J-A29016-18

                                   2019 PA Super 153

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VINCENT KANE                               :
                                               :
                       Appellant               :   No. 864 EDA 2018

           Appeal from the Judgment of Sentence February 16, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000702-2017


BEFORE:      OTT, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.:                                      FILED MAY 09, 2019

       Appellant, Vincent Kane, appeals from the Judgment of Sentence of

twenty to sixty months’ incarceration following his non-jury conviction for

Invasion of Privacy, Possession of Child Pornography, and Criminal Use of

Communication Facilities.1 Appellant challenges the denial of his Motion to

Suppress evidence derived from the warrantless search of his abandoned cell

phone and the search of the external hard drive of his computer pursuant to

a search warrant. After careful review, we affirm.

       The relevant factual and procedural history, as gleaned from the

certified record, are as follows. On September 22, 2016, a female student at

Villanova University discovered a smart cell phone 2 in the co-ed dormitory

____________________________________________


118 Pa.C.S. §§ 7507.1(a)(1), 6312(d), and 7512(a), respectively.
2A smart cell phone, or “smartphone,” is “a cell phone with a broad range of
other functions based on advanced computing capability, large storage
capacity, and Internet connectivity.” Commonwealth v. Fulton, 179 A.3d
475, 479 n.5 (Pa. 2018) (citation omitted).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A29016-18



bathroom. The cell phone was behind a “wet floor” sign, and was actively

video recording the toilet area. The camera captured the activities of men

and women using the toilet. The student took the cell phone to the Villanova

University Police, who turned the cell phone over to the Delaware County

Criminal Investigation Division (“CID”).

      CID Detective Edmond Pisani, a computer forensic examiner assigned

to the Internet Crimes Against Children Task Force, consulted with the

Delaware County District Attorney’s Office and declined to obtain a search

warrant for the cell phone after a Deputy District Attorney advised him that

he should consider the cell phone to be abandoned.           Detective Pisani

proceeded to conduct a forensic examination of the cell phone and identified

Appellant as the owner of the cell phone after viewing several videos of

Appellant setting up the video camera function on the cell phone to record.

Detective Pisani recovered videos of Villanova students in the bathroom,

“upskirt” videos taken at a C.V.S. store where Appellant worked, and videos

of students secretly recorded at Cardinal O’Hara School, where Appellant had

attended high school the year before.

      On September 27, 2017, Detective Pisani, CID Detective John Hoffner,

and Villanova Police Chief David Tedjeske located Appellant in a classroom and

asked to speak with him. Appellant agreed, and all four men walked to a

smaller, unlocked room next to the classroom. Appellant agreed to have his

interview recorded. Detective Hoffner told Appellant that he was not under

arrest and he was free to leave at any time. Upon questioning, Appellant

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disclosed that he downloaded videos from his cell phone to a home desktop

computer, which was located in Broomall, Pennsylvania, where he lived with

his mother.   Appellant signed a written consent to search both his laptop

computer and his home desktop computer; officers seized the desktop

computer and, during a search, discovered that an external hard drive had

recently been connected to the computer.

     On September 28, 2016, pursuant to a search warrant, Detective Pisani

seized and searched the external hard drive for videos of people in bathrooms

and invasion of privacy. Detective Pisani discovered child pornography on the

external hard drive and suspended his search. On October 4, 2016, Detective

Pisani obtained a second warrant to search for images of child pornography

on the external hard drive.   Detective Pisani recovered numerous images

evidencing Invasion of Privacy and Possession of Child Pornography.

     On October 26, 2016, Appellant was charged with twenty-five counts of

Invasion of Privacy, twenty counts of Possession of Child Pornography, and

four counts of Criminal Use of a Communication Facility. On March 23, 2017,

Appellant filed an Omnibus Pre-Trial Motion, including a Motion to Suppress

Physical Evidence.    Specifically, Appellant moved to suppress evidence

obtained from the cell phone, arguing that the police conducted an illegal

warrantless cell phone search. He also sought to suppress evidence obtained

from the external hard drive, arguing that the October 4, 2016 search warrant

was flawed.    On May 12, 2017, after a hearing, the trial court denied

Appellant’s Motion to Suppress evidence derived from the cell phone after

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concluding that Appellant voluntarily abandoned his cell phone and therefore

had no reasonable expectation of privacy. See Order, 5/12/17, at 5-6. On

the same day, the trial court denied Appellant’s Motion to Suppress evidence

derived from the external hard drive, finding that the search was authorized

by a warrant. See id. at 8.

