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Turning on a Cell Phone Without Warrant Violated Fourth Amendment

Commonwealth v. Fulton, 2018 WL987963 (Pa. 2018)

Dean Fulton, also known as Jeff, Lil' Jeff, Red Fox or Fox, is a drug dealer accused of fatally shooting Michael Toll, a customer, when Toll made a move that Fulton interpreted as reaching for a gun. Before he died, Toll told responding officers that "Jeff" reached into the car and shot him several times. Officers recovered two fired cartridge casings (a Winchester casing and a Cor-bon casing) and also examined Toll's cell phone. They found Toll had repeatedly called a number identified as "Jeff" in the contacts list.

Two days later, officers responding to a "man with a gun" call found four men in or near a sedan, including Fulton and Eric Adams. When the officers saw a gun, they arrested all four men, seized a smartphone from Fulton, and took several other phones from the sedan.

A detective later powered on each phone and identified the respective assigned phone numbers. He learned that one of the phones had the same number Toll had called (the number identified as "Jeff" in Toll's contacts list). The detective left the phone on and later answered an incoming call. The caller met with the detective and admitted she regularly bought heroin from "Lil' Jeff" and contacted him at the same number. She identified a photo of Fulton as Lil' Jeff.

The series of events that began with turning on the phones led to other witness interviews. Adams admitted he was with Fulton when Fulton shot Toll. A search warrant for Fulton's residence turned up a box of Cor-bon bullets. Fulton was charged with murder.

Fulton argued that discovery of all the evidence against him began with the detective turning on the phone without a search warrant. The trial court ruled that turning on the phone was a "minimally invasive search." The court also ruled that Fulton lacked a reasonable expectation of privacy for incoming phone calls, including the call answered by the detective. The court further stated that any error in the search was "harmless" and did not warrant evidence suppression. Fulton was convicted of murder.

The state supreme court overturned Fulton's conviction. The court applied the U.S. Supreme Court decisions in Riley v. California and United States v. Wurie (134 S.Ct. 2473 (2014)), which held that officers must obtain a search warrant to search cell phones of people they arrest. The Pennsylvania high court identified three separate warrantless searches of Fulton's phone: powering it on, finding the assigned number, and answering incoming calls and monitoring messages.

The court agreed with Fulton that the critical evidence all flowed from searches of his phone. The court held that the very act of turning on the phone and examining the screen was a "search." Applying a strict interpretation of the Supreme Court Riley/Wurie decision, the court held the search required a warrant. Thus, all the evidence tied to the phone in any way should have been suppressed.

Not all courts have taken such a strict view of the Court's Riley/Wurie decision (see, e.g., State v. Ferrell, (2018 WL 710058 (N.C. App. 2018)) or State v. Strawser (2017 WL 5513617 (W.V. 2017)). Though the court's opinion doesn't discuss whether the detective had probable cause to obtain a warrant to search Fulton's cell phone and whether he could have taken the time to seek a warrant, it seems likely—given the circumstances of the arrest and Fulton's history—that a warrant could have been obtained. Now the state is left deciding whether to try Fulton again, this time without the evidence derived from the illegal searches.