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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Berry, 463 Mass. 800 (2012)

CONTRIBUTING EDITOR: CHRISTOPHER A. MONSON I. Procedural History

A Boston Municipal Court granted defendants motion to suppress evidence regarding his cell phone.1 After the Muncipal Court denied the Commonwealths motion to reconsider, the Commonwealth filed an interlocutory appeal and the Supreme Judicial Court transferred the case to itself on its own motion.2 II. Facts Police officers witnessed a drug deal between Kevin Darosa and an unnamed defendant (hereafter defendants) in the Dorchester area of Boston.3 Upon arresting the defendants, the officers searched them and confiscated each of their cell phones.4 The police officers then delivered the defendants to the police station.5 At the station, an officer took one of the defendants cell phone, accessed the recently called numbers on the phone, and placed a call to the last number on the call log.6 At this time, the second confiscated phone began to ring indicating that the defendants had spoken recently via cell phone prior to the arrest.7 The police officer could not recall which defendants phone was searched and which defendants phone received the call.8

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Commonwealth v. Berry, 463 Mass. 800, 801 (2012). Id. at 800-802. Id. at 802. Id. Id. at 803. Commonwealth v. Berry, supra at 803. Id. Id.

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III. Issues Presented 1. Who has the burden to prove or disprove standing for a Fourth Amendment claim when an agent of the government knows he searched one of two defendants property, but the agent cannot remember which defendant he searched? 2. Under the search incident to arrest exception to the Fourth Amendment, whether, and to what extent, may a government agent search a defendants mobile phone at a different location than the arrest scene? IV. Holdings and Reasoning 1. When the government admits to searching one of two persons properties, but cannot recall whose specific property was searched, then it is assumed that the property searched belongs to either party and the government bears the burden to disprove standing.9 The Court affirmed the Municipal Courts decision on this issue.10 2. The search incident to arrest doctrine does not require a search to occur contemporaneously with the arrest and a simple search of a cell phone at a police station subsequent to an arrest does not require a warrant.11 However, the court cautioned that the assessment would not be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.12 The court reversed the Municipal Courts decision on this issue and the case was remanded.13

Id. at 804-805. Id. 11 Commonwealth v. Berry, supra at 806-807. 12 Id. at 807 (quoting Commonwealth v. Phifer, 463 Mass. 790, 797 (2012)). 13 Id.
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