J-A06008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LUIS ENRIQUE SOTO                        :
                                          :
                    Appellant             :   No. 793 MDA 2018

           Appeal from the Judgment of Sentence April 13, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0001464-2017


BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.

DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019

      Because the Affidavit of Probable Cause (Affidavit) did not give the

magistrate a substantial basis to issue a search warrant, I would hold that the

trial court erred in denying Soto’s motion to suppress.         Accordingly, I

respectfully dissent on that ground.

      As the majority correctly recounts, the Affidavit provides that the

investigation of Soto began when Detective Gregory Wahl (the Affiant)

identified Soto’s IP address on a BitTorrent peer-to-peer file sharing network.

Affidavit of Probable Cause, 1/30/2017, at ¶ 27.         The IP address was

associated with “a file of investigative interest to child pornography

investigations.” Id.

      The Affiant then downloaded 50 files from that IP address, 29 of which

reportedly “depicted child pornography as defined by [18 Pa.C.S. § 6312].”


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* Retired Senior Judge assigned to the Superior Court.
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Id. at ¶ 28. After listing the titles of those 29 images, the Affiant averred:

“The above files were mostly of teenage girls in a shower or bath naked and

were ‘LS Models.’ The rest of the images your Affiant would label as erotica.”

Id. at ¶ 29. The police obtained a search warrant and recovered material on

Soto’s cell phone alleged to be child pornography.

      Soto filed a suppression motion contending the Affidavit did not contain

information that would form a substantial basis to find probable cause because

paragraph 29 fails to allege a violation of Section 6312. He contends now that

the Affidavit does not set forth probable cause because that provision does

not criminalize all visual depictions of nude children but only those under the

age of 18, “if such nudity is depicted for the purpose of sexual stimulation or

gratification of any person who might view such a depiction.” Soto’s Brief, at

26. He also asserts that the Affidavit’s reference to “teenagers” could include

those who are aged 18 or 19, and possession of such images is not prohibited

by the statute, even if the nudity is for the purpose of sexual stimulation. Id.

      Despite finding that the Affiant’s description of the pornographic images

“could have been more detailed,” the majority nevertheless holds that the

description, coupled with the Affiant’s conclusion that the images constituted

child pornography, were sufficient for the magistrate to determine there was

a fair probability that evidence of a crime would be found at Soto’s home. As

to Soto’s claim that the Affiant only described the images as those of

“teenagers,” not a person under 18 years of age, the majority opines that this


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is a sufficiency of the evidence issue for the jury to decide rather than a legal

question regarding the validity of the search warrant.

      I disagree with the majority because the Affidavit does not set forth

facts that would give a magistrate a substantial basis to find probable cause

that Soto possessed child pornography.          In making a probable cause

determination, the magistrate is confined to the four corners of the affidavit.

See Pa.R.Crim.P. 203(B). No other evidence may be considered. See id. On

review of a search warrant, we only consider whether the facts outlined by

the affiant provided the magistrate with “a substantial basis” to conclude that

probable cause existed for the warrant’s issuance.         Commonwealth v.

Johnson, 42 A.3d 1017, 1031 (Pa. 2012).

      In this case, the facts contained within the four corners of the Affidavit

do not support the Affiant’s conclusion of illegality. The Affiant stated that

Soto possessed “child pornography” in the form of 29 separate images. The

Affiant then vaguely described all of those materials in a single phrase, writing

that they depicted “teenage girls in a shower or bath naked.” Nothing in the

affidavit suggests that the images were intended for an illicit purpose. See

United States v. Cochran, 806 F. Supp. 560, 564 (E.D. Pa. 1992) (“[§ 6312]




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does not prohibit all visual depictions of nude children. In fact, such a law

would not pass muster under the First Amendment.”).1

       All the images that the Affiant described are legal to possess because

they do not fall within the statutory definition of child pornography.2         The

Affiant’s description of “teenage girls” does not specify that the individuals in

the photos were below the age of 18. The description of those individuals

being “in a shower or bath naked” does not specify that they engaged in a

“prohibited sexual act.” No other facts contained within the Affidavit were




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1      Clearly, depictions of children involving nudity alone fall outside
       the category of “sexual conduct” which may be proscribed. Any
       other interpretation would permit an absurd result.          Family
       photographs of children in the bathtub could be criminalized. The
       police could seize anatomy textbooks used by medical students
       which contain depictions of nude children or works of art in
       museums, including the many depictions of the Madonna and
       Child.

United States v. Cochran, 806 F. Supp. 560, 564 (E.D. Pa. 1992).

2 “Child Pornography” is defined as “any book, magazine, pamphlet, slide,
photograph, film, videotape, computer depiction or other material depicting a
child under the age of 18 years engaged in a prohibited sexual act or in the
simulation of such act.” 18 Pa.C.S. § 6312(d). “Prohibited sexual act” is
defined as “sexual intercourse . . . , masturbation, sadism, masochism,
bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such
nudity is depicted for the purpose of sexual stimulation or gratification of any
person who might view that depiction.” Id. at § 6312(g) (emphasis added).




