Com. v. Hudgens, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNIS PAUL HUDGENS :
:
Appellant : No. 576 WDA 2020
Appeal from the Judgment of Sentence Entered November 19, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000032-2019
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 15, 2021
Dennis Paul Hudgens (Appellant) appeals from the judgment of
sentence1 entered in the Court of Common Pleas of Clearfield County after a
jury trial, at which Appellant was convicted of fifty counts of possession of
child pornography and one count of criminal conspiracy.2 Because the trial
court erred in denying suppression, we reverse the suppression order and
vacate the judgment of sentence. We hold that the search warrant’s “all
persons present” (or APP) clause was unconstitutional because the warrant
1 Appellant’s brief asserts that the present appeal is from denial of post-
sentence motions and suppression. Appellant’s Brief at 2-3. We remind
counsel that the appeal arises from the judgment of sentence. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc).
2 18 Pa.C.S. §§ 6312(d) and 903. Appellant was initially charged with
dissemination of child pornography, 18 Pa.C.S. § 6312(c), but the
Commonwealth withdrew that charge at the outset of trial.
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lacked particularized facts to justify a search of “all persons present,” and the
search of Appellant and his tent was improper.
The trial court provided the following summary:
The investigation began when the Pennsylvania State Police
believed that they had obtained child pornography from a file
sharing site; this led the police to obtain a warrant for the IP
address which possessed the child pornography. Verizon shared
information that the IP address was linked to the address of [the
Residence], Frenchville, Pennsylvania, where [Appellant] and [a]
co-defendant resided.[3] Based on that information, the
Pennsylvania State Police obtained a warrant to search the
property for all computer hardware and software, cell phones,
tablets, and storage devices.
On December 20, 2018, the police [sent a team of six people
to] execute[ ] a search warrant upon the property.[4] While police
were on the property, they discovered [Appellant’s] tent located
roughly twenty yards from the house, between the driveway and
a shed. The tent had an extension cord running to it from the
house, and the officers could hear a heater running inside.
Officers approached the tent and asked [Appellant] to come
outside and speak with them. After [Appellant] was outside the
tent, Trooper Brown cleared the tent to ensure no one else was
inside. He then asked [Appellant] to speak with him in his vehicle.
3 Anthony Terrizzi lived at the Residence, and Terrizzi entered a guilty plea as
to over one hundred counts of charges related to the production and
distribution of child pornography. See CP-17-CR-0000031-2019 and CP-17-
CR-0000718-2019. Terrizzi has committed crimes of sexual violence in the
past. See Commonwealth v. Terrizzi, 502 A.2d 711, 712 (Pa. Super. 1985)
(remanding for guidelines departure explanation in sentence for rape and
burglary). Terrizzi had lived at the Residence for two years. Appellant
contends that he came to be staying in a tent in the yard at the Residence at
some point in November, although the Residence’s owner testified to her belief
that he began staying in the tent at some point in late September. Appellant’s
Brief at 12-13. Appellant disputes the trial court’s assertion that he lived at
the Residence. Id. at 14.
4 See N.T. Suppression, 8/5/19, at 8.
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[Appellant] was patted down prior to being placed in the officer’s
vehicle for the interview. During the pat down, an officer felt an
object in the front pants pocket of [Appellant’s] pants, which
[Appellant] removed for the troopers. The object, an SD card
used to store media, was then retained by police. Throughout the
execution of the search warrant, troopers received multiple items,
which were then placed into evidence.
As a result of the search warrant, thousands of images and
videos were discovered on the items found during the search. On
December 21, 2018, the Pennsylvania State Police filed a
complaint against [Appellant] charging him with fifty counts of
possession of child pornography, one count of dissemination of
child pornography, and one count of criminal use of a
communication facility. [Appellant] filed an omnibus pre-trial
motion on July 22, 2019. Within that motion was a request to
suppress the search warrant and the search of the tent and
[Appellant’s] body. After argument by counsel, the motion was
denied. On August 12, 2019, the Commonwealth amended the
information against [Appellant] to include one count of criminal
conspiracy to possess child pornography.
[Appellant] proceeded to a two day jury trial. On August
13, 2019, prior to the beginning of the trial, the Commonwealth
withdrew one count of dissemination of child pornography and one
count of criminal use of a communication facility. At trial,
[Appellant] was found guilty of all fifty counts of possession of
child pornography and one count of criminal conspiracy to possess
child pornography. On November 19, 2019, following a pre-
sentence investigation being completed, [the trial court]
sentenced [Appellant] to an aggregate term of thirty to sixty years
of incarceration. [Appellant] filed a timely post-sentence motion,
which was denied after reviewing argument and briefs by counsel.
A Notice of Appeal was filed on May 29, 2020. Following
[the trial court’s order, Appellant timely filed a statement per
Pa.R.A.P. 1925(b)] on June 22, 2020[.]
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Trial Ct. Op., 12/10/20, at 1-3. Appellant filed the present timely appeal and
complied with Pa.R.A.P. 1925(b).5
Appellant raises the following issues for our review:
I. Whether the trial court erred by denying [Appellant’s] motion
to suppress evidence, where police officers did not have sufficient
cause to search [Appellant’s] person.
A. Whether [Appellant] was a person to be searched under
the search warrant issued for the [Residence.]
