J-A06008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 LUIS ENRIQUE SOTO                         :
                                           :
                       Appellant           :   No. 793 MDA 2018

           Appeal from the Judgment of Sentence April 13, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0001464-2017


BEFORE:     OTT, J., NICHOLS, J., and PELLEGRINI*, J.

CONCURRING MEMORANDUM BY NICHOLS, J.:              FILED AUGUST 16, 2019

     I agree that the trial court properly denied Soto’s motion to suppress

evidence obtained following the execution of the search warrant.      I write

separately to emphasize that the totality of circumstances presented to the

magistrate provided probable cause.

     “Reasonable minds frequently may differ on the question [of] whether

a particular affidavit establishes probable cause, and we have thus concluded

that the preference for warrants is most appropriately effectuated by

according     ‘great     deference’   to   a   magistrate’s   determination.”

Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010) (quoting United

States v. Leon, 468 U.S. 897, 914 (1984)). “As our United States Supreme

Court stated: ‘A grudging or negative attitude by reviewing courts towards

warrants . . . is inconsistent with the Fourth Amendment’s strong preference

for searches conducted pursuant to a warrant; courts should not invalidate

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06008-19



warrants by interpreting affidavits in a hypertechnical, rather than a

commonsense, manner.’” Id. at 655-56 (quoting Illinois v. Gates, 462 U.S.

213, 236 (1983)) (emphasis added).

      Here, the dissent analyzes the description of the images on the

computer files, which is contained in paragraph 29 of the affidavit of probable

cause. The dissent contends that “nothing in the affidavit suggests that the

images were intended for an illicit purpose,” and “the Affiant’s description of

‘teenage girls’ does not specify that the individuals in the photos were below

the age of 18.” Dissenting Mem. at 3, 4. Because copies of the image were

not attached to the affidavit, the dissent asserts that “the magistrate’s

probable cause determination could have only been based on the Affiant’s

opinion that the images were illegal.” Id. at 5. I believe the dissent engages

in the type of “hypertechnical” interpretation discouraged by the United States

Supreme Court. See Jones, 988 A.2d at 655-56.

      In evaluating the totality of circumstances presented to the magistrate,

I note that the affiant, Detective Yarnell, has been a police officer since 2009

with experience investigating offenses including rape, child abuse, and child

sex assault. See Affidavit of Probable Cause at ¶ 7. During the investigation,

Detective Yarnell received information from Detective Wahl, a police officer

since 1982 with training in the sexual abuse of children and the use of the

Internet in the exploitation of children. Id. at ¶ 10.

      These detectives downloaded files from a network frequently used in the

trading of child pornography. Id. at ¶ 19. The files were associated with an

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IP address linked to Soto. Id. at ¶ 35. The detectives viewed the files. Based

on their experience and training, the detectives concluded that the files

depicted child pornography as defined by the Crimes Code. Id. at ¶¶ 28, 29.

      As the majority notes, “the affiant’s description of the pornographic

images could have been more detailed.” Majority Mem. at 9. Nevertheless,

under the standards of “practicality” and “common-sense” that guide issuing

authorities, a substantial basis existed for the magistrate to find probable

cause. See Commonwealth v. Koehler, 914 A.2d 427, 434-35 (Pa. Super.

2006) (concluding that the appellant was not entitled to relief on his claim

that the application for a search warrant was defective where it identified the

contraband merely as nude photographs of minors; under the totality of the

circumstances, the magistrate properly concluded that the photographs were

“for the purpose of sexual stimulation or gratification of any person who might

view such depiction,” where the affiant, an experienced detective in the sex

crimes unit, viewed the photographs and determined that a warrant was

necessary to complete the investigation).

      Accordingly, I concur with the majority.




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