Com. v. Kane, V. , 210 A.3d 324 ( 2019 )

J-A29016-18
2019 Pa. Super. 153
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT KANE :
:
Appellant : No. 864 EDA 2018
Appeal from the Judgment of Sentence February 16, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000702-2017
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY DUBOW, J.: FILED MAY 09, 2019
Appellant, Vincent Kane, appeals from the Judgment of Sentence of
twenty to sixty months’ incarceration following his non-jury conviction for
Invasion of Privacy, Possession of Child Pornography, and Criminal Use of
Communication Facilities.1 Appellant challenges the denial of his Motion to
Suppress evidence derived from the warrantless search of his abandoned cell
phone and the search of the external hard drive of his computer pursuant to
a search warrant. After careful review, we affirm.
The relevant factual and procedural history, as gleaned from the
certified record, are as follows. On September 22, 2016, a female student at
Villanova University discovered a smart cell phone 2 in the co-ed dormitory
____________________________________________
118 Pa.C.S. §§ 7507.1(a)(1), 6312(d), and 7512(a), respectively.
2A smart cell phone, or “smartphone,” is “a cell phone with a broad range of
other functions based on advanced computing capability, large storage
capacity, and Internet connectivity.” Commonwealth v. Fulton, 179 A.3d
475, 479 n.5 (Pa. 2018) (citation omitted).
____________________________________
* Former Justice specially assigned to the Superior Court.
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bathroom. The cell phone was behind a “wet floor” sign, and was actively
video recording the toilet area. The camera captured the activities of men
and women using the toilet. The student took the cell phone to the Villanova
University Police, who turned the cell phone over to the Delaware County
Criminal Investigation Division (“CID”).
CID Detective Edmond Pisani, a computer forensic examiner assigned
to the Internet Crimes Against Children Task Force, consulted with the
Delaware County District Attorney’s Office and declined to obtain a search
warrant for the cell phone after a Deputy District Attorney advised him that
he should consider the cell phone to be abandoned. Detective Pisani
proceeded to conduct a forensic examination of the cell phone and identified
Appellant as the owner of the cell phone after viewing several videos of
Appellant setting up the video camera function on the cell phone to record.
Detective Pisani recovered videos of Villanova students in the bathroom,
“upskirt” videos taken at a C.V.S. store where Appellant worked, and videos
of students secretly recorded at Cardinal O’Hara School, where Appellant had
attended high school the year before.
On September 27, 2017, Detective Pisani, CID Detective John Hoffner,
and Villanova Police Chief David Tedjeske located Appellant in a classroom and
asked to speak with him. Appellant agreed, and all four men walked to a
smaller, unlocked room next to the classroom. Appellant agreed to have his
interview recorded. Detective Hoffner told Appellant that he was not under
arrest and he was free to leave at any time. Upon questioning, Appellant
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disclosed that he downloaded videos from his cell phone to a home desktop
computer, which was located in Broomall, Pennsylvania, where he lived with
his mother. Appellant signed a written consent to search both his laptop
computer and his home desktop computer; officers seized the desktop
computer and, during a search, discovered that an external hard drive had
recently been connected to the computer.
On September 28, 2016, pursuant to a search warrant, Detective Pisani
seized and searched the external hard drive for videos of people in bathrooms
and invasion of privacy. Detective Pisani discovered child pornography on the
external hard drive and suspended his search. On October 4, 2016, Detective
Pisani obtained a second warrant to search for images of child pornography
on the external hard drive. Detective Pisani recovered numerous images
evidencing Invasion of Privacy and Possession of Child Pornography.
On October 26, 2016, Appellant was charged with twenty-five counts of
Invasion of Privacy, twenty counts of Possession of Child Pornography, and
four counts of Criminal Use of a Communication Facility. On March 23, 2017,
Appellant filed an Omnibus Pre-Trial Motion, including a Motion to Suppress
Physical Evidence. Specifically, Appellant moved to suppress evidence
obtained from the cell phone, arguing that the police conducted an illegal
warrantless cell phone search. He also sought to suppress evidence obtained
from the external hard drive, arguing that the October 4, 2016 search warrant
was flawed. On May 12, 2017, after a hearing, the trial court denied
Appellant’s Motion to Suppress evidence derived from the cell phone after
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concluding that Appellant voluntarily abandoned his cell phone and therefore
had no reasonable expectation of privacy. See Order, 5/12/17, at 5-6. On
the same day, the trial court denied Appellant’s Motion to Suppress evidence
derived from the external hard drive, finding that the search was authorized
by a warrant. See id. at 8.
