Pennsylvania Supreme Court: If You Want to Search a Cell Phone, Get a Warrant!
The Pennsylvania Supreme Court recently issued a sweeping ruling “that accessing any information from a cell phone without a warrant” violates the Fourth Amendment to the United States Constitution. In Commonwealth v. Fulton, the Court suppressed the warrantless search of the contents of a ‘flip phone’ and reversed a murder conviction that flowed from the unlawful search. The Supreme Court held that the Superior Court’s decision contravened U.S. Supreme Court precedent in Riley v. California and United States v. Wurie, 134 S. Ct. 2473 (2014), holding that searches of cell phones generally require a warrant.
In June 2010, Philadelphia Police arrested I. Dean Fulton and three others on suspicion of unlawful drug activity and gun possession. They seized Fulton’s “smart phone” from his body at the time of the arrest. They subsequently obtained a search warrant for the vehicle Fulton and the others were in at the time of their arrests. That search turned up a firearm, a holster, three cell phones and other property. The cell phones – which included one ‘flip phone’ later connected to Fulton –were provided to the Homicide Division, which was investigating a recent drug-related murder.
Upon receiving the cell phones, the lead homicide detective flipped each one open, powered it on and searched the phone’s menu to determine its assigned phone number. As a result, the detective determined that the assigned number for a Samsung flip phone was the same number previously found in the murder victim’s cell phone. Instead of powering off the Samsung flip phone and applying for a search warrant, the detective proceeded to monitor the phone’s incoming calls and texts, and answered an incoming call from a woman who subsequently agreed to an interview with the detective. During that interview, the woman identified Fulton as the owner of the Samsung flip phone and her regular heroin supplier. During interviews with Fulton’s co-arrestees, two of the men stated that Fulton confessed to the murder in question. Fulton was charged and ultimately convicted of the murder.
According to the Pennsylvania Supreme Court, the police conducted three warrantless searches of Fulton’s flip phone. Police searched the phone by: (1) powering it on; (2) navigating the phone’s menu to identify the phone’s number; and (3) monitoring phone calls and text messages sent to the phone. As noted above, the warrantless viewing of the phone’s number is what ultimately connected Fulton to the murder that had occurred two days before Fulton’s arrest. In addition, the monitoring of the phone calls and text messages sent to the phone led to the discovery of one of the Commonwealth’s key witnesses.
The Pennsylvania Supreme Court viewed Riley/Wurie as requiring a warrant for any search of a cell phone, absent an applicable exception – irrespective of whether the search concerns a technologically complex smart phone or less complicated flip phone. Chief Justice Roberts, writing for the Court in Riley/Wurie, explained that a person has a reasonable expectation of privacy in the data contained in his cell phone, which is “quantitative[ly] and qualitative[ly] different from other ‘containers’ that are often searched. Cell phones “collect in one place many distinct types of information – an address, a note, a prescription, a bank statement, a video – that reveal much more in combination than any isolated record.” They also contain Internet histories and geo-locational data. Thus, “it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.” A “cell phone search would typically expose to the government far more information than the most exhaustive search of a house.”
The Pennsylvania Supreme Court concluded that Riley/Wurie allows “no exception for what police or courts may deem a ‘minimally invasive search,’” such as powering on the phone to determine the assigned phone number. The Court analogized the opening of a cell phone to that of opening the door to a house. As with a house, an individual’s expectation of privacy rests in the phone itself, not in every piece of information within it. By powering on the phone, police were able to view its wallpaper, incoming text messages and calls, and were able to access all other data on the phone. Navigating through the menu to find the assigned phone number was also a search, as was actively monitoring for incoming calls and text messages. Because the Court viewed Riley/Wurie to compel the conclusion that the police violated Fulton’s federal Fourth Amendment rights, it did not reach Fulton’s Pennsylvania constitutional claim.
The Pennsylvania Supreme Court’s decision continues the trend for greater privacy protection in a person’s digital devices and data. That decision has implications not just for law enforcement investigations, but for internal investigations and civil litigation involving any of the 99% of Americans walking around with a cell phone.