Com. v. Ani, N. ( 2023 )

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2023 PA SUPER 67
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NNAEMEKA ANI : No. 1208 MDA 2021
Appeal from the Order Entered August 12, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001582-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
OPINION BY BENDER, P.J.E.: FILED: APRIL 17, 2023
The Commonwealth appeals from the trial court’s order granting
Appellee Nnaemeka Ani’s motion to suppress all evidence recovered from the
execution of five search warrants. Each warrant pertained to Appellee’s cell
phone, its iCloud1 backups, or its service provider records. The trial court
determined that each warrant was lacking in probable cause and/or
overbroad. The Commonwealth has abandoned its challenge to the first two
warrants, arguing that the remaining three were valid. Our primary task is to
decide the applicability of Commonwealth v. Green, 265 A.3d 541 (Pa.
2021), issued after the trial court’s order, which held that the standard
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* Former Justice specially assigned to the Superior Court.
1The iCloud service backs up data contained on an iPhone, typically items like
photos, videos, text messages, and device settings.
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announced in Commonwealth v. Grossman, 555 A.2d 896 (Pa. 1989)
(holding that the Pennsylvania Constitution requires a description of items to
be seized “as specifically as is reasonably possible”), applies to searches of
digital spaces. Alternatively, the Commonwealth asserts that the three
warrants established probable cause to at least some of the items requested
in the warrants and that the trial court erred by failing to conduct a severability
analysis. We conclude that the Commonwealth failed to establish probable
cause to search Appellee’s cell phone for the vast majority of items requested.
We agree that the doctrine of severability applies and hold that the
Commonwealth may use locational data generated by the phone as well as
data pertaining to Appellee’s use of the phone’s flashlight function with respect
to the third warrant. We agree with Appellee that the fourth and fifth warrants
must be suppressed as fruit of the poisonous tree. We therefore affirm in
part, reverse in part, and remand for further proceedings.
I.
Factual and procedural history
The five search warrants involved Appellee’s alleged role in a series of
home invasion crimes.2 For ease of discussion, we first set forth a summary
of the facts.
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2We also note that this criminal case was consolidated with a rape case, for
which Appellee has been convicted and sentenced. Commonwealth v. Ani,
(Footnote Continued Next Page)
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The investigation commenced on November 2, 2019, when Natalia
Beltran, a Pennsylvania State University student residing in the University
Terrace apartment complex, called the State College Police Department
shortly after 8:00 a.m., reporting that an unknown male had entered her
bedroom. Beltran, who had been sleeping, stirred when the actor shone a
light from his cell phone on her. She pretended to wake up to scare the
individual, who fled the bedroom. Officers obtained surveillance video from
the apartment complex, showing a male, later identified as Appellee,
attempting to open several doors in the hallway. Appellee is seen entering
Beltran’s apartment at 08:05 a.m. and exiting three minutes later. Video
surveillance showed Appellee entering two other apartments on November 2.
Building management confirmed that Appellee was a resident of
University Terrace, and they suspected that he was responsible for two
unresolved criminal trespass incidents reported by fellow University Terrace
residents, occurring on October 13, 2019, and October 31, 2019. Officers
spoke to eyewitnesses, who reported the following. Kate Deng discovered
Appellee inside her University Terrace apartment on October 13, 2019.
Appellee claimed that he was visiting a roommate of Deng’s, and told Deng
that he would text her roommate. The victim observed Appellee using his cell
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283 A.3d 386 (Pa. Super. 2022) (unpublished memorandum). That matter is
pertinent to the investigation as it is referenced within the fifth warrant
application.
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phone. Deng also reported that on October 16, 2019, she heard her front
door close but no one else had been inside the apartment. Her roommate,
Abigail Helmer, discovered that a vape cartridge had been moved from her
bedroom to the living room. Deng identified Appellee from a photo lineup.
Regarding the October 31 incident, Hilda Sould told police that she heard
someone inside her apartment. A neighbor confronted Appellee shortly
thereafter and identified Appellee from a photo lineup.
Appellee was arrested on November 5, 2019, and the police seized a
black iPhone 6 incident to the arrest. The authorities secured search warrants
for the phone and ultimately found several incriminating images and videos
occurring over the timespan of October 13, 2019, through November 5, 2019.
These items included a photograph of Deng sleeping taken from inside her
bedroom and evidence that Appellee took pictures of stolen credit cards.
The Commonwealth charged Appellee via criminal information with six
counts, with a date range of October 13, 2019, through November 2, 2019.
Counts one, two, and three were for violations of 18 Pa.C.S. § 3502(a)(1)(ii)
(Burglary), and counts four, five, and six for violations of 18 Pa.C.S. §
3503(a)(1)(i) (Criminal Trespass). The first three counts do not specify a
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victim. Counts four, five, and six name, respectively, Natalia Bertrand, Kate
Deng, and Abigail Helmer.3
On April 1, 2021, Appellee filed a motion to suppress the five search
warrants, arguing that each warrant was “not supported by probable cause,
is overly broad, and is lacking in particularity[.]” Motion, 4/1/21, at 9 (first
warrant). An identical claim was asserted against each of the other warrants.
Id. at 11 (second warrant); 13 (third warrant); 15 (fourth warrant); 23 (fifth
warrant). The Commonwealth filed a brief in response on July 26, 2021. The
trial court entered an order and accompanying opinion on August 10, 2021,
suppressing all evidence recovered from the warrants.
We now set forth the contents of each warrant application. This is
necessary because the legal determination of whether a warrant was
supported by probable cause is limited to the four corners of the affidavit.
Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003). “[E]ven the
slightest alteration in the underlying facts can have great effect on the
probable cause analysis.” Commonwealth v. Johnson, 240 A.3d 575, 589
n.7 (Pa. 2020) (Opinion Announcing the Judgment of the Court). In this
regard, Appellee points to facts missing in some of the warrant applications.
See, e.g., Appellee’s Brief at 22 (noting that the third warrant application,
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3 It does not appear that the Commonwealth had charged Appellee with any
additional crimes following the execution of these warrants and prior to the
trial court’s suppressing the evidence.
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unlike the first application, did not state that Appellee appeared to be sending
a text message). The Commonwealth has abandoned its challenges to the
first two warrants. Accordingly, before addressing the legal issues, we discuss
the three warrants at issue, which are the third, fourth, and fifth warrants in
chronological order.
Warrant #3 - April 21, 2020
This warrant listed the item to be searched as a “[c]ell phone belonging
to [Appellee]. The cell phone is a black iPhone 6.” Application for Search
Warrant, 4/21/20, at 1. Under the “identify items to be searched for and
seized” field, the application states, “See attachment A.” That document was
appended to the application. It states:
The memory/data storage of a black iPhone 6 cellular handset
belonging to [Appellee] for data/information, and any “cloud”
storage applications connected to the cellular handset,
concerning any of the following on October 13, 2019, October 31,
2019, and November 2, 2019: use of the flashlight; Apple Health
data; use of the camera application to take photographs or record
video; use of any applications requiring the use of the phone’s
keyboard, including text, photo, or video message applications,
Internet browsers, and applications for voice or video calls;
locational data, as compiled by the phone’s internal GPS device
or other components or applications of the phone capable of
identifying and memorializing the geographic location of the
cellular handset. The search is to be conducted for evidence,
direct and corroborative, of the criminal offenses identified in the
Affidavit of Probable Cause to this warrant application,
incorporated herein by reference in its entirety.
Id. (Attachment).
The affidavit begins by explaining the police response to Beltran’s
apartment on November 2, 2019, and references her observation that the
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male “entered her bedroom and flashed a light from his phone on her person.”
Id. at 2. It discusses the video surveillance showing Appellee visiting two
other apartments on November 2, 2019.
With respect to October 13, 2019, the affidavit establishes that
Detective Hanes “interviewed the residents … on 11/5/19.” Id. at 3. This
interview included Kate Deng and her boyfriend, Peter Giammanco. Id. Deng
informed Detective Hanes that she was in her bedroom and heard the back
door to her apartment open. When she went to see if it was her roommate
she saw “a black male standing in her kitchen who she did not know.” Id.
The actor claimed that he was waiting for Deng’s roommate and “said he would
text her roommate[.]” Id. He then exited the apartment. A few days later,
Giammanco entered Deng’s apartment through the back entrance. He heard
the front door close. He asked Deng if anyone else was home. Deng stated
she had been sleeping and had not invited anyone inside. Id. Deng identified
Appellee from a photo lineup. Id.
The affidavit also discusses the October 31, 2019 incident. Detective
Hanes’ affidavit states that two police officers went to Hilda Sould’s apartment.
She reported that on October 31, 2019, she heard a door close and went to
investigate. As she did so, her neighbor Rafi Birro “was walking up to the
apartment and stated he just saw a black male exit her apartment and jog
away.” Id. Detective Hanes then interviewed Birro, who stated that he was
returning to his apartment when he saw a black male exit Sould’s apartment.
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The male “covered his face with a hood and jogged from the area.” Id. Birro
identified Appellee from a photo lineup.
Warrant #4 - May 22, 2020
The fourth warrant was to be served on Apple, Inc., as the manufacturer
of Appellee’s cell phone. The application requested a warrant to search the
following:
All storage backups to the iCloud for the iOS device associated
with the following email accounts: ralphemek@gmail.com &
ranlmeks@gmail.com and associated with phone number,
14127588148, that ha[ve] occurred from 10/13/2019 through
11/5/2019. Items to be searched for are applications generating
locational data and/or other information consistent with Ani’s
presence and behavior at the scene of the offenses described in
the affidavit. The backups should include information on, but not
limited to, the subscriber information for the Apple accounts, mail
logs, my Photo Stream; iCloud Photo Library; Internet Browsing
History; Maps Search History; all messages including SMS; MMS,
iMessages, and other messaging applications; Health Data; IP
address logins; and other information on when iOS Device
Backups had been completed by the device.
