The Pennsylvania Supreme Court has issued some important decisions in the past two months in the realm of criminal law and procedure. I detail the holdings of these opinions, note points of interest from the thoughtful concurrences/dissents filed, and offer some of my personal observations.
Comm. v. Santiago, __ A.3d __ (Pa., June 18, 2019)
This was a 5-2 Majority Opinion authored by Justice Todd. In this discretionary appeal, the supreme court considered “whether a police officer’s initial observations of a defendant at the scene of a crime, followed by a warrantless search of a cellular telephone left at the scene, which leads to the discovery of defendant’s identity, taints the officer’s subsequent in-court identification of the defendant.”
Held: “[U]nder the fruit of the poisonous tree doctrine, that an identification made as a result of a warrantless search of the contents of a cell phone renders such identification tainted and inadmissible. However, a pre-search identification may be admissible, if independent of the taint of the subsequent unconstitutional search.
It’s everything after the “however” that was troubling to the Dissent under the particulars of this case.
The very brief, truncated facts of this case were as follows. A driver had been pulled over by a Philadelphia officer on foot patrol due to tinted windows. When pulled over, the officer had a good opportunity to observe the driver during one to two minutes. When the driver could not produce his license, however, and reached for the center console, a struggle ensued whereby the officer reached into the car to prevent the driver from reaching the center console, and the driver took off, ultimately dragging and injuring the officer. Left behind, though, was a cell phone at the scene, and when the police accessed it for investigative leads without a warrant, the phone led police to Santiago. Police pulled a recent prison photo of his, and the injured officer would later identify Santiago as the driver.
Justice Wecht writing the Dissent, joined by Justice Donohue, said this:
To allow an encounter to serve as the “independent basis” upon which an in-court identification could later stand, without regard for the influence of a subsequent illegality, is to encourage police officers at the initial encounter to engage in unlawful conduct (i.e. searching a cell phone without a warrant or warrant exception in order to ascertain the suspect’s identify) without any consequences.
There is no indication that [the officer] “developed [a] capacity” to identify Santiago that was uninfluenced by the photo obtained as a direct result of the warrantless search of Santiago’s cell phone. The Commonwealth failed to meet its burden of proving by clear and convincing evidence that the unlawful search did not contributed to [the officer’s] knowledge or the accuracy of his identification. Therefore, [the officer’s] in-court identification “has been come at by exploitation” of the warrantless search of Santiago’s cell phone. As a result, the in-court identification must be suppressed.
Personal note: There were a couple of interesting “tid bits” in this case. First, both the Commonwealth and Santiago agreed that the warrantless search of the phone was unconstitutional; therefore, the supreme court never addressed a lurking issue in the background of whether the searched phone was abandoned and outside Fourth Amendment protection. Second, the Majority and the Dissent had differing interpretations of what Santiago challenged at trial—i.e. did he, in fact, challenge the officer’s initial observation testimony was infected by the taint of the unconstitutional search of Santiago’s cellphone? (This was a point of contention due to things trial counsel argued before the trial court.) In light of these things, I think the rule produced by the Majority of the court is a bad rule because the underlying record is bad. But saying that, on an ideal record—one without ambiguity as to trial counsel’s argument—I think the Dissent has the better grasp of what the prevailing law should be: that is, the Commonwealth should be prevented from identifying a defendant in court, as the suspect, when that identity was learned as the consequence of an unconstitutional search. (And I note: here, the search was only deemed unconstitutional because the parties stipulated to as much. In a future case, the Commonwealth may not so willingly concede that a phone left behind retains Fourth Amendment protection.)
Comm. v. Shaffer, __ A.3d __ (Pa., June 18, 2019)
This was a splintered 4-3 holding. Justice Baer wrote the Majority opinion. At issue here was whether Shaffer maintained a “reasonable expectation of privacy” in his computer files, which he took to a repair store to be fixed. While there, the technician came across child pornography, notified the police of the same, and when an officer arrived at the store, the technician “showed [him] the exact route taken to find the images,” purportedly exploring no more and no less than the technician did. Of course, this was all without a warrant.
The supreme court held that this review of Shaffer’s computer by the police officer was lawful under the “private search doctrine.” The Majority noted:
[W]e are not adopting the Commonwealth’s position that one abandons his expectation of privacy in his computer files when he delivers his computer to a commercial retail establishment for repair. Further, we reject as inapplicable the narrower holding . . . that one abandons his expectation of privacy when he consents to having the computer repaired in a manner that may result in the exposure of private information stored on the computer files. Instead, we hold that an individual’s expectation of privacy at the moment he relinquishes his computer to a commercial establishment for repair is irrelevant to our constitutional analysis because the computer technicians examining the contents of the computer are private actors, not subject to the restrictions of the Fourth Amendment. Thus, our decision to affirm the lower court’s judgment based upon the private search doctrine is not premised upon a preference to avoid the issue presented but, rather, arises from the inapplicability of Fourth Amendment jurisprudence to non-state actors.
