Search Warrant needed to search seized Smartphones

Pennsylvania Superior Court held that a search warrant must be obtained to search Smartphones seized search incident to arrest.

“The specific issue that we address in this case is whether a police officer may search the data contained on a modern day cellular telephone, often referred to as a “smart phone” due to the computer-like capabilities of the devices, without a warrant pursuant to the search incident to arrest exception to the warrant requirement prescribed in both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Very recently, the United States Supreme Court resolved this exact issue in a unanimous opinion in Riley, and in Riley’s companion case, Wurie v. United States. The Court considered both cases in a consolidated opinion.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014).

“The Supreme Court held that:

1 interest in protecting officers’ safety did not justify dispensing with warrant requirement for searches of cell phone data, and

2 interest in preventing destruction of evidence did not justify dispensing with warrant requirement for searches of cell phone data.” Riley v. California, 134 S. Ct. 2473 (2014). Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014).

“Police officer could not constitutionally conduct warrantless search of defendant’s cellular telephone incident to his arrest for criminal trespass, where defendant’s arrest was for reasons unrelated to his telephone.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014)

“The Court proceeded to consider how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. The Court held that the doctrine cannot be extended to such devices, and held instead that officers must generally secure a warrant before conducting such a search.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014)

“In so holding, the Court first considered the interplay between the two principal concerns underlying the search incident to arrest exception, police safety and preservation of evidence, and modern cellular devices, beginning with police safety. The Court first rejected the notion that such a device, by its very nature, poses a threat to a police officer, stating that: [d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014)

“The Court then turned its attention to the second rationale, and the one that the United States and California primarily focused upon, the prevention of the destruction of evidence. The Court noted that both Riley and Wurie conceded that the police constitutionally were permitted to seize and secure their telephones in order to prevent the destruction of evidence during the time it takes to obtain a valid search warrant. Observing that this concession was “sensible,” the Court immediately concluded that ‘once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.’ ” Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014)

“Finally, the Court recognized that its decision will have an impact on the ability of law enforcement to combat crime,” but nonetheless reminded us that ‘[p]rivacy comes at a cost.’ The Court concluded as follows:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. 2014)

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Remain silent or make admissions?

We have the best judicial system in the world. Under the United States Constitution and Pennsylvania Constitution, we have the right to remain silent. The right to remain silent also means one cannot be forced to testify against oneself.

“Defendant’s prearrest silence may not be admitted into evidence when the defendant does not testify at his own trial.” Com. v. DiNicola, 751 A.2d 197 (Pa. Super. 2000).

Before talking with officers, making any admissions, or confessions, one should always confer and/or have an attorney present. However, it is up to you what you want to do. Just know that the majority of cases initiated get past a preliminary hearing and head off to Common Plea Court not only because the burden is so low, but because of the alleged defendants admissions, openly talking to arresting officers, admitting to crimes, or admitting to things that one thinks are not crimes, and even worse, thinking that if one is honest and truthful, one will not be charged. Wrong. A majority of cases would not exist but for one not remaining silent. Remember to always confer with an attorney before choosing to not remain silent.

The United States of America has the greatest legal system in the world. It is not perfect because people have not evolved into perfection, yet. People are fallible, so the system is only as good as the people running it, but we still have the best legal system in the world.

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Hearing Date Scheduled for Preliminary Objections to the Perry County Auditor’s Complaint

On July 21, 2014, Huntington County President Judge George Zanic issued an Order in Barbara Hench, et al (Perry County Auditors) v. Sheriff Carl Nace, docket no. 2014-454, directing that the Auditors are to file a brief in response to Sheriff Nace’s Preliminary Objections on or before August 21, 2014 and the hearing on the Preliminary Objections is scheduled for August 28, 2014, at 10:30am in Courtroom #2 of the Perry County Courthouse.

You can download a copy of the Order – here.

You can find a copy of the Preliminary Objections – here.

