J-A21036-17

                             2017 PA Super 404



COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JON ERIC SHAFFER

                         Appellant                  No. 435 WDA 2017


       Appeal from the Judgment of Sentence Entered March 9, 2017
              In the Court of Common Pleas of Butler County
            Criminal Division at No: CP-10-CR-0000896-2016


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

OPINION BY STABILE, J.:                        FILED DECEMBER 21, 2017

      Appellant, Jon Eric Shaffer, appeals from the March 9, 2017 judgment

of sentence imposing an aggregate 6 to 12 months of incarceration followed

by 156 months of probation for possession of child pornography (18 Pa.C.S.A.

§ 6312(d)) and criminal use of a communication facility (18 Pa.C.S.A.

§ 7512). We affirm.

      On November 25, 2015, a computer technician was attempting to save

files from the failing hard drive in Appellant’s laptop computer when he

discovered explicit photographic images of young girls.       The technician

summoned the police, and the police arrested Appellant and charged him with

the aforementioned offenses. Appellant filed a pretrial motion to suppress the

evidence from the warrantless search and seizure of his laptop computer. The
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trial court conducted a hearing on July 7, 2016, and denied the motion on

October 3, 2016. On November 10, 2016, the trial court, sitting as finder of

fact, found Appellant guilty of both charges. The trial court imposed sentence

on March 9, 2016, and Appellant filed this timely appeal on March 14, 2017.

      The trial court summarized the pertinent facts:

             [Appellant] delivered his laptop computer to CompuGig for
      repair and completed an initial work order form that is dated
      November 25, 2015. On the form, in response to the question,
      ‘What problems are you experiencing?’, boxes next to
      ‘Spyware/virus’ and ‘Can’t get to Internet’ are marked. Additional
      information provided by [Appellant] at the time he delivered the
      laptop to CompuGig indicated that ‘Customer’s son downloaded
      some things and now there are a lot of pop-ups. Internet has
      stopped working.’ After running initial diagnostics, [computer
      technician Justin] Eidenmiller believed the computer had a failing
      hard drive.     A telephone call was made to [Appellant] by
      CompuGig’s administration. During that call [Appellant] indicated
      that he wished to replace the hard drive on the laptop. Mr.
      Eidenmiller was not privy to the phone call. Mr. Eidenmiller
      attempted to ‘take an image of the hard drive and put it on a new
      hard drive at the customer’s request.’ While the hard drive was
      able to be imaged, the procedure of transferring the image
      successfully was unable to be completed. Another call was
      apparently placed to [Appellant] regarding the matter. In an
      attempt to move data from the failing hard drive to a new drive,
      Mr. Eidenmiller manually opened various portions of the data
      contained in the failing hard drive. In doing so, Mr. Eidenmiller
      observed the evidence which [Appellant] is seeking to suppress.
      Mr. Eidenmiller fist [sic] attempted to copy the entire folder that
      contained the evidence at issue without opening it, but was unable
      to do so. He then opened the folder in order to copy the within
      files manually. At that point he observed the files at issue in the
      form of thumbnail images. Mr. Eidenmiller notified his boss of the
      discovery.

            The police were then called and Officer [Christopher]
      Maloney arrived, he spoke both to the owners of CompuGig and,
      after being handed the work order and escorted to the tech area
      by the owners, to Mr. Eidenmiller. Mr. Eidenmiller then went to

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      where [Appellant’s] laptop computer was located on a bench
      inside the tech area. Mr. Eidenmiller showed Officer Maloney, at
      the officer’s request, the evidence [Appellant] is seeking to
      suppress.    Mr. Eidenmiller prepared a statement for Officer
      Maloney and Officer Maloney took possession of the computer and
      hard drive that had been delivered to CompuGig, as well as other
      equipment. At a later date, warrants to search the laptop and
      accompanying hardware were secured by Detective Matthew Irvin
      of the Cranberry Township Police Department.

Trial Court Opinion, 10/3/16, at 2-3 (record citations and footnotes omitted).