Application for Search Warrant, 5/22/20, at 1.
The affidavit of probable cause discusses the execution of Warrant #3.
The affidavit states that Officer Dan Lewis of Ferguson Township assisted and
was unable to complete a full extraction due to its passcode security.
However, Officer Lewis “was able to perform a partial extraction of the cell
phone.” Id. at 4. That partial extraction revealed that the phone was linked
to two Apple iCloud accounts under the email addresses
ralphemek@gmail.com and ranlmeks@gmail.com. Additionally, a backup to
the cloud service was completed on November 5, 2019. The partial execution
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also indicated that the phone connected to several WiFi access points in the
University Terrace building around the time of the November 2, 2019
burglaries.
The detective stated, based on his training and experience, that iPhones
use “Locational Based Services in several applications … to assist the user with
information and services.” Id. The affidavit listed dozens of applications
which commonly use these location services, including Facebook, Instagram,
web browsing apps, weather apps, messaging apps, dating apps, health apps,
and ridesharing apps. Location data can also pinpoint where photographs and
videos were taken by using GPS, Bluetooth, WiFi, and cell tower locations to
determine the phone’s location. Id. Detective Hanes requested a search
warrant for all storage backups to the iCloud service “that ha[ve] occurred
from 10/13/19 through 11/5/19.” Id. The affiant intended to search for
“applications generating locational data and/or other information consistent
with [Appellee]’s presence and behavior at the scene of the offenses described
in the affidavit.” Id.
Warrant #5 - September 8, 2020
The final warrant at issue was obtained after the execution of Warrant
#4 produced several incriminating photographs. It requested permission to
search for the following items:
Photographs, videos, and associated geolocation data comprising
evidence of the crimes of rape/sexual assault, burglary, criminal
trespass, loitering and prowling at nighttime, invasion of privacy,
theft, identity theft, and access device fraud found on the iCloud
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backups associated ralphemek@gmail.com [sic] &
ranimeks@gmail.com and phone number, 14127588148,
currently in the possession of affiant, Detective Martin-Hanes, at
the State College Police Department.
Application for Search Warrant, 9/8/20, at 1.
The premises to be searched were listed as the iCloud back up data as
provided by Apple, which was likewise “currently in the possession of the State
College Police Department.” Id.
A ten-page affidavit was attached. The affidavit begins by discussing a
series of crimes reported to the Ferguson Township Police Department
between July 2017 and December 2018. The affidavit supplies details of over
a dozen incidents, which included a series of loitering complaints, suspected
burglaries, and rape. All of these incidents occurred in the area of 110 West
Aaron Drive, with a consistent suspect description. The affidavit relates that
Appellee was arrested on December 17, 2018, and an iPhone was seized
incident to the arrest.4 A search warrant for DNA was obtained, and on
January 11, 2019, the lab reported that Appellee’s DNA was linked to a rape
reported on October 18, 2017. Appellee was charged on January 15, 2019,
for that rape, and, on May 18, 2019, Appellee posted bail and was released
from Centre County Jail. As previously mentioned, Appellee was convicted of
this rape.
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4 It is not clear whether this was a different phone, as authorities seized an
iPhone on November 5, 2019, when Appellee was arrested.
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The next paragraph discusses the November 2, 2019 report from Beltran
that precipitated this set of warrants, as well as the follow-up investigations
and the execution of the April warrant. This affidavit describes what the
authorities learned from Warrant #4. After Apple provided the material,
Detective Hanes received assistance from “Glenn K. Bard of PATCtech,” who
was able to decrypt the supplied data. Id. at 9. The data was then loaded
into forensic software for review. This review “uncovered evidence of criminal
activity committed by [Appellee] within the time frame specified in the
warrant, 10/13/19 through 11/5/19.” Id. Additionally, “[a]s Bard was
locating the relevant images … he noticed numerous images of Driver’s
licenses and credit cards in plain view.” Id. at 10. These images showed the
name “Erica Culler” and Detective Hanes confirmed that Culler had made a
report on July 16, 2018 “of an unknown black male who was seen holding her
wallet[.]” Id. Based on the several unsolved incidents in the same geographic
area with a suspect profile matching Appellee, this warrant sought to expand
the search of Appellee’s phone.
Suppression and appeal
The trial court granted Appellee’s motion to suppress and filed an
accompanying opinion with its order. The court concluded with respect to
Warrant #3 that
not all items requested … were supported by probable cause.
Specifically, the [c]ourt finds the request to search the ‘use of any
applications requiring the use of the phone’s keyboard, including
text, photo, or video message applications, Internet browsers, and
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applications for voice or video calls[]’ that occurred on October
13, 2019, October 31, 2019, and November 2, 2019 to be
overbroad and unsupported by probable cause.
Order, 8/10/21, at 10.
The court explained that the four corners of the affidavit mentioned
Appellee’s phone only twice, which established that Appellee was observed
using his phone’s flashlight function in Beltran’s apartment and that he
mentioned texting when confronted by Deng. The court concluded that these
references “do[] not provide law enforcement with sufficient probable cause
to have such broad access to [Appellee]’s cellular phone. The [a]ffidavit
provided no information alleging [Appellee] took a photograph or filmed a
video during the October 13th and October 31st incidents.” Id. at 11. The
court determined that the request to search for anything that used the phone’s
keyboard was “overbroad[,] as it is difficult to imagine what application, if
any, does not in some way require the use of the cellular phone’s keyboard.”
Id.
The Commonwealth filed a timely notice of appeal pursuant to Rule of
Appellate Procedure 311(d)5 and complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) statement. The Commonwealth raised, for the first time, a
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5 “In a criminal case … 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.” Pa.R.A.P.311(d). In its notice of
appeal, the Commonwealth certified that the prosecution of Appellee is
substantially handicapped by the trial court’s order granting suppression.
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claim that the trial court should have severed any portions of the warrant it
deemed invalid. Id. The court filed a Rule 1925(a) opinion, adopting its
previously-filed opinion as to the warrants. Responding to the severance
claim, the trial court stated, “some items contained in the … warrant
applications were supported by sufficient probable cause. However, … the
vast majority of the items … were unsupported[.]” Trial Court Opinion,
10/11/21, at 2. The Commonwealth raises the following two issues for our
review:
[1.] Whether the suppression court erred in granting suppression
on the following grounds:
a. [T]hat Warrant #3 was overbroad because it
“grant[ed] law enforcement … unlimited access to
[Appellee’s] cellular phone for the day in question,
allowing them to use Warrant #3 as an investigatory
tool”;
b. [T]hat Warrant #4’s authorization to search for and
seize “other information consistent with [Appellee]’s
presence and behavior at the scene of the offenses”
rendered the warrant “overly broad and lacking in
particularity”; and
c. [T]hat Warrant #5’s authorization to search for and
seize “photographs, videos, and associated
geolocational data comprising evidence” of crimes
described in Affidavit #5 rendered the warrant invalid
because the date range for those crimes was not
specifically described.
[2.] Whether, assuming that portions of Warrants 3, 4, and 5
suffered from overbreadth, the suppression court erroneously
failed to apply the doctrine of severance to the valid portions of
the warrants.
Commonwealth’s Brief at 4.
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II.
Parties’ Arguments
Commonwealth
The Commonwealth’s fundamental position is that there was probable
cause to believe that Appellee’s iPhone contained evidence of the home
invasion crimes because Appellee was seen using his phone by various
eyewitnesses. It emphasizes that a review of the four corners of an affidavit
requires a commonsense view and courts cannot read the language in a hyper-
technical fashion.
The Commonwealth submits that the Supreme Court of Pennsylvania’s
decision in Green, discussed in greater detail infra, establishes that the trial
court erred in suppressing these warrants. Starting with Warrant #3, the
Commonwealth argues that the trial court erroneously focused on the
language permitting officers to search for the “use of any applications
requiring the use of the phone’s keyboard” as being overbroad. Application
for Search Warrant, 4/21/20 (Attachment). The affidavit, which was expressly
incorporated into the warrant, contained “limiting language constrain[ing] the
search to evidence related to” criminal trespass and burglary offenses.
Commonwealth’s Brief at 26. Moreover, the warrant was limited to three
dates: October 13, October 31, and November 2, 2019. “This temporal
specificity goes above and beyond the Green requirements.” Id. According
to the Commonwealth, the temporal limitation and the limiting language
ensured that “no indiscriminate or discretionary search of the phone could
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have been conducted[.]” Id. The facts submitted in the application permitted
the magistrate to conclude that “evidence of criminal activity was likely to be
found on [Appellee]’s phone.” Id. at 27. The Commonwealth argues that the
facts established “a pattern of trespassing into the residences of young women
without their knowledge, when they were present, at times using his phone
and, in any event, probably in possession of a phone that was compiling
evidence of his location.” Id.