B. Whether police officers had reason to believe that
criminal activity was afoot and that Appellant was armed
and dangerous in performing [a] pat-down search of
Appellant.
C. Whether the Commonwealth articulated a rationale for
whether the searching officer believed the micro-SD card in
Appellant’s pocket was a weapon or contraband.
II. Whether the trial court erred by denying [Appellant’s] motion
to suppress evidence, where police did not have sufficient cause
to search the tent being occupied by [Appellant] as the same was
beyond the scope of the search warrant.
III. Whether sufficient evidence was presented at trial to support
convictions for fifty (50) counts of possession of child pornography
and criminal conspiracy.
IV. Whether Appellant’s convictions . . . were against the weight
of the evidence.
5 Appellant filed a post-sentence motion on December 2, 2019, six days after
sentence was imposed. The trial court denied his motion on May 5, 2020, and
Appellant filed his notice of appeal on May 29th. (The time for consideration
for his motion was extended by motion pursuant to Pa.R.Crim.P. 720(B)(3)(b),
and by virtue of the orders of court extending deadlines during the COVID-19
pandemic.) He filed his Statement of Matters Complained of on Appeal on
June 22nd, following the June 3rd order of the trial court.
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V. Whether the [trial court] erred by allowing the Commonwealth
to, over defense counsel’s objection, admit into evidence and
publish to the jury inflammatory photographs and video
containing child pornography.
VI. Whether the [trial court] erred by allowing the Commonwealth
to present inflammatory evidence of Appellant’s incarceration.
Appellant’s Brief at 7-9 (some subheadings omitted). Because we reverse as
to Appellant’s motion to suppress his search, we do not reach issues three
through six.
We review suppression decisions to determine “whether the suppression
court’s factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v. Jones,
988 A.2d 649, 654 (Pa. 2010).
I. The Warrant
Appellant argues that the trial court erred in denying suppression
because there was not sufficient cause to search his person.6 First, he argues
that the search of his person was improper, as he was not a person to be
searched under the warrant. Appellant’s Brief at 24-30. He cites
Commonwealth v. Wilson, 631 A.2d 1356, 1358 (Pa. Super. 1993), and
6 Appellant also argues that police lacked sufficient cause to search the tent;
we need not reach that issue, as we reverse on Appellant’s argument as to
probable cause to search his person. Once officers became aware that the
tent was effectively a separate residence, given that the APP clause in the
search warrant was faulty and did not describe the tent despite the fact that
officers knew it was there prior to the warrant’s execution, the proper course
of events would have been to seek a warrant to search the tent.
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some related cases for the proposition that “all persons present” warrants are
disfavored.7
The Commonwealth points out that “all persons present” warrants have
been upheld in situations involving narcotics sales. Commonwealth’s Brief at
10-12. The Commonwealth claims that “[t]he basis of the warrant was child
pornography being uploaded at the IP address associated with the residence,
which creates a direct nexus between all of the people present and the
probable cause for the warrant.” Commonwealth’s Brief at 11.
The trial court cites Commonwealth v. Graciani, 554 A.2d 560 (Pa.
Super. 1989), for the proposition that where the type of evidence sought is
easily concealed on the body, “all persons present” searches have been
upheld.8 Trial Ct. Op. at 4 (unnumbered).
7 “Pennsylvania law requires that every search warrant ‘name with
particularity the person or place to be searched,’ [and] ‘all persons present
warrants’ are not favored.” Wilson, 631 A.2d at 1358 (citations omitted).
8 There is some doubt as to Graciani’s continued viability.
The continued vitality of Graciani, however, is questionable. “By
allowing ‘all persons' search warrants even when it was probable
that they would authorize searches of ‘innocent third parties,’
Graciani clearly abandoned the De Simone standard, which
requires probable cause as to every person likely to be present.”
Guadarrama, 128 F.Supp.2d at 1210 (emphasis in original).
Subsequent to Graciani, however, the Pennsylvania Superior
Court returned to De Simone, holding that “all persons warrants”
“are only permissible when the affidavit of probable cause
contains sufficient facts to justify a search of everyone found on
the premises.” Commonwealth v. Wilson, 429 Pa. Super. 197,
631 A.2d 1356, 1358 (1993). In Wilson, although the warrant
did not authorize an “all persons” search, the affidavit requested
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“All persons present” warrants are “only permissible when the affidavit
of probable cause contains sufficient facts to justify a search of everyone found
on the premises.” Wilson, 631 A.2d at 1358 (citation omitted). The United
States Supreme Court has expressly declined to address the validity of such
a warrant. See Ybarra v. Illinois, 444 U.S. 85, 92 n.4 (1979)
(“Consequently, we need not consider situations where the warrant itself
authorizes the search of unnamed persons in a place and is supported by
probable cause to believe that persons who will be in the place at the time of
the search will be in possession of illegal drugs.”).
The search warrant contained the following provision:
I also respectfully request the authority to search any vehicle or
vehicles or the body of any person or persons which are present
at the time the search warrant is executed or which may arrive on
the property during the course of the execution of the search
warrant. This is requested due to the size and portability of many
of today’s storage media devices.
