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 April 25, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001025-2005


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

DISSENTING OPINION BY OTT, J.:                         FILED JUNE 05, 2015

        I must respectfully dissent for two reasons.    First, I conclude the

suppression court abused its discretion when it re-opened Sodomsky’s

suppression hearing.

        Pennsylvania Rule of Criminal Procedure 581 “is designed to provide

one single procedure for the suppression of evidence alleged to have been

obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581, Comment.

However, the Rule permits the filing of a supplemental motion when “the

opportunity did not previously exist, or the interests of justice otherwise

require[.]” Pa.R.Crim.P. 581(B).

        In December of 2013, after this Court reversed the trial court’s

second order suppressing the evidence recovered from Sodomsky’s

computer, and both the Pennsylvania Supreme Court and the United States

Supreme Court declined to accept his appeal for the second time, Sodomsky

petitioned the trial court to re-open his suppression hearing for a third

time.     He asserted that the United States Supreme Court’s decision in
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Jones, supra, constituted a “clear change of law[.]”         Petition to Re-Open

Suppression Hearing Based on Intervening Change in Law, 12/16/2013, at

4, 5. The trial court agreed, and concluded:

      Jones may not be entirely new law, but it reaffirmed that the
      government’s physical intrusion on [Sodomsky’s] “effect” for the
      purpose of obtaining information constitutes a “search” and that
      this type of encroachment on an area enumerated in the Fourth
      Amendment would have been considered a search within the
      meaning of the Amendment at the time it was adopted. [Jones]
      is new law in the sense that the expectation of privacy standard
      is no longer the exclusive test to determine if a search violates
      the Fourth Amendment. Thus, this approach is the equivalent to
      new law because it had not been applied since the expectation of
      privacy standard was enunciated in Katz v. United States, 389
      U.S. 347 (1967) and was not applied or addressed by the
      Superior Court in the case sub judice.
Trial Court Opinion, 7/29/2014, at 4.

      On appeal, the Commonwealth argued Jones was decided before this

Court’s prior decision, and, therefore, impliedly rejected by this Court. The

Majority determined (1) the suppression court did not have the opportunity

to apply Jones since it was decided after the appeal was filed from the

second suppression order, and (2) this Court was not barred by the “law of

the case” doctrine from applying Jones since it represented “an intervening

change of law.”     Majority Memorandum at 9.          While I agree with the

Majority’s first conclusion, I take issue with its second.

      In my view, Jones did not involve an intervening change in the law

that would justify the re-opening of Sodomsky’s suppression hearing.

Rather, the Jones Court, in determining the government’s warrantless

attachment of a GPS device to the defendant’s vehicle and subsequent use

of that device to monitor the vehicle’s movement, constituted a search under



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the Fourth Amendment, reaffirmed the Fourth Amendment’s continued

long standing protection of a person’s “effects.”1

       Preliminarily, I note that the facts in Jones are not analogous to

those presented in the case sub judice.          In Jones, “[t]he Government

physically occupied private property” by installing a GPS device on the

defendant’s vehicle for the explicit purpose of monitoring the vehicle’s

movements. Jones, supra, 132 S.Ct. at 949. Here, conversely, the police

viewed Sodomsky’s computer files, after Sodomsky left his computer at a

Circuit City store for service (abandoning his privacy interests in the

property for a limited time) and, during the course of that service visit, a

clerk happened upon the files in question.       Although the police eventually

seized Sodomsky’s computer, it was only after they had probable cause to

do so upon viewing the pornographic video clip.

       Furthermore, the Jones Court clearly explained that it was not

creating new law. Rather, the Court stated: “We have no doubt that such a
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1
  The Jones decision was authored by Justice Scalia, joined by Chief Justice
Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor. Justice
Sotomayor also authored a concurring opinion in which she expressed
concern with the current state of the law concerning the reasonable
expectation of privacy in our digital information society. However, she noted
“[r]esolution of these difficult questions in this case is unnecessary …
because the Government’s physical intrusion on Jones’ Jeep supplies a
narrower basis for decision.”       Jones, 132 S.Ct. 957 (J. Sotomayor,
concurring). Finally, Justice Alito, joined by Justices Ginsburg, Breyer and
Kagan, concurred in the judgment. Justice Alito opined that the decision
should be based upon whether the defendant’s “reasonable expectations of
privacy were violated by the long-term monitoring of the movements of the
vehicle he drove.” Id. at 958 (J. Alito, concurring in judgment).




