Com. v. Saleem, K.

J-S01005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KAMRAN SALEEM :

:

Appellant : No. 800 MDA 2021

Appeal from the Judgment of Sentence Entered June 4, 2021

In the Court of Common Pleas of Adams County Criminal Division at

No(s): CP-01-CR-0000698-2020

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED: APRIL 13, 2022

Kamran Saleem appeals from his June 4, 2021 judgment of sentence of

thirty to sixty months of incarceration followed by three years of probation,

which was imposed after a jury found him guilty of possession of child

pornography, dissemination of child pornography, and criminal use of a

communication facility. We affirm.

We glean the factual history of this case from the certified record and

the transcripts of testimony. On March 16, 2020, Detective Eric Beyer of the

Adams County District Attorney’s Office received a tip from the National

Center for Missing and Exploited Children (“NCMEC”) that a verified Facebook

account bearing Appellant’s name and likeness had shared a video depicting

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* Retired Senior Judge assigned to the Superior Court.

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a nine-year-old male child being raped by an adult male.1 One of Appellant’s

profile pictures on Facebook was included in this report, which depicted him

standing in front of a white 2018 Toyota. Detective Beyer determined this

picture had been uploaded to Facebook over the Internet service associated

with a gas station located at 243 Steinwehr Avenue in Gettysburg,

Pennsylvania. Following surveillance and additional investigation, Detective

Beyer confirmed Appellant worked at the gas station and drove the vehicle

shown in his Facebook profile picture.

Based upon this information, Detective Beyer applied to a magisterial

district judge (“MDJ”) for a search warrant covering the gas station, the

vehicle, and Appellant’s person, which would permit “[t]he seizure and off-site

forensic examination of all data contained within any cellular telephones and

mobile electronic devices, including tablet or laptop computers, owned, used,

and/or possessed by [Appellant].”2 Application for Search Warrant, 6/24/20,

at 1; Affidavit of Probable Cause, 6/24/20, at ¶¶ 6-8. The description of the

items to be searched also incorporated Detective Beyer’s affidavit of probable

cause, wherein he indicated that any electronic devices seized pursuant to the

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1 As Detective Beyer explained in his affidavit of probable cause, a Facebook

profile is “verified” when a user confirms the veracity of their contact

information by submitting “verification codes” in response to “emails or text

messages” sent by Facebook.

2 In addition to the facts set forth above, Detective Beyer also provided a

lengthy account of his training and experience as a law enforcement officer.

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warrant would only be searched for “property, evidence, and

instrumentalities” related to the allegations that Appellant had possessed and

disseminated child pornography. See Affidavit of Probable Cause, 6/24/20,

at ¶ 7. The affidavit also provided that such examination would be undertaken

by “trained personnel using forensic examination software.” Id. at ¶ 6, 8.

After the MDJ approved the application, Detective Beyer’s execution of the

warrant resulted in the seizure of Appellant’s cell phone. A forensic

examination of the device yielded two videos depicting child pornography.

Appellant was arrested and charged with two counts each of possession

of child pornography and dissemination of child pornography, in addition to

one count of criminal use of a communication facility. Appellant filed a pre-

trial suppression motion arguing that the search warrant issued to

Detective Beyer lacked sufficient particularity and was unconstitutionally

overbroad. See Omnibus Pre-Trial Motion, 9/25/20, at ¶¶ 16-34. Specifically,

Appellant argued the warrant violated Article I, § 8 of the Pennsylvania

Constitution by permitting the seizure of “all data” contained on the devices

identified in the warrant: “[T]he issuance of the warrant improperly entitled

law enforcement to search and seize data pertaining to a vast array of

Defendant’s personal information . . . without any qualifying requirement that

it relate to the investigation at hand.” Id. at ¶ 30.

At the suppression hearing, Appellant conceded that there was probable

cause to believe that the device contained child pornography, but argued that

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the breadth of the search authorized by the warrant was not limited to such

evidence and, thus, was violative of the Pennsylvania Constitution:

THE COURT: Let me ask. I think it’s clear we have probable cause

to believe this cell phone contained child porn.

[DEFENSE ATTORNEY]: Absolutely.

