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2021 PA Super 204
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TOD A. GALLAGHER : No. 1529 WDA 2019
Appeal from the Order Entered September 23, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000407-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY McCAFFERY, J.: FILED: OCTOBER 12, 2021
The Commonwealth appeals from the Butler County Court of Common
Pleas’ order of suppression. This matter, which is before the Court en banc
after this Court granted reargument, raises an important question as to what
police must do to obtain a knowing and voluntary consent to search by
permission all or part of a cellular phone’s data. The Commonwealth argues
that it established that Appellee Tod A. Gallagher (Gallagher) gave such
consent and the trial court erred in finding otherwise. Because the
Commonwealth has not established meaningful consent to the invasive search
it performed, we affirm.
The trial court summarized the underlying facts as follows:
At [the motions] hearing, Patrolman Chris Kopas
[(“Patrolman Kopas”)] testified that he has been employed with
the Adams Township Police Department for five[-]and[-]a[-]half
years []. He testified that on November 9, 2014[,] at 1:42 a.m.,
he responded to a 911 dispatch from a female caller reporting an
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attempted kidnapping who [sic] had escaped and was hiding. The
female caller was 16[ ]years[ ]old and reported that she had a
head injury. Patrolman Kopas proceeded to the location[,] which
was in the general location of the self-storage units on Mars-Evans
City Road in the township. The patrolman found the female and
reported that she was hysterical, panicky[,] and scared. An EMS
unit responded to check her well-being and[,] during that time,
[the victim] told the patrolman that she was picked up in
McKeesport by [Gallagher] and Cody Seagriff [(“Seagriff”)] earlier
in the evening. They stopped at a gas station and the Evans City
Cemetery[,] where they drank alcohol, after which they went to
1260 Mars-Evans City Road to see Joe Perkins [(“Perkins”)]. The
female next reported that she woke up on the side of a road with
someone on top of her and their hand down the front of her pants.
She claimed that her pants and underwear were pulled down. She
was able to get away and hid in the woods.
...
The victim believed the individual who was on top of her was
[Gallagher]. The victim was transported to UPMC Cranberry to
conduct a sexual assault examination.
Trial Ct. Op., 9/30/19, at 1-2.
Gallagher was arrested under suspicion for driving under the influence.
He was informed of his rights under Miranda,1 and interviewed for about one-
half hour until his father arrived to take him home. The trial court offers the
following summary of what happened next:
At [the] hearing, Detective Michael Bailey [(“Detective
Bailey”)] [ ] testified. He has been employed as a police officer
for approximately seventeen (17) years and was assigned to
investigate this case. Patrolman Kopas informed the detective of
the allegations and evidence collected. [Detective] Bailey
contacted [Gallagher] on November 18, 2014[,] and left a
message. [Gallagher] came to the station on November 19,
2014[,] to talk about the incident. Det[ective] Bailey informed
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1 See Miranda v. Arizona, 384 U.S. 436 (1966).
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[Gallagher] that he was not under arrest and that he was free to
leave at any time. [Gallagher] agreed to have a conversation.
Det[ective] Bailey asked [Gallagher] if he could look at his
cell phone. [Gallagher] did not object and showed [Detective
Bailey] a picture of the two girls that he was with the previous
weekend. Commonwealth’s Exhibit “2” is the township’s consent
form to search stored electronic media. [Gallagher] signed it on
November 19, 2014 . . . .
Id. at 2-3.
