Com. v. Wright, J. , 99 A.3d 565 ( 2014 )

J-A04037-14
2014 PA Super 189COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOSHUA THOMAS WRIGHT
Appellee No. 825 WDA 2013
Appeal from the Order entered April 16, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0010466-2012
BEFORE: BOWES, WECHT, AND STABILE, JJ.
OPINION BY STABILE, J.: FILED AUGUST 29, 2014
Appellant, the Commonwealth of Pennsylvania, appeals from the trial
asks us to decide whether the trial court erred in suppressing a cell phone
that police seized pursuant to the plain view doctrine. We affirm.
The trial court recited the pertinent facts and procedural history in its
Pa.R.A.P. 1925(a) opinion:
On July 2, 2012, [Appellee, Joshua Thomas
criminal homicide, one count of burglary, and one
count of possession of a prohibited firearm stemming
-girlfriend and mother of his
paramour. [Appellee] filed a motion to suppress on
January 25, 2013, and a suppression hearing was
held on April 5, 2013. On April 16, 2013, this [c]ourt
2013, the Commonwealth filed a Motion to
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Reconsider, which was denied via Order of Court
dated May 13, 2013. On May 15, 2013, the
Commonwealth filed the instant appeal.
***
The following are the facts as found by this
[c]ourt during the Suppression Hearing: The
shooting deaths of Gibson and Black were brought to
the attention of the Wilkinsburg Police Department
home at the time of the incident. Clark relayed a
few different versions of the events of the night in
question, however ultimately she convinced the
officers to enter and search the premises, where
they discovered the bodies of Gibson and Black in an
and identification of [Appellee] as the shooter, an
arrest warrant for [Appellee] was issued. The police
executed the arrest warrant at approximately 2:20
Upon arrest, [Appellee] was found in bed
wearing only a pair of underwear. [Appellee] was
then handcuffed, and, given his state of undress, the
arresting police officers assisted him in getting
clothed. They chose and placed upon him a pair of
khaki shorts. The two officers testified that they had
the shorts after they were placed upon him, and as
such, the cellular telephone was seized incident to
arrest. The [c]ourt did not find as credible testimony
that the officers gave a double homicide suspect an
article of clothing to wear with something as weighty
as a cell phone in the pockets. This action would be
contrary to the safety of the officers, as the clothing
could have contained a gun or other small weapon,
who was present during the arrest testified that the
of the
testimony. Based upon the testimony presented at
the suppression hearing, this [c]ourt concluded that
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the cellular telephone was situated on the nightstand
next to the bed, and not seized incident to arrest or
the seizure was impermissible.
Trial Court Opinion, 8/26/13, at 1-3 (record citations omitted). Appellee
stands accused of two counts of criminal homicide (18 Pa.C.S.A. § 2501(a)),
one count of burglary (18 Pa.C.S.A. § 3502), and one count of persons not
to possess a firearm (18 Pa.C.S.A. § 6501(a)(1)).
As set forth above, the Commonwealth filed a timely appeal from the
1
trial cour The Commonwealth raises a single issue for
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1
The Commonwealth relies on Rule 311(d) of the Pennsylvania Rules of
Appellate Procedure, which provides as follows:
(d) Commonwealth appeals in criminal
cases. In a criminal case, under the circumstances
provided by law, the Commonwealth may take an
appeal as of right from an order that does not end
the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or
substantially handicap the prosecution.
certification implicates our jurisdiction to entertain this appeal.
Commonwealth v. White, 910 A.2d 648, 653 (Pa. 2006).
Wh
is entitled to some deference, this Court need not accept its good faith
certification in every case. In White, for example, an evenly divided
Supreme Court could not agree whether an order denying a recusal motion
motion was not appealable pursuant to Rule 311(d). In Commonwealth v.
Cosneck, 836 A.2d 871, 876 (Pa. 2003), the Supreme Court ruled that the
Commonwealth could not rely on Rule 311(d) to appeal from a pretrial
motion in limine admitting defense evidence. Nonetheless, where the
(Footnote Continued Next Page)
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suppress his cellphone and its contents based on an allegedly unlawful
rief at 4.
We review the trial order according to the following standard:
When the Commonwealth appeals from a
suppression order, we . . . consider only the
with the evidence of the prosecution that, when read
in the context of the entire record, remains
uncontradicted. The suppr
fact bind an appellate court if the record supports
of law, however, are not binding on an appellate
court, whose duty is to determine if the suppression
court properly applied the law to the facts.
Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013).
phone. Therefore, the sole issue before us is whether the plain view
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(Footnote Continued)
defendant prevails in a pretrial motion to suppress Commonwealth evidence,
hen a pretrial motion removes
whether that evidence substantially handicaps his ability to prove every
Id. at 875 (citing Commonwealth v.
Dugger, 486 A.2d 382, 386 (Pa. 1985)). In the instant matter, therefore,
we have jurisdiction to entertain this appeal pursuant to the
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conclude that it did not.2
In general, the Fourth Amendment of the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution do not permit police
to search for or seize property absent a lawfully obtained search warrant.
Commonwealth v. Anderson, 40 A.3d 1245, 1249 (Pa. Super. 2012),
appeal denied, 51 A.3d 837 (Pa. 2012). The plain view doctrine permits a
warrantless seizure if each of the following conditions applies:
1) police did not violate the Fourth Amendment
during the course of their arrival at the location
where they viewed the item in question; 2) the item
was not obscured and could be seen plainly from
that location; 3) the incriminating nature of the item
was readily apparent; and 4) police had the lawful
right to access the item.
Id.The parties do not now dispute that the police were lawfully present in
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2
In his brief, Wright asserts the Commonwealth waived this issue. We
incident to arrest. In response to the tri
the Commonwealth filed a motion for reconsideration asserting the police
properly seized the cell phone pursuant to the plain view doctrine. The trial
court addressed this issue on the merits in its Pa.R.A.P. 1925(a) opinion.
Raising the issue in a motion for reconsideration was sufficient to preserve
the issue for appellate review. Commonwealth v. McCandless, 880 A.2d
1262, 1268-69 (Pa. Super. 2005), appeal dismissed, 933 A.2d 650 (Pa.
2007); Commonwealth v. Santiago, 822 A.2d 716, 723 (Pa. Super.
2003), appeal denied, 843 A.2d 1237 (Pa. 2004).
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trial court found that the Commonwealth failed to establish that the
Trial Court Opinion, 8/26/13, at 4. A police officer has probable cause to
the facts available to the
items may be contraband or stolen property or useful as evidence of a
crime Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super.
1997) (emphasis in original). The probable cause standard does not require
Id.In Commonwealth v. Ellis, 662 A.2d 1043, 1050 (Pa. 1995), a police
testified that the screwdriver was capable of making the pry marks the
officer observed at the scene of the crime. Id. In addition, an eyewitness
Id. The Supreme
Court concluded that the circumstances were sufficient to lead a person of
reasonable caution to believe that the screwdriver was incriminating
evidence. Id. Likewise, in Commonwealth v. Jones, 988 A.2d 649, 652
(Pa. 2010), the Supreme Court held police properly seized a cell phone
because police knew the victim had a cell phone with him on the night of his
murder and because police observed a blood-stained cell phone in plain view
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The Commonwealth relies on McEnany, in which police found a cell
McEnany, 667 A.2d at 1147. The accused argued that the warrant was not
sufficiently specific to justify the seizure of his cell phone. Id. at 1148. The
Commonwealth argued, and this Court agreed, that police lawfully seized the
cell phone pursuant to the plain view doctrine. Id. Police were aware that
murder. Id. More importantly, police were aware that the accused made a
Id. Based on
these facts, the McEnany Court concluded that police were justified in
seizing a cell phone in plain view during their execution of the search
warrant. Id.
To summarize, in Ellis, Jones, and McEnany, police had specific
evidence tying the seized object to the crime under investigation. We do not
believe the analysis in any of these cases warrants reversal in the instant
case. Here, unlike McEnany, police had no evidence of a specific phone
call. This case is unlike Jones in that the physical condition of the cell
phone did not link it to the crime under investigation, as did the blood-
stained phone in Jones
that Jones and McEnany are indistinguishable from the instant matter.
See Dissenting Opinion, at 10. The distinction between those cases and this
one is that the police officers in Jones and McEnany relied on articulable
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facts in support of their suspicion that the cell phone contained incriminating
evidence, whereas here, the police relied on pure conjecture.
Detective Anthony Perry testified as follows:
have crucial pieces of evidence for our case to assist
our case [sic]. I took the phone with the intention of
either myself or somebody in our office obtaining a
search warrant to get the information or any
potential evidence off the phone.
N.T., 4/5/13, at 11-12. Perry testified that he was aware that Appellee and
the female victim had a prior romantic relationship, and he suspected that
he would find communication between the two shortly prior to the murder.