Turning to Warrant #4, the Commonwealth criticizes the trial court for
focusing on the language allowing the affiant to search for evidence
“consistent with [Appellee]’s presence and behavior at the scene of the
offenses described in the affidavit.” Application for Search Warrant, 5/22/20,
at 4. The trial court determined that this was too vague. The Commonwealth
argues that the trial court read the language “in a vacuum, ignoring the
detailed qualifications in the affidavit.” Commonwealth’s Brief at 28-29. “Had
[the trial court] read the rest of the sentence, the court would have recognized
that the crimes in the affidavit were limited to the dates the burglaries and
trespasses occurred on October 13, 2019, October 31, 2019, and November
2019.” Id. at 29. Additionally, “the information sought was limited to only
those items/information specifically identified in the affidavit.” Id. The
warrant application “does not list general classes such as ‘all data’ or ‘all
applications’; rather, the affiant specifies the exact types of data which should
be included in the backups.” Id. The items requested “relate directly to the
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‘offenses described in the affidavit.’” Id. (quoting warrant application). The
warrant was limited “to iCloud backups from October 13, 2019 through
November 5, 2019 (which encompassed the criminal incidents described in
the affidavit).” Id. at 30.
Finally, regarding Warrant #5, the Commonwealth emphasizes that the
trial court acknowledged that probable cause existed to conduct a limited
search of Appellee’s iCloud backups. The court, in its view, erred by citing the
possibility that the Commonwealth was permitted to search all the way back
to 2011, when the iCloud service was launched. Warrant #5 did not seek
authorization to go back to 2011; rather, it “clearly defined the temporal scope
of the warrant, identifying with specificity various criminal offenses committed
from September of 2017 through 2019 concerning which there was a
reasonable probability of [Appellee]’s involvement.” Id. at 32. As with the
prior offenses, the affidavit makes clear “that the items sought pertain to
specifically-identified criminal acts,” as set forth in the affidavit of probable
cause. Id. at 33.
Alternatively, the Commonwealth argues that if this Court agrees that
probable cause was lacking to some of the items, the trial court erred by failing
to apply the doctrine of severance.
Appellee
Appellee submits that this Court should accept the trial court’s analysis
of each warrant. The court thoroughly reviewed each warrant and measured
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the sufficiency of the warrant’s description against the items supported by
probable cause. Appellee explicitly notes that this claim is raised under both
the Fourth Amendment to the United States Constitution and Article I, Section
8 of the Pennsylvania Constitution, and cites the Grossman standard, which
is specific to Article I, Section 8.
Beginning with Warrant #3, Appellee points out that, unlike Warrant #1,
this application did not mention Appellee’s being seen texting on his phone.
Appellee’s Brief at 21-22. While the affidavit mentions Beltran seeing Appellee
use his phone’s flashlight, the only mention of texting is the conversation
between Deng and Appellee, wherein Appellee told Deng that he was looking
for her roommate and would text her. Appellee additionally submits that, in
any event, there is nothing in the affidavit of probable cause to indicate that
Appellee used his phone to take pictures or record video.
Turning to Warrant #4, Appellee agrees with the trial court that the
request to search for information “consistent with” Appellee’s presence and
behavior gives officers unbridled discretion. “There is no indication of what
type of ‘other information’ police were expecting to find on the phone.” Id.
at 29. The “vagueness and lack of any type of specificity and particularity
provided for in this description” establishes “the lack of probable cause[.]” Id.
Moreover, the warrant was not limited to three specific dates, unlike Warrant
#3. Instead, the warrant was for an entire three-week period. In conjunction
with the vague authority to look for any information “consistent with”
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Appellee’s presence, authorities were seeking to conduct a general exploratory
search, which is forbidden by both the United States and Pennsylvania
Constitutions. Appellee also submits that this warrant was tainted by the
illegal searches performed under the three prior warrants, all of which were
found invalid. Id. It is clear that the authorities relied on information from
the prior warrants because Warrant #4 explicitly references the results of
Warrant #3. Id. at 34. Appellee also argues that the Commonwealth would
not have been able to determine the email accounts associated with his iCloud
backups and his cell phone number absent the execution of the first two
warrants, which the Commonwealth no longer challenges.
Finally, Appellee acknowledges that Warrant #5 establishes a stronger
basis for probable cause because it references incriminating evidence found
during the prior searches. However, Appellee maintains that the warrant is
still defective because it gives police “carte blanche to search the entire phone
for any and all photos and videos.” Id. at 36. In any event, this warrant was
tainted because the incriminating evidence on which this warrant rests were
uncovered during the execution of Warrant #4. Id. at 38.
III.
Searching a cell phone presents difficult Fourth Amendment and Article
I, Section 8 questions. While the validity of the warrant is a question of law,
“we are not to conduct a de novo review of the issuing authority’s probable
cause determination, but are simply to determine whether or not there is
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substantial evidence in the record supporting the decision to issue the
warrant.” Commonwealth v. Torres, 764 A.2d 532, 540 (Pa. 2001).
We begin with the general principles applicable to search warrants.
A
General principles
The United States Constitution6 and the Pennsylvania Constitution7 both
protect citizens from unreasonable searches and seizures. The Fourth
Amendment “was a reaction to the evils of the use of the general warrant in
England and the writs of assistance in the Colonies, and was intended to
protect against invasions of the sanctity of a man’s home and the privacies of
life, from searches under indiscriminate, general authority.” Warden, Md.
Penitentiary v. Hayden, 387 U.S. 294, 301 (1967) (quotation marks and
citation omitted). Pennsylvania’s analogous constitutional provision stems
from the same concern. “The framers of the Pennsylvania Constitution
thought the right to be free from unrestricted police intrusions so critical that
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6 “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV.
7 “The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any place
or to seize any person or things shall issue without describing them as nearly
as may be, nor without probable cause, supported by oath or affirmation
subscribed to by the affiant.” Pa. Const. Art. I, § 8.
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they secured the right for future generations by including it in the original
Constitution of 1776.” Grossman, 555 A.2d at 899.
Obviously, this is not an absolute bar on searching protected areas,
provided that the authorities possess sufficient probable cause to search as
determined by a neutral magistrate. “The point of the Fourth Amendment …
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate[.]” Johnson
v. United States, 333 U.S. 10, 13–14 (1948). “[P]robable cause is a fluid
concept—turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
Illinois v. Gates, 462 U.S. 213, 232 (1983). See Commonwealth v. Gray,
503 A.2d 921, 922 (Pa. 1985) (adopting Gates as the test for search warrants
under Article I, Section 8). “To establish probable cause, the Commonwealth
must demonstrate that a search meets the requirements of the ‘totality-of-
the-circumstances’ test.” Commonwealth v. Barr, 266 A.3d 25, 40 (Pa.
2021) (citation omitted). A magistrate presented with an application for a
warrant must “make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him … there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Id. (citation omitted).
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If there is probable cause to search, the warrant must be properly
limited in scope. “The requirement that warrants shall particularly describe
the things to be seized makes general searches under them impossible and
prevents the seizure of one thing under a warrant describing another. As to
what is to be taken, nothing is left to the discretion of the officer executing
the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). Our
charter has been interpreted to offer more protections than its federal
counterpart in several areas, including the required degree of particularity.
The language of the Pennsylvania Constitution requires that a
warrant describe the items to be seized “as nearly as may be….”
The clear meaning of the language is that a warrant must describe
the items as specifically as is reasonably possible. This
requirement is more stringent than that of the Fourth
Amendment, which merely requires particularity in the
description.
Grossman, 555 A.2d at 899 (footnote omitted).
This Court has recognized that the particularity component subsumes
two distinct, although often related, concepts. The first concept addresses the
degree of particularity required. A warrant that is not “particular enough”
permits “a search in terms so ambiguous as to allow the executing officers to
pick and choose,” which amounts to the rummaging that so offended the
drafters of the federal and state constitutions. Commonwealth v. Santner,
454 A.2d 24, 25 n.2 (Pa. Super. 1982). This first component thus ensures
that the authorities are sufficiently limited in what they can seize. The second
concept is overbreadth. A warrant can be clear in terms of what will be seized,
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thus ensuring that the authorities’ discretion does not permit a general
rummaging. But if the warrant allows authorities to seize items for which
probable cause does not exist, it may be overbroad. Id.Applying these concepts to the digital evidence sphere, our sister court,
the Oregon Court of Appeals, offered a summary of these distinct concepts in
a case involving the search of digital evidence, framing the former concept as
“specificity.”
Those two concepts—specificity and overbreadth—again, have
independent significance. For example, a warrant can precisely
and unambiguously identify items to be forensically examined,
satisfying the specificity concern, but nevertheless be invalid as
overbroad if there is no probable cause to examine some of those
items. However, the two can, and frequently do, conflate. That
is, failure to identify with sufficient specificity the place to be
searched or the items to be seized and examined can sanction
invasions of protected privacy unsupported by probable
cause. See, e.g., State v. Castagnola, 145 Ohio St.3d 1, 17,
46 N.E.3d 638, 656 (2015) (noting “overlap” of those concepts
with respect to warranted searches of electronic devices).
State v. Mansor, 381 P.3d 930, 793–939 (Or. App. 2016), aff’d, 421 P.3d
323 (Or. 2018). Our Supreme Court has identified these defects as
“symptoms of the same disease.”
Moreover, for particularity purposes, we have clarified that
although some courts have treated overbreadth and ambiguity as
relating to distinct defects in a warrant, see Commonwealth v.
Santner, … 454 A.2d 24, 25 n.2 ([Pa. Super.] 1982), “both
doctrines diagnose symptoms of the same disease: a warrant
whose description does not describe as nearly as may be those
items for which there is probable cause.” Grossman, 555 A.2d
at 899-900.
Johnson, 240 A.3d at 584.
B
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Digital versus physical
Searching digital evidence poses unique issues, owing to the distinctions
between searching physical versus digital spaces. Before the advent of
personal electronic devices and their tremendous storage capacities, the usual
Fourth Amendment case involved the search of a physical space. The United
States Supreme Court has held that, when searching a physical space for an
item, authorities may search anywhere where that item may be.
