PA Superior Court: Police Must Obtain “Meaningful Consent” Before Searching a Cell Phone Without a Warrant

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gallagher, holding that the trial court properly suppressed evidence collected from a defendant’s phone because the Commonwealth had not established that the defendant provided “meaningful consent to the invasive search it performed.” In this case, the defendant had actually consented to a search, but the Superior Court ultimately found that the extraction of the full contents of the phone exceeded the scope of the defendant’s consent. Therefore, the evidence should be suppressed. 

Commonwealth v. Gallagher

An officer with the Adams Township Police Department responded to a 911 dispatch from a 16-year-old female caller reporting that she had been the victim of an attempted kidnapping and had escaped and was in hiding. She testified that she also had suffered a head injury. The officer drove to the complainant’s stated location and found her. According to the officer, she was “hysterical, panicky, and scared.” The complainant told the officer that she had been picked up in McKeesport by the defendant and his friend. They stopped at a gas station and at a cemetery where they drank alcohol. Afterwards, they went to meet a friend. She did not remember anything else. She claimed that she woke up on the side of a road with someone on top of her and their hand down the front of her pants. She also claimed that her pants and underwear were pulled down. She then ran away and hid in the woods. 

The complainant said the defendant was the one on top of her. She was eventually transported to a local hospital to conduct a sexual assault examination. An unknown amount of time later, the defendant was arrested under suspicion for driving under the influence. He was given his Miranda rights and interviewed for about an hour and a half. During the interrogation, a detective asked the defendant if he could look at his cell phone. The defendant did not object and showed the detective a picture of the two girls he was with the previous weekend. The defendant also signed a consent to the search of stored electronic media. The relevant part of this statement said “I [defendant] having been advised of my rights by [the police] consent to having my computer hardware and all equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical, or similar computer impulses or data.” The police then seized evidence from the defendant’s phone. 

Police eventually arrested the defendant and charged him with attempted rape and other offenses. The defendant filed a pretrial motion seeking suppression of evidence from the “phone dump” conducted by the police during the interview. At the hearing, the trial court granted the defendant’s pretrial suppression motion, suppressing all the evidence that was seized from the defendant’s cellphone. The Commonwealth filed an appeal and argued that this suppression order substantially handicapped its prosecution. 

The Superior Court’s Panel Decision

On appeal, the Commonwealth argued that “[c]ommon 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.” The defendant argued that the consent form that he signed “did not advise him what his rights where, and [the detective] never told him that he was free to leave and free to withhold consent.” A three-member panel of the Superior Court agreed with the defendant and affirmed the trial court’s decision. The Commonwealth then filed an application for re-argument with a full panel of the Superior Court.

The Pennsylvania Superior Court’s En Banc Decision  

The Pennsylvania Superior Court affirmed the trial court’s decision. The Superior Court agreed with the trial court that “the Commonwealth did not establish that the defendant consented to the cell phone dump” and that the form used by detectives “fails to explain [the defendant’s] rights with regard to stored data.” Additionally, the form did not explain what the defendant was consenting to. Further, the detective asking the defendant “if he minded if we looked at his phone” did not make it clear that the police intended to do a complete data dump of his phone. Therefore, the defendant must still stand trial for the aforementioned charges, but the Commonwealth will not be allowed to use the evidence they obtained from his phone at trial.    

Facing Criminal Charges? We Can Help. 

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.