December 9, 2021
In spring 2021, following a reargument en banc the
Pennsylvania Superior Court was faced with an “important” question, “What
police must do to obtain a knowing and voluntary consent to search by
permission all or part of a cellular phone’s data.”
The case came to the Superior Court following a
decision by the Butler County Common Pleas Court. The trial judge suppressed
evidence extracted from a defendant’s phone and the commonwealth appealed. Last
fall, a three-member panel of the Superior Court affirmed the trial court’s
order to suppress, and in December 2020 the court granted the commonwealth’s
application for reargument.
Judge Daniel D. McCaffery of the Pennsylvania
Superior Court summarized the facts of the case in his Oct. 12 opinion
in Commonwealth v. Gallagher, No. 1529 WDA 2019, 2021 PA Super 204 (en
banc). On Nov. 9, 2014, an officer with the Adams Township Police Department in
Butler County responded to a 911 call from a 16-year-old female who was
“hysterical, panicky and scared.”
The young woman told the officer that she had been
picked up in McKeesport by the defendant, Tod A. Gallagher, and his friend.
They consumed alcohol, after which she claimed she woke up on the side of a
road with the defendant on top of her with his hand down the front of her
pants. She then ran and hid in the woods.
After a brief investigation, the defendant,
Gallagher, was summoned to the police station. While at the station, he was
informed by a detective that he was not under arrest and was free to leave at
any time. He agreed to speak with the detective and, during the conversation,
the detective asked Gallagher “if he minded if we looked at his
phone.” Gallagher was then asked to sign a consent form for electronic
media.
During the interview the police did a “data dump” of
Gallagher’s phone. Some of the data was cited in the case against Gallagher for
attempted rape. Defense counsel filed a motion to suppress.
The Superior Court concluded that “in the context of
their conversation, it was far from clear that “looking at” his phone would
include a complete data dump, as opposed to flipping through his photograph
folder, which is what Gallagher was doing when the officer asked if Gallagher
would mind if he looked at it.
The court did not believe that the exchange between
the detective and Gallagher put him “on notice as to the true scope of the
search sought.” The court then turned its attention to “the written form
Gallagher was given and asked to sign.”
The trial court found the form lacked a clear
explanation of what the signer was waiving, and the extent of the search to
which the signer submitted. The record also revealed that Gallagher was never
advised of his constitutional right to privacy nor was he told he was free to
deny the request to look at his phone.
The Superior Court found “no basis to disturb the
trial court’s factual findings as to the form in question.”
The cellphone has earned a special status in terms
of search and seizure. In Riley v.
California and United States v. Wurie, 573 U.S. 373 (2014),
the U.S. Supreme Court found that “Cellphones differ in both a quantitative and
a qualitative sense from other objects that might be carried on an arrestee’s
person. Notably, modern cellphones have an immense storage capacity. Before
cellphones, a search of a person was limited by physical realities and
generally constituted only a narrow intrusion on privacy. But cellphones can
store millions of pages of text, thousands of pictures, or hundreds of
videos.”
The Supreme Court in Riley was considering
the lawfulness of a cellphone search after an arrest. Police searched David
Riley’s cellphone after he was arrested on gun charges and found evidence of
gang activity. The Fourth Amendment requires police to obtain a warrant before
they conduct a search unless an exception applies. The exception at issue in
Riley’s case was a search incident to a lawful arrest.
The U.S. Supreme Court held unanimously that police
must first obtain a warrant before searching an arrested person’s
cellphone.
The high court continued, “A decade ago officers
might have occasionally stumbled across a highly personal item such as a diary,
but today many of the more than 90% of American adults who own cellphones keep
on their person a digital record of nearly every aspect of their lives.”
The prosecution in Gallagher argued,
“Common sense and a view of the surrounding situation would indicate to any
reasonable, semi-intelligent person that if a request is being made of him, the
converse option is also a possible right available to him.”
Gallagher countered that the township’s consent form
“did not advise him what his rights were, and the detective never told him that
he was free to leave and free to withhold consent.”
A request to “look at” a suspect’s cellphone is not
the same as downloading all of the data in a cellphone—the amount of which only
a few years ago was beyond comprehension. While requesting to look at a single
photograph or photographs may involve a simple matter of consent, a data dump
will require the explanation of the suspect’s rights, a specific acknowledgement
of the scope of the search and the knowing and voluntary waiver of those
rights. Otherwise, a search warrant is required.
“If a person is showing another a certain feature or
application on their phone and was asked ‘hey, can I look at that?’” McCaffrey
continued, “it would be reasonable to assume that they were being asked about
that particular feature or application (in this situation, the photograph
application) as opposed to a global capture of all data on the device.”
The court in Gallagher, concluded, “One who
consents to a search retains the right to control the scope of consent given;
this is intrinsic to the nature of consent and the consent exception to the
warrant requirement.”
In closing, McCaffrey wrote, “Given the totality of
the circumstances, neither the verbal exchange nor the form Gallagher was given
can establish … that Gallagher made a knowing and voluntary waiver of his
rights to the cellphone.” The en banc court affirmed the order of suppression.
Matthew T. Mangino is of counsel with
Luxenberg, Garbett, Kelly and George and the former district attorney of
Lawrence County. He is the author of The Executioner’s Toll. You can
follow him on twitter @MatthewTMangino or contact him
at mmangino@lgkg.com.
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