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physical intrusion[, as occurred here,] would have been considered a ‘search’

within the meaning of the Fourth Amendment when it was adopted.” Jones,

supra, 132 S.Ct. at 949.         Although the Court recognized that after its

decision in Katz, the focus of Fourth Amendment jurisprudence shifted to a

defendant’s reasonable expectation of privacy, it explained that Katz “did

not narrow the Fourth’s Amendment’s scope.” Id. at 951. Rather, the Katz

decision expanded Fourth Amendment protections without “withdraw[ing]

any of the protection which the Amendment extends to the home.”                  Id.,

quoting Alderman v. United States, 394 U.S. 165, 180 (1969).

      The Jones Court relied upon the Supreme Court’s decision in Soldal

v. Cook County, 506 U.S. 56 (1992), in which the Court “unanimously

rejected the argument that although a seizure had occurred in a technical

sense when a trailer home was forcibly removed, no Fourth Amendment

violation   occurred   because    law   enforcement    had     not   invade[d]   the

[individuals’]   privacy.”   Jones,     supra,   132   S.Ct.    at   951   (internal

punctuation omitted), citing Soldal, supra. In distinguishing Katz and its

progeny, the Soldal Court opined:

      [T]he message of those cases is that property rights are not
      the sole measure of Fourth Amendment violations. …
      There was no suggestion that this shift in emphasis [from the
      protection of property to the protection of privacy privacy] had
      snuffed out the previously recognized protection for property
      under the Fourth Amendment. Katz, in declaring violative of the
      Fourth Amendment the unwarranted overhearing of a telephone
      booth conversation, effectively ended any lingering notions that
      the protection of privacy depended on trespass into a protected
      area. In the course of its decision, the Katz Court stated that
      the Fourth Amendment can neither be translated into a provision
      dealing with constitutionally protected areas nor into a general
      constitutional right to privacy. The Amendment, the Court said,
      protects individual privacy against certain kinds of governmental

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       intrusion, “but its protections go further, and often have
       nothing to do with privacy at all.” 389 U.S., at 350, 88 S.Ct.,
       at 510.

Soldal, supra, 506 U.S. at 64 (emphasis supplied).

       Accordingly, since I find Jones did not constitute an intervening

change in the law, I would conclude the trial court abused its discretion in

re-opening Sodomsky’s suppression hearing.2

       Second, I find that the Majority disregarded this Court’s prior decision

when it engaged in a plain view analysis.

       It   is   axiomatic   that    “[t]he    Fourth   Amendment   prohibits   only

unreasonable searches” and seizures. Grady v. North Carolina, 135 S.

____________________________________________


2
   I recognize that Rule 581 permits a defendant to file a supplemental
suppression motion when “the opportunity did not previously exist or the
interests of justice otherwise require.”      Pa.R.Crim.P. 581(B) (emphasis
supplied). However, traditionally, Pennsylvania courts have applied the
“interests of justice” exception “to excuse a party’s tardy presentation of a
suppression motion.” Commonwealth v. Johonoson, 844 A.2d 556, 561
(2004) (emphasis supplied), appeal denied, 863 A.2d 1144 (Pa. 2004). See
id. (finding no abuse of discretion on the part of the trial court in denying
tardy supplemental suppression motion when defendant knew facts
surrounding the stop at time he filed his first motion; in initial motion he
argued his statement to trooper was not voluntary, but in supplemental
motion he claimed entire encounter was an illegal investigative detention).
But see Commonwealth v. Long, 753 A.2d 272 (finding trial court did not
abuse its discretion in considering defendant’s untimely, oral, supplemental
suppression motion presented at the close of the Commonwealth’s case
because motion challenged legitimacy of traffic stop based on videotape
from inside police cruiser, and videotape was not shown to the defense until
the first day of trial). Here, Sodomsky did not seek to file a “tardy”
suppression motion because he uncovered new evidence, rather he sought
to file a supplemental motion based upon an intervening change in the law.
Because I conclude the Jones decision did not create “new law,” I would
also find the “interests of justice” do not require re-opening his suppression
hearing.



