PA: Powering on a cell phone was the first of three warrantless searches in violation of Riley

Powering on a cell phone to see the screen was the first of three warrantless searches of defendant’s cell phone, all of which violated the Fourth Amendment. They were not harmless, so reversed. Commonwealth v. Fulton, 2018 Pa. LEXIS 982 (Feb. 21, 2018):

Our review of the record in this case reveals that Detective Harkins conducted three distinct searches of Fulton’s cell phone without a warrant. The first occurred when the detective powered on the phone. The record reflects that Fulton’s flip phone was one of three phones recovered by detectives investigating a separate crime unrelated to Toll’s murder. N.T., 8/21/2013 (motion), at 30, 45. The phones were transferred to the homicide detectives investigating Toll’s murder because the phones were believed to have possible evidentiary value based on Toll’s call log, which indicated that he communicated several times with “Jeff” at the Target Number within a short period of time prior to the shooting. Id. at 26, 46-47. Fulton’s flip phone was off when it was received by Detective Harkins. Therefore, in order to discern the assigned number of the phone, Detective Harkins powered on the phone. Id. at 47.

The act of powering on Fulton’s flip phone constituted a search, i.e., an intrusion upon a constitutionally protected area (Fulton’s cell phone) without Fulton’s explicit or implicit permission. See Jardines, 569 U.S. at 6. Turning on the phone exposed to view portions of the phone that were previously concealed and not otherwise authorized by a warrant or an exception to the warrant requirement. See Hicks, 480 U.S. at 325. Powering on the phone is akin to opening the door to a home. It permitted police to obtain and review a host of information on the cell phone, including viewing its wallpaper, reviewing incoming text messages and calls, and accessing all of the data contained in the phone.

Detective Harkins engaged in a second warrantless search when he obtained the phone’s assigned number. After powering on the phone, Detective Harkins navigated through the menus of the flip phone to obtain its number. N.T., 8/21/2013 (motion), at 47. By virtue of this search, Detective Harkins learned that the number assigned to Fulton’s flip phone was the same number labeled as “Jeff” in Toll’s phone. Id. at 47-48. As stated above, the Riley/Wurie Court rejected the Flores-Lopez decision and its conclusion that accessing a cell phone to obtain its phone number was permissible without a warrant. See Riley/Wurie, 134 S. Ct. at 2493. The act of navigating the menus of a cell phone to obtain the phone’s number is unquestionably a search that required a warrant.

Detective Harkins conducted a third warrantless search of the phone when he monitored incoming calls and text messages. To aid in his investigation of Toll’s murder, he kept the phone powered on, monitoring the calls and text messages that came through by viewing the number and/or assigned name of the individual calling or texting on the flip phone’s internal or external display. N.T., 8/21/2013 (motion), at 48. The day after the phone was delivered to homicide, Detective Harkins reviewed “a number of calls and texts that were incoming during the course [of time] that the phone was in the homicide unit,” and then answered a phone call from Warrington. Id. As stated by Detective Harkins at the suppression hearing, his decision to answer Warrington’s phone call “wasn’t by chance”; his testimony reflects that he made an informed decision, through his review of the calls and texts coming in, to take her call. Id. at 48, 58.

Contrary to the finding of the trial court and the argument advanced by the Commonwealth before this Court, there is little difference between monitoring the internal and external viewing screens on a cell phone and searching the phone’s call logs. Both result in accessing “more than just phone numbers,” but also “any identifying information that an individual might add” to his or her contacts, including the caller’s photograph, the name assigned to the caller or sender of the text message. See Riley/Wurie, 134 S. Ct. at 2492-93. Further, and unlike a call log, monitoring a phone’s incoming text messages allows the viewer to see the content of a text message, which indisputably constitutes private data. This is all information that, pursuant to Riley/Wurie, cannot be accessed by police without a warrant.

The rule created by Riley/Wurie is exceedingly simple: if a member of law enforcement wishes to obtain information from a cell phone, get a warrant. The failure to do so here violated Fulton’s rights under the Fourth Amendment to the United States Constitution.