Defective Warrant No Bar to Admissibility of Electronic Evidence Seized from Defendant’s Cell Phone

Electronic evidence seized from a defendant’s cell phone was admissible even though the magisterial district judge lacked authority to issue the search warrant, the Superior Court held in Commonwealth v. Dougalewicz, __ A.3d __ (No. 247, 248 WDA 2014, filed March 30, 2015). During an investigation of Ronald Lee Dougalewicz, Jr., for alleged sexual misconduct against a 14-year old female, officers applied for a warrant to search two cell phone accounts and seize all text messages, picture mail and phone calls. A magisterial district judge issued the warrants, which were served upon the phone carriers in Kansas. Dougalewicz was charged with several crimes and, at his trial, sought to suppress the electronic evidence. The trial court denied the motion and Dougalewicz was convicted. In his appeal to the Superior Court, Dougalewicz argued that the trial court erred in not suppressing the evidence seized from the cell phone accounts.

The Superior Court affirmed the judgment of sentence in a unanimous opinion authored by Judge Musmanno. The Court agreed with Dougalewicz’s claim that, under the relevant versions of the United States Stored Communications Act and Pennsylvania’s Stored Wire and Electronic Communications and Transactional Records Access Act, a magisterial district judge is not authorized to issue a search warrant for stored electronic communications. That authority is reserved to judges of the Superior Court. Nevertheless, the Court held that because neither the federal nor the state statute provide for the exclusion of evidence as a remedy for a non-constitutional violation of their provisions, the trial court did not err in refusing to suppress the evidence.

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One Comment

  1. marla hiner July 16, 2015 at 9:13 pm

    why was this considered a “non constitutional” violation rather than a “constitutional” violation? What distinguishes the two?

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