The consent form stated, in full:
CONSENT TO SEARCH OF STORED ELECTRONIC MEDIA
I [Tod Gallagher, handwritten] having been advised of my
rights by [Michael Bailey, handwritten], consent to having my
computer hardware and all equipment which can collect,
analyze, create, display, convert, store, conceal, or
transmit electronic, magnetic, optical, or similar computer
impulses or data [sic]. Hardware includes (but is not limited
to) any data-processing devices (such as central processing units,
memory typewriters, and self-contained "laptop" or "notebook"
computers); internal and peripheral storage devices (such as fixed
disks, external hard disk drives and diskettes, tape drives and
tapes, optical storage devices, transistor-like binary devices, and
other memory storage devices); peripheral input/output devices
(such as keyboards, printers, plotters, video display monitors, and
optical readers); cell phones, pagers, PDA"s [sic] (personal
desktop assistants) and related communications devices (such as
modems, cables and connections, recording equipment, RAM or
ROM units, acoustic couplers, automatic dialers, speed dialers,
programmable telephone dialing or signaling devices, and
electronic tone-generating devices); as well as any devices,
mechanisms, or parts that can be used to restrict access to
computer hardware such as physical keys and locks).
Consent to Search of Stored Electronic Media (single page), 11/19/14
(emphasis added).
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Gallagher, who was charged with attempted rape and related charges,2
filed an omnibus pretrial motion on June 19, 2019, seeking (inter alia)
suppression of evidence gleaned from the “phone dump” conducted by police
during the interview described above. The trial court conducted a hearing on
July 22, 2019. The court granted, in part, Gallagher’s pretrial suppression
motion, suppressing all evidence seized from Gallagher’s cell phone. The
Commonwealth filed the instant timely appeal, certifying per Pa.R.A.P. 311(d)
that the suppression order substantially handicapped its prosecution, and
timely complied with the trial court’s order per Pa.R.A.P. 1925(b). On October
28, 2020, a three-member panel of this Court affirmed the order of
suppression, with one Judge concurring in part and dissenting in part. On
December 29, 2020, this Court granted the Commonwealth’s Application for
Reargument, which was filed on November 6, 2020.
On reargument, the Commonwealth presents the following claim for our
review:
[W]hether the record supports the trial court’s finding that . . .
Appellee did not knowingly consent to the search and seizure of
the stored cell phone data.
Commonwealth’s Rearg. Brief at 1.
We apply the standard and scope of review as articulated by our
Supreme Court:
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2 18 Pa.C.S. § 901(a), where the attempted crime is 18 Pa.C.S. § 3121(a)(1).
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When reviewing a ruling on a motion to suppress, this Court is
bound by the factual findings made by the suppression court that
are supported by the record but review its legal conclusions de
novo. [ ] Our scope of review is limited to the record developed
at the suppression hearing, considering the evidence presented by
the . . . the prevailing party and any uncontradicted evidence
presented by [the party bringing the appeal].
Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018) (citations
omitted).
The Commonwealth argues that under the circumstances surrounding
Gallagher’s alleged consent to search his phone, “it is rather obvious that the
right to refuse the search was known” to Gallagher. Commonwealth’s Rearg.
Brief at 2-3. “Common sense and a view of the surrounding situation would
indicate to any reasonable, semi[-]intelligent person that if a request is being
made of him, the converse option is also a possible right available to him.”
Id. at 3.
Gallagher points out that the consent form given to him “did not advise
[him] what his rights were, and Detective Bailey never told [him] that he was
free to leave and free to [withhold] consent.” Gallagher’s Rearg. Brief at 5.
“Detective Bailey’s testimony is consistent with him basically asking
[Gallagher] if he could look at his phone [but the] record is far from clear as
to whether [Gallagher] ever consented, voluntarily or involuntarily, to a search
of all data on his phone.” Id.
The trial court noted, in support of its conclusion that “the
Commonwealth did not establish that [Gallagher] consented to the cell phone
dump,” that the form used by detectives “fails to explain [Gallagher’s] rights
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with regard to the stored data,” and “the form fails to explain what [Gallagher
was] consenting to.” Trial Ct. Op., 9/30/19, at 3. In its opinion per Pa.R.A.P.