      The only issue before us is whether the trial court properly suppressed

evidence from the initial warrantless search and seizure of his laptop

computer. Our standard of review is as follows:

            [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct.      Because the Commonwealth
      prevailed before the suppression court, we may consider only the
      evidence of the Commonwealth and so much of the evidence for
      the defense as remains uncontradicted when read in the context
      of the record as a whole. Where the suppression court’s factual
      findings are supported by the record, [the appellate court is]
      bound by [those] findings and may reverse only if the court’s legal
      conclusions are erroneous.       Where ... the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if the
      suppression court properly applied the law to the facts. Thus, the
      conclusions of law of the courts below are subject to plenary
      review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017). Article

1, Section 8 of the Pennsylvania Constitution precludes warrantless searches

of private property. PA. CONST. art. I, § 8. “Absent the application of one of

a few clearly delineated exceptions, a warrantless search or seizure is


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presumptively unreasonable.     Commonwealth v. Williams, 73 A.3d 609,

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

637 (Pa. Super. 2013)), appeal denied, 87 A.3d 320 (Pa. 2014).

         Both parties and the trial court rely heavily on Commonwealth v.

Sodomsky, 939 A.2d 363 (Pa. Super. 2007), another case in which a

computer technician discovered child pornography on a customer’s computer.

The Sodomsky Court concluded, under the circumstances there present, that

the customer relinquished his privacy expectation in the contents of his hard

drive.    The Commonwealth and the trial court find Sodomsky controlling,

while Appellant argues that it is distinguishable and/or that it should be

overturned.

         In Sodomsky, the defendant took his computer to a Circuit City and

requested installation of an optical drive and DVD burner into his computer.

Id. at 364. The store informed the defendant that it would run tests to confirm

the DVD burner was working, but did not describe that testing process in

detail. Id. In order to test the newly installed DVD burner, the technician ran

a “general search for a video” to be burned to a disc. Id. at 365. The search

returned a number of files, some of which “appeared to be pornographic in

nature due to their titles which included masculine first names, ages of either

thirteen or fourteen, and sexual acts.” Id. at 365-66. The technician clicked

on “‘the first one’ that appeared questionable, and the video contained the

lower torso of an unclothed male, and when a hand approached the male’s


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penis, [the technician] immediately stopped the video.”      Id. at 366.    The

technician summoned police, as he had been told to do by a state police officer

under such circumstances. Id. Police responded, viewed the video clip the

technician had seen, and seized the computer.        Id.   Subsequently, they

obtained a warrant and discovered child pornography. Id.

        The trial court granted the defendant’s motion to suppress. Central to

the dispute was whether and to what extent the defendant abandoned his

privacy interest in the computer while it was at Circuit City for the requested

work.     The trial court reasoned that the defendant did not expect his

computer’s contents to be published to anyone other than Circuit City

employees. Id. at 367.

        In canvassing the law of abandonment, the Sodomsky Court noted,

“[t]he issue is not abandonment in the strict property-right sense, but whether

the person prejudiced by the search had voluntarily discarded, left behind, or

otherwise relinquished his interest in the property in question so that he could

no longer retain a reasonable expectation of privacy with regard to it at the

time of the search.” Id. at 366-67 (quoting Commonwealth v. Shoatz, 366

A.2d 1216, 1220 (Pa. 1976)). Furthermore, “the Fourth Amendment protects

people, not places. What a person knowingly exposes to the public, even in

his own home or office, is not a subject of Fourth Amendment protection. But

what he seeks to preserve as private, even in an area accessible to the public,




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may be constitutionally protected.”      Id. at 367 (quoting Katz v. United

States, 389 U.S. 347, 351-52 (1967)).

      In light of these principles, the Sodomsky Court determined that the

proper inquiry was whether the defendant’s “expectation of privacy in the

videos on the computer that he relinquished to Circuit City employees for

repairs was reasonable or whether he knowingly exposed the computer’s video

files to the public such that he voluntarily abandoned his privacy interest in

them.” Id. In other words, did the defendant “give access or knowingly risk

access to his video files.”   Id. at 368.   This Court disagreed with the trial

court’s analysis because “if [the defendant] exposed the video contents of his

computer to Circuit City employees, he abandoned his privacy interest in those

computer contents because those employees were members of the public.”