Id. at 12-13.
As is evident from the foregoing, Perry did not articulate any specific
basis for his suspicion. Appellee and the victim had a romantic relationship
at one point, but that relationship was over, and Perry did not explain why
the past relationship supported his suspicion that Appellee and the victim
had any contact on the day of the murder. Likewise, we believe the learned
relationship with the victim. See Dissenting Opinion at 8-9. In McEnany,
on the other hand, police had specific information that the accused phoned
the victim on the day in question. Similarly, in Ellis, the police officer
offered facts to support his belief that the screwdriver was used in the crime
under investigation. Perry offered only generalized speculation in support of
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seizure. See Commonwealth v. Holmes, 14 A.3d 89, 96-97 n.16 (Pa.
2011) (a police officer must rely on articulable facts to justify a seizure);
Commonwealth v. Parker
the probable cause standard is flexible, mere suspicion is not a substitute for
probable cause as
that cell phones often have crucial evidence would support seizure of a cell
phone under virtually any circumstance.
battery from the cell phone supports a different result in this case. In his
affidavit of probable cause to search the cell phone, Detective Kenneth
Ruckel stated criminal suspects commonly remove batteries from cell phones
in order to avoid GPS detection. Affidavit of Probable Cause, 7/3/12, at 3.3
According to the suppression hearing transcript, the battery was removed
-83.
In these facts, we discern no basis for a seizure of the phone to search
its digital contents. The scope of a search is limited by the basis for its
authorization. See, e.g., 619 A.2d at 740 (Pa. Super. 1993). The same
holds true for searches for digital evidence. For example, this Court in
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3
or lack thereof to
suppressed the phone based on its conclusion that police unlawfully seized
it, and therefore the trial court had no occasion to address the propriety of
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Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014) held several
an email account without narrowing the search to files relevant to the
alleged criminal activity. Id. at 1002-104
conduct simply by introducing testimony that the phone was in pieces and
that its physical condition evinced evasive conduct. We do not believe the
digital contents of the cell phone are relevant to that point. Said another
way, the physical condition of the phone in this case does not justify a
conclusion that its contents could be incriminating. As we noted above, the
instant facts are quite distinct from those of Jones, where police found a
blood-
July 3, 2012 affidavit of probable cause which is not at issue in this case
we believe misses the mark.5
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4
The Orie Court noted that the law concerning search and seizure of digital
information remains under development in Pennsylvania. Id. at 1009 n.43.
5
L
Riley v. California, 134 S. Ct. 2473 (2014) is
misplaced. The Supreme Court noted, as the Dissent asserts, that cell
Id. at 2485. The
Court did so, however, in support of an 8-1 majority opinion rejecting the
(Footnote Continued Next Page)
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Finally, the Commonwealth argues that police acted properly in seizing
opportunity to delete information. Here, the Commonwealth relies on
Commonwealth v. Bostick, 958 A.2d 543 (Pa. Super. 2008), appeal
denied, 987 A.2d 158 (Pa. 2009). Bostick is entirely inapposite, inasmuch
as the question before the Bostick court was whether exigent circumstances
justified warrantless entry into a home. Id. at 556-57. Exigent
circumstances exist where a police officer has probable cause to believe that
immediate action is necessary to preserve evidence of a crime. Id. at 557.
As we have already explained above, police did not have probable cause to
incriminating evidence. The
Commonwealth lacked probable cause to seize the cell phone. See
Commonwealth v. Joseph, 34 A.3d 855, 861 (Pa. Super. 2011) (noting
that the Commonwealth must demonstrate both probable cause and exigent
circumstances to justify a warrantless seizure), appeal denied, 63 A.3d 775(Pa. 2013).
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(Footnote Continued)
The initial seizure of the phone was not at issue in Riley, and Riley
therefore has no direct application here. Furthermore, the Riley majority
relied on the vast quantity of personal information contained in a cell phone
to support its opinion protecting an individual from unlawful government
intrusion therein. Here, we believe the result urged by the Dissent would
violate that protection.
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We conclude that the trial court did not err in rejecting the arguments
properly advanced by the Commonwealth.6 We therefore affirm the trial
Order affirmed.
BOWES, J. files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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6
To be clear, we have decided only that the plain view doctrine and exigent
phone. We offer no opinion on whether police could have seized the cell
phone on some other basis, or whether the police had any valid means of
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