Massachusetts Appeals Court Rules Cop Violated Constitution by Answering Alleged Drug Dealer’s Cell Phone

The Massachusetts Appeals Court today reversed an alleged drug dealer’s convictions because a police officer violated the defendant’s constitutional rights by answering his cell phone.  The name of the case is Commonwealth v. Barrett.

On April 23, 2009, a Boston cop saw a woman and a man walking on Townsend Street.  Based on their appearance – they looked dirty and had drawn out faces – the officer concluded they were drug addicts waiting to meet their dealer.  A few minutes later, the defendant showed up and walked into a park with the male addict.  Within 10 seconds, the male addict reemerged while the defendant disappeared.  The police confronted the couple and, after finding three bags of heroin, arrested them.  After transporting them to the police station, the male agreed to call the defendant and arrange a meeting.  Unfortunately for the defendant, it was the cops, instead of the addicts, who met him an hour later in Dudley Square.  He was arrested and found to be carrying five bags of crack cocaine and eleven bags of heroin.  When the police brought the defendant back to the station, they seized his two cell phones and more than a thousand dollars in cash.  An hour and 14 minutes after the booking process began, one of the defendant’s cell phones rang and an officer answered the phone.  The caller asked to buy drugs.  About an hour and a half later, an officer answered the defendant’s phone when it rang again, and this caller said he needed heroin.  The defendant was indicted and charged with distribution of heroin, possession of heroin with intent to distribute, and possession of cocaine.  Following his trial, where evidence regarding the calls to the defendant’s phone was admitted, a Suffolk Superior Court jury found the defendant guilty.

The primary appellate issue was whether the defendant’s constitutional rights were violated when the police officer answered his phone without a warrant.  The defendant had filed a motion to suppress evidence of the phone calls and a Suffolk Superior Court judge denied the motion.  The Appeals Court concluded the cops were entitled to seize the defendant’s phone incident to his arrest.  However, recent cases from the United States Supreme Court and the Massachusetts Supreme Judicial Court have made it clear that manipulating the phone (which includes answering it) constitutes a search.  Therefore, the cops need either a warrant to answer the phone or some other justification to conduct a warrantless search.  The Commonwealth argued the search was justified under the exigency exception to the warrant requirement.  Essentially, if the cops did not have sufficient time to obtain a search warrant, they might have been justified in answering the phone because the evidence would have otherwise been forever lost.  The motion judge concluded it was unrealistic to expect the police to draft a search warrant application, find a judge or magistrate (after court had closed for the day), and have the judge or magistrate read the application and sign the warrant during the time the defendant was being booked at the police station.  Therefore, exigent circumstances permitted the cops to answer the defendant’s phone.  The Appeals Court agreed it was “likely unrealistic” that the police would have had time to obtain a warrant.  The problem was that the prosecutor did not introduce any evidence at the motion to suppress hearing about the infeasibility of getting a warrant within a couple of hours, and the judge was not permitted to rely on his personal knowledge to draw the conclusion.  At the motion to suppress hearing, if the police officers had testified it would have been impossible to have obtained a search warrant by the time the defendant’s phone rang, the motion judge would have been justified in finding exigent circumstances.

Because the Appeals Court determined the motion to suppress should have been allowed, the defendant’s convictions were reversed and he will be returned to Suffolk Superior Court for a new trial.