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Warrantless Searches and Cell Phones

Prosecutors don't expect Pennsylvania to move toward warrantless cellphone searches anytime soon

Published: Sunday, August 07, 2011, 7:53 PM Updated: Sunday, August 07, 2011, 8:02 PM

By MATTHEW KEMENY, The Patriot-News

Reviewed by Attorney Elisabeth K.H. Pasqualini, Criminal Law Division Leader, Harrisburg, PA

These days, many people keep their lives on their smart-phones.

But what happens if you get arrested? Can police freely access texts, emails, voice mail, Internet searches, pictures and other data?

In Pennsylvania, the answer is no. But elsewhere in the country, warrantless cellphone searches are becoming more common.

To access cellphone searches in Pennsylvania, police need a subpoena. Harrisburg-area prosecutors don't expect that to change anytime soon.

The Oregon State Supreme Court is set to hear arguments in a case where police searched a criminal suspect's phone without a warrant after the suspect had been arrested and put in a holding cell. Police contend the search was legal because of an exception to the warrant requirement allowing officers to search for weapons or to prevent evidence from being destroyed in certain circumstances.

But others disagree, saying the police overstepped their bounds and violated the Fourth Amendment, which protects against illegal search and seizure.

The California Supreme Court ruled this year that it's legal for police to search a suspect's cellphone without a warrant. Courts in Florida and Georgia also have upheld warrantless cellphone searches, according to recent published news reports.

In Pennsylvania, police need a search warrant or consent to search a cellphone, and mid state prosecutors do not expect that to change anytime soon. To get cellphone records, police need a subpoena.

"We've got our own framework that works well," Dauphin County First Assistant District Attorney Fran Chardo said. "It's a significant privacy issue. There ought to be safeguards, and Pennsylvania has a system where records are disclosed depending on a good showing of why you need them."

The Dauphin County district attorney's office obtains warrants to search cellphones five to 10 times a month, Chardo said. The records are often helpful in shooting and drug cases.

Police also need probable cause to get a warrant to search a phone.

To prevent the issue from reaching the courts here, a mid state lawmaker wants to introduce a bill this fall that would better define the law in Pennsylvania. Though it hasn't been drafted, the measure would protect electronic documents from being searched without a warrant, said state Rep. Bryan Cutler, R-Lancaster County.

To Cutler, there shouldn't be a difference between a cellphone and a briefcase in plain view in a vehicle. Police should need a warrant to gain access to either, he said.

"I know that oftentimes individuals say, 'If you're not doing anything wrong, why be worried?'" Cutler said. "Our basic constitutional rights must be protected."

Review by Attorney Elisabeth K.H. Pasqualini

Police searches of the contents of a cell phone (names, numbers, data, web info) are all protected by the privacy guarantees of the Pennsylvania Constitution, Article I Section 8. In order to obtain a warrant the police must need probable cause. Probable cause in lawyer lingo is "facts and circumstances that would lead a reasonably prudent person in the belief that a crime has, is, or will occur." It's a reasonableness test based upon all the facts and circumstances known to the officer at the time of the warrant request. A neutral, detached magistrate is to pass on the probable cause, which is expressed in a written document known as a "probable cause affidavit." The magistrate can only review the information contained within the "four corners" of the document and cannot allow any additional information or personal knowledge come into play before granting the warrant application.

If you've been arrested or were the subject of a search of your personal papers, documents, computers, cell phone or other personal items, contact an experienced attorney immediately. Do not speak to the police without counsel. Call Shaffer & Engle Law Offices, LLC (717) 268-4287.