Commonwealth v. Fulton
| Decision Date | 21 February 2018 |
| Docket Number | No. 3 EAP 2017,3 EAP 2017 |
| Citation | 179 A.3d 475 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. I. Dean FULTON, Appellant |
| Court | Pennsylvania Supreme Court |
Lawrence Jonathan Goode, Esq., Jonathan Michael Levy, Esq., Philadelphia District Attorney's Office, for Appellee.
Cheryl J. Sturm, Esq., for Appellant.
OPINION
In this discretionary appeal, we consider the permissible scope of a warrantless search of a cell phone by police and the confines of the harmless error doctrine. Specifically, we must determine whether powering on a cell phone to gather evidence, without a warrant, violates the Fourth Amendment to the United States Constitution1 and Article I, Section 8 of the Pennsylvania Constitution,2 and, if so, whether the decision to allow the Commonwealth to present evidence obtained as a result of the warrantless search was harmless beyond a reasonable doubt. For the reasons that follow, we hold 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 , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (hereinafter, " Riley/Wurie ").3 We further conclude that the error of admitting the evidence obtained as a result of the warrantless search of the cell phone in this case was not harmless. See Commonwealth v. Story , 476 Pa. 391, 383 A.2d 155 (1978). We therefore reverse the decision of the Superior Court and remand the matter to the Philadelphia County Court of Common Pleas for further proceedings consistent with this Opinion.
In the early morning hours of June 15, 2010, Michael Toll called 9–1–1 and reported that he had been shot. Police responded, locating Toll in a vehicle on the sidewalk between a legally parked car and a house at 56th Street and Florence Avenue in Philadelphia. Toll informed police that "Jeff" had reached in through the passenger-side window of Toll's vehicle, shot him and then fled on foot in an unknown direction. The shooting occurred in the 5400 block of Florence Avenue. Toll described Jeff as a slim black male wearing white shorts and a white t-shirt. Toll had multiple close-range gunshot wounds on the right side of his body. He was taken to the hospital for treatment.
Police photographed and searched Toll's vehicle. There was a wadded twenty dollar bill on the floor between the driver's seat and the doorframe and a personal organizer containing a calendar, money and other papers located on the front passenger seat. Police recovered two fired cartridge casings—one Winchester brand and one Corbon brand—from the floor of the car, and a latent palm print from the roof on the passenger side of the vehicle.
The cell phone in Toll's hand when police arrived at the scene was also recovered from the vehicle. The call log in Toll's cell phone revealed that in the hour preceding the shooting, Toll exchanged several brief calls with an individual listed as "Jeff" with a phone number ending in 7343 (hereinafter, the "Target Number").4 Police attempted to discern the person associated with that number, but discovered it was linked to a prepaid phone with no subscriber information. Also within the hour before the shooting, Toll placed a lengthier call to an individual referred to in the call log as "Red" with the phone number ending in 8932. Police learned that this phone number belonged to a woman named Rosetta Woods.
Toll ultimately succumbed to his injuries on June 17, 2010. That same morning, police received a call concerning drug activity and a man with a gun behind 6032 Lindbergh Boulevard in Philadelphia. Police responded and found several individuals in and around a 2002 green Mercury Marquis. After observing a gun, holster and cell phones in the vehicle, police took four individuals into custody: Randolph Bell, Anthony Byrd, Eric Adams, and I. Dean Fulton. Fulton had been sitting inside the vehicle. Police seized a smartphone5 from Fulton's person at the time of his arrest. Police subsequently obtained a search warrant for the vehicle as part of the investigation into violations of the Uniform Firearms Act6 and recovered the firearm, holster, three cell phones and the owner's card for the vehicle, which indicated that the car belonged to Bell. The gun and the holster were placed on property receipts.
The phones were not placed on property receipts, but were transferred to the Homicide Division of the Philadelphia Police on June 18, 2010, along with Bell, Byrd and Adams, as part of what was now a murder investigation regarding Toll's death.7 Upon receipt of the phones, Detective John Harkins, the lead detective assigned to the case, opened each phone, powered them on and searched each phone's menu to discern its assigned phone number. It was determined that the number for one of the recovered cell phones, a Samsung flip top cell phone,8 was the Target Number, the same number that was assigned to "Jeff" in Toll's cell phone. Detective Harkins did not secure a warrant prior to accessing the information from the seized cell phones.