THE COURT: So how would you word the warrant?

[DEFENSE ATTORNEY]: I would include language that would limit

to qualify the search for the items to be search and seized as any

images or videos containing child pornography or minors in

explicit sexual conduct.

THE COURT: And isn’t that what was downloaded in this case?

The only thing he actually downloaded was videos containing child

pornography.

[DEFENSE ATTORNEY]: Well, it was a shared video on Facebook

[M]essenger apparently.

THE COURT: Okay. But are you indicating that he doesn’t have

the right to search the entire phone to look for those items?

[DEFENSE ATTORNEY]: Certainly . . . because there’s a – there’s

a distinction between the search and the seizure. A controlled

search, yes, if there is qualifying language to allow that type of

search, yes. The seizure of all data of all personal message – and

we’re talking about a vast amount of data that –

THE COURT: But he – he didn’t seize all that.

[DEFENSE ATTORNEY]: That’s what the search warrant permitted

him to do so.

N.T. Suppression Hearing, 10/20/20, at 5-6. Overall, Appellant’s position was

that the warrant was overbroad because there was “no qualifying language to

account for any non-criminal use of his cell phone.” Id. at 7-8.

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After entertaining memoranda on the issue, the trial court denied

Appellant’s suppression motion relying largely upon this Court’s holding in

Commonwealth v. Green, 204 A.3d 469 (Pa.Super. 2019), affirmed, 265

A.3d 541 (Pa. 2021).3 See Order and Opinion, 12/11/20, at 1-8. Prior to

trial, the Commonwealth withdrew one count each of possession of child

pornography and dissemination of child pornography. On March 1, 2020, a

jury found Appellant guilty of the aforementioned charges. Thereafter, the

trial court imposed the sentence noted above. See Order, 5/24/21, at 1-3.

On June 18, 2021, Appellant filed a timely notice of appeal. Both Appellant

and the trial court have complied with the obligations of Pa.R.A.P. 1925.

Appellant has presented a single issue for our consideration: “Whether

the trial court erred in not suppressing evidence obtained pursuant to a search

warrant that lacked particularity and was unconstitutionally overbroad.”

Appellant’s brief at 6. Our standard of review in addressing a challenge to the

denial of a suppression motion is “limited to determining whether the

suppression court’s factual findings are supported by the record and whether

the legal conclusions drawn from those facts are correct.” Commonwealth

v. Jones, 988 A.2d 649, 654 (Pa. 2010). To the extent that an appeal turns

on allegations of legal error, “the suppression court’s legal conclusions are not

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3 Our Supreme Court granted allowance of appeal in this case on January 25,

2021. See Commonwealth v. Green, 243 A.3d 1293 (Pa. 2021). During

the pendency of this appeal, this Court’s holding was affirmed. See

Commonwealth v. Green, 265 A.3d 541, 555 (Pa. 2021).

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binding on an appellate court,” as it is this Court’s “duty to determine if the

suppression court properly applied the law to the facts.” Id. Our scope of

review is “to consider only the evidence of the Commonwealth and so much

of the evidence for the defense as remains uncontradicted when read in the

context of the suppression record as a whole.” Commonwealth v. Shaffer,

209 A.3d 957, 968-69 (Pa. 2019). When the issue on appeal relates to a

suppression ruling, this Court may only review the record from the

suppression hearing while excluding evidence elicited at trial. See

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017).

As noted above, this issue arises under Article I, § 8 of the Pennsylvania

Constitution, which provides that “no warrant to search any place or to seize

any person or things shall issue without describing them as nearly as may be,

nor without probable cause . . . .” PA. CONST., Art. I, § 8. Our Supreme Court

has delineated the protections of this passage, as follows:

It is a fundamental rule of law that a warrant must name or

describe with particularity the property to be seized and the

person or place to be searched. . . . The particularity requirement

prohibits a warrant that is not particular enough and a warrant

that is overbroad. These are two separate, though related, issues.