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germane as to whether a search of Soto’s cell phone would turn up a crime or

evidence of a crime.3

       Copies of the images were not attached to the Affidavit, so the

magistrate in this case did not personally view them. It is not required in all

such cases for the magistrate to do so,4 but with only a description of legal

material, the magistrate’s probable cause determination could have only been

based on the Affiant’s opinion that the images were illegal. Federal courts

have held that a search warrant is deficient under these circumstances.5 See

e.g., United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006)

(government conceded that the affiant’s description of a photograph – “a

young female (8–10 YOA) naked in a bathtub” – was insufficient to establish

probable cause as a matter of law); United States v. Brunette, 256 F.3d

14, 15 (1st Cir. 2001) (“Because neither the magistrate judge nor the district

court judge independently viewed the images—which were not made part of


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3In the same sentence, the Affiant referenced “LS Models,” but nothing in the
Affidavit explained what that term meant.

4 “[T]he rule is clear: there is no requirement that an official reviewing an
affidavit to search and seize child pornography see the actual images,
provided the description of the image in the affidavit itself, along with any
other relevant information, set forth the requisite probable cause.” United
States v. Wagner, 2015 WL 3627007, at *5 (E.D. Tenn. June 9, 2015).

5In the absence of precedential Pennsylvania cases addressing an issue, out-
of-state decisions are not binding but may be considered as persuasive
authority. See Bochetto v. Piper Aircraft Co., 94 A.3d 1044, 1050 (Pa.
Super. 2014).


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the record on appeal—and because the affidavit did not adequately describe

them, we conclude that the warrant was not supported by probable cause.”);

United States v. Doyle, 650 F.3d 460, 471-72 (4th. Cir. 2011) (no probable

cause that defendant possessed child pornography where affidavit described

defendant’s sexual assault and recounted allegation that he had “pictures of

nude children.”).

       Those cases are consistent with the well-established principle that a

magistrate must exercise independent judgment when making a probable

cause determination and may not simply adopt the affiant’s conclusions. See

Illinois v. Gates, 462 U.S. 213, 239 (1983) (“a mere conclusory statement”

in an affidavit “that gives the magistrate virtually no basis at all for making a

judgment regarding probable cause” does not suffice); United States v.

Pavulak, 700 F.3d 651, 661 (3rd Cir. 2012) (“Presented with just the label

‘child pornography,’ the most the magistrate could infer was that the affiant

concluded that the images constituted child pornography”); United States v.

Wagner, 2015 WL 3627007, at *5 (E.D. Tenn. June 9, 2015) (holding that

affiant’s legal conclusion and sparse description of images depicting naked

children were insufficient for probable cause).6



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6 In its opinion, the trial court in this case failed to draw a logical connection
between the possession of the legal images described in the Affidavit and the
probability that Soto possessed child pornography. The trial court’s analysis
started and ended with the Affiant’s all too brief description of the 29 images
enumerated in the Affidavit. See Trial Court Opinion, 7/10/2018, at 16.

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       By not viewing the subject images and relying on a description of lawful

material, the magistrate in this case necessarily adopted the Affiant’s opinion

that Soto possessed child pornography.           The Affidavit did not provide a

substantial basis for probable cause, and the magistrate did not exercise

independent judgment.7         In the absence of a valid warrant supported by

probable cause, the search of Soto’s cell phone was unlawful. To remedy the

erroneous denial of Soto’s motion to suppress the fruits of that search, I would

vacate the judgment of sentence and order a new trial.



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7 The Concurrence dismisses the Dissent as “hypertechnical” when the Dissent
merely follows several federal cases that find analogous descriptions of
electronic images to be insufficient for a warrant. Without addressing those
cases, the Concurrence finds probable cause here because Detective Yarnell,
who obtained the warrant, had experience and training in seeking out child
pornographers, so when he said the subject images were child pornography,
they must be child pornography. This is circular reasoning because it equates
the mere search for contraband with evidence to that effect; that is, an act is
more likely to be a crime if a trained officer was looking for crime when the
act was observed. Under the Concurrence’s view, for example, an affidavit
would be sufficient if it states that a person possessed LSD by accepting
delivery from UPS of 1000 pills of acetylsalicylic acid (aspirin), as long as the
affiant is an experienced narcotics detective who says the pills are LSD.

The Concurrence does not correctly apply the constitutional standards that
guide our review – whether or not the magistrate can make an independent
judgment in determining probable cause based on the information within the
four corners of the affidavit. In our well-settled probable cause analysis, the
Affiant’s experience and training are irrelevant if he could not at least apply
that background to explain how a crime was committed. Further, the
Concurrence goes beyond the Affidavit to suggest that files shared on
BitTorrent are inherently illicit when, in fact, the P2P network is a content-
neutral system that is just as likely to be used for legal purposes. Probable
cause had to be set forth in the Affidavit in this case and, for the reasons set
forth above, it was not.

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     Accordingly, I respectfully dissent.




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