Commonwealth v. Berry
463 Mass. 800 (2012)
Procedural History
The Boston Municipal Court
Department, Dorchester Division, a motion judge granted defendant’s motion to
suppress evidence obtained in search of a recent call list from the defendant’s
cellular phone at a police station. Commonwealth filed application for leave to
file an interlocutory appeal. A single justice of the Supreme Judicial Court
allowed the Commonwealth’s motion, and ordered the appeal transferred to the
Appeals Court. Later, the SJC picked up the case on its own motion, and decided
to reverse the defendant’s motion to suppress evidence of the cellular phone
search.
Factual Summary
On a residential area known for
illegal drugs and having a high-crime profile, at night, two Boston Police
officers in drug control unit were sitting in their unmarked cruiser when
Detective Rattigan noticed a man, codefendant, Darosa, walking toward them.
When a car driven by defendant pulled up in front of the cruiser and stopped,
Darosa got in. The officers followed the defendant’s car as it circled the
block, observing the defendant and Darosa leaning toward each other several
times. In less than five minutes, the defendant stopped the car and Darosa got
out.
The officers both believed that
they had witnessed a drug transaction just taking place. Detective Handrahan
thereafter followed Darosa on foot and after a struggle and seeing a small bag
of what he believed to be heroin on the ground next Darosa, arrested Darosa and
raidoed Rattigan that he had recovered heroin. Darosa was searched at the
scene, and a cellular phone was seized from his person.
Rattigan at the time was following
the defendant, who was driving the wrong way down a one-way street at a high
rate of speed. Thereafter, Rattigan stopped the defendant’s car with the
assistance of a marked cruiser. At the location of the stop, Rattigan arrested
the defendant for selling heroin to Darosa, and seized another cellular phone
from the defendant during a search incident to the arrest.
Darosa and the defendant, both
under arrest, were transported to a police station. At some point after
Rattigan arrived at the station, he picked up one of the cellular phones that
had been seized from the two men, and pressed a button on it to reveal the list
of recent calls. The detective then called the most recently dialed number that
was displayed on the list, and the other cellular phone began to ring.
However, when testifying at the
motion hearing, Rattigan could not remember which cellular phone he had
manipulated and searched, or how much time had passed between the seizures of
the two cellular phones and the search.
Conclusion
As opposed
to the motion judge who concluded that the warrantless search of the cellular
phone was not a lawful search incident to arrest because it was not conducted
contemporaneously with and at the scene of the arrest; the SJC held that the
search here was not invalid because a search of a person and items found on him
may take place not only contemporaneously with the arrest, but also at a later
point at the police station.
The SJC assumed that the cellular
phone searched was the defendant’s and therefore the defendant had the standing
to challenge the search of his cellular phone in the circumstances where it could
not be known which of the two cellular phones was searched, it was appropriate
to treat both the defendant and Darosa as having standing to challenge the
search.
Written 7/15/2013