Application for Search Warrant, 12/19/18, at 2. The provision went on to
discuss the relatively small size of data storage options (such as the micro SD
such a warrant. The court discussed “all persons” warrants,
however, because it concluded that the affidavit was insufficient
to support such a warrant in any event. Thus, the fact that an “all
persons” warrant had not issued in Wilson does not undermine
the court's discussion of such warrants.
Church of Universal Love & Music v. Fayette Cty., 892 F.Supp.2d 736,
745 n.4 (W.D. Pa. 2012); see also United States v. Guadarrama, 128
F.Supp.2d 1202, 1209 (E.D. Wis. 2001) (noting this Court’s seeming
abandonment of State v. De Simone, 60 N.J. 319, 288 A.2d 849 (1972) in
Graciani, and our subsequent return to the De Simone factors in Wilson.)
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card at issue here) and included a photograph of an SD card, a micro SD card,
a small USB drive, and a smartphone. Id.“[O]ur constitution prioritizes the protection of privacy rights caused by
the unreasonable search above the need to present incriminating evidence in
court and to assist law enforcement efforts.” Commonwealth v. Alexander,
243 A.3d 177, 204 (Pa. 2020) (Pennsylvania’s Constitution provides broader
privacy protections than its federal counterpart). Search warrants must name
and describe with particularity the persons or places to be searched.
Pa.R.Crim.P. 205(A)(3). “Because Pennsylvania law requires that every
search warrant ‘name with particularity the person or place to be searched,’ .
. . ‘all persons present warrants’ are not favored.” Wilson, 631 A.2d at 1358(citation omitted). APP warrants are “only permissible when the affidavit of
probable cause contains sufficient facts to justify a search of everyone found
on the premises.” Id.An early case from the Supreme Court of New Jersey provided a map
for our courts’ analysis of APP warrants. In State v. De Simone, 288 A.2d
849 (N.J. 1972), that Court upheld denial of suppression where an APP
warrant for an automobile was issued in an investigation of illegal sale of
lottery slips. The Court described the warrant as “in our view, unassailable”
as to its demonstration of probable cause. Id. at 851. After pointing out the
diminished expectation of privacy that applies to automobiles, id., the De
Simone court then reviewed the law of other jurisdictions on APP warrants
and concluded that such warrants may support searches of unnamed parties
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where “based upon probable cause to believe such person, whether driver or
passenger, would be involved in the criminal operation, and that presence in
the car at the place of the criminal rendezvous satisfied the requirement for
specificity in the Fourth Amendment.” Id. at 854.9
Although our courts initially adhered to De Simone’s analysis, other
jurisdictions have observed some inconsistency in that adherence, as
discussed infra.
[T]hough generally disfavored, an “all persons present”
warrant would be deemed constitutional when the totality of the
circumstances established a sufficient nexus between the persons
to be searched, the location, and the criminal activity suspected.
In [Commonwealth v.] Heidelberg, [535 A.2d 611 (Pa. Super.
1987),] we found a sufficient nexus to justify issuance of an “all
persons present” warrant based upon the fact cocaine sales had
been observed between the occupant and other persons at the
house within twenty-four hours of the application for the warrant,
a large quantity of cocaine was believed to be kept at the house,
the place to be searched was a private residence, and the crime
suspected involved contraband which could easily be hidden on
the body. 369 Pa. Super. at 407, 535 A.2d at 615. We reasoned
that the likelihood that anyone present at the time of the
execution of the warrant might be involved in the cocaine
distribution or be willing to hide evidence of the operation on their
person was sufficient to justify issuance of an “all persons present”
warrant.
9 “A majority of state and federal courts addressing the issue have followed
De Simone's pronouncement that an ‘all persons’ warrant is constitutional if
the information given the issuer established probable cause to believe that all
persons on the premises at the time of the search are involved in the criminal
activity . . . [o]therwise stated, such a warrant is authorized only if ‘the
supporting affidavit establishes probable cause that evidence of illegal activity
will be found upon every person likely to fall within the warrant's scope at the
time of execution.’” Church of Universal Love & Music v. Fayette Cty.,
892 F.Supp.2d 736, 744 (W.D. Pa. 2012).
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Graciani, 554 A.2d at 562 (some citations omitted). To summarize: four
factors in Heidelberg justified the use of an otherwise-disfavored APP
warrant. The recent (within 24 hours) cocaine sale, the suspected large
quantity of cocaine, the fact that the search target was a private residence,
and the fact that the contraband in question is easily concealed on one’s
person led the Heidelberg court to uphold the issuance of an APP warrant.
In Heidelberg, this Court observed two strains of thought on APP
warrants, and elected to join the majority of jurisdictions at that point who
had eschewed a blanket ban on such warrants and instead adopted a case-
by-case approach, guided by an analysis of whether the terms of the warrant
were “justified under the particular circumstances present when the warrant
issued.” Heidelberg, 535 A.2d at 612. “So long as there is good reason to
suspect or believe that anyone present at the anticipated event will probably
be a participant, presence becomes the descriptive fact satisfying the aim of
the Fourth Amendment.” Id. at 613 (quoting De Simone, 288 A.2d at 850).
“The evil of the general warrant is thereby negated.” De Simone, 288 A.2d
at 850.
