J-S22012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS K. ZDRAHAL

                            Appellant                No. 1031 WDA 2014


            Appeal from the Judgment of Sentence October 19, 2011
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001826-2010


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JUNE 15, 2015

        Appellant, Thomas K. Zdrahal, appeals from the judgment of sentence

entered October 19, 2011, by the Honorable Richard Mancini, Court of

Common Pleas of Beaver County. We affirm.

        We take the underlying facts in this matter from the suppression

court’s May 13, 2011 opinion denying Appellant’s suppression motion.     On

November 8, 2008, New Brighton Police Officer Scott Sullivan conducted a

routine traffic stop. During the stop, the motorist offered to assist law

enforcement by acting as an informant and purchasing narcotics.          The

informant exchanged text messages with Appellant and made arrangements

to purchase Oxycodone at a parking lot in New Brighton.       New Brighton

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Police Officer Ronald Hogue and several nearby police officers observed the

transaction.    After purchasing the narcotics, the informant signaled to the

police, who stopped Appellant’s vehicle. A search incident to Appellant’s

arrest     revealed   narcotics,    paraphernalia,   money   received   from   the

informant, and an Apple iPhone cellular telephone.

         On November 10, 2008, Officer Sullivan obtained a search warrant for

the Apple iPhone in order to uncover information regarding drug activity.

While executing the search warrant, officers discovered pictures of what

appeared to be minors in various stages of undress.                 The officers

immediately discontinued the search and obtained a second search warrant.

A search conducted by Pennsylvania State Police pursuant to that second

warrant disclosed several images of child pornography on Appellant’s iPhone.

         Prior to trial, Appellant filed a Motion to Suppress Evidence, in which

he alleged that the search warrant was overbroad and unsupported by

probable cause.         Following a hearing, the suppression court denied

Appellant’s motion.      Following a non-jury trial, Appellant was convicted of

seven counts of Possession of Child Pornography.1 The trial court sentenced

Appellant to a term of six months to two years’ imprisonment, to be followed

by three years’ probation. Although Appellant did not immediately pursue a

direct appeal, he subsequently sought reinstatement of his direct appeal


____________________________________________


1
    18 Pa.C.S. § 6312(d)(1).



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rights nunc pro tunc, which the lower court granted.         This timely appeal

followed.

      On appeal, Appellant raises the following issue for our review:

      Is the warrant at issue unconstitutional due to overbreadth [sic]
      in that the warrant authorizes the search of a cell phone and
      includes “[a]ny and all data stored with the phone’s memory
      and/or other data storage devices contained in the device … and
      all digital images(s) [sic] or photographs stored within the
      aforementioned device,[”] many of which are unrelated to the
      crime under investigation?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      We review the denial of a motion to suppress physical evidence as

follows.

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

           Further, [i]t is within the suppression court’s sole province
           as factfinder to pass on the credibility of witnesses and the
           weight to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

      The suppression court’s factual findings are supported by the record.

We therefore proceed to examine the propriety of the suppression court’s

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legal conclusions.    Appellant asserts that the original search warrant

authorizing the search of his cell phone was constitutionally overbroad in

that it “seeks to seize and search items that have no evidence of being

involved in criminal conduct.” Appellant’s Brief at 14.

            A search warrant cannot be used as a general
      investigatory tool to uncover evidence of a crime. In re Casale,
      512 Pa. 548, 517 A.2d 1260, 1263 (1986); Commonwealth ex
      rel. Ensor v. Cummings, 416 Pa. 510, 207 A.2d 230, 231
      (1965). Nor may a warrant be so ambiguous as to allow the
      executing officers to pick and choose among an individual's
      possessions to find which items to seize, which would result in
      the general “rummaging” banned by the Fourth Amendment.
      See Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d
      24 (1982) (quoting Marron v. United States, 275 U.S. 192,
      195, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). Thus, Pa.R.Crim.P. 205
      specifies the necessary components of a valid search warrant.
      The comment to Rule 205 provides, however, that even though
      general or exploratory searches are not permitted, 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.”
      Pa.R.Crim.P. 205 (cmt.). Embracing this approach, we have held
      that “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.”
      Commonwealth v. Matthews, 446 Pa. 65, 85 A.2d 510
      (1971).

            A warrant is defective when its explanatory narrative does
      not describe as clearly as possible those items for which there is
      probable cause to search. Grossman, 521 Pa. 290, 555 A.2d
      896. In assessing the validity of a description contained in a
      warrant, a court must initially determine for what items there
      was probable cause to search. Id. at 900. “The sufficiency of
      the description [in the warrant] must then be measured against
      those items for which there was probable cause. Any
      unreasonable discrepancy between the items for which there was
      probable cause [to search] and the description in the warrant
      requires suppression.” Id.

