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Hey … mind if we look at your phone?

by | Oct 13, 2021 | Firm News

The PA Superior Court en banc has recently affirmed the trial court’s suppression of cell phone data obtained by police, finding that Defendant’s “consent” to a phone data dump was not knowing and voluntary.


Noting that this issue raised “an important question as to 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 appellate court concluded the Commonwealth fell short in establishing that Defendant made a knowing and voluntary waiver of his rights as to search of his cell phone’s contents.


Given the totality of the circumstances, neither the verbal exchange nor the waiver form Defendant Gallagher was provided established that Gallagher made a knowing and voluntary waiver of his rights.


In this case, Defendant Gallagher was under investigation for a sexual assault. While at the police station, he was informed by the interviewing 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 officer asked Gallagher “if he minded if we looked at his phone.”


When analyzing Gallagher’s initial verbal consent to permit the police to “look” at his phone, 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 Superior Court then observed that “[b]ecause the verbal exchange did not put Gallagher on notice as to the true scope of the search sought, the trial court properly focused next on the [written] form Gallagher was given and asked to sign.”


Gallagher was asked to sign a consent form for electronic media which appeared to be extremely broad in scope; however, the trial court found that the actual wording of the form neither explained the rights which Gallagher was waiving nor what he was, in fact, consenting to. Additionally, the record reflected that Gallagher was never advised of his constitutional right to privacy concerning the data stored in his cell phone or that he was free to deny the request for consent to search.


Noting that the form did not mention any rights that the subject of an investigation has nor did it put the subject on notice as to the type of data that police may glean, the Superior Court also found “no basis to disturb the trial court’s factual findings as to the form in question.”


Citing the U.S. Supreme Court’s landmark decision in Riley v. California and United States v. Wurie, 573 U.S. 373 (2014), the Superior Court reaffirmed the need to protect cell phone data from unwarranted governmental intrusion, stating


Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.


With regard to the “consent” obtained by the government to perform such an intrusive search, the Superior Court concluded that “[o]ne 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. A person’s right to delimit the scope of consent to a search is well established.’”


The Superior Court found that these protections were not provided to Gallagher, and the Commonwealth failed to establish a meaningful consent to such an “invasive search” of his cell phone. Accordingly, the trial court’s suppression was affirmed.





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