Arrested In Massachusetts? Police Can’t Answer Your Cell Phone

Here’s an interesting case that might fall under the tagline, “Don’t answer that phone!” In a case that illustrates occasional over-reaching by police officers in their attempts to secure evidence of criminal wrongdoing, a Massachusetts Superior Court judge recently ruled that evidence, obtained by police officers who answered a defendant’s cell phone while he was being booked, cannot be admitted as evidence against that defendant.

It’s a case that some people might say warranted the admission of the evidence obtained by the police, but constitutional principles say otherwise. It seems that last December 15 2008, Lynn police officers on patrol spotted one Felipe Diaz and a passenger, driving in Diaz’ older-model pickup truck. One of the officers recognized Diaz from prior encounters with the Lynn Police Department, also recognized his truck, and knew that Diaz’ drivers license had been revoked for previous Massachusetts motor vehcile offenses. The officers stopped Diaz, arrested him for operating without a license, and placed him in handcuffs in the police cruiser. Diaz’ passenger was interviewed and allowed to leave. The officers had Diaz’ truck towed, and consistent with standard police procedure, conducted an inventory search of the vehicle. They discovered seven small bags of heroin hidden behind the front seat.

While he was being booked at the Lynn Police Department, Diaz’ cell phone rang several times. After “four or five” calls came in from different numbers within approximately twenty minutes, different officers at the station answered the phone, obviously acting as though they were the phone’s owner. One officer claimed, that a female caller say, “I’ll take three.”,at which Diaz yelled out “I’m at the police station.” A separate officer answered another call and spoke with a man who identified himself as “Mike.” According to this officer, this caller made “statements indicating an interest in buying drugs.” Aside from the possession charge on the heroin located in his truck, as a result of these phone calls, the defendant was charged additionally with “Intent to distribute,” which is an even more serious Massachusetts drug offense. Prosecutors introduced evidence of these calls in support of the “intent to distribute drugs” charge. Diaz’ defense attorney objected, filing what is called a “Motion to Suppress.”

A Superior Court judge agreed with the defense.The central issue here, as almost always in “Suppression Motions,” was a constitutional one. The core of the defense’s argument here, was that the defendant had a legitimate “expectation of privacy” in his cell phone calls, and that, without a warrant, the officers use, manipulation, or examination of that phone, was an impermissible violation of the defendant’s constitutional right to privacy. The important element that lacking here – which if the police had it, might have resulted in the phone calls coming into evidence – was “probable cause” for the officers to answer the defendant’s cell phone. The court ruled that the police didn’t have this ‘probable cause’, and as a result, any evidence obtained from the police answering those calls, is inadmissible. In his ruling on the defense’s suppression motion, Superior Court judge David A. Lowy wrote, “To allow government agents to answer a cellular telephone without a warrant under such circumstances would allow just the sort of ‘indiscriminate search … conducted under the authority of “general warrants”‘ that courts are constitutionally bound to prohibit.” Exceptions to the normal requirement of a search warrant do exist, but Lowy found none under these circumstances. “The court agrees that the officers could not lawfully conduct a warrantless search of Diaz’s cellular telephone where the facts known to them at the time they were booking Diaz did not create probable cause to believe that he was selling heroin through his telephone,” he wrote.
By answering the defendant’s phone, Lowy said, the Lynn police “… intruded into an area in which society recognizes a reasonable expectation of privacy.”

Some people might find this judge’s reasoning to be shallow. I can understand that – especially when considering that cell phones are an acknowledged tool involving drug trafficking. The courts do recognize this fact, and in the past police have been allowed to glean evidence from cell phones, without a warrant, under limited circumstances. But this judge concluded that the police officers’ actions in answering the phone during booking, was unreasonable on several grounds. First, “The search of the cellular telephone was not contemporaneous with Diaz’s arrest. A substantial amount of time elapsed between the moments when Lynn police took Diaz into custody … and when the officers began answering his ringing cellular telephone at the station,” Lowy wrote. Second, “By failing to identify himself immediately, an officer can take advantage of a caller’s reasonable expectation that the person answering the cellular telephone is its owner and engage in the functional equivalent of eavesdropping, if only for a moment.” Third, the prosecution was unable to demonstrate “the necessary link between evidence of criminality” and the phone.

Interpreting this ruling, the bottom lime is that the arresting officers “had no principled way of distinguishing between incoming calls to Diaz’s cellular telephone that were likely to be perfectly lawful, and those calls that might produce evidence of criminality.” The police did not have probable cause to justify a warrantless search of Diaz’s cellular telephone for the purpose of securing evidence of an intent to distribute heroin. Accordingly,the court ruled that “the statements made by third parties to the officers who answered Diaz’s cellular telephone, and Diaz’s statements themselves, must be suppressed.”

As I said above, I can see how a good number of people, especially police officers, would disagree with this ruling, arguing that it was reasonable to think that if a person was just arrested with a good deal of illegal drugs, and his cell phone rings several times while in custody, that person is probably dealing drugs. But as a Norfolk County, Massachusetts criminal defense lawyer, the correct way for police to have to handle that, under those circumstances, would have been to apply to a judge for search warrant to answer and manipulate this person’s cell phone. Those prescribed legal procedures must be followed. If we allow constitutional protections to be ignored, then slowly, over time, the protections we all enjoy could one day disappear.

And I don’t think anyone wants that.