J-S11045-15

                                2015 PA Super 133

COMMONWEALTH OF PENNSYLVANIA,              :        IN THE SUPERIOR COURT OF
                                           :              PENNSYLVANIA
                    Appellant              :
                                           :
            v.                             :
                                           :
KENNETH F. SODOMSKY,                       :
                                           :
                    Appellee               :            No. 870 MDA 2014

                 Appeal from the Order entered on April 25, 2014
                  in the Court of Common Pleas of Berks County,
                 Criminal Division, No. CR-06-CR-0001025-2005

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                               FILED JUNE 05, 2015

      The Commonwealth of Pennsylvania appeals from the Order granting

the suppression Motion filed by the defendant, Kenneth F. Sodomsky

(“Sodomsky”).1 We affirm.

      In a prior appeal, this Court summarized the relevant history of this

case as follows:

      Richard Kasting [“Mr. Kasting”] was the senior sales assistant in
      the technology department of the Circuit City [s]tore located on
      Woodland Road, Wyomissing, Berks County[, Pennsylvania]. Mr.
      Kasting testified that on October 15, 2004, [Sodomsky] came to
      Circuit City and asked Mr. Kasting to install an optical drive and
      DVD burner into his computer. The work order that [Sodomsky]
      executed that day authorized Circuit City to install and configure
      the optical drive unit and DVD in his desktop computer.




1
  As required to take an appeal as of right under Pa.R.A.P. 311(d), the
Commonwealth has certified that the suppression court’s Order substantially
handicapped the Commonwealth’s ability to proceed in this case.
J-S11045-15


            In accordance with store practice, Mr. Kasting summarized
     to [Sodomsky] “what is done during the installation.” N.T.
     Suppression Hearing, 9/28/05, at 16. [Sodomsky] was informed
     that as part of the installation process, the installer would “have
     to make sure [that the DVD burner] works.” Id. at 17. There is
     no indication that [Sodomsky] asked how the DVD burner would
     be tested or in any manner restricted what procedure could be
     utilized to confirm the burner’s operability.           [Sodomsky]
     requested that the work be performed on an expedited basis,
     and Mr. Kasting instructed him to return in approximately one
     hour.

            Toby Werner was in the middle of the installation process
     when Stephen Richert [“Mr. Richert”], the head of personal
     computer repairs at Circuit City, arrived. Mr. Richert testified
     that the DVD drive was installed when he arrived in the
     department, but the software had not yet been installed. Mr.
     Richert explained that all DVD burners and players were
     accompanied by software.[FN] Mr. Richert testified specifically
     that at Circuit City, with “every installation” of the hardware,
     “any supplementary software” was installed both as a courtesy
     “and to make sure when it leaves the store, we can guarantee
     that it is working.” Id. at 21.


     [FN] [Sodomsky] maintains that he did not request installation of
     the DVD software. However, it is clear that Circuit City could not
     test the hardware without installing the software and always
     installed any software accompanying a hardware installation.
     [Sodomsky] was told that the hardware would be tested.


           After the software was installed, Mr. Richert performed a
     general search for a video [file on Sodomsky’s computer] to test
     the new DVD drive. More specifically, he testified as follows:

        Well, after we installed the software, we did a generic
        search of the PC where you click on the start menu, you
        click on search, and this being the [W]indows XP, a
        search box comes up and it is custom made to this
        operating system. In this case, this system, it’s about
        half way down the screen on the left-hand side there’s a
        search, and you can enter—in this case, you could enter a
        specific name of a file that you’re looking for and find it.


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J-S11045-15



          We weren’t looking for anything specific, so we did a
        generic search. …

                                *      *      *

          … [I]n this case, we wanted to make sure that all types
        of files were working fine so that you wouldn’t get any
        type of errors….

     Id. at 22-23.

           Mr. Richert testified that once the search button was
     activated for a given object, the computer automatically loaded
     the requested files onto the screen, which continued to enlarge
     by itself. Thus, after the search was initiated, Mr. Richert did not
     manipulate the computer further to see the entire list of videos.
     Id. at 30-31. The first few video titles that appeared from
     [Sodomsky’s] video list were innocuous. However, as the video
     log continued to compile on the computer screen, which occurred
     without any human intervention, some of the files appeared to
     be pornographic in nature due to their titles[,] which included
     masculine first names, ages of either thirteen or fourteen, and
     sexual acts. Mr. Richert 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 penis,
     Mr. Richert immediately stopped the video. Id. at 24. Mr.
     Richert contacted his manager and then telephoned the
     Wyomissing police.

