The PA Superior Court recently decided the case of Commonwealth v. Milburn, No. 3031 EDA 2016 (June 22, 2018), holding that under the totality of the circumstances, of which the “Find My iPhone” app ping was but one factor, officers had specific and articulable reasonable facts that led them to conclude that the individuals in the van were engaged in criminal activity. 

Milburn was conviction of Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in Public in Philadelphia, and Possession of an Instrument of Crime (“PIC”) after being tried for committing an armed robbery of the victim during which time the victim’s iPhone was stolen. Milburn was stopped in a van by police shortly after and not far from the scene of the robbery. Police used the Find My iPhone” app to assist them in locating the iPhone. “Find My iPhone” app is a “pre-installed App that utilizes cellphone tower and satellite technology to show the location of a particular iPhone when that phone is powered on.” The vicim was brought to the location and immediately identified Milburn as his assailant.

Before trial, Milburn filed an Omnibus Pretrial Motion seeking to suppress the victim’s identification of him as the perpetrator of the crime and, the physical evidence obtained by police. In support of his argument challenging the victim’s identification of him, Milburn argued that the identification procedures employed by police were “unduly suggestive and conducive to irreparably mistaken identification.”

As to the initial investigative detention, Milburn claimed that the court should have granted his Motion to Suppress evidence and preclude evidence the Commonwealth obtained from the van because the “ping” from the iPhone App was “the only information suggesting the van’s occupants were the perpetrators” of the robbery.

In response to Milburn’s claim, the arresting officer testified that he has was “very familiar” with the “Find My iPhone” app, and that his knowledge came from both his personal and professional experience. He stated that he used it about 25 times before to assist him in locating missing iPhones. Additionally, once observing the van to be the only vehicle in the vicinity of the “ping” initiated by the app, he observed the van to be driven in a suspicious manner. Accordingly, he initiated the traffic stop of the van because, in his experience, the erratic driving, i.e., nearly hitting a vehicle, driving up on a curb, and nearly hitting a street sign, indicated that the driver was “nervous.”

The Superior Court first outlined the requisite justification for conducting an investigative detention stating, “[i]n order to justify an investigative detention, a police officer must be able to identify ‘specific and articulable facts’ leading her to suspect that criminal activity is afoot.” It then reviewed the fact at hand to determine whether or not the officers stop of the van was justified.

“The facts established that the officers received information regarding a robbery and responded to the scene within a few minutes of receiving the call. The victim gave the officers a detailed description of his assailants and the stolen items, including his iPhone. In addition, the victim told officers he was “fairly sure” the perpetrators fled in a vehicle following the incident.

Due to his personal and professional experience with the “Find My iPhone” app, the officer was able to locate the victim’s iPhone. The App tracked the missing phone to a specific location. And, given his experience with the reliability of the “Find My iPhone” app, the Superior Court concluded that the officer’s belief that the victim’s phone was at the indicated location was reasonable.

In further support of the reasonableness of the investigative stop, the Superior Court noted that “only about one minute elapsed between the time the officer received the notification of the missing phone’s location and when he reached the identified location. And, when the officer reached the area, he saw a van proceeding through the parking lot of a Sunoco gas station. He did not observe any other vehicles or pedestrians. He then saw the van driving erratically, from which he concluded that the operator of the van was either ‘nervous’ or not paying attention to the road.”

Under the totality of those circumstances, of which the “Find My iPhone ping” was but one factor, the Superior Court concluded that the officers had specific and articulable reasonable facts that led them to conclude that the individuals in the van were engaged in criminal activity. Thus, reasonable suspicion existed for them to conduct an investigatory detention of Milburn.

As to the subsequent identification of Milburn by the victim, the appellate court concluded that the subsequent identification procedure employed was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. To the contrary, under the totality of the circumstances, particularly the evidence that the victim had ample opportunity to see Milburn’s face and the proximity in time between the incident and the victim’s identification of Milburn the perpetrator, the court found that the trial court appropriately permitted the admission of the identification evidence.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010359358939024887.pdf?cb=1

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