Com. v. Shaffer, J. , 177 A.3d 241 ( 2017 )

J-A21036-17
2017 Pa. Super. 404
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JON ERIC SHAFFER
Appellant No. 435 WDA 2017
Appeal from the Judgment of Sentence Entered March 9, 2017
In the Court of Common Pleas of Butler County
Criminal Division at No: CP-10-CR-0000896-2016
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
OPINION BY STABILE, J.: FILED DECEMBER 21, 2017
Appellant, Jon Eric Shaffer, appeals from the March 9, 2017 judgment
of sentence imposing an aggregate 6 to 12 months of incarceration followed
by 156 months of probation for possession of child pornography (18 Pa.C.S.A.
§ 6312(d)) and criminal use of a communication facility (18 Pa.C.S.A.
§ 7512). We affirm.
On November 25, 2015, a computer technician was attempting to save
files from the failing hard drive in Appellant’s laptop computer when he
discovered explicit photographic images of young girls. The technician
summoned the police, and the police arrested Appellant and charged him with
the aforementioned offenses. Appellant filed a pretrial motion to suppress the
evidence from the warrantless search and seizure of his laptop computer. The
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trial court conducted a hearing on July 7, 2016, and denied the motion on
October 3, 2016. On November 10, 2016, the trial court, sitting as finder of
fact, found Appellant guilty of both charges. The trial court imposed sentence
on March 9, 2016, and Appellant filed this timely appeal on March 14, 2017.
The trial court summarized the pertinent facts:
[Appellant] delivered his laptop computer to CompuGig for
repair and completed an initial work order form that is dated
November 25, 2015. On the form, in response to the question,
‘What problems are you experiencing?’, boxes next to
‘Spyware/virus’ and ‘Can’t get to Internet’ are marked. Additional
information provided by [Appellant] at the time he delivered the
laptop to CompuGig indicated that ‘Customer’s son downloaded
some things and now there are a lot of pop-ups. Internet has
stopped working.’ After running initial diagnostics, [computer
technician Justin] Eidenmiller believed the computer had a failing
hard drive. A telephone call was made to [Appellant] by
CompuGig’s administration. During that call [Appellant] indicated
that he wished to replace the hard drive on the laptop. Mr.
Eidenmiller was not privy to the phone call. Mr. Eidenmiller
attempted to ‘take an image of the hard drive and put it on a new
hard drive at the customer’s request.’ While the hard drive was
able to be imaged, the procedure of transferring the image
successfully was unable to be completed. Another call was
apparently placed to [Appellant] regarding the matter. In an
attempt to move data from the failing hard drive to a new drive,
Mr. Eidenmiller manually opened various portions of the data
contained in the failing hard drive. In doing so, Mr. Eidenmiller
observed the evidence which [Appellant] is seeking to suppress.
Mr. Eidenmiller fist [sic] attempted to copy the entire folder that
contained the evidence at issue without opening it, but was unable
to do so. He then opened the folder in order to copy the within
files manually. At that point he observed the files at issue in the
form of thumbnail images. Mr. Eidenmiller notified his boss of the
discovery.
The police were then called and Officer [Christopher]
Maloney arrived, he spoke both to the owners of CompuGig and,
after being handed the work order and escorted to the tech area
by the owners, to Mr. Eidenmiller. Mr. Eidenmiller then went to
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where [Appellant’s] laptop computer was located on a bench
inside the tech area. Mr. Eidenmiller showed Officer Maloney, at
the officer’s request, the evidence [Appellant] is seeking to
suppress. Mr. Eidenmiller prepared a statement for Officer
Maloney and Officer Maloney took possession of the computer and
hard drive that had been delivered to CompuGig, as well as other
equipment. At a later date, warrants to search the laptop and
accompanying hardware were secured by Detective Matthew Irvin
of the Cranberry Township Police Department.
Trial Court Opinion, 10/3/16, at 2-3 (record citations and footnotes omitted).