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Ct. 1368, 1371 (U.S. 2015) (emphasis supplied).        Therefore, even if the

search and seizure of Sodomsky’s computer implicated Fourth Amendment

protection under Jones, it would not justify suppression of the evidence

unless the actions of the government were unreasonable. Moreover, while

the Majority correctly states that “a warrantless search or seizure is

presumptively unreasonable[,]” it recognizes that there are a few “clearly

delineated exceptions” to the warrant requirement, namely, the “plain view”

doctrine.     Majority   Memorandum    at   16   (emphasis   supplied),   citing

Commownealth v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013), appeal

denied, 87 A.3d 320 (Pa. 2014).

      However, the Majority then concludes that the plain view exception is

not applicable in the present case because “the suspect video file was not in

‘plain view’ when Officer Phillips arrived at the scene, nor was its criminal

nature readily apparent.” Id. at 17. In doing so, the Majority ignores the

fact that a panel of this Court, in the appeal from the first order suppressing

the evidence in this case, determined that the plain view exception to the

warrant requirement applied under the facts of this case.      In the original

Sodomsky appeal, this Court stated:

      In the present case, police did not violate the Fourth Amendment
      in arriving next to the computer. Circuit City, which owned the
      premises, had granted them permission to enter the repair area
      though their on-site employees. Accord McCullum, [602 A.2d
      313 (Pa. 1992)] (where police had permission of tenant to be in
      apartment, they had lawful vantage point from which to view
      incriminating evidence); cf. Commonwealth v. English, 839
      A.2d 1136 (Pa. Super.2003) (police had plain view of marijuana
      growing on defendant’s porch but violated Fourth Amendment by
      entering onto premises without warrant, consent, or exigent
      circumstances; plain view doctrine therefore did not apply). The



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       videos were not obscured in that they could be seen readily from
       that location.

       We also conclude that the incriminating nature of the video files
       was immediately apparent. [Sodomsky] suggests that it was
       unclear whether the videos depicted child pornography because
       police could not ascertain the age of the naked male, whose face
       was not revealed, from the portion of the video that they
       viewed. We disagree. [Sodomsky] ignores the titles assigned to
       the videos on his computer. Mr. Richert stated that the titles
       listed a masculine name, an age of either thirteen years old or
       fourteen years, and “different types of sexual acts.” N.T.
       Suppression Hearing, 9/28/05, at 24. The video titles, together
       with the clip of a naked male with a hand reaching for the penis,
       made it “readily apparent” that the videos were of illegal child
       pornography. Finally, police had the lawful right to access the
       videos because, as analyzed extensively above, [Sodomsky] had
       abandoned any reasonable expectation of privacy in them.
Commonwealth v. Sodomsky, 939 A.2d 363, 370 (Pa. Super. 2007).

       Under the “law of the case” doctrine, and based on this Court’s prior

decision, I would decline to revisit the applicability of the plain view doctrine

in this appeal. See Commonwealth v. McCandless, 880 A.2d 1262, 1268

(Pa. Super. 2005) (“The doctrine of ‘the law of the case’ is that, when an

appellate court has considered and decided a question submitted to it upon

appeal, it will not, upon a subsequent appeal on another phase of the case,

reverse its previous ruling even though convinced it was erroneous.”),

appeal dismissed as improvidently granted, 933 A.2d 650 (Pa. 2007).3
____________________________________________


3
  I recognize there are exceptions to the applicability of the law of the case
doctrine, such as, where there is “an intervening change in the law, a
substantial change in the facts, or if the prior ruling was ‘clearly erroneous’
and ‘would create a manifest injustice if followed.’” McCandless, supra,
880 A.2d at 1268 (citation omitted). However, none of those exceptions are
applicable here. It is important to note that the Jones decision, while
opining that a search of a person’s “effects” may violate the Fourth
(Footnote Continued Next Page)


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      Therefore, because I conclude the trial court abused its discretion in

re-opening Sodomsky’s suppression hearing, I am compelled to dissent.




                       _______________________
(Footnote Continued)

Amendment even though the person may have no reasonable expectation of
privacy in that “effect,” did not consider whether the “search” of Jones’s car
was “reasonable” because the issue was waived by the Commonwealth.
Jones, supra, 132 S.Ct. at 954. Therefore, even if I found the Jones
decision to be applicable and relevant, it would not necessarily compel a
different result under the facts of this case.




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