Matthew T. Mangino
Pennsylvania Law Weekly
March 1, 2018
On June 15, 2010, Michael Toll called 9-1-1 and reported he
had been shot on a street corner in Philadelphia. A police officer responded
and found Toll in his vehicle. He was still conscious, and like something out
of an Agatha Christie novel, Toll told the officer that “Jeff” had reached
through his window and shot him. He died two days later.
Toll’s dying declaration set in motion an investigation that
even the clever Christie would never have contemplated. The investigation led
to a suspect, the search of a cellphone and intriguing things like “fruit of
the poisonous tree,” “purged taint,” and the exclusionary rule. This case was a
murder mystery wrapped in a law school exam.
The same day that Toll died, the police were called
regarding a person with a gun. The police found four males—one being I. Dean
Fulton. A gun was found, the men were arrested and incident to Fulton’s arrest,
his cellphone was taken into custody.
Ultimately, all of the cellphones were “opened, powered up
and the menu [was] searched for a phone number corresponding to each phone.” A
detective discovered Fulton’s phone, a Samsung flip phone, had the number
267-206-7343; the same number was stored in Toll’s phone under the name “Jeff.”
Subsequently a detective kept the cellphone on his desk and
answered a phone call from a woman on Fulton’s phone. The woman was a heroin
user and called Fulton to buy drugs. The woman met with police and identified a
photograph of Fulton whom she knew as “Jeff.”
Fulton sought to suppress the evidence taken from his phone
as a result of the warrantless search of his cellphone. The suppression motion
was denied and Fulton was convicted of third degree murder. The decision of the
trial court was affirmed by the Superior Court and last month the Pennsylvania
Supreme Court weighed in on this important Fourth Amendment issue.
The issue in Commonwealth v. Fulton, No. 3 EAP 2017,
decided Feb. 21, 2018, is whether powering on a cellphone to gather evidence,
without a warrant, violates the Fourth Amendment to the U.S. Constitution
and Article I, Section 8 of the Pennsylvania Constitution.
Fulton argued that the trial court erred by denying his
motion to suppress all information derived from the discovery of the
267-206-7343 cellphone number. Fulton relied on the U.S. Supreme Court decision
in Riley v. California, and its companion case United States v. Wurie,
134 S. Ct. 2473 (2014) (Riley), and the Superior Court’s decision in Commonwealth
v. Stem, 96 A.3d 407 (Pa. Super. 2014) to assert that “the police may not open
a … cellphone without first obtaining a search warrant for the cellphone.”
Not all warrantless searches are in violation of the Fourth
Amendment or Article 1, Section 8 of the Pennsylvania Constitution. There are
at least four clear exceptions to the warrant requirement. First there is the
search incident to arrest exception; then the search in the presence of exigent
circumstances; the automobile exception; and the “plain view” exception.
Prosecutors in Fulton suggested that the search by
police was lawful because it was incident to arrest. The physical confiscation
of the cellphone was incident to arrest and lawful without a warrant. How about
turning it on, looking for the phone number and answering a call?
Judge Norman H. Stahl of the U.S. Court of Appeals for the
First Circuit wrote in the lower court opinion in Wurie, “That [cellphone]
information is, by and large, of a highly personal nature: photographs, videos,
written and audio messages (text, email and voicemail), contacts, calendar
appointments, web search and browsing history, purchases and financial and
medical records.” He added, “It is the kind of information one would previously
have stored in one’s home.”
Prior to the decision in Riley, federal appellate
courts were deeply split on the application of constitutional protections to
modern technology. Riley’s attorney said at the time, “At least six courts hold
that the Fourth Amendment permits such searches, while at least three others
hold that it does not.”
Chief Justice John Roberts, writing for a unanimous court
in Riley, suggested, “One of the most notable distinguishing features of
modern cellphones is their immense storage capacity … The storage capacity of
cellphones has several interrelated consequences for privacy … The sum of an
individual’s private life can be reconstructed through a thousand photographs,
labeled with dates, locations, and descriptions; the same cannot be said of a
photograph or two of loved ones tucked into a wallet.”
The U.S. Supreme Court reasoned in Riley that the
privacy concerns related to the search of a cellphone far exceed any such
concerns related to the search of other physical items.
The Robert’s court took a look at evolving technology and
asked if the owner of a cellphone had a reasonable expectation of privacy with
regard to the contents of the cellphone. The court determined that the owner of
a cellphone does have a protected expectation of privacy and absent a warrant
any search of the contents of the phone is unlawful.
The Pennsylvania Supreme Court in Fulton followed
the reasoning in Riley. Justice Christine Donohue wrote, “The Riley/Wurie court
held that in the absence of an applicable exception, any search of a cellphone
requires a warrant.”
The exceptions to the search warrant requirement are
premised on the impracticality of obtaining a warrant under circumstances such
as hot pursuit, destruction of evidence or automobile searches.
In Fulton, no such exigency existed. The police
had possession of the cellphone lawfully through the arrest of Fulton. The
police could have easily obtained a warrant without the concern of evidence being
destroyed or moved away.
The Pennsylvania Supreme Court was faced with the question
of whether the warrantless search of the cellphone, and the identification of
Fulton that arose as a result of answering the phone, should be excluded.
The matter proceeded on two levels. Initially, was the
evidence subject to the exclusionary rule?
The landmark decision of Mapp v. Ohio, 367 U.S. 643
(1961) provided that if evidence was obtained due to police misconduct the
evidence would be excluded from trial. The exclusionary rule was already in
place on a federal level and Mapp made it applicable to the states.
The decision gave some muscle to the court to deter police misconduct.
The Fulton court held that accessing any
information from a cellphone without a warrant contravened the U.S. Supreme
Court’s decision in Riley, and was therefore excludable.
Evidence of any kind obtained by police through an unlawful
search may not be used in any respect, including as evidence at trial against
the subject of the search, Wong Sun v. United States, 371 U.S. 471, 485–86
(1963). As a result the identification of Fulton was fruit of the poisonous
tree.
Next, prosecutors argued that the clear violation of
Fulton’s constitutional rights was harmless error.
Pursuant to Commonwealth v. Burno, 154 A.3d 764 (2017),
harmless error exists if the commonwealth proves either: the error did not
prejudice the defendant; or the erroneously admitted evidence was merely
cumulative of other untainted evidence; or the properly admitted and uncontradicted
evidence of guilt was overwhelming.
Justice Donohue wrote in Fulton, “The Superior Court
erred by finding the warrantless searches of Fulton’s flip phone [and the phone
caller’s interview and testimony] were permissible because they only minimally
intruded on his privacy interests.”
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George. His book, “The Executioner’s Toll,” 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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