                               [J-107-2018][M.O. - Baer, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                    WESTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 16 WAP 2018
                                               :
                       Appellee                :   Appeal from the Order of the Superior
                                               :   Court entered 12/21/17 at No. 435 WDA
                                               :   2017, affirming the judgment of
                                               :   sentence of the Court of Common Pleas
                  v.                           :   of Butler County entered 3/9/17 at No.
                                               :   CP-10-CR-0000896-2016
JON ERIC SHAFFER,                              :
                                               :
                       Appellant               :   ARGUED: December 6, 2018




                                   DISSENTING OPINION


CHIEF JUSTICE SAYLOR                               DECIDED: JUNE 18, 2019


       On the issue of abandonment, I agree with those courts which have held that a

person does not abandon a reasonable expectation of privacy merely by turning a

computer over to a repairperson to restore its functionality. See, e.g, United States v.

Barth, 26 F. Supp. 2d 929, 936-37 (1998); State v. Cardwell, 778 S.E.2d 483, 488-89

(S.C. Ct. App. 2015), aff’d as modified, 824 S.E.2d 451 (S.C. 2019). For my part, in the

computer repair scenario, I am reluctant to find wholesale abandonment absent an

express admonition to the defendant that closed files may be opened and viewed non-

confidentially in the repair process.

       Substantively, my thoughts align more closely with the majority’s invocation of

the private-search doctrine, since the present circumstances “significantly lessened

[Appellant’s] reasonable expectation of privacy ‘by creating a risk of intrusion [by private
parties] which [was] reasonable foreseeable.” Id. (quoting United States v. Paige 136

F.3d 1012, 1017 (5th Cir. 1998)). Nevertheless, I agree with Justice Wecht that the

record has not been appropriately developed to allow for consideration of the

application of the doctrine in this case. See Concurring and Dissenting Opinion at 3-10.

       Finally, to the degree that the private search doctrine applies, it would seem to

me that it should only justify a viewing, by authorities, of files that already have been

opened in the course of the private search. Here, however, police proceeded to seize

Appellant’s laptop from its place of entrustment without a warrant.            See Majority

Opinion, slip op. at 4.     Other than relying on the concept of abandonment, the

Commonwealth fails to identify an applicable exception to the warrant requirement to

justify such seizure.1

       Concluding, as I do, that the case should turn on the abandonment question, and

that Appellant did not completely abandon his expectation of privacy in closed computer

files stored on his hard disk, I would reverse the order the Superior Court.



       Justice Donohue joins this dissenting opinion.


1 As Justice Wecht has amply demonstrated, many of the conceptual difficulties here
arise from the shifting focus, at the present stage, from abandonment to the private
search doctrine. See, e.g. Concurring and Dissenting Opinion at 3 (“Shaffer had no
reason to anticipate or rebut any argument that Officer Maloney’s warrantless inquiry
into the files on his computer was permissible as an extension of CompuGig’s private
search.”). In these circumstances, I respectfully differ with the majority’s approach in
faulting Appellant for failing to previously anticipate concerns and considerations
relevant to the private search doctrine. See Majority Opinion, slip op. at 5 n.6.

Closer consideration of exceptions to the warrant requirement other than abandonment
might be in order, had this case been developed by the Commonwealth so as to bring
such exceptions into play in a timely fashion. Again, the Commonwealth does bear a
substantial burden relative to warrantless seizures at a suppression hearing. See, e.g.,
In re L.J., 622 Pa. 126, 146, 79 A.3d 1073, 1085 (2013).


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