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PA Firearms Law Seminar – August 2, 2014

On August 2nd, 2014, Chief Counsel Joshua Prince and Attorney Eric Winter of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with King Shooter Supply, will offer a four (4) hour seminar on state and federal firearms law at their store located at  346 E Church Rd, King of Prussia, Pennsylvania 19406.

The cost is $10 and you must register by July 30, 2014. You can download a copy of the registration form, here.  All registrations are to be mailed or dropped off at King Shooter Supply, 346 E Church Rd, King of Prussia PA 19406. If you have questions, please feel free to contact King Shooter Supply at 610-491-9901 .

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“What does it mean when the final WC order grants benefits and grants termination?”

by Karl Voigt

Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

“What does it mean when the final WC order grants benefits and grants termination?

My workers compensation order says I’ve been granted reinstatement and benefits through the circulation of the order. The order then states the termination petition has been granted for a date prior to the circulation date. What does this mean?”

I have to agree that, assuming you were represented, this is a question best posed to your attorney. However, I would be most curious to know upon what facts the judge relied in terminating your benefits as of the date prior to the circulation of the order.

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Settlement in Philadelphia Class Action Lawsuit Regarding Disclosure of Confidential LTCF Information

I am proud to announce that a settlement has been reached with the City of Philadelphia in the matter of John Doe, et al.,  v. City of Philadelphia, et al, Philadelphia Court of Common Pleas docket no. 121203785, stemming from the City’s posting and disclosing of what we alleged was confidential license to carry firearms (LTCF) information. You can download a copy of the Press Release – here. This was a collaborative effort between Benjamin R. Picker, Esquire of McCausland Keen & Buckman, Jonathan Goldstein, Esquire of McNelly & Goldstein, LLC, Jon Mirowitz, Esquire, and myself.

As a result of the Settlement, the City will pay $1.425 million to the class and will be separately responsible for the costs of administering the settlement. Further, and of similar importance, the City has agreed to a number of policy changes, which can be found starting on page 11 of the Settlement Agreement, including:

  1. Not to disclose LTCF applicant information either electronically or in-person;
  2. Annual training of the Philadelphia Police Department and Philadelphia License and Inspection Board of Review on the confidentiality of LTCF applicant information;
  3. Customer service training for the Philadelphia Gun Permit Unit;
  4. Posting a copy of the LTCF Application Notice on its website and where LTCF applications and appeals can be submitted or obtained, as well as, providing a copy to anyone who has his/her LTCF denied or revoked;
  5. The City will not require references on the LTCF application and will not contact any references listed on the LTCF application;
  6. The City will not require lawful immigrants or US Citizens with a US Passport to provide naturalization papers;
  7. The City will not require any applicant to disclose whether he/she owns a firearm during the LTCF application process;
  8. The City will not deny an application because the applicant answered “no” to any question regarding whether the applicant had been charged/convicted of any crime where the applicant received a pardon or expungement from the charge or conviction;
  9. The City will process all LTCF applications within 45 calendar days;
  10. The City will remit $15.00 to any applicant who is denied within 20 days;
  11. The City will not require LTCF applicants or holders to disclose to law enforcement that they have an LTCF, that they are carrying a firearm or that they have a firearm in the vehicle; and
  12. The City will not confiscate an LTCF or firearm, unless there is probable cause that the LTCF or firearm is evidence of a crime. In the event an LTCF or firearm is confiscated, the officer must immediately provide a property receipt, which shall include the pertinent information

A copy of the signed and filed Settlement Agreement can be downloaded – here. Philadelphia Court of Common Pleas Judge Jacqueline Allen has signed an Order preliminarily approving the terms of settlement, which you can download – here. A copy of the Second Amended Complaint can be downloaded – here.

 

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Preliminary Objections Filed Against the Perry County Auditors’ Complaint

For those of you following the declaratory action that was filed against Perry County Sheriff Carl Nace by the Perry County Auditors, Firearms Industry Consulting Group (FICG) Chief Counsel Joshua Prince has filed preliminary objections to the Complaint on behalf of Sheriff Nace. You can download a copy of them – here. When a hearing date is set, we will let you know, so that you can come out and support Sheriff Nace!

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