The only issue before us is whether the trial court properly suppressed
evidence from the initial warrantless search and seizure of his laptop
computer. Our standard of review is as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court’s factual
findings are supported by the record, [the appellate court is]
bound by [those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to plenary
review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017). Article
1, Section 8 of the Pennsylvania Constitution precludes warrantless searches
of private property. PA. CONST. art. I, § 8. “Absent the application of one of
a few clearly delineated exceptions, a warrantless search or seizure is
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presumptively unreasonable. Commonwealth v. Williams, 73 A.3d 609,
614 (Pa. Super. 2013) (quoting Commonwealth v. Whitlock, 69 A.3d 635,
637 (Pa. Super. 2013)), appeal denied, 87 A.3d 320 (Pa. 2014).
Both parties and the trial court rely heavily on Commonwealth v.
Sodomsky, 939 A.2d 363 (Pa. Super. 2007), another case in which a
computer technician discovered child pornography on a customer’s computer.
The Sodomsky Court concluded, under the circumstances there present, that
the customer relinquished his privacy expectation in the contents of his hard
drive. The Commonwealth and the trial court find Sodomsky controlling,
while Appellant argues that it is distinguishable and/or that it should be
overturned.
In Sodomsky, the defendant took his computer to a Circuit City and
requested installation of an optical drive and DVD burner into his computer.
Id. at 364. The store informed the defendant that it would run tests to confirm
the DVD burner was working, but did not describe that testing process in
detail. Id. In order to test the newly installed DVD burner, the technician ran
a “general search for a video” to be burned to a disc. Id. at 365. The search
returned a number of files, some of which “appeared to be pornographic in
nature due to their titles which included masculine first names, ages of either
thirteen or fourteen, and sexual acts.” Id. at 365-66. The technician clicked
on “‘the first one’ that appeared questionable, and the video contained the
lower torso of an unclothed male, and when a hand approached the male’s
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penis, [the technician] immediately stopped the video.” Id. at 366. The
technician summoned police, as he had been told to do by a state police officer
under such circumstances. Id. Police responded, viewed the video clip the
technician had seen, and seized the computer. Id. Subsequently, they
obtained a warrant and discovered child pornography. Id.
The trial court granted the defendant’s motion to suppress. Central to
the dispute was whether and to what extent the defendant abandoned his
privacy interest in the computer while it was at Circuit City for the requested
work. The trial court reasoned that the defendant did not expect his
computer’s contents to be published to anyone other than Circuit City
employees. Id. at 367.
In canvassing the law of abandonment, the Sodomsky Court noted,
“[t]he issue is not abandonment in the strict property-right sense, but whether
the person prejudiced by the search had voluntarily discarded, left behind, or
otherwise relinquished his interest in the property in question so that he could
no longer retain a reasonable expectation of privacy with regard to it at the
time of the search.” Id. at 366-67 (quoting Commonwealth v. Shoatz, 366
A.2d 1216, 1220 (Pa. 1976)). Furthermore, “the Fourth Amendment protects
people, not places. What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth Amendment protection. But
what he seeks to preserve as private, even in an area accessible to the public,
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may be constitutionally protected.” Id. at 367 (quoting Katz v. United
States, 389 U.S. 347, 351-52 (1967)).
In light of these principles, the Sodomsky Court determined that the
proper inquiry was whether the defendant’s “expectation of privacy in the
videos on the computer that he relinquished to Circuit City employees for
repairs was reasonable or whether he knowingly exposed the computer’s video
files to the public such that he voluntarily abandoned his privacy interest in
them.” Id. In other words, did the defendant “give access or knowingly risk
access to his video files.” Id. at 368. This Court disagreed with the trial
court’s analysis because “if [the defendant] exposed the video contents of his
computer to Circuit City employees, he abandoned his privacy interest in those
computer contents because those employees were members of the public.”
Id.
