Commonwealth v. Dunkins

Decision Date17 November 2021
Docket NumberNo. 45 MAP 2020,45 MAP 2020
Citation263 A.3d 247
Parties COMMONWEALTH of Pennsylvania, Appellee v. Alkiohn DUNKINS, Appellant
CourtPennsylvania Supreme Court

Hugh J. Burns Jr., Esq., Philadelphia, Joshua D. Shapiro, Esq., Harrisburg, Josh Shapiro, Attorney General of the Commonwealth of Pennsylvania, for Amicus Curiae Attorney General of Pennsylvania.

Andrew Chapman Christy, Esq., ACLU of Pennsylvania, for Amicus Curiae ACLU of Pennsylvania, et al.

Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, Pittsburgh, Michael F. J. Piecuch, Esq., Snyder County District Attorney's Office, for Amicus Curiae Pennsylvania District Attorneys Association.

Michael Jay Diamondstein, Esq., Philadelphia, Stephanie Renee Esrig, Esq., Michael J. Diamondstein, PC, for Appellant.

Terence Patrick Houck, Esq., Doylestown, Rebecca J. Kulik, Esq., Katharine R. Kurnas, Esq., Northampton County District Attorney's Office, for Appellee.




We granted review to determine whether the trial court erred by denying suppression of wireless internet network (WiFi) connection records obtained by police without a warrant from the Information Technology Department of Moravian College. For the following reasons, we conclude this search was constitutionally permissible, and accordingly, we affirm the order of the Superior Court.

At approximately 2:00 a.m. on February 2, 2017, two masked men posed as campus police to gain entry to the dorm room shared by Greg Farina and William Reilley in the Hassler dormitory building on the Moravian College Campus in Bethlehem. The men held Farina and Reilley at gunpoint and stole $1,000 and a jar of marijuana from Reilley's footlocker. Reilley reported the robbery to campus officials around 11:00 a.m. and, thereafter, campus police requested that Moravian College's Director of Systems Engineering, Christopher Laird, analyze its WiFi connection records to compile a list of students logged on to the WiFi in the Hassler building at the time of the robbery. Laird discovered only three Moravian College students were logged on to the campus WiFi at that location who did not reside in the Hassler building; two were females and the other was appellant, Alkiohn Dunkins.

Campus police relayed this information to Detective James Ruvolo of the Bethlehem Police Department. In the course of his investigation, Detective Ruvolo interviewed Reilley, appellant, and Colin Zarzecki, another Moravian College student. Reilley told Detective Ruvolo he suspected appellant participated in the robbery because appellant previously stole from him by failing to pay for marijuana, while appellant denied being involved in the robbery and told Detective Ruvolo he had not entered the Hassler building since October 2016. Colin Zarzecki told Detective Ruvolo that on February 3, 2017, the day after the robbery, appellant bragged to him about money he stole by posing as a campus police officer. Based on the above information, appellant was arrested and charged with robbery, conspiracy to commit robbery, receiving stolen property, and simple assault.2

Prior to trial, appellant filed a motion to suppress in which he claimed the campus police conducted an illegal search by obtaining the Hassler building WiFi connection records without a warrant. During a hearing on the motion, Laird testified Moravian College students access the college's WiFi network by entering their individual usernames and passwords, and that students may choose to have their devices automatically log on to the network without having to re-enter their username and password each time they want WiFi access. The parties also acknowledged appellant assented to Moravian College's Computing Resources Policy. The policy provided:

Logging in to or otherwise connecting to the campus network implies acceptance of this Moravian College ... Policy[.]
* * *
The institution's computing equipment and network resources are dedicated to Moravian business to enhance and support the educational mission of Moravian College. These resources include all computers, workstations, and multi-user computer systems along with local area networks and wireless networks via the Internet.
* * *
[A]ny data transmitted over institutional assets or connections made through institutional assets are included . The institution has the right to inspect information stored on its system at any time, for any reason, and users cannot and should not have any expectation of privacy with regard to any data, documents, electronic mail messages, or other computer files created or stored on computers within or connected to the institution's network . All Internet data composed, transmitted, or received through the Internet's computer system is considered part of the institution's records and, as such, subject at any time to disclosure to institutional officials, law enforcement, or third parties [.]

