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Using a cell phone for a misdemeanor drug purchase does not constitute felony facilitation of drug trafficking, a unanimous U.S. Supreme Court has ruled.

The defendant in the case was arrested after police wiretaps revealed he made seven calls to make two purchases of cocaine.

He was convicted of violating the Controlled Substances Act, 21 U.S.C. §843(b), which prohibits using “any communication facility [including the telephone to] facilitate the commission of any act or acts constituting a felony” under the Act.

On appeal, prosecutors argued that the Act applied even though the amount of drugs purchased would result in a misdemeanor charge.

The 4th Circuit upheld the conviction, concluding that the purpose of the statute was to punish those who use phones as a way to evade detection by police.

The Supreme Court agreed to hear the case to settle a split between the circuits on the issue.

Writing for a unanimous Court, Justice David Souter noted that traditionally drug laws are designed to treat sellers more severely than buyers. The Controlled Substances Act was intended to impose harsher penalties on drug sellers who use phones and other communication devices to evade police, and to extend that to non-seller cell phone users went too far, the Court concluded.

The prosecutors’ view “would for practical purposes skew the congressional calibration of respective buyer-seller penalties,” Souter wrote. “[I]n these days when everyone over the age of three seems to carry a cell phone, the government’s interpretation would skew the calibration of penalties very substantially.”

U.S. Supreme Court. Abuelhawa v. U.S., No. 07-542.  April 21, 2009. Lawyers USA No. 993-805. Click here to read the full text of this opinion.

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