Com. v. Ani, N.

Court: Superior Court of Pennsylvania
Date filed: 2023-04-17
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J-S35011-22

                                   2023 PA SUPER 67



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    NNAEMEKA ANI                               :   No. 1208 MDA 2021

                 Appeal from the Order Entered August 12, 2021
       In the Court of Common Pleas of Centre County Criminal Division at
                        No(s): CP-14-CR-0001582-2019


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.:                     FILED: APRIL 17, 2023

        The Commonwealth appeals from the trial court’s order granting

Appellee Nnaemeka Ani’s motion to suppress all evidence recovered from the

execution of five search warrants. Each warrant pertained to Appellee’s cell

phone, its iCloud1 backups, or its service provider records. The trial court

determined that each warrant was lacking in probable cause and/or

overbroad. The Commonwealth has abandoned its challenge to the first two

warrants, arguing that the remaining three were valid. Our primary task is to

decide the applicability of Commonwealth v. Green, 265 A.3d 541 (Pa.

2021), issued after the trial court’s order, which held that the standard

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*   Former Justice specially assigned to the Superior Court.

1The iCloud service backs up data contained on an iPhone, typically items like
photos, videos, text messages, and device settings.
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announced in Commonwealth v. Grossman, 555 A.2d 896 (Pa. 1989)

(holding that the Pennsylvania Constitution requires a description of items to

be seized “as specifically as is reasonably possible”), applies to searches of

digital spaces.     Alternatively, the Commonwealth asserts that the three

warrants established probable cause to at least some of the items requested

in the warrants and that the trial court erred by failing to conduct a severability

analysis. We conclude that the Commonwealth failed to establish probable

cause to search Appellee’s cell phone for the vast majority of items requested.

We agree that the doctrine of severability applies and hold that the

Commonwealth may use locational data generated by the phone as well as

data pertaining to Appellee’s use of the phone’s flashlight function with respect

to the third warrant. We agree with Appellee that the fourth and fifth warrants

must be suppressed as fruit of the poisonous tree. We therefore affirm in

part, reverse in part, and remand for further proceedings.


                                               I.

                         Factual and procedural history

       The five search warrants involved Appellee’s alleged role in a series of

home invasion crimes.2 For ease of discussion, we first set forth a summary

of the facts.

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2We also note that this criminal case was consolidated with a rape case, for
which Appellee has been convicted and sentenced. Commonwealth v. Ani,
(Footnote Continued Next Page)


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       The investigation commenced on November 2, 2019, when Natalia

Beltran, a Pennsylvania State University student residing in the University

Terrace apartment complex, called the State College Police Department

shortly after 8:00 a.m., reporting that an unknown male had entered her

bedroom. Beltran, who had been sleeping, stirred when the actor shone a

light from his cell phone on her.         She pretended to wake up to scare the

individual, who fled the bedroom. Officers obtained surveillance video from

the apartment complex, showing a male, later identified as Appellee,

attempting to open several doors in the hallway. Appellee is seen entering

Beltran’s apartment at 08:05 a.m. and exiting three minutes later.        Video

surveillance showed Appellee entering two other apartments on November 2.

       Building management confirmed that Appellee was a resident of

University Terrace, and they suspected that he was responsible for two

unresolved criminal trespass incidents reported by fellow University Terrace

residents, occurring on October 13, 2019, and October 31, 2019. Officers

spoke to eyewitnesses, who reported the following. Kate Deng discovered

Appellee inside her University Terrace apartment on October 13, 2019.

Appellee claimed that he was visiting a roommate of Deng’s, and told Deng

that he would text her roommate. The victim observed Appellee using his cell



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283 A.3d 386 (Pa. Super. 2022) (unpublished memorandum). That matter is
pertinent to the investigation as it is referenced within the fifth warrant
application.

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phone. Deng also reported that on October 16, 2019, she heard her front

door close but no one else had been inside the apartment. Her roommate,

Abigail Helmer, discovered that a vape cartridge had been moved from her

bedroom to the living room. Deng identified Appellee from a photo lineup.

      Regarding the October 31 incident, Hilda Sould told police that she heard

someone inside her apartment.        A neighbor confronted Appellee shortly

thereafter and identified Appellee from a photo lineup.

      Appellee was arrested on November 5, 2019, and the police seized a

black iPhone 6 incident to the arrest. The authorities secured search warrants

for the phone and ultimately found several incriminating images and videos

occurring over the timespan of October 13, 2019, through November 5, 2019.

These items included a photograph of Deng sleeping taken from inside her

bedroom and evidence that Appellee took pictures of stolen credit cards.

      The Commonwealth charged Appellee via criminal information with six

counts, with a date range of October 13, 2019, through November 2, 2019.

Counts one, two, and three were for violations of 18 Pa.C.S. § 3502(a)(1)(ii)

(Burglary), and counts four, five, and six for violations of 18 Pa.C.S. §

3503(a)(1)(i) (Criminal Trespass).    The first three counts do not specify a




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victim. Counts four, five, and six name, respectively, Natalia Bertrand, Kate

Deng, and Abigail Helmer.3

       On April 1, 2021, Appellee filed a motion to suppress the five search

warrants, arguing that each warrant was “not supported by probable cause,

is overly broad, and is lacking in particularity[.]” Motion, 4/1/21, at 9 (first

warrant). An identical claim was asserted against each of the other warrants.

Id. at 11 (second warrant); 13 (third warrant); 15 (fourth warrant); 23 (fifth

warrant). The Commonwealth filed a brief in response on July 26, 2021. The

trial court entered an order and accompanying opinion on August 10, 2021,

suppressing all evidence recovered from the warrants.

       We now set forth the contents of each warrant application.       This is

necessary because the legal determination of whether a warrant was

supported by probable cause is limited to the four corners of the affidavit.

Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003). “[E]ven the

slightest alteration in the underlying facts can have great effect on the

probable cause analysis.” Commonwealth v. Johnson, 240 A.3d 575, 589

n.7 (Pa. 2020) (Opinion Announcing the Judgment of the Court).          In this

regard, Appellee points to facts missing in some of the warrant applications.

See, e.g., Appellee’s Brief at 22 (noting that the third warrant application,



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3 It does not appear that the Commonwealth had charged Appellee with any
additional crimes following the execution of these warrants and prior to the
trial court’s suppressing the evidence.

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unlike the first application, did not state that Appellee appeared to be sending

a text message). The Commonwealth has abandoned its challenges to the

first two warrants. Accordingly, before addressing the legal issues, we discuss

the three warrants at issue, which are the third, fourth, and fifth warrants in

chronological order.

                          Warrant #3 - April 21, 2020

      This warrant listed the item to be searched as a “[c]ell phone belonging

to [Appellee]. The cell phone is a black iPhone 6.” Application for Search

Warrant, 4/21/20, at 1.    Under the “identify items to be searched for and

seized” field, the application states, “See attachment A.” That document was

appended to the application. It states:

      The memory/data storage of a black iPhone 6 cellular handset
      belonging to [Appellee] for data/information, and any “cloud”
      storage applications connected to the cellular handset,
      concerning any of the following on October 13, 2019, October 31,
      2019, and November 2, 2019: use of the flashlight; Apple Health
      data; use of the camera application to take photographs or record
      video; use of any applications requiring the use of the phone’s
      keyboard, including text, photo, or video message applications,
      Internet browsers, and applications for voice or video calls;
      locational data, as compiled by the phone’s internal GPS device
      or other components or applications of the phone capable of
      identifying and memorializing the geographic location of the
      cellular handset. The search is to be conducted for evidence,
      direct and corroborative, of the criminal offenses identified in the
      Affidavit of Probable Cause to this warrant application,
      incorporated herein by reference in its entirety.

Id. (Attachment).

      The affidavit begins by explaining the police response to Beltran’s

apartment on November 2, 2019, and references her observation that the


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male “entered her bedroom and flashed a light from his phone on her person.”

Id. at 2. It discusses the video surveillance showing Appellee visiting two

other apartments on November 2, 2019.

      With respect to October 13, 2019, the affidavit establishes that

Detective Hanes “interviewed the residents … on 11/5/19.” Id. at 3. This

interview included Kate Deng and her boyfriend, Peter Giammanco. Id. Deng

informed Detective Hanes that she was in her bedroom and heard the back

door to her apartment open. When she went to see if it was her roommate

she saw “a black male standing in her kitchen who she did not know.” Id.

The actor claimed that he was waiting for Deng’s roommate and “said he would

text her roommate[.]” Id. He then exited the apartment. A few days later,

Giammanco entered Deng’s apartment through the back entrance. He heard

the front door close. He asked Deng if anyone else was home. Deng stated

she had been sleeping and had not invited anyone inside. Id. Deng identified

Appellee from a photo lineup. Id.

      The affidavit also discusses the October 31, 2019 incident. Detective

Hanes’ affidavit states that two police officers went to Hilda Sould’s apartment.

She reported that on October 31, 2019, she heard a door close and went to

investigate. As she did so, her neighbor Rafi Birro “was walking up to the

apartment and stated he just saw a black male exit her apartment and jog

away.” Id. Detective Hanes then interviewed Birro, who stated that he was

returning to his apartment when he saw a black male exit Sould’s apartment.


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The male “covered his face with a hood and jogged from the area.” Id. Birro

identified Appellee from a photo lineup.

                         Warrant #4 - May 22, 2020

      The fourth warrant was to be served on Apple, Inc., as the manufacturer

of Appellee’s cell phone. The application requested a warrant to search the

following:

      All storage backups to the iCloud for the iOS device associated
      with the following email accounts: ralphemek@gmail.com &
      ranlmeks@gmail.com and associated with phone number,
      14127588148, that ha[ve] occurred from 10/13/2019 through
      11/5/2019. Items to be searched for are applications generating
      locational data and/or other information consistent with Ani’s
      presence and behavior at the scene of the offenses described in
      the affidavit. The backups should include information on, but not
      limited to, the subscriber information for the Apple accounts, mail
      logs, my Photo Stream; iCloud Photo Library; Internet Browsing
      History; Maps Search History; all messages including SMS; MMS,
      iMessages, and other messaging applications; Health Data; IP
      address logins; and other information on when iOS Device
      Backups had been completed by the device.