A lawful search of fixed premises generally extends to the entire
area in which the object of the search may be found and is not
limited by the possibility that separate acts of entry or opening
may be required to complete the search. Thus, a warrant that
authorizes an officer to search a home for illegal weapons also
provides authority to open closets, chests, drawers, and
containers in which the weapon might be found. A warrant to
open a footlocker to search for marihuana would also authorize
the opening of packages found inside. A warrant to search a
vehicle would support a search of every part of the vehicle that
might contain the object of the search. When a legitimate search
is under way, and when its purpose and its limits have been
precisely defined, nice distinctions between closets, drawers, and
containers, in the case of a home, or between glove
compartments, upholstered seats, trunks, and wrapped packages,
in the case of a vehicle, must give way to the interest in the
prompt and efficient completion of the task at hand.
United States v. Ross, 456 U.S. 798, 820–21 (1982) (footnotes omitted).
“The United States Supreme Court has advised that a
valid search warrant authorizes the search of any container found on the
premises that might contain the object of the search.” Commonwealth v.
Petty, 157 A.3d 953, 957 (Pa. Super. 2017) (citing Ross). As a result, if
police have probable cause to seize a particular piece of property, that
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probable cause permits a search of anywhere where the item could be located.
See Commonwealth v. Turpin, 216 A.3d 1055, 1060 (Pa. 2019) (holding
that Article I, Section 8 “does not preclude a search of the entire residence
regardless of whether a particular individual not named in the warrant has an
expectation of privacy in certain areas of that residence”). This includes the
ability to cursorily examine items to see what they are. Andresen v.
Maryland, 427 U.S. 463, 482 n.11 (1976) (“[I]t is certain that some
innocuous documents will be examined, at least cursorily, in order to
determine whether they are, in fact, among those papers authorized to be
seized.”).
That principle is much easier to apply in the physical world; an officer
could not open a closet to search for a stolen vehicle. However, the container
analogy breaks down when considering a device like a computer or phone.
The United States Supreme Court’s decision in Riley v. California, 573 U.S.
373 (2014), held that the search incident to arrest exception does not permit
a search of a phone. “Treating a cell phone as a container whose contents
may be searched incident to an arrest is a bit strained as an initial matter.”
Id. at 397. Moreover, when executing a search of a physical space to seize
items, the seizure and search occur more or less simultaneously. Officers who
have probable cause to seize a particular item will first search for it then, when
it is discovered, seize it. Searching through digital evidence differs in that it
usually entails a search for the devices that are seized, followed by a later,
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second search of the seized devices, with the later search almost always
occurring off-site. See Commonwealth v. Orie, 88 A.3d 983, 1008 (Pa.
Super. 2014) (“Given the distinctive nature of a USB flash drive, like other
types of digital storage systems (e.g., a computer hard drive), it must
be seized in its entirety first and then searched at a later time (typically by
someone with an expertise in this area).”) (emphasis in original).
The container analogy can become even more strained when the data
“may not in fact be stored on the device itself. … Cell phone users often may
not know whether particular information is stored on the device or in the cloud,
and it generally makes little difference.” Riley, 573 U.S. at 397. And the
very nature of digital evidence makes it far more difficult to identify in advance
which “containers” in the device might hold the sought items. Consider child
pornography, as discussed in our Supreme Court’s decision in Green. There,
authorities discovered that a particular child pornography image was available
on a file-sharing network. The affiants determined that the material was
shared from Green’s residence, but they could not identify the particular
device sharing the file. Thus, the affiants obtained a warrant to seize all
electronic storage devices from his home, which would then be taken offsite
and “searched for evidence relating to the possession and/or distribution of
child pornography.” Green, 265 A.3d at 546 (quoting application for
warrant). The Green Court first concluded that the warrant was not defective
in terms of the items to be seized. The next question was whether the
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authorized search of the devices seized was overbroad. Green argued that
the authorities’ probable cause “was limited to the evidence of child
pornography shared from his IP address on December 28, 2014, and therefore
the warrant was overbroad for failing to include ‘specific dates, types of files,
[or] specific programs.’” Id. at 554 (quoting Green’s brief; bracketing in
original). This asserted limitation was based on the fact that the affiant
downloaded a specific child pornography image. The Court disagreed, stating:
Although Corporal Goodyear personally downloaded an image file
depicting child pornography on December 28, 2014, that did not
mean probable cause was limited to that particular date or that
particular file. The affidavit of probable cause explained that,
based on the corporals’ experience investigating this type of
crime, individuals who download and share child pornography
usually maintain a collection of child pornography in a secure,
private location for long periods of time. Importantly, the affidavit
noted that the user investigated here “had such a collection of
child pornography available on a [file-sharing] network.” Affidavit
of Probable Cause at ¶ 25. These facts established probable cause
that someone was sharing a collection of child pornography in
general, which is exactly what the warrant permitted the officers
to search for and seize. Because probable cause was not limited
to the single instance of conduct that [the a]ppellant points to, the
warrant did not need to include a specific date, type of file, or
program in order to satisfy the requirement to describe the items
as nearly as may be.
Id.
Green also argued that the warrant’s self-limiting language, which
restricted the officers to search for “evidence relating to the possession and/or
distribution of child pornography,” was not a meaningful check on officers’
discretion and was therefore overbroad. The Court responded that this case
“is not one where officers were given free rein to look at anything within the
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phone to generally look for evidence of a crime.” Id. at 554. The Court cited
our decisions in Orie, supra, and Commonwealth v. Melvin, 103 A.3d 1(Pa. Super. 2014), as cases that properly deemed a warrant overbroad
because those warrants permitted rummaging.
The Green Court rejected the appellant’s request “to establish a unique
overbreadth standard for the contents of electronic devices.” Id. at 555.
Thus, the Grossman standard applies in the physical and digital spheres.
C
Two basic approaches to probable cause
This case requires us to determine how Grossman’s standard requiring
that the warrant “must describe the items as specifically as is reasonably
possible” applies to this set of facts. Green illustrates the difficult quandary.
On the one hand, probable cause to search for evidence contained in a digital
device like a phone will often require quite broad searches to find items for
which the authorities have probable cause. But that search, in practice, ends
up looking a lot like rummaging due to the differences in searching physical
containers versus digital containers. Green recognized that the authorities
needed to search everywhere on Green’s computer for evidence of child
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pornography, as those files can exist anywhere. That search could lead
investigators to discover evidence of other crimes.8
As an initial matter, we agree with the Commonwealth that some
aspects of the trial court’s opinion arguably conflict with Green. For example,
in reviewing Warrant #3, the trial court concluded that “not all items
requested … were supported by probable cause.” Trial Court Opinion,
8/10/21, at 10. Its opinion identified the request in Warrant #3 to search the
“use of any applications requiring the use of the phone’s keyboard, including
text, photo, or video message applications, Internet browsers, and
applications for voice or video calls” on October 13, October 31, and November
2 of 2019, as particularly problematic. The court concluded that this request
was “overbroad and unsupported by probable cause” because it is difficult to
imagine “what application, if any, does not in some way require the use of the
cellular phone’s keyboard.” Id. at 11. The Commonwealth responds that the
proper inquiry “is not whether probable cause existed for all applications using
the keyboard on the phone; rather, it is whether probable cause existed for
applications using the keyboard on the phone during the time frame sought
based upon the information in the affidavit.” Commonwealth’s Brief at 26.
____________________________________________
8 Courts have struggled with whether the plain view exception to the warrant
requirement makes any sense in the digital search context. “A number of
courts have considered the application of the plain view doctrine in computer
search cases, and the cases are divided.” State v. Mansor, 421 P.3d 323,
339 (Or. 2018) (collecting cases).
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We note that some decisions from other jurisdictions have applied a
“category” approach for smartphone searches. The United States Court of
Appeals for the Fifth Circuit panel decision in United States v. Morton, 984
F.3d 421 (5th Cir. 2021), overruled on reh’g en banc, United States v.
Morton, 46 F.4th 331 (5th Cir. 2022), is illustrative and has straightforward
facts. Morton was stopped for speeding and gave officers consent to search
his vehicle. That search revealed three cell phones, sixteen ecstasy pills, and
marijuana, leading to his arrest for drug charges. Officers also recovered
“children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s
underwear in the vehicle,” and based on those items officers suspected that
“Morton might be a pedophile.” Id. at 424. Officers applied for a search
warrant for the three phones; however, the affidavit only sought to recover
evidence relevant to the drug offenses based on the affiant’s training and
experience with drug trafficking. The warrant sought to “search Morton’s
contacts, call logs, text messages, and photographs for evidence of his drug
possession crimes.” Id. The warrants were issued and, while searching the
phones’ photographs, officers saw child sexual-abuse materials. A second
warrant was secured, leading to 19,270 images. Morton was then convicted
of possessing those materials.
The initial panel determined that the warrant violated the Fourth
Amendment, as probable cause must exist with respect to each “category” of
information sought. “As the government properly conceded at oral argument,
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separate probable cause is required to search each of the categories of
information found on the cellphones.” Id. at 425 (footnote omitted). The
panel found that its holding “dovetails with the Fourth Amendment’s
imperative that the ‘place to be searched’ be ‘particularly describe[ed].’” Id.