On November 28, 2017, trial commenced and Appellant chose to waive
his right to a jury trial. In exchange, the Commonwealth agreed to proceed
on only four counts of Invasion of Privacy, three counts of Possessing Child
Pornography, and two counts of Criminal Use of a Communications Facility.3
The parties entered stipulations regarding the Appellant’s identity and the
Commonwealth’s evidence.
On December 4, 2017, the trial court found Appellant guilty of all counts.
On February 16, 2018, the trial court imposed an aggregate sentence of
twenty to sixty months’ incarceration followed by eight years of probation.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
I. Whether the trial court erred when it denied the Motion to
Suppress evidence derived directly or indirectly from a
warrantless cell phone search in violation of Article I,
Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the Constitution of the United States?
II. Whether the trial court erred when it denied the Motion to
Suppress evidence derived directly or indirectly from the
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3 The Commonwealth withdrew the remaining charges.
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search of an external hard drive pursuant to an overbroad
warrant?
Appellant’s Brief at 2.
Once a defendant files a motion to suppress evidence, it is the
Commonwealth's burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant's
rights. Commonwealth v. Wallace, 42 A.3d 1040, 1047–48 (Pa. 2012)
(citing Pa.R.Crim.P. 581(H)). When this Court reviews a ruling on a motion
to suppress, our standard of review is well settled: we are bound by the
suppression court’s factual findings that are supported by the record but we
review its legal conclusions de novo. Commonwealth v. Cooley, 118 A.3d
370, 373 (Pa. 2015). “Our scope of review is limited to the record developed
at the suppression hearing, considering the evidence presented by the
Commonwealth as the prevailing party and any uncontradicted evidence
presented by [the defendant].” Commonwealth v. Fulton, 179 A.3d 475,
487 (Pa. 2018) (citation omitted).
Warrantless Search of Cell Phone
In his first issue, Appellant avers that the court erred when it denied the
Motion to Suppress evidence derived directly or indirectly from a warrantless
search of his cell phone. Appellant’s Brief at 10. Appellant avers that the
warrantless search violated his constitutional rights under Article I, Section 8
of the Pennsylvania Constitution and the Fourth Amendment of the United
States Constitution. Id. at 2. Appellant argues that the trial court erred
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pursuant to the Pennsylvania Supreme Court’s decision in Fulton, 179 A.3d
at 479, which held that “accessing any information from a cell phone without
a warrant contravenes the United States Supreme Court's decision in Riley v.
California and United States v. Wurie, [573 U.S. 373 (2014)] (hereinafter,
“Riley/Wurie”).” See Appellant’s Brief at 13. Appellant contends that he
did not abandon the cell phone because he intended to come back to the cell
phone and retrieve the video, and that, nevertheless, “the privacy interest is
in the cell phone, not in the location or the use of the cell phone.” Id. at 20,
22. In response, the Commonwealth asserts that Appellant “had no objective
expectation of privacy in the cell phone which society would recognize when
he left it turned on and recording in a public bathroom[.]” Commonwealth’s
Brief at 7. We agree.
Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution “guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa. Super. 2008) (citation omitted). In
Pennsylvania, a defendant charged with a possessory offense has “automatic
standing” to pursue a suppression motion under Rule 581. Commonwealth
v. Enimpah, 106 A.3d 695, 698 (Pa. 2014). However, in addition to standing,
“a defendant must show that he had a privacy interest in the place invaded or
thing seized that society is prepared to recognize as reasonable.” Id. “The
expectation of privacy is an inquiry into the validity of the search or seizure
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itself; if the defendant has no protected privacy interest, neither the Fourth
Amendment nor Article I, § 8 is implicated.” Id. at 699.
This Court has found that an expectation of privacy will exist when the
individual exhibits an actual or subjective expectation of privacy and that
expectation is one that society is prepared to recognize as
reasonable. Commonwealth v. Jones, 874 A.2d 108, 118 (Pa. Super.
2005). In determining whether a person's expectation of privacy is legitimate
or reasonable, we must consider the totality of the circumstances and the
determination “ultimately rests upon a balancing of the societal interests
involved.” Commonwealth v. Peterson, 636 A.2d 615, 619 (Pa. 1993)
(citations omitted). “The constitutional legitimacy of an expectation of privacy
is not dependent on the subjective intent of the individual asserting the right
but on whether the expectation is reasonable in light of all the surrounding
circumstances.” Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super.