A warrant unconstitutional for its lack of particularity authorizes a

search in terms so ambiguous as to allow the executing officers to

pick and choose among an individual's possessions to find which

items to seize. This will result in the general “rummaging” banned

by the [F]ourth [A]mendment. A warrant unconstitutional for its

overbreadth authorizes in clear or specific terms the seizure of an

entire set of items, or documents, many of which will prove

unrelated to the crime under investigation . . . An overbroad

warrant is unconstitutional because it authorizes a general search

and seizure.

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The language of the Pennsylvania Constitution requires that a

warrant describe the items to be seized “as nearly as may be. . . .”

The clear meaning of the language is that a warrant must describe

the items as specifically as is reasonably possible. This

requirement is more stringent than that of the Fourth

Amendment, which merely requires particularity in the

description. The Pennsylvania Constitution further requires the

description to be as particular as is reasonably possible. . . .

Consequently, in any assessment of the validity of the description

contained in a warrant, a court must initially determine for what

items probable cause existed. The sufficiency of the description

must then be measured against those items for which there was

probable cause. Any unreasonable discrepancy between the items

for which there was probable cause and the description in the

warrant requires suppression. An unreasonable discrepancy

reveals that the description was not as specific as was reasonably

possible.

Commonwealth v. Orie, 88 A.3d 983, 1002–03 (Pa.Super. 2014).

Our Supreme Court has discussed the specific considerations governing

search warrants respecting electronic devices like cell phones, as follows:

Because a cell phone often contains even more personal

information than a home, it logically follows that a warrant should

be required to search the contents of a cell phone, just as a

warrant is required to search the contents of a home. This

rationale, however, does not support the conclusion that, once

obtained, a warrant to search a digital device should be held to a

higher overbreadth standard than a warrant to search a home

simply because of the former’s storage capacity. Of

course . . . our Constitution requires that all warrants, including

warrants to search a digital space, (1) describe the place to be

searched and the items to be seized with specificity and (2) be

supported by probable cause to believe that the items sought will

provide evidence of a crime. In applying this standard, courts

must be cognizant of the privacy interests associated with

personal electronic devices. However, just as with a search of a

home and other spaces where an individual maintains a privacy

interest, if there is probable cause that evidence of a crime will be

found within an electronic device, that evidence should not be

shielded simply because a defendant comingles it with personal

information in a digital space with vast storage capacity. This is

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particularly so when, like here, the nature of the crime is electronic

or internet based.

Commonwealth v. Green, 265 A.3d 541, 553 (Pa. 2021) (“Green”). Thus,

warrants to search digital spaces must describe “‘as nearly as may be those

items for which there is probable cause.’” Id. (quoting Commonwealth v.

Grossman, 555 A.2d 896, 899 (Pa. 1989)).

However, search warrants must also “be read in a common sense

fashion and should not be invalidated by hypertechnical interpretations.”

Commonwealth v. Rega, 933 A.2d 997, 1012 (Pa. 2007) (cleaned up). In

light of the “fact-dependent nature” of claims of ambiguity and overbreadth in

this context, our Supreme Court has held that “where the items to be seized

are as precisely identified as the nature of the activity permits and an exact

description is virtually impossible, the searching officer is only required to

describe the general class of the item he is seeking.” Green, supra at 550.

The “natural starting place in assessing the validity of the description

contained in a purportedly overbroad warrant is to determine for what items

probable cause existed.” Id. at 551 (citing Commonwealth v. Johnson,

240 A.3d 575, 587 (Pa. 2020)). Probable cause is determined by examining

the totality of the circumstances and consists of making a “‘practical, common-

sense decision whether, given all the circumstances set forth in the

affidavit . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.’” Id. (quoting Commonwealth v. Torres,

764 A.2d 532, 537-38 (Pa. 2001)). At the suppression hearing, Appellant

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acknowledged there was probable cause to conclude his cell phone contained

evidence relating to the possession and dissemination of child pornography.

See N.T. Suppression Hearing, 10/20/20, at 5-6.

However, with specific reference to search warrants seeking evidence of

child pornography, our Supreme Court has observed that “self-limiting

language” specifying that officers can only search for “evidence relating to the

possession and/or distribution of child pornography” is “critical” in preventing

“indiscriminate or discretionary” searches. Green, supra at 552. In this

case, Appellant maintains the warrant was overbroad and lacked particularity

because it did not contain any such limitations. See Appellant’s brief at 14

(“[I]n our case the detective had free reign to search anywhere and for

anything within the cell phone, while in Green they were specifically particular

in that it could only be searched for evidence relating to the possession and/or

distribution of child pornography.”). We disagree.