(alterations in original). Thus, the panel viewed the relevant “place” to be
searched as a particular area of the phone’s digital contents, as opposed to
the entirety of the phone itself. It concluded that probable cause existed to
search the “categories” of contacts, call logs, and text messages on the cell
phone, but not the “category” of photographs. The panel explained that the
key flaw in the search request was that the officers only had probable cause
to link Morton to minor possessory offenses, whereas the affiant relied on his
experience with drug traffickers. The affidavit explained that “criminals often
take photographs of co-conspirators as well as illicit drugs and currency
derived from the sale of illicit drugs[.]” Id. at 429 (quoting affidavit).9 The
panel acknowledged that this assertion might be relevant in a case where
there was probable cause to establish the individual was a drug trafficker, but
____________________________________________
9 The United States Court of Appeals for the Fifth Circuit heard the case en
banc and subsequently decided in the government’s favor based on the good
faith exception to the exclusionary rule, finding that the warrant was not “bare
bones.” Morton, 46 F.4th at 339. As a result, the panel did not squarely
address the validity of the warrant. Regarding the original panel’s approach,
the Morton en banc panel noted that the “categories” concept was relevant
to the scope of the warrant and whether it was “bare bones.” “Viewing the
entire affidavit against the broad phone search it authorized, it is borderline
rather than bare bones.” Id.
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that was not the case under these facts. See also Burns v. United States,
235 A.3d 758, 777–78 (D.C. 2020) (concluding that the affidavit in support of
the warrant “established probable cause to look for and seize evidence likely
to be found in at most three narrow categories of data on Mr. Burns’s
phones”).
Other courts reject the notion that probable cause must be linked to any
particular “category.” Those decisions explain that the very nature of digital
evidence resists easy classification and, thus, requiring the authorities to
establish probable cause for certain categories of information amounts to an
ex ante restriction. This view holds that authorities must be given broad
discretion to search, because authorities have no way to know what a file
contains unless they open it.
Digital evidence also differs from physical evidence in that, for
most files, there is no way to know what data a file contains
without opening it, meaning that desired data may be located in
any part of the digital media or organizational structure. Indeed,
data stored on a computer hard drive may be physically located
in multiples places on the drive, and it is unhelpful and often
inaccurate to think of the data as being located at any particular
“place” or “places.” In the physical world, a handgun cannot be
disguised as—and will not be mistaken for—a kitchen table, nor
will it be found in a pill bottle. But in the virtual world, that kind
of deception—or error—is possible. A picture file may be
intentionally disguised as a text file, for example, by changing the
extension of the file name or by including the picture in a Microsoft
Word document, which would be properly saved as a .doc (or
similar) file. A picture file may contain text information if, for
example, the picture is of a page of a book. Sophisticated users
can hide digital data in much more complex ways, including
changing date and time metadata and encrypting files so that they
cannot be opened. See Orin S. Kerr, Executing Warrants for
Digital Evidence: The case for use restrictions on nonresponsive
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data, 48 Tex. Tech. L. Rev. 1, 16 (2015) (“Data can always be
changed. Maybe the modification will be easy or maybe it will be
hard. But it can always be done.”). Similarly, information can be
hidden unintentionally. Most of us have had the experience of
neglecting to name or properly “save” a document, only to have
it disappear into an obscure temporary file, with its sole identifier
a number assigned by the software. And even those with limited
computer skills can easily delete their internet search “history” on
a particular internet browser, although evidence of those searches
will likely remain elsewhere on the hard drive. A forensic
examiner who locates intentionally (or unintentionally) hidden
information on a computer likely has responded to clues, followed
instincts, and pursued many dead ends before being
successful. See Orin S. Kerr, Searches and Seizures in a Digital
World, 119 Harv. L. Rev. 531, 545 (2005) (“[G]ood forensic
analysis is an art more than a science.”).
State v. Mansor, 421 P.3d 323, 332 (Or. 2018).
This approach recognizes that if this type of search occurred in the
physical world it would be materially indistinguishable from rummaging. The
Mansor Court held that the proper balance between the legitimate law
enforcement need to conduct comprehensive searches versus an individual’s
right to privacy requires suppression of material that does not fall within the
“particular evidence” as specified within the warrant.
To satisfy the particularity requirement of Article I, section 9, the
warrant must identify, as specifically as reasonably possible in the
circumstances, the information to be searched for, including, if
available and relevant, the time period during which the
information was created, accessed, or otherwise used. We
acknowledge that, for practical reasons, searches of computers
are often comprehensive and therefore are likely to uncover
information that goes beyond the probable cause basis for the
warrant. In light of that fact, to protect the right to privacy and
to avoid permitting the digital equivalent of general warrants, we
also hold that Article I, section 9, prevents the state from using
evidence found in a computer search unless a valid warrant
authorized the search for that particular evidence, or it is
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admissible under an exception to the warrant requirement.
Id. at 326.
IV.
Review of Warrant #3
We now address the validity of the warrants, starting with Warrant #3.
A
No probable cause to search for the majority of items requested
As Green and Grossman hold, the natural starting point for this inquiry
is addressing probable cause. “Consequently, in any assessment of the
validity of the description contained in a warrant, a court must initially
determine for what items probable cause existed. The sufficiency of the
description must then be measured against those items for which there was
probable cause.” Grossman, 555 A.2d at 900. Initially, we reject the
Commonwealth’s broad reading of Green. The Commonwealth argues that
Green makes it clear that the Pennsylvania Constitution imposes
no per se requirement that a search warrant for a digital device
be expressly temporally limited, i.e., that the warrant identify
specific dates associated with the presence of evidence of criminal
activity on the device. Similarly, there is no per se requirement
that the warrant be categorically limited; the search warrant need
not enumerate the exact categories of evidence or particular areas
of the device -- files or programs -- that may be searched. Rather,
a search warrant for a digital device with “limiting language
provided in the warrant and supported by the affidavit of probable
cause” will meet specificity requirements under the Pennsylvania
Constitution.
Commonwealth’s Brief at 21.
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The Commonwealth appears to interpret Green to say that its
recognition of the need to conduct a comprehensive search of digital devices
amounted to a holding that a warrant should be deemed valid provided there
is probable cause to search the phone at all, where the affidavit contains
“limiting language” cabining the authorities to searching for evidence of the
crimes being investigated.
The Grossman standard asks for which “items” there exists probable
cause, which is an analytically difficult concept in the digital arena. The
requirement that the warrant identify the “item” could be read to mean
“category,” such that text messages are treated differently than image files.
The Green Court recognized that digital evidence can be easily disguised or
hidden. Green, 265 A.3d at 554 n.6 (“[T]he affidavit also explained how
easily these files can be hidden, modified, or destroyed, such that the device
needs to be searched in its entirety by a qualified computer expert in a
laboratory or controlled environment.”). Thus, an officer executing a warrant
to search digital evidence cannot determine whether the “items” are present
unless and until the device is thoroughly searched. Green thus suggests that
this type of “category” approach is inappropriate, for the reasons discussed in
Mansor. Moreover, the Commonwealth is correct that Green did not require
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a temporal limitation, nor did it require the officers to limit their search to any
particular category of evidence, such as image files.10
However, we “employ[ ] the principle that the holding of a judicial
decision is to be read against its facts.” Commonwealth v. Resto, 179 A.3d
18, 22 (Pa. 2018). The probable cause inquiry asks whether “there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Barr, 266 A.3d at 40 (citation omitted). The facts in Green involved
a search of a computer for depictions of child pornography, which are
themselves contraband. Thus, the materials targeted by the warrant were
____________________________________________
10 Whether Green explicitly rejects the “category” approach in all respects is
an issue that is ripe for further development. We are unprepared to say that
the Green Court definitively rejected the categorical approach in all respects.
It may be the case that child pornography cases are treated differently than
other investigations for purposes of the “reasonably possible” standard.
Additionally, as Appellee states in his brief, our Supreme Court has recognized
that Article I, Section 8 protects a right to privacy that goes beyond the United
States Constitution. See generally Commonwealth v. Alexander, 243
A.3d 177, 207 (Pa. 2020) (explaining that Article I, Section 8 “must be read
in conjunction with more abstract considerations of how far the government
may encroach on the rights of citizens”).
We also note that the approach outlined in Mansor is tempered in at least two
critical ways. First, the tradeoff of permitting the authorities to perform
expansive searches of digital data is that the discovery of any items that are
not responsive to the warrant may not be used. Thus, searching for evidence
of child pornography would require suppression of evidence of drug trafficking.
Because this case involves an attack on how the warrants were drawn as
opposed to how it was executed, that issue is not before us. Second, Oregon
requires that the affidavit of probable cause be specific as to “the information”
requested and “when it is possible to limit the material searched to a particular
time period, that period should also be set out in the warrant.” State v. Bock,
485 P.3d 931, 935 (Or. App. 2021).
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illegal to possess. In contrast to Green, the material targeted by the warrant
in this case was not contraband. Instead, the Commonwealth searched the
phone for evidence of the crimes.
Additionally, it is quite difficult to separate the probable cause resolution
in Green from its analysis of the overbreadth question. In rejecting Green’s
argument that the probable cause was limited to the particular child
pornography image downloaded, the Green Court pointed out that the target
of the investigation was “sharing a collection of child pornography in general,
which is exactly what the warrant permitted the officers to search for and
seize.” Green, 265 A.3d at 554. Thus, the “item” for which there was
probable cause was a collection of child pornography, which could be
anywhere on the device. In that context, a temporal limitation makes little
sense as the Court’s probable cause calculus did not consider a crime occurring
over a particular period of time. Thus, nothing in Green suggests that a
temporal requirement will never be required. If a temporal limitation is
“reasonably possible,” then Grossman demands its inclusion. In short, while
Green rejected adding more protections to the Grossman standard, the
baseline level of Grossman still requires more than the Fourth Amendment.