           During cross-examination, Mr. Richert admitted that he
     had been told by a Pennsylvania State Police Officer to contact
     police if he ever ran across what appeared to be child
     pornography while at work. At the time, Mr. Richert was taking
     a course at a local college and hoped to enter the law
     enforcement field.

           Wyomissing Police Detective George Bell [“Detective Bell”]
     and two other police officers responded to the call and viewed
     the same video clip [while at the Circuit City store]. When
     [Sodomsky] arrived to retrieve his computer, Detective Bell
     informed him that his computer was being seized because police
     suspected that it contained child pornography. [Sodomsky]
     responded that he knew what they had found and that his “life


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J-S11045-15


        was over.” Id. at 87. Police took the computer to the police
        station, obtained a warrant to search it, and discovered child
        pornography.

Commonwealth v. Sodomsky, 939 A.2d 363, 364-66 (Pa. Super. 2007)

(one citation omitted; footnote in original).

        On March 11, 2005, Sodomsky was charged with two counts of sexual

abuse of children, and one count of obscene and other sexual materials and

performances.2 Subsequently, Sodomsky filed an Omnibus Pre-trial Motion

to suppress the evidence seized from his computer. After a hearing, the trial

court granted the suppression Motion, after which the Commonwealth filed

an interlocutory appeal to this Court.

        On appeal, the Commonwealth argued that

        the trial court erred in concluding that [Sodomsky] retained a
        privacy interest in the computer because he volitionally
        relinquished any expectation of privacy in that item by delivering
        it to Circuit City employees knowing that those employees were
        going to install and test a DVD device….

Id. at 366 (emphasis added). A panel of this Court agreed, in part, with the

Commonwealth’s contention. Id. Reversing the suppression court’s Order,

the panel reasoned that, “when an individual evidences an intent to

relinquish control over personal property, he or she has abandoned a privacy

interest in property and cannot object to any ensuing search of the item by

police.”    Id.   In so holding, the panel focused solely upon Sodomsky’s

expectation of privacy:


2
    18 Pa.C.S.A. §§ 6312(d), 5903(a)(3).


                                   -4-
J-S11045-15


     The 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 (emphasis added) (quoting Commonwealth v. Shoats, 366

A.2d 1216, 1220 (Pa. 1976)).          The panel additionally applied the

Pennsylvania Supreme Court’s holding in Commonwealth v. Hawkins, 718

A.2d 265 (Pa. 1998), explaining that in Hawkins,

     the defendant handed an item to another individual, who then
     placed it in his mouth. Police seized the individual and extracted
     the property, which consisted of illicit drugs. Our Supreme Court
     refused to allow the defendant to object to the seizure of the
     drugs, noting that under current Fourth Amendment
     jurisprudence, a defendant cannot object to a search unless he
     establishes a legitimate expectation of privacy, “in the area
     searched or the effects seized” and that such interest must also
     be sanctioned by society as reasonable and justifiable.”
     [Hawkins,] … 718 A.2d at 267. … [A] “legitimate expectation
     of privacy is absent where an owner or possessor meaningfully
     abdicates his control, ownership or possessory interest” in his
     personal property. Id. … at 267. …

Sodomsky, 939 A.2d at 367.          Ultimately, the panel concluded that

Sodomsky had no reasonable expectation of privacy because he had

“abandoned” his computer, for one hour, for the installation of a DVD drive.

Id. at 369. Accordingly, the panel reversed the suppression court’s Order,

and remanded for further proceedings.3


3
  The Pennsylvania Supreme Court denied allowance of appeal, and the
United States Supreme Court denied Sodomsky’s Petition for Certiorari.
Commonwealth v. Sodomsky, 962 A.2d 1196 (Pa. 2008), cert. denied,
556 U.S. 1282 (2009).


                                -5-
J-S11045-15


      On remand, Sodomsky filed a Petition to introduce new evidence,

claiming that such evidence was unavailable to the defense prior to the

evidentiary hearing on his suppression Motion. The trial court issued a Rule

to Show Cause why the Petition should not be granted, and scheduled an

evidentiary hearing. At the hearing, Sodomsky presented two experts, who

testified about industry standards and the methods used by Mr. Richert to

install the DVD burner. First, William Scott Ardisson testified that opening

the computer’s video files was not a proper method for testing the

installation of a DVD burner.   N.T., 2/15/11, at 15.   Next, Charles Mance

testified that the methods used by Mr. Richert to test the drive were not

consistent with industry standards. Id. at 56. Based upon Sodomsky’s new

evidence, the suppression court again found that Sodomsky had a

reasonable expectation of privacy in the digital data on his computer.

