Commonwealth v. Kane

• Decision Date: 09 May 2019
• Docket Number: No. 864 EDA 2018,864 EDA 2018
• Citation: 210 A.3d 324
• Parties: COMMONWEALTH of Pennsylvania v. Vincent KANE, Appellant
• Court: Pennsylvania Superior Court

210 A.3d 324

COMMONWEALTH of Pennsylvania

v.Vincent KANE, Appellant

No. 864 EDA 2018

Superior Court of Pennsylvania.

Argued December 4, 2018

Filed May 9, 2019

Cheryl J. Sturm, Chadds Ford, for appellant.

Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: OTT, J., DUBOW, J., and STEVENS,^* P.J.E.

OPINION BY DUBOW, J.:

Appellant, Vincent Kane, appeals from the Judgment of Sentence of twenty to sixty months' incarceration following his non-jury conviction for Invasion of Privacy, Possession of Child Pornography, and Criminal Use of Communication Facilities.¹ Appellant challenges the denial of his Motion to Suppress evidence derived from the warrantless search of his abandoned cell phone and the search of the external hard drive of his computer pursuant to a search warrant. After careful review, we affirm.

The relevant factual and procedural history, as gleaned from the certified record, are as follows. On September 22, 2016, a female student at Villanova University discovered a smart cell phone² in the co-ed dormitory bathroom. The cell phone was behind a "wet floor" sign, and was actively video recording the toilet area. The camera captured the activities of men and women using the toilet. The student took the cell phone to the Villanova University Police, who turned the cell phone over to the Delaware County Criminal Investigation Division ("CID").

CID Detective Edmond Pisani, a computer forensic examiner assigned to the Internet Crimes Against Children Task Force, consulted with the Delaware County District Attorney's Office and declined to obtain a search warrant for the cell phone after a Deputy District Attorney advised him that he should consider the cell phone to be abandoned. Detective Pisani proceeded to conduct a forensic examination of the cell phone and identified Appellant as the owner of the cell phone after viewing several videos of Appellant setting up the video camera function on the cell phone to record. Detective Pisani recovered videos of Villanova students in the bathroom, "upskirt" videos taken at a C.V.S. store where Appellant worked, and videos of students secretly recorded at Cardinal O'Hara School, where Appellant had attended high school the year before.

On September 27, 2017, Detective Pisani, CID Detective John Hoffner, and Villanova Police Chief David Tedjeske located Appellant in a classroom and asked to speak with him. Appellant agreed, and all four men walked to a smaller, unlocked room next to the classroom. Appellant agreed to have his interview recorded. Detective Hoffner told Appellant that he was not under arrest and he was free to leave at any time. Upon questioning, Appellant disclosed that he downloaded videos from his cell phone to a home desktop computer, which was located in Broomall, Pennsylvania, where he lived with his mother. Appellant signed a written consent to search both his laptop computer and his home desktop computer; officers seized the desktop computer and, during a search, discovered that an external hard drive had recently been connected to the computer.

On September 28, 2016, pursuant to a search warrant, Detective Pisani seized and searched the external hard drive for videos of people in bathrooms and invasion of privacy. Detective Pisani discovered child pornography on the external hard drive and suspended his search. On October 4, 2016, Detective Pisani obtained a second warrant to search for images of child pornography on the external hard drive. Detective Pisani recovered numerous images evidencing Invasion of Privacy and Possession of Child Pornography.

On October 26, 2016, Appellant was charged with twenty-five counts of Invasion of Privacy, twenty counts of Possession of Child Pornography, and four counts of Criminal Use of a Communication Facility. On March 23, 2017, Appellant filed an Omnibus Pre-Trial Motion, including a Motion to Suppress Physical Evidence. Specifically, Appellant moved to suppress evidence obtained from the cell phone, arguing that the police conducted an illegal warrantless cell phone search. He also sought to suppress evidence obtained from the external hard drive, arguing that the October 4, 2016 search warrant was flawed. On May 12, 2017, after a hearing, the trial court denied Appellant's Motion to Suppress evidence derived from the cell phone after concluding that Appellant voluntarily abandoned his cell phone and therefore had no reasonable expectation of privacy. See Order, 5/12/17, at 5-6. On the same day, the trial court denied Appellant's Motion to Suppress evidence derived from the external hard drive, finding that the search was authorized by a warrant. See id. at 8.

