Commonwealth v. Johnson

240 A.3d 575

COMMONWEALTH of Pennsylvania, Appellee

v.Lavelle JOHNSON, Appellant

No. 25 WAP 2019

Supreme Court of Pennsylvania.

Submitted: April 16, 2020

Decided: October 21, 2020

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

JUSTICE DOUGHERTY

We recently explained that, where law enforcement seeks to search a cell phone seized incident to arrest, the applicable rule is "exceedingly simple: ... get a warrant." Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475, 489 (2018) ; accord Riley v. California , 573 U.S. 373, 403, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). We granted discretionary review in this case of first impression to consider an issue that is not so simple: the permissible scope of such a warrant, under Article I, Section 8 of the Pennsylvania Constitution, to search an individual's cell phone for evidence relating to illegal narcotics activity and firearms possession. But, as it turns out, our task in this case is less complicated than the question suggests, because we conclude the search warrant was so lacking in probable cause that it failed to justify any search of appellant's cell phone. We thus reverse and remand.

The nature of the present challenge by appellant Lavelle Johnson necessarily restricts our review to only those documents that informed the issuing authority's decision to authorize the search warrant. See, e.g. , Pa.R.Crim.P. 203(B) ("No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority ... [and t]he issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits."). We therefore set forth the relevant aspects of the application for search warrant and its accompanying affidavit of probable cause, starting with the latter. According to the affidavit, a probable cause belief to search appellant's cell phone was based upon the following facts and circumstances:

Your affiants are members of the Pittsburgh Bureau of Police currently assigned as patrol officers in Zone 1. Affiant Black has been a police officer with the City of Pittsburgh since July of 2011 and assigned to Zone 1 since June 2012. Affiant Black has made numerous arrests for firearms and controlled substances.

Affiant Marabello has been a police officer since 1991 and a police officer for the City of Pittsburgh since May of 2000. Affiant Marabello has been assigned to the Narcotics and Vice Unit since September of 2006 to November of 2013. Affiant Marabello has been involved in over three hundred undercover purchases of illegal narcotics with your affiant purchasing drugs hand to hand from drug dealers. Affiant Marabello has also been involved in, or supervised hundreds of controlled purchases of illegal narcotics. Affiant Marabello has extensively interviewed hundreds of individuals involved in selling or using illegal narcotics. These individuals have provided your affiants with detailed information concerning how illegal narcotics are sold and used. In addition to standard state mandated police training your affiant has received additional training in narcotics including DEA Narcotics Investigation Course, PA Attorney General's Top Gun Narcotics Investigation Course, as well as other courses related to narcotics investigations. Affiant Marabello has worked jointly in narcotics investigations with other agencies including the DEA, FBI, Pennsylvania State Attorney's General Office, and the Allegheny County Police Narcotic's Unit.

This search warrant is to obtain all information stored in the body of these cellular phones: Exhibit B- Apple iPhone Cellular phone, Model A1586, (FCC ID:BCG-E2816A); (IMEI:354432060723845), black and gray in color. Samsung flip cellular phone, (Model SPH-M270), black in color, but not limited to the cell phone number that is connected to these cell phones and the security numbers used to secure the phones, direct connect numbers, carrier IP number, voice mail, text messages (SMS) and the phone numbers associated with these cell phone numbers, picture(s) messages (MMS) and the phone numbers associated with those pictures, any and all internet history and IP address, and phone book and/or contact list and listed incoming and all missed calls, i.e. history in this cell phone. Your Affiant has based the facts for this search warrant on the following:

On 11/23/14 at 0243 hours your affiants received a 911 dispatch call where the complainant wished to remain anonymous. The call stated that shots were fired inside of 2143 Rhine St. Apt 2D. Affiants went to this apartment.

Affiants approached the front door of Apt 2D and smelled a strong odor of burning marijuana coming from inside of the apartment and could hear individuals moving inside of Apt 2D. Affiants knocked and announced their presence fearing someone might be shot or injured inside. Affiants continued to knock for several minutes with no response. A female later identified as Jemera Hibbler eventually opened the apartment door.