In this case, we find that there was no probable cause to believe that
the phone would contain actual evidence of the crimes. As the Mansor
approach is more favorable to the Commonwealth, we will accept arguendo
that it applies here; thus, if the authorities had probable cause to believe the
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phone contained “items” then the authorities could search the whole phone
for those items. The Commonwealth essentially identified four “items” it
expected to find on Appellee’s phone: what we will refer to as “trophies” (e.g.,
photos or videos of items Appellee stole and/or the apartments that he
entered), potential communications about the crimes (as reflected in the
request to search text messages), location data, and evidence concerning the
phone’s flashlight usage.
We begin with the first two of these “items” and conclude that the
Commonwealth failed to establish probable cause that those items would be
present on the phone. We find support for this holding in the Supreme Court
of Pennsylvania’s decision in Johnson, supra, which held that the affidavit
failed to establish probable cause to justify any search of Johnson’s phones.
Our Supreme Court had granted review “to consider an issue that is not so
simple: the permissible scope of … a warrant, under Article I, Section 8 of the
Pennsylvania Constitution, to search an individual’s cell phone for evidence
relating to illegal narcotics activity and firearms possession.” Id. at 578. The
plurality did not resolve that issue because it concluded that the affidavit of
probable cause failed to support any search of Johnson’s cell phone. In that
case, police officers were dispatched to a specific apartment due to a 911 call
of shots fired. Officers entered and detained five individuals, including
Johnson. Officers observed, in plain view, two bricks of heroin. They also
recovered three stolen firearms from the top of the apartment’s hot water
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tank. Johnson was arrested and officers seized two cell phones during a
search incident to arrest. Officers sought a search warrant for Johnson’s cell
phones, stating in the affidavit the following:
As a result of the foregoing, your Affiant[s] respectfully request a
search warrant issued for the black and gray Apple iPhone cellular
phone and the black Samsung flip cellular telephone listed above,
as well as any and all electronic and/or digital data contained
within the cellular telephone or its storage medias/memory cards,
such as incoming/outgoing calls, call logs, emails, personal
calendars, cellular internet usage, wireless internet usage, GPS
data, contact information, text messages, voice mails, notes,
photographic images, IP addresses, contact information, and
voice recordings whether or not the electronic and/or digital data
has been erased, hidden, password protected or encrypted.
Id. at 580 (quoting affidavit of probable cause).
The lead Justices expressed skepticism that the phones had any
connection to the drugs and firearms. “Naturally, one might pause at this
juncture to wonder, ‘What do appellant’s cell phones have to do with the drugs
and firearms in the apartment?’” Id. at 581. The Commonwealth’s probable
cause argument reduced to the proposition that, where “a drug-dealing
operation was being run out of the apartment in which police encountered [the
appellant] in the middle of the night, with … multiple cell phones on his person,
there was at the very least a fair probability that evidence of his involvement
in that operation would be found in the text messages on those phones.” Id.
at 586-87 (quoting Commonwealth’s brief; bracketing in original). The
plurality rejected the conclusion that probable cause to arrest Johnson for
constructive possession necessarily supplied probable cause to search his
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phones. Id. at 587. The affidavit of probable cause must establish a nexus,
and the plurality found one lacking. The affidavit did not allege that Johnson
personally possessed, or was even aware of, drugs, guns, or anything else
related to the criminal activity. There was “no information about the
frequency with which [the] appellant visited the apartment or the duration of
time he was present on the night in question.” Id. at 588. “Simply put, the
affidavit of probable cause in this case provide[d] little more than the bare
fact that [the] appellant was present in a place where illegal contraband
happened to be found.” Id. The Court noted the possibility that an affiant’s
specialized knowledge set forth in the affidavit could be relevant, but that it
did not apply “under the particular facts of this case” because nothing in the
affidavit of probable cause “remotely establish[ed]” that Johnson was a drug
trafficker as opposed to a guest where drugs were located. Id. That four
other people were present in the apartment, while the owner was not, was
additional support for that conclusion.
As to the warrant’s alleged overbreadth, the plurality determined that
“the probable cause and overbreadth inquiries are not easily separated; on
the contrary, as Grossman makes clear, it is impossible to consider an
overbreadth challenge to a search warrant without taking probable cause into
account.” Id. at 586. When probable cause is wholly absent, “the warrant is,
quite literally in some sense, entirely ‘overbroad.’” Id.
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Johnson provides some guidance on the probable cause inquiry here.
Just as the lead opinion rhetorically asked what Johnson’s phones had to do
with the drugs and firearms, one wonders what Appellee’s cell phones had to
do with the alleged home invasion crimes. We recognize that, unlike in
Johnson, there is a stronger basis to conclude Appellee was linked to criminal
behavior. Whereas the appellant in Johnson was arguably merely present at
a location where drugs and firearms were kept, the affidavit of probable cause
in support of Warrant #3 established that Appellee was identified in photo
lineups by several eyewitnesses, and he was seen on video surveillance exiting
the apartment.
But the affidavit in support of Warrant #3 does not, in our view,
establish sufficient probable cause to conclude that a search of Appellee’s cell
phone would yield any type of “trophy” evidence relevant to the burglaries or
criminal trespasses. The probable cause formulation established by Gates
permits a court to consider “probabilities in particular factual contexts,” and
courts examining probable cause tend to credit, at least in some
circumstances, inferences of human behavior related to the crimes at issue.
See, e.g., Commonwealth v. Lyons, 79 A.3d 1053, 1065 (Pa. 2013)
(finding probable cause to support search of murder suspect’s home for
evidence where: victim’s co-worker indicated Lyons and victim had
extramarital affair; victim and Lyons were in frequent contact; Lyons went “on
the run” after murder; and affiant stated that in his experience perpetrators
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of “gruesome crimes” often leave trace evidence in home); Commonwealth
v. Torres, 177 A.3d 263, 275 n.5 (Pa. Super. 2017) (noting that “[s]ome
federal courts have held that it is reasonable to infer that drug
traffickers will often keep drug-related evidence in their residences and
businesses”); id. at 278 (Moulton, J., concurring) (opining that “evidence of
drug dealing unconnected to a home does not, without more, give probable
cause to believe that additional contraband will be found in the home”).
A thorough treatment of this concept is set forth in Commonwealth v.
Jacoby, 170 A.3d 1065 (Pa. 2017). The affiant applied for a warrant to search
Jacoby’s home fifteen months after a murder. The Jacoby Court determined
that the affidavit of probable cause sufficiently established that Jacoby
committed the homicide, but it failed to establish a basis to search his home
for the potential murder weapon. The detective’s affidavit in support related
“that a .32 caliber shell casing was found at the scene of the murder. She
further indicated that the casing most likely came from a .32 caliber firearm,
possibly one manufactured by Kel–Tec.” Id. at 1082. Jacoby was the
registered owner of a Kel-Tec .32 caliber firearm. Id. The affidavit further
related that the weapon sought “is a unique item,” and that Jacoby was a
convicted felon ineligible to possess a firearm. Id. at 1083. The affidavit
concluded it was reasonable to believe Jacoby kept the weapon in his home,
even after that long period of time, as he “was likely to retain the weapon due
to the difficulty in procuring another one in light of his felon status.” Id. The
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Court explained that these facts were not sufficient to establish a nexus to
Jacoby’s home.
Probable cause to search Jacoby’s home did not exist simply
because probable cause existed to believe that he had committed
the murder, with a weapon of the same caliber as one that he
owned, and then drove in the general direction of his home fifteen
months before the search warrant was issued. Together and by
themselves, these factors do not justify entry without some nexus
to the home. The trial court overlooked the significant gap of time
between the murder and the search, and then attempted to
buttress its conclusion with an unsourced assessment of general
human behavior. Without support, the trial court reasoned that
people—felons especially—generally do not discard firearms, even
those used in murders.
This broad perspective on probable cause finds no support in
Pennsylvania law and is troubling on several levels. First, the trial
court deviated from the search jurisprudence summarized above
without acknowledging or attempting to distinguish it. The trial
court would hold that, if police officers develop probable cause
that a person committed an offense anywhere in the
Commonwealth with a weapon of the same caliber as the one that
he or she owns, probable cause exists automatically to search that
person’s home, no matter where it is located. It is easy to discern
the infirmity of this approach. If the trial court’s reasoning were
to prevail, when a person commits an offense with such a weapon
in Erie County, police automatically would have probable cause to
search that person’s home, even if it is located in Delaware
County. This is inconsistent with Fourth Amendment
jurisprudence.
Additionally, the trial court’s method for evaluating probable cause
does not require consideration, in any way, of the time lapse
between the commission of the offense and the search. Rather
than addressing the time gap, the trial court would rest upon its
belief that people generally hold on to guns (even those used in
murders) and that, as such, probable cause to search for guns
exists in apparent perpetuity. By this logic, in the case of the Erie
murder, the trial court would find probable cause to search the
Delaware County residence not only immediately after the
murder, but also fifteen months later, and presumably even ten
years after the crime.
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Finally, aside from the deviation from the core principles of the
Fourth Amendment and Article I, Section 8 that necessarily results
from evaluating probable cause in such general, categorical terms,
there is another obvious peril in considering probable cause in this
manner. People of different genders, races, religions, and
backgrounds might respond to certain circumstances differently.
Similarly, older people might not conduct themselves as a younger
generation would. Mainers might not behave like Texans. There
is nothing even to suggest that similar people within the same
general category would respond to a set of circumstances in the
same way. Probable cause to search Jacoby’s home must be
evaluated based upon the circumstances of his case, his behavior,
and any nexus to the location to be searched, but not upon
categorical assumptions. Our Constitutions prohibit such
categorical conclusions, as well as those searches that are based
upon such conclusions.
