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Posted by on Feb 26, 2018 in Appellate, Criminal, Fourth Amendment, Harmless Error, Search | 0 comments

Com v. Fulton: Warrantless Cell Phone searches violate both Constitutions

In a relatively-unsurprising re-affirmation of recent SCOTUS caselaw, the Supreme Court of Pennsylvania ruled 6-0 in Commonwealth v. Fulton that a warrantless search of a cell phone is unconstitutional and must be suppressed. SCOPA also ruled that the search violates Article I, section 8 of the Pennsylvania Constitution, which places this ruling out of the reach of any changes in Federal search jurisprudence in the future.

The Philadelphia Police (who once arrested one of the world’s first serial killers), after arresting I. Dean Fulton on gun charges, kept his cell phone separate from the other evidence and, without obtaining a warrant, monitored incoming calls to the phone, and answered them. After meeting with Heather Warrington, who called the phone looking to buy heroin, homicide detectives were able to discover a wealth of physical evidence which, along with Warrington’s testimony, led to Fulton’s conviction for a recent murder.

Majority by Donohue: Riley v. California already decided this, and we agree

In a unanimous opinion, Justice Donohue rules for the 6-0 majority that SCOTUS’s decision in Riley v. California controls the search of any cell phone, and that the officer’s actions in this case violated that ruling. The Court further rules that such a search is clearly unreasonable, and should be seen as a violation of the Commonwealth’s Constitution as well. Rejecting the Superior Court’s ruling that the “specific intrusion complained of” in the search in this case was “minimal,” the Court noted that Riley established a per se rule against cell phone searches without a warrant.

The more interesting analysis is that of harmless error. The Court notes that a witness’s testimony is not suppressed as often as physical evidence because a witness may choose to come forward on his own, and may not need to be discovered via a warrantless search. To put it differently, it is more likely that a witness may come forward and therefore be attenuated from the illegal search than discovered documents or hard evidence. A major factor to consider, then, is whether the witness would likely have come forward voluntarily or not.

In this case, the witness was a heroin addict, and unlikely to be cooperative with police or to come forward voluntarily. The police only discovered her existence by monitoring incoming calls to the cell phone, and were unlikely to discover her otherwise. Therefore, the witness’s testimony is suppressed, along with all the hard evidence discovered as a result of the search.

Conclusion: Could have been a summary reversal

The Court’s opinion is well-reasoned, and a minor victory for privacy advocates. This case was not difficult; SCOTUS caselaw was clear on the point, and the Commonwealth’s argument that a warrantless search that led to all of the evidence in the case was “harmless” was untenable. The Court probably could have issued a summary reversal for proceedings consistent with Riley, but perhaps wanted to flesh out the nature of “harmless error” in the context of a witness’s testimony.

Finally, worth noting, in footnote 19, the Court notes that Fulton did not litigate whether harmless error can be found by a court sua sponte, and leave the question “unsettled.” This invitation for a challenge to the Superior Court’s consideration of harmless error sua sponte should be noted by the appellate bar for future challenges.

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Posted by on Feb 23, 2018 in Criminal, Fourth Amendment, Seizure, Suppression | 0 comments

Com v. Yong: Collective Knowledge Doctrine Affirmed

When two police officers independently have the information necessary to constitute probable cause, but they have not communicated these facts to each other, is the arrest of the defendant constitutional? The Supreme Court of Pennsylvania says yes, in a 4-2 ruling in Commonwealth v. Yong.

Mr. Yong’s suspected drug dealing in Philadelphia (home of the World Champions) was the subject of surveillance by the Philadelphia Police in 2011. During that time, he was observed by Officers McCook and Morales conducting marijuana transactions. The record reveals that Officer McCook “met up with . . . other officers” and “brief[ed] them on the execution of the search warrant.” One of these other officers was Officer Gibson, who arrested Yong during the search and discovered a gun on his person. Marijuana was recovered in substantial amounts from the premises, and Yong was charged with various drug related crimes.

The collective knowledge doctrine allows officers to have the knowledge of other police officers “imputed” to them for Fourth Amendment purposes. Two approaches have been adopted by courts: vertical and horizontal. The vertical approach involves a situation where an officer with probable cause orders another officer to act (“Arrest that man!”). Courts have broadly ruled this this situation imputes probable cause. The horizontal approach is the controversial one—can a group of officers, each of whom holds a piece of the puzzle, be rendered a unit for the purpose of probable cause?

Majority by Mundy: Officer with Probable Cause may impute his knowledge to another Officer

Justice Mundy, writing for the 4-member majority, writes that the knowledge of a police officer with probable cause may be imputed to the arresting officer under the collective knowledge doctrine if they “are working in a coordinated investigation and not as independent law enforcement personnel . . . coincidentally.” Noting that there are “serious concerns for protecting citizens from unconstitutional intrusions,” the majority rejects the horizontal approach, but finds that a vertical approach is supported by the facts of this case.

The majority places particular weight on the pre-search briefing that took place. Surely there was communication of probable cause at that time, or at the very least, an order to arrest Yong if he was seen. Accordingly, the majority has no qualms that an illegal search took place here. “[W]e maintain that Pennsylvania adheres to the vertical approach of the collective knowledge doctrine, which instructs that an officer with the requisite level of suspicion may direct another officer to act in his or her stead.”

Dissent by Donohue: Proof of Communication should be Required for Vertical Approach

Justice Donohue dissents, accusing the majority of “announc[ing] a new rule that permits uncommunicated knowledge of one police officer to justify an arrest conducted by another officer.” Donohue would require evidence of actual communication, not imputed authority.

Conclusion: An Odd Vehicle for this Holding

Appellate courts traditionally look for good “vehicles” to resolve major issues of law. In other words, they prefer cases that cleanly present the issue. In this case, the Court, having found vertical collective knowledge, need not have made any determination on the horizontal approach. Clearly, the Court was eager to provide guidance on this, and to some extent, it is appreciated by practitioners at the criminal bar. Nonetheless, the Court usually tries to take cases where an analysis can take place without leaving the facts at hand, which did not happen here.

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