In Wilson, cited supra, this Court reversed denial of suppression where
police applied for an APP warrant but received a warrant without the APP
clause. Wilson, 631 A.2d at 1358. The defendant, a Robert Wilson, was not
a named “party to be searched” under the warrant, although two others with
the last name Wilson were. This Court concluded that “the affidavit failed to
contain facts sufficient to support the issuance of a warrant to search all
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persons present” and therefore, in searching the defendant, “[t]he police in
this case also acted beyond the authority of their warrant.” Id. at 1358, 1359.
Other jurisdictions have similarly articulated the conditions under which
the otherwise-disfavored APP warrant may be used. For instance, a recent
opinion from Maryland observed that the applicable law was sparse. Eusebio
v. State, 225 A.3d 507, 528 (Md. Ct. Spec. App. 2020) (“Maryland's appellate
jurisprudence regarding all-persons-present warrants appears to be limited to
dicta in one case . . . .”) (citation omitted). The court described its approach
as being informed by De Simone, and explained that an APP warrant is
permissible where “the information supplied the magistrate supports the
conclusion that it is probable anyone in the described place when the warrant
is executed is involved in the criminal activity in such a way as to have
evidence thereof on his person.” Id. (citation omitted). “In short, the all-
persons-present warrant withstands constitutional scrutiny because the judge
who issues it makes a probable-cause determination for all persons subject to
search, even if they are identifiable only ‘by physical nexus to the on-going
criminal event itself.’” Id. (citation omitted).
In 2001, when the Eastern District of Wisconsin surveyed other
jurisdictions’ approaches to APP warrants, it designated De Simone as the
leading case representing the majority approach. Guadarrama, 128 F. Supp.
2d. 1207-08 & n.7 (surveying state and federal decisions on APP warrants).
Under that approach, APP warrants comply with the Fourth Amendment “only
if the supporting affidavit establishes probable cause that evidence of illegal
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activity will be found upon every person likely to fall within the warrant's
scope.” Id. at 1207 (emphasis in original).
New York courts apply the following factors in evaluating the
permissibility of APP warrants: “the character of the premises, the nature of
the illegal activity believed to be conducted at the location, the number and
behavior of the persons present at the time of day or night when the sought
warrant was proposed to be executed, and whether persons unconnected with
the illicit activity had been observed at the premises.” People v. Mothersell,
926 N.E.2d 1219, 1224 (N.Y. 2010) (APP warrant is faulty where its sole
justification is the deponent’s assertion that it is “not uncommon that persons
found in the subject residence could reasonably be expected to conceal
cocaine.”). “The essential object of the searching examination required of the
reviewing magistrate . . . is to guard against the authorization of a dragnet
likely to include the innocent, a danger that would otherwise routinely be
courted in issuing all-persons-present warrants.” Id. (citation omitted). New
York courts subject APP warrant applications to serious scrutiny to ensure that
such warrants will only issue when the applicant provides “a showing of facts
from which it can be inferred that it is substantially probable that any persons
present at the warrant's execution will have the sought evidence of crime upon
them.” Id. at 1225.
Washington state courts apply the law similarly. In State v. Carter,
901 P.2d 335 (Wash. Ct. App. 1995), the court found fault with an APP warrant
based on an informant’s report that they had been inside the location, where
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they observed the sale and use of rock cocaine by numerous unknown
individuals. Id. at 336. The court reasoned that, although the informant’s
account “supports the conclusion that some persons on the premises are
engaged in illegal activity, it does not support the conclusion that only illegal
conduct occurs on the site, and that therefore any person present is likely to
be” involved in such conduct. Id. at 339 (citation omitted).
A recent opinion from the District Court for the Middle District of
Tennessee provides a useful summary. It explains that “courts have taken
two approaches to ‘all persons’ clauses in search warrants” and outlines those
approaches as follows:
The minority view (the “Georgia approach”) was set forth by the
Georgia Court of Appeals. State v. Cochran, 217 S.E.2d 181,
183 (Ga. Ct. App. 1975). In Cochran, police obtained a warrant
to search for “illegal drugs and narcotics” in “automobiles, on
persons and in two buildings located on the premises and curtilage
… known as the Sunshine Club.” Id. at 182. Police stopped a car
leaving the club, searched a passenger of the car, and found an
illegal drug. Id. Affirming the trial court’s suppression of the
evidence, the Court of Appeals stated that the warrant was a
“general warrant” as applied to Cochran, violating the particularity
requirement of the Fourth Amendment, because “he was neither
listed by name specifically nor described generally, and no
additional indicia of probable cause were provided at the scene of
the search.” Id. at 183 (citing Willis v. State, 177 S.E.2d 487(Ga. Ct. App. 1970) (describing a warrant that authorizes the
search of “all persons” as a void general warrant)). At least three
other state courts have followed this approach. Johantgen v.
Commonwealth, 571 S.W.2d 110, 112 (Ky. Ct. App. 1978)
(holding that a warrant that allowed search of “any other person
believed to be involved in the illegal use of, possession of, or
trafficking in controlled substances” at a residence is an
unconstitutional general warrant); Peavy v. State, 336 So.2d
199, 202 (Ala. Ct. Crim. App. 1976) (holding that a warrant
allowing the search of “each and every person in or near said
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mobile home” where controlled narcotics were being sold was an
unconstitutional general warrant); Crossland v. State, 266 P.2d
649, 651–52 (Ok. Crim. Ct. App. 1954) (holding that a warrant
allowing the search of “each and every person” at a house
constitutes an unconstitutional general warrant).