1925(a), the trial court cited Schneckloth v. Bustamonte, 412 U.S. 218,
249 (1973), for the principle that voluntariness is a question of fact to be
determined from the relevant circumstances of the search and consent
thereto. Trial Ct. Op., 11/19/19, at 1. “We hold [ ] that when the subject of
a search is not in custody and the State attempts to justify a search on the
basis of his consent, the Fourth and Fourteenth Amendments require that it
demonstrate that the consent was in fact voluntarily given, and not the result
of duress or coercion, express or implied.” Schneckloth,
412 U.S. at 248.
In Fulton, our Supreme Court applied Supreme Court of the United
States precedent in reaching the conclusion that “accessing any information
from a cell phone without a warrant contravenes the United States Supreme
Court’s decision in Riley v. California and United States v. Wurie, 573 U.S.
373 (2014) (hereinafter, “Riley/Wurie”).” Fulton,
179 A.3d at 479.3
The Riley/Wurie Court described cell phones as “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” and as “based
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3 In Riley/Wurie, the Supreme Court held that police generally must obtain
a warrant to search digital information from a cell phone seized incident to
arrest. Riley/Wurie, 573 U.S. at 403 (“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.”).
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on technology nearly inconceivable just a few decades ago . . . .”
Riley/Wurie, 573 U.S. at 385.
Cell phones differ in both a quantitative and a qualitative sense
from other objects that might be kept on an arrestee’s person.
The term “cell phone” is itself misleading shorthand; many of
these devices are in fact minicomputers that also happen to have
the capacity to be used as a telephone. They could just as easily
be called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or
newspapers.
One of the most notable distinguishing features of modern cell
phones is their immense storage capacity . . .
. . . The current top-selling smart phone has a standard capacity
of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen
gigabytes translates to millions of pages of text, thousands of
pictures, or hundreds of videos. [ ] Cell phones couple that
capacity with the ability to store many different types of
information: Even the most basic phones that sell for less than
$20 might hold photographs, picture messages, text messages,
Internet browsing history, a calendar, a thousand-entry phone
book, and so on. . . . We expect that the gulf between physical
practicability and digital capacity will only continue to widen in the
future.
The storage capacity of cell phones has several interrelated
consequences for privacy. First, a cell phone collects in one place
many distinct types of information—an address, a note, a
prescription, a bank statement, a video—that reveal much more
in combination than any isolated record. Second, a cell phone’s
capacity allows even just one type of information to convey far
more than previously possible. The sum of an individual’s
private life can be reconstructed through a thousand
photographs labeled with dates, locations, and
descriptions; the same cannot be said of a photograph or two of
loved ones tucked into a wallet. Third, the data on a phone can
date back to the purchase of the phone, or even earlier. A person
might carry in his pocket a slip of paper reminding him to call Mr.
Jones; he would not carry a record of all his communications with
Mr. Jones for the past several months, as would routinely be kept
on a phone.
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Finally, there is an element of pervasiveness that characterizes cell
phones but not physical records. Prior to the digital age, people
did not typically carry a cache of sensitive personal information
with them as they went about their day. Now it is the person who
is not carrying a cell phone, with all that it contains, who is the
exception. According to one poll, nearly three-quarters of smart
phone users report being within five feet of their phones most of
the time, with 12% admitting that they even use their phones in
the shower. [ ] A decade ago police officers searching an arrestee
might have occasionally stumbled across a highly personal item
such as a diary. [ ] But those discoveries were likely to be few and
far between. Today, by contrast, it is no exaggeration to say that
many of the more than 90% of American adults who own a cell
phone keep on their person a digital record of nearly every aspect
of their lives—from the mundane to the intimate. [ ] Allowing the
police to scrutinize such records on a routine basis is quite
different from allowing them to search a personal item or two in
the occasional case.
Id. at 393-95 (emphasis added; citations and footnotes omitted). The Court
pointed out that cell phones also allow users (and police) to access yet more
data kept in “cloud computing” storage, thus offering up potentially unlimited
quantities and types of data touching upon every area of the user’s life. Id.
at 397.