Application for Search Warrant, 5/22/20, at 1.

      The affidavit of probable cause discusses the execution of Warrant #3.

The affidavit states that Officer Dan Lewis of Ferguson Township assisted and

was unable to complete a full extraction due to its passcode security.

However, Officer Lewis “was able to perform a partial extraction of the cell

phone.” Id. at 4. That partial extraction revealed that the phone was linked

to   two     Apple   iCloud    accounts    under     the   email    addresses

ralphemek@gmail.com and ranlmeks@gmail.com. Additionally, a backup to

the cloud service was completed on November 5, 2019. The partial execution

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also indicated that the phone connected to several WiFi access points in the

University Terrace building around the time of the November 2, 2019

burglaries.

      The detective stated, based on his training and experience, that iPhones

use “Locational Based Services in several applications … to assist the user with

information and services.”     Id.   The affidavit listed dozens of applications

which commonly use these location services, including Facebook, Instagram,

web browsing apps, weather apps, messaging apps, dating apps, health apps,

and ridesharing apps. Location data can also pinpoint where photographs and

videos were taken by using GPS, Bluetooth, WiFi, and cell tower locations to

determine the phone’s location.      Id. Detective Hanes requested a search

warrant for all storage backups to the iCloud service “that ha[ve] occurred

from 10/13/19 through 11/5/19.”        Id.   The affiant intended to search for

“applications generating locational data and/or other information consistent

with [Appellee]’s presence and behavior at the scene of the offenses described

in the affidavit.” Id.

                         Warrant #5 - September 8, 2020

      The final warrant at issue was obtained after the execution of Warrant

#4 produced several incriminating photographs. It requested permission to

search for the following items:

      Photographs, videos, and associated geolocation data comprising
      evidence of the crimes of rape/sexual assault, burglary, criminal
      trespass, loitering and prowling at nighttime, invasion of privacy,
      theft, identity theft, and access device fraud found on the iCloud

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       backups      associated     ralphemek@gmail.com         [sic]   &
       ranimeks@gmail.com and phone number, 14127588148,
       currently in the possession of affiant, Detective Martin-Hanes, at
       the State College Police Department.

Application for Search Warrant, 9/8/20, at 1.

       The premises to be searched were listed as the iCloud back up data as

provided by Apple, which was likewise “currently in the possession of the State

College Police Department.”        Id.

       A ten-page affidavit was attached. The affidavit begins by discussing a

series of crimes reported to the Ferguson Township Police Department

between July 2017 and December 2018. The affidavit supplies details of over

a dozen incidents, which included a series of loitering complaints, suspected

burglaries, and rape. All of these incidents occurred in the area of 110 West

Aaron Drive, with a consistent suspect description. The affidavit relates that

Appellee was arrested on December 17, 2018, and an iPhone was seized

incident to the arrest.4       A search warrant for DNA was obtained, and on

January 11, 2019, the lab reported that Appellee’s DNA was linked to a rape

reported on October 18, 2017. Appellee was charged on January 15, 2019,

for that rape, and, on May 18, 2019, Appellee posted bail and was released

from Centre County Jail. As previously mentioned, Appellee was convicted of

this rape.



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4 It is not clear whether this was a different phone, as authorities seized an
iPhone on November 5, 2019, when Appellee was arrested.

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      The next paragraph discusses the November 2, 2019 report from Beltran

that precipitated this set of warrants, as well as the follow-up investigations

and the execution of the April warrant.        This affidavit describes what the

authorities learned from Warrant #4.       After Apple provided the material,

Detective Hanes received assistance from “Glenn K. Bard of PATCtech,” who

was able to decrypt the supplied data. Id. at 9. The data was then loaded

into forensic software for review. This review “uncovered evidence of criminal

activity committed by [Appellee] within the time frame specified in the

warrant, 10/13/19 through 11/5/19.”           Id.   Additionally, “[a]s Bard was

locating the relevant images … he noticed numerous images of Driver’s

licenses and credit cards in plain view.” Id. at 10. These images showed the

name “Erica Culler” and Detective Hanes confirmed that Culler had made a

report on July 16, 2018 “of an unknown black male who was seen holding her

wallet[.]” Id. Based on the several unsolved incidents in the same geographic

area with a suspect profile matching Appellee, this warrant sought to expand

the search of Appellee’s phone.

                           Suppression and appeal

      The trial court granted Appellee’s motion to suppress and filed an

accompanying opinion with its order.     The court concluded with respect to

Warrant #3 that

      not all items requested … were supported by probable cause.
      Specifically, the [c]ourt finds the request to search the ‘use of any
      applications requiring the use of the phone’s keyboard, including
      text, photo, or video message applications, Internet browsers, and

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       applications for voice or video calls[]’ that occurred on October
       13, 2019, October 31, 2019, and November 2, 2019 to be
       overbroad and unsupported by probable cause.

Order, 8/10/21, at 10.

       The court explained that the four corners of the affidavit mentioned

Appellee’s phone only twice, which established that Appellee was observed

using his phone’s flashlight function in Beltran’s apartment and that he

mentioned texting when confronted by Deng. The court concluded that these

references “do[] not provide law enforcement with sufficient probable cause

to have such broad access to [Appellee]’s cellular phone.       The [a]ffidavit

provided no information alleging [Appellee] took a photograph or filmed a

video during the October 13th and October 31st incidents.” Id. at 11. The

court determined that the request to search for anything that used the phone’s

keyboard was “overbroad[,] as it is difficult to imagine what application, if

any, does not in some way require the use of the cellular phone’s keyboard.”

Id.

       The Commonwealth filed a timely notice of appeal pursuant to Rule of

Appellate Procedure 311(d)5 and complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) statement. The Commonwealth raised, for the first time, a


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5  “In a criminal case … the Commonwealth may take an appeal as of right
from an order that does not end the entire case where the Commonwealth
certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.” Pa.R.A.P.311(d). In its notice of
appeal, the Commonwealth certified that the prosecution of Appellee is
substantially handicapped by the trial court’s order granting suppression.

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claim that the trial court should have severed any portions of the warrant it

deemed invalid.   Id.   The court filed a Rule 1925(a) opinion, adopting its

previously-filed opinion as to the warrants.   Responding to the severance

claim, the trial court stated, “some items contained in the … warrant

applications were supported by sufficient probable cause.   However, … the

vast majority of the items … were unsupported[.]”       Trial Court Opinion,

10/11/21, at 2. The Commonwealth raises the following two issues for our

review:

     [1.] Whether the suppression court erred in granting suppression
     on the following grounds:

           a. [T]hat Warrant #3 was overbroad because it
           “grant[ed] law enforcement … unlimited access to
           [Appellee’s] cellular phone for the day in question,
           allowing them to use Warrant #3 as an investigatory
           tool”;

           b. [T]hat Warrant #4’s authorization to search for and
           seize “other information consistent with [Appellee]’s
           presence and behavior at the scene of the offenses”
           rendered the warrant “overly broad and lacking in
           particularity”; and

           c. [T]hat Warrant #5’s authorization to search for and
           seize    “photographs,     videos,  and    associated
           geolocational data comprising evidence” of crimes
           described in Affidavit #5 rendered the warrant invalid
           because the date range for those crimes was not
           specifically described.

     [2.] Whether, assuming that portions of Warrants 3, 4, and 5
     suffered from overbreadth, the suppression court erroneously
     failed to apply the doctrine of severance to the valid portions of
     the warrants.

Commonwealth’s Brief at 4.


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                                      II.

                             Parties’ Arguments

                               Commonwealth

      The Commonwealth’s fundamental position is that there was probable

cause to believe that Appellee’s iPhone contained evidence of the home

invasion crimes because Appellee was seen using his phone by various

eyewitnesses. It emphasizes that a review of the four corners of an affidavit

requires a commonsense view and courts cannot read the language in a hyper-

technical fashion.

      The Commonwealth submits that the Supreme Court of Pennsylvania’s

decision in Green, discussed in greater detail infra, establishes that the trial

court erred in suppressing these warrants.     Starting with Warrant #3, the

Commonwealth argues that the trial court erroneously focused on the

language permitting officers to search for the “use of any applications

requiring the use of the phone’s keyboard” as being overbroad.      Application

for Search Warrant, 4/21/20 (Attachment). The affidavit, which was expressly

incorporated into the warrant, contained “limiting language constrain[ing] the

search to evidence related to” criminal trespass and burglary offenses.

Commonwealth’s Brief at 26.      Moreover, the warrant was limited to three

dates: October 13, October 31, and November 2, 2019.            “This temporal

specificity goes above and beyond the Green requirements.” Id. According

to the Commonwealth, the temporal limitation and the limiting language

ensured that “no indiscriminate or discretionary search of the phone could

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have been conducted[.]” Id. The facts submitted in the application permitted

the magistrate to conclude that “evidence of criminal activity was likely to be

found on [Appellee]’s phone.” Id. at 27. The Commonwealth argues that the

facts established “a pattern of trespassing into the residences of young women

without their knowledge, when they were present, at times using his phone

and, in any event, probably in possession of a phone that was compiling

evidence of his location.” Id.