United States v. Utley, 3:17-CR-00173-1, 2018 WL 2020838, at *2 (M.D.
Tenn. May 1, 2018).
The court went on to describe De Simone as the leading case
expressing the majority approach. After outlining De Simone’s reasoning,
the court continued:
Multiple state jurisdictions have followed the New Jersey
approach. See People v. Johnson, 805 P.2d 1156, 1160 (Co.
Ct. App. 1990) (search upheld based on an eight-page affidavit
showing particular facts that everybody going to a residence was
involved in the delivery, cooking, or buying of illegal narcotics)
(collecting cases). The common thread in these cases is
allegations that everyone at a location is involved in the illegal
activity. For example, in Commonwealth v. Smith, 348 N.E.2d
101 (Mass. 1976), the Massachusetts Supreme Court, in denying
a motion to suppress when there was constant traffic of heroin
buyers coming into a residence, found that it is only in “special
circumstances such as those shown in the affidavit here will a
search warrant aimed principally at the premises also be held to
include validly the search of any person present.” 348 N.E. 2d at
103. The Minnesota Supreme Court upheld a nighttime search for
illegal liquor of a house that was used as an after-hours bar,
finding that there “was little likelihood that anyone would be in the
house but to participate in the after [ ] hours revelry.” State v.
Hinkel, 365 N.W.2d 774, 776 (Minn. 1985).
United States v. Utley, 3:17-CR-00173-1, 2018 WL 2020838, at *2 (M.D.
Tenn. May 1, 2018). The Utley court went on to apply De Simone, which
has been adopted by the Fourth Circuit. Id. at *3. We observe that courts
following De Simone are likely to consider an APP warrant as permissible
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where the illegal activity being investigated so permeates the location to be
searched that most persons not involved in such activity would find it noxious
to linger there. In the absence of such pervasive illegal activity, an APP
warrant faces grim prospects under De Simone.10
If the contraband at issue here were distributed as cocaine is distributed,
and if the affidavit of probable cause (or APC) documented many incidents of
distribution rather than one, then this case would arguably fit within the
Heidelberg/Graciani/Abbott line of cases following New Jersey’s approach
in approving APP warrants at hubs of illegal activity. There are residential
buildings that are effectively surreptitious storefronts for retail drug
distribution and/or use.11 However, the internet has become the primary
distribution point for the contraband at issue here, which is images of child
sexual abuse (“CSA images”).12
10 In U.S. v. Abbott, 574 F.3d 203 (2009), the Third Circuit quoted the
Supreme Court’s requirement that a search “be supported by probable cause
particularized with respect to that person,” and held that “a warrant may
authorize the search of all persons present if there is probable cause to believe
that a premises is dedicated to criminal activity.” Abbott, 574 F.3d at 212.
11 For instance, the social ubiquity of the word “crack house” speaks to the
prevalence of this concept. A building so described is no longer solely or
primarily a residence, though it is not uncommon for people to reside there.
12 Although the statute (and therefore this Court) sometimes uses the word
“pornography” in describing what happened here, we observe the distinction
between media depicting consensual sexual behavior between adults who
have also consented to creation of that media and what happened here, which
is recorded abuse of children. Wishful thinking on the part of some abusers
does not render it otherwise, just as wishful thinking does not transform an
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Our laws’ general antipathy toward APP warrants yields in discrete
situations in which the APC establishes probable cause to believe that the
location to be searched is effectively a manufacturing, distribution, or retail
hub for narcotics sales. Where the target is a house that has been established
to be effectively a narcotics store, this makes sense. The APC at issue in this
matter does not establish that there was probable cause to believe any such
thing of the Residence.
Rather, approximately two months prior to submission of the affidavit
of probable cause, the investigating officers were “able to locate” a single
upload of CSA images. Application for Search Warrant, 12/19/18, at 9. They
then tracked the IP address of the computer that made the upload, and
through the internet service provider, matched the IP address to a particular
location: the Residence. That is not enough to establish probable cause to
believe that the location is dedicated to the illegal activity of distributing CSA
images, such that anyone present at execution of the search would almost
certainly be involved in that activity.13
assault into sex. Context, and consent, matter (and of course, children cannot
consent to being assaulted by adults).
13 A more analogous scenario would be where the affidavit of probable cause
established a reason to believe that CSA images were being created at a
location to be searched. Then, it would be hard to imagine that any adult at
the location could be entirely unaware of the criminal uses to which the
location was put.
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The trial court explains its denial of suppression by emphasizing that the
evidence would likely be small and easily hidden, as in the drug cases analyzed
supra, and then by stating the following:
The right to search [Appellant] was requested and granted in the
warrant obtained by the Pennsylvania State Police. Because the
warrant was valid, the officers did not need any other sufficient
cause to search [Appellant].
Trial Ct. Op. at 5 (unpaginated).14 This is incorrect. Ybarra makes clear that
“[w]here the standard is probable cause, a search or seizure of a person must
be supported by probable cause particularized with respect to that person.”
