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Commonwealth of Pennsylvania v. Clyde J. Hoppert

February 6, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
CLYDE J. HOPPERT, APPELLANT



Appeal from the Judgment of Sentence entered February 1, 2011 in the Court of Common Pleas of Lancaster County Criminal Division at No: CP-36-CR-0001698-2009.

The opinion of the court was delivered by: Olson, J.

BEFORE: DONOHUE, OLSON and STRASSBURGER,*fn1 JJ.

OPINION