      Turning to Warrant #4, the Commonwealth criticizes the trial court for

focusing on the language allowing the affiant to search for evidence

“consistent with [Appellee]’s presence and behavior at the scene of the

offenses described in the affidavit.” Application for Search Warrant, 5/22/20,

at 4. The trial court determined that this was too vague. The Commonwealth

argues that the trial court read the language “in a vacuum, ignoring the

detailed qualifications in the affidavit.” Commonwealth’s Brief at 28-29. “Had

[the trial court] read the rest of the sentence, the court would have recognized

that the crimes in the affidavit were limited to the dates the burglaries and

trespasses occurred on October 13, 2019, October 31, 2019, and November

2019.” Id. at 29. Additionally, “the information sought was limited to only

those items/information specifically identified in the affidavit.”     Id.   The

warrant application “does not list general classes such as ‘all data’ or ‘all

applications’; rather, the affiant specifies the exact types of data which should

be included in the backups.” Id. The items requested “relate directly to the


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‘offenses described in the affidavit.’” Id. (quoting warrant application). The

warrant was limited “to iCloud backups from October 13, 2019 through

November 5, 2019 (which encompassed the criminal incidents described in

the affidavit).” Id. at 30.

      Finally, regarding Warrant #5, the Commonwealth emphasizes that the

trial court acknowledged that probable cause existed to conduct a limited

search of Appellee’s iCloud backups. The court, in its view, erred by citing the

possibility that the Commonwealth was permitted to search all the way back

to 2011, when the iCloud service was launched. Warrant #5 did not seek

authorization to go back to 2011; rather, it “clearly defined the temporal scope

of the warrant, identifying with specificity various criminal offenses committed

from September of 2017 through 2019 concerning which there was a

reasonable probability of [Appellee]’s involvement.” Id. at 32. As with the

prior offenses, the affidavit makes clear “that the items sought pertain to

specifically-identified criminal acts,” as set forth in the affidavit of probable

cause. Id. at 33.

      Alternatively, the Commonwealth argues that if this Court agrees that

probable cause was lacking to some of the items, the trial court erred by failing

to apply the doctrine of severance.

                                    Appellee

      Appellee submits that this Court should accept the trial court’s analysis

of each warrant. The court thoroughly reviewed each warrant and measured



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the sufficiency of the warrant’s description against the items supported by

probable cause. Appellee explicitly notes that this claim is raised under both

the Fourth Amendment to the United States Constitution and Article I, Section

8 of the Pennsylvania Constitution, and cites the Grossman standard, which

is specific to Article I, Section 8.

      Beginning with Warrant #3, Appellee points out that, unlike Warrant #1,

this application did not mention Appellee’s being seen texting on his phone.

Appellee’s Brief at 21-22. While the affidavit mentions Beltran seeing Appellee

use his phone’s flashlight, the only mention of texting is the conversation

between Deng and Appellee, wherein Appellee told Deng that he was looking

for her roommate and would text her. Appellee additionally submits that, in

any event, there is nothing in the affidavit of probable cause to indicate that

Appellee used his phone to take pictures or record video.

      Turning to Warrant #4, Appellee agrees with the trial court that the

request to search for information “consistent with” Appellee’s presence and

behavior gives officers unbridled discretion. “There is no indication of what

type of ‘other information’ police were expecting to find on the phone.” Id.

at 29. The “vagueness and lack of any type of specificity and particularity

provided for in this description” establishes “the lack of probable cause[.]” Id.

Moreover, the warrant was not limited to three specific dates, unlike Warrant

#3. Instead, the warrant was for an entire three-week period. In conjunction

with the vague authority to look for any information “consistent with”


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Appellee’s presence, authorities were seeking to conduct a general exploratory

search, which is forbidden by both the United States and Pennsylvania

Constitutions.   Appellee also submits that this warrant was tainted by the

illegal searches performed under the three prior warrants, all of which were

found invalid. Id. It is clear that the authorities relied on information from

the prior warrants because Warrant #4 explicitly references the results of

Warrant #3. Id. at 34. Appellee also argues that the Commonwealth would

not have been able to determine the email accounts associated with his iCloud

backups and his cell phone number absent the execution of the first two

warrants, which the Commonwealth no longer challenges.

      Finally, Appellee acknowledges that Warrant #5 establishes a stronger

basis for probable cause because it references incriminating evidence found

during the prior searches. However, Appellee maintains that the warrant is

still defective because it gives police “carte blanche to search the entire phone

for any and all photos and videos.” Id. at 36. In any event, this warrant was

tainted because the incriminating evidence on which this warrant rests were

uncovered during the execution of Warrant #4. Id. at 38.


                                      III.

      Searching a cell phone presents difficult Fourth Amendment and Article

I, Section 8 questions. While the validity of the warrant is a question of law,

“we are not to conduct a de novo review of the issuing authority’s probable

cause determination, but are simply to determine whether or not there is


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substantial evidence in the record supporting the decision to issue the

warrant.” Commonwealth v. Torres, 764 A.2d 532, 540 (Pa. 2001).

       We begin with the general principles applicable to search warrants.

                                               A

                                   General principles

       The United States Constitution6 and the Pennsylvania Constitution7 both

protect citizens from unreasonable searches and seizures.           The Fourth

Amendment “was a reaction to the evils of the use of the general warrant in

England and the writs of assistance in the Colonies, and was intended to

protect against invasions of the sanctity of a man’s home and the privacies of

life, from searches under indiscriminate, general authority.” Warden, Md.

Penitentiary v. Hayden, 387 U.S. 294, 301 (1967) (quotation marks and

citation omitted).     Pennsylvania’s analogous constitutional provision stems

from the same concern.           “The framers of the Pennsylvania Constitution

thought the right to be free from unrestricted police intrusions so critical that



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6 “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV.

7 “The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any place
or to seize any person or things shall issue without describing them as nearly
as may be, nor without probable cause, supported by oath or affirmation
subscribed to by the affiant.” Pa. Const. Art. I, § 8.

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they secured the right for future generations by including it in the original

Constitution of 1776.” Grossman, 555 A.2d at 899.

      Obviously, this is not an absolute bar on searching protected areas,

provided that the authorities possess sufficient probable cause to search as

determined by a neutral magistrate. “The point of the Fourth Amendment …

is not that it denies law enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection consists in requiring that

those inferences be drawn by a neutral and detached magistrate[.]” Johnson

v. United States, 333 U.S. 10, 13–14 (1948). “[P]robable cause is a fluid

concept—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set of legal rules.”

Illinois v. Gates, 462 U.S. 213, 232 (1983). See Commonwealth v. Gray,

503 A.2d 921, 922 (Pa. 1985) (adopting Gates as the test for search warrants

under Article I, Section 8). “To establish probable cause, the Commonwealth

must demonstrate that a search meets the requirements of the ‘totality-of-

the-circumstances’ test.” Commonwealth v. Barr, 266 A.3d 25, 40 (Pa.

2021) (citation omitted). A magistrate presented with an application for a

warrant must “make a practical, common-sense decision whether, given all

the circumstances set forth in the affidavit before him … there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.” Id. (citation omitted).




                                     - 20 -
J-S35011-22


      If there is probable cause to search, the warrant must be properly

limited in scope. “The requirement that warrants shall particularly describe

the things to be seized makes general searches under them impossible and

prevents the seizure of one thing under a warrant describing another. As to

what is to be taken, nothing is left to the discretion of the officer executing

the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). Our

charter has been interpreted to offer more protections than its federal

counterpart in several areas, including the required degree of particularity.

      The language of the Pennsylvania Constitution requires that a
      warrant describe the items to be seized “as nearly as may be….”
      The clear meaning of the language is that a warrant must describe
      the items as specifically as is reasonably possible.         This
      requirement is more stringent than that of the Fourth
      Amendment, which merely requires particularity in the
      description.

Grossman, 555 A.2d at 899 (footnote omitted).

      This Court has recognized that the particularity component subsumes

two distinct, although often related, concepts. The first concept addresses the

degree of particularity required.   A warrant that is not “particular enough”

permits “a search in terms so ambiguous as to allow the executing officers to

pick and choose,” which amounts to the rummaging that so offended the

drafters of the federal and state constitutions. Commonwealth v. Santner,

454 A.2d 24, 25 n.2 (Pa. Super. 1982). This first component thus ensures

that the authorities are sufficiently limited in what they can seize. The second

concept is overbreadth. A warrant can be clear in terms of what will be seized,


                                     - 21 -
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thus ensuring that the authorities’ discretion does not permit a general

rummaging.       But if the warrant allows authorities to seize items for which

probable cause does not exist, it may be overbroad. Id.

      Applying these concepts to the digital evidence sphere, our sister court,

the Oregon Court of Appeals, offered a summary of these distinct concepts in

a case involving the search of digital evidence, framing the former concept as

“specificity.”

      Those two concepts—specificity and overbreadth—again, have
      independent significance. For example, a warrant can precisely
      and unambiguously identify items to be forensically examined,
      satisfying the specificity concern, but nevertheless be invalid as
      overbroad if there is no probable cause to examine some of those
      items. However, the two can, and frequently do, conflate. That
      is, failure to identify with sufficient specificity the place to be
      searched or the items to be seized and examined can sanction
      invasions of protected privacy unsupported by probable
      cause. See, e.g., State v. Castagnola, 145 Ohio St.3d 1, 17,
      46 N.E.3d 638, 656 (2015) (noting “overlap” of those concepts
      with respect to warranted searches of electronic devices).

State v. Mansor, 381 P.3d 930, 793–939 (Or. App. 2016), aff’d, 421 P.3d

323 (Or. 2018).        Our Supreme Court has identified these defects as

“symptoms of the same disease.”

      Moreover, for particularity purposes, we have clarified that
      although some courts have treated overbreadth and ambiguity as
      relating to distinct defects in a warrant, see Commonwealth v.
      Santner, … 454 A.2d 24, 25 n.2 ([Pa. Super.] 1982), “both
      doctrines diagnose symptoms of the same disease: a warrant
      whose description does not describe as nearly as may be those
      items for which there is probable cause.” Grossman, 555 A.2d
      at 899-900.
Johnson, 240 A.3d at 584.

                                        B

                                      - 22 -
J-S35011-22


                            Digital versus physical

      Searching digital evidence poses unique issues, owing to the distinctions

between searching physical versus digital spaces.       Before the advent of

personal electronic devices and their tremendous storage capacities, the usual

Fourth Amendment case involved the search of a physical space. The United

States Supreme Court has held that, when searching a physical space for an

item, authorities may search anywhere where that item may be.