Id.

      Applying these principles, the Sodomsky Court noted that the

defendant requested installation of a new DVD drive and was informed that

the DVD drive would be tested once installed. Id. He did not inquire about

the testing process or restrict Circuit City’s access to his files for purposes of

running that test. Id. Further, Circuit City employees discovered the illicit

material while they were testing the DVD drive in a “commercially-accepted

manner.” Id. The employees were free to choose any video file from the list

of videos to run the test. Id. at 369. In addition, the Sodomsky Court noted

that the defendant’s actions—bringing his computer to Circuit City, requesting


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repairs, and failing to remove or rename the illicit files beforehand—were

volitional. Id. at 369.

      The Sodomsky Court distinguished Commonwealth v. DeJohn, 403

A.2d 1283 (Pa. 1979), cert. denied, 444 U.S. 1032 (1980), wherein our

Supreme Court held that banks cannot disclose their customers’ financial

records without a search warrant. The DeJohn Court reasoned:

             [T]he disclosure by individuals or business firms of their
      financial affairs to a bank is not entirely volitional, since it is
      impossible to participate in the economic life of contemporary
      society without maintaining a bank account. In the course of such
      dealings, a depositor reveals many aspects of his personal affairs,
      opinions, habits and associations. Indeed, the totality of bank
      records provides a virtual current biography. […] To permit a
      police officer access to these records merely upon his request,
      without any judicial control as to relevancy or other traditional
      requirements of legal process, and to allow the evidence to be
      used in any subsequent criminal prosecution against a defendant,
      opens the door to a vast and unlimited range of very real abuses
      of police power.

Id. at 1289–90.

      Similarly, the Sodomsky Court distinguished Commonwealth v.

Davis, 743 A.2d 946 (Pa. Super. 1999), in which this Court held that tenants

retain a privacy interest in rented property despite a landlord’s right of access.

Thus, police subjected the tenant to an unreasonable search and seizure

despite the landlord’s consent to enter the property. Id. at 951-52.

      Ultimately, the Sodomsky Court concluded that the defendant did not

retain a privacy interest in his video files under the circumstances of that case.

Sodomsky, 939 A.2d at 369. “If a person is aware of, or freely grants to a



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third party, potential access to his computer contents, he has knowingly

exposed the contents of his computer to the public and lost any reasonable

expectation of privacy in those contents.” Id.

      Appellant first argues that that Sodomsky should be overruled.

Appellant’s Brief at 11-15. That action must come, if at all, from an en banc

panel of this Court or from our Supreme Court.       See Commonwealth v.

Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010) (noting that one three-

judge Superior Court panel cannot overrule another).

      Appellant next argues that Sodomsky is distinguishable. In essence,

Appellant argues that he did not give or knowingly risk access to the illicit

photographs in his hard drive because the possibility of their discovery was

extremely remote, given his initial reasons for leaving his computer with

CompuGig. As noted above, Appellant stated that he could not access the

Internet and that he believed his laptop was infected by spyware or a virus.

He did not anticipate that his hard drive was failing. Nonetheless, the record

indicates that CompuGig contacted Appellant after Eidenmiller discovered the

failing hard drive, and Appellant requested that the hard drive be replaced.

Given his consent to the hard drive replacement, Appellant’s original

description of the problem is irrelevant to our analysis.

      Appellant also argues that he did not anticipate—and was never told—

that CompuGig might need to access individual files in order to salvage data.

He notes that CompuGig first tried to take an image of the entire hard drive


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and, when that failed, tried to copy individual folders and, when that failed,

opened folders to copy individual files. The illicit photographs happened to be

in a folder that would not copy. Appellant argues that this chain of events

was unforeseeable, and that he therefore did not legally abandon his privacy

interest in the illicit photos within the meaning of Sodomsky.

       We    believe   Appellant     reads     Sodomsky too    narrowly.   There,

unbeknownst to the defendant, the technician intended to run a test using a

video file from the defendant’s hard drive. See Sodomsky, 939 A.2d at 364.

