Pennsylvania Superior Court Requires Warrant to Search Smart Phones, too

I wrote several weeks ago about the United States Supreme Court’s decision in Riley v. California. There, the Court required a search warrant issued upon probable cause prior to police conducting a search of a lawfully detained person’s smart phone. On July 11, 2014, in Commonwealth v. Stem, Pennsylvania Superior Court followed the Riley case, ruling in the same manner for any Commonwealth prosecution.

Mr. Stem filed a motion to suppress pictures found on his cellular phone. The pictures constituted the factual basis for 17 criminal charges of possession of child pornography. Factually, Stem was standing in a private residence when he was arrested and detained for an unrelated reason. Thereafter, police officer searched Mr. Stem’s smart phone incident to his arrest, but without a warrant. The officer did not secure permission. The pictures on the cell phone were not immediately apparent without having to conduct a further “search” of the cell phone. Specifically, the picture icon had to been touched and pro actively open by the officer.

This course of search conduct, typical of every time an officer touches a person’s smart phone, the court determined, constituted a warrantless search of Mr. Stem’s smart phone. On review, the Superior Court addressed the issue of whether “a police officer may search the data contained in a modern cellular telephone, referred to as a smart phone due to the computer-like capabilities, without a warrant but to incident to the lawful arrest exception to the warrant requirement under Article 1 Section 8 of the Pennsylvania Constitution.”  Superior Court panel reviewed Riley and its companion case, both of which conclude that “officers must generally secure a warrant before conducting a search of a smart phone”.

After reviewing Riley line by line, the Superior Court summarily concluded that the Pennsylvania police officer’s search of Stem’s smart phone without a warrant, although incident to a lawful arrest, was unconstitutional.  In Stem, the Commonwealth forwarded the exact same arguments as those posited by California in Riley, which Superior court found similarly specious.

The conclusion of this case for Pennsylvania residents is similar to those in Riley; consent to search will become the focus of any motion to suppress a warrantless search of any smart phone. Please review my website, prior blogs, and articles in the news web page to gain a better understanding of these consent issues and how to avoid them. Please call me to discuss yours or your family member’s case regarding these issues.

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The Bi-Annual Registration and Criminal Contact Questions

Multi-state professional licensees face significant legal issues when confronted with a disciplinary action or criminal charges from one state. It is important to know when and what to properly report to each jurisdiction after incurring a criminal charge, conviction, or any resultant disciplinary prosecution. Thereafter, timely handling the resulting reciprocal discipline from Pennsylvania’s licensing board is paramount to retaining all licenses.

I emphasize Pennsylvania due to the vast number of Pennsylvania professional schools from which licensees residing around the country received their original license. Reciprocal discipline will occur after a licensee has moved to another state, for any reason was subjected to professional discipline therein, and then reports the consequences to Pennsylvania’s equivalent professional board.  The multi-step disciplinary process is very complicated and time consuming. Many of my clients retain my services, while residing outside of Pennsylvania, after  receiving a Pennsylvania disciplinary notice for either failing to, or properly reporting, a triggering criminal contact or disciplinary action from another state.

The July 8, 2014 Commonwealth Court decision of Campbell vs. Bureau of Prof’l and Occupational Affairs (2014 Pa. Commw. Unpub LEXIS 411 July 8, 2014) discusses the Pennsylvania Medical Board’s authority and responsibility of imposing both reciprocal discipline and separate discipline for failing to report to the Pennsylvania Medical Board an extra-jurisdiction discipline or criminal conviction. The case once again establishes the importance of candidly answering renewal questions honestly, with integrity.

While a first-time criminal offender who answers honestly the renewal license question merely has to deal with a reciprocal disciplinary issue, Pennsylvania’s licensing boards do not suffer fools lightly who fail to answer honestly the renewal questions contained in the online application. Pennsylvania’s licensing boards will include additional charges in any disciplinary action for failing to properly disclose a professional school disciplinary action, board test failure, criminal charges relating to drugs, or a criminal conviction for any manner.

In the recent case, Dr. Campbell was previous disciplined for failing to disclose his failing a portion of the 2004 licensing board examination. Upon discovery and prosecution, the doctor was given probation, after which his license was reinstated to the full status after several years  Thereafter, the doctor moved to the State of Oregon.

In 2009 he was criminally charged with possession of methamphetamine, which misdemeanor charge was conditionally discharged (“ARD”), but not yet expunged in 2011. On his 2011 license renewal registration, he intentionally did not report the criminal charge and ARD result. The Board found out and the first basis for discipline was the actual criminal charge.  The second count of discipline was that  he intentional omitted non-Pennsylvania criminal drug prosecution in the online renewal questions of the bi-annual registration questionnaire.

Once the Pennsylvania Medical Board learned of both his omission and intentional misrepresentation on his bi-annual renewal, his license was once again prosecuted. While the Board addresses proper evidentiary objections of both prior discipline and criminal ARD type process, the Board squarely addresses the doctor’s misrepresenting his criminal ARD contacts. The Board suspends Dr. Campbell’s license for six months and places him on probation for three years. The Medical Board stated that this sanction was appropriate “to impart to him the seriousness and gravity of his misconduct” and to provide him “with an opportunity to reflect upon the seriousness of his offense and the importance of honesty, integrity and judgment in the medical profession.”

On appeal to the Commonwealth Court, Pennsylvania’s intermediate Court which addresses all administrative agency’s cases such as the Pennsylvania Medical Board, the court affirmed the Board action in whole based upon the doctor’s obvious, intentional, and over acts of dishonesty and deceit. The court reviewed the Board’s statutory authority to revoke or suspend a medical license for the conduct under section 42 of the Medical Practice Act, which provides in relevant part: (a) Authorized actions.–When the board is empowered to take disciplinary or corrective action against a board-regulated practitioner under the provisions of this act or pursuant to other statutory authority, the board may: (3) Revoke, suspend, limit or otherwise restrict a license or certificate. … 63 P.S. § 422.42(a).

Finding the Board had the authority to act, the Court reviewed the Board’s discretionary sanction, stating such is in the Board’s discretion and must be upheld unless it is shown that the Board acted in bad faith or fraudulently or that the sanction constitutes capricious action or a flagrant abuse of discretion. Slawek v. State Board of Medical Education & Licensure, 586 A.2d 362, 364-66 (Pa. 1991); Tandon v. State Board of Medicine, 705 A.2d 1338, 1346 (Pa. Cmwlth. 1997). Absent proof of Board fraud or capricious action and a doctor who intentionally lied on the biannual re-registration process, we know who lost the case.

This opinion is one more example of the adage that the cover-up is always worse than the initial crime. Every licensee who fails to timely and correctly report a criminal contact will face future stiffer discipline. The filing of false or deceptive licensure documents, including biennial registration forms, is a ground for discipline regardless of whether there is any other ground for discipline and independent of whether the content misrepresented relates to patient care or medical ability. 63 P.S. § 422.41(2), (11).

I instruct every criminal client facing a professional license collateral consequence to properly, truthfully, candidly, and completely answer the criminal contact question on the renewal application. To do otherwise as a licensee will merely invite an obvious and easy second basis to commence prosecution.

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