Improper Police Seizure of Cellphone Data

Updated: Dec 3, 2021


Police Improperly Seize Cellphone Data

A Pennsylvania appellate court has ruled that evidence derived from a police officer casually asking a suspect to see his cellphone without an explanation of the suspect's rights regarding the subsequent "data dump" was correctly suppressed in the criminal case.


Can I Look at Your Phone?

The defendant was suspected of committing a crime. He was asked by the police to come in for informal questioning. The defendant went without his parent or an attorney. The police set him at ease by telling him that he was not under arrest and was free to leave anytime. During the subsequent conversation, the police asked the defendant if they could look at his cellphone. The defendant agreed and showed the police pictures on the phone and the police. The police, after asking the defendant to sign a long, complex “consent form”, downloaded all of the data from the defendant’s cellphone. The defendant was subsequently charged with a crime and the police attempted to use the cellphone data against him at trial.


Court Suppresses the Cellphone Data

The court in Commonwealth v. Gallagher granted the defendant’s motion to prevent the police from using the data from his cellphone against him at trial. The defendant was free to refuse the police’s request to see his phone and could have limited or withdrawn his consent at any time. The court determined that the police failed to inform him of his right to refuse the request to see his cellphone. The form they had the defendant sign also failed to inform him what kind of search and seizure he was agreeing to. The court noted:


Based on the question Gallagher was asked in the context of their conversation, it is 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.


Lessons Learned

If you’re suspected of committing a crime, the stakes are incredibly high for you. Once you’re charged, conviction rates are typically very high. You have to work as hard as possible to avoid being charged in the first place. Getting legal help early in the process is crucial.


There are a few takeaways from this case.


1. Your cellphone data is legally protected. The court reaffirmed U.S. Supreme Court precedent recognizing that it is unlawful for the police to access any information from your cellphone without a warrant or without the fully informed and voluntary consent of the cellphone owner.


2. Don’t Attend a Police Interview Without an Attorney. If the police ask you to come in for questioning, they usually do not have enough information to charge you with a crime or all of the crimes they suspect that you’ve committed. You have no obligation to speak to the police when asked to do so. You should not speak to the police without first speaking with an attorney.


3. Don’t Sign Police Forms Without Speaking with an Attorney. If you’re asked to sign any kind of consent or waiver form by the police, do not sign it without at least reading it. The better course of action would be to not sign it without consulting with an attorney.


If you or your child are asked to speak with the police, do nothing until you’ve consulted with one of the experienced criminal defense attorneys at Fiffik Law Group. We can help protect your rights and defend your reputation and right to liberty.

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