Commonwealth v. Wright

J-A04037-14

2014 PA Super 189

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOSHUA THOMAS WRIGHT

Appellee No. 825 WDA 2013

Appeal from the Order entered April 16, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0010466-2012

BEFORE: BOWES, WECHT, AND STABILE, JJ.

OPINION BY STABILE, J.: FILED AUGUST 29, 2014

Appellant, the Commonwealth of Pennsylvania, appeals from the trial

asks us to decide whether the trial court erred in suppressing a cell phone

that police seized pursuant to the plain view doctrine. We affirm.

The trial court recited the pertinent facts and procedural history in its

Pa.R.A.P. 1925(a) opinion:

On July 2, 2012, [Appellee, Joshua Thomas

criminal homicide, one count of burglary, and one

count of possession of a prohibited firearm stemming

-girlfriend and mother of his

paramour. [Appellee] filed a motion to suppress on

January 25, 2013, and a suppression hearing was

held on April 5, 2013. On April 16, 2013, this [c]ourt

2013, the Commonwealth filed a Motion to

J-A04037-14

Reconsider, which was denied via Order of Court

dated May 13, 2013. On May 15, 2013, the

Commonwealth filed the instant appeal.

***

The following are the facts as found by this

[c]ourt during the Suppression Hearing: The

shooting deaths of Gibson and Black were brought to

the attention of the Wilkinsburg Police Department

home at the time of the incident. Clark relayed a

few different versions of the events of the night in

question, however ultimately she convinced the

officers to enter and search the premises, where

they discovered the bodies of Gibson and Black in an

and identification of [Appellee] as the shooter, an

arrest warrant for [Appellee] was issued. The police

executed the arrest warrant at approximately 2:20

Upon arrest, [Appellee] was found in bed

wearing only a pair of underwear. [Appellee] was

then handcuffed, and, given his state of undress, the

arresting police officers assisted him in getting

clothed. They chose and placed upon him a pair of

khaki shorts. The two officers testified that they had

the shorts after they were placed upon him, and as

such, the cellular telephone was seized incident to

arrest. The [c]ourt did not find as credible testimony

that the officers gave a double homicide suspect an

article of clothing to wear with something as weighty

as a cell phone in the pockets. This action would be

contrary to the safety of the officers, as the clothing

could have contained a gun or other small weapon,

who was present during the arrest testified that the

of the

testimony. Based upon the testimony presented at

the suppression hearing, this [c]ourt concluded that

-2-

J-A04037-14

the cellular telephone was situated on the nightstand

next to the bed, and not seized incident to arrest or

the seizure was impermissible.

Trial Court Opinion, 8/26/13, at 1-3 (record citations omitted). Appellee

stands accused of two counts of criminal homicide (18 Pa.C.S.A. § 2501(a)),

one count of burglary (18 Pa.C.S.A. § 3502), and one count of persons not

to possess a firearm (18 Pa.C.S.A. § 6501(a)(1)).

As set forth above, the Commonwealth filed a timely appeal from the

1

trial cour The Commonwealth raises a single issue for

____________________________________________

1

The Commonwealth relies on Rule 311(d) of the Pennsylvania Rules of

Appellate Procedure, which provides as follows:

(d) Commonwealth appeals in criminal

cases. In a criminal case, under the circumstances

provided by law, the Commonwealth may take an

appeal as of right from an order that does not end

the entire case where the Commonwealth certifies in

the notice of appeal that the order will terminate or

substantially handicap the prosecution.

certification implicates our jurisdiction to entertain this appeal.

Commonwealth v. White, 910 A.2d 648, 653 (Pa. 2006).

Wh

is entitled to some deference, this Court need not accept its good faith

certification in every case. In White, for example, an evenly divided

Supreme Court could not agree whether an order denying a recusal motion

motion was not appealable pursuant to Rule 311(d). In Commonwealth v.

Cosneck, 836 A.2d 871, 876 (Pa. 2003), the Supreme Court ruled that the

Commonwealth could not rely on Rule 311(d) to appeal from a pretrial

motion in limine admitting defense evidence. Nonetheless, where the

(Footnote Continued Next Page)

-3-

J-A04037-14

suppress his cellphone and its contents based on an allegedly unlawful

rief at 4.

We review the trial order according to the following standard:

When the Commonwealth appeals from a

suppression order, we . . . consider only the

with the evidence of the prosecution that, when read

in the context of the entire record, remains

uncontradicted. The suppr

fact bind an appellate court if the record supports

of law, however, are not binding on an appellate

court, whose duty is to determine if the suppression

court properly applied the law to the facts.

Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013).

phone. Therefore, the sole issue before us is whether the plain view

_______________________

(Footnote Continued)

defendant prevails in a pretrial motion to suppress Commonwealth evidence,

hen a pretrial motion removes

whether that evidence substantially handicaps his ability to prove every

Id. at 875 (citing Commonwealth v.

Dugger, 486 A.2d 382, 386 (Pa. 1985)). In the instant matter, therefore,

we have jurisdiction to entertain this appeal pursuant to the

-4-

J-A04037-14

conclude that it did not.2

In general, the Fourth Amendment of the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution do not permit police

to search for or seize property absent a lawfully obtained search warrant.

Commonwealth v. Anderson, 40 A.3d 1245, 1249 (Pa. Super. 2012),

appeal denied, 51 A.3d 837 (Pa. 2012). The plain view doctrine permits a

warrantless seizure if each of the following conditions applies:

1) police did not violate the Fourth Amendment

during the course of their arrival at the location

where they viewed the item in question; 2) the item

was not obscured and could be seen plainly from

that location; 3) the incriminating nature of the item

was readily apparent; and 4) police had the lawful

right to access the item.

Id.

The parties do not now dispute that the police were lawfully present in

____________________________________________

2

In his brief, Wright asserts the Commonwealth waived this issue. We

incident to arrest. In response to the tri

the Commonwealth filed a motion for reconsideration asserting the police

properly seized the cell phone pursuant to the plain view doctrine. The trial

court addressed this issue on the merits in its Pa.R.A.P. 1925(a) opinion.

Raising the issue in a motion for reconsideration was sufficient to preserve

the issue for appellate review. Commonwealth v. McCandless, 880 A.2d

1262, 1268-69 (Pa. Super. 2005), appeal dismissed, 933 A.2d 650 (Pa.

2007); Commonwealth v. Santiago, 822 A.2d 716, 723 (Pa. Super.

2003), appeal denied, 843 A.2d 1237 (Pa. 2004).

-5-

J-A04037-14

trial court found that the Commonwealth failed to establish that the

Trial Court Opinion, 8/26/13, at 4. A police officer has probable cause to

the facts available to the

items may be contraband or stolen property or useful as evidence of a

crime Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super.

1997) (emphasis in original). The probable cause standard does not require

Id.

In Commonwealth v. Ellis, 662 A.2d 1043, 1050 (Pa. 1995), a police

testified that the screwdriver was capable of making the pry marks the

officer observed at the scene of the crime. Id. In addition, an eyewitness

Id. The Supreme

Court concluded that the circumstances were sufficient to lead a person of

reasonable caution to believe that the screwdriver was incriminating

evidence. Id. Likewise, in Commonwealth v. Jones, 988 A.2d 649, 652

(Pa. 2010), the Supreme Court held police properly seized a cell phone

because police knew the victim had a cell phone with him on the night of his

murder and because police observed a blood-stained cell phone in plain view

-6-

J-A04037-14

The Commonwealth relies on McEnany, in which police found a cell

McEnany, 667 A.2d at 1147. The accused argued that the warrant was not

sufficiently specific to justify the seizure of his cell phone. Id. at 1148. The

Commonwealth argued, and this Court agreed, that police lawfully seized the

cell phone pursuant to the plain view doctrine. Id. Police were aware that

murder. Id. More importantly, police were aware that the accused made a

Id. Based on

these facts, the McEnany Court concluded that police were justified in

seizing a cell phone in plain view during their execution of the search

warrant. Id.

To summarize, in Ellis, Jones, and McEnany, police had specific

evidence tying the seized object to the crime under investigation. We do not

believe the analysis in any of these cases warrants reversal in the instant

case. Here, unlike McEnany, police had no evidence of a specific phone

call. This case is unlike Jones in that the physical condition of the cell

phone did not link it to the crime under investigation, as did the blood-

stained phone in Jones

that Jones and McEnany are indistinguishable from the instant matter.

See Dissenting Opinion, at 10. The distinction between those cases and this

one is that the police officers in Jones and McEnany relied on articulable

-7-

J-A04037-14

facts in support of their suspicion that the cell phone contained incriminating

evidence, whereas here, the police relied on pure conjecture.

Detective Anthony Perry testified as follows:

have crucial pieces of evidence for our case to assist

our case [sic]. I took the phone with the intention of

either myself or somebody in our office obtaining a

search warrant to get the information or any

potential evidence off the phone.

N.T., 4/5/13, at 11-12. Perry testified that he was aware that Appellee and

the female victim had a prior romantic relationship, and he suspected that

he would find communication between the two shortly prior to the murder.