Therefore, on March 22, 2011, the suppression court granted Sodomsky’s

suppression   Motion.    Once   again,   the   Commonwealth    appealed   the

suppression court’s ruling.

      During its second appeal, the Commonwealth argued, inter alia, that

the trial court had erred in granting suppression “because [Sodomsky] ‘failed

to establish that he retained any expectation of privacy in his computer after

he turned it over to Circuit City employees.’”          Commonwealth v.

Sodomsky, 47 A.3d 1257 (Pa. Super. 2012) (unpublished memorandum at

10) (quoting Commonwealth’s Brief at 17)). The panel agreed, holding that



                                 -6-
J-S11045-15


      [a]fter careful review, we conclude that none of the evidence
      presented at the second suppression hearing alters this Court’s
      previous conclusion that [Sodomsky] relinquished control of the
      video files on his computer when he took the computer to Circuit
      City to install a DVD burner[,] and thereby abandoned his
      privacy interest in the files….

Id.   (unpublished   memorandum     at   13).   Based   upon   a   theory   of

abandonment, the panel concluded that “the trial court erred in finding [that

Sodomsky] retained a legitimate expectation of privacy in the video files.”

Id. (unpublished memorandum at 14).       The panel reversed and remanded

for further proceedings.4 Id.

      On remand from this Court, on December 9, 2013, Sodomsky filed a

Petition to Re-Open Suppression Hearing based on Intervening Change of

Law, i.e., the United States Supreme Court’s decision in United States v.




4
  The Pennsylvania Supreme Court again denied allowance of appeal.
Commonwealth v. Sodomsky, 63 A.2d 1246 (Pa. 2013). Sodomsky’s
subsequent Petition for Certiorari to the United States Supreme Court also
was denied. Sodomsky v. Pennsylvania, ___ U.S. ___, 134 S. Ct. 212
(2013).



                                 -7-
J-S11045-15


Jones, 565 U.S. ___, 132 S. Ct. 945 (2012).5              The suppression court

granted   Sodomsky’s   Petition,   and,    after    a   hearing,    again   granted

Sodomsky’s    suppression   Motion,      based     upon   the      Jones    decision.

Thereafter, the Commonwealth filed the instant timely appeal, and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

     The Commonwealth now presents the following claims for our review:

     a. Whether the trial court erred by re-opening the suppression
        hearing in this case since Jones … was decided before the
        Superior Court made its decision on the last appeal, before
        the [Pennsylvania] Supreme Court denied allocatur, and
        before the U.S. Supreme Court denied [certiorari] in the last
        appeal?

     b. Whether [Sodomsky] has identified any intervening changes
        in the law that would have affected the resolution of the
        issues raised by [Sodomsky] during the prior appeal in this
        case?

     c. Whether the trial court erred in holding that law enforcement
        officers interfered with the possessory           interest in
        [Sodomsky’s] computer, or engaged in a physical intrusion of
        this computer property to the extent that they committed a
        trespass for the purposes of obtaining information, thereby
        violating [Sodomsky’s] Fourth Amendment rights[?]

Brief for the Commonwealth at 5.



5
   On January 23, 2012 (one week before the scheduled Superior Court oral
argument for Sodomsky’s second appeal, but after appellate briefs had been
filed), the United States Supreme Court filed its decision in Jones. The
Superior Court’s Memorandum Opinion did not discuss the applicability of
Jones. Rather, the decision discussed only Sodomsky’s lack of a reasonable
expectation of privacy in the data on his computer. Sodomsky, 47 A.3d
1257 (unpublished memorandum at 14).


                                   -8-
J-S11045-15


      The Commonwealth first claims that the trial court erred in re-opening

the issue of suppression, based upon Sodomsky’s claim of an intervening

change of law. Id. at 13-14. The Commonwealth contends that the Jones

decision is not an intervening change of law, as the Pennsylvania Superior

Court was aware of the Jones decision during the second appeal. Id. at 14.

The Commonwealth points out that Sodomsky’s counsel addressed the

applicability of Jones during oral argument before the Pennsylvania Superior

Court panel, and in his Petition for allowance of appeal to the Pennsylvania

Supreme Court. Id.

