J-A04037-14


                               2014 PA Super 189

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                    v.

JOSHUA THOMAS WRIGHT

                          Appellee                       No. 825 WDA 2013


               Appeal from the Order entered April 16, 2013
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0010466-2012

BEFORE: BOWES, WECHT, AND STABILE, JJ.

OPINION BY STABILE, J.:                              FILED AUGUST 29, 2014

     Appellant, the Commonwealth of Pennsylvania, appeals from the trial



asks us to decide whether the trial court erred in suppressing a cell phone

that police seized pursuant to the plain view doctrine. We affirm.

     The trial court recited the pertinent facts and procedural history in its

Pa.R.A.P. 1925(a) opinion:

                   On July 2, 2012, [Appellee, Joshua Thomas

           criminal homicide, one count of burglary, and one
           count of possession of a prohibited firearm stemming

                                      -girlfriend and mother of his

           paramour. [Appellee] filed a motion to suppress on
           January 25, 2013, and a suppression hearing was
           held on April 5, 2013. On April 16, 2013, this [c]ourt

           2013,    the     Commonwealth     filed   a    Motion   to
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          Reconsider, which was denied via Order of Court
          dated May 13, 2013.       On May 15, 2013, the
          Commonwealth filed the instant appeal.

                                   ***

                The following are the facts as found by this
          [c]ourt during the Suppression Hearing:        The
          shooting deaths of Gibson and Black were brought to
          the attention of the Wilkinsburg Police Department

          home at the time of the incident. Clark relayed a
          few different versions of the events of the night in
          question, however ultimately she convinced the
          officers to enter and search the premises, where
          they discovered the bodies of Gibson and Black in an

          and identification of [Appellee] as the shooter, an
          arrest warrant for [Appellee] was issued. The police
          executed the arrest warrant at approximately 2:20


                Upon arrest, [Appellee] was found in bed
          wearing only a pair of underwear. [Appellee] was
          then handcuffed, and, given his state of undress, the
          arresting police officers assisted him in getting
          clothed. They chose and placed upon him a pair of
          khaki shorts. The two officers testified that they had

          the shorts after they were placed upon him, and as
          such, the cellular telephone was seized incident to
          arrest. The [c]ourt did not find as credible testimony
          that the officers gave a double homicide suspect an
          article of clothing to wear with something as weighty
          as a cell phone in the pockets. This action would be
          contrary to the safety of the officers, as the clothing
          could have contained a gun or other small weapon,

          who was present during the arrest testified that the
                                                        of the


          testimony. Based upon the testimony presented at
          the suppression hearing, this [c]ourt concluded that


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J-A04037-14


              the cellular telephone was situated on the nightstand
              next to the bed, and not seized incident to arrest or

              the seizure was impermissible.

Trial Court Opinion, 8/26/13, at 1-3 (record citations omitted).           Appellee

stands accused of two counts of criminal homicide (18 Pa.C.S.A. § 2501(a)),

one count of burglary (18 Pa.C.S.A. § 3502), and one count of persons not

to possess a firearm (18 Pa.C.S.A. § 6501(a)(1)).

       As set forth above, the Commonwealth filed a timely appeal from the
                                    1
trial cour                              The Commonwealth raises a single issue for

____________________________________________


1
  The Commonwealth relies on Rule 311(d) of the Pennsylvania Rules of
Appellate Procedure, which provides as follows:

                    (d) Commonwealth appeals in criminal
              cases. In a criminal case, under the circumstances
              provided by law, the Commonwealth may take an
              appeal as of right from an order that does not end
              the entire case where the Commonwealth certifies in
              the notice of appeal that the order will terminate or
              substantially handicap the prosecution.


certification implicates our jurisdiction to entertain              this    appeal.
Commonwealth v. White, 910 A.2d 648, 653 (Pa. 2006).

       Wh
is entitled to some deference, this Court need not accept its good faith
certification in every case. In White, for example, an evenly divided
Supreme Court could not agree whether an order denying a recusal motion


motion was not appealable pursuant to Rule 311(d). In Commonwealth v.
Cosneck, 836 A.2d 871, 876 (Pa. 2003), the Supreme Court ruled that the
Commonwealth could not rely on Rule 311(d) to appeal from a pretrial
motion in limine admitting defense evidence.     Nonetheless, where the
(Footnote Continued Next Page)


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J-A04037-14




suppress his cellphone and its contents based on an allegedly unlawful

                                                  rief at 4.

      We review the trial               order according to the following standard:

                  When the Commonwealth appeals from a
             suppression order, we . . . consider only the

             with the evidence of the prosecution that, when read
             in the context of the entire record, remains
             uncontradicted. The suppr
             fact bind an appellate court if the record supports

             of law, however, are not binding on an appellate
             court, whose duty is to determine if the suppression
             court properly applied the law to the facts.

Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013).




phone.    Therefore, the sole issue before us is whether the plain view




                       _______________________
(Footnote Continued)

defendant prevails in a pretrial motion to suppress Commonwealth evidence,
                                            hen a pretrial motion removes

whether that evidence substantially handicaps his ability to prove every
                                 Id. at 875 (citing Commonwealth v.
Dugger, 486 A.2d 382, 386 (Pa. 1985)). In the instant matter, therefore,
we have jurisdiction to entertain this appeal pursuant to the




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J-A04037-14




conclude that it did not.2

       In general, the Fourth Amendment of the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution do not permit police

to search for or seize property absent a lawfully obtained search warrant.

Commonwealth v. Anderson, 40 A.3d 1245, 1249 (Pa. Super. 2012),

appeal denied, 51 A.3d 837 (Pa. 2012). The plain view doctrine permits a

warrantless seizure if each of the following conditions applies:

                     1) police did not violate the Fourth Amendment
              during the course of their arrival at the location
              where they viewed the item in question; 2) the item
              was not obscured and could be seen plainly from
              that location; 3) the incriminating nature of the item
              was readily apparent; and 4) police had the lawful
              right to access the item.

Id.

       The parties do not now dispute that the police were lawfully present in


____________________________________________


2
    In his brief, Wright asserts the Commonwealth waived this issue.      We


incident to arrest. In response to the tri
the Commonwealth filed a motion for reconsideration asserting the police
properly seized the cell phone pursuant to the plain view doctrine. The trial
court addressed this issue on the merits in its Pa.R.A.P. 1925(a) opinion.
Raising the issue in a motion for reconsideration was sufficient to preserve
the issue for appellate review. Commonwealth v. McCandless, 880 A.2d
1262, 1268-69 (Pa. Super. 2005), appeal dismissed, 933 A.2d 650 (Pa.
2007); Commonwealth v. Santiago, 822 A.2d 716, 723 (Pa. Super.
2003), appeal denied, 843 A.2d 1237 (Pa. 2004).



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J-A04037-14


trial court found that the Commonwealth failed to establish that the



Trial Court Opinion, 8/26/13, at 4.    A police officer has probable cause to

                                                  the facts available to the



items may be contraband or stolen property or useful as evidence of a

crime       Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super.

1997) (emphasis in original). The probable cause standard does not require

                                                                Id.

        In Commonwealth v. Ellis, 662 A.2d 1043, 1050 (Pa. 1995), a police



testified that the screwdriver was capable of making the pry marks the

officer observed at the scene of the crime. Id. In addition, an eyewitness

                                                          Id. The Supreme

Court concluded that the circumstances were sufficient to lead a person of

reasonable caution to believe that the screwdriver was incriminating

evidence. Id. Likewise, in Commonwealth v. Jones, 988 A.2d 649, 652

(Pa. 2010), the Supreme Court held police properly seized a cell phone

because police knew the victim had a cell phone with him on the night of his

murder and because police observed a blood-stained cell phone in plain view




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J-A04037-14


        The Commonwealth relies on McEnany, in which police found a cell



McEnany, 667 A.2d at 1147. The accused argued that the warrant was not

sufficiently specific to justify the seizure of his cell phone. Id. at 1148. The

Commonwealth argued, and this Court agreed, that police lawfully seized the

cell phone pursuant to the plain view doctrine. Id. Police were aware that



murder. Id. More importantly, police were aware that the accused made a

                                                                 Id. Based on

these facts, the McEnany Court concluded that police were justified in

seizing a cell phone in plain view during their execution of the search

warrant. Id.

        To summarize, in Ellis, Jones, and McEnany, police had specific

evidence tying the seized object to the crime under investigation. We do not

believe the analysis in any of these cases warrants reversal in the instant

case.    Here, unlike McEnany, police had no evidence of a specific phone

call.   This case is unlike Jones in that the physical condition of the cell

phone did not link it to the crime under investigation, as did the blood-

stained phone in Jones

that Jones and McEnany are indistinguishable from the instant matter.

See Dissenting Opinion, at 10. The distinction between those cases and this

one is that the police officers in Jones and McEnany relied on articulable


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J-A04037-14


facts in support of their suspicion that the cell phone contained incriminating

evidence, whereas here, the police relied on pure conjecture.

      Detective Anthony Perry testified as follows:


            have crucial pieces of evidence for our case to assist
            our case [sic]. I took the phone with the intention of
            either myself or somebody in our office obtaining a
            search warrant to get the information or any
            potential evidence off the phone.

N.T., 4/5/13, at 11-12. Perry testified that he was aware that Appellee and

the female victim had a prior romantic relationship, and he suspected that

he would find communication between the two shortly prior to the murder.

