J-A18016-17
2017 PA Super 391
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS EDWARD SPERBER, JR. :
:
Appellant : No. 707 WDA 2016
Appeal from the Judgment of Sentence April 14, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002947-2015
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
CONCURRING OPINION BY BOWES, J.: FILED DECEMBER 12, 2017
I concur. However, I would affirm on the basis that Appellant
consented to the search of his vehicle, which resulted in the seizure of a
smartphone. Next, I would hold that the warrantless search of Appellant’s
phone was lawful. Finally, I would deem waived any claim respecting the
voluntariness of the consent.
I begin with Appellant’s suppression motion, which asserted that the
“search of [Appellant] and his vehicle was unlawful because an
uncorroborated anonymous tip cannot, on its own, form the basis for
reasonable suspicion.” Motion to Suppress, 8/21/15, at unnumbered 3.
Appellant alleged that “The warrantless seizure and search of [Appellant]
and his vehicle was unlawful because it was unsupported by reasonable
suspicion.” Id. at unnumbered 4. The motion additionally argued that the
subsequent search, arrest, and search warrant for the phone were fruits of
J-A18016-17
the tainted search and seizure. The body of the motion cited
Commonwealth v. Colon, 31 A.3d 309 (Pa.Super. 2011);
Commonwealth v. Kue, 692 A.2d 1076 (Pa. 1997) (OAJC); and
Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000) in support.
Appellant did not claim that his consent was involuntary.
Those cases and their attendant principles are inapplicable to the
matter at hand with respect to the initial search of Appellant’s vehicle and
consequent seizure of Appellant’s smartphone. Colon involved the search of
a parolee that was not the product of consent. Kue and Wimbush both
involved whether an anonymous tip was sufficiently reliable to support an
investigative detention. Therefore, those cases would be relevant to our
analysis only if Agent Wolfe had engaged in a nonconsensual warrantless
search of Appellant’s vehicle or his person, based on the anonymous tips
plus any other factor or information.1 At that juncture, we would assess, as
____________________________________________
1
Appellant presumably proceeded with suppression on that ground due to
the fact that the affidavit of probable cause does not discuss the
circumstances of the search. It reads, in pertinent part:
On August 27, 2014, Agent Wolfe was made aware of an
anonymous communication received by Pennsylvania State
Police Megan's Law concerning the Actor. The anonymous source
claimed that the Actor had Internet access and multiple social
media accounts.
On this same date (8/27/2014), the Actor reported to the PA
State Parole's Pittsburgh district office for routine reporting.
During a search of the Actor's vehicle, an LG MS232 Optimus
(Footnote Continued Next Page)
-2-
J-A18016-17
the Majority does, whether the vehicular search was justified. 2 However,
since the record supports a finding that the search of Appellant’s vehicle,
which resulted in the seizure of the smartphone, was consensual, I would
uphold the vehicular search on that basis.
_______________________
(Footnote Continued)
L70 Titan cellular phone (hereinafter referred to as "the Actor's
phone") was confiscated. Agent Wolfe noted that several social
networking applications appeared to be installed on the Actor's
phone. Please note that based on state supervision, the Actor did
not have permission to possess a phone with Internet
capabilities.
Affidavit of Probable Cause at 3.
2
My distinguished colleagues find that the anonymous tip was sufficiently
reliable to support the vehicular search. I am not convinced that their
analysis is correct. First, the record does not indicate whether the multiple
tips came from different sources, nor does it indicate whether such tips were
consistently delivered over a particular period of time. In any event,
accepting arguendo that the anonymous tips were reliable, the tips revealed
only that Appellant had a smartphone, not that the vehicle he drove to the
meeting contained said smartphone. Perhaps that assumption was
reasonable; perhaps not. However, when Appellant disclosed the contents
of his pockets, Appellant possessed a basic cellphone that did not appear to
possess Internet capabilities. Therefore, the anonymous tipsters’
information was arguably discredited, not corroborated.
Since the Majority fails to connect the reliability of the tip regarding
possession of a phone with the search of the car, the Majority implies that
the tips would permit Agent Wolfe to search Appellant’s home, person, car,
or any other possession in an effort to find the smartphone. Since parolees
have diminished Fourth Amendment rights, it may be that a search of the
vehicle Appellant used was reasonable. However, given the utter lack of
information regarding the anonymous information, to say nothing of how to
apply anonymous tipster principles in the context of a parolee search, we
need go no further than affirming the search based on consent.
-3-
J-A18016-17
I recognize that the consensual search herein occurred during a
scheduled, i.e. presumably mandatory, probation meeting. That fact does
not automatically render voluntary consent impossible. Commonwealth v.