      Our careful review of the record discloses that prior to the hearing and

Order underlying the instant appeal, the suppression court had no

opportunity to discuss or apply the United States Supreme Court’s decision

in Jones.   During the second appeal, this Court focused upon whether the

suppression court had erred or abused its discretion when it ruled that

Sodomsky had a reasonable expectation of privacy in his computer data.

Because the applicability of Jones (an intervening change of law) previously

has not been addressed by this Court, we are not barred from addressing

the issue during the instant appeal.    See Commonwealth v. Starr, 664

A.2d 1326, 1332 (Pa. 1995) (stating that the law of the case doctrine does

not apply where there exists an intervening change in the applicable law).

Accordingly, the Commonwealth is not entitled to relief on this claim.




                                 -9-
J-S11045-15


      In its second claim, the Commonwealth argues that Sodomsky failed

to identify any intervening change in the law that applies to his suppression

claim. Brief for Appellant at 15. The Commonwealth contends that Jones

only reiterated that “a traditional property law analysis still existed ….” Id.

The Commonwealth asserts that “any property right [Sodomsky] might have

had in his computer, … he relinquished to Circuit City for the limited purpose

of doing whatever the technicians need to do to make the DVD burner work

correctly.” Id. at 17.

      Similarly, in its third claim, the Commonwealth argues that Jones

does not apply where, as here, the defendant gave up his property rights.

Id. at 18. The Commonwealth also contends that the “plain view exception

applied to the police view of 19 seconds of the video Circuit City employees

observed.”    Id. at 19.   The Commonwealth argues that, based upon the

evidence, Sodomsky relinquished his property rights and any expectation of

privacy in the video clip used by Mr. Richert to test the DVD burner. Id.

      “The appellate standard of review of suppression rulings is well-

settled.   This Court is bound by those of the suppression court’s factual

findings which find support in the record, but we are not bound by the

court’s conclusions of law.” Commonwealth v. Millner, 888 A.2d 680, 685

(Pa. 2005); see also Commonwealth v. Booze, 953 A.2d 1263, 1269 (Pa.

Super. 2008) (stating that “[w]here the record supports findings of the




                                 - 10 -
J-S11045-15


suppression court, we are bound by those facts and may reverse only if the

legal conclusions drawn therefrom are in error.”) (citation omitted).

        Here, the suppression court granted Sodomsky’s suppression Motion,

explaining that

        [t]he Katz[6] test of reasonable expectation of privacy is never
        reached, just as it was never reached in Jones. This court is
        again constrained, this time under the Jones holding, to
        suppress the evidence that was obtained by the unauthorized
        trespass by the government….

Suppression Court Opinion, 4/25/14, at 4 (footnote omitted, footnote

added).7    The suppression court concluded that the search of Sodomsky’s

computer files, and the seizure of his computer, violated the Fourth

Amendment to the United States Constitution.       Id. at 3-4.   Upon careful

review, we are constrained to agree.

        The Fourth Amendment provides “[t]he right of people to be secure in

their persons, houses, papers and effects, against unreasonable searches

and seizures, shall not be violated.” U.S. CONST. amend. IV.8 A warrantless

search is per se unreasonable under the Fourth Amendment. Katz, 389 U.S.

at 357.

6
    See Katz v. United States, 389 U.S. 347, 361 (1967).
7
  The Commonwealth has not challenged Sodomsky’s ownership of the
desktop computer, or that Sodomsky was told to retrieve his computer one
hour after leaving it at Circuit City.
8
  This right is enforceable against the states as part of the due process
guarantee of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643,
655 (1961). Evidence obtained in violation of the constitutional protections
must be excluded. Id.


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J-S11045-15


      The Amendment establishes a simple baseline, one that for
      much of our history formed the exclusive basis for its
      protections: When “the Government obtains information by
      physically intruding” on persons, houses, papers, or effects, “a
      ‘search’ within the original meaning of the Fourth Amendment
      has “undoubtedly occurred.” [] Jones, 565 U.S. [] ___, 132 S.
      Ct. 945, [951 n.3,] 181 L. Ed. 2d 911, 919 [n.3] (2012). By
      reason of [the United States Supreme Court’s] decision in
      Katz[,] … property rights “are not the sole measure of Fourth
      Amendment violations,” Soldal v. Cook County, 506 U.S. 56,
      64, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992)[,] but though Katz
      may add to the baseline, it does not subtract anything from the
      Amendment’s protections “when the Government does engage in
      [a] physical intrusion of a constitutionally protected area[.]”
      United States v. Knotts, 460 U.S. 276, 286, 103 S. Ct. 1081,
      75 L. Ed. 2d 55 (1983) (Brennan, J., concurring in the
      judgment).