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Commonwealth v. Rega, 933 A.2d 997, 1011-1012 (Pa. 2007).

       We note at the outset that Appellant does not allege on appeal that

the search warrant was invalid because it was issued without probable

cause.2     We must therefore measure the description contained in the

warrant.     See Rega, 933 A.2d at 2012.              The original search warrant

obtained by police described the items to be searched for and seized as:

       One Apple [iPhone] (cellular phone) with the assigned phone
       number of 724.581.1770. Any and all data stored with the
       phone’s memory and/or other data storage devices contained
       with in [sic] the device, including but not limited to incoming
       calls, missed calls, outgoing calls, all text messages and/or
       instant messages, contact/phonebook information, E-mail(s) and
       any and all digital image(s) or photographs stored within the
       aforementioned device.

Application for Search Warrant and Authorization, 11/10/08.3 The affidavit

in support of the application for the warrant provided that the CI “contacted

Thomas Zdrahal at cellular phone number 724.581.1770,” and that a cellular

phone connected to this phone number was recovered from Appellant’s

person following the completed drug transaction.              Id. The affidavit further

stated    that   Appellant    acknowledged       possession    of   the   iPhone,   thus
____________________________________________


2
 Although Appellant initially raised this argument in his suppression motion,
he does not do so in this appeal.
3
  We note that although a copy of the search warrant has not been made
part of the certified record, and is contained only in Appellant’s reproduced
record, the accuracy of the reproduction has not been disputed. Therefore,
we may consider the copy of the warrant contained in the reproduced
record. See Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa.
2012).



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confirming that the phone was utilized to communicate with the CI to

arrange the drug transaction. Id. The affidavit concluded with a statement

of the affiant’s belief that the iPhone “contains evidence relating to the illegal

distribution, sale and delivery of controlled substances.” Id.

      There is a dearth of Pennsylvania state case law regarding the search

and seizure of digital evidence. This is not so at the federal level, where this

area has been written about extensively. The United States Supreme Court

has recognized that modern cell phones contain an immense storage

capacity, equivalent to that of a personal computer.              See Riley v.

California, --- U.S. ---, ---, 134 S.Ct. 2473, 2489 (2014).        “In reality, a

modern cell phone is a computer[.]” United States v. Wurie, 728 F.3d 1,

8 (1st Cir. 2013) (citation and internal quotation marks omitted). “Federal

courts … have rejected most particularity challenges to warrants authorizing

the seizure and search of entire personal or business computers, because

criminals can—and often do—hide, mislabel, or manipulate files to conceal

criminal activity [such that] a broad, expansive search of the [computer]

may be required.”      United States v. Bass, --- F.3d ---, ---, 2015 WL

1727290 at *4 (6th Cir. 2015, filed April 15, 2015) (internal quotes and

citations omitted).   “By necessity, government efforts to locate particular

files will require examining a great many other files to exclude the possibility

that the sought-after data are concealed there.”             United States v.

Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010)

(en banc) (per curiam).

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     For example, in United States v. Stabile, 633 F.3d 219 (3d Cir.

2011), the defendant argued that the search of his computer hard drives

was overbroad because the drives contained “personal emails and other

information not related to [the] financial crimes” the defendant was

suspected of committing.    Id. at 233. The Third Circuit upheld the search

and seizure, reasoning that the broad scope “was required because evidence

of financial crimes could have been found in any location on any of the six

hard drives, and this evidence very likely would have been disguised or

concealed somewhere on the hard drive.”        Id. at 234.     In so holding the

Third Circuit recognized that, “as a practical matter, when a search requires

review of a large collection of items, ... ‘it is certain that some innocuous

[items] will be examined, at least cursorily, in order to determine whether

they are, in fact, among those [items] authorized to be seized.’”              Id.

(quoting Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976)).

     Instantly, the affidavit attached to the November 10, 2008, search

warrant   provided   probable   cause   that   evidence   of   criminal   activity,

specifically pertaining to “the illegal distribution, sale and delivery of

controlled substances,” would be found on Appellant’s iPhone. At the time of

the seizure, however, the officers could not have reasonably known precisely

where this information was located in the phone and in what format.

Therefore, the breadth of the search warrant was necessary and reasonable

due to the digital storage capacity of the electronic device to be searched at

that time.   Of course, once the officers discovered evidence of suspected

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child pornography, they ceased the search and immediately obtained a more

specific warrant aimed at uncovering evidence pertaining thereto. Appellant

does not challenge the validity of that second warrant.

     Based on the foregoing, we find no error in the suppression court’s

denial of Appellant’s suppression motion. Accordingly, we affirm Appellant’s

judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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