2005) (citation omitted).
Generally, the Fourth Amendment requires that law officers obtain a
warrant before they intrude into a place of privacy; however, an exception to
the warrant requirement exists when the property seized has been
abandoned. Commonwealth v. Clark, 746 A.2d 1128, 1133 (Pa. Super.
2000). “[T]o prevail on a suppression motion, a defendant must demonstrate
a legitimate expectation of privacy in the area searched or effects seized, and
such expectation cannot be established where a defendant has meaningfully
abdicated his control, ownership or possessory interest.” Commonwealth v.
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Dowds, 761 A.2d 1125, 1131 (Pa. 2000). Simply put, “no one has standing
to complain of a search or seizure of property that he has voluntarily
abandoned.” Commonwealth v. Shoatz, 366 A.2d 1216, 1220 (Pa. 1976).
Our Supreme Court has explained, “abandonment of a privacy interest
is primarily a question of intent and may be inferred from words spoken, acts
done, and other objective facts.” Dowds, 761 A.2d at 1131. “All relevant
circumstances existing at the time of the alleged abandonment should be
considered.” Shoatz, 366 A.2d at 1220. “The 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.
In this case, the trial court concluded that Appellant “relinquished his
expectation of privacy in his cell phone when [he] voluntarily left it operating
as a recorder in the dormitory bathroom.” Trial Court Opinion, dated 4/20/18,
at 15. The trial court made the following factual findings:
The totality of the circumstances upon which this conclusion is
based follow. [Appellant] intentionally and volitionally left his cell
phone unattended, powered on and recording in a dormitory
bathroom. The bathroom was open and available to residents and
visitors in the dorm. Any one of the many people who used that
bathroom had access to the cell[]phone and its contents.
Although he may have attempted to hide the cell phone behind a
“wet floor” sign, in view of the circumstances his feeble attempt
to obscure the cell phone may be viewed simply as a means to
surreptitiously record his victims as opposed to demonstrating an
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expectation of privacy in his property. [Appellant] used the
recording capability of the phone to capture images of unknowing
victims who were using the toilet. Defendant did not live in the
dormitory. He lived with his mother at their home in Broomall.
There is nothing in the record that indicates that the cell[]phone
was lost or stolen. In fact, the only reasonable inference that can
be drawn from the facts of record is that [Appellant] placed and
then left his cell phone recording others in a bathroom that was
accessible to anyone who happened to use the bathroom.
Detective Pisani examined the phone, determined the identity of
the owner and confirmed that it was recording the bathroom
activities of the students. While [Appellant] may have intended
to retrieve his cell[]phone/recording device later, this fact does
not alter our conclusion. The [Appellant] intentionally left his cell
phone open and accessible to others in a public area.
Id. at 16-17.
In light of the trial court’s findings of fact, which the record supports,
we discern no error of law in the trial court’s conclusion that when Appellant
intentionally and voluntarily left his cell phone in a public bathroom he did not
have a reasonable expectation of privacy in his cell phone. Once Appellant
voluntarily abandoned his cell phone in a public bathroom, he abandoned any
legitimate expectation of privacy in its contents. Likewise, he abandoned
standing to complain of a search or seizure of that cell phone. See Schoatz,
366 A.2d at 1219-20. Accordingly, under the facts and circumstances of this
case, the trial court did not err when it concluded that Appellant did not have
a reasonable expectation of privacy and denied Appellant’s Motion to Suppress
the warrantless search of his cell phone. Cf. Commonwealth v. Sodomsky,
939 A.2d 363, 369 (Pa. Super. 2007) (reversing the suppression of child
pornography found on a personal computer when the defendant left his
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computer at a store for repairs, concluding that he “knowingly exposed the
contents of his computer to the public and [] lost any reasonable expectation
of privacy in those contents”).
Appellant argues that the trial court erred pursuant to the United States
Supreme Court decision in Riley/Wurie, and the Pennsylvania Supreme
Court’s subsequent decision in Fulton. Because Appellant abandoned his cell
phone, and therefore his expectation of privacy, both Riley/Wurie and
Fulton are easily distinguishable from the instant case.
Here, police conducted a warrantless search of a cell phone that
Appellant voluntarily abandoned, while it was turned on and recording, in a
public bathroom. However, in Riley/Wurie, police conducted a warrantless
search of a cell phone that was not abandoned by its owner, but rather
seized directly from its owner incident to arrest. See Riley/Wurie, 573 U.S.
at 378-380. Likewise, in Fulton, police conducted a warrantless search of a
cell phone that was not abandoned by its owner, but rather seized from a
car – pursuant to a warrant to search the car – after police arrested its owner
while he was sitting in that car. See Fulton, 179 A.3d at 479-480.