Ybarra, 444 U.S. at 91.15 The Ybarra Court goes on: “[t]his requirement
cannot be undercut or avoided by simply pointing to the fact that
coincidentally there exists probable cause to search or seize another or to
search the premises where the person may happen to be.” Id.16 Likewise,
14Likewise, the Commonwealth argues, erroneously, from the validity of the
warrant: “Did the trial court properly deny Appellant’s motion to suppress
evidence, where [the police] searched Appellant pursuant to a valid search
warrant?” Commonwealth’s Brief at 1.
15 Even in Ybarra, the Supreme Court acknowledged that the contraband that
was the search’s object, heroin, is easily hidden on one’s person; the Court
nevertheless concluded that individualized probable cause provides “the best
compromise that has been found for accommodating the often opposing
interests in safeguarding citizens from rash and unreasonable interferences
with privacy and in seeking to give fair leeway for enforcing the law in the
community's protection.” Id. at 95–96 (citation, quotation marks, and
brackets omitted).
16“The issue on appeal is not whether the search warrant was facially invalid,
but whether it was supported by probable cause with respect to all persons
present.” Abbott, 574 F.3d at 212.
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the Commonwealth’s assertion that the single upload “creates a direct nexus
between all of the people present and the probable cause for the warrant”
makes no sense. Commonwealth’s Brief at 11. The Commonwealth then
quotes Graciani, describing how the nexus police established “render[ed] the
probability of [searched parties’] culpable participation in the crime
suspected sufficient to warrant a search of their person to prevent the
destruction or concealment of evidence of the crime suspected.” Graciani,
554 A.2d at 563. That is precisely what did not happen here.
Because Ybarra makes clear that a valid warrant does not render
constitutional all searches conducted in association with the warrant’s
execution, we cannot endorse the trial court’s reliance on the validity of the
underlying warrant. Nor can its observation that one of the Heidelberg
factors, the small size of contraband, was present render the search
constitutional.17 Even under the protections of the Fourth Amendment, our
inquiry must be more particularized than that. If a valid warrant were the
beginning and end of the inquiry, much of our decisional law on suppression
would be unnecessary.
What do police need to do to establish a nexus between the criminal
activity they have uncovered and the location to be searched, such that an
APP warrant is appropriate? In Abbott, it was sufficient that the affiant
“stated that in his experience, ‘defendants [ ] frequently sell and stash
17The Residence is a private residence, and thus another factor recited in
Heidelberg was present as well.
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narcotics from inside a location’” in tandem with information about a series of
controlled buys, in which the dealer at least once entered the house to obtain
narcotics to complete the sale. Abbott, 574 F.3d at 204, 212.
Here, we must conclude that the trial court reached a legally incorrect
conclusion, as it predicated its suppression ruling on the premise that the
validity of the warrant must, perforce, render the APP clause valid as well.
However, under Ybarra, probable cause must be particularized with respect
to each person who is subjected to a search. Ybarra, 444 U.S. at 91.
If the APC supporting the warrant had established cause to believe that
the Residence was primarily a site for the production or exchange of CSA
images, the analysis would likely differ. However, it did not, nor did it attempt
to, establish such a thing. Rather, it established one incident of file sharing
on one connected device. This is not enough to establish “probable cause to
believe [that any] person [onsite] would be involved in the criminal operation,
and that presence . . . satisfied the requirement for specificity in the Fourth
Amendment.” De Simone, 288 A.2d at 854. In fact, the two-months-old,
isolated single upload which forms the basis for the warrant suggests the
opposite.
To conclude otherwise would undervalue the analysis of the vast
majority of jurisdictions that have considered challenges to APP warrants,
would constitute a major departure from our precedent (which follows De
Simone), and would deprecate our Supreme Court’s recent reminder that
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Pennsylvania’s Constitution provides broader privacy protections than the
Fourth Amendment. Alexander, 243 A.3d at 204.
Neither the trial court nor the Commonwealth has advanced any
alternative theory by which the search might be permitted, as both relied on
the argument that because the warrant was valid as to the Residence, the APP
provision must be valid and therefore any search of any person present would
be valid too. Buildings do not have constitutional rights; people do. This is
why the Supreme Court emphasizes particularized probable cause as to each
individual who is subjected to a search of their person by law enforcement.
The Commonwealth is correct in pointing out that Pennsylvania courts have
upheld APP warrants where the APC establishes reasonable suspicion that the
location is effectively a retail hub for drugs. See, e.g., Commonwealth v.
Johnson, 880 A.2d 678 (Pa. Super. 2005), wherein this Court upheld denial
of suppression. An APP warrant was issued where a confidential informant
purchased narcotics, and observed several others using or selling narcotics,
at a particular location, and other informants told police that several drug
dealers used the location to sell drugs.18 Id. at 681. The Johnson court
noted that the narcotics in question are easily hidden on the body, but they
18 In an apparently unrelated case also captioned Commonwealth v.
Johnson, this Court approved denial of suppression and specified that
warrants to search particular named parties are distinguishable from APP
warrants. Commonwealth v. Johnson, 33 A.3d 122, 125 n.5 (Pa. Super.
2011) (“We note that the cases cited by Johnson in support of his claim involve
‘all persons present’ warrants, and as such are distinguishable and
inapplicable on that basis alone.”).
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also noted that police watched the location in question in response to the
informants’ reports, and observed heavy traffic there. Id. None of these
factors are present in this case save the size of the contraband.
The founders of this nation abhorred the general warrant, and took pains
to prevent such a legal device from taking root in the country they created.
