Commonwealth v. Gallagher

An en banc panel of the Pennsylvania Superior Court answered an important question: What must police do to obtain a knowing and voluntary consent to search all or part of a cell phone’s data? During an interview at a police station, a detective asked to look at the defendant’s cell phone. The defendant showed the detective a picture saved in the phone and then signed a consent form to search the phone. After the Commonwealth charged attempted rape and related crimes, the defendant filed an omnibus pretrial motion to suppress evidence gleaned from the police’s “phone dump”. The trial court granted the motion. The Commonwealth appealed and argued that it established that the defendant consented to the search. The Superior Court disagreed and affirmed. The Court ruled that the record showed the detective did not advise the defendant of his rights concerning his cell phone. And the consent form, which the defendant signed, did not explain those rights. The document appeared incomplete because its wording neither explained the rights a person was waiving nor what the person consented to. Accordingly, the authorities never advised the defendant of his constitutional right to privacy of the data stored in his cell phone and that he was free to deny the request for consent to search. Thus, the defendant did not make a knowing and voluntary waiver of his rights.

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