Police want to search your phone? Get a warrant!

This was a discretionary appeal to the Pa. Supreme Court.  The issue before the Court concerned the warrantless search of a cellphone and whether such a search was harmless in this case.  The resolution of the case relied heavily upon two cases out of the U.S. Supreme Court, Riley v. California and United States v. Wurie, ___ U.S. ___, 134 S.Ct. 2473 (2014).

The facts at play in this case were these:  Philadelphia police responded to a 911 call of the victim who had just been shot.  When responding to the call, police came upon the victim in a car on the sidewalk between a legally parked car and a house.  The victim had told the police that “Jeff” had reached in through his passenger-side window, shot him, and fled on foot in an unknown direction.  He provided a description of “Jeff” to the police.

The victim was hospitalized.  Notably, he had multiple, close-range gunshot wounds to his right side, but he succumbed to his wounds two days later.  At the scene, nonetheless, police collected two cartridge casings from the car—one Winchester brand and one Corbon brand.  A palm print was also lifted from the passenger-side roof.  However, most importantly, the police took the victim’s cell phone, and the call log revealed that in the hours leading up to the shooting the victim had exchanged several brief calls with a “Jeff”.  (The number associated with “Jeff” was linked to a prepaid phone with no subscriber information.)  The victim had also placed a lengthier call to someone referred to as “Red,” within the hour, and the police later learned that that number belonged to a woman named Rosetta Woods.

Fast forward to later in the morning of the shooting, police received another call concerning drug activity and a man with a gun.  Police responded to that location and found several individuals in or around a Mercury Marquis, in which was observed a gun, a holster, and cell phones.  Accordingly, police took four individuals into custody, one of which was fifteen year-old, I. Dean Fulton (the appellant).

Fulton had been sitting inside the vehicle at the time, and police retrieved a smartphone from him at the time of his arrest.  All of the phones that were collected were transferred to the Philadelphia Police homicide division, but none were placed on property receipts.  The detective who had been assigned to the shooting in this case, Detective John Harkins, opened all the phones, powered them on, and searched each phone’s menu to determine its assigned number.  This was done without a warrant.  Nevertheless, doing so, Detective Harkins discovered that one of the phones—a Samsung flip phone—had the telephone number that was linked to “Jeff.”  From there, the detective left the phone on and monitored incoming calls and texts, and he answered a particular call from a Heather Warrington.  When answering, the detective identified himself as a member of the police department investigating a homicide.  He requested that Ms. Warrington meet him in a convenience store parking lot as part of the investigation.  She did, but originally she did not arrive at the appointed time; therefore, the detective had called her on the flip phone and she said she was on her way.

When Ms. Warrington finally arrived, she identified the owner of the phone number as “Lil Jeff.”  She told the detective that she purchased heroin from him on a regular basis.  Detective Harkins ultimately showed Ms. Warrington a picture of Fulton, and she in turn identified Fulton by writing “Jeff” on the photograph.

Two of the the individuals picked up with Fulton were also interviewed by the police.  As part of that interview, one of the individuals told police that he refers to Fulton as “Red Fox” and the other told police that he calls Fulton “Red.”  Each identified Fulton in a photograph using their respective nicknames for him, and each told police that Fulton had confessed to shooting someone under circumstances similar to that of the victim.  Each of their stories differed in material ways from one another and from what the victim had relayed.

Based on all of this information, the police executed a search warrant on the residence where Fulton “sometimes” slept, which was shared by two other individuals.  In the house, but in a bedroom not associated with Fulton, the police discovered a box of Corbon-brand 9mm ammunition.  These bullets were the same brand and caliber as one of the cartridge casings found in the victim’s car.  Accordingly, with this evidence Fulton was charged with the victim’s murder.

Before proceeding to trial, Fulton filed a Motion to Suppress with the trial court arguing that his phone had been unlawfully searched without a warrant.  The trial court denied that motion by reasoning that powering up the cell phone and determining what number was assigned to it was a “minimally invasive search.”  By the trial court’s estimations, Fulton’s constitutional rights had not been violated.  That being the trial court’s ruling, the case proceeded to trial, and a jury convicted Fulton of third-degree murder.  He took an appeal, raising the same issue regarding the search of his phone, and the Superior Court affirmed along the same line of reasoning as the trial court—this was a “minimal” search.  The Superior Court went a step further, however, and raised on its own that even if the search of Fulton’s phone was unconstitutional, that still did not matter because the admission of any evidence stemming from the search of the phone was harmless in the grand scheme of the evidence admitted against Fulton.

The Pennsylvania Supreme Court disagreed with both lower courts.  Justice Donohue writing for a unanimous court, except Justice Mundy who took no part in the decision of the case, wrote quite frankly:

The rule created by [the U.S. Supreme Court] 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.

The Court reasoned to this conclusion, noting the following:

Riley/Wurie does not support the decision of the lower courts (nor the Commonwealth’s arguments in support thereof).  Riley/Wurie could not be clearer: in order to access any information on a cell phone, police must first obtain a warrant.  The high Court created no exception for what police or courts may deem a “minimally invasive” search, as the trial court in the case at bar found, or a “minimal intrusion,” as found by the Superior Court.  [T]he United States Supreme Court expressly rejected a case-by-case approach to determining whether a warrant was required prior to accessing certain information contained in a cell phone, opting instead to adopt a categorical rule prohibiting police from looking for any information on a cell phone without a warrant.

As such, the Supreme Court ruled that the search of Fulton’s phone was unlawful, and everything stemming from it—namely Heather Warrington’s statement and identification—was similarly tainted as it would not have been obtained but for the unlawful search, which included the act of powering up the flip phone, navigating the phone’s menus, and monitoring the phone’s calls and texts, all without a warrant.

The Court went further to say also that it was not “harmless error” to allow evidence stemming from the phone to be brought in at trial.  Below, the Superior Court had determined that this was “harmless error,” pointing out the interviews of the two other individuals picked up with Fulton who told police that Fulton had confessed to a shooting similar to the shooting of the victim.  But, in this regard, the Supreme Court noted that these accounts were “contradicted” and inconsistent with the victim’s own account of events.  In that way, therefore, this evidence was not “uncontradicted evidence of guilt” that was “so overwhelming” as to contribute confidence in the verdict.  The Supreme Court concluded:

[I]n absence of the evidence obtained from the illegal searches of Fulton’s flip phone, there was no uncontradicted evidence, let alone overwhelming evidence, to support Fulton’s guilt for [the victim’s] murder.  No one other than Warrington identified Fulton as “Jeff,” no uncontradicted testimony identified Fulton as the individual with the phone number assigned to “Jeff” in the victim’s phone, and there was no physical or forensic evidence to identify Fulton as the shooter.

For all of these reasons, the Supreme Court vacated Fulton’s conviction and judgment of sentence, and remanded the case back to the Philadelphia Court of Common Pleas.