J-A18016-17

                                2017 PA Super 391

COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                              :        PENNSYLVANIA
                                              :
               v.                             :
                                              :
                                              :
THOMAS EDWARD SPERBER, JR.                    :
                                              :
                    Appellant                 :   No. 707 WDA 2016

           Appeal from the Judgment of Sentence April 14, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0002947-2015


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

CONCURRING OPINION BY BOWES, J.:                      FILED DECEMBER 12, 2017

     I concur.      However, I would affirm on the basis that Appellant

consented to the search of his vehicle, which resulted in the seizure of a

smartphone. Next, I would hold that the warrantless search of Appellant’s

phone was lawful.     Finally, I would deem waived any claim respecting the

voluntariness of the consent.

     I begin with Appellant’s suppression motion, which asserted that the

“search   of    [Appellant]    and   his    vehicle   was   unlawful   because   an

uncorroborated anonymous tip cannot, on its own, form the basis for

reasonable suspicion.”        Motion to Suppress, 8/21/15, at unnumbered 3.

Appellant alleged that “The warrantless seizure and search of [Appellant]

and his vehicle was unlawful because it was unsupported by reasonable

suspicion.” Id. at unnumbered 4.           The motion additionally argued that the

subsequent search, arrest, and search warrant for the phone were fruits of
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the   tainted    search      and    seizure.      The    body     of    the   motion    cited

Commonwealth            v.     Colon,      31     A.3d     309         (Pa.Super.      2011);

Commonwealth v.              Kue,    692   A.2d    1076    (Pa.    1997)      (OAJC);    and

Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000) in support.

Appellant did not claim that his consent was involuntary.

       Those cases and their attendant principles are inapplicable to the

matter at hand with respect to the initial search of Appellant’s vehicle and

consequent seizure of Appellant’s smartphone. Colon involved the search of

a parolee that was not the product of consent.              Kue and Wimbush both

involved whether an anonymous tip was sufficiently reliable to support an

investigative detention.       Therefore, those cases would be relevant to our

analysis only if Agent Wolfe had engaged in a nonconsensual warrantless

search of Appellant’s vehicle or his person, based on the anonymous tips

plus any other factor or information.1 At that juncture, we would assess, as

____________________________________________


1
   Appellant presumably proceeded with suppression on that ground due to
the fact that the affidavit of probable cause does not discuss the
circumstances of the search. It reads, in pertinent part:

       On August 27, 2014, Agent Wolfe was made aware of an
       anonymous communication received by Pennsylvania State
       Police Megan's Law concerning the Actor. The anonymous source
       claimed that the Actor had Internet access and multiple social
       media accounts.

       On this same date (8/27/2014), the Actor reported to the PA
       State Parole's Pittsburgh district office for routine reporting.
       During a search of the Actor's vehicle, an LG MS232 Optimus
(Footnote Continued Next Page)


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the Majority does, whether the vehicular search was justified. 2   However,

since the record supports a finding that the search of Appellant’s vehicle,

which resulted in the seizure of the smartphone, was consensual, I would

uphold the vehicular search on that basis.



                       _______________________
(Footnote Continued)

      L70 Titan cellular phone (hereinafter referred to as "the Actor's
      phone") was confiscated. Agent Wolfe noted that several social
      networking applications appeared to be installed on the Actor's
      phone. Please note that based on state supervision, the Actor did
      not have permission to possess a phone with Internet
      capabilities.

Affidavit of Probable Cause at 3.
2
  My distinguished colleagues find that the anonymous tip was sufficiently
reliable to support the vehicular search. I am not convinced that their
analysis is correct. First, the record does not indicate whether the multiple
tips came from different sources, nor does it indicate whether such tips were
consistently delivered over a particular period of time. In any event,
accepting arguendo that the anonymous tips were reliable, the tips revealed
only that Appellant had a smartphone, not that the vehicle he drove to the
meeting contained said smartphone.           Perhaps that assumption was
reasonable; perhaps not. However, when Appellant disclosed the contents
of his pockets, Appellant possessed a basic cellphone that did not appear to
possess Internet capabilities.        Therefore, the anonymous tipsters’
information was arguably discredited, not corroborated.

Since the Majority fails to connect the reliability of the tip regarding
possession of a phone with the search of the car, the Majority implies that
the tips would permit Agent Wolfe to search Appellant’s home, person, car,
or any other possession in an effort to find the smartphone. Since parolees
have diminished Fourth Amendment rights, it may be that a search of the
vehicle Appellant used was reasonable. However, given the utter lack of
information regarding the anonymous information, to say nothing of how to
apply anonymous tipster principles in the context of a parolee search, we
need go no further than affirming the search based on consent.



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     I recognize that the consensual search herein occurred during a

scheduled, i.e. presumably mandatory, probation meeting.          That fact does

not automatically render voluntary consent impossible. Commonwealth v.

