Filed under: Criminal Law by Contributor @ March 21, 2018

The Pennsylvania Supreme Court has ruled that police may seize your cellphone but may not search it without a warrant. Relying on the United States Supreme Court decisions in Riley v. California and United States v. Wurie, the Court held that a warrantless search of the contents of cell phone violates the Fourth Amendment.

In Commonwealth v. Fulton, the cellphone of a homicide victim, Toll, was seized and subsequently searched. Toll’s call log revealed that he had been communicating with two phone numbers listed as “Jeff” and “Red” in the hours before his death. The day that Toll succumbed to his injuries was the same day that police were called to Lindbergh Boulevard in Philadelphia to investigate illegal drug activity. Upon their arrival, officers discovered guns, a holster, and cell phones inside the suspects’ vehicle and subsequently took the four suspects into custody. While searching the four suspects’ phones, police discovered that the number of one of the phones was the same number that was saved as “Jeff” in Toll’s phone. Detectives continued to monitor the seized phones and at one point answered an incoming phone call. The caller indicated that she was calling the phone to purchase drugs from a man she referred to as “Lil Jeff”.  “Lil Jeff” was later identified as Fulton. Further investigation into Fulton and his involvement in Toll’s death showed that Toll had been shot by Fulton in a “drug deal gone wrong”. Later, Fulton was charged with murder, possessing an instrument of crime, and several violations of the Uniform Firearms Act.  Nearly two months after the phones were searched, the Commonwealth sought warrants to examine the content of the phones, despite admitting to already having done so.

Fulton filed a motion to suppress based on alleged unlawfulness of the search and seizure of his phone without a search warrant. His motion was denied by the trial court because an inquiry into what number was assigned to each cellphone was “minimally invasive” and did not require a search warrant.  Fulton was convicted of third-degree murder and he subsequently appealed. Basing his argument on Riley and Wurie, Fulton alleged that the warrantless search of his phone was unconstitutional under both the United States Constitution and Pennsylvania Constitution and that the officer’s consequential contact with the caller must be suppressed. In response, the State argued that the invasion was minimal because the phone’s assigned number is public information and, as such, no search occurred. Thus, Fulton’s rights could not have been violated.

The Pennsylvania Supreme Court recently ruled on the Fulton case. In its opinion, the Court noted that while the warrantless seizure of phones can be permissible pursuant to a search incident to arrest, a subsequent search of the phones’ contents was impermissible without a search warrant. The Court held that a warrant must be obtained by police to lawfully search a cellular phone. Despite some information within cellular phones being publicly available, the Court explained that the phones’ contents, in terms of quantity and quality, necessitates greater protection from searches.  Looking at the case at hand, the Court determined that Fulton’s phone was searched three separate times without a warrant. The first search occurred when the phone was powered on, the second when the phone’s number was obtained, and the third occurred when the phone’s activity was monitored. Summarizing the take-away from this decision, the Court stated that the Riley and Wurie rule requires law enforcement to obtain a warrant to gather or view information within a cellular phone and failing to obtain said warrant is a violation of the Fourth Amendment.

We have seen multiple cases in Montgomery County where law enforcement searched a cell phone without a warrant.  Our guess is that this practice will cease as a result of the Fulton decision, but only time will tell.  The Court’s holding may also be only the beginning of a more liberal Pennsylvania Supreme Court view regarding the constitutional protections that will be granted to citizen’s non-physical property as technology evolves and our personal devices become further ingrained in our daily lives.

To view the Fulton case please visit:



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