The architects of our Constitutions rejected general searches, and
instead charged police officers with demonstrating specific and
articulable facts to establish probable cause that a particular
person committed a particular crime and that evidence of that
crime would be found in a particular place. The trial court’s
approach shortcuts this bedrock inquiry with general assumptions
about human behavior, untethered to the actual facts at hand,
and was erroneous. For these reasons, we find an absence of
probable cause in the warrant to believe that the murder weapon
would be found in Jacoby’s residence fifteen months after the
murder. As such, we need not address Jacoby’s staleness
argument.
Id. at 1084–85.
Jacoby does not appear to completely foreclose some consideration of
the probability that a particular offender will behave in certain ways with
respect to assessing whether a sufficient nexus has been established, a point
underscored by the Green Court’s crediting the affiant’s training and
experience of how child pornographers generally act. Jacoby does, however,
hold that categorical assumptions cannot be the sole justification for probable
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cause. In that respect, the affidavit here is even weaker than the flawed
affidavit in Jacoby, because these affidavits did not even attempt to claim
that home invaders are likely to have used their phones to aid the commission
of their crimes. To reiterate, it is questionable the extent to which a crime
like drug trafficking would ever permit a per se inference that a phone would
contain evidence of drug trafficking. But at least it could be said that the
“typical” drug trafficker would use their phones in a manner that justifies a
conclusion that the phone is likely to contain some relevant evidence of drug
trafficking. There is no obvious link to how a phone would aid the present
offenses in the same way that drug trafficking does. As reflected in the very
first warrant application—the suppression of which the Commonwealth does
not challenge—the affiants merely speculated that the phone may contain
evidence of the crime. Application for Search Warrant, 11/11/19, at 3 (“Your
Affiants would like to access [Appellee]’s phone to determine if there are any
videos that may have recorded the crime, or if [Appellee]’s phone connected
[to] WiFi at or around the victim’s apartment to determine his location.”).
We add that in Johnson, the Court reserved the question of whether an
affiant’s training and experience with drug trafficking could be used to support
probable cause to search a phone. On this point, the Johnson decision cited,
inter alia, Commonwealth v. Morin, 85 N.E.3d 949, 960 (Ma. 2017),
wherein the Massachusetts Supreme Judicial Court offered “some guidance …
on the search of cellular telephones.” Id. at 960. “To begin, police may not
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rely on the general ubiquitous presence of cellular telephones in daily life, or
an inference that friends or associates most often communicate by cellular
telephone, as a substitute for particularized information that a specific device
contains evidence of a crime.” Id.
We are mindful that Johnson is a plurality decision and not binding.
However, we deem its logic compelling, as supplemented by the preceding
discussion. Relying on an assumption that a phone may contain evidence of
a crime is the type of generic conclusions in place of individual circumstances
that Jacoby forbids. The fact that Appellee was seen using his cell phone
establishes little more than his using his phone. The Riley decision declined
to extend the search incident to arrest exception to the warrant requirement
to smartphones largely because smartphones are so integral to daily life, a
phenomenon that has only accelerated in the eight years since Riley. Thus,
it is quite easy to conjure up reasons why a phone might contain evidence of
a crime. “It would be a particularly inexperienced or unimaginative law
enforcement officer who could not come up with several reasons to suppose
evidence of just about any crime could be found on a cell phone.” Riley, 573
U.S. at 399. Riley would amount to a mere paperwork requirement if the
Commonwealth could obtain a warrant to search a phone based on little more
than the fact that a citizen carried a phone while committing a crime. Thus,
the fact that Appellee was seen using his phone in the hallways of the victims’
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apartments and commented to Deng that he was sending a text message is
of minimal value.
The Commonwealth hypothesizes that Appellee may have taken
photographs or videos during the commission of these crimes. Perhaps, but
that could be said of any crime, and seeks to enshrine a level of generality in
place of individual circumstances, which Jacoby forbids. The phone in
Johnson could have included text messages establishing that Johnson was
involved in what looked from the outside to be a drug operation. As in
Johnson, the notion that Appellee took evidence of his “trophies” or
videotaped his crimes rested on pure conjecture. We cannot imagine that, in
the era before cell phones became a daily part of life, a court would authorize
a search warrant for a home on the basis that such “trophy” photographs
would likely be present in a burglary suspect’s home. “[W]hen it comes to the
Fourth Amendment, the home is first among equals.” Florida v. Jardines,
569 U.S. 1, 6 (2013). Riley recognized that records stored on the phone are
more comprehensive than what would ever be stored in a home. “Indeed, a
cell phone search would typically expose to the government far more than the
most exhaustive search of a house[.]” Riley, 573 U.S. at 396 (emphasis in
original); Green, 265 A.3d at 564 (Wecht, J, dissenting) (“The search of all
places in a home and all effects located therein is more akin to the search of
an entire smartphone.”) (emphasis in original).
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Finally, there is no indication that Appellee was using his phone to
communicate about the crimes. Some decisions have permitted the search of
a phone for evidence where specific facts warrant an inference that the phone
may have some evidence pertinent to the crimes. See Commonwealth v.
Dorelas, 43 N.E.3d 306, 312 (Ma. 2016) (holding that there was probable
cause to search phone for evidence of communications where “the defendant
had been receiving threatening communications on his iPhone with respect to
money he owed to ‘people’ and indeed had been using his iPhone while arguing
with an individual immediately prior to the shooting”). Here, the only evidence
to hint that Appellee used his phone to communicate are the references to
Appellee’s using his cell phone in the hallway and telling Deng he would send
a text message. Given the pervasiveness of cell phone usage in daily life,
including the use of text messages as a means of communication, we cannot
conclude that the affidavit’s references to Appellee using his cell phone
established probable cause to believe the phone contained evidence of the
home invasion crimes or that Appellee was in contact with potential
accomplices. Thus, the warrant was not supported by probable cause to
support a search of the phone for what we have described as the first two
“items.” We therefore conclude that, even when viewing the warrant with the
deference owed to the initial magistrate, there was no substantial basis to
conclude the phone would contain those items.
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We thus agree with the trial court that the warrant was defective, albeit
for slightly different reasons. “[A]s an appellate court, we may affirm on any
legal basis supported by the certified record.” Commonwealth v. Williams,
125 A.3d 425, 433 n.8 (Pa. Super. 2015) (citation omitted); Commonwealth
v. Parker, 249 A.3d 590, 593 (Pa. Super. 2021) (addressing potential
alternative basis for affirmance where Commonwealth appealed).
B
Probable cause existed for locational data and flashlight use
This case is unlike Johnson, however, in that we find that probable
cause was not wholly absent. While the affidavit failed to establish a nexus
between the crimes and Appellee’s phone to justify a search for the first two
types of “items” we previously described, we agree that the affidavit did
establish probable cause that Appellee possessed the cell phone while
committing the crimes and that he used the cell phone’s flashlight functionality
while doing so. Thus, there was probable cause to obtain records concerning
the phone’s movement and its flashlight usage, and we agree that a properly
drafted warrant seeking those “items” would have been lawful. Cf. People v.
Reyes, 174 N.E.3d 127, 141 (Ill. App. 2020) (stating that “probable cause to
look for GPS data would not necessarily support a search of all of a cell phone’s
data”). Indeed, Appellee indicates that there is a much stronger basis to
conclude that probable cause existed for these items. See Appellee’s Brief at
28 (noting that “probable cause might be found” for locational data generated
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by the phone). This raises the question of whether we may sever the invalid
portions from the remainder of the warrant. See Commonwealth v.
Casuccio, 454 A.2d 621, 629 (Pa. Super. 1982) (“It would be totally
unrealistic to invalidate [a] warrant in toto merely because the affiant and
issuing authority erred in seeking and permitting a search for other items as
well and we decline to do so.”); see also Commonwealth v. Bagley, 596
A.2d 811, 824 (Pa. Super. 1991) (explaining that “[t]he doctrine of severance
mandates that invalid portions of a search warrant may be stricken and the
remaining portions held valid, as long as the remaining portions of the warrant
describe with particularity the evidence to be seized”).
Initially, we address Appellee’s argument that severability is
inconsistent with the Pennsylvania Constitution and its broader privacy
protections. See generally Commonwealth v. Edmunds, 586 A.2d 887(Pa. 1991) (holding that Pennsylvania Constitution does not recognize good
faith exception to exclusionary rule); see also Commonwealth v.
Alexander, 243 A.3d 177, 183 (Pa. 2020) (“While Edmunds involved an
application of the exclusionary rule, our holding was tethered to the
fundamental concern for privacy within our own constitution.”). Appellee also
points out that the Commonwealth “argues in favor of severance, but never
addresses the doctrine’s validity or application under the Pennsylvania
Constitution.” Appellee’s Brief at 43. That charge is correct, and we add that
our Supreme Court has yet to address this issue. Johnson, 240 A.3d at 591
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(Saylor, C.J., dissenting) (noting the distinction between whether probable
cause to search a cell phone exists and the “separate requirement that
warrants not be overbroad[,]” and “the associated question of severability”).
Nonetheless, our precedents have accepted the severability doctrine, and we
decline to announce a departure from federal law in the absence of focused
briefing on the issue from both parties. Cf. Commonwealth v. Bishop, 217
A.3d 833, 840 (Pa. 2019) (holding that defendants seeking a new holding
departing from federal constitutional law must raise the issue in the trial court
and provide reasons supporting that view). We acknowledge that the doctrine
has become relevant only on appeal, and Appellee had little incentive to ask
for a departure when seeking suppression. By the same token, the
Commonwealth had no incentive to argue a “compromise” position. We
therefore rely on our existing caselaw and apply the doctrine.