Applying these principles, the Sodomsky Court noted that the
defendant requested installation of a new DVD drive and was informed that
the DVD drive would be tested once installed. Id. He did not inquire about
the testing process or restrict Circuit City’s access to his files for purposes of
running that test. Id. Further, Circuit City employees discovered the illicit
material while they were testing the DVD drive in a “commercially-accepted
manner.” Id. The employees were free to choose any video file from the list
of videos to run the test. Id. at 369. In addition, the Sodomsky Court noted
that the defendant’s actions—bringing his computer to Circuit City, requesting
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repairs, and failing to remove or rename the illicit files beforehand—were
volitional. Id. at 369.
The Sodomsky Court distinguished Commonwealth v. DeJohn, 403
A.2d 1283 (Pa. 1979), cert. denied, 444 U.S. 1032 (1980), wherein our
Supreme Court held that banks cannot disclose their customers’ financial
records without a search warrant. The DeJohn Court reasoned:
[T]he disclosure by individuals or business firms of their
financial affairs to a bank is not entirely volitional, since it is
impossible to participate in the economic life of contemporary
society without maintaining a bank account. In the course of such
dealings, a depositor reveals many aspects of his personal affairs,
opinions, habits and associations. Indeed, the totality of bank
records provides a virtual current biography. […] To permit a
police officer access to these records merely upon his request,
without any judicial control as to relevancy or other traditional
requirements of legal process, and to allow the evidence to be
used in any subsequent criminal prosecution against a defendant,
opens the door to a vast and unlimited range of very real abuses
of police power.
Id. at 1289–90.
Similarly, the Sodomsky Court distinguished Commonwealth v.
Davis, 743 A.2d 946 (Pa. Super. 1999), in which this Court held that tenants
retain a privacy interest in rented property despite a landlord’s right of access.
Thus, police subjected the tenant to an unreasonable search and seizure
despite the landlord’s consent to enter the property. Id. at 951-52.
Ultimately, the Sodomsky Court concluded that the defendant did not
retain a privacy interest in his video files under the circumstances of that case.
Sodomsky, 939 A.2d at 369. “If a person is aware of, or freely grants to a
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third party, potential access to his computer contents, he has knowingly
exposed the contents of his computer to the public and lost any reasonable
expectation of privacy in those contents.” Id.
Appellant first argues that that Sodomsky should be overruled.
Appellant’s Brief at 11-15. That action must come, if at all, from an en banc
panel of this Court or from our Supreme Court. See Commonwealth v.
Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010) (noting that one three-
judge Superior Court panel cannot overrule another).
Appellant next argues that Sodomsky is distinguishable. In essence,
Appellant argues that he did not give or knowingly risk access to the illicit
photographs in his hard drive because the possibility of their discovery was
extremely remote, given his initial reasons for leaving his computer with
CompuGig. As noted above, Appellant stated that he could not access the
Internet and that he believed his laptop was infected by spyware or a virus.
He did not anticipate that his hard drive was failing. Nonetheless, the record
indicates that CompuGig contacted Appellant after Eidenmiller discovered the
failing hard drive, and Appellant requested that the hard drive be replaced.
Given his consent to the hard drive replacement, Appellant’s original
description of the problem is irrelevant to our analysis.
Appellant also argues that he did not anticipate—and was never told—
that CompuGig might need to access individual files in order to salvage data.
He notes that CompuGig first tried to take an image of the entire hard drive
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and, when that failed, tried to copy individual folders and, when that failed,
opened folders to copy individual files. The illicit photographs happened to be
in a folder that would not copy. Appellant argues that this chain of events
was unforeseeable, and that he therefore did not legally abandon his privacy
interest in the illicit photos within the meaning of Sodomsky.
We believe Appellant reads Sodomsky too narrowly. There,
unbeknownst to the defendant, the technician intended to run a test using a
video file from the defendant’s hard drive. See Sodomsky, 939 A.2d at 364.
