PA SUPREME COURT PUTS POLICE ON NOTICE: If you want to obtain information from a cell phone, get a warrant.

The PA Supreme Court has decided the case of Commonwealth v. Fulton, No. 3 EAP 2017 (February 21, 2018), holding that accessing any information from a cell phone without a warrant contravenes the United States Supreme Court’s decision in Riley v. California and United States v. Wurie, 134 S. Ct. 2473 (2014) (hereinafter, “Riley/Wurie”).

 During the investigation of a homicide, police seized a phone from the deceased (Toll) and viewed the call and texting activity leading up to the time of the shooting that led to his death. They also discovered phone numbers that had been used by others to communicate with Toll. A subsequent investigation of drug activity and a man with a gun two days later led police to arrest Fulton and three others during which time the police seized their phones. A number assigned to one of the phones was linked to a number discovered in the activity log of  Toll’s phone.

The lead detective assigned to the case was given the seized phones. He opened each phone, powered them on and searched each phone’s menu to discern its assigned phone number. It was determined that the number for one of the recovered cell phones, a Samsung flip phone, was the same number assigned to “Jeff” in Toll’s cell phone. The detective did not secure a warrant prior to accessing the information from the seized cell phones. He also left the Samsung flip phone powered on and monitored the phone’s incoming calls and texts by viewing either its internal or external display screen. Additionally, he answered a call on that cell phone, identifying himself as a member of the police department investigating a homicide. During that call, he made arrangements to speak with an individual (Warrington) who told him that she had called the number to arrange to buy drugs from “Lil Jeff” who she ultimately identified as Fulton after being shown his picture.

Additional investigation led to Fulton being charged with with murder, possessing an instrument of crime, and several violations of the Uniform Firearms Act.

Approximately two months after the lead detective had already searched the phones that were seized, the Commonwealth filed a motion before the trial court seeking permission to access call logs and contact information from the phones seized by police in order to determine if any of the phones recovered were in fact the phone assigned the number in Toll’s phone log. The prosecutor candidly admitted that he filed the motion without knowing that police had already searched the flip phone without a warrant and obtained the information sought.

Fulton filed suppression Motions challenging the lawfulness of the seizure of his flip phone and the permissibility of the search of the phone without a warrant. The Motions were denied by the trial Court. He thereafter “challenged the trial court’s decision to deny suppression of the fruits of the warrantless search of his flip phone, asserting that the phone’s number and information obtained from Warrington should have been suppressed. Relying on Riley/Wurie, Fulton argued that the search violated his rights under both the United States and Pennsylvania Constitutions.” The Superior Court denied his appeal which brings us to this decision.

In response to Fulton’s claims that his right to be free from unreasonable searches and seizures under the U.S. and PA State Constitutions was violated, the Commonwealth argued that no search of the phone occurred because police navigated the menus of the phone only to obtain the phone’s assigned number, which is “public information” in which Fulton had no expectation of privacy. Thus, when police powered on and obtained the flip phone’s assigned number, they did so as part of the police care-taking function.

The PA Supreme Court noted that, in Riley/Wurie, the United States Supreme Court held that although the warrantless seizure of the cell phones from Riley and Wurie was permissible as the result of a search incident to arrest, the subsequent searches of their phones was not. Instead, the Court held that to lawfully search a cell phone, police must first obtain a warrant. The Court explained that although cell phones contain information that is, in substance, the same as physical items that are permissibly searched incident to an individual’s arrest pursuant to Fourth Amendment jurisprudence (e.g., an address book, a wallet or a purse), the quantity and quality of data that can be stored on cell phones place them in an entirely different class for purposes of a search.
The PA Supreme Court further noted that “the Riley/Wurie Court held that in the absence of an applicable exception, any search of a cell phone requires a warrant. This is because, like one’s home, an individual’s expectation of privacy is in the cell phone itself, not in each and every piece of information stored therein. Consequently, a warrant is generally required for law enforcement to search a cell phone.

In applying the Riley/Wurie analysis to the facts of this case, the PA Supreme Court concluded that the detective conducted three distinct searches of Fulton’s cell phone without a warrant. The first occurred when the detective powered on the phone. The second warrantless search occurred when he obtained the phone’s assigned number. And, the third warrantless search of the phone occurred when he monitored incoming calls and text messages.

The Court then reiterated that “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.”

Accordingly, the decision of the Superior Court was reversed and the matter remanded to the Philadelphia County Court of Common Pleas for further proceedings.


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