A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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A panel of the Superior Court of Pennsylvania has decided the case ofCOMMONWEALTH of Pennsylvania, Appellant v. Kenneth F. SODOMSKY, Appellee, No. 870 MDA 2014, 2015 WL 3533863 (June 5, 2015). This was an appeal from a suppression order entered on April 25, 2014, by Judge Sprecher of the Court of Common Pleas of Berks County, Criminal Division CR–06–CR–0001025–2005. The Judges were PANELLA, OTT and MUSMANNO. Judge Musmanno wrote the Opinion. Judge Ott dissented.

Sodomsky was charged with two counts of sexual abuse of children, and one count of obscene and other sexual materials and performances. Sodomsky filed an Omnibus Pretrial Motion to suppress the evidence seized from his computer at Circuit City where he had brought it for service. After hearings, the trial court granted the suppression motion. The suppression court found that Sodomsky had a reasonable expectation of privacy in the digital data on his computer. The Commonwealth filed an interlocutory appeal to the Superior Court which reversed and ruled that Sodomsky had no reasonable expectation of privacy in his computer data. Commonwealth v. Sodomsky, 47 A.3d 1257 (Pa.Super.2012).

On December 9, 2013, Sodomsky filed a Petition to Re–Open Suppression Hearing based on Intervening Change of Law, i.e.,the United States Supreme Court’s decision in United States v. Jones,132 S.Ct. 945 (2012). The suppression court granted Sodomsky’s Petition, and, after a hearing, again granted Sodomsky’s suppression Motion, based upon theJones decision. Thereafter, the Commonwealth filed the present appeal.

Prior to the hearing underlying the instant appeal, the suppression court had no opportunity to discuss or apply the United States Supreme Court’s decision in Jones.The suppression court has once again ruled that the search of Sodomsky’s computer files, and the seizure of his computer, violated the Fourth Amendment to the United States Constitution. The Superior Court now agrees.

In Jones, the United States Supreme Court addressed whether police officers had engaged in a “search,” within the meaning of the Fourth Amendment, when they installed and monitored a Global Positioning System tracking device on a suspect’s car. The Supreme Court held that a search occurred when the government “physically occupied private property for the purpose of obtaining information,” which “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” 132 S.Ct. at 949–50.

Applying this same property-based analysis, in Riley v. California, 134 S.Ct. 2473 (2014), the United States Supreme Court held that police may not, without a warrant, search digital information on a cell phone seized incident to an arrest. In holding that an unconstitutional search of the defendant’s papers and effects had occurred, the Supreme Court emphasized the quantity and quality of information stored on a cell phone.

The same quality and quantity of information found on a cell phone also is digitally stored on a desktop computer. The constitutional protections naturally extend to the digital data stored on a desktop computer. Applying the property-based Fourth Amendment analysis explained in Jones, Judge Musmanno concluded that the digital data stored on Sodomsky’s desktop computer was subject to Fourth Amendment protections,regardless of his reasonable expectation of privacy.

The parties did not dispute that the police were lawfully present in the Circuit City store and that Sodomsky’s computer was in plain view. However, the record does not support a finding that the digital data forming the basis of the charges against Sodomsky was in plain view, or that the incriminating nature of Sodomsky’s computer was immediately apparent. Police officers were called to the Circuit City store after a Circuit City employee conducted a search of video files on Sodomsky’s computer. Upon arriving at the scene, Wyomissing Police Officer John Phillips  asked the employee to describe what he had seen on Sodomsky’s computer. Upon the express direction of Officer Phillips, the employee double-clicked on the file to open it, and then played the video file for the officer. The file was not visible on Sodomsky’s computer until Officer Phillips directed the employee to open the video data file. Thus the suspect video file was not in “plain view” when Officer Phillips arrived at the scene, nor was its criminal nature readily apparent. The incriminating nature of the video became apparent only after Officer Phillips directed the employee to open and play the digital data file. By directing him to open and play the computer digital data file, Officer Phillips effectuated a warrantless search of the digital data stored on Sodomsky’s desktop computer.

Therefore, the warrantless search of Sodomsky’s digital data files, stored on his desktop computer, violated Sodomsky’s Fourth Amendment protections. Consequently, the officers’ subsequent seizure of the computer, and additional searches conducted thereafter, were unlawful as “fruits of the poisonous tree.” The Panel thus affirmed the Order of the suppression court.

Sodomsky was represented by Paul D. Boas, Esq., of Pittsburgh.

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