On November 28, 2017, trial commenced and Appellant chose to waive his right to a jury trial. In exchange, the Commonwealth agreed to proceed on only four counts of Invasion of Privacy, three counts of Possessing Child Pornography, and two counts of Criminal Use of a Communications Facility.³ The parties entered stipulations regarding the Appellant's identity and the Commonwealth's evidence.

On December 4, 2017, the trial court found Appellant guilty of all counts. On February 16, 2018, the trial court imposed an aggregate sentence of twenty to sixty months' incarceration followed by eight years of probation.

Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

I. Whether the trial court erred when it denied the Motion to Suppress evidence derived directly or indirectly from a warrantless cell phone search in violation of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the Constitution of the United States?

II. Whether the trial court erred when it denied the Motion to Suppress evidence derived directly or indirectly from the search of an external hard drive pursuant to an overbroad warrant?

Appellant's Brief at 2.

Once a defendant files a motion to suppress evidence, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights. Commonwealth v. Wallace , 615 Pa. 395, 42 A.3d 1040, 1047–48 (2012) (citing Pa.R.Crim.P. 581(H) ). When this Court reviews a ruling on a motion to suppress, our standard of review is well settled: we are bound by the suppression court's factual findings that are supported by the record but we review its legal conclusions de novo . Commonwealth v. Cooley , 632 Pa. 119, 118 A.3d 370, 373 (2015). "Our scope of review is limited to the record developed at the suppression hearing, considering the evidence presented by the Commonwealth as the prevailing party and any uncontradicted evidence presented by [the defendant]." Commonwealth v. Fulton , 179 A.3d 475, 487 (Pa. 2018) (citation omitted).

Warrantless Search of Cell Phone

In his first issue, Appellant avers that the court erred when it denied the Motion to Suppress evidence derived directly or indirectly from a warrantless search of his cell phone. Appellant's Brief at 10. Appellant avers that the warrantless search violated his constitutional rights under Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. Id. at 2. Appellant argues that the trial court erred pursuant to the Pennsylvania Supreme Court's decision in Fulton , 179 A.3d at 479, which held that "accessing any information from a cell phone without a warrant contravenes the United States Supreme Court's decision in Riley v. California and United States v. Wurie , [573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ] (hereinafter, " Riley / Wurie ")." Se e Appellant's Brief at 13. Appellant contends that he did not abandon the cell phone because he intended to come back to the cell phone and retrieve the video, and that, nevertheless, "the privacy interest is in the cell phone, not in the location or the use of the cell phone." Id. at 20, 22. In response, the Commonwealth asserts that Appellant "had no objective expectation of privacy in the cell phone which society would recognize when he left it turned on and recording in a public bathroom[.]" Commonwealth's Brief at 7. We agree.

Both the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution "guarantee individuals freedom from unreasonable searches and seizures." Commonwealth v. Bostick , 958 A.2d 543, 550 (Pa. Super. 2008) (citation omitted). In Pennsylvania, a defendant charged with a possessory offense has "automatic standing" to pursue a suppression motion under Rule 581. Commonwealth v. Enimpah , 630 Pa. 357, 106 A.3d 695, 698 (2014). However, in addition to standing, "a defendant must show that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable." Id. "The expectation of privacy is an inquiry into the validity of the search or seizure itself; if the defendant has no protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is implicated." Id. at 699.

This Court has found that an expectation of privacy will exist when the individual exhibits an actual or subjective expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. Commonwealth v. Jones , 874 A.2d 108, 118 (Pa. Super. 2005). In determining whether a person's expectation of privacy is legitimate or reasonable, we must consider the totality of the circumstances and the determination "ultimately rests upon a balancing of the societal interests involved." Commonwealth v. Peterson , 535 Pa. 492, 636 A.2d 615, 619 (1993) (citations omitted). "The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances." Commonwealth v. Viall , 890 A.2d 419, 422 (Pa....