Severability presents a question of law, and we must apply the doctrine
as if we were the trial court. Here, the Commonwealth asks this Court to
follow the trial court’s lead with respect to all three warrants. Beginning with
Warrant #3, the Commonwealth explains that the trial court’s analysis
“state[d] that ‘not all items’ were supported by probable cause, clearly
implying that a search for and seizure of some, if not the remainder, of the
identified items was supported by probable cause.” Commonwealth’s Brief at
38-39. It argues that the trial court merely determined that “applications
using the phone’s keyboard was the sole class of items not supported by
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probable cause,” and the trial court therefore erred when it “chose to suppress
the entire warrant” in lieu of conducting a severability analysis. Id. at 39.
The Commonwealth, however, does not suggest which items should be
suppressed, perhaps because it does not wish to concede that probable cause
was lacking in any respect. “The suppression court in this case invalidated
the entire warrant based upon the conclusion that the search for and seizure
of one out of five classes of items was unsupported by probable cause, clearly
in violation of the caselaw regarding severance.” Id. at 40.
Consistent with our foregoing analysis, which departed from the trial
court’s analysis in some respects, we find that Warrant #3 was valid only as
to the recovery of locational data and evidence concerning the phone’s
flashlight use.
At this juncture, we address Appellee’s assertion that severability is not
warranted, as a restriction of the doctrine is that it does not apply to general
warrants. See Casuccio, 454 A.2d at 630 (applying severance doctrine
because “the warrant was not essentially general in character”). Appellee
suggests that this warrant was general in character because “the warrants’
descriptions in this case seeks ‘all’ of broad categories of items without
limitation.” Appellee’s Brief at 49.
We disagree. This warrant did not authorize a search of “any and all
data” on the phone. Warrant #3 specifically delineated several items, and we
agree with the Commonwealth that the warrant was quite limited in temporal
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scope, as it was confined to the three known incident dates. We agree that
those temporal restrictions are relevant and as drawn the warrant did contain
a check on the officers’ authority. We therefore do not interpret Warrant #3
as authorizing a general rummaging of Appellee’s phone, except to the extent
that a comprehensive search is often required due to the distinctions between
physical and digital searches. We therefore agree with the Commonwealth
that severability is warranted, and the Commonwealth may lawfully use the
results of Warrant #3 with respect to locational data and any evidence
concerning flashlight usage.
V.
Warrant #4 and Warrant #5 must be suppressed
Turning to Warrant #4, the Commonwealth similarly asserts that “this
warrant contained legitimate support for numerous classes of items which
were tied to the facts and probable cause listed in the affidavit, on which the
reviewing magistrate (another Court of Common Pleas Judge) found reason
to sign the warrant.” Commonwealth’s Brief at 41. Finally, for Warrant #5,
the Commonwealth suggests that the court “could have deemed fit to
suppress any information pre-July 2017 if it existed which would have allowed
the supported time period of July of 2017 onwards to remain intact as properly
supported. Such a decision would have been a much more proper remedy
than in toto suppression of the entire warrant.” Id. at 43.
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Warrant #4 was effectively the same as Warrant #3 in substantive
terms and differed in the place to be searched, with Warrant #3 targeting the
phone itself and Warrant #4 authorizing a search of the phone’s iCloud
backups. Appellee argues that these warrants would not have been executed
absent the unlawful execution of Warrant #3, and the warrants must therefore
be suppressed as fruit of the poisonous tree. “[G]enerally speaking, the
exclusionary rule applies to evidence that was obtained from a search or
seizure in violation of the Fourth Amendment. The fruit of the poisonous tree
doctrine extends the exclusionary rule to render evidence inadmissible which
was derived from the initially illegally obtained evidence.” Commonwealth
v. Santiago, 209 A.3d 912, 916 n.4 (Pa. 2019).
We agree with Appellee that both warrants must be suppressed in their
entirety. First, we agree with Appellee that Warrant #4 would not have been
executed without linking Appellee’s phone to the iCloud accounts
ralphemek@gmail.com and ranlmeks@gmail.com. The Commonwealth
discovered those email addresses during the execution of Warrant #3.
Application for Search Warrant, 5/22/20, at 4 (explaining that a partial
extraction and examination of Appellee’s cell phone revealed it was linked to
those two Apple iCloud accounts). Similarly, the execution of Warrant #4
yielded incriminating photographs, which in turn supported Warrant #5.
There is a common problem to both discoveries: it is not clear how the
Commonwealth came across this information. Returning to this Court’s
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adoption of the severability doctrine, the Casuccio Court cited Professor
LaFave’s influential search and seizure treatise as supporting the adoption of
the doctrine. We find persuasive an additional observation from this treatise
that is pertinent to our analysis:
It has been correctly noted that the “question of whether this kind
of surgery might be performed might also depend to some extent
upon the facts of each case, e.g., how was the warrant executed?”
This is because the items described in the warrant determine the
permissible intensity and duration of the search. ... But when
other objects are seized under authority of the plain view doctrine
(perhaps those objects insufficiently described in the warrant or
those objects for which probable cause was not shown in the
affidavit), a more careful inquiry into the circumstances is
required. If the items were discovered before those to which the
warrant was properly addressed were found and while the police
were looking in places where the latter objects could be located,
then it may be said that the discovery occurred while executing
the lawful portion of the warrant. Were the circumstances
otherwise, then it must be concluded that these other items were
found during execution of the invalid part of the warrant.
2 Search and Seizure § 4.6(f) (6th ed.) (footnotes omitted).
Here, the Commonwealth discovered Appellee’s email addresses during
the partial extraction of Warrant #3, and then discovered photographs when
executing Warrant #4. We agree that a search of Appellee’s cell phone per
Warrant #3 was justified only for locational data and flashlight usage. Thus,
the email addresses were not proper subjects of the search. Accordingly, we
must conduct a “more careful inquiry into the circumstances” to determine if
the Commonwealth was permitted to recover the email addresses, which in
turn led to the fourth and fifth warrants.
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We conclude that the answer is no for two related reasons. First, as
noted supra at note 8, the applicability of the plain view exception to digital
searches has generated divergent results. The treatise quoted above
discusses a search of a physical space, and it is not clear on what basis we
could decide whether the discovery of the email addresses and the
incriminating photographs “occurred while executing the lawful portion of the
warrant.” Id. There was no evidence presented at the evidentiary hearing
concerning the execution of the warrant. Thus, even if we were inclined to
apply the “plain view” exception in the digital arena, there is simply no factual
record on which to test whether the officers exceeded the scope of their
authority. See Green, 265 A.3d at 555 n.7 (“It should be noted that [Green]
and amici repeatedly suggest that officers will look through a suspect’s private
information once a warrant provides a limited scope of access to a personal
digital device. This, however, is a separate issue than the overbreadth claim
before us.”). Second, and relatedly, just as we decline to decide Appellee’s
argument that the Supreme Court of Pennsylvania would reject the
severability doctrine, we are not prepared to address the difficult question of
plain view without any advocacy by the parties. The Commonwealth does not
claim that the plain view exception applies. Instead, the Commonwealth
chose to defend the warrants, both before the trial court and on appeal, on
the basis that they are supported by probable cause, and the Commonwealth
does not raise any exceptions to the warrant requirement. As our Supreme
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Court explained in Commonwealth v. Price, 284 A.3d 165, 173 (Pa. 2022),
the “inevitable discovery doctrine is not a subsidiary issue to a claim of
adequate probable cause to support the issuance of a search warrant,” as
inevitable discovery is an exception to the warrant requirement. Plain view is
likewise an exception to the warrant requirement. Commonwealth v.
McCree, 924 A.2d 621, 628 (Pa. 2007) (“[U]nder both the Fourth Amendment
and Article I, § 8, the plain view exception to the warrant requirement requires
a determination of whether the police have a lawful right of access to the
object seen in plain view.”). If the record established a clear application of
the plain view exception, we could perhaps excuse the failure to raise that
issue on the basis that a severability analysis requires a determination of what
items were severable on a de novo basis. But there is no caselaw establishing
that the plain view exception could apply under these circumstances. We
therefore decline to consider its application.
As a result, we apply the severance doctrine to permit only the recovery
of locational data and usage of the cell phone’s flashlight functions from the
execution of Warrant #3. The remaining two warrants are suppressed in their
entirety as fruit of the poisonous tree.11
____________________________________________
11 The Commonwealth obtained locational data during the execution of
Warrant #3. Application for Search Warrant, 5/22/20, at 4 (“On 4/21/20,
your Affiant obtained a search warrant. … Off. Lewis’ search of the cell phone
also found [Appellee]’s cell phone had connected to access points for Wi-Fi
throughout the ‘W’ building of University Terrace.”).
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VI.
Conclusion
We conclude that Warrant #3 failed to establish probable cause to
search Appellee’s cell phone for anything other than locational data and usage
of the cell phone’s flashlight functions. The recovery of those items during
the execution of Warrant #3 is severable from the defective portions of that
warrant.
We affirm the trial court’s ruling suppressing Warrant #4 and Warrant
#5 on the alternative basis that those warrants are fruit of the poisonous tree.
The record does not establish any basis for the Commonwealth to search
Appellee’s iCloud data other than the discovery of his email addresses during
the execution of Warrant #3. The record further establishes that Warrant #5
would not have been obtained but for the recovery of incriminating
photographs during the execution of Warrant #4. There was no probable
cause to recover Appellee’s email addresses during the execution of Warrant
#3, and we decline to apply the plain view exception under these
circumstances. We express no opinion on whether that exception applies
during digital searches. We therefore remand for further proceedings.
Order affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2023
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