Strickler, 757 A.2d 884 (Pa. 2000), a consensual search case,
demonstrates the applicable principles. Therein, a police officer encountered
a vehicle parked on the side of the road. He approached the occupants, who
stated they had stopped to urinate. The officer asked to see their licenses,
conducted a license check, advised them not to urinate on someone else’s
property, and thanked Strickler, the driver, for his cooperation. Id. at 886.
The officer took a few steps toward his vehicle, but then turned around and
asked Strickler “if he wouldn’t mind if I took a look through [the] car.” Id.
at 887. Strickler hesitated but agreed, and the search yielded drug
paraphernalia. The question was whether Strickler validly consented to the
search following the investigative detention. Id. at 888. Significantly, the
opinion concluded with an observation regarding the determination of
whether a seizure had occurred versus whether consent was voluntary.
Since both the tests for voluntariness and for a seizure centrally
entail an examination of the objective circumstances surrounding
the police/citizen encounter to determine whether there was a
show of authority that would impact upon a reasonable citizen-
subject's perspective, there is a substantial, necessary overlap in
the analyses. The reasons supporting the conclusion that
Strickler was not seized at the time that he lent his consent to
the vehicle search therefore also militate strongly in favor of a
determination that his consent was voluntary.
Id. at 901–02.
-4-
J-A18016-17
Herein, Appellant alleges that “the interaction between [Appellant] and
Wolfe, his parole supervisor, is properly characterized as an investigative
detention.” Appellant’s brief at 19. Appellant then asserts that this
investigative detention was not supported by the anonymous tips. As stated
in Strickler, whether Appellant was seized overlaps to a great extent with
the question of whether his consent was voluntary. The record is unclear as
to the circumstances of Appellant’s interactions with Agent Wolfe, and we
therefore lack the basis to say whether Appellant’s consent was procured
during a seizure. The lack of an evidentiary record on these issues is
chargeable to Appellant, as the issue of involuntary consent was raised for
the first time in his post-hearing brief as an alternative argument.
In the alternative, should it be determined that Mr. Sperber
consented to the search of his person and property, that consent
was invalid. The totality of the circumstances indicate that the
consent was lacking the crucial element of voluntariness. The
consent was invalid and the warrantless search of Mr. Sperber's
vehicle remains unlawful.
Post-Hearing Brief, 10/1/15, at 4. Since this claim was not pursued in the
written motion, nor raised during the suppression hearing, I would deem the
argument waived. See Pa.R.Crim.P. 581(D) (motion shall state grounds for
suppression); Commonwealth v. Dixon, 997 A.2d 368, 376 (Pa.Super.
2010) (en banc) (Commonwealth not required to present testimony
regarding how gun was recovered, since appellant only challenged the
legality of the seizure, not the manner of seizure).
-5-
J-A18016-17
Regarding waiver, I note that we recently issued an opinion in
Commonwealth v. Carper, --- A.3d ---, 2017 WL 4562730 (Pa.Super.
October 13, 2017), holding that a defendant validly preserved a suppression
issue based on an argument raised in a post-hearing brief. The defendant
therein was charged with DUI crimes and sought suppression of his blood
results based on Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), which
was decided following his arrest. In the defendant’s post-hearing brief, he
argued for the first time that, pursuant to Article I, Section 8 of the
Pennsylvania Constitution, the warrantless blood draw was not saved by
good faith reliance upon the law that existed at the time of the draw. We
held that the failure to raise that point of law in the written motion or at the
hearing did not result in waiver, observing:
The requirement that a defendant raise the grounds for
suppression in his or her suppression motion ensures that the
Commonwealth is put on notice of what evidence it must
produce at the suppression hearing in order to satisfy its burden
of proving that the evidence was legally
obtained. Cf. Commonwealth v. McDonald, 881 A.2d 858,
860–861 (Pa. Super. 2005) (internal quotation marks and
citation omitted) (“[W]hen a motion to suppress is not specific in
asserting the evidence believed to have been unlawfully obtained
and/or the basis for the unlawfulness, the defendant cannot
complain if the Commonwealth fails to address the legality of the
evidence the defendant wishes to contest.”). In this case, the
Commonwealth extensively addressed the Article I, Section 8
issue in its brief filed prior to the suppression hearing. It also
addressed the Article I, Section 8 issue in its argument prior to
the beginning of the suppression hearing. At the conclusion of
the suppression hearing, the Commonwealth stated that it called
a witness in order to prove that Appellee's consent was valid
notwithstanding the partially inaccurate DL–26 warnings. This is
the only additional evidence that the Commonwealth needed to
-6-
J-A18016-17
offer because of Appellee's Article I, Section 8 claim. Finally, the
Commonwealth did not object to Appellee raising a Article I,
Section 8 claim before the trial court. Thus, the Commonwealth
was not unfairly prejudiced by Appellee's delay in raising his
Article I, Section 8 claim.