Florida v. Jardines, ___ U.S. ___, ___, 133 S. Ct. 1409, 1414 (2013)

(emphasis in original).

      The United States Supreme Court has long held that the Fourth

Amendment protects possessory and liberty interests, even when privacy

rights are not implicated. Soldal, 506 U.S. at 63-64. While Katz and its

progeny shifted the emphasis in Fourth Amendment law from property to

privacy, “[t]here was no suggestion that this shift in emphasis had snuffed

out the previously recognized protection for property under the Fourth

Amendment.” Id. at 64.

      In Jones, the United States Supreme Court addressed whether police

officers had engaged in a “search,” within the meaning of the Fourth

Amendment, when they installed and monitored a Global Positioning System

tracking device on a suspect’s car. Jones, 565 U.S. at ___, 132 S. Ct. at



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946.   In addressing this issue, the Supreme Court explained that “Fourth

Amendment rights do not rise or fall with the Katz formulation.”      Jones,

565 U.S. at ___, 132 S. Ct. at 950. Rather, the Supreme Court expressed

“a particular concern for government trespass upon the areas (‘persons,

houses, papers, and effects’) [the Fourth Amendment] enumerates.” Id. In

rediscovering the trespassory origins of the Fourth Amendment, the Jones

majority observed that the more recently adopted “reasonable-expectation-

of-privacy test has been added to, not substituted for, the common-law

trespassory test.”   Id., 565 U.S. at ___, 132 S. Ct. at 952.    Applying an

“exclusively property-based approach,” the Supreme Court held that a

search occurred when the government “physically occupied private property

for the purpose of obtaining information,” which “would have been

considered a ‘search’ within the meaning of the Fourth Amendment when it

was adopted.” Id., 565 U.S. at ___, 132 S. Ct. at 949-50 (citation omitted).

       In Jardines, the Supreme Court again applied a property-based

analysis of Fourth Amendment protections. The Supreme Court ruled that a

warrantless search of the curtilage of a house by a drug-sniffing dog violated

the Fourth Amendment, regardless of whether “the officers’ investigation of

[the defendant’s] home violated his expectation of privacy under Katz.”

Jardines, 133 S. Ct. at 1417.

       Applying this same property-based analysis, in Riley v. California,

___ U.S. ___, 134 S. Ct. 2473 (2014), the United States Supreme Court



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J-S11045-15


held that police may not, without a warrant, search digital information on a

cell phone seized incident to an arrest. Id. at 2480, 2495. In holding that

an unconstitutional search of the defendant’s papers and effects had

occurred, the Supreme Court emphasized the quantity and quality of

information stored on a cell phone:

     Although the data stored on a cell phone is distinguished from
     physical records by quantity alone, certain types of data are also
     qualitatively different. An Internet search and browsing history,
     for example, can be found on an Internet-enabled phone and
     could reveal an individual’s private interests or concerns—
     perhaps a search for certain symptoms of disease, coupled with
     frequent visits to WebMD. Data on a cell phone can also reveal
     where a person has been. Historic location information is a
     standard feature on many smart phones and can reconstruct
     someone’s specific movements down to the minute, not only
     around town but also within a particular building….

     Mobile application software on a cell phone, or “apps,” offer a
     range of tools for managing detailed information about all
     aspects of a person’s life. There are apps for Democratic Party
     news and Republican Party news; apps for alcohol, drug, and
     gambling addictions; apps for sharing prayer requests; apps for
     tracking pregnancy symptoms; apps for planning your budget;
     apps for every conceivable hobby or pastime; apps for improving
     your romantic life. There are popular apps for buying or selling
     just about anything, and the records of such transactions may be
     accessible on the phone indefinitely. There are over a million
     apps available in each of the two major app stores; the phrase
     “there’s an app for that” is now part of the popular lexicon. The
     average smart phone user has installed 33 apps, which together
     can form a revealing montage of the user’s life.