Affiants did a protective sweep of the apartment and detained five (5) individuals. Eli Herring III (DOB 02/25/90) Lavelle Johnson (DOB 11/05/1984) Kent Morton (DOB 03/26/88) Jaquayla Kendrick (DOB 04/28/95) Jemera Hibbler (DOB 10/09/86)

During the protective sweep Officers observed in plain view two (2) bricks of heroin on a shelf. For officer safety, officers did a cursory search for firearms. Officers recovered three stolen firearms hidden together above the apartment's hot water tank. The five detained individuals were then placed under arrest. Officers secured the apartment and obtained a search warrant.

Search incident to arrest Officers recovered two cell phones from Lavelle Johnson and two cell phones from Kent Morton.

The Apartment Search warrant was signed on 11/23/14 at 0600 hours by District Justice Zoller. Officers executed the warrant at approximately 0610 hours. Officers conducted a systematic search of the residence. Officers recovered an additional 717 stamp bags of heroin and three cell phones from the living room area.

From previous drug investigations your affiants have been involved with, your Affiants have become aware that persons involved in the trafficking of controlled substances regularly use cellular telephones to accomplish their trafficking activities. These persons additionally maintain within their cellular telephones, information that includes the telephone numbers of persons to whom they distribute controlled substances to [sic], the telephone numbers of persons from whom they obtain controlled substances to distribute, abbreviations or acronyms for the persons to whom they distribute controlled substances to [sic], the persons from whom they obtain controlled substances to distribute, and pictures of controlled substances, firearms, and quantities of monies.

As a result of the foregoing, your Affiant[s] respectfully request a search warrant issued for the black and gray Apple iPhone cellular phone and the black Samsung flip cellular telephone listed above, as well as any and all electronic and/or digital data contained within the cellular telephone or its storage medias/memory cards, such as incoming/outgoing calls, call logs, emails, personal calendars, cellular internet usage, wireless internet usage, GPS data, contact information, text messages, voice mails, notes, photographic images, IP addresses, contact information, and voice recordings whether or not the electronic and/or digital data has been erased, hidden, password protected or encrypted.

Affidavit of Probable Cause, 3/31/2015, at 1-2.

The affidavit reflects that police officers responded to an anonymous 911 call reporting shots fired in a particular apartment in Pittsburgh during the early morning hours of November 23, 2014. They approached the apartment and smelled burning marijuana coming from inside and could hear people moving. Fearing someone might be shot or injured, the officers knocked and announced their presence but received no answer for several minutes. Then, a woman answered and the officers detained her and four other individuals following a protective sweep, during which they also discovered in plain view two bricks of heroin on a shelf and three stolen firearms hidden together above a hot water tank. All five individuals were placed under arrest and, during a search incident to arrest, two cell phones each were recovered from appellant and another man. After the officers obtained a warrant to search the apartment several hours later, they executed it and discovered an additional 717 stamp bags of heroin and three more cell phones from the living room. And, on March 31, 2015, over four months after the initial search and discovery of this sizable stash of drugs and firearms in the apartment, the officers sought and obtained a search warrant for appellant's two cell phones. Specifically, the search warrant application detailed the items to be searched for and the description of the location of the search as follows:

IDENTIFY ITEMS TO BE SEARCHED FOR AND SEIZED:

Digital Media and electronic evidence of the possession of illegal firearms, and the distribution and possession of heroin which is stored within the body of the cellular phone, specifically but not limited to the incoming/outgoing calls, call logs, emails, personal calendars, cellular internet usage, wireless internet usage, GPS data, contact information, text messages, voice mails, notes, photographic images, IP addresses, contact information, and voice recordings whether or not the electronic and/or digital data has been erased, hidden, password protected or encrypted.

SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSONS TO BE SEARCHED:

Apple iPhone cellular phone, Model A1586, black and gray in color, marked with the followings numbers on the back of the phone: (FCC ID:BCG-E2816A), (IC:579C-E26816A), (IMEI:354432060723845)

Samsung flip cellular phone, Model SPH-M270, black in color, marked with the following number on the back of

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