J-A10041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MOHAMED DRIDI                              :
                                               :
                       Appellant               :   No. 723 EDA 2019

        Appeal from the Judgment of Sentence Entered January 23, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008768-2016


BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JUNE 23, 2020

        Mohamed Dridi (Dridi) appeals from the judgment of sentence entered

on January 23, 2019, by the Court of Common Pleas of Philadelphia County

(trial court) following his jury trial convictions for one count of disseminating

child pornography, fifteen counts of possession of child pornography, and one

count of criminal use of a communication facility.1 Dridi challenges the denial

of his motion to suppress evidence seized from his residence pursuant to a

search warrant. We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 6312(c), 6312(d), & 7512(a).
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                                               I.

       We glean the following facts from the certified record.    On April 10,

2016, Special Agent Eric Barlow (Agent Barlow) of the Pennsylvania Office of

the Attorney General (OAG) utilized the office’s peer-to-peer file sharing

program to download a file containing known child pornography. Agent Barlow

identified the Internet Protocol (IP) address that had shared the file and

obtained a subpoena for the subscriber information.          Verizon’s records

indicated that Dridi was the owner of the IP address and provided his address.

The OAG confirmed through PennDOT and other records that Dridi was the

resident of the address in question.

       Subsequently, on August 2, 2016, Agent Barlow applied for a search

warrant for the address. In the Affidavit of Probable Cause (Affidavit) attached

to the search warrant application,2 Agent Barlow described his investigation in

detail. He explained that peer-to-peer file sharing programs “allow groups of

computers, using the same file sharing network and protocols, to transfer

digital files from one computer system to another while connected to a

network, usually on the Internet.” Affidavit at 1. The peer-to-peer file sharing

programs allow users to make their digital libraries available to other users

and are commonly used to disseminate child pornography. Id. Peer-to-peer



____________________________________________


2The full search warrant and Affidavit was attached as Exhibit B to Dridi’s
Motion to Suppress. See Motion to Suppress, 8/14/17, Exhibit B.


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file sharing programs can download a single file from multiple computers;

however, the program used by the OAG downloads an entire file from a single

computer and identifies that device’s IP address for investigation. Id. at 2.

      During his investigation, Agent Barlow made a direct connection to a

device at an identified IP address and downloaded a file containing child

pornography. Id. at 3. The device was using uTorrent 3.4 software to share

the file. Id. Agent Barlow’s software logged the start and end time for the

download, the file name and size, and the IP address for the computer sharing

the file. Agent Barlow then used the American Registry of Internet Numbers

to determine that the IP address was provided by Verizon and issued a

subpoena for the subscriber information. As noted above, Verizon complied

with the subpoena and identified Dridi as the subscriber and provided his home

address and contact information.

      The Affidavit further explained that files may be stored in “free space or

slack space” on a hard drive long after it has been deleted by a user, and a

computer may also keep records of deleted data and files that were viewed

through the internet. Id. at 4. Thus, it is possible for investigators to recover

files and data that had been deleted or viewed months or years prior. Id.

Agent Barlow averred that “searching computerized information for evidence

or instrumentalities of crime commonly requires investigators to seize all of a

computer    system’s   input/output   peripheral   devices,   related   software,

documentation, and data security devices (including passwords) so that a


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qualified computer expert can accurately retrieve the system’s data in a

laboratory or other controlled environment.” Id. at 5. It was necessary to

search not just computers, but all magnetic storage devices, external storage

devices, and “computing systems sometimes referred to as central processing

units (CPU).” Id.

       Based on all of this information, the application for the search warrant

specified the items to be searched for and seized as follows:

       All computer hardware, including, but not limited to, any
       equipment which can collect, analyze, create, display, convert,
       store, conceal, or transmit electronic, magnetic, optical or similar
       computer impulses or data. Any computer processing units,
       internal and peripheral storage devices (such as fixed disks,
       external hard disks, discs, backup media, flash media, and optical
       storage devices), peripheral input/output devices (such as
       keyboards, printers, scanners, video displays, switches, and
       disc/media readers), and related communication devices such as
       network/internet devices, cables, and connections, recording
       equipment, as well as any devices, mechanisms, or parts that can
       be used to restrict access to computer hardware. These items will
       be seized and then later searched for evidence relating to the
       possession and/or distribution of child pornography.