The application for a search warrant filed in this case described the items

to be searched for and seized, as follows:

The seizure and off-site forensic examination of all data contained

within any cellular telephones and mobile electronic devices,

including tablet or laptop computers, owned, used, and/or

possessed by [Appellant], whereever they may be found. The

biometric data of [Appellant], to include fingerprints and facial

features, to be used to unlock mobile devices if located.

The Affidavit of Probable Cause is incorporated herein by

reference.

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Application for Search Warrant, 6/24/20, at 1 (emphasis added). The

description of the items to be searched in this application is quite broad and,

by itself, is constitutionally problematic in that there is no limitation based

upon the alleged crimes. However, Detective Beyer’s affidavit of probable

cause was explicitly incorporated into the application. The affidavit solely

requested the issuance of a warrant seeking “evidence relating to the

possession and/or distribution of child pornography[.]” Affidavit of Probable

Cause, 6/24/20, at ¶ 6. Specifically, it included the following verbiage:

[T]here is probable cause to believe that Title 18 § 6312, which,

among other things, make it a crime for any person to knowingly

produce, distribute, receive or possess child pornography, or

attempted to do the above acts, has been violated, and that the

property, evidence, and instrumentalities of these offenses, listed

in the items to be searched for and seized if found, are located at

243 Steinwehr Ave, Gettysburg[,] PA, 17325 or on the person of

Kamran Saleem. I request that a search warrant issue to allow

for the search and seizure of such property and evidence.

Id. at ¶ 7.

With these documents in mind, the trial court addressed the issues of

suppression and overbreadth, as follows:

As in Green, [Appellant] was under investigation for the

possession and/or distribution of child pornography and a search

warrant was issued. In both cases, an electronic device was

seized and searched and files appearing to contain child

pornography were seized. Both cases also included an

incorporated affidavit of probable cause which contained similar

language, authorizing the search and seizure for property and

evidence related to violations of Title 18 § 6312, which make it a

crime for any person to knowingly produce, distribute, receive or

possess child pornography.

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Detective Beyer’s search warrant and incorporated affidavit

provided sufficient facts for the magisterial district judge to

reasonably determine that the search warrant was for the purpose

of seizing cellular devices and authorizing the search of the data

on such devices for evidence of child pornography.

Trial Court Opinion, 12/11/20, at 5-6. Accordingly, the particularity and

validity of the at-issue warrants hangs upon whether or not we may view the

application and the affidavit of probable cause in conjunction with one another.

On this point, we find our Supreme Court’s holding in Commonwealth

v. Carlisle, 534 A.2d 469 (Pa. 1987) to be instructive. In that case, law

enforcement officers executed a search warrant on a building containing three

separate apartments. Although the police only possessed information of illicit

gambling in “Apartment One,” the description of the place to be searched in

the warrant referred to the building as a whole without designating a specific

apartment. The affidavit of probable cause attached to the application,

however, clearly evinced police were only investigating alleged law-breaking

in Apartment One. The defendant challenged the validity of the warrant based

upon this alleged lack of particularity.

Our Supreme Court framed this issue, as follows:

[T]he question which arises is whether the affidavit . . . may be

used to augment the description of place listed on a search

warrant. Analytically, the two most obvious approaches to this

question are either to construe the affidavit and the warrant

together, or to construe only the warrant, without regard to the

affidavit. In this case, if the two writings were construed together,

the place would be described with sufficient particularity, since the

affidavit plainly states that the phones suspected of being used to

conduct a lottery were located in Apartment One, not

elsewhere. If the documents are to be construed separately,

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however, the warrant would fail for lack of particularly since the

[description] does not contain any reference to Apartment One,

but instead appears to authorize a search of the entire building.

Carlisle, supra at 472 (cleaned up).