      A lawful search of fixed premises generally extends to the entire
      area in which the object of the search may be found and is not
      limited by the possibility that separate acts of entry or opening
      may be required to complete the search. Thus, a warrant that
      authorizes an officer to search a home for illegal weapons also
      provides authority to open closets, chests, drawers, and
      containers in which the weapon might be found. A warrant to
      open a footlocker to search for marihuana would also authorize
      the opening of packages found inside. A warrant to search a
      vehicle would support a search of every part of the vehicle that
      might contain the object of the search. When a legitimate search
      is under way, and when its purpose and its limits have been
      precisely defined, nice distinctions between closets, drawers, and
      containers, in the case of a home, or between glove
      compartments, upholstered seats, trunks, and wrapped packages,
      in the case of a vehicle, must give way to the interest in the
      prompt and efficient completion of the task at hand.

United States v. Ross, 456 U.S. 798, 820–21 (1982) (footnotes omitted).

      “The    United   States   Supreme      Court    has   advised   that   a

valid search warrant authorizes the search of any container found on the

premises that might contain the object of the search.” Commonwealth v.

Petty, 157 A.3d 953, 957 (Pa. Super. 2017) (citing Ross). As a result, if

police have probable cause to seize a particular piece of property, that


                                    - 23 -
J-S35011-22


probable cause permits a search of anywhere where the item could be located.

See Commonwealth v. Turpin, 216 A.3d 1055, 1060 (Pa. 2019) (holding

that Article I, Section 8 “does not preclude a search of the entire residence

regardless of whether a particular individual not named in the warrant has an

expectation of privacy in certain areas of that residence”). This includes the

ability to cursorily examine items to see what they are.           Andresen v.

Maryland, 427 U.S. 463, 482 n.11 (1976) (“[I]t is certain that some

innocuous documents will be examined, at least cursorily, in order to

determine whether they are, in fact, among those papers authorized to be

seized.”).

      That principle is much easier to apply in the physical world; an officer

could not open a closet to search for a stolen vehicle. However, the container

analogy breaks down when considering a device like a computer or phone.

The United States Supreme Court’s decision in Riley v. California, 573 U.S.

373 (2014), held that the search incident to arrest exception does not permit

a search of a phone. “Treating a cell phone as a container whose contents

may be searched incident to an arrest is a bit strained as an initial matter.”

Id. at 397. Moreover, when executing a search of a physical space to seize

items, the seizure and search occur more or less simultaneously. Officers who

have probable cause to seize a particular item will first search for it then, when

it is discovered, seize it. Searching through digital evidence differs in that it

usually entails a search for the devices that are seized, followed by a later,


                                     - 24 -
J-S35011-22


second search of the seized devices, with the later search almost always

occurring off-site.   See Commonwealth v. Orie, 88 A.3d 983, 1008 (Pa.

Super. 2014) (“Given the distinctive nature of a USB flash drive, like other

types of digital storage systems (e.g., a computer hard drive), it must

be seized in its entirety first and then searched at a later time (typically by

someone with an expertise in this area).”) (emphasis in original).

      The container analogy can become even more strained when the data

“may not in fact be stored on the device itself. … Cell phone users often may

not know whether particular information is stored on the device or in the cloud,

and it generally makes little difference.” Riley, 573 U.S. at 397. And the

very nature of digital evidence makes it far more difficult to identify in advance

which “containers” in the device might hold the sought items. Consider child

pornography, as discussed in our Supreme Court’s decision in Green. There,

authorities discovered that a particular child pornography image was available

on a file-sharing network.    The affiants determined that the material was

shared from Green’s residence, but they could not identify the particular

device sharing the file.   Thus, the affiants obtained a warrant to seize all

electronic storage devices from his home, which would then be taken offsite

and “searched for evidence relating to the possession and/or distribution of

child pornography.”     Green, 265 A.3d at 546 (quoting application for

warrant). The Green Court first concluded that the warrant was not defective

in terms of the items to be seized.       The next question was whether the


                                     - 25 -
J-S35011-22


authorized search of the devices seized was overbroad. Green argued that

the authorities’ probable cause “was limited to the evidence of child

pornography shared from his IP address on December 28, 2014, and therefore

the warrant was overbroad for failing to include ‘specific dates, types of files,

[or] specific programs.’”   Id. at 554 (quoting Green’s brief; bracketing in

original). This asserted limitation was based on the fact that the affiant

downloaded a specific child pornography image. The Court disagreed, stating:

      Although Corporal Goodyear personally downloaded an image file
      depicting child pornography on December 28, 2014, that did not
      mean probable cause was limited to that particular date or that
      particular file. The affidavit of probable cause explained that,
      based on the corporals’ experience investigating this type of
      crime, individuals who download and share child pornography
      usually maintain a collection of child pornography in a secure,
      private location for long periods of time. Importantly, the affidavit
      noted that the user investigated here “had such a collection of
      child pornography available on a [file-sharing] network.” Affidavit
      of Probable Cause at ¶ 25. These facts established probable cause
      that someone was sharing a collection of child pornography in
      general, which is exactly what the warrant permitted the officers
      to search for and seize. Because probable cause was not limited
      to the single instance of conduct that [the a]ppellant points to, the
      warrant did not need to include a specific date, type of file, or
      program in order to satisfy the requirement to describe the items
      as nearly as may be.

Id.
      Green also argued that the warrant’s self-limiting language, which

restricted the officers to search for “evidence relating to the possession and/or

distribution of child pornography,” was not a meaningful check on officers’

discretion and was therefore overbroad. The Court responded that this case

“is not one where officers were given free rein to look at anything within the


                                     - 26 -
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phone to generally look for evidence of a crime.” Id. at 554. The Court cited

our decisions in Orie, supra, and Commonwealth v. Melvin, 103 A.3d 1

(Pa. Super. 2014), as cases that properly deemed a warrant overbroad

because those warrants permitted rummaging.

      The Green Court rejected the appellant’s request “to establish a unique

overbreadth standard for the contents of electronic devices.”       Id. at 555.

Thus, the Grossman standard applies in the physical and digital spheres.

                                       C

                   Two basic approaches to probable cause

      This case requires us to determine how Grossman’s standard requiring

that the warrant “must describe the items as specifically as is reasonably

possible” applies to this set of facts. Green illustrates the difficult quandary.

On the one hand, probable cause to search for evidence contained in a digital

device like a phone will often require quite broad searches to find items for

which the authorities have probable cause. But that search, in practice, ends

up looking a lot like rummaging due to the differences in searching physical

containers versus digital containers. Green recognized that the authorities

needed to search everywhere on Green’s computer for evidence of child




                                     - 27 -
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pornography, as those files can exist anywhere.                 That search could lead

investigators to discover evidence of other crimes.8

        As an initial matter, we agree with the Commonwealth that some

aspects of the trial court’s opinion arguably conflict with Green. For example,

in reviewing Warrant #3, the trial court concluded that “not all items

requested … were supported by probable cause.”                     Trial Court Opinion,

8/10/21, at 10. Its opinion identified the request in Warrant #3 to search the

“use of any applications requiring the use of the phone’s keyboard, including

text,   photo,   or   video    message         applications,   Internet   browsers,   and

applications for voice or video calls” on October 13, October 31, and November

2 of 2019, as particularly problematic. The court concluded that this request

was “overbroad and unsupported by probable cause” because it is difficult to

imagine “what application, if any, does not in some way require the use of the

cellular phone’s keyboard.” Id. at 11. The Commonwealth responds that the

proper inquiry “is not whether probable cause existed for all applications using

the keyboard on the phone; rather, it is whether probable cause existed for

applications using the keyboard on the phone during the time frame sought

based upon the information in the affidavit.” Commonwealth’s Brief at 26.


____________________________________________


8 Courts have struggled with whether the plain view exception to the warrant
requirement makes any sense in the digital search context. “A number of
courts have considered the application of the plain view doctrine in computer
search cases, and the cases are divided.” State v. Mansor, 421 P.3d 323,
339 (Or. 2018) (collecting cases).

                                          - 28 -
J-S35011-22


      We note that some decisions from other jurisdictions have applied a

“category” approach for smartphone searches. The United States Court of

Appeals for the Fifth Circuit panel decision in United States v. Morton, 984

F.3d 421 (5th Cir. 2021), overruled on reh’g en banc, United States v.

Morton, 46 F.4th 331 (5th Cir. 2022), is illustrative and has straightforward

facts. Morton was stopped for speeding and gave officers consent to search

his vehicle. That search revealed three cell phones, sixteen ecstasy pills, and

marijuana, leading to his arrest for drug charges.    Officers also recovered

“children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s

underwear in the vehicle,” and based on those items officers suspected that

“Morton might be a pedophile.”      Id. at 424. Officers applied for a search

warrant for the three phones; however, the affidavit only sought to recover

evidence relevant to the drug offenses based on the affiant’s training and

experience with drug trafficking.    The warrant sought to “search Morton’s

contacts, call logs, text messages, and photographs for evidence of his drug

possession crimes.” Id. The warrants were issued and, while searching the

phones’ photographs, officers saw child sexual-abuse materials.      A second

warrant was secured, leading to 19,270 images. Morton was then convicted

of possessing those materials.

      The initial panel determined that the warrant violated the Fourth

Amendment, as probable cause must exist with respect to each “category” of

information sought. “As the government properly conceded at oral argument,


                                     - 29 -
J-S35011-22


separate probable cause is required to search each of the categories of

information found on the cellphones.” Id. at 425 (footnote omitted). The

panel found that its holding “dovetails with the Fourth Amendment’s

imperative that the ‘place to be searched’ be ‘particularly describe[ed].’” Id.

