Commonwealth v. Hoppert

• Decision Date: 06 February 2012
• Citation: 39 A.3d 358,2012 PA Super 21
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Clyde J. HOPPERT, Appellant.
• Court: Pennsylvania Superior Court

2012 PA Super 21

39 A.3d 358

COMMONWEALTH of Pennsylvania, Appellee

v.Clyde J. HOPPERT, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 26, 2011.Filed Feb. 6, 2012.

MaryJean Glick, Public Defender, Lancaster, for appellant.

Craig W. Stedman, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: DONOHUE, OLSON and STRASSBURGER ^*, JJ.

OPINION BY OLSON, J.:

Appellant, Clyde J. Hoppert, appeals from the judgment of sentence entered on February 1, 2011 following his bench trial convictions on 19 counts of sexual abuse of children (dissemination of child pornography) and two counts of sexual abuse of children (possession of child pornography).¹ After careful consideration, we affirm.

The facts and procedural history of this case are as follows. While investigating a child pornography case involving an America Online (AOL) user with a screen name “wersupr,” a detective from California obtained a search warrant and received information that “wersupr” had received and opened three e-mails sent by an AOL user “CJHOPPERT.” These e-mails were sent on November 23, 2007 and each contained attachments of photos depicting girls under the age of ten displaying their genitals. By federal subpoena, the detective discovered that “CJHOPPERT” was a computer user on an AOL account registered to Sallie Hoppert who resided on Countryside Drive, Lancaster, Pennsylvania. On May 8, 2008, the California detective relayed this information to Detective Peter J. Savage of the Lancaster County District Attorney's Office and Appellant became the subject of investigation in Pennsylvania.

Subsequently, Detective Savage checked the Pennsylvania Department of Transportation (“PennDOT”) records and determined that Appellant previously lived on Countryside Drive, but learned that he was currently residing on Haskell Drive in Manheim Township, Lancaster County, Pennsylvania. Detective Savage also personally viewed the images contained in the e-mails and opined that the photos contained images of girls, under the age of eighteen, exposing their genitalia, and were therefore in violation of 18 Pa.C.S.A. § 6312. Accordingly, Detective Savage submitted an affidavit of probable cause and application for a search warrant seeking the AOL records pertaining to the account registered to Sallie Hoppert. A search warrant was issued on May 16, 2008 (hereinafter “first warrant”). Upon receiving the documents from AOL, Detective Savage ascertained that “CJHOPPERT” was logged on to AOL for five hours on November 23, 2007, that the three e-mails at issue had been sent during that time period, and that “wersupr” was on the contact list established by “CJHOPPERT.” Moreover, the AOL account was closed on February 1, 2008. Detective Savage relayed this information to Detective Allen Leed of the Manheim Township Police Department.

Detective Leed submitted an affidavit of probable cause for a search warrant at Appellant's Haskell Drive address that was granted on July 16, 2008 (hereinafter “second warrant”). On July 17, 2008, police executed the second warrant and recovered three computers and AOL documentation from the subject residence. An ensuing search of the computers revealed 183 images of child pornography, 60 images of child erotica, and 40 e-mails, either sent or received, containing child pornography.

The Commonwealth charged Appellant with the aforementioned crimes. Prior to trial, Appellant filed a motion to suppress the evidence obtained from both search warrants at issue. He also sought to suppress subsequent statements he made to police, arguing that the statements were the fruit of the unlawful searches. Following a hearing, the trial court denied relief on August 18, 2010. The case proceeded to a stipulated bench trial. On October 15, 2010, the trial court found Appellant guilty of the above-mentioned crimes. On February 1, 2011, the trial court sentenced Appellant to an aggregate term of imprisonment of three to 23 months, with an additional five years of probation. This timely appeal followed.²

On appeal, Appellant presents a single issue for our review:

Did the trial court err in denying the Motion to Suppress, where the information contained in the search warrant issued on May 15, 2008 was stale, where there was no probable cause to conclude that AOL had retained copies of any of [Appellant's] e-mails subsequent to the termination of his account and there was no probable cause to conclude that child pornography was ever stored or viewed on a computer owned by [Appellant] and located at [his] Haskell Drive [residence]?

Appellant's Brief at 4.

Appellant contends that the trial court erred in denying suppression of the evidence obtained on the seized computers, as well as his later statements to police. Appellant argues that the information contained in the affidavit of probable cause supporting the first warrant was stale because there was no probable cause “to believe that AOL had retained copies of e-mails sent by its user ‘CJHOPPERT’ on one of its servers over three months after the account was closed.” Id. at 8 and 12. With regard to the second warrant, Appellant asserts “the affidavit of probable cause failed to establish any nexus between the three e-mail attachments forwarded in November 2007 and any computer at [Appellant's] Haskell Drive [address].” Id. at 13. Appellant contends that there was no evidence that the AOL users from Countryside Drive were linked to his residence on Haskell Drive. Id. Moreover, Appellant claims that there was no indication that the three e-mail attachments were ever downloaded, saved, deleted or viewed by “CJHOPPERT” at the Haskell Drive address. Id. at 14. Accordingly, Appellant argues that the search warrants were issued without probable cause and required suppression. Id. at 16. Finally, Appellant maintains that his statements made to police mandated suppression because the searches were tainted. Id. at 16.

The Pennsylvania Supreme Court has set forth our standard of review as follows:

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. Because the Commonwealth prevailed before the suppression court, we may 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 record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Before the suppression court, [Appellant] challenged the legality of the search warrant under the Pennsylvania and United States Constitutions, arguing only that the warrant was not supported by probable cause. Thus, [Appellant's] challenge has root in Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution.

Article I, Section 8 and the Fourth Amendment each require that search warrants be supported by probable cause. The linch-pin that has been developed to determine whether it is appropriate to issue a search warrant is the test of probable cause. Probable cause exists where the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established the totality of the circumstances test for determining whether a request for a search warrant under the Fourth Amendment is supported by probable cause. In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1986), [the Pennsylvania Supreme] Court adopted the totality of the circumstances test for purposes of making and reviewing probable cause determinations under Article I, Section 8. In describing this test, [our Supreme Court] stated:

Pursuant to the “totality of the circumstances” test set forth by the United States Supreme Court in Gates, the task of an issuing authority is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.... It is the duty of a court reviewing an issuing authority's probable cause determination to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner.

* * *

Further, a reviewing court is not to conduct a de novo review of the issuing authority's probable cause determination, but is simply to determine whether or not there is substantial evidence in the record supporting the decision to issue the warrant.

As our United States Supreme Court stated: “A grudging or negative attitude by reviewing courts towards warrants ... is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense,...