No Warrant Needed to Search Abandoned Cell Phone
Posted in Constitutional Rights on August 7, 2024
Many people want to know if the police need to obtain a warrant before searching a person’s cell phone. In Pennsylvania, the answer is that it depends. Given the rise in the importance of cell phones, courts grabbled with a person’s 4th Amendment rights when applied to phones, primarily focusing on whether or not warrants are required to search phones. Both the U.S. Supreme Court and the Pennsylvania Supreme Court have ruled that the police must normally obtain a warrant before they search a person’s phone even if the phone is not locked. The police are not permitted to enter a home, even an unlocked home, without a warrant, and they are generally not permitted to search an unlocked phone without a warrant.
Exceptions that Allow Warrantless Search
While a warrant must generally be obtained in order to search, there are exceptions. One exception frequently used by the police is consent. The police routinely ask for consent to search. Aside from simply asking, police often threaten to get a warrant to search and tell the person “we can do this the easy or the hard way.” While many people believe that such statements are coercive and threatening, most courts do not agree is instead allow such tactics. If a person gives the police consent to search, then the police are not required to obtain a warrant.
Another exception to the warrant requirement is abandonment. The legal theory is quite simple, if a person abandons property, then they can’t complain if another person or the police take it and search it. For example, if I use a gun to kill someone and then throw the gun in the river, I have abandoned the property, and I can’t complain if the police find the property without a warrant.
Legality of Warrantless Search of Cell Phone
Abandonment is generally not an issue with cell phones because most people would not throw away or abandon their phone. The abandonment issue with a cell phone was addressed in the case of Commonwealth v. Kane. In the Kane case, a female student at Villanova University found a cell phone that had been hidden in the bathroom behind a “wet floor” sign. The phone was actively recording the toilet area. Police were called, and they seized the phone. The police then searched the phone without a warrant, and the police found videos from the bathroom, prior videos “upskirting” taken at a CVS store, and videos from a high school. The subsequent police investigation led them to the owner of the phone, and they questioned him. He admitted that he had previously downloaded videos from his phone and saved them on his home computer, and he consented to a search of the computer. The search of the computer led the police to an external hard drive, and they obtained a warrant to search that drive. That search led to the discovery of additional videos of people using the bathroom as well as child pornography. Kane was ultimately charged with Invasion of Privacy, Possession of Child Pornography, and Criminal Use of a Communication Facility.
Kane’s criminal defense attorney filed a motion to suppress and argued that the police should have obtained a warrant before searching the phone. The attorney argued that the phone had not been abandoned because Kane intended to retrieve it, and because the phone had not been abandoned, the police would have been required to obtain a warrant before searching the phone. The defense lawyer also argued even if the phone had been abandoned, the police are always required to obtain a warrant to search a phone regardless of where they found it. The Commonwealth disagreed and argued that the phone was abandoned, and they further argued that any abandoned property can be seized and searched without a warrant.
The Superior Court noted that the 4th Amendment and Article I, Section 8 of the Pennsylvania Constitution only applies if a person has a reasonable expectation of privacy in the item to be searched. The Court then noted that no one can complain about a search or seizure of property if the person voluntarily abandoned the property. A person does not have any expectation of privacy in property that is abandoned. After reviewing the facts, the Court ruled that Kane had voluntarily abandoned the property by intentionally leaving it in the bathroom, so he had no expectation of privacy in the phone. Because he had no expectation of privacy in the phone, the police were permitted to search the phone without a warrant. While the police must generally obtain a warrant to seize and search property, there are exceptions to the warrant, such as consent and abandonment, that allow the police to lawfully search without a warrant. By denying the suppression request, the court affirmed Kane’s convictions.