201905.28
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Don’t Want Police to Search Your Phone Without a Warrant: Don’t Abandon It in a Public Bathroom Actively Recording

In an age where technology is changing faster than the law can keep up, the Superior Court of Pennsylvania recently addressed the issue of when police can legally search a smartphone without a warrant.

Abandoned Smartphone

In Commonwealth v. Kane, a Villanova University student hid a smartphone behind a “wet floor” sign in a co-ed dormitory bathroom. The phone was actively recording the activities of men and women using the toilet. A female student discovered the phone and took it to the university police, who turned it over to the Delaware County Criminal Investigation Division (CID).

A detective in the CID consulted with the Delaware County District Attorney’s Office regarding obtaining a search warrant for the phone, but declined to do so after being advised by prosecutors that the phone was abandoned.

A forensic examination of the smartphone identified a male Villanova student as being its owner. The examination also revealed that the phone contained videos of Villanova students in the bathroom, “upskirt” videos taken at a drug store where the phone’s owner worked, and videos secretly recorded at the high school that the phone’s owner attended before matriculating to Villanova.

Police searched the phone owner’s laptop computer and desktop computer with his consent. They later obtained a search warrant for an external hard drive and searched it for videos of people in bathrooms and invasion of privacy. After discovering child pornography on the external hard drive, they obtained a second search warrant and recovered numerous images evidencing invasion of privacy and possession of child pornography.

The phone owner was charged with 25 counts of invasion of privacy, 20 counts of possession of child pornography, and four counts of criminal use of a communication facility.

He sought to suppress the evidence obtained from the smartphone search, arguing that the warrantless search that police conducted of his phone was illegal.

The trial court concluded that the phone owner had voluntarily abandoned his phone and refused to suppress the evidence. The phone owner was convicted on multiple criminal counts and was sentenced to 20-to-60 months’ incarceration and eight years of probation.

The phone owner appealed, arguing that the warrantless search of his smartphone violated his constitutional rights.

No Reasonable Expectation of Privacy

In rejecting the phone owner’s argument, the Superior Court agreed with the trial court that the warrantless search was legal because the phone owner had no reasonable expectation of privacy in his phone. As the court wrote: “Once [the phone owner] voluntarily abandoned his cell phone in a public bathroom, he abandoned any legitimate expectation of privacy in its contents.”

Conclusion

As technology continues to provide unprecedented opportunities for voyeurism, this case marks an important decision for anyone who may be tempted to surreptitiously record. Don’t do it.