Moravian College's Computing Resources Policy ("Computing Resources Policy") - Defense Exhibit 1 (emphasis added).3 The trial court denied appellant's suppression motion and a jury later convicted him of the aforementioned charges. Thereafter, the trial court denied appellant's motion for extraordinary relief and sentenced him to an aggregate term of five to ten years’ imprisonment. Following the denial of his post-sentence motion, appellant filed a direct appeal in the Superior Court.

In a unanimous, published opinion, a three-judge panel of the Superior Court affirmed the trial court's denial of suppression. Commonwealth v. Dunkins , 229 A.3d 622 (Pa. Super. 2020), allocatur granted , ––– Pa. ––––, 237 A.3d 415 (2020) (per curiam ). The panel first rejected appellant's contention this case is controlled by Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018).

The panel ably explained the decision as follows:

[In Carpenter ,] the U.S. Supreme Court found law enforcement officials improperly acquired Carpenter's CSLI[4] without a warrant. In that case, Carpenter was a suspect in a string of armed robberies. Officers compelled Carpenter's wireless carriers to provide a record of Carpenter's historical CSLI for a four-month period, allowing the officers to track Carpenter's movements during the time when the robberies had occurred. Carpenter , 138 S.Ct. at 2212.
Although the Court recognized an individual has a reduced expectation of privacy in information knowingly shared with another, the Court found the "nature of the particular documents sought" must be considered to determine whether there is a legitimate expectation of privacy. Id. at 2219. The Supreme Court recognized that modern cell phones generate time-stamped records known as CSLI when the phone continuously scans for the best signal from the closest cell site and connects to that cell site. Id. at 2211. Such information is collected by wireless carriers for business purposes to improve their network and to bill customers who incur "roaming" charges through another carrier's network. Id. The Supreme Court also noted that an electronic device will log CSLI simply through the user's operation of the phone on the carrier network "without any affirmative act on the part of the user beyond powering up." Id. at 2220.
Emphasizing that "cell phones and the services they provide are such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society," the Supreme Court concluded that the officers invaded Carpenter's reasonable expectation of privacy in his physical movements by collecting the historical CSLI without a warrant as the search provided "a comprehensive chronicle" of [Carpenter's] physical movements over a four-month period. Id. at 2211, 2219-20.
However, while the Supreme Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI," the Supreme Court pointed out that the holding in Carpenter was not simply about "using a phone" or "a person's movement at a particular time." Id. at 2217, 2220. Further, the Supreme Court emphasized that its decision was "narrow" and indicated that it was not expressing a view on real-time CSLI or "tower dumps" ("a download of information on all the devices that connected to a particular cell site during a particular interval"). Id. at 2220. The Supreme Court added that its decision was not calling in to question "conventional surveillance techniques and tools, such as security cameras ... or business records that might incidentally reveal location information." Id.

Dunkins , 229 A.3d at 628-29 (footnote omitted). In distinguishing Carpenter , the panel noted the "action by campus police in this case is akin to a ‘tower dump’ request as campus security sought general network connection information from one of Moravian's wireless access points near the location of the robbery at the time it occurred" and Carpenter specifically declined to invalidate "tower dump" requests. Id . at 629. To this point, the panel explained "campus police did not target a specific individual or attempt to track an individual's movements but instead merely sought to compile a list of all the devices signed on to the WiFi in the Hassler dorm at the time of the robbery." Id .

The panel further opined, regardless of whether Carpenter was applicable to the present case, appellant's Fourth Amendment claim failed because he abandoned any purported expectation of privacy in the WiFi connection records due to the fact he consented to the Computing Resources Policy, which expressly authorizes the college to collect and disclose internet data "composed, transmitted, or received" through the campus WiFi. Id . at 630. The panel additionally relied on Commonwealth v. Sodomsky , 939 A.2d 363, 369 (Pa. Super. 2007), which held "[i]f a person is aware of, or freely grants to a third party, potential access to...

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