Strickler,    757   A.2d   884   (Pa.   2000),   a   consensual   search   case,

demonstrates the applicable principles. Therein, a police officer encountered

a vehicle parked on the side of the road. He approached the occupants, who

stated they had stopped to urinate. The officer asked to see their licenses,

conducted a license check, advised them not to urinate on someone else’s

property, and thanked Strickler, the driver, for his cooperation. Id. at 886.

The officer took a few steps toward his vehicle, but then turned around and

asked Strickler “if he wouldn’t mind if I took a look through [the] car.” Id.

at 887.      Strickler hesitated but agreed, and the search yielded drug

paraphernalia. The question was whether Strickler validly consented to the

search following the investigative detention. Id. at 888. Significantly, the

opinion concluded with an observation regarding the determination of

whether a seizure had occurred versus whether consent was voluntary.

     Since both the tests for voluntariness and for a seizure centrally
     entail an examination of the objective circumstances surrounding
     the police/citizen encounter to determine whether there was a
     show of authority that would impact upon a reasonable citizen-
     subject's perspective, there is a substantial, necessary overlap in
     the analyses. The reasons supporting the conclusion that
     Strickler was not seized at the time that he lent his consent to
     the vehicle search therefore also militate strongly in favor of a
     determination that his consent was voluntary.

Id. at 901–02.


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J-A18016-17


      Herein, Appellant alleges that “the interaction between [Appellant] and

Wolfe, his parole supervisor, is properly characterized as an investigative

detention.”   Appellant’s brief at 19.     Appellant then asserts that this

investigative detention was not supported by the anonymous tips. As stated

in Strickler, whether Appellant was seized overlaps to a great extent with

the question of whether his consent was voluntary. The record is unclear as

to the circumstances of Appellant’s interactions with Agent Wolfe, and we

therefore lack the basis to say whether Appellant’s consent was procured

during a seizure.    The lack of an evidentiary record on these issues is

chargeable to Appellant, as the issue of involuntary consent was raised for

the first time in his post-hearing brief as an alternative argument.

      In the alternative, should it be determined that Mr. Sperber
      consented to the search of his person and property, that consent
      was invalid. The totality of the circumstances indicate that the
      consent was lacking the crucial element of voluntariness. The
      consent was invalid and the warrantless search of Mr. Sperber's
      vehicle remains unlawful.

Post-Hearing Brief, 10/1/15, at 4. Since this claim was not pursued in the

written motion, nor raised during the suppression hearing, I would deem the

argument waived. See Pa.R.Crim.P. 581(D) (motion shall state grounds for

suppression); Commonwealth v. Dixon, 997 A.2d 368, 376 (Pa.Super.

2010) (en banc) (Commonwealth not required to present testimony

regarding how gun was recovered, since appellant only challenged the

legality of the seizure, not the manner of seizure).




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J-A18016-17


      Regarding waiver, I note that we recently issued an opinion in

Commonwealth v. Carper, --- A.3d ---, 2017 WL 4562730 (Pa.Super.

October 13, 2017), holding that a defendant validly preserved a suppression

issue based on an argument raised in a post-hearing brief. The defendant

therein was charged with DUI crimes and sought suppression of his blood

results based on Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), which

was decided following his arrest. In the defendant’s post-hearing brief, he

argued for the first time that, pursuant to Article I, Section 8 of the

Pennsylvania Constitution, the warrantless blood draw was not saved by

good faith reliance upon the law that existed at the time of the draw. We

held that the failure to raise that point of law in the written motion or at the

hearing did not result in waiver, observing:

      The requirement that a defendant raise the grounds for
      suppression in his or her suppression motion ensures that the
      Commonwealth is put on notice of what evidence it must
      produce at the suppression hearing in order to satisfy its burden
      of      proving       that     the     evidence    was     legally
      obtained. Cf. Commonwealth v. McDonald, 881 A.2d 858,
      860–861 (Pa. Super. 2005) (internal quotation marks and
      citation omitted) (“[W]hen a motion to suppress is not specific in
      asserting the evidence believed to have been unlawfully obtained
      and/or the basis for the unlawfulness, the defendant cannot
      complain if the Commonwealth fails to address the legality of the
      evidence the defendant wishes to contest.”). In this case, the
      Commonwealth extensively addressed the Article I, Section 8
      issue in its brief filed prior to the suppression hearing. It also
      addressed the Article I, Section 8 issue in its argument prior to
      the beginning of the suppression hearing. At the conclusion of
      the suppression hearing, the Commonwealth stated that it called
      a witness in order to prove that Appellee's consent was valid
      notwithstanding the partially inaccurate DL–26 warnings. This is
      the only additional evidence that the Commonwealth needed to

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J-A18016-17


       offer because of Appellee's Article I, Section 8 claim. Finally, the
       Commonwealth did not object to Appellee raising a Article I,
       Section 8 claim before the trial court. Thus, the Commonwealth
       was not unfairly prejudiced by Appellee's delay in raising his
       Article I, Section 8 claim.

