The PA Supreme Court “recently explained that, where law enforcement seeks to search a cell phone seized incident to arrest, the applicable rule is “exceedingly simple: . . . get a warrant.” This week, the Court published Commonwealth v. Johnson, No. 25 WAP 2019 (Pa. 10/21/20), a case for which the Court “granted discretionary review … to consider an issue that [was] not so simple: the permissible scope of such a warrant, under Article I, Section 8 of the Pennsylvania Constitution, to search an individual’s cell phone for evidence relating to illegal narcotics activity and firearms possession.”
Irrespective of Johnson presenting an issue of first impression, the Court – in a 4-3 decision – concluded that the case was actually “less complicated than the question suggest[ed]” because the search warrant “was so lacking in probable cause that it failed to justify any search of appellant’s cell phone.”
In Johnson, police officers responded to an anonymous 911 call of shots fired in a particular apartment during the early morning hours. As they approached the apartment, they could smell burning marijuana coming from inside and could hear people moving. The officers knocked and announced their presence but received no answer for several minutes. When a woman finally answered, officers detained her and four other individuals following a protective sweep, during which they also discovered in plain view two bricks of heroin on a shelf and three stolen firearms hidden together above a hot water tank. All five individuals were placed under arrest and, during a search incident to arrest, two cell phones each were recovered from Johnson and another man. A warrant was obtained to search the apartment, resulting in the discovery of additional drugs and cell phones.
Four months after the initial arrest, a warrant was obtained to search Johnson’s cell phones for “electronic evidence of the possession of illegal firearms, and the distribution and possession of heroin which is stored within the body of the cellular phone ….”
Johnson filed a Motion to Suppress any evidence found as a result of the cell phone search, arguing that the warrant lacked probable cause and was also overbroad. The Commonwealth argued that the discovery of multiple cell phones found on Johnson’s person, coupled with the fact that he was present in an apartment where drugs and guns were found, provided the probable cause basis for searching his cell phone.
The Supreme Court rejected the Commonwealth’s “notion that, simply because there was probable cause to arrest Johnson for constructively possessing the drugs and guns found in another’s apartment, there was necessarily probable cause to search his cell phone for evidence of those same offenses.” In fact, upon outlining the Affidavit of Probable Cause for the search warrant at issue, the Court commented, “[n]aturally, one might pause at this juncture to wonder, What do appellant’s cell phones have to do with the drugs and firearms in the apartment?”
The Court explained that “where law enforcement seeks to search a person’s cell phone based on the person’s mere proximity to illegal contraband, some link sufficient to connect the two must be provided in the affidavit of probable cause.” And, since the “affidavit of probable cause in [Johnson’s] case provide[d] little more than the bare fact that [Johnson] was present in a place where illegal contraband happened to be found,” it was insufficient to supply probable cause for the warrant.