Id. 134 S. Ct. at 2490 (citations omitted). Ultimately, the Supreme Court

extended Fourth Amendment protections to the digital data stored on a cell

phone:




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     Our holding, of course, is not that the information on a cell
     phone is immune from search; it is instead that a warrant is
     generally required before such a search, even when a cell phone
     is seized incident to arrest.       Our cases have historically
     recognized that the warrant requirement is “an important
     working part of our machinery of government,” not merely “an
     inconvenience to be somehow ‘weighed’ against the claims of
     police efficiency.” Coolidge v. New Hampshire, 403 U.S. 443,
     481, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).                Recent
     technological advances similar to those discussed here have, in
     addition, made the process of obtaining a warrant itself more
     efficient. See [Missouri v.] McNeely, 569 U.S., at ___, 133 S.
     Ct. 1552[,] 1573, 185 L. Ed. 2d 696, 720 ); id., at ___ (Roberts,
     C. J., concurring in part and dissenting in part) (133 S. Ct. 1552;
     1573, 185 L. Ed. 2d 696, 720) (describing jurisdiction where
     “police officers can e-mail warrant requests to judges’ iPads
     [and] judges have signed such warrants and e-mailed them back
     to officers in less than 15 minutes”).

Riley, 134 S. Ct. at 2493.

     Here, the same quality and quantity of information found on a cell

phone also is digitally stored on a desktop computer. 9 For the same reasons

that the Riley Court considered it necessary to protect the digital data

stored on a cell phone, such protections naturally extend to the digital data

stored on a desktop computer.         Applying the property-based Fourth

Amendment analysis explained in Jones, and relied upon in Riley, we

conclude that the digital data stored on Sodomsky’s desktop computer is

subject to Fourth Amendment protections, regardless of his reasonable

expectation of privacy.      Under this rubric, we review the search of

Sodomsky’s computer.


9
  Similar to cell phones, desktop computers now have “apps,” store financial
records, and even may store a back-up of the data from a cell phone.


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      “[A] search warrant is required before police may conduct any search.”

Commonwealth v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013) (citation

omitted).   “Absent the application of one of a few clearly delineated

exceptions, a warrantless search or seizure is presumptively unreasonable.”

Id.   One of these exceptions is the “plain view” doctrine, upon which the

Commonwealth relies.

      The plain view doctrine permits the warrantless search and seizure of

an object when “(1) an officer views the object from a lawful vantage point;

(2) it is immediately apparent to him that the object is incriminating; and []

(3) the officer has a lawful right of access to the object.” Commonwealth

v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013). In determining whether

the incriminating nature of an object is “immediately apparent” to a police

officer, courts should evaluate the “totality of the circumstances.”      Id.

“Although courts have recognized that a police officer can never be certain

that an object in plain view is incriminating, the officer’s belief must be

supported by probable cause.” Id.

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

the Circuit City store and that Sodomsky’s computer was in plain view.

However, the record does not support a finding that the digital data forming

the basis of the charges against Sodomsky was in plain view, or that the

incriminating nature of Sodomsky’s computer was immediately apparent.




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      Our review of the record discloses that police officers were called to

the Circuit City store after Mr. Richert, a Circuit City employee, conducted a

search of video files on Sodomsky’s computer. N.T., 9/28/05, at 23-24, 26.

Upon arriving at the scene, Wyomissing Police Officer John Phillips (“Officer

Phillips”) asked Mr. Richert to describe what he had seen on Sodomsky’s

computer.   Id. at 42.   Upon the express direction of Officer Phillips, Mr.

Richert double-clicked on the file to open it, and then played the video file

for the officer. Id. at 38. The file was not visible on Sodomsky’s computer

until Officer Phillips directed Mr. Richert to open the video data file. Id. at

38, 42.

      Thus, the evidence, viewed in a light most favorable to Sodomsky,

established that the suspect video file was not in “plain view” when Officer

Phillips arrived at the scene, nor was its criminal nature readily apparent.

The incriminating nature of the video became apparent only after Officer

Phillips directed Mr. Richert to open and play the digital data file.       By

directing Mr. Richert to open and play the computer digital data file, Officer

Phillips effectuated a warrantless search of the digital data stored on

Sodomsky’s desktop computer.

      Under Jones and Riley, the warrantless search of Sodomsky’s digital

data files, stored on his desktop computer, violated Sodomsky’s Fourth

Amendment protections. Consequently, the officers’ subsequent seizure of

the computer, and additional searches conducted thereafter, were unlawful



                                 - 17 -
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as “fruits of the poisonous tree.”     See Wong Sun v. United States, 371

U.S. 471, 484-85 (1963) (recognizing that evidence discovered as a result of

a search in violation of the Fourth Amendment must be excluded from

evidence).

     Based upon the foregoing, we are constrained to affirm the Order of

the suppression court.

     Order affirmed.

     Panella, J., joins the opinion.

     Ott, J., files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/5/2015




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