       On November 28, 2017, trial commenced and Appellant chose to waive

his right to a jury trial. In exchange, the Commonwealth agreed to proceed

on only four counts of Invasion of Privacy, three counts of Possessing Child

Pornography, and two counts of Criminal Use of a Communications Facility.3

The parties entered stipulations regarding the Appellant’s identity and the

Commonwealth’s evidence.

       On December 4, 2017, the trial court found Appellant guilty of all counts.

On February 16, 2018, the trial court imposed an aggregate sentence of

twenty to sixty months’ incarceration followed by eight years of probation.

       Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

        I.     Whether the trial court erred when it denied the Motion to
               Suppress evidence derived directly or indirectly from a
               warrantless cell phone search in violation of Article I,
               Section 8 of the Pennsylvania Constitution and the Fourth
               Amendment to the Constitution of the United States?

        II.    Whether the trial court erred when it denied the Motion to
               Suppress evidence derived directly or indirectly from the
____________________________________________


3   The Commonwealth withdrew the remaining charges.

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             search of an external hard drive pursuant to an overbroad
             warrant?

Appellant’s Brief at 2.

      Once a defendant files a motion to suppress evidence, it is the

Commonwealth's burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant's

rights.   Commonwealth v. Wallace, 42 A.3d 1040, 1047–48 (Pa. 2012)

(citing Pa.R.Crim.P. 581(H)). When this Court reviews a ruling on a motion

to suppress, our standard of review is well settled:       we are bound by the

suppression court’s factual findings that are supported by the record but we

review its legal conclusions de novo. Commonwealth v. Cooley, 118 A.3d

370, 373 (Pa. 2015). “Our scope of review is limited to the record developed

at the suppression hearing, considering the evidence presented by the

Commonwealth as the prevailing party and any uncontradicted evidence

presented by [the defendant].” Commonwealth v. Fulton, 179 A.3d 475,

487 (Pa. 2018) (citation omitted).

Warrantless Search of Cell Phone

      In his first issue, Appellant avers that the court erred when it denied the

Motion to Suppress evidence derived directly or indirectly from a warrantless

search of his cell phone. Appellant’s Brief at 10. Appellant avers that the

warrantless search violated his constitutional rights under Article I, Section 8

of the Pennsylvania Constitution and the Fourth Amendment of the United

States Constitution.      Id. at 2.   Appellant argues that the trial court erred



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pursuant to the Pennsylvania Supreme Court’s decision in Fulton, 179 A.3d

at 479, which held that “accessing any information from a cell phone without

a warrant contravenes the United States Supreme Court's decision in Riley v.

California and United States v. Wurie, [573 U.S. 373 (2014)] (hereinafter,

“Riley/Wurie”).” See Appellant’s Brief at 13. Appellant contends that he

did not abandon the cell phone because he intended to come back to the cell

phone and retrieve the video, and that, nevertheless, “the privacy interest is

in the cell phone, not in the location or the use of the cell phone.” Id. at 20,

22. In response, the Commonwealth asserts that Appellant “had no objective

expectation of privacy in the cell phone which society would recognize when

he left it turned on and recording in a public bathroom[.]” Commonwealth’s

Brief at 7. We agree.

      Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution “guarantee individuals

freedom from unreasonable searches and seizures.”         Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa. Super. 2008) (citation omitted).             In

Pennsylvania, a defendant charged with a possessory offense has “automatic

standing” to pursue a suppression motion under Rule 581. Commonwealth

v. Enimpah, 106 A.3d 695, 698 (Pa. 2014). However, in addition to standing,

“a defendant must show that he had a privacy interest in the place invaded or

thing seized that society is prepared to recognize as reasonable.” Id. “The

expectation of privacy is an inquiry into the validity of the search or seizure




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itself; if the defendant has no protected privacy interest, neither the Fourth

Amendment nor Article I, § 8 is implicated.” Id. at 699.

      This Court has found that an expectation of privacy will exist when the

individual exhibits an actual or subjective expectation of privacy and that

expectation    is   one     that   society   is   prepared   to   recognize   as

reasonable.    Commonwealth v. Jones, 874 A.2d 108, 118 (Pa. Super.

2005). In determining whether a person's expectation of privacy is legitimate

or reasonable, we must consider the totality of the circumstances and the

determination “ultimately rests upon a balancing of the societal interests

involved.”    Commonwealth v. Peterson, 636 A.2d 615, 619 (Pa. 1993)

(citations omitted). “The constitutional legitimacy of an expectation of privacy

is not dependent on the subjective intent of the individual asserting the right

but on whether the expectation is reasonable in light of all the surrounding

circumstances.” Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super.

