PA: Cell phone not per se subject to plain view for seizure and search for its potential information

A cell phone is not per se subject to the plain view exception just because it contains information that the police might suppose conceivably has some relationship to the crime they are investigating. Commonwealth v. Wright, 2014 PA Super 189, 2014 Pa. Super. LEXIS 2886 (August 29, 2014):

The Commonwealth relies on McEnany, in which police found a cell phone during their execution of a search warrant on the accused’s van. McEnany, 667 A.2d at 1147. The accused argued that the warrant was not sufficiently specific to justify the seizure of his cell phone. Id. at 1148. The Commonwealth argued, and this Court agreed, that police lawfully seized the cell phone pursuant to the plain view doctrine. Id. Police were aware that the accused used the van to drive to the victim’s residence on the day of the murder. Id. More importantly, police were aware that the accused made a phone call to the victim’s residence on the day of the murder. Id. Based on these facts, the McEnany Court concluded that police were justified in seizing a cell phone in plain view during their execution of the search warrant. Id.

To summarize, in Ellis, Jones, and McEnany, police had specific evidence tying the seized object to the crime under investigation. We do not believe the analysis in any of these cases warrants reversal in the instant case. Here, unlike McEnany, police had no evidence of a specific phone call. This case is unlike Jones in that the physical condition of the cell phone did not link it to the crime under investigation, as did the bloodstained phone in Jones. We therefore disagree with the Dissent’s argument that Jones and McEnany are indistinguishable from the instant matter. See Dissenting Opinion, at 10. The distinction between those cases and this one is that the police officers in Jones and McEnany relied on articulable facts in support of their suspicion that the cell phone contained incriminating evidence, whereas here, the police relied on pure conjecture.

Detective Anthony Perry testified as follows:

It’s been my experience that cell phones often have crucial pieces of evidence for our case to assist our case [sic]. I took the phone with the intention of either myself or somebody in our office obtaining a search warrant to get the information or any potential evidence off the phone.

N.T., 4/5/13, at 11-12. Perry testified that he was aware that Appellee and the female victim had a prior romantic relationship, and he suspected that he would find communication between the two shortly prior to the murder. Id. at 12-13.

As is evident from the foregoing, Perry did not articulate any specific basis for his suspicion. Appellee and the victim had a romantic relationship at one point, but that relationship was over, and Perry did not explain why the past relationship supported his suspicion that Appellee and the victim had any contact on the day of the murder. Likewise, we believe the learned Dissent’s argument relies on conjecture stemming from Appellant’s prior relationship with the victim. See Dissenting Opinion at 8-9. In McEnany, on the other hand, police had specific information that the accused phoned the victim on the day in question. Similarly, in Ellis, the police officer offered facts to support his belief that the screwdriver was used in the crime under investigation. Perry offered only generalized speculation in support of his decision to seize Appellee’s cell phone. A mere hunch does not justify a seizure. See Commonwealth v. Holmes, 14 A.3d 89, 96-97 n.16 (Pa. 2011) (a police officer must rely on articulable facts to justify a seizure); Commonwealth v. Parker, 619 A.2d 735, 739 (Pa. Super. 1993) (“While the probable cause standard is flexible, mere suspicion is not a substitute for probable cause as grounds for a search and seizure.”). Perry’s assertion that cell phones often have crucial evidence would support seizure of a cell phone under virtually any circumstance.

Next, we disagree with the Dissent’s assertion that the removal of the battery from the cell phone supports a different result in this case. In his affidavit of probable cause to search the cell phone, Detective Kenneth Ruckel stated criminal suspects commonly remove batteries from cell phones in order to avoid GPS detection. Affidavit of Probable Cause, 7/3/12, at 3.3 According to the suppression hearing transcript, the battery was removed from Appellant’s phone when Perry seized it. N.T., 4/5/13, at 80-83.

In these facts, we discern no basis for a seizure of the phone to search its digital contents. The scope of a search is limited by the basis for its authorization. See, e.g., 619 A.2d at 740 (Pa. Super. 1993). The same holds true for searches for digital evidence. For example, this Court in Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014) held several search warrants to be overbroad where they authorized searches of “any contents” of a flash drive and “all stored communications and other files” of an email account without narrowing the search to files relevant to the alleged criminal activity. Id. at 1002-104.