Carper, 2017 WL 4562730 at *4.
Carper did not deem the issue waived since the necessary facts were
developed at the hearing. The same is not true here, as the evidentiary
record does not fully speak to the circumstances of Appellant’s encounter
with Agent Wolfe. The Commonwealth cannot be blamed for failing to
anticipate and rebut Appellant’s alternative argument that consent was
involuntary. Therefore, Appellant’s post-hearing attempt to raise the issue
of voluntariness did not preserve the issue for our review.
Next, I briefly address the separate search of the phone. Appellant
argues that he did not consent to this separate search; instead, he simply
disclosed the password needed to access the phone at Agent Wolfe’s
request.3 I agree that the record does not support a finding that Appellant
consented to the search of his phone. However, at this point in the
interaction, the anonymous tips were corroborated through discovery of the
phone, and the possession of the smartphone in itself was a parole
____________________________________________
3
Appellant did not allege that the disclosure of the password was compelled
or otherwise unlawfully obtained.
-7-
J-A18016-17
violation.4 I would therefore hold that the limited warrantless search of the
phone was justified due to corroboration of the tip, Appellant’s prior history,
and the need to ensure compliance with parole conditions.
Finally, I address Packingham v. North Carolina, 137 S.Ct. 1730
(2017), wherein the United States Supreme Court held that a North Carolina
statute prohibiting sex offenders from accessing social networking websites
was unconstitutional. Packingham involved a First Amendment challenge
to a criminal statute that applied to all convicted sex offenders, regardless of
whether they were still serving an actual sentence. Language in
Packingham suggests that an automatic flat prohibition on internet access
may be unduly restrictive of a sex offender’s First Amendment rights, and, in
turn, arguably unlawful as-applied to Appellant. However, at least one court
has suggested that Packingham would not prohibit a supervisory condition.
See United States v. Rock, 863 F.3d 827 (D.C. Cir. 2017) (declining to
find plain error in condition barring sex offender from possessing or using
any online service without prior approval; “Rock's condition is imposed as
part of his supervised-release sentence, and is not a post-custodial
restriction of the sort imposed [in Packingham].”).
____________________________________________
4
Appellant’s fruit of the poisonous tree argument hinges on our agreement
that the earlier seizure of the phone was improper. Since I would hold that
Appellant consented to the search which resulted in that discovery, I would
find that neither the initial search of the phone nor the subsequent search
warrant was tainted by any illegality.
-8-
J-A18016-17
Additionally, Packingham did not speak to whether more specifically
tailored requirements would be permissible in general, and certainly did not
address whether such restrictions could be justified based on the specific
circumstances of individual sex offenders. Indeed, Justice Alito’s concurring
opinion, joined by Chief Justice Roberts and Justice Thomas, criticized the
breadth of the Court’s language.
While I thus agree with the Court that the particular law at issue
in this case violates the First Amendment, I am troubled by the
Court's loose rhetoric. After noting that “a street or a park is a
quintessential forum for the exercise of First Amendment rights,”
the Court states that “cyberspace” and “social media in
particular” are now “the most important places (in a spatial
sense) for the exchange of views.” Ante, at 1735. The Court
declines to explain what this means with respect to free speech
law, and the Court holds no more than that the North Carolina
law fails the test for content-neutral “time, place, and manner”
restrictions. But if the entirety of the internet or even just “social
media” sites are the 21st century equivalent of public streets
and parks, then States may have little ability to restrict the sites
that may be visited by even the most dangerous sex offenders.
May a State preclude an adult previously convicted of molesting
children from visiting a dating site for teenagers? Or a site where
minors communicate with each other about personal problems?
The Court should be more attentive to the implications of its
rhetoric for, contrary to the Court's suggestion, there are
important differences between cyberspace and the physical
world.
-9-
J-A18016-17
Id. at 1743 (Alito, J., concurring). Therefore, I agree with the Majority that
Packingham does not alter our analysis, and any issue regarding its
application was not preserved for review.5
____________________________________________
5
The Majority states that Appellant could challenge the lawfulness of his
parole conditions in a PCRA petition filed at the underlying criminal docket. I
would refrain from opining on whether the PCRA would or could provide
relief pursuant to Packingham, especially insofar as Appellant would
presumably be seeking relief from continued obligations due to a change in
the law as opposed to challenging the conviction. See Commonwealth v.
Partee, 86 A3d 245 (Pa.Super. 2014) (motion to enforce plea agreement
does not fall under PCRA).
- 10 -
Commonwealth v. Sperber
Combined Opinion