2005) (citation omitted).

      Generally, the Fourth Amendment requires that law officers obtain a

warrant before they intrude into a place of privacy; however, an exception to

the warrant requirement exists when the property seized has been

abandoned.     Commonwealth v. Clark, 746 A.2d 1128, 1133 (Pa. Super.

2000). “[T]o prevail on a suppression motion, a defendant must demonstrate

a legitimate expectation of privacy in the area searched or effects seized, and

such expectation cannot be established where a defendant has meaningfully

abdicated his control, ownership or possessory interest.” Commonwealth v.

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Dowds, 761 A.2d 1125, 1131 (Pa. 2000). Simply put, “no one has standing

to complain of a search or seizure of property that he has voluntarily

abandoned.” Commonwealth v. Shoatz, 366 A.2d 1216, 1220 (Pa. 1976).

      Our Supreme Court has explained, “abandonment of a privacy interest

is primarily a question of intent and may be inferred from words spoken, acts

done, and other objective facts.” Dowds, 761 A.2d at 1131. “All relevant

circumstances existing at the time of the alleged abandonment should be

considered.” Shoatz, 366 A.2d at 1220. “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.

      In this case, the trial court concluded that Appellant “relinquished his

expectation of privacy in his cell phone when [he] voluntarily left it operating

as a recorder in the dormitory bathroom.” Trial Court Opinion, dated 4/20/18,

at 15. The trial court made the following factual findings:

      The totality of the circumstances upon which this conclusion is
      based follow. [Appellant] intentionally and volitionally left his cell
      phone unattended, powered on and recording in a dormitory
      bathroom. The bathroom was open and available to residents and
      visitors in the dorm. Any one of the many people who used that
      bathroom had access to the cell[]phone and its contents.
      Although he may have attempted to hide the cell phone behind a
      “wet floor” sign, in view of the circumstances his feeble attempt
      to obscure the cell phone may be viewed simply as a means to
      surreptitiously record his victims as opposed to demonstrating an


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J-A29016-18


      expectation of privacy in his property. [Appellant] used the
      recording capability of the phone to capture images of unknowing
      victims who were using the toilet. Defendant did not live in the
      dormitory. He lived with his mother at their home in Broomall.
      There is nothing in the record that indicates that the cell[]phone
      was lost or stolen. In fact, the only reasonable inference that can
      be drawn from the facts of record is that [Appellant] placed and
      then left his cell phone recording others in a bathroom that was
      accessible to anyone who happened to use the bathroom.
      Detective Pisani examined the phone, determined the identity of
      the owner and confirmed that it was recording the bathroom
      activities of the students. While [Appellant] may have intended
      to retrieve his cell[]phone/recording device later, this fact does
      not alter our conclusion. The [Appellant] intentionally left his cell
      phone open and accessible to others in a public area.

Id. at 16-17.

      In light of the trial court’s findings of fact, which the record supports,

we discern no error of law in the trial court’s conclusion that when Appellant

intentionally and voluntarily left his cell phone in a public bathroom he did not

have a reasonable expectation of privacy in his cell phone. Once Appellant

voluntarily abandoned his cell phone in a public bathroom, he abandoned any

legitimate expectation of privacy in its contents.     Likewise, he abandoned

standing to complain of a search or seizure of that cell phone. See Schoatz,

366 A.2d at 1219-20. Accordingly, under the facts and circumstances of this

case, the trial court did not err when it concluded that Appellant did not have

a reasonable expectation of privacy and denied Appellant’s Motion to Suppress

the warrantless search of his cell phone. Cf. Commonwealth v. Sodomsky,

939 A.2d 363, 369 (Pa. Super. 2007) (reversing the suppression of child

pornography found on a personal computer when the defendant left his



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computer at a store for repairs, concluding that he “knowingly exposed the

contents of his computer to the public and [] lost any reasonable expectation

of privacy in those contents”).

      Appellant argues that the trial court erred pursuant to the United States

Supreme Court decision in Riley/Wurie, and the Pennsylvania Supreme

Court’s subsequent decision in Fulton. Because Appellant abandoned his cell

phone, and therefore his expectation of privacy, both Riley/Wurie and

Fulton are easily distinguishable from the instant case.