(alterations in original). Thus, the panel viewed the relevant “place” to be

searched as a particular area of the phone’s digital contents, as opposed to

the entirety of the phone itself. It concluded that probable cause existed to

search the “categories” of contacts, call logs, and text messages on the cell

phone, but not the “category” of photographs. The panel explained that the

key flaw in the search request was that the officers only had probable cause

to link Morton to minor possessory offenses, whereas the affiant relied on his

experience with drug traffickers. The affidavit explained that “criminals often

take photographs of co-conspirators as well as illicit drugs and currency

derived from the sale of illicit drugs[.]” Id. at 429 (quoting affidavit).9 The

panel acknowledged that this assertion might be relevant in a case where

there was probable cause to establish the individual was a drug trafficker, but



____________________________________________


9 The United States Court of Appeals for the Fifth Circuit heard the case en
banc and subsequently decided in the government’s favor based on the good
faith exception to the exclusionary rule, finding that the warrant was not “bare
bones.” Morton, 46 F.4th at 339. As a result, the panel did not squarely
address the validity of the warrant. Regarding the original panel’s approach,
the Morton en banc panel noted that the “categories” concept was relevant
to the scope of the warrant and whether it was “bare bones.” “Viewing the
entire affidavit against the broad phone search it authorized, it is borderline
rather than bare bones.” Id.

                                          - 30 -
J-S35011-22


that was not the case under these facts. See also Burns v. United States,

235 A.3d 758, 777–78 (D.C. 2020) (concluding that the affidavit in support of

the warrant “established probable cause to look for and seize evidence likely

to be found in at most three narrow categories of data on Mr. Burns’s

phones”).

      Other courts reject the notion that probable cause must be linked to any

particular “category.” Those decisions explain that the very nature of digital

evidence resists easy classification and, thus, requiring the authorities to

establish probable cause for certain categories of information amounts to an

ex ante restriction.   This view holds that authorities must be given broad

discretion to search, because authorities have no way to know what a file

contains unless they open it.

      Digital evidence also differs from physical evidence in that, for
      most files, there is no way to know what data a file contains
      without opening it, meaning that desired data may be located in
      any part of the digital media or organizational structure. Indeed,
      data stored on a computer hard drive may be physically located
      in multiples places on the drive, and it is unhelpful and often
      inaccurate to think of the data as being located at any particular
      “place” or “places.” In the physical world, a handgun cannot be
      disguised as—and will not be mistaken for—a kitchen table, nor
      will it be found in a pill bottle. But in the virtual world, that kind
      of deception—or error—is possible.           A picture file may be
      intentionally disguised as a text file, for example, by changing the
      extension of the file name or by including the picture in a Microsoft
      Word document, which would be properly saved as a .doc (or
      similar) file. A picture file may contain text information if, for
      example, the picture is of a page of a book. Sophisticated users
      can hide digital data in much more complex ways, including
      changing date and time metadata and encrypting files so that they
      cannot be opened. See Orin S. Kerr, Executing Warrants for
      Digital Evidence: The case for use restrictions on nonresponsive

                                     - 31 -
J-S35011-22


      data, 48 Tex. Tech. L. Rev. 1, 16 (2015) (“Data can always be
      changed. Maybe the modification will be easy or maybe it will be
      hard. But it can always be done.”). Similarly, information can be
      hidden unintentionally. Most of us have had the experience of
      neglecting to name or properly “save” a document, only to have
      it disappear into an obscure temporary file, with its sole identifier
      a number assigned by the software. And even those with limited
      computer skills can easily delete their internet search “history” on
      a particular internet browser, although evidence of those searches
      will likely remain elsewhere on the hard drive.          A forensic
      examiner who locates intentionally (or unintentionally) hidden
      information on a computer likely has responded to clues, followed
      instincts, and pursued many dead ends before being
      successful. See Orin S. Kerr, Searches and Seizures in a Digital
      World, 119 Harv. L. Rev. 531, 545 (2005) (“[G]ood forensic
      analysis is an art more than a science.”).

State v. Mansor, 421 P.3d 323, 332 (Or. 2018).

      This approach recognizes that if this type of search occurred in the

physical world it would be materially indistinguishable from rummaging. The

Mansor Court held that the proper balance between the legitimate law

enforcement need to conduct comprehensive searches versus an individual’s

right to privacy requires suppression of material that does not fall within the

“particular evidence” as specified within the warrant.

      To satisfy the particularity requirement of Article I, section 9, the
      warrant must identify, as specifically as reasonably possible in the
      circumstances, the information to be searched for, including, if
      available and relevant, the time period during which the
      information was created, accessed, or otherwise used.             We
      acknowledge that, for practical reasons, searches of computers
      are often comprehensive and therefore are likely to uncover
      information that goes beyond the probable cause basis for the
      warrant. In light of that fact, to protect the right to privacy and
      to avoid permitting the digital equivalent of general warrants, we
      also hold that Article I, section 9, prevents the state from using
      evidence found in a computer search unless a valid warrant
      authorized the search for that particular evidence, or it is

                                     - 32 -
J-S35011-22


     admissible under an exception to the warrant requirement.

Id. at 326.

                                    IV.

                         Review of Warrant #3

     We now address the validity of the warrants, starting with Warrant #3.

                                     A

      No probable cause to search for the majority of items requested

     As Green and Grossman hold, the natural starting point for this inquiry

is addressing probable cause.    “Consequently, in any assessment of the

validity of the description contained in a warrant, a court must initially

determine for what items probable cause existed.      The sufficiency of the

description must then be measured against those items for which there was

probable cause.”   Grossman, 555 A.2d at 900.        Initially, we reject the

Commonwealth’s broad reading of Green. The Commonwealth argues that

     Green makes it clear that the Pennsylvania Constitution imposes
     no per se requirement that a search warrant for a digital device
     be expressly temporally limited, i.e., that the warrant identify
     specific dates associated with the presence of evidence of criminal
     activity on the device. Similarly, there is no per se requirement
     that the warrant be categorically limited; the search warrant need
     not enumerate the exact categories of evidence or particular areas
     of the device -- files or programs -- that may be searched. Rather,
     a search warrant for a digital device with “limiting language
     provided in the warrant and supported by the affidavit of probable
     cause” will meet specificity requirements under the Pennsylvania
     Constitution.
Commonwealth’s Brief at 21.




                                   - 33 -
J-S35011-22


      The Commonwealth appears to interpret Green to say that its

recognition of the need to conduct a comprehensive search of digital devices

amounted to a holding that a warrant should be deemed valid provided there

is probable cause to search the phone at all, where the affidavit contains

“limiting language” cabining the authorities to searching for evidence of the

crimes being investigated.

      The Grossman standard asks for which “items” there exists probable

cause, which is an analytically difficult concept in the digital arena.    The

requirement that the warrant identify the “item” could be read to mean

“category,” such that text messages are treated differently than image files.

The Green Court recognized that digital evidence can be easily disguised or

hidden.   Green, 265 A.3d at 554 n.6 (“[T]he affidavit also explained how

easily these files can be hidden, modified, or destroyed, such that the device

needs to be searched in its entirety by a qualified computer expert in a

laboratory or controlled environment.”). Thus, an officer executing a warrant

to search digital evidence cannot determine whether the “items” are present

unless and until the device is thoroughly searched. Green thus suggests that

this type of “category” approach is inappropriate, for the reasons discussed in

Mansor. Moreover, the Commonwealth is correct that Green did not require




                                    - 34 -
J-S35011-22


a temporal limitation, nor did it require the officers to limit their search to any

particular category of evidence, such as image files.10

       However, we “employ[ ] the principle that the holding of a judicial

decision is to be read against its facts.” Commonwealth v. Resto, 179 A.3d

18, 22 (Pa. 2018). The probable cause inquiry asks whether “there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.” Barr, 266 A.3d at 40 (citation omitted). The facts in Green involved

a search of a computer for depictions of child pornography, which are

themselves contraband. Thus, the materials targeted by the warrant were



____________________________________________


10 Whether Green explicitly rejects the “category” approach in all respects is
an issue that is ripe for further development. We are unprepared to say that
the Green Court definitively rejected the categorical approach in all respects.
It may be the case that child pornography cases are treated differently than
other investigations for purposes of the “reasonably possible” standard.
Additionally, as Appellee states in his brief, our Supreme Court has recognized
that Article I, Section 8 protects a right to privacy that goes beyond the United
States Constitution. See generally Commonwealth v. Alexander, 243
A.3d 177, 207 (Pa. 2020) (explaining that Article I, Section 8 “must be read
in conjunction with more abstract considerations of how far the government
may encroach on the rights of citizens”).

We also note that the approach outlined in Mansor is tempered in at least two
critical ways. First, the tradeoff of permitting the authorities to perform
expansive searches of digital data is that the discovery of any items that are
not responsive to the warrant may not be used. Thus, searching for evidence
of child pornography would require suppression of evidence of drug trafficking.
Because this case involves an attack on how the warrants were drawn as
opposed to how it was executed, that issue is not before us. Second, Oregon
requires that the affidavit of probable cause be specific as to “the information”
requested and “when it is possible to limit the material searched to a particular
time period, that period should also be set out in the warrant.” State v. Bock,
485 P.3d 931, 935 (Or. App. 2021).

                                          - 35 -
J-S35011-22


illegal to possess. In contrast to Green, the material targeted by the warrant

in this case was not contraband. Instead, the Commonwealth searched the

phone for evidence of the crimes.

      Additionally, it is quite difficult to separate the probable cause resolution

in Green from its analysis of the overbreadth question. In rejecting Green’s

argument that the probable cause was limited to the particular child

pornography image downloaded, the Green Court pointed out that the target

of the investigation was “sharing a collection of child pornography in general,

which is exactly what the warrant permitted the officers to search for and

seize.”   Green, 265 A.3d at 554.       Thus, the “item” for which there was

probable cause was a collection of child pornography, which could be

anywhere on the device. In that context, a temporal limitation makes little

sense as the Court’s probable cause calculus did not consider a crime occurring

over a particular period of time.    Thus, nothing in Green suggests that a

temporal requirement will never be required.         If a temporal limitation is

“reasonably possible,” then Grossman demands its inclusion. In short, while

Green rejected adding more protections to the Grossman standard, the

baseline level of Grossman still requires more than the Fourth Amendment.

