Your cell phone contains a wealth of information about you. From your call logs and text conversations to your search history and geographic location, your cell phone almost certainly contains more information than anything else you own – and potentially even more than everything else in your home combined.
It is this fact that led the U.S. Supreme Court to decide in 2014 that the police cannot access your phone without a warrant. In the case of Riley v. California, the Court ruled that the privacy protections afforded under the Fourth Amendment to the U.S. Constitution prevent law enforcement from searching suspects’ phones. While the police may be able to seize your phone without a warrant in certain circumstances (i.e. incident to an arrest), they cannot access the data on your phone unless a warrant has been issued by a court of competent jurisdiction.
In Pennsylvania, the Police Cannot Search Your Phone Without a Warrant
In Pennsylvania, this is true even if you do not have your phone protected by a passcode, pattern lock, fingerprint, or facial recognition. In the 2018 case of Commonwealth v. Fulton, the Pennsylvania Supreme Court ruled that any means of access to cell phone data by law enforcement without a warrant violates the owner’s Fourth Amendment rights as set forth in the U.S. Supreme Court’s decision in Riley.
In Fulton, the police accessed the defendant’s unprotected flip phone without a warrant; and, after the lower court allowed evidence obtained from the defendant’s phone to be used against him, the Pennsylvania Supreme Court reversed. In the words of the Court:
“The Superior Court erred by finding the warrantless searches of [the defendant’s] flip phone was permissible because they only minimally intruded on his privacy interests, removing this case from the protection provided to cell phones by the United States Supreme Court in [Riley v. California]. All evidence obtained from the warrantless searches of [the defendant’s] flip phone, including the phone’s assigned number, the existence of [a witness] and all of the information obtained through her meeting with police, were subject to suppression as fruits of the illegal searches.”
This is an important decision for individuals facing criminal charges [LINK TO https://www.thefishmanfirm.com/defense-attorney/] in Pennsylvania, as it not only clearly states that a warrant is required to access a suspect’s or arrestee’s cell phone, but also that unlawful access to a person’s phone can result in any evidence obtained from the phone being deemed inadmissible in court.
Cell Phone Search vs. Access to Cell-Site Location Information (CSLI)
With regard to law enforcement access to cell phone data, there is an important distinction between user data (i.e. text messages, call logs, emails, and browser history) and geographic tracking data, also known as cell-site location information (CSLI). Both are potentially useful to law enforcement, but both are also generated and stored by very different means.
Unlike the data a person generates by actively using their phone, CSLI has generated automatically on a continuous and ongoing basis. In order to connect to local cell towers and maintain the strongest possible signal, your cell phone is constantly transmitting location data to your cell service provider. While some courts had previously ruled that law enforcement agencies could obtain CSLI from cell service providers without a warrant, in 2018 the Supreme Court ruled that a warrant was necessary to access CSLI.
What Should You Do if the Police Ask for Your Cell Phone in Pennsylvania?
With these legal protections in mind, what should you do if a Pennsylvania police officer asks you to grant him or her access to your cell phone?
1. Ask If You are Free to Leave
First, ask if you are free to leave. If you are not under arrest or being detained for a lawful search, then in most cases you are not required to submit to police questioning. Be polite and do not resist if the officer attempts to make an arrest, but be clear in your intention not to provide any information that is not legally required.
2. Ask if the Police Officer Has a Warrant
You are also well within your rights to ask if the police officer has a search warrant. If he or she says, “Yes,” you have the right to request to see the warrant as well. Any search warrant issued in Pennsylvania should clearly describe the location and scope of the search that has been authorized, and you are not required to permit any inspection beyond what is explicitly authorized in the warrant.
3. Do Not Voluntarily Consent to a Search of Your Cell Phone
If the officer asks (or demands) to see your cell phone, you should politely decline. If you voluntarily consent to a search of your cell phone – even if you were not aware that you had the right to refuse – then many of your legal protections will go away. Unless the officer has a warrant specifically authorizing access to your cell phone, you do not have to comply with a request to hand it over or unlock it.
4. Do Not Enter Your Passcode or Pattern Lock
While you may be required to provide access to your phone via a fingerprint or facial recognition, the U.S. Supreme Court has clearly established that a suspect or arrestee cannot be forced to provide access via a passcode or pattern lock. The Supreme Court has stated that forced disclosure of a passcode or pattern lock amounts to a violation of the Fifth Amendment privilege against self-incrimination.
5. Request to Speak with a Criminal Attorney
Finally, the best way to protect yourself during a police stop or arrest is to request to speak with an attorney. An experienced Pennsylvania criminal law attorney will be able to quickly advise you of your rights and communicate with the police on your behalf.
Call 267-758-2228 for a Free Consultation
If you are facing a criminal investigation or criminal charges in Pennsylvania, criminal attorney Brian Fishman can help protect your legal rights. To learn more in a free and confidential consultation, call 267-758-2228 or tell us how to reach you online now.