      Here, police conducted a warrantless search of a cell phone that

Appellant voluntarily abandoned, while it was turned on and recording, in a

public bathroom. However, in Riley/Wurie, police conducted a warrantless

search of a cell phone that was not abandoned by its owner, but rather

seized directly from its owner incident to arrest. See Riley/Wurie, 573 U.S.

at 378-380. Likewise, in Fulton, police conducted a warrantless search of a

cell phone that was not abandoned by its owner, but rather seized from a

car – pursuant to a warrant to search the car – after police arrested its owner

while he was sitting in that car. See Fulton, 179 A.3d at 479-480.

      While Appellant argues that the holding in Fulton applies to warrantless

searches of all cell phones, we decline to conclude that Fulton stands for the

overbroad and sweeping proposition that police must get a warrant to search

a cell phone, even if it has been abandoned, when the facts of the case and

our case law pertaining to abandoned property do not support that




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proposition.   See Commonwealth v. Resto, 179 A.3d 18, 22 (Pa. 2018)

(“the holding of a judicial decision is to be read against its facts”).

      Moreover, as the trial court observed, the “holdings in [Riley/Wurie]

and Fulton, supra, do not relieve a defendant of the burden of demonstrating

a reasonable expectation of privacy on a cell phone that is searched.” Trial

Court Opinion, dated 4/20/18, at 15. Under the facts and circumstances of

this case where Appellant abandoned his cell phone, which was turned on and

recording, in a public bathroom, we conclude that the trial court did not err in

denying Appellant’s Motion to Suppress.

Search of External Hard Drive

      In his second issue, Appellant avers that the trial court erred when it

denied the Motion to Suppress evidence derived directly or indirectly from the

search of an external hard drive pursuant to an overbroad warrant.

Appellant’s Brief at 25. Appellant argues that the court erred in granting the

search warrant because the application sought a search of the entire external

hard drive without any limitations on the dates of the files requested, even

though the application lists the date of the violation as September 28, 2016.

See id. at 26.

      “It is a fundamental rule of law that a warrant must name or describe

with particularity the property to be seized and the person or place to be

searched[;]” this particularity requirement prohibits both a warrant that is not

particular enough and a warrant that is overbroad.           Commonwealth v.

Dougalewicz, 113 A.3d 817, 827 (Pa. Super. 2015) (citation omitted). A

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warrant that is not particular enough “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[,]” resulting in “the

general ‘rummaging’ banned by the Fourth Amendment.” Id. An overbroad

warrant “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[,]” and “is unconstitutional because it authorizes a general

search and seizure.” Id.

      However, search warrants should “be read in a common sense fashion

and should not be invalidated by hypertechnical interpretations. This may

mean, for instance, that when an exact description of a particular item is not

possible, a generic description will suffice.” Commonwealth v. Rega, 933

A.2d 997, 1012 (Pa. 2007) (quoting Pa.R.Crim.P. 205 cmt.).       Accordingly,

“where the items to be seized are as precisely identified as the nature of the

activity permits . . . the searching officer is only required to describe the

general class of the item he is seeking.” Id. (citation omitted). Importantly,

“[b]ecause the particularity requirement in Article I, Section 8 is more

stringent than in the Fourth Amendment, if the warrant is satisfactory under

the Pennsylvania Constitution it will also be satisfactory under the federal

Constitution.”   Commonwealth v. Orie, 88 A.3d 983, 1003 (Pa. Super.

2014).

      Instantly, the trial court opined:




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      The search warrant authorizes the search of a particular external
      hard drive that is identified by serial number. The search
      authorized is for files containing child pornography. The probable
      cause set forth in the affidavit describes the investigation and the
      facts that lead to the conclusion that there was a fair probability
      that child pornography would be found on the external hard drive
      given the fact that links to the hard drive and evidence of
      contraband files were found on the home desktop [computer].
      Read in a common sense manner, the search authorized is specific
      and supported by probable cause to believe that files containing
      child pornography would be found on the external hard drive.

Trial Court Opinion, dated 4/20/18 at 22. Our review of the record supports

the trial court’s findings and we find no error of law.

Conclusion

      Because Appellant abandoned his cell phone, which was turned on and

recording, in a public bathroom, the trial court properly applied relevant case

law and did not err in concluding that Appellant did not have a reasonable

expectation of privacy in its contents. In addition, our review of the record

reveals that the search warrant authorizing the search of Appellant’s external

hard drive was not overbroad. The record supports the trial court’s findings,

and the trial court did not err in denying Appellant’s Motion to Suppress

evidence derived from Appellant’s cell phone and external hard drive.

      Judgment of Sentence affirmed.




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J-A29016-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/19




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