      In this case, we find that there was no probable cause to believe that

the phone would contain actual evidence of the crimes.           As the Mansor

approach is more favorable to the Commonwealth, we will accept arguendo

that it applies here; thus, if the authorities had probable cause to believe the


                                      - 36 -
J-S35011-22


phone contained “items” then the authorities could search the whole phone

for those items.    The Commonwealth essentially identified four “items” it

expected to find on Appellee’s phone: what we will refer to as “trophies” (e.g.,

photos or videos of items Appellee stole and/or the apartments that he

entered), potential communications about the crimes (as reflected in the

request to search text messages), location data, and evidence concerning the

phone’s flashlight usage.

      We begin with the first two of these “items” and conclude that the

Commonwealth failed to establish probable cause that those items would be

present on the phone. We find support for this holding in the Supreme Court

of Pennsylvania’s decision in Johnson, supra, which held that the affidavit

failed to establish probable cause to justify any search of Johnson’s phones.

Our Supreme Court had granted review “to consider an issue that is not so

simple: the permissible scope of … a warrant, under Article I, Section 8 of the

Pennsylvania Constitution, to search an individual’s cell phone for evidence

relating to illegal narcotics activity and firearms possession.” Id. at 578. The

plurality did not resolve that issue because it concluded that the affidavit of

probable cause failed to support any search of Johnson’s cell phone. In that

case, police officers were dispatched to a specific apartment due to a 911 call

of shots fired.    Officers entered and detained five individuals, including

Johnson. Officers observed, in plain view, two bricks of heroin. They also

recovered three stolen firearms from the top of the apartment’s hot water


                                     - 37 -
J-S35011-22


tank.    Johnson was arrested and officers seized two cell phones during a

search incident to arrest. Officers sought a search warrant for Johnson’s cell

phones, stating in the affidavit the following:

        As a result of the foregoing, your Affiant[s] respectfully request a
        search warrant issued for the black and gray Apple iPhone cellular
        phone and the black Samsung flip cellular telephone listed above,
        as well as any and all electronic and/or digital data contained
        within the cellular telephone or its storage medias/memory cards,
        such as incoming/outgoing calls, call logs, emails, personal
        calendars, cellular internet usage, wireless internet usage, GPS
        data, contact information, text messages, voice mails, notes,
        photographic images, IP addresses, contact information, and
        voice recordings whether or not the electronic and/or digital data
        has been erased, hidden, password protected or encrypted.

Id. at 580 (quoting affidavit of probable cause).

        The lead Justices expressed skepticism that the phones had any

connection to the drugs and firearms. “Naturally, one might pause at this

juncture to wonder, ‘What do appellant’s cell phones have to do with the drugs

and firearms in the apartment?’” Id. at 581. The Commonwealth’s probable

cause argument reduced to the proposition that, where “a drug-dealing

operation was being run out of the apartment in which police encountered [the

appellant] in the middle of the night, with … multiple cell phones on his person,

there was at the very least a fair probability that evidence of his involvement

in that operation would be found in the text messages on those phones.” Id.

at 586-87 (quoting Commonwealth’s brief; bracketing in original).              The

plurality rejected the conclusion that probable cause to arrest Johnson for

constructive possession necessarily supplied probable cause to search his



                                       - 38 -
J-S35011-22


phones. Id. at 587. The affidavit of probable cause must establish a nexus,

and the plurality found one lacking. The affidavit did not allege that Johnson

personally possessed, or was even aware of, drugs, guns, or anything else

related to the criminal activity.     There was “no information about the

frequency with which [the] appellant visited the apartment or the duration of

time he was present on the night in question.” Id. at 588. “Simply put, the

affidavit of probable cause in this case provide[d] little more than the bare

fact that [the] appellant was present in a place where illegal contraband

happened to be found.” Id. The Court noted the possibility that an affiant’s

specialized knowledge set forth in the affidavit could be relevant, but that it

did not apply “under the particular facts of this case” because nothing in the

affidavit of probable cause “remotely establish[ed]” that Johnson was a drug

trafficker as opposed to a guest where drugs were located. Id. That four

other people were present in the apartment, while the owner was not, was

additional support for that conclusion.

      As to the warrant’s alleged overbreadth, the plurality determined that

“the probable cause and overbreadth inquiries are not easily separated; on

the contrary, as Grossman makes clear, it is impossible to consider an

overbreadth challenge to a search warrant without taking probable cause into

account.” Id. at 586. When probable cause is wholly absent, “the warrant is,

quite literally in some sense, entirely ‘overbroad.’” Id.




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      Johnson provides some guidance on the probable cause inquiry here.

Just as the lead opinion rhetorically asked what Johnson’s phones had to do

with the drugs and firearms, one wonders what Appellee’s cell phones had to

do with the alleged home invasion crimes.           We recognize that, unlike in

Johnson, there is a stronger basis to conclude Appellee was linked to criminal

behavior. Whereas the appellant in Johnson was arguably merely present at

a location where drugs and firearms were kept, the affidavit of probable cause

in support of Warrant #3 established that Appellee was identified in photo

lineups by several eyewitnesses, and he was seen on video surveillance exiting

the apartment.

      But the affidavit in support of Warrant #3 does not, in our view,

establish sufficient probable cause to conclude that a search of Appellee’s cell

phone would yield any type of “trophy” evidence relevant to the burglaries or

criminal trespasses. The probable cause formulation established by Gates

permits a court to consider “probabilities in particular factual contexts,” and

courts examining     probable   cause   tend   to    credit,   at least in some

circumstances, inferences of human behavior related to the crimes at issue.

See, e.g., Commonwealth v. Lyons, 79 A.3d 1053, 1065 (Pa. 2013)

(finding probable cause to support search of murder suspect’s home for

evidence   where: victim’s co-worker      indicated Lyons        and victim had

extramarital affair; victim and Lyons were in frequent contact; Lyons went “on

the run” after murder; and affiant stated that in his experience perpetrators


                                     - 40 -
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of “gruesome crimes” often leave trace evidence in home); Commonwealth

v. Torres, 177 A.3d 263, 275 n.5 (Pa. Super. 2017) (noting that “[s]ome

federal   courts   have   held   that   it   is   reasonable   to   infer   that   drug

traffickers will often keep drug-related evidence in their residences and

businesses”); id. at 278 (Moulton, J., concurring) (opining that “evidence of

drug dealing unconnected to a home does not, without more, give probable

cause to believe that additional contraband will be found in the home”).

      A thorough treatment of this concept is set forth in Commonwealth v.

Jacoby, 170 A.3d 1065 (Pa. 2017). The affiant applied for a warrant to search

Jacoby’s home fifteen months after a murder. The Jacoby Court determined

that the affidavit of probable cause sufficiently established that Jacoby

committed the homicide, but it failed to establish a basis to search his home

for the potential murder weapon. The detective’s affidavit in support related

“that a .32 caliber shell casing was found at the scene of the murder. She

further indicated that the casing most likely came from a .32 caliber firearm,

possibly one manufactured by Kel–Tec.”             Id. at 1082.     Jacoby was the

registered owner of a Kel-Tec .32 caliber firearm. Id. The affidavit further

related that the weapon sought “is a unique item,” and that Jacoby was a

convicted felon ineligible to possess a firearm. Id. at 1083. The affidavit

concluded it was reasonable to believe Jacoby kept the weapon in his home,

even after that long period of time, as he “was likely to retain the weapon due

to the difficulty in procuring another one in light of his felon status.” Id. The


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Court explained that these facts were not sufficient to establish a nexus to

Jacoby’s home.

     Probable cause to search Jacoby’s home did not exist simply
     because probable cause existed to believe that he had committed
     the murder, with a weapon of the same caliber as one that he
     owned, and then drove in the general direction of his home fifteen
     months before the search warrant was issued. Together and by
     themselves, these factors do not justify entry without some nexus
     to the home. The trial court overlooked the significant gap of time
     between the murder and the search, and then attempted to
     buttress its conclusion with an unsourced assessment of general
     human behavior. Without support, the trial court reasoned that
     people—felons especially—generally do not discard firearms, even
     those used in murders.

     This broad perspective on probable cause finds no support in
     Pennsylvania law and is troubling on several levels. First, the trial
     court deviated from the search jurisprudence summarized above
     without acknowledging or attempting to distinguish it. The trial
     court would hold that, if police officers develop probable cause
     that a person committed an offense anywhere in the
     Commonwealth with a weapon of the same caliber as the one that
     he or she owns, probable cause exists automatically to search that
     person’s home, no matter where it is located. It is easy to discern
     the infirmity of this approach. If the trial court’s reasoning were
     to prevail, when a person commits an offense with such a weapon
     in Erie County, police automatically would have probable cause to
     search that person’s home, even if it is located in Delaware
     County.       This is inconsistent with Fourth Amendment
     jurisprudence.

     Additionally, the trial court’s method for evaluating probable cause
     does not require consideration, in any way, of the time lapse
     between the commission of the offense and the search. Rather
     than addressing the time gap, the trial court would rest upon its
     belief that people generally hold on to guns (even those used in
     murders) and that, as such, probable cause to search for guns
     exists in apparent perpetuity. By this logic, in the case of the Erie
     murder, the trial court would find probable cause to search the
     Delaware County residence not only immediately after the
     murder, but also fifteen months later, and presumably even ten
     years after the crime.

                                    - 42 -
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      Finally, aside from the deviation from the core principles of the
      Fourth Amendment and Article I, Section 8 that necessarily results
      from evaluating probable cause in such general, categorical terms,
      there is another obvious peril in considering probable cause in this
      manner.      People of different genders, races, religions, and
      backgrounds might respond to certain circumstances differently.
      Similarly, older people might not conduct themselves as a younger
      generation would. Mainers might not behave like Texans. There
      is nothing even to suggest that similar people within the same
      general category would respond to a set of circumstances in the
      same way. Probable cause to search Jacoby’s home must be
      evaluated based upon the circumstances of his case, his behavior,
      and any nexus to the location to be searched, but not upon
      categorical assumptions.        Our Constitutions prohibit such
      categorical conclusions, as well as those searches that are based
      upon such conclusions.

