The search warrant for defendant’s cell phones, issued months after the seizure of heroin and firearms from his home, completely lacked probable cause. The mere fact cell phones were on defendant in proximity to drugs isn’t enough, and “officer’s experience” doesn’t support probable cause here. Commonwealth v. Johnson, 2020 Pa. LEXIS 5517 (Oct. 21, 2020):
We consider the various arguments identified above and, more broadly, whether the totality of the facts averred in the affidavit of probable cause — when viewed in a common-sense and non-technical manner — provided the issuing authority with a substantial basis for concluding that probable cause existed to search appellant’s cell phone. See Torres, 764 A.2d at 537-38.
Initially, we reject the notion that, simply because there was probable cause to arrest appellant for constructively possessing the drugs and guns found in another’s apartment, there was necessarily probable cause to search his cell phone for evidence of those same offenses. See generally Commonwealth v. Wallace, 42 A.3d 1040, 1049-50 (Pa. 2012) (“probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home”) (internal quotations and citation omitted); LaFave, supra, at §4.6(a) (“While probable cause to arrest merely requires that there be a sufficient probability that a certain person committed an offense, much more is required to establish probable cause for the issuance of a search warrant.”). Instead, what is needed is some specific “nexus between the items to be [searched and] seized and the suspected crime committed[.]” Commonwealth v. Butler, 291 A.2d 89, 90 (Pa. 1972). Stated more plainly, where law enforcement seeks to search a person’s cell phone based on the person’s mere proximity to illegal contraband, some link sufficient to connect the two must be provided in the affidavit of probable cause. See Commonwealth v. White, 59 N.E.3d 369, 376 (Mass. 2016) (“even where there is probable cause to suspect the defendant of a crime, police may not … search his or her cell[ ]phone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there”).
Our review of the affidavit of probable cause in this case reveals no such link. Notably, appellant’s cell phones were discovered on his person, and the affidavit does not otherwise allege he was personally in possession of (or even aware of) the drugs, guns, or anything else related to criminal activity found in the apartment. There is also no indication whatsoever regarding who leased the apartment or appellant’s relationship to that individual, and there is no information about the frequency with which appellant visited the apartment or the duration of time he was present on the night in question. As well, since the circumstances that led police to the apartment in the first place were emergency-related, the affidavit lacked the type of more extensive information that frequently attends search warrants in longer-term drug trafficking investigations, such as evidence regarding controlled purchases. Whereas those cases commonly include evidence demonstrating that the target dealers “use cell phone functions — particularly text messages — to conduct their illegal operations,” Gershowitz, The Post-Riley Search Warrant Protocols and Particularity in Cell Phone Searches, 69 Vand.L.Rev. 585, 589 (2016), there is no information of this sort contained in the instant affidavit. Simply put, the affidavit of probable cause in this case provides little more than the bare fact that appellant was present in a place where illegal contraband happened to be found. That fact, in and of itself, cannot supply probable cause for a search of appellant’s cell phone. See, e.g., State v. Keodara, 364 P.3d 777, 783 (Wash. App. 2015) (warrant overbroad under the Fourth Amendment where there was no evidence “that would have linked” defendant’s cell phone to the crimes listed in the warrant, including possession of firearms and possession with intent to deliver narcotics; “Nothing in the record suggests that anyone saw [defendant] use the phone to make calls or take photos … [and t]here was no indication that evidence of firearms or drugs were found with the phone.”).
It is for this same reason that we ascribe no value, under the particular facts of this case, to the affiants’ specialized knowledge that drug traffickers often use cell phones to conduct their business. See Affidavit of Probable Cause, 3/31/2015, at 2 (“From previous drug investigations your affiants have been involved with, [we] have become aware that persons involved in the trafficking of controlled substances regularly use cellular telephones to accomplish their trafficking activities.”). While we do not foreclose the possibility that such information may be relevant to probable cause analyses in other circumstances, cf. Moats v. State, 168 A.3d 952 (Md. 2017) (collecting cases where officer’s expertise relied upon to establish probable cause that defendant’s cell phone would contain evidence of crime), the affidavit in this case is entirely bereft of any facts tying the affiants’ expert opinion to appellant specifically. On this front, we credit the argument appellant raised before the suppression court, i.e., that there is nothing in the affidavit of probable cause remotely establishing that he was a drug trafficker instead of merely a guest in a place where drugs were located, particularly since four other individuals were also present in the apartment and the owner was not. At most, the affidavit tells us only that appellant was present in someone else’s apartment when police entered in response to an emergency call and that a protective sweep revealed drugs and guns from somewhere inside. Given the complete absence of any information connecting appellant to the illegal contraband, beyond his general presence in the same apartment where it was found, the affiants’ experience and knowledge “that persons involved in the trafficking of controlled substances regularly use [cell phones] to accomplish their trafficking activities[,]” Affidavit of Probable Cause, 3/31/2015, at 2, adds nothing to the probable cause calculus in this particular case. See, e.g., Commonwealth v. Morin, 85 N.E. 3d 949, 960 (Mass. 2017) (“police may not rely on the general ubiquitous presence of cellular telephones in daily life … as a substitute for particularized information that a specific device contains evidence of a crime”).
All that remains is the Commonwealth’s argument that appellant’s possession of two cell phones, when considered alongside his presence in an apartment where a large quantity of drugs was found, is enough to establish probable cause to search the phones for evidence of illegal narcotics activity. We are not convinced. As the Commonwealth itself acknowledges, the presence of multiple cell phones has been found to be indicative of drug trafficking only “when considered with other evidence[.]” Commonwealth’s Brief at 23 n.15 (emphasis added), citing Commonwealth v. West, 937 A.2d 516, 522-23 (Pa. Super. 2007) (probable cause to believe defendant was engaged in drug dealing where, inter alia, he was in possession of “six individual bags of marijuana, three cell phones, cigars, including one or more containing marijuana, and roughly one thousand dollars in bills, gold coins and silver coins”). But that is precisely what is missing here: some “other evidence” suggesting appellant was engaged in drug dealing, or otherwise linking his cell phone to anything criminal. And while we again do not mean to discount the possibility that the presence of multiple cell phones might, in certain cases, prove significant to a probable cause analysis, this is not one of them.
In sum, given the barren facts and conclusory statements presented in the affidavit of probable cause in this matter, we are unable to find that the issuing authority had a substantial basis for concluding probable cause existed to search appellant’s cell phone. We reach this determination even after according deference to the issuing authority’s probable cause determination and viewing the information in the affidavit in a commonsense and non-technical manner. Consequently, as appellant’s motion to suppress should have been granted with respect to his claim that it was unsupported by probable cause, we reverse the order denying suppression and remand for further proceedings consistent with this opinion.
