J-S11045-15
2015 PA Super 133
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KENNETH F. SODOMSKY
Appellee No. 870 MDA 2014
Appeal from the Order April 25, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001025-2005
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
DISSENTING OPINION BY OTT, J.: FILED JUNE 05, 2015
I must respectfully dissent for two reasons. First, I conclude the
suppression court abused its discretion when it re-opened Sodomsky’s
suppression hearing.
Pennsylvania Rule of Criminal Procedure 581 “is designed to provide
one single procedure for the suppression of evidence alleged to have been
obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581, Comment.
However, the Rule permits the filing of a supplemental motion when “the
opportunity did not previously exist, or the interests of justice otherwise
require[.]” Pa.R.Crim.P. 581(B).
In December of 2013, after this Court reversed the trial court’s
second order suppressing the evidence recovered from Sodomsky’s
computer, and both the Pennsylvania Supreme Court and the United States
Supreme Court declined to accept his appeal for the second time, Sodomsky
petitioned the trial court to re-open his suppression hearing for a third
time. He asserted that the United States Supreme Court’s decision in
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Jones, supra, constituted a “clear change of law[.]” Petition to Re-Open
Suppression Hearing Based on Intervening Change in Law, 12/16/2013, at
4, 5. The trial court agreed, and concluded:
Jones may not be entirely new law, but it reaffirmed that the
government’s physical intrusion on [Sodomsky’s] “effect” for the
purpose of obtaining information constitutes a “search” and that
this type of encroachment on an area enumerated in the Fourth
Amendment would have been considered a search within the
meaning of the Amendment at the time it was adopted. [Jones]
is new law in the sense that the expectation of privacy standard
is no longer the exclusive test to determine if a search violates
the Fourth Amendment. Thus, this approach is the equivalent to
new law because it had not been applied since the expectation of
privacy standard was enunciated in Katz v. United States, 389
U.S. 347 (1967) and was not applied or addressed by the
Superior Court in the case sub judice.
Trial Court Opinion, 7/29/2014, at 4.
On appeal, the Commonwealth argued Jones was decided before this
Court’s prior decision, and, therefore, impliedly rejected by this Court. The
Majority determined (1) the suppression court did not have the opportunity
to apply Jones since it was decided after the appeal was filed from the
second suppression order, and (2) this Court was not barred by the “law of
the case” doctrine from applying Jones since it represented “an intervening
change of law.” Majority Memorandum at 9. While I agree with the
Majority’s first conclusion, I take issue with its second.
In my view, Jones did not involve an intervening change in the law
that would justify the re-opening of Sodomsky’s suppression hearing.
Rather, the Jones Court, in determining the government’s warrantless
attachment of a GPS device to the defendant’s vehicle and subsequent use
of that device to monitor the vehicle’s movement, constituted a search under
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the Fourth Amendment, reaffirmed the Fourth Amendment’s continued
long standing protection of a person’s “effects.”1
Preliminarily, I note that the facts in Jones are not analogous to
those presented in the case sub judice. In Jones, “[t]he Government
physically occupied private property” by installing a GPS device on the
defendant’s vehicle for the explicit purpose of monitoring the vehicle’s
movements. Jones, supra, 132 S.Ct. at 949. Here, conversely, the police
viewed Sodomsky’s computer files, after Sodomsky left his computer at a
Circuit City store for service (abandoning his privacy interests in the
property for a limited time) and, during the course of that service visit, a
clerk happened upon the files in question. Although the police eventually
seized Sodomsky’s computer, it was only after they had probable cause to
do so upon viewing the pornographic video clip.
Furthermore, the Jones Court clearly explained that it was not
creating new law. Rather, the Court stated: “We have no doubt that such a
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1
The Jones decision was authored by Justice Scalia, joined by Chief Justice
Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor. Justice
Sotomayor also authored a concurring opinion in which she expressed
concern with the current state of the law concerning the reasonable
expectation of privacy in our digital information society. However, she noted
“[r]esolution of these difficult questions in this case is unnecessary …
because the Government’s physical intrusion on Jones’ Jeep supplies a
narrower basis for decision.” Jones, 132 S.Ct. 957 (J. Sotomayor,
concurring). Finally, Justice Alito, joined by Justices Ginsburg, Breyer and
Kagan, concurred in the judgment. Justice Alito opined that the decision
should be based upon whether the defendant’s “reasonable expectations of
privacy were violated by the long-term monitoring of the movements of the
vehicle he drove.” Id. at 958 (J. Alito, concurring in judgment).