The defendant did not ask how that would be done, nor did he restrict the
means of doing so. See id. Thus, the defendant was uninformed and unaware
of the possibility that the technician would search video files on the
defendant’s computer. Similarly, in this case, Appellant was unaware and did
not inquire into the details of the procedure he authorized. The record reflects
that, on November 30, 2015, five days after Appellant dropped his computer
off for service, CompuGig called Appellant and informed him his hard drive
was failing. N.T. Hearing, 7/7/16, at Exhibit A. Appellant authorized
CompuGig to replace the hard and install an image of the failing drive. Id.
Four days later, on December 4, 2015, a CompuGig administrator called
Appellant to “explain that we must do an OS rebuild with data.” Id.1 Appellant
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1 Appellant insists he received only one phone call from CompuGig after his
initial visit. Appellant’s Brief at 17. Appellant ignores the applicable standard
of review, pursuant to which we “consider only the evidence of the
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was informed that CompuGig intended to install a new hard drive and transfer
data from the old one. Id. at 20.
We find this case slightly distinguishable from Sodomsky in several
respects, but in those respects it favors the trial court’s order. The Sodomsky
defendant was unaware that the technician would need to access any of his
files. Here, in contrast, Appellant was informed that CompuGig needed to
copy and transfer all his files. In Sodomsky, the technician noticed
incriminating titles attached to the illicit video files, and he confirmed his
suspicions by opening and beginning to play one of the files. Instantly, the
illicit images appeared as thumbnail files when Eidenmiller opened a folder on
Appellant’s hard drive, and they immediately appeared2 to Eidenmiller to be
sexually explicit depictions of underage children. He conducted no further
investigation. We cannot reasonably distinguish Sodomsky on grounds that
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Commonwealth and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a whole.” Smith,
164 A.3d at 1257. The record contradicts Appellant’s assertion that he
received only one phone call.
2 The Sodomsky Court expressed no opinion on whether the defendant
abandoned his privacy interest in other files, such as e-mail or financial
records. Sodomsky, 939 A.2d at 369. Similarly, we do not address whether
and to what extent a person retains a privacy interest in e-mails, financial
records, or other files whose incriminating nature might not be immediately
obvious to a technician who accesses them in the ordinary course of
performing a requested service.
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Eidenmiller’s methods were unnecessarily intrusive or unforeseeable, as
compared to those employed in Sodomsky.
In other respects, the two cases are similar. Appellant, like the
Sodomsky defendant, did not inquire about or restrict the means of
completing the requested service. The Sodomsky Court noted the Circuit
City technicians were “testing the DVD drive’s operability in a commercially
accepted manner rather than conducting a search for illicit items.”
Sodomsky, 939 A.2d at 368. Likewise, in this case, Eidenmiller was not
searching for illicit photographs. He discovered the photographs during a file-
by-file transfer after broader, less intrusive means of transferring the data
failed. Nothing in the record suggests that Eidenmiller failed to use a
commercially accepted manner of performing the work Appellant requested.
In short, we find Sodomsky controlling. As noted above, the
Sodomsky Court concluded that abandonment occurs when a person “freely
grants to a third party, potential access to his computer contents, he has
knowingly exposed the contents of his computer to the public and has lost any
reasonable expectation of privacy in those contents.” Id. at 370. If the
Sodomsky defendant granted potential access to his illicit files under the
circumstances there present, Appellant clearly did so in the instant case.3
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3 Appellant seeks to avoid this result by relying on United States v. Jones,
565 U.S. 400 (2012), in which the Supreme Court ruled that, for Fourth
Amendment purposes, police engage in a search when they place a GPS unit
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For all of the foregoing reasons, we discern no error in the order denying
Appellant’s motion to suppress evidence. We therefore affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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in a person’s vehicle. Relying on Jones, Appellant claims police “physically
occupied” and “trespassed upon” Appellant’s computer when they retrieved
the illicit files without a warrant. Appellant’s Brief at 21. We find Jones
inapposite, and Appellant’s reliance on it is not responsive to the trial court’s
finding that he abandoned his privacy interest in the illicit files.
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