Id. at 12-13.

      As is evident from the foregoing, Perry did not articulate any specific

basis for his suspicion. Appellee and the victim had a romantic relationship

at one point, but that relationship was over, and Perry did not explain why

the past relationship supported his suspicion that Appellee and the victim

had any contact on the day of the murder. Likewise, we believe the learned



relationship with the victim. See Dissenting Opinion at 8-9. In McEnany,

on the other hand, police had specific information that the accused phoned

the victim on the day in question.      Similarly, in Ellis, the police officer

offered facts to support his belief that the screwdriver was used in the crime

under investigation. Perry offered only generalized speculation in support of




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J-A04037-14


seizure.   See Commonwealth v. Holmes, 14 A.3d 89, 96-97 n.16 (Pa.

2011) (a police officer must rely on articulable facts to justify a seizure);

Commonwealth v. Parker

the probable cause standard is flexible, mere suspicion is not a substitute for

probable cause as

that cell phones often have crucial evidence would support seizure of a cell

phone under virtually any circumstance.



battery from the cell phone supports a different result in this case. In his

affidavit of probable cause to search the cell phone, Detective Kenneth

Ruckel stated criminal suspects commonly remove batteries from cell phones

in order to avoid GPS detection. Affidavit of Probable Cause, 7/3/12, at 3.3

According to the suppression hearing transcript, the battery was removed

                                                                   -83.

       In these facts, we discern no basis for a seizure of the phone to search

its digital contents.     The scope of a search is limited by the basis for its

authorization.    See, e.g., 619 A.2d at 740 (Pa. Super. 1993).      The same

holds true for searches for digital evidence.      For example, this Court in
____________________________________________


3
                                                            or lack thereof   to

suppressed the phone based on its conclusion that police unlawfully seized
it, and therefore the trial court had no occasion to address the propriety of




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J-A04037-14


Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014) held several




an email account without narrowing the search to files relevant to the

alleged criminal activity. Id. at 1002-104



conduct simply by introducing testimony that the phone was in pieces and

that its physical condition evinced evasive conduct. We do not believe the

digital contents of the cell phone are relevant to that point.           Said another

way, the physical condition of the phone in this case does not justify a

conclusion that its contents could be incriminating. As we noted above, the

instant facts are quite distinct from those of Jones, where police found a

blood-



July 3, 2012 affidavit of probable cause           which is not at issue in this case

we believe misses the mark.5

____________________________________________


4
   The Orie Court noted that the law concerning search and seizure of digital
information remains under development in Pennsylvania. Id. at 1009 n.43.
5
    L
                          Riley v. California, 134 S. Ct. 2473 (2014) is
misplaced.   The Supreme Court noted, as the Dissent asserts, that cell
                                                        Id. at 2485. The
Court did so, however, in support of an 8-1 majority opinion rejecting the

(Footnote Continued Next Page)


                                          - 10 -
J-A04037-14


      Finally, the Commonwealth argues that police acted properly in seizing



opportunity to delete information.               Here, the Commonwealth relies on

Commonwealth v. Bostick, 958 A.2d 543 (Pa. Super. 2008), appeal

denied, 987 A.2d 158 (Pa. 2009). Bostick is entirely inapposite, inasmuch

as the question before the Bostick court was whether exigent circumstances

justified warrantless entry into a home.                 Id. at 556-57.     Exigent

circumstances exist where a police officer has probable cause to believe that

immediate action is necessary to preserve evidence of a crime. Id. at 557.

As we have already explained above, police did not have probable cause to

                                                       incriminating evidence.   The



Commonwealth lacked probable cause to seize the cell phone.                      See

Commonwealth v. Joseph, 34 A.3d 855, 861 (Pa. Super. 2011) (noting

that the Commonwealth must demonstrate both probable cause and exigent

circumstances to justify a warrantless seizure), appeal denied, 63 A.3d 775

(Pa. 2013).


                       _______________________
(Footnote Continued)

The initial seizure of the phone was not at issue in Riley, and Riley
therefore has no direct application here. Furthermore, the Riley majority
relied on the vast quantity of personal information contained in a cell phone
to support its opinion protecting an individual from unlawful government
intrusion therein. Here, we believe the result urged by the Dissent would
violate that protection.



                                           - 11 -
J-A04037-14


       We conclude that the trial court did not err in rejecting the arguments

properly advanced by the Commonwealth.6            We therefore affirm the trial



       Order affirmed.

       BOWES, J. files a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




____________________________________________


6
    To be clear, we have decided only that the plain view doctrine and exigent

phone. We offer no opinion on whether police could have seized the cell
phone on some other basis, or whether the police had any valid means of




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