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physical intrusion[, as occurred here,] would have been considered a ‘search’
within the meaning of the Fourth Amendment when it was adopted.” Jones,
supra, 132 S.Ct. at 949. Although the Court recognized that after its
decision in Katz, the focus of Fourth Amendment jurisprudence shifted to a
defendant’s reasonable expectation of privacy, it explained that Katz “did
not narrow the Fourth’s Amendment’s scope.” Id. at 951. Rather, the Katz
decision expanded Fourth Amendment protections without “withdraw[ing]
any of the protection which the Amendment extends to the home.” Id.,
quoting Alderman v. United States, 394 U.S. 165, 180 (1969).
The Jones Court relied upon the Supreme Court’s decision in Soldal
v. Cook County, 506 U.S. 56 (1992), in which the Court “unanimously
rejected the argument that although a seizure had occurred in a technical
sense when a trailer home was forcibly removed, no Fourth Amendment
violation occurred because law enforcement had not invade[d] the
[individuals’] privacy.” Jones, supra, 132 S.Ct. at 951 (internal
punctuation omitted), citing Soldal, supra. In distinguishing Katz and its
progeny, the Soldal Court opined:
[T]he message of those cases is that property rights are not
the sole measure of Fourth Amendment violations. …
There was no suggestion that this shift in emphasis [from the
protection of property to the protection of privacy privacy] had
snuffed out the previously recognized protection for property
under the Fourth Amendment. Katz, in declaring violative of the
Fourth Amendment the unwarranted overhearing of a telephone
booth conversation, effectively ended any lingering notions that
the protection of privacy depended on trespass into a protected
area. In the course of its decision, the Katz Court stated that
the Fourth Amendment can neither be translated into a provision
dealing with constitutionally protected areas nor into a general
constitutional right to privacy. The Amendment, the Court said,
protects individual privacy against certain kinds of governmental
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intrusion, “but its protections go further, and often have
nothing to do with privacy at all.” 389 U.S., at 350, 88 S.Ct.,
at 510.
Soldal, supra, 506 U.S. at 64 (emphasis supplied).
Accordingly, since I find Jones did not constitute an intervening
change in the law, I would conclude the trial court abused its discretion in
re-opening Sodomsky’s suppression hearing.2
Second, I find that the Majority disregarded this Court’s prior decision
when it engaged in a plain view analysis.
It is axiomatic that “[t]he Fourth Amendment prohibits only
unreasonable searches” and seizures. Grady v. North Carolina, 135 S.
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2
I recognize that Rule 581 permits a defendant to file a supplemental
suppression motion when “the opportunity did not previously exist or the
interests of justice otherwise require.” Pa.R.Crim.P. 581(B) (emphasis
supplied). However, traditionally, Pennsylvania courts have applied the
“interests of justice” exception “to excuse a party’s tardy presentation of a
suppression motion.” Commonwealth v. Johonoson, 844 A.2d 556, 561
(2004) (emphasis supplied), appeal denied, 863 A.2d 1144 (Pa. 2004). See
id. (finding no abuse of discretion on the part of the trial court in denying
tardy supplemental suppression motion when defendant knew facts
surrounding the stop at time he filed his first motion; in initial motion he
argued his statement to trooper was not voluntary, but in supplemental
motion he claimed entire encounter was an illegal investigative detention).
But see Commonwealth v. Long, 753 A.2d 272 (finding trial court did not
abuse its discretion in considering defendant’s untimely, oral, supplemental
suppression motion presented at the close of the Commonwealth’s case
because motion challenged legitimacy of traffic stop based on videotape
from inside police cruiser, and videotape was not shown to the defense until
the first day of trial). Here, Sodomsky did not seek to file a “tardy”
suppression motion because he uncovered new evidence, rather he sought
to file a supplemental motion based upon an intervening change in the law.
Because I conclude the Jones decision did not create “new law,” I would
also find the “interests of justice” do not require re-opening his suppression
hearing.