The defendant did not ask how that would be done, nor did he restrict the

means of doing so. See id. Thus, the defendant was uninformed and unaware

of the possibility that the technician would search video files on the

defendant’s computer. Similarly, in this case, Appellant was unaware and did

not inquire into the details of the procedure he authorized. The record reflects

that, on November 30, 2015, five days after Appellant dropped his computer

off for service, CompuGig called Appellant and informed him his hard drive

was failing.     N.T. Hearing, 7/7/16, at Exhibit A.          Appellant authorized

CompuGig to replace the hard and install an image of the failing drive. Id.

Four days later, on December 4, 2015, a CompuGig administrator called

Appellant to “explain that we must do an OS rebuild with data.” Id.1 Appellant

____________________________________________


1  Appellant insists he received only one phone call from CompuGig after his
initial visit. Appellant’s Brief at 17. Appellant ignores the applicable standard
of review, pursuant to which we “consider only the evidence of the



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was informed that CompuGig intended to install a new hard drive and transfer

data from the old one. Id. at 20.

       We find this case slightly distinguishable from Sodomsky in several

respects, but in those respects it favors the trial court’s order. The Sodomsky

defendant was unaware that the technician would need to access any of his

files. Here, in contrast, Appellant was informed that CompuGig needed to

copy and transfer all his files.           In Sodomsky, the technician noticed

incriminating titles attached to the illicit video files, and he confirmed his

suspicions by opening and beginning to play one of the files. Instantly, the

illicit images appeared as thumbnail files when Eidenmiller opened a folder on

Appellant’s hard drive, and they immediately appeared2 to Eidenmiller to be

sexually explicit depictions of underage children.      He conducted no further

investigation. We cannot reasonably distinguish Sodomsky on grounds that




____________________________________________


Commonwealth and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a whole.” Smith,
164 A.3d at 1257. The record contradicts Appellant’s assertion that he
received only one phone call.

2  The Sodomsky Court expressed no opinion on whether the defendant
abandoned his privacy interest in other files, such as e-mail or financial
records. Sodomsky, 939 A.2d at 369. Similarly, we do not address whether
and to what extent a person retains a privacy interest in e-mails, financial
records, or other files whose incriminating nature might not be immediately
obvious to a technician who accesses them in the ordinary course of
performing a requested service.


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Eidenmiller’s methods were unnecessarily intrusive or unforeseeable, as

compared to those employed in Sodomsky.

       In other respects, the two cases are similar.          Appellant, like the

Sodomsky defendant, did not inquire about or restrict the means of

completing the requested service. The Sodomsky Court noted the Circuit

City technicians were “testing the DVD drive’s operability in a commercially

accepted manner rather than conducting a search for illicit items.”

Sodomsky, 939 A.2d at 368.             Likewise, in this case, Eidenmiller was not

searching for illicit photographs. He discovered the photographs during a file-

by-file transfer after broader, less intrusive means of transferring the data

failed.   Nothing in the record suggests that Eidenmiller failed to use a

commercially accepted manner of performing the work Appellant requested.

       In short, we find Sodomsky controlling.             As noted above, the

Sodomsky Court concluded that abandonment occurs when a person “freely

grants to a third party, potential access to his computer contents, he has

knowingly exposed the contents of his computer to the public and has lost any

reasonable expectation of privacy in those contents.”         Id. at 370.   If the

Sodomsky defendant granted potential access to his illicit files under the

circumstances there present, Appellant clearly did so in the instant case.3

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3 Appellant seeks to avoid this result by relying on United States v. Jones,
565 U.S. 400 (2012), in which the Supreme Court ruled that, for Fourth
Amendment purposes, police engage in a search when they place a GPS unit



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       For all of the foregoing reasons, we discern no error in the order denying

Appellant’s motion to suppress evidence. We therefore affirm the judgment

of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




____________________________________________


in a person’s vehicle. Relying on Jones, Appellant claims police “physically
occupied” and “trespassed upon” Appellant’s computer when they retrieved
the illicit files without a warrant. Appellant’s Brief at 21. We find Jones
inapposite, and Appellant’s reliance on it is not responsive to the trial court’s
finding that he abandoned his privacy interest in the illicit files.

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