White Collar Alert

Earlier this summer, we discussed the implications of the Supreme Court’s ruling in Riley v. California, which held that police officers cannot review the contents of a cell phone incident to an arrest absent a search warrant or exigent circumstances. We opined that this bright-line rule would clear up the murky waters created by courts less decisive or intrepid and now, not even three months later, the patience of our nation’s courts in tolerating warrantless cell phone searches has already waned.

Just last week, a New York State trial court suppressed photographs seized from the cell phone of a court observer during the 2012 high-profile sexual assault matter involving Satmar spiritual counselor, Nechemia Weberman. People v. Weissman, 2012KN002159, 2014 WL 4209245 (N.Y. Crim. Ct. Aug. 26, 2014). During the course of the Weberman trial, the presiding judge admonished those in the gallery to refrain from using their cell phones. Despite the judge’s explicit direction, the defendant removed his cell phone from his pocket and took photographs of others in attendance at the trial, including the female complainant while she testified.

When defendant Weissman attempted to exit the courtroom, he was stopped by an officer who seized his phone, scrolled through two to three photographs, and then identified the pictures that the defendant took while in the courtroom. While the court conceded that the officer’s initial investigation was reasonable, in part, because “the courthouse is an environment where persons have diminished expectations of privacy,” it also held that the officer was not permitted to physically seize the phone and view its contents without a warrant. The judge found the search was too expansive in nature and highlighted the officer’s viewing of two to three pictures prior to finding the relevant photos as prohibited under Riley. Id.

The Pennsylvania Superior Court, too, has applied the Riley rule, thereby affirming their intent to protect citizens’ expectation of privacy when it comes to the treasure troves of data found on our cell phones. In July, the Superior Court affirmed the lower court’s suppression of photographs found on a cell phone, relying on Riley in finding the seizure “undoubtedly unconstitutional.” Com. v. Stem, 2014 PA Super 145 (Pa. Super. Ct. July 11, 2014). There, although the cell phone was seized incident to arrest, the police turned on the phone, searched the cell phone data, and proactively accessed the phone’s picture application prior to obtaining a warrant. Although the police officer only viewed a single photo that he believed to be child pornography prior to applying for a search warrant, the court suppressed all seventeen photos containing child pornography, unmistakably delineating them fruit of the poisonous tree.

As Riley continues to sweep the nation state by state, rest assured that you can continue to tweet, Facebook, and text to your heart’s content knowing that the Fourth Amendment’s protections (finally) apply to your most treasured possession – your cell phone.