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Ct. 1368, 1371 (U.S. 2015) (emphasis supplied). Therefore, even if the
search and seizure of Sodomsky’s computer implicated Fourth Amendment
protection under Jones, it would not justify suppression of the evidence
unless the actions of the government were unreasonable. Moreover, while
the Majority correctly states that “a warrantless search or seizure is
presumptively unreasonable[,]” it recognizes that there are a few “clearly
delineated exceptions” to the warrant requirement, namely, the “plain view”
doctrine. Majority Memorandum at 16 (emphasis supplied), citing
Commownealth v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013), appeal
denied, 87 A.3d 320 (Pa. 2014).
However, the Majority then concludes that the plain view exception is
not applicable in the present case because “the suspect video file was not in
‘plain view’ when Officer Phillips arrived at the scene, nor was its criminal
nature readily apparent.” Id. at 17. In doing so, the Majority ignores the
fact that a panel of this Court, in the appeal from the first order suppressing
the evidence in this case, determined that the plain view exception to the
warrant requirement applied under the facts of this case. In the original
Sodomsky appeal, this Court stated:
In the present case, police did not violate the Fourth Amendment
in arriving next to the computer. Circuit City, which owned the
premises, had granted them permission to enter the repair area
though their on-site employees. Accord McCullum, [602 A.2d
313 (Pa. 1992)] (where police had permission of tenant to be in
apartment, they had lawful vantage point from which to view
incriminating evidence); cf. Commonwealth v. English, 839
A.2d 1136 (Pa. Super.2003) (police had plain view of marijuana
growing on defendant’s porch but violated Fourth Amendment by
entering onto premises without warrant, consent, or exigent
circumstances; plain view doctrine therefore did not apply). The
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videos were not obscured in that they could be seen readily from
that location.
We also conclude that the incriminating nature of the video files
was immediately apparent. [Sodomsky] suggests that it was
unclear whether the videos depicted child pornography because
police could not ascertain the age of the naked male, whose face
was not revealed, from the portion of the video that they
viewed. We disagree. [Sodomsky] ignores the titles assigned to
the videos on his computer. Mr. Richert stated that the titles
listed a masculine name, an age of either thirteen years old or
fourteen years, and “different types of sexual acts.” N.T.
Suppression Hearing, 9/28/05, at 24. The video titles, together
with the clip of a naked male with a hand reaching for the penis,
made it “readily apparent” that the videos were of illegal child
pornography. Finally, police had the lawful right to access the
videos because, as analyzed extensively above, [Sodomsky] had
abandoned any reasonable expectation of privacy in them.
Commonwealth v. Sodomsky, 939 A.2d 363, 370 (Pa. Super. 2007).
Under the “law of the case” doctrine, and based on this Court’s prior
decision, I would decline to revisit the applicability of the plain view doctrine
in this appeal. See Commonwealth v. McCandless, 880 A.2d 1262, 1268
(Pa. Super. 2005) (“The doctrine of ‘the law of the case’ is that, when an
appellate court has considered and decided a question submitted to it upon
appeal, it will not, upon a subsequent appeal on another phase of the case,
reverse its previous ruling even though convinced it was erroneous.”),
appeal dismissed as improvidently granted, 933 A.2d 650 (Pa. 2007).3
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3
I recognize there are exceptions to the applicability of the law of the case
doctrine, such as, where there is “an intervening change in the law, a
substantial change in the facts, or if the prior ruling was ‘clearly erroneous’
and ‘would create a manifest injustice if followed.’” McCandless, supra,
880 A.2d at 1268 (citation omitted). However, none of those exceptions are
applicable here. It is important to note that the Jones decision, while
opining that a search of a person’s “effects” may violate the Fourth
(Footnote Continued Next Page)
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Therefore, because I conclude the trial court abused its discretion in
re-opening Sodomsky’s suppression hearing, I am compelled to dissent.
_______________________
(Footnote Continued)
Amendment even though the person may have no reasonable expectation of
privacy in that “effect,” did not consider whether the “search” of Jones’s car
was “reasonable” because the issue was waived by the Commonwealth.
Jones, supra, 132 S.Ct. at 954. Therefore, even if I found the Jones
decision to be applicable and relevant, it would not necessarily compel a
different result under the facts of this case.
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Com. v. Sodomsky, K.
Combined Opinion