      The architects of our Constitutions rejected general searches, and
      instead charged police officers with demonstrating specific and
      articulable facts to establish probable cause that a particular
      person committed a particular crime and that evidence of that
      crime would be found in a particular place. The trial court’s
      approach shortcuts this bedrock inquiry with general assumptions
      about human behavior, untethered to the actual facts at hand,
      and was erroneous. For these reasons, we find an absence of
      probable cause in the warrant to believe that the murder weapon
      would be found in Jacoby’s residence fifteen months after the
      murder.     As such, we need not address Jacoby’s staleness
      argument.

Id. at 1084–85.

      Jacoby does not appear to completely foreclose some consideration of

the probability that a particular offender will behave in certain ways with

respect to assessing whether a sufficient nexus has been established, a point

underscored by the Green Court’s crediting the affiant’s training and

experience of how child pornographers generally act. Jacoby does, however,

hold that categorical assumptions cannot be the sole justification for probable

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cause.   In that respect, the affidavit here is even weaker than the flawed

affidavit in Jacoby, because these affidavits did not even attempt to claim

that home invaders are likely to have used their phones to aid the commission

of their crimes. To reiterate, it is questionable the extent to which a crime

like drug trafficking would ever permit a per se inference that a phone would

contain evidence of drug trafficking. But at least it could be said that the

“typical” drug trafficker would use their phones in a manner that justifies a

conclusion that the phone is likely to contain some relevant evidence of drug

trafficking. There is no obvious link to how a phone would aid the present

offenses in the same way that drug trafficking does. As reflected in the very

first warrant application—the suppression of which the Commonwealth does

not challenge—the affiants merely speculated that the phone may contain

evidence of the crime. Application for Search Warrant, 11/11/19, at 3 (“Your

Affiants would like to access [Appellee]’s phone to determine if there are any

videos that may have recorded the crime, or if [Appellee]’s phone connected

[to] WiFi at or around the victim’s apartment to determine his location.”).

      We add that in Johnson, the Court reserved the question of whether an

affiant’s training and experience with drug trafficking could be used to support

probable cause to search a phone. On this point, the Johnson decision cited,

inter alia, Commonwealth v. Morin, 85 N.E.3d 949, 960 (Ma. 2017),

wherein the Massachusetts Supreme Judicial Court offered “some guidance …

on the search of cellular telephones.” Id. at 960. “To begin, police may not


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rely on the general ubiquitous presence of cellular telephones in daily life, or

an inference that friends or associates most often communicate by cellular

telephone, as a substitute for particularized information that a specific device

contains evidence of a crime.” Id.

      We are mindful that Johnson is a plurality decision and not binding.

However, we deem its logic compelling, as supplemented by the preceding

discussion. Relying on an assumption that a phone may contain evidence of

a crime is the type of generic conclusions in place of individual circumstances

that Jacoby forbids. The fact that Appellee was seen using his cell phone

establishes little more than his using his phone. The Riley decision declined

to extend the search incident to arrest exception to the warrant requirement

to smartphones largely because smartphones are so integral to daily life, a

phenomenon that has only accelerated in the eight years since Riley. Thus,

it is quite easy to conjure up reasons why a phone might contain evidence of

a crime.   “It would be a particularly inexperienced or unimaginative law

enforcement officer who could not come up with several reasons to suppose

evidence of just about any crime could be found on a cell phone.” Riley, 573

U.S. at 399. Riley would amount to a mere paperwork requirement if the

Commonwealth could obtain a warrant to search a phone based on little more

than the fact that a citizen carried a phone while committing a crime. Thus,

the fact that Appellee was seen using his phone in the hallways of the victims’




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apartments and commented to Deng that he was sending a text message is

of minimal value.

      The Commonwealth hypothesizes that Appellee may have taken

photographs or videos during the commission of these crimes. Perhaps, but

that could be said of any crime, and seeks to enshrine a level of generality in

place of individual circumstances, which Jacoby forbids.        The phone in

Johnson could have included text messages establishing that Johnson was

involved in what looked from the outside to be a drug operation.         As in

Johnson, the notion that Appellee took evidence of his “trophies” or

videotaped his crimes rested on pure conjecture. We cannot imagine that, in

the era before cell phones became a daily part of life, a court would authorize

a search warrant for a home on the basis that such “trophy” photographs

would likely be present in a burglary suspect’s home. “[W]hen it comes to the

Fourth Amendment, the home is first among equals.” Florida v. Jardines,

569 U.S. 1, 6 (2013). Riley recognized that records stored on the phone are

more comprehensive than what would ever be stored in a home. “Indeed, a

cell phone search would typically expose to the government far more than the

most exhaustive search of a house[.]” Riley, 573 U.S. at 396 (emphasis in

original); Green, 265 A.3d at 564 (Wecht, J, dissenting) (“The search of all

places in a home and all effects located therein is more akin to the search of

an entire smartphone.”) (emphasis in original).




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      Finally, there is no indication that Appellee was using his phone to

communicate about the crimes. Some decisions have permitted the search of

a phone for evidence where specific facts warrant an inference that the phone

may have some evidence pertinent to the crimes. See Commonwealth v.

Dorelas, 43 N.E.3d 306, 312 (Ma. 2016) (holding that there was probable

cause to search phone for evidence of communications where “the defendant

had been receiving threatening communications on his iPhone with respect to

money he owed to ‘people’ and indeed had been using his iPhone while arguing

with an individual immediately prior to the shooting”). Here, the only evidence

to hint that Appellee used his phone to communicate are the references to

Appellee’s using his cell phone in the hallway and telling Deng he would send

a text message. Given the pervasiveness of cell phone usage in daily life,

including the use of text messages as a means of communication, we cannot

conclude that the affidavit’s references to Appellee using his cell phone

established probable cause to believe the phone contained evidence of the

home invasion crimes or that Appellee was in contact with potential

accomplices.   Thus, the warrant was not supported by probable cause to

support a search of the phone for what we have described as the first two

“items.” We therefore conclude that, even when viewing the warrant with the

deference owed to the initial magistrate, there was no substantial basis to

conclude the phone would contain those items.




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      We thus agree with the trial court that the warrant was defective, albeit

for slightly different reasons. “[A]s an appellate court, we may affirm on any

legal basis supported by the certified record.” Commonwealth v. Williams,

125 A.3d 425, 433 n.8 (Pa. Super. 2015) (citation omitted); Commonwealth

v. Parker, 249 A.3d 590, 593 (Pa. Super. 2021) (addressing potential

alternative basis for affirmance where Commonwealth appealed).

                                       B

          Probable cause existed for locational data and flashlight use

      This case is unlike Johnson, however, in that we find that probable

cause was not wholly absent. While the affidavit failed to establish a nexus

between the crimes and Appellee’s phone to justify a search for the first two

types of “items” we previously described, we agree that the affidavit did

establish probable cause that Appellee possessed the cell phone while

committing the crimes and that he used the cell phone’s flashlight functionality

while doing so. Thus, there was probable cause to obtain records concerning

the phone’s movement and its flashlight usage, and we agree that a properly

drafted warrant seeking those “items” would have been lawful. Cf. People v.

Reyes, 174 N.E.3d 127, 141 (Ill. App. 2020) (stating that “probable cause to

look for GPS data would not necessarily support a search of all of a cell phone’s

data”).   Indeed, Appellee indicates that there is a much stronger basis to

conclude that probable cause existed for these items. See Appellee’s Brief at

28 (noting that “probable cause might be found” for locational data generated


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by the phone). This raises the question of whether we may sever the invalid

portions from the remainder of the warrant.          See Commonwealth v.

Casuccio, 454 A.2d 621, 629 (Pa. Super. 1982) (“It would be totally

unrealistic to invalidate [a] warrant in toto merely because the affiant and

issuing authority erred in seeking and permitting a search for other items as

well and we decline to do so.”); see also Commonwealth v. Bagley, 596

A.2d 811, 824 (Pa. Super. 1991) (explaining that “[t]he doctrine of severance

mandates that invalid portions of a search warrant may be stricken and the

remaining portions held valid, as long as the remaining portions of the warrant

describe with particularity the evidence to be seized”).

      Initially,   we   address   Appellee’s   argument    that   severability   is

inconsistent with the Pennsylvania Constitution and its broader privacy

protections. See generally Commonwealth v. Edmunds, 586 A.2d 887

(Pa. 1991) (holding that Pennsylvania Constitution does not recognize good

faith exception to exclusionary rule); see also Commonwealth v.

Alexander, 243 A.3d 177, 183 (Pa. 2020) (“While Edmunds involved an

application of the exclusionary rule, our holding was tethered to the

fundamental concern for privacy within our own constitution.”). Appellee also

points out that the Commonwealth “argues in favor of severance, but never

addresses the doctrine’s validity or application under the Pennsylvania

Constitution.” Appellee’s Brief at 43. That charge is correct, and we add that

our Supreme Court has yet to address this issue. Johnson, 240 A.3d at 591


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(Saylor, C.J., dissenting) (noting the distinction between whether probable

cause to search a cell phone exists and the “separate requirement that

warrants not be overbroad[,]” and “the associated question of severability”).

Nonetheless, our precedents have accepted the severability doctrine, and we

decline to announce a departure from federal law in the absence of focused

briefing on the issue from both parties. Cf. Commonwealth v. Bishop, 217

A.3d 833, 840 (Pa. 2019) (holding that defendants seeking a new holding

departing from federal constitutional law must raise the issue in the trial court

and provide reasons supporting that view). We acknowledge that the doctrine

has become relevant only on appeal, and Appellee had little incentive to ask

for a departure when seeking suppression.           By the same token, the

Commonwealth had no incentive to argue a “compromise” position.              We

therefore rely on our existing caselaw and apply the doctrine.