While Appellant argues that the holding in Fulton applies to warrantless
searches of all cell phones, we decline to conclude that Fulton stands for the
overbroad and sweeping proposition that police must get a warrant to search
a cell phone, even if it has been abandoned, when the facts of the case and
our case law pertaining to abandoned property do not support that
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proposition. See Commonwealth v. Resto, 179 A.3d 18, 22 (Pa. 2018)
(“the holding of a judicial decision is to be read against its facts”).
Moreover, as the trial court observed, the “holdings in [Riley/Wurie]
and Fulton, supra, do not relieve a defendant of the burden of demonstrating
a reasonable expectation of privacy on a cell phone that is searched.” Trial
Court Opinion, dated 4/20/18, at 15. Under the facts and circumstances of
this case where Appellant abandoned his cell phone, which was turned on and
recording, in a public bathroom, we conclude that the trial court did not err in
denying Appellant’s Motion to Suppress.
Search of External Hard Drive
In his second issue, Appellant avers that the trial court erred when it
denied the Motion to Suppress evidence derived directly or indirectly from the
search of an external hard drive pursuant to an overbroad warrant.
Appellant’s Brief at 25. Appellant argues that the court erred in granting the
search warrant because the application sought a search of the entire external
hard drive without any limitations on the dates of the files requested, even
though the application lists the date of the violation as September 28, 2016.
See id. at 26.
“It is a fundamental rule of law that a warrant must name or describe
with particularity the property to be seized and the person or place to be
searched[;]” this particularity requirement prohibits both a warrant that is not
particular enough and a warrant that is overbroad. Commonwealth v.
Dougalewicz, 113 A.3d 817, 827 (Pa. Super. 2015) (citation omitted). A
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warrant that is not particular enough “authorizes a search in terms so
ambiguous as to allow the executing officers to pick and choose among an
individual's possessions to find which items to seize[,]” resulting in “the
general ‘rummaging’ banned by the Fourth Amendment.” Id. An overbroad
warrant “authorizes in clear or specific terms the seizure of an entire set of
items, or documents, many of which will prove unrelated to the crime under
investigation[,]” and “is unconstitutional because it authorizes a general
search and seizure.” Id.
However, search warrants should “be read in a common sense fashion
and should not be invalidated by hypertechnical interpretations. This may
mean, for instance, that when an exact description of a particular item is not
possible, a generic description will suffice.” Commonwealth v. Rega, 933
A.2d 997, 1012 (Pa. 2007) (quoting Pa.R.Crim.P. 205 cmt.). Accordingly,
“where the items to be seized are as precisely identified as the nature of the
activity permits . . . the searching officer is only required to describe the
general class of the item he is seeking.” Id. (citation omitted). Importantly,
“[b]ecause the particularity requirement in Article I, Section 8 is more
stringent than in the Fourth Amendment, if the warrant is satisfactory under
the Pennsylvania Constitution it will also be satisfactory under the federal
Constitution.” Commonwealth v. Orie, 88 A.3d 983, 1003 (Pa. Super.
2014).
Instantly, the trial court opined:
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The search warrant authorizes the search of a particular external
hard drive that is identified by serial number. The search
authorized is for files containing child pornography. The probable
cause set forth in the affidavit describes the investigation and the
facts that lead to the conclusion that there was a fair probability
that child pornography would be found on the external hard drive
given the fact that links to the hard drive and evidence of
contraband files were found on the home desktop [computer].
Read in a common sense manner, the search authorized is specific
and supported by probable cause to believe that files containing
child pornography would be found on the external hard drive.
Trial Court Opinion, dated 4/20/18 at 22. Our review of the record supports
the trial court’s findings and we find no error of law.
Conclusion
Because Appellant abandoned his cell phone, which was turned on and
recording, in a public bathroom, the trial court properly applied relevant case
law and did not err in concluding that Appellant did not have a reasonable
expectation of privacy in its contents. In addition, our review of the record
reveals that the search warrant authorizing the search of Appellant’s external
hard drive was not overbroad. The record supports the trial court’s findings,
and the trial court did not err in denying Appellant’s Motion to Suppress
evidence derived from Appellant’s cell phone and external hard drive.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/19
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