The same is true of this Commonwealth and its founders. “[T]he historical
background of Article 1, Section 8 . . . establishes that the purpose underlying
Article 1, Section 8 was to protect persons from unreasonable searches and
seizures conducted pursuant to general warrants.” Commonwealth v.
Waltson, 724 A.2d 289, 291 (Pa. 1998) (citation omitted).
The constitutions of Pennsylvania and the United States must always
concern us more than any one person or act, no matter how abhorrent the act
or alarming the individual. Because we conclude that the police had no
particularized cause to search Appellant, we must reverse the trial court’s
conclusion as to the propriety of the search.
Further, even if the warrant was appropriate as approved, it cannot
justify the search of Appellant. One intercepted download or upload two
months prior does not provide probable cause to search a person in a tent in
a yard adjacent to where the intercepted transmission occurred, two months
later. Because APP warrants are disfavored and have long been so, we will
not interpret the latitude of intrusive power granted by such warrants in an
overbroad manner. Our courts will not permit any warrant to be misused to
allow ancillary searches unsupported by particularized probable cause.
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Where, as here, there is no realistic connection between the probable cause
supporting the warrant’s issuance and the search in question, suppression is
required.
Police testimony established that they elected to search Appellant
because it was cold on the morning of December 20th, when the warrant was
executed. See N.T. Suppression at 7, 12-14. The officers wanted to interview
Appellant, and because of the cold weather, they elected to interview
Appellant in a police car. Thus, officer safety dictated that Appellant be
subjected to a Terry patdown.19 Id. at 12-14.
Police executing a search warrant for drugs at a residence may not
perform a patdown for weapons on anyone merely present on the premises.
In re J.V., 762 A.2d 376, 382 (Pa. Super. 2000) (“mere presence during the
execution of a search warrant is insufficient ground, in and of itself, for a
19 See Terry v. Ohio, 392 U.S. 1, 20 (1968); Commonwealth v. Hicks, 253
A.2d 276, 279 (Pa. 1969) (when conditions warrant, police may “conduct a
limited search of an individual's outer clothing in an attempt to discover the
presence of weapons which may be used to endanger the safety of police or
others.”) (citation omitted). “To validate a Terry frisk, the police officer must
be able to articulate specific facts from which he reasonably inferred that the
individual was armed and dangerous.” Commonwealth v. Gray, 896 A.2d
601, 606 (Pa. Super. 2006) (reversing denial of suppression where customer
in a store subject to a police raid was nervous and sweating, which does not
establish basis for patdown). “We reject the Commonwealth's suggestion that
Gray subjected himself to a Terry frisk by virtue of his presence on the
premises during the execution of a search warrant for drugs . . . police
executing a search warrant for drugs at a residence may not perform a pat-
down for weapons on anyone merely present on the premises.” Id. at 606(citations omitted).
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protective pat-down” (citations omitted)). Compare, for instance, the facts
of a recent case from our Supreme Court:
The [APC] reflects that police officers responded to an anonymous
911 call reporting shots fired in a particular apartment in
Pittsburgh during the early morning hours of November 23, 2014.
They approached the apartment and smelled burning marijuana
coming from inside and could hear people moving. Fearing
someone might be shot or injured, the officers knocked and
announced their presence but received no answer for several
minutes. Then, a woman answered and the officers detained her
and four other individuals following a protective sweep, during
which they also discovered in plain view two bricks of heroin on a
shelf and three stolen firearms hidden together above a hot water
tank. All five individuals were placed under arrest and, during a
search incident to arrest, two cell phones each were recovered
from appellant and another man. After the officers obtained a
warrant to search the apartment several hours later, they
executed it and discovered an additional 717 stamp bags of heroin
and three more cell phones from the living room. And, on March
31, 2015, over four months after the initial search and discovery
of this sizable stash of drugs and firearms in the apartment, the
officers sought and obtained a search warrant for appellant's two
cell phones.
Commonwealth v. Johnson, 240 A.3d 575, 580 (Pa. 2020). The Court
reversed denial of suppression, concluding that the law requires “some specific
nexus between the items to be [searched and] seized and the suspected crime
committed” and “review of the [APC] reveals no such link.” Id. at 587-88
(quotation and citation omitted). “Stated more plainly, where law
enforcement seeks to search a person's cell phone based on the person's mere
proximity to illegal contraband, some link sufficient to connect the two must
be provided in the affidavit of probable cause.” Id. at 587.
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If police were permitted to obtain APP warrants without having
documented “sufficient facts to justify a search of everyone found on the
premises” then the rule of In re J.V. and many cases like it would be
practically nullified. Just as our constitutions ought never be regarded as
“technicalities,” their protections cannot be circumvented simply by requesting
certain magic words in the warrant application. In contrasting the facts here
with those in cases where APP warrants are constitutional, we observe that
there is no substitute for shoe-leather.
II. The Tent
In his second issue raised on appeal, Appellant argues that the search
of his tent and the evidence recovered therefrom should have been
suppressed, since the tent was not described in the warrant and the
investigating officers had insufficient cause to search the tent. Appellant’s
Brief at 35-37. The Commonwealth concedes that “[h]ad [police] been aware
of Appellant or his tent, they would have been required to list it on the search
warrant.” Commonwealth’s Brief at 3.20 The Commonwealth argues “during
their initial surveillance of the residence, officers could not see the tent. Based
on this fact, the police could not have reasonably included this additional area
in their search warrant’s affidavit . . . .” Id. at 9. In fact, police testimony
established their awareness, in advance of the search, of both Appellant and
20 The trial court agrees: “If the officers had known about the tent, they would
have been required to list it in the property description . . .”. Trial Ct. Op. at
6.