      Severability presents a question of law, and we must apply the doctrine

as if we were the trial court. Here, the Commonwealth asks this Court to

follow the trial court’s lead with respect to all three warrants. Beginning with

Warrant #3, the Commonwealth explains that the trial court’s analysis

“state[d] that ‘not all items’ were supported by probable cause, clearly

implying that a search for and seizure of some, if not the remainder, of the

identified items was supported by probable cause.” Commonwealth’s Brief at

38-39.   It argues that the trial court merely determined that “applications

using the phone’s keyboard was the sole class of items not supported by


                                     - 50 -
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probable cause,” and the trial court therefore erred when it “chose to suppress

the entire warrant” in lieu of conducting a severability analysis. Id. at 39.

The Commonwealth, however, does not suggest which items should be

suppressed, perhaps because it does not wish to concede that probable cause

was lacking in any respect. “The suppression court in this case invalidated

the entire warrant based upon the conclusion that the search for and seizure

of one out of five classes of items was unsupported by probable cause, clearly

in violation of the caselaw regarding severance.” Id. at 40.

      Consistent with our foregoing analysis, which departed from the trial

court’s analysis in some respects, we find that Warrant #3 was valid only as

to the recovery of locational data and evidence concerning the phone’s

flashlight use.

      At this juncture, we address Appellee’s assertion that severability is not

warranted, as a restriction of the doctrine is that it does not apply to general

warrants.   See Casuccio, 454 A.2d at 630 (applying severance doctrine

because “the warrant was not essentially general in character”).       Appellee

suggests that this warrant was general in character because “the warrants’

descriptions in this case seeks ‘all’ of broad categories of items without

limitation.” Appellee’s Brief at 49.

      We disagree. This warrant did not authorize a search of “any and all

data” on the phone. Warrant #3 specifically delineated several items, and we

agree with the Commonwealth that the warrant was quite limited in temporal


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scope, as it was confined to the three known incident dates. We agree that

those temporal restrictions are relevant and as drawn the warrant did contain

a check on the officers’ authority. We therefore do not interpret Warrant #3

as authorizing a general rummaging of Appellee’s phone, except to the extent

that a comprehensive search is often required due to the distinctions between

physical and digital searches. We therefore agree with the Commonwealth

that severability is warranted, and the Commonwealth may lawfully use the

results of Warrant #3 with respect to locational data and any evidence

concerning flashlight usage.

                                      V.

           Warrant #4 and Warrant #5 must be suppressed

      Turning to Warrant #4, the Commonwealth similarly asserts that “this

warrant contained legitimate support for numerous classes of items which

were tied to the facts and probable cause listed in the affidavit, on which the

reviewing magistrate (another Court of Common Pleas Judge) found reason

to sign the warrant.” Commonwealth’s Brief at 41. Finally, for Warrant #5,

the Commonwealth suggests that the court “could have deemed fit to

suppress any information pre-July 2017 if it existed which would have allowed

the supported time period of July of 2017 onwards to remain intact as properly

supported. Such a decision would have been a much more proper remedy

than in toto suppression of the entire warrant.” Id. at 43.




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     Warrant #4 was effectively the same as Warrant #3 in substantive

terms and differed in the place to be searched, with Warrant #3 targeting the

phone itself and Warrant #4 authorizing a search of the phone’s iCloud

backups. Appellee argues that these warrants would not have been executed

absent the unlawful execution of Warrant #3, and the warrants must therefore

be suppressed as fruit of the poisonous tree.         “[G]enerally speaking, the

exclusionary rule applies to evidence that was obtained from a search or

seizure in violation of the Fourth Amendment. The fruit of the poisonous tree

doctrine extends the exclusionary rule to render evidence inadmissible which

was derived from the initially illegally obtained evidence.” Commonwealth

v. Santiago, 209 A.3d 912, 916 n.4 (Pa. 2019).

     We agree with Appellee that both warrants must be suppressed in their

entirety. First, we agree with Appellee that Warrant #4 would not have been

executed   without   linking   Appellee’s     phone   to   the   iCloud   accounts

ralphemek@gmail.com and ranlmeks@gmail.com.                 The Commonwealth

discovered those email addresses during the execution of Warrant #3.

Application for Search Warrant, 5/22/20, at 4 (explaining that a partial

extraction and examination of Appellee’s cell phone revealed it was linked to

those two Apple iCloud accounts).     Similarly, the execution of Warrant #4

yielded incriminating photographs, which in turn supported Warrant #5.

     There is a common problem to both discoveries: it is not clear how the

Commonwealth came across this information.            Returning to this Court’s


                                     - 53 -
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adoption of the severability doctrine, the Casuccio Court cited Professor

LaFave’s influential search and seizure treatise as supporting the adoption of

the doctrine. We find persuasive an additional observation from this treatise

that is pertinent to our analysis:

      It has been correctly noted that the “question of whether this kind
      of surgery might be performed might also depend to some extent
      upon the facts of each case, e.g., how was the warrant executed?”
      This is because the items described in the warrant determine the
      permissible intensity and duration of the search. ... But when
      other objects are seized under authority of the plain view doctrine
      (perhaps those objects insufficiently described in the warrant or
      those objects for which probable cause was not shown in the
      affidavit), a more careful inquiry into the circumstances is
      required. If the items were discovered before those to which the
      warrant was properly addressed were found and while the police
      were looking in places where the latter objects could be located,
      then it may be said that the discovery occurred while executing
      the lawful portion of the warrant. Were the circumstances
      otherwise, then it must be concluded that these other items were
      found during execution of the invalid part of the warrant.

2 Search and Seizure § 4.6(f) (6th ed.) (footnotes omitted).

      Here, the Commonwealth discovered Appellee’s email addresses during

the partial extraction of Warrant #3, and then discovered photographs when

executing Warrant #4. We agree that a search of Appellee’s cell phone per

Warrant #3 was justified only for locational data and flashlight usage. Thus,

the email addresses were not proper subjects of the search. Accordingly, we

must conduct a “more careful inquiry into the circumstances” to determine if

the Commonwealth was permitted to recover the email addresses, which in

turn led to the fourth and fifth warrants.




                                     - 54 -
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      We conclude that the answer is no for two related reasons. First, as

noted supra at note 8, the applicability of the plain view exception to digital

searches has generated divergent results.         The treatise quoted above

discusses a search of a physical space, and it is not clear on what basis we

could decide whether the discovery of the email addresses and the

incriminating photographs “occurred while executing the lawful portion of the

warrant.” Id. There was no evidence presented at the evidentiary hearing

concerning the execution of the warrant. Thus, even if we were inclined to

apply the “plain view” exception in the digital arena, there is simply no factual

record on which to test whether the officers exceeded the scope of their

authority. See Green, 265 A.3d at 555 n.7 (“It should be noted that [Green]

and amici repeatedly suggest that officers will look through a suspect’s private

information once a warrant provides a limited scope of access to a personal

digital device. This, however, is a separate issue than the overbreadth claim

before us.”). Second, and relatedly, just as we decline to decide Appellee’s

argument that the Supreme Court of Pennsylvania would reject the

severability doctrine, we are not prepared to address the difficult question of

plain view without any advocacy by the parties. The Commonwealth does not

claim that the plain view exception applies.      Instead, the Commonwealth

chose to defend the warrants, both before the trial court and on appeal, on

the basis that they are supported by probable cause, and the Commonwealth

does not raise any exceptions to the warrant requirement. As our Supreme


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Court explained in Commonwealth v. Price, 284 A.3d 165, 173 (Pa. 2022),

the “inevitable discovery doctrine is not a subsidiary issue to a claim of

adequate probable cause to support the issuance of a search warrant,” as

inevitable discovery is an exception to the warrant requirement. Plain view is

likewise an exception to the warrant requirement.         Commonwealth v.

McCree, 924 A.2d 621, 628 (Pa. 2007) (“[U]nder both the Fourth Amendment

and Article I, § 8, the plain view exception to the warrant requirement requires

a determination of whether the police have a lawful right of access to the

object seen in plain view.”). If the record established a clear application of

the plain view exception, we could perhaps excuse the failure to raise that

issue on the basis that a severability analysis requires a determination of what

items were severable on a de novo basis. But there is no caselaw establishing

that the plain view exception could apply under these circumstances.        We

therefore decline to consider its application.

       As a result, we apply the severance doctrine to permit only the recovery

of locational data and usage of the cell phone’s flashlight functions from the

execution of Warrant #3. The remaining two warrants are suppressed in their

entirety as fruit of the poisonous tree.11



____________________________________________


11 The Commonwealth obtained locational data during the execution of
Warrant #3. Application for Search Warrant, 5/22/20, at 4 (“On 4/21/20,
your Affiant obtained a search warrant. … Off. Lewis’ search of the cell phone
also found [Appellee]’s cell phone had connected to access points for Wi-Fi
throughout the ‘W’ building of University Terrace.”).

                                          - 56 -
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                                      VI.

                                 Conclusion

      We conclude that Warrant #3 failed to establish probable cause to

search Appellee’s cell phone for anything other than locational data and usage

of the cell phone’s flashlight functions. The recovery of those items during

the execution of Warrant #3 is severable from the defective portions of that

warrant.

      We affirm the trial court’s ruling suppressing Warrant #4 and Warrant

#5 on the alternative basis that those warrants are fruit of the poisonous tree.

The record does not establish any basis for the Commonwealth to search

Appellee’s iCloud data other than the discovery of his email addresses during

the execution of Warrant #3. The record further establishes that Warrant #5

would not have been obtained but for the recovery of incriminating

photographs during the execution of Warrant #4.        There was no probable

cause to recover Appellee’s email addresses during the execution of Warrant

#3, and we decline to apply the plain view exception under these

circumstances.   We express no opinion on whether that exception applies

during digital searches. We therefore remand for further proceedings.

      Order affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.




                                     - 57 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/17/2023




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