney licensed to practice law in Massachusetts, Rhode Island, and the United States District Court for the District of Rhode Island. Attorney Kuhn practices law in the areas of Massachusetts Criminal Defense, Rhode Island Criminal Defense, Massachusetts Personal Injury, Rhode Island Personal Injury, Massachusetts Family Law, Rhode Island Family Law, Landlord-Tenant, and many other areas. Please feel free to contact the Law Office of Richard E. Kühn, III at 774.955.0808 or 401.388.0412 or by email at

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