Ultimately, the Court adopted a “practical, common-sense” approach in

considering “whether the place to be searched is specified with sufficient

particularity,” which focused upon “all circumstances set forth in the

affidavit.” Id. (citing Illinois v. Gates, 462 U.S. 213, 238-39 (1985);

Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1987)). On the merits,

the Court determined that it was appropriate to consider the information

contained in the affidavit of probable cause in assessing particularity:

Applying the “practical, common-sense” rule of Gates and Gray

to this case, it is our view that the police officers conducting the

search in this case would be aware of the exact location to be

searched. They knew that a suspected lottery operation was being

conducted at [the building] by use of telephones which were

located in Apartment One at that address. Common sense

suggests that this information does not authorize a search of

Apartments Two or Three, and, in fact, the only search conducted

was a search of Apartment One. Had any location other than

Apartment One been searched based on the affidavit in this case,

any items seized from other locations would have been

suppressed as having been seized outside the authority of the

warrant.

[W]hat appears to have happened is that the police officer

applying for the warrant inadvertently omitted the apartment

number from the box on the form which called for it. Were there

reason to believe that this omission was not inadvertent, or were

there reason to believe that police officers conducting the search

would not reasonably know where the search was to be

conducted, our view of this case would be quite different.

Carlisle, supra at 472-73 (cleaned up).

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We find Carlisle controls in these circumstances. Accordingly, we agree

with the trial court that we may view both the application and the affidavit of

probable cause in assessing the scope of the warrant. Id. Indeed, this Court

recently relied upon Carlisle to reach a similar result in a fairly analogous

case. See Commonwealth v. Saia, 248 A.3d 511 (Pa.Super. 2021)

(unpublished memorandum at 1-6). In Saia, a search warrant was issued for

a property based upon a tip from NCMEC that a Skype profile had been sharing

child pornography over the Internet service associated with the property.

While the warrant referred only to the residence located at that address, the

supporting affidavit of probable cause referred to both the main residence and

its exterior buildings. Ultimately, an electronic device was recovered from an

exterior building and was found to contain child pornography. The trial court

in Saia suppressed this evidence based upon an alleged lack of particularity

in the warrant. On appeal, this Court reversed:

[U]nder Carlisle, we are compelled to hold that the suppression

court erred by failing to consider the [a]ffidavit in defining the

scope of the warrant. When read in conjunction with the

[a]ffidavit, it is obvious that the target of the warrant included

buildings on the named property exterior to [d]efendant’s

residence in which the at-issue evidence was discovered, not just

the residence itself.

Id. at 5. Although Saia is not binding precedent, we may cite it for its

persuasive value since it was filed after May 1, 2019. See Pa.R.A.P. 126(b).

Furthermore, the holding in Saia confirms that Carlisle continues to animate

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the state of our law concerning particularity and overbreadth under Article I,

§ 8 of the Pennsylvania Constitution.4

Turning to the instant case, we find no merit to Appellant’s claim. While

the basic description provided in the search warrant approved by the MDJ in

Appellant’s case did not mirror that approved by our Supreme Court in Green,

Detective Beyer’s affidavit of probable cause included sufficiently limiting

language to restrict the ambit of the search warrant to evidence of child

pornography. Pursuant to Carlisle, we read these documents in conjunction

with one another to assess the scope of the search warrant. See also

Pa.R.Crim.P. 230(B) (“The issuing authority, in determining whether probable

cause has been established, may not consider any evidence outside the

affidavits.” (emphasis added)). As such, the search warrant in this case

would not (and did not) permit the kind of rummaging or generalized search

that the Pennsylvania Constitution forbids. See Green, supra at 555 (“The

warrant only allowed the officers to search for evidence of that particular

crime. They could not indiscriminately rummage through any and all files as

Appellant suggests, but rather could only conduct a digital forensic

search . . . for evidence of child pornography.”). Accordingly, no relief is due.

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4 We recognize that in Commonwealth v. Saia, 248 A.3d 511 (Pa.Super.

2021) (unpublished memorandum at 6 n.7), this Court “respectfully” invited

our Supreme Court to revisit its ruling in Commonwealth v. Carlisle, 534

A.2d 469 (Pa. 1987). However, no such reconsideration has yet taken place.

Accordingly, we remain bound by this precedent and the result it compels.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/13/2022

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