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Commonwealth v. Berry Opinion Summary: This case concerned 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 Defendant incident to arrest. A judge in the municipal court allowed 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. The Supreme Court reversed the partial allowance of Defendant's motion to suppress, holding, as it did in Commonwealth v. Phifer, that in the particular circumstances presented, the very limited search of the cellular telephone was permissible. COMMONWEALTH vs. Christopher Y. BERRY. SJC-11056. Suffolk. September 6, 2012. - December 5, 2012. Controlled Substances. Practice, Criminal, Motion to suppress, Standing. Telephone. Cellular Telephone. Search and Seizure, Search incident to lawful arrest. COMPLAINT received and sworn to in the Dorchester Division of the Boston Municipal Court Department on December 29, 2009. A pretrial motion to suppress evidence was heard by Rosalind H. Miller, J., and a motion for reconsideration was also heard by her. An application for leave to file an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court. Zachary Hillman, Assistant District Attorney, for the Commonwealth. Richard S. Jacobs for the defendant. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. BOTSFORD, J. This case, like Commonwealth v. Phifer, ante (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. [FN1] 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,

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Massachusetts Law