J-A32002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    IAN CHRISTOPHER ANDERSON                   :   No. 392 MDA 2017

                Appeal from the Order Entered February 28, 2017
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004278-2016,
               CP-67-CR-0004279-2016, CP-67-CR-0004280-2016


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 29, 2017

        The Commonwealth of Pennsylvania appeals from the order entered on

February 28, 2017, in the Court of Common Pleas of York County, granting,

in part, Ian Christopher Anderson’s motion to suppress evidence and

dismissing several charges lodged against Anderson.1            The Commonwealth

argues the trial court erred in 1) analyzing the suppression issue under the 5th

Amendment rather than the 4th Amendment, and 2) dismissing several of the

charges.2 After a thorough review of the certified record, relevant law, and

submission by the Commonwealth3, we reverse the order of February 28,
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   The Commonwealth has filed the appropriate Pa.R.A.P. 311(d) certification.

2   The trial court has agreed that the charges should be reinstated.

3   Anderson did not file an Appellee’s Brief in this matter.
J-A32002-17



2017, to allow the trial court to analyze the suppression issue under the 4 th

Amendment rather than the 5th Amendment and to reinstate the charges.

        We briefly relate the relevant underlying facts of this matter. On July

9, 2014, Probation Officers Christian Deardoff and Dana Flay conducted an

unannounced home visit at Anderson’s residence. Anderson was serving a

sentence of probation having been convicted in February, 2014, of a charge

of possession of drug paraphernalia. Anderson led the Officers to his bedroom

on the second floor of the residence. The Officers saw, in plain view, a knife,

a digital scale and a gun.4 All of these items were contraband pursuant to the

terms of Anderson’s probation. The Officers also saw a lockbox, which they

described as being similar to a safety deposit box. They asked Anderson to

open the box, believing it might contain further incriminating evidence. The

box was locked, Anderson did not possess the key (or at least did not have

the key in his immediate possession), and was forced to pry the box open with

a screwdriver. Inside the box were more drug paraphernalia, a small amount

of what was believed to be marijuana residue and computer discs, similar to

CDs or DVDs.        Anderson was handcuffed, and the Officers, believing the

computer discs might have more evidence of drug use contained thereon,

requested to view the discs on Anderson’s computer.           They asked for

Anderson’s computer password, which he provided. They viewed the discs,

the first one containing nude images of Anderson’s girlfriend. The second disc

____________________________________________


4   The Officers determined the gun, a shotgun rifle, was loaded.

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contained nude images of Anderson’s girlfriend’s minor daughter.                At that

point, Anderson was placed under arrest and given his Miranda5 warnings.

The search was terminated and the police were called.

        Anderson filed a motion to suppress the evidence obtained during the

search.         The trial court determined that Anderson should have been

Mirandized after the Officers found the computer discs.                 The trial court

reasoned that all evidence obtained thereafter, essentially the suspected child

pornography, was obtained in violation of Anderson’s 5th Amendment rights

against self-incrimination and was suppressed. The trial court also dismissed

all charges associated with that evidence.

        The Commonwealth now appeals and argues the trial court improperly

based     its    decision   to   suppress      the   evidence   upon   5th   Amendment

considerations, whereas suppressions issues are properly determined by 4th

Amendment analysis. We agree that the trial court erroneously considered

the 5th Amendment in deciding the instant issue.                See Pennsylvania v.

Muniz, 496 U.S. 582, 589-90 (1990) (5th Amendment does not protect a

suspect from producing real or physical evidence); Commonwealth v.

Benson, 421 A.2d 383, 387 (Pa. Super. 1980) (4th Amendment applies to

physical evidence, 5th Amendment applies to testimonial or communicative

evidence).       Accordingly, we are compelled to reverse the order granting


____________________________________________


5   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).



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J-A32002-17



suppression and dismissing the charges.6, 7 We remand the matter to allow

the trial court to analyze the issue pursuant to 4th Amendment considerations.8

       Order reversed. Case remanded for action consistent with this decision.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




____________________________________________


6 Specifically, counts 2-11 at docket number CP-67-CR-4278-2016, and all
counts at docket numbers CP-67-CR-4279-20116 and CP-67-CR-4280-2016.

7 Because of our resolution of the suppression issue, and the fact the trial
court agreed it had mistakenly dismissed the charges, we need not specifically
address this issue.

8Consideration of 42 Pa.C.S. § 9912, and case law applying that section, such
as Commonwealth v. Arter, 151 A.3d 149 (Pa. 2016), Commonwealth v.
Williams, 692 A.2d 1031 (Pa. 1997), and Commonwealth v. Parker, 152
A.3d 309 (Pa. Super. 2016) may also be relevant.

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