Search Warrant, 8/2/16, at 1-2. Agents from the OAG executed the search

warrant and seized three laptop computers and four cell phones3 from the

residence.    These items were seized from a room in the house that Dridi

identified to agents as his bedroom.




____________________________________________


3 These cell phones were all smartphones. “A smartphone is a modern day
cellular telephone with computer-like capabilities.” Commonwealth v.
Smith, 136 A.3d 170, 171 n.2 (Pa. Super. 2016).

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      Videos, images, internet search history terms, and other indicia of child

pornography were recovered from one of the laptops and three of the cell

phones.   Several of the images of child pornography were synced across

multiple cell phones through a shared Gmail account. The laptop identified

Dridi as the system owner, with “Ali PC” as the laptop name and “Ali” as the

username. The laptop also contained a picture of Dridi’s green card and Social

Security card. All images and videos were located in “unallocated space” on

the devices, indicating that the user had deleted the files from the allocated

space on the devices but they had been retained elsewhere by the system.

The uTorrent 3.4 software that uploaded the video in April 2016 was not found

on any of the devices.

      Following a jury trial, Dridi was found guilty of the above-mentioned

crimes. After a presentence investigation and report, the trial court sentenced

Dridi to an aggregate of five to ten years’ incarceration, followed by seven

years of probation. Dridi timely filed a notice of appeal, and he and the trial

court have complied with Pa. R.A.P. 1925.

                                      II.

      On appeal, Dridi raises two claims of error regarding the trial court’s

denial of his motion to suppress:

      1. Did not the suppression court err in denying [Dridi’s] motion to
      suppress evidence where the search warrant lacked the
      constitutionally required particularity as it authorized only the
      seizure of computers and related hardware but never mentioned
      cell phones?


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      2. Did not the suppression court err in denying [Dridi’s] motion to
      suppress physical evidence where the search warrant did not
      contain probable cause to seize cell phones?

See Dridi’s Brief at 3 (answers omitted). Notably, he concedes that probable

cause existed to support the search and seizure of the computers recovered

from his residence.    See Reply Brief at 2.      His only arguments relate to

whether the search warrant authorized the OAG to search and seize four cell

phones from his residence. As these are issues that Dridi did not present to

the trial court, either in the suppression proceedings or in his Concise

Statement, they are waived.

      It is axiomatic that issues not first presented to the trial court are waived

on appeal. Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).            Even issues of

constitutional dimension are waived if they are not preserved in front of the

trial court. Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017).

Similarly, a litigant may not present a new or different legal theory in support

of relief on appeal. Id. All legal theories or arguments must first be presented

to the trial court, which can then correct error in the first instance before an

appeal becomes necessary. “The appellate rules direct that an issue must be

raised in the trial court in order to provide that court with the opportunity to

consider the issue, rule upon it correctly, and obviate the need for appeal.”

Gustine Uniontown Assocs., Ltd. ex rel. Gustine Uniontown, Inc. v.

Anthony Crane Rental, Inc., 892 A.2d 830, 835 (Pa. Super. 2006).


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   In his suppression motion, Dridi argued that:

            All evidence from his residence must be suppressed because
      the warrant did not support probable cause that the device that
      uploaded the video would still be in the residence four months
      after the initial investigation. See Motion to Suppress, 8/14/17,
      at 2-7.

           The warrant was overbroad because it authorized the
      seizure of all computer equipment, “allows a general search of all
      computer hardware,” and “[did] not limit the search to evidence
      of the crimes under investigation.” Id. at 7.

           The warrant should have been more detailed regarding the
      type of files and data that could be searched for and seized. Id.
      at 9.

          The warrant only authorized seizure of the devices, not the
      subsequent searches of the devices. Id.

          The OAG violated the knock-and-announce rule when it
      executed the warrant. Id. at 12.


Notably, the Motion did not allege that the cell phones were illegally seized

because they were not denominated in the search warrant.