We observe that the ramifications of applying an abandonment theory to the facts presented are profound, as the abandonment theory, unlike the private search doctrine, lacks the constitutional safeguard of a restricted scope of the government’s subsequent examination of the evidence discovered. Under an abandonment theory, the individual “checks his privacy interest at the door” when he requests a repair that may reveal the contents of private files stored on his computer. Once that expectation of privacy has been abandoned, there is no constitutional protection to be afforded, and the officer who responds to a report of child pornography found on a computer could potentially search every file on it without restriction. Applied to the facts presented, a true application of an abandonment theory would provide that when Officer Maloney arrived at CompuGig to view the images of child pornography found by Eidenmiller, he could have examined all of the files contained on Appellant’s laptop, as any expectation of privacy in those files had been abandoned.
Under the private search doctrine, however, as explained [ ], the officer responding to a report of child pornography found on a computer would be limited to viewing only those images revealed in the private search. Accordingly, application of the private search doctrine to the facts presented more narrowly tailors the scope of the governmental examination of the information revealed by the private search and offers greater protection of the privacy interests involved.
That is not to say that the application of the private search doctrine always affords greater protection. Where an unscrupulous computer technician takes it upon himself to peruse one’s personal information contained in various files stored on the computer, unrelated to the requested repair, and that technician later finds and reports to law enforcement images of child pornography, the Fourth Amendment is not implicated so long as the police officer does not exceed the scope of the private search conducted. This unsavory result, however, is not the fault of the application of a flawed legal theory, but rather a consequence of the Fourth Amendment’s guarantee against unreasonable searches by the government.
Personal note: Chief Justice Saylor authored a dissenting opinion in which Justice Donohue joined. The two are seemingly of the opinion that the case should’ve turned on the issue of abandonment, and both “agree with those courts which have held that a person does not abandon a reasonable expectation of privacy merely by turning a computer over to a repairperson to restore its functionality.” Neither justice, like Justice Wecht, would’ve resolved the case under the “private search doctrine” because the underlying record had not been adequately developed to resolve that legal question. Interestingly, however, Justice Wecht, unlike his dissenting colleagues, would’ve have resolved this case in favor of the government under the abandonment doctrine. Thus, what’s “clear” from this is this:
- Four justices are of the opinion that Fourth Amendment jurisprudence is inapplicable because the case involves non-state actors; however, it nonetheless employs a Fourth Amendment concept—i.e. the private search doctrine—to ensure state actors can only look at what non-state actors looked at.
- Three justices are of the opinion that the private search doctrine had no place in this case because the underlying record wasn’t fully developed to address that doctrine.
- Two justices are skeptical that citizens abandon their expectation of privacy in their computers when they relinquish them for repair. But, an argument can be made that perhaps six of the justices are skeptical of the abandonment doctrine because the Majority was hesitant to resolves on abandonment grounds because of the harshness of the application.
For future cases, therefore, counsel should preserve the argument that our state constitution provides greater protection against the government searching our computers notwithstanding any “abandonment” to retailers for repair. Counsel may find a sympathetic bench that there is no such abandonment at play under our state constitution.
Comm. v. Jones, __ A.3d __ (Pa., July 17, 2019)
For a unanimous court, Chief Justice Saylor opined that, under the particular circumstances of this case, trial counsel’s failure to request an alibi instruction did not constitute ineffective assistance of counsel. The Court essentially held that Jones was not prejudiced by the missing alibi instruction because (1) the evidence against him was consistent with a finding of guilt, and (2) the trial court’s charge that the defendant is presumed innocent and “has no duty to prove anything” conveyed what an alibi instruction otherwise would convey to a jury. The Court did make this important observation, however:
The consequence for present purposes is that it may be more difficult for a PCRA petitioner to demonstrate prejudice based on the lack of an alibi charge than it would be in the case of a jury instruction that would have supplied the jurors with information not already implicit in the charge actually given – particularly where, as here, the instructions as a whole clarified that the burden remained on the government to prove that the defendant was present at the time and place of the crimes and, in fact, committed them.
