Commonwealth v. Berry

979 N.E.2d 218, 463 Mass. 800, 2012 Mass. LEXIS 1101
Massachusetts Supreme Judicial Court·Decided December 5, 2012·Published·Cited by 4 cases

Opinion

Botsford, J.

This case, like Commonwealth v. Phifer, ante 790 (2012) (Phifer), concerns a limited search of the recent call list displayed on a cellular telephone that had been seized by the police in a warrantless search of the defendant incident to arrest.1 A judge in the Boston Municipal Court allowed the defendant’s motion to suppress evidence of this cellular telephone search, ruling that it had taken place at a location and time spatially and temporally separated from the arrest, and therefore was not a valid search incident to arrest. Before us is the Commonwealth’s interlocutory appeal from the judge’s ruling. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). We conclude, as we did in Phifer, that in the particular circumstances presented, the very limited search of the cellular telephone was permissible. We therefore reverse the partial allowance of the defendant’s motion to suppress.

1. Background. A complaint charging the defendant with distribution of a Class A controlled substance (heroin) in violation of G. L. c. 94C, § 32 (a), issued from the Dorchester Division of the Boston Municipal Court Department on December 29, 2009. The defendant filed a motion to suppress evidence, which was heard by a Boston Municipal Court judge (motion judge) in June, 2010. In October, the motion judge issued a decision in which she denied the motion to suppress insofar as it challenged the validity of the stop leading up to the defendant’s arrest and all the results that followed but, as noted previously, allowed the motion to the extent that it challenged the specific search of the cellular telephone’s recent call list.2 The Commonwealth filed a motion to reconsider that the motion judge denied after a hearing. A single justice of this court allowed the Commonwealth’s motion to accept its late application [802] for leave to file an appeal pursuant to rule 15 (a) (2) and ordered the appeal transferred to the Appeals Court.3 We transferred the case to this court on our own motion, and paired it for argument with Phifer, supra.

We summarize the facts as found by the motion judge. At approximately 9 p.m. on December 28, 2009, Sergeant Detective Mark Handrahan and Detective James Rattigan, two Boston police officers in the drug control unit, were on duty in the vicinity of Crescent Avenue and Sydney Street in the Dorchester section of Boston, a residential area known for illegal drugs and having a high-crime profile. Both officers were very experienced, and both had received specialized training in narcotics investigations. The motion judge credited the testimony of both officers that cellular telephones are often used to set up drug transactions.

The officers were sitting in their unmarked police cruiser when Rattigan noticed a man who was later identified as the codefendant, Kevin Darosa, walking toward them. Darosa looked thin, gaunt, and “ ‘sick’, like a drug user.” When a car driven by the 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 just witnessed a drug transaction taking place. 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 to Darosa, arrested Darosa and radioed Rattigan that he had recovered heroin. Darosa was searched at the scene, and a cellular telephone 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, the defendant was stopped by Rattigan 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 telephone from the defendant during a search incident to the arrest.

[803] Darosa and the defendant, both under arrest, were taken to a police station. At some point after Rattigan arrived at the station, he picked up one of the cellular telephones 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 telephone began to ring. When testifying at the motion hearing, however, Rattigan could not remember which telephone he had manipulated and searched, or how much time had passed between the seizures of the two cellular telephones and the search.

The judge’s memorandum of decision considered together the defendant’s and Darosa’s motions to suppress, both of which challenged the validity of the search of the cellular telephone.4 In her memorandum of decision, the motion judge did not seek to resolve which of the two cellular telephones had been searched, but simply ruled that the search was not a valid search incident to arrest. She reasoned that a search of a person and the area within that person’s immediate control may be conducted lawfully without a warrant, but such a search must be contemporaneous with the arrest. Because the search of the cellular telephone in this instance occurred at the police station and after an undetermined period of time following the arrest, the judge concluded that the Commonwealth had not met its burden of establishing that the warrantless search was contemporaneous.

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Commonwealth v. Berry, 979 N.E.2d 218, 463 Mass. 800, 2012 Mass. LEXIS 1101 (Mass. 2012).

979 N.E.2d 218 (Commonwealth v. Berry) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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