      At the suppression hearing, Dridi stated that he was seeking suppression

of all items seized from the house on the basis that the search warrant and

Affidavit were overbroad, stale and did not support probable cause to conclude

that contraband would be found in his home. He withdrew all other grounds

for suppression that had been stated in his written motion.         Notes of

Testimony, Suppression Hearing, 10/11/17, at 6.      In his testimony, Agent

Barlow stated that the search warrant was written to include all devices that

access the internet or store files. He could not confirm through the initial



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investigation which specific device uploaded the video, only the IP address

from which it was uploaded.        Id. at 47, 50.      Neither Dridi nor the

Commonwealth questioned Agent Barlow regarding whether cell phones could

be used to upload or download the type of file that Agent Barlow had

downloaded from Dridi’s IP address.

      After the testimony, Dridi did not make any argument regarding whether

the cell phones fell within the scope of the search warrant or were identified

with particularity.   He argued, consistent with his motion, that the entire

search of the home was unconstitutional because the search warrant was

stale, overbroad and lacked probable cause to find that the device that

uploaded the video was still in the home. The trial court subsequently denied

suppression, finding that the link between the IP address and Dridi’s home

provided sufficient probable cause that the device that uploaded the video

would be located in the home.     The trial court also found that the search

warrant was not overbroad because it was limited to devices that could be

used to store child pornography and limited the scope of the search to files

and evidence related to child pornography. Id. at 58-60.

      Similarly, in his Concise Statement, Dridi stated that the trial court

abused its discretion in denying his motion to suppress “electronic devices and

all prohibited materials recovered therefrom” because the search warrant was

“stale, overbroad and did not contain probable cause that contraband would

be found in the home.” Concise Statement, 5/14/19, at Paragraph 2a. Thus,


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he stated that the entire search of his home was unconstitutional. Id. Again,

he did not allege that the search should have been limited to the computers

or that the cell phones were not identified with particularity in the search

warrant.

      Because of the issues raised, the trial court’s opinion focused on whether

the information to support the search warrant was stale and sufficiently

tailored to allow the OAG to search the devices only for evidence related to

possessing and disseminating child pornography.        See Trial Court Opinion,

9/8/19, at 12-16. The trial court never considered the question of whether

cell phones were identified with particularity within the definition of “computer

hardware” in the search warrant or whether the search warrant supported

probable cause to search the cell phones as opposed to the computers.

      Dridi’s first question on appeal relates to the particularity of the search

warrant, specifically, whether the language describing items to be seized was

written with sufficient particularity to authorize seizure of the cell phones.

      The particularity requirement prohibits a warrant that is not
      particular enough and a warrant that is overbroad, which are
      separate, but related, issues.          A warrant lacks sufficient
      particularity if it authorizes a search in terms so ambiguous as to
      allow the executing officers to pick and choose among an
      individual’s possessions to find which items to seize. A warrant is
      unconstitutionally overbroad if it authorizes in clear or specific
      terms the seizure of an entire set of items, or documents, many
      of which will prove unrelated to the crime under investigation.

Commonwealth v. Green, 204 A.3d 469, 480–81 (Pa. Super. 2019)

(citations omitted).   Dridi argues that because the language of the search


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warrant did not identify cell phones as items to be seized, they were not

identified with sufficient particularity and the evidence recovered from the cell

phones must be suppressed. However, in the suppression proceedings and

his Concise Statement, Dridi argued only that the search warrant was

overbroad and all evidence seized from his home must be suppressed as a

result.   Because his argument related to the particularity of the search

warrant, and the seizure of the cell phones was not presented to the trial

court, it is waived.

      In his second argument, Dridi concedes that the search warrant set forth

probable cause to search for and seize his laptops, but maintains that the

search could not constitutionally extend to the cell phones. See Reply Brief

at 2. Again, this argument was not set forth in his motion to suppress, at the

suppression hearing, or in his Concise Statement.       In all proceedings and

filings below, Dridi argued that probable cause did not exist to support the

search of his residence generally; he did not argue that the search warrant

was sufficient to allow seizure of the laptops but that separate probable cause

was required to search and seize the cell phones. As he did not present these

arguments to the trial court, they are waived. See Pa. R.A.P. 302(a).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2020




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