Personal note: I think it’s fair to say, despite what the Court tries to convince PCRA practitioners of to the contrary, that there will be no instance where trial counsel’s failure to request an alibi instruction will constitute ineffective assistance, so long as the remainder of the trial court’s instruction to the jury is that the “defendant has no duty to prove anything.” The writing is on the wall in this regard, and that essentially was why Justice Todd wrote a concurring opinion. That concurrence is a brief page, and I’d encourage PCRA practitioners to read it.
Comm. v. King, __ A.3d __ (Pa., July 17, 2019)
This was a long-awaited opinion for PCRA practitioners, which fell somewhat flat. The background, briefly, was this. Post-conviction counsel was struggling to interview trial counsel as to his particular reasons for why he did something at the time of trial. Trial counsel was being uncooperative by not returning PCRA counsel’s calls and repeated inquiries. When PCRA counsel did, however, get in touch with trial counsel, trial counsel advised PCRA counsel “to contact the District Attorney’s Office with any further questions,” seemingly suggesting that trial counsel was cooperating with the Commonwealth. Accordingly, PCRA counsel filed a motion with the lower court seeking to preclude the Commonwealth from interviewing trial counsel, and noted the attorney-client privilege was at risk of being waived. Notably, the Commonwealth countered by stating a defendant waives the attorney-client privilege in the PCRA context “as it relates to the specific claim of ineffective assistance of counsel.” The lower court nonetheless granted a protective order for the defendant, barring the Commonwealth from further communicating with trial counsel. By the time this case went to the supreme court it was replete with a host of ethical issues and considerations, but here’s how the supreme court resolved this case. Justice Baer, for the Majority, wrote:
[I]t is jurisprudentially sound to place such matters in the discretion of the PCRA courts. Stated differently, we hold that, when a PCRA court is presented with a request to limit the Commonwealth access to trial counsel, it is incumbent upon the court to consider the totality of the circumstances and carefully exercise its discretion to craft an order that balances the interests of the parties.
Personal note: “That’s it?”, you’re thinking? And that’s it. The supreme court really did nothing to provide guidance for when this issue rears its head in the future. Seemingly, the dispositive fact that made the lower court’s protective order in favor of the defendant appropriate was trial counsel’s reaction—trial counsel was being uncooperative and intimating that he was already sharing information with the Commonwealth. Under these circumstances, such an order appears to be appropriate. Really, though, there’s nothing that prevents the Commonwealth from communicating with trial counsel in preparation for a PCRA hearing. Justice Mundy’s concurrence tells us that. But it’s Justice Donohue’s concurrence that is the gem of this case. I say it’s “the gem” not because she sets forth the factors that will likely become the test for trial courts to follow under similar circumstances in future cases; rather, it’s “the gem” because in a footnote Justice Donohue opens a door to a possibility where depositions may become available in a PCRA context for the Commonwealth to “seek information outside of its control.” Presently, there is no rule of criminal procedure that allows for the taking of depositions, except in circumstances where it becomes necessary to preserve testimony (e.g. due to impending death).
Comm. v. Bell, __ A.3d __ (Pa. July 17, 2019)
Held: The evidentiary consequence set forth in 75 Pa.C.S. § 1547(e), which permits into evidence the fact that a motorist “refused to submit to chemical testing,” neither violates the Fourth Amendment nor Article I, Section 8 of the Pennsylvania Constitution. The 5-2 Majority noted that this is consistent with a long line of cases out of the U.S. Supreme Court, which has seemingly approved of evidentiary consequences set forth in the states’ implied consent law.
A brief note on Comm. v. Hicks, __ A.3d __ (Pa. May 31, 2019). Many criminal defense practitioners are aware by now that the Pennsylvania Supreme Court overhauled the longstanding rule developed by the Superior Court, which permitted the mere possession of a firearm to serve as a sufficient basis for a Terry “Stop and Frisk.” (This was known as the Robinson Rule.) I write to simply note a nugget that I found interesting within Justice Wecht’s opinion in Hicks. It’s an isolated passage, which reads like this:
Accordingly, decisions addressing the separate question, and the consideration of whether an “armed” individual is automatically “dangerous” for purposes of a Terry frisk, see, e.g., United States v. Robinson, 846 F.3d 694 (4th Cir. 2017), have no relevance to this appeal. As discussed throughout this Opinion, these inquiries are distinct.
It’s this bold portion that I read as an invitation by our High Court for defense practitioners to bring a case that challenges Terry frisks, and whether they are being performed under circumstances where there are sufficient and articulable facts of “dangerousness.”
Just something to be mindful of.