Detective Harkins left the Samsung flip phone powered on and monitored the phone's incoming calls and texts by viewing either its internal or external display screen.9 The following day, Detective Harkins answered a call on that cell phone, identifying himself as a member of the police department investigating a homicide. At the detective's request, the caller, Heather Warrington, agreed to meet with him in a convenience store parking lot in Folsom. When Warrington did not arrive at the appointed time, Detective Harkins used the flip phone to call her, and she said she was on her way there. During her interview, she identified the owner of the phone number in question as "Lil Jeff" and told the detective that she purchased heroin from him on a regular basis. Detective Harkins showed her a picture of Fulton, whom she identified by writing "Jeff" on the photograph. Commonwealth's Exhibit C–38. She confirmed that she regularly purchased heroin from Lil Jeff and Bell (who she also identified in a photograph as "J.R."), meeting them either at 54th and Beaumont or at a house at 55th and Beaumont. Id.
Adams and Byrd were also interviewed by police. The transcription of the interview reflects that Byrd referred to Fulton as "Red Fox." Adams called him "Red." They each identified Fulton in a photograph using their respective nicknames for him and told police that Fulton had confessed to shooting someone. According to the written version of Byrd's interview, Fulton reported he was sitting in the passenger seat of a vehicle executing a heroin sale to a "fiend at 54th& Beaumont" when the shooting occurred. Commonwealth's Exhibit C–41. The buyer would not let Fulton out of the car, and because he was afraid he was going to be robbed, Fulton shot the buyer. Id. Byrd said that Fulton told him about this shortly before their arrest on June 17, and indicated that the shooting had happened "the other night." Id. Byrd did not have a cell phone number for Fulton.
As reflected in the transcribed version of Adams' interview, he also told police that Fulton said he was sitting in the passenger seat of a vehicle executing a heroin sale to a "fiend" at the time of the shooting. Commonwealth's Exhibit C–42. According to Adams, however, Fulton said he shot the buyer because he began reaching down next to the driver's seat and Fulton was concerned he "was about to pull something out."Id. Adams told police that Fulton stated he climbed out of the car through the passenger-side window because the door would not open after he shot the buyer. Id. Adams did not provide police with a time, date or address where the shooting was alleged to have occurred. The transcribed statement indicated that Adams had a number stored in his cell phone under "RedMan," which corresponded to the number saved in Toll's phone as "Jeff." Id.
On June 20, 2010, police requested and executed a warrant to search a residence located at 5513 Beaumont Avenue where Bell lived with another individual, Sidi Cameras, and where Fulton "sometimes" slept. N.T., 8/26/2013, at 10–12. Cameras occupied the back bedroom of the house, Bell occupied the front bedroom, and when he was there, Fulton occupied the middle bedroom. Police recovered, in relevant part, a box of Corbon-brand nine-millimeter ammunition from Bell's bedroom. These bullets were the same brand and caliber as one of the fired cartridge casings recovered from Toll's vehicle.
Police arrested Cameras and interviewed him the following day. He explained to police the layout of the house and identified Fulton in a photograph as "Fox." Id. at 16.
Police submitted the latent palm print recovered from Toll's vehicle for evaluation and comparison. The palm print did not belong to either Fulton or Toll, nor did it match any palm prints contained in the police database. Id. at 179–80, 182. No other comparisons were conducted.
On October 19, 2010, the Commonwealth charged Fulton with murder, possessing an instrument of crime, and several violations of the Uniform Firearms Act.10 He filed a counseled suppression motion challenging the lawfulness of the seizure of his flip phone from Bell's vehicle and the permissibility of the search of the phone without a warrant.11 The trial court denied both motions. Regarding the search of the cell phone,12 the trial court reached the following legal conclusions:
[P]owering up of the cell phones to determine what cell phone number had been assigned to each phone by the carrier did not require a search warrant as this inquiry represented a minimally invasive search . No further efforts were made to recover information from the subject phones at that time[, and Fulton] had no reasonable expectation of privacy in incoming phone calls received on the subject phone. Therefore, his rights were not violated when the...
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