Carper, 2017 WL 4562730 at *4.

       Carper did not deem the issue waived since the necessary facts were

developed at the hearing.         The same is not true here, as the evidentiary

record does not fully speak to the circumstances of Appellant’s encounter

with Agent Wolfe.        The Commonwealth cannot be blamed for failing to

anticipate and rebut Appellant’s alternative argument that consent was

involuntary. Therefore, Appellant’s post-hearing attempt to raise the issue

of voluntariness did not preserve the issue for our review.

       Next, I briefly address the separate search of the phone.       Appellant

argues that he did not consent to this separate search; instead, he simply

disclosed the password needed to access the phone at Agent Wolfe’s

request.3 I agree that the record does not support a finding that Appellant

consented to the search of his phone.            However, at this point in the

interaction, the anonymous tips were corroborated through discovery of the

phone, and the possession of the smartphone in itself was a parole



____________________________________________


3
  Appellant did not allege that the disclosure of the password was compelled
or otherwise unlawfully obtained.




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J-A18016-17


violation.4 I would therefore hold that the limited warrantless search of the

phone was justified due to corroboration of the tip, Appellant’s prior history,

and the need to ensure compliance with parole conditions.

       Finally, I address Packingham v. North Carolina, 137 S.Ct. 1730

(2017), wherein the United States Supreme Court held that a North Carolina

statute prohibiting sex offenders from accessing social networking websites

was unconstitutional. Packingham involved a First Amendment challenge

to a criminal statute that applied to all convicted sex offenders, regardless of

whether     they were      still serving an      actual sentence.   Language   in

Packingham suggests that an automatic flat prohibition on internet access

may be unduly restrictive of a sex offender’s First Amendment rights, and, in

turn, arguably unlawful as-applied to Appellant. However, at least one court

has suggested that Packingham would not prohibit a supervisory condition.

See United States v. Rock, 863 F.3d 827 (D.C. Cir. 2017) (declining to

find plain error in condition barring sex offender from possessing or using

any online service without prior approval; “Rock's condition is imposed as

part of his supervised-release sentence, and is not a post-custodial

restriction of the sort imposed [in Packingham].”).
____________________________________________


4
   Appellant’s fruit of the poisonous tree argument hinges on our agreement
that the earlier seizure of the phone was improper. Since I would hold that
Appellant consented to the search which resulted in that discovery, I would
find that neither the initial search of the phone nor the subsequent search
warrant was tainted by any illegality.




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J-A18016-17


     Additionally, Packingham did not speak to whether more specifically

tailored requirements would be permissible in general, and certainly did not

address whether such restrictions could be justified based on the specific

circumstances of individual sex offenders. Indeed, Justice Alito’s concurring

opinion, joined by Chief Justice Roberts and Justice Thomas, criticized the

breadth of the Court’s language.

     While I thus agree with the Court that the particular law at issue
     in this case violates the First Amendment, I am troubled by the
     Court's loose rhetoric. After noting that “a street or a park is a
     quintessential forum for the exercise of First Amendment rights,”
     the Court states that “cyberspace” and “social media in
     particular” are now “the most important places (in a spatial
     sense) for the exchange of views.” Ante, at 1735. The Court
     declines to explain what this means with respect to free speech
     law, and the Court holds no more than that the North Carolina
     law fails the test for content-neutral “time, place, and manner”
     restrictions. But if the entirety of the internet or even just “social
     media” sites are the 21st century equivalent of public streets
     and parks, then States may have little ability to restrict the sites
     that may be visited by even the most dangerous sex offenders.
     May a State preclude an adult previously convicted of molesting
     children from visiting a dating site for teenagers? Or a site where
     minors communicate with each other about personal problems?
     The Court should be more attentive to the implications of its
     rhetoric for, contrary to the Court's suggestion, there are
     important differences between cyberspace and the physical
     world.




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J-A18016-17


Id. at 1743 (Alito, J., concurring). Therefore, I agree with the Majority that

Packingham does not alter our analysis, and any issue regarding its

application was not preserved for review.5




____________________________________________


5
    The Majority states that Appellant could challenge the lawfulness of his
parole conditions in a PCRA petition filed at the underlying criminal docket. I
would refrain from opining on whether the PCRA would or could provide
relief pursuant to Packingham, especially insofar as Appellant would
presumably be seeking relief from continued obligations due to a change in
the law as opposed to challenging the conviction. See Commonwealth v.
Partee, 86 A3d 245 (Pa.Super. 2014) (motion to enforce plea agreement
does not fall under PCRA).



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