Massachusetts Appeals Court Refuses to Permit Warrantless Search of Cell Phone Without Proof of Exigent Circumstances

Thanks to the protections offered by the Fourth Amendment of the Constitution and Article Fourteen of the Massachusetts Declaration of Rights, police are unable to conduct searches and seizures without first obtaining a warrant. However, there are some exceptions to the warrant requirement. One such exception has long existed for extraordinary instances where it may be unrealistic or impossible for law enforcement to obtain a warrant before evidence is lost or destroyed, more officially known as the exigent circumstances exception.

In its recent decision released on May 14, 2020, the Massachusetts Appeals Court declined to extend this exception to include searching a suspect’s cell phone to answer a call. In Commonwealth v. Barrett, a police officer seized a defendant’s cell phone after placing him under arrest for possession and intent to distribute heroin along with possession of cocaine. When the defendant’s cell phone later rang, the officer answered it without first obtaining a warrant. The Massachusetts Appeals Court affirmed that while police have the authority to seize a phone after an arrest, that authority does not permit them to manipulate it and answer it without a warrant or without meeting an exception to the warrant requirement, such as exigent circumstances.

In order for the Commonwealth to prove that exigent circumstances existed at the time of the police search, it must show that probable cause existed for the search and that obtaining a warrant is impracticable. “[C]ourts may not assume the presence of exigent circumstances.” The Court highlighted the process of obtaining a warrant and how “[t]he length of time required to obtain a warrant depends on the length of three time periods: [1] the time needed to write an affidavit and particularize an application and warrant, [2] the time needed to locate a judge or magistrate [or reasonably exhaust efforts to locate him or her], and [3] the time needed to appear before the magistrate or judge and obtain his or her signature.” The Court also stressed that it is the heavy burden of the Commonwealth to prove that it was impractical to obtain a warrant in the time available to the police.

In this case, the Commonwealth failed to prove that waiting for a warrant would be too untimely. Although the search in question took place at night when courts were closed and occurred less than two after the cell phone was seized during the booking process at the police station, the Commonwealth did not present any evidence about whether it was impractical to obtain a warrant at the time. The judge hearing the motion to suppress instead took judicial notice of the time it would have taken to obtain a warrant based upon his personal knowledge of the process. The Appeals Court held that this was improper because the burden for proving that it is untimely is on the Commonwealth. Although a fact may seem to be obvious or common knowledge, the Commonwealth is not absolved of its burden to prove that fact. If the Commonwealth has not presented any evidence, it has not met its burden.

The Commonwealth and law enforcement must always be held to its burden. The lawyers at the Law Offices of Joseph D. Bernard, P.C. are experienced in ensuring the police do not violate your constitutional rights. It is imperative that you have a lawyer that is knowledgeable in this area of the law. Hire a firm that provides a strong defense from the very start by holding law enforcement accountable.

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