Id. at 12-13.

As is evident from the foregoing, Perry did not articulate any specific

basis for his suspicion. Appellee and the victim had a romantic relationship

at one point, but that relationship was over, and Perry did not explain why

the past relationship supported his suspicion that Appellee and the victim

had any contact on the day of the murder. Likewise, we believe the learned

relationship with the victim. See Dissenting Opinion at 8-9. In McEnany,

on the other hand, police had specific information that the accused phoned

the victim on the day in question. Similarly, in Ellis, the police officer

offered facts to support his belief that the screwdriver was used in the crime

under investigation. Perry offered only generalized speculation in support of

-8-

J-A04037-14

seizure. See Commonwealth v. Holmes, 14 A.3d 89, 96-97 n.16 (Pa.

2011) (a police officer must rely on articulable facts to justify a seizure);

Commonwealth v. Parker

the probable cause standard is flexible, mere suspicion is not a substitute for

probable cause as

that cell phones often have crucial evidence would support seizure of a cell

phone under virtually any circumstance.

battery from the cell phone supports a different result in this case. In his

affidavit of probable cause to search the cell phone, Detective Kenneth

Ruckel stated criminal suspects commonly remove batteries from cell phones

in order to avoid GPS detection. Affidavit of Probable Cause, 7/3/12, at 3.3

According to the suppression hearing transcript, the battery was removed

-83.

In these facts, we discern no basis for a seizure of the phone to search

its digital contents. The scope of a search is limited by the basis for its

authorization. See, e.g., 619 A.2d at 740 (Pa. Super. 1993). The same

holds true for searches for digital evidence. For example, this Court in

____________________________________________

3

or lack thereof to

suppressed the phone based on its conclusion that police unlawfully seized

it, and therefore the trial court had no occasion to address the propriety of

-9-

J-A04037-14

Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014) held several

an email account without narrowing the search to files relevant to the

alleged criminal activity. Id. at 1002-104

conduct simply by introducing testimony that the phone was in pieces and

that its physical condition evinced evasive conduct. We do not believe the

digital contents of the cell phone are relevant to that point. Said another

way, the physical condition of the phone in this case does not justify a

conclusion that its contents could be incriminating. As we noted above, the

instant facts are quite distinct from those of Jones, where police found a

blood-

July 3, 2012 affidavit of probable cause which is not at issue in this case

we believe misses the mark.5

____________________________________________

4

The Orie Court noted that the law concerning search and seizure of digital

information remains under development in Pennsylvania. Id. at 1009 n.43.

5

L

Riley v. California, 134 S. Ct. 2473 (2014) is

misplaced. The Supreme Court noted, as the Dissent asserts, that cell

Id. at 2485. The

Court did so, however, in support of an 8-1 majority opinion rejecting the

(Footnote Continued Next Page)

- 10 -

J-A04037-14

Finally, the Commonwealth argues that police acted properly in seizing

opportunity to delete information. Here, the Commonwealth relies on

Commonwealth v. Bostick, 958 A.2d 543 (Pa. Super. 2008), appeal

denied, 987 A.2d 158 (Pa. 2009). Bostick is entirely inapposite, inasmuch

as the question before the Bostick court was whether exigent circumstances

justified warrantless entry into a home. Id. at 556-57. Exigent

circumstances exist where a police officer has probable cause to believe that

immediate action is necessary to preserve evidence of a crime. Id. at 557.

As we have already explained above, police did not have probable cause to

incriminating evidence. The

Commonwealth lacked probable cause to seize the cell phone. See

Commonwealth v. Joseph, 34 A.3d 855, 861 (Pa. Super. 2011) (noting

that the Commonwealth must demonstrate both probable cause and exigent

circumstances to justify a warrantless seizure), appeal denied, 63 A.3d 775

(Pa. 2013).

_______________________

(Footnote Continued)

The initial seizure of the phone was not at issue in Riley, and Riley

therefore has no direct application here. Furthermore, the Riley majority

relied on the vast quantity of personal information contained in a cell phone

to support its opinion protecting an individual from unlawful government

intrusion therein. Here, we believe the result urged by the Dissent would

violate that protection.

- 11 -

J-A04037-14

We conclude that the trial court did not err in rejecting the arguments

properly advanced by the Commonwealth.6 We therefore affirm the trial

Order affirmed.

BOWES, J. files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2014

____________________________________________

6

To be clear, we have decided only that the plain view doctrine and exigent

phone. We offer no opinion on whether police could have seized the cell

phone on some other basis, or whether the police had any valid means of

- 12 -