That Court also observed that officers who are concerned that a
sophisticated subject of investigation might be able to render data stored on
a cell phone inaccessible (by data wiping or encryption) “can turn the phone
off or remove its battery” or can place the phone in a Faraday bag where the
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phone is completely isolated from any external signal that would alter or omit
data.4 Riley/Wurie, 573 U.S. at 390.
“The burden of proving a valid consent to search, since it represents a
waiver of a substantial constitutional right, rests with the Commonwealth;
and, the courts will indulge every reasonable presumption against such
waiver.” Commonwealth v. Griffin, 336 A.2d 419, 421 (Pa. Super. 1975).
“[V]oluntariness may be established by the Commonwealth if all the facts and
circumstances indicate that the consent was voluntarily given.”
Id.
The suppression notes reflect that the investigating officer, Detective
Bailey, testified that Gallagher showed him a photograph that was stored on
his phone, and the officer then asked Gallagher “if he minded if we looked at
his phone.” N.T. Suppression, 7/22/19, at 31. Gallagher was then asked to
sign a consent form regarding electronic media. Id. Based on the question
Gallagher was asked in the context of their conversation, it is far from clear
that “looking at” his phone would include a complete data dump, as opposed
to flipping through his photograph folder, which is what Gallagher was doing
when the officer asked if Gallagher would mind if he “looked at” it. If a person
is showing another a certain feature or application on their phone and was
asked “hey, can I look at that?”, it would be reasonable to assume that they
were being asked about that particular feature or application (in this situation,
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4 Faraday bags are “essentially sandwich bags made of aluminum foil: cheap,
lightweight, and easy to use” in preventing external signals to reach the cell
phone stored therein. Riley/Wurie, 573 U.S. at 390.
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the photograph application) as opposed to a global capture of all data on the
device. One who consents to a search retains the right to control the scope
of consent given; this is intrinsic to the nature of consent and the consent
exception to the warrant requirement. “A person’s right to delimit the scope
of consent to a search is well established.” Commonwealth v. Guerrero,
646 A.2d 585, 587 (Pa. Super. 1994) (citation omitted).
Because the verbal exchange did not put Gallagher on notice as to the
true scope of the search sought, the trial court properly focused next on the
form Gallagher was given and asked to sign. The trial court concluded as
follows:
[Detective] Bailey explained that he did not advise [Gallagher] of
his rights with respect to his cell phone and acknowledged that
the form submitted . . . does not explain those rights either. [ ]
The form appears to be incomplete in that the heading of the form
states, “CONSENT TO SEARCH STORED ELECTRONIC MEDIA”, but
the actual wording of the document neither explains the rights
which a person is waiving nor what they are in fact consenting to.
The record reflects that [Gallagher] was never advised 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.
Trial Ct. Op., 11/19/19, at 3. We can find no basis to disturb the trial court’s
factual findings as to the form in question.5 Without knowing the true scope
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5 The form does not mention any rights the subject of an investigation has. It
focuses, rather, on covering a broad variety of electronic items, including
“memory typewriters” and pagers. Consent to Search of Stored Electronic
Media. It does not put the subject on notice as to the type of data that police
may glean. The critical sentence as to consent is itself incomplete: “I, [space
for handwritten name], having been advised of my rights by [space for
(Footnote Continued Next Page)
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of consent sought and the nature and extent of rights he was waiving, it is
hard to see how Gallagher could have made a knowing, voluntary waiver of
those rights and consent to a total capture of all cell phone data, including
data he may not have known the phone contained.
Given the totality of the circumstances, neither the verbal exchange nor
the form Gallagher was given can establish, as the Commonwealth must, that
Gallagher made a knowing and voluntary waiver of his rights as to the cell
phone. Therefore, we must affirm the order of suppression.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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officer’s name], consent to having my computer hardware and all equipment
which can collect, analyze, create, display, convert store, conceal, or transmit
electronic magnetic, optical, or similar computer impulses or data.” Id. The
sentence does not say what they consent to having done with their hardware,
as the sentence is incomplete. Although the form indicates that the named
officer advised the named subject of their rights, that did not occur here.
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