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the tent in which he was residing. See N.T. Suppression at 9 (“Prior to going
to the tent we actually got word from the corporal who was interviewing at a
different location that somebody was living in the tent in the backyard.”). 21
The investigating officers initiated the tent search by “knocking” and
announcing that they had a search warrant. Thus, it is plain that they were
not relying on any alternative grounds for the tent search. Further, there is
no indication that Appellant was present in the house when the upload that
initiated this investigation was made, several months before the search.22
There is no indication that Appellant had access to the internet, such that the
IP address associated with the upload should have been associated with the
tent in any way. Thus there is no nexus between the tent and the purpose of
this investigation.
21 It appears that Corporal Novak spoke with the landowner prior to the
search. See N.T. Trial, 8/13/19, at 57. Another of the officers who
participated in the search testified that “I believe there was information that
somebody was living in the tent in the back yard, so we proceeded to go check
the tent.” Id. at 65. Corporal Novak spoke with the landowner, who was
aware of Appellant’s presence in the backyard tent. “I talked to her initially
at the . . . police department. And then I believe later on when we went back
to the residence to get [Terrizzi], I spoke to [her] again.” Id. at 89. So the
notion that police first realized there was a tent in the yard when they
searched the house is simply false, as established by the testimony of several
Commonwealth witnesses.
22Although the initial upload would not likely be considered stale, it was not
particularly fresh either. See, e.g., Commonwealth v. Hoppert, 39 A.3d
358, 363 (Pa. Super. 2012) (warrant based on receipt of CSA images
approximately six months prior to search, under the circumstances, did not
render warrant stale).
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Other courts have recognized that tents, where they have attributes of
a dwelling, are entitled to protection against unreasonable searches and
seizures. See U.S. v. Gooch, 6 F.3d 673 (9th Cir. 1993) (Fourth Amendment
protects people rather than places, and camper who pitched a tent at a public
campground had a reasonable expectation of privacy); LaDuke v. Castillo,
455 F. Supp. 209 (E.D. Wash. 1978) (immigration agent violated farmworker's
reasonable expectation of privacy in his tent); People v. Schafer, 946 P.2d
938 (Colo. 1997) (reasonable expectation of privacy in a tent which he pitched
on publicly accessible vacant land); Rolling v. State, 695 So. 2d 278 (Fla.
1997), reh'g denied, (June 12, 1997), cert. denied, 522 U.S. 984 (1997)
(trespasser who pitched a tent on land owned by a public university had a
reasonable expectation of privacy in the tent, though search was justified by
exigent circumstances); Kelley v. State, 245 S.E.2d 872 (Ga. App. 1978)
(court found protection against unreasonable searches and seizures applied
to a tent which had attributes of a dwelling though it was pitched on land not
belonging to the individuals claiming protection); People v. Livermore, 9
Mich. App. 47, 155 N.W.2d 711 (1967) (in “indecency” investigation of same-
sex couple, their tent was the equivalent of a private residence despite being
located at a public campground).23 Appellant was not “camping” in the
23 “In most [cases where courts decline to find a privacy interest in a tent],
the person who sought protection under the Fourth Amendment was a
trespasser.” 66 A.L.R.5th 373 (Originally published in 1999) (citations
omitted). Here, the landowner’s testimony established that Appellant was not
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conventional sense of the term; circumstances established by Commonwealth
testimony at the suppression hearing make clear that he was living in the
tent, just as the officers conducting the search had been forewarned.
Unhoused people, too, enjoy constitutional protections, even when living in
humbling circumstances. As established above, the warrant’s APP clause
cannot support the tent search just as it cannot support the search of
Appellant’s person. The Commonwealth’s own acknowledgement that “if” it
had known about the tent, it would have had to describe it in the warrant,
combined with Commonwealth testimony that the officers conducting the
search were informed, prior to the search, that a person was residing in the
tent in the backyard, establish the infirmity of the tent search.24
Because the warrant should never have been issued with an APP clause,
and because any arguable nexus between Appellant’s person and the crimes
under investigation was woefully insufficient, we must reverse. See
Commonwealth v. Torres, 177 A.3d 263, 272 (Pa. Super. 2017) (where no
nexus between the crimes under investigation and search, denial of
a trespasser; rather, he had permission to live in the tent in the backyard.
N.T. Trial, 8/13/19, at 53-54.
24The tent search was conducted pursuant to the search warrant. N.T.
Suppression at 16.
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suppression reversed).25 The search of his person and his abode, and any
poisonous fruits thereof, must be suppressed.
Judgment of sentence vacated. Suppression order reversed. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judge King Concurs in the Result.
Judge McLaughlin files a Dissenting Memorandum Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2021
25 We further note that, although Appellant had some computer equipment in
his tent, he reports that prior to the search, an officer asked him if he had
WiFi in the tent and he said no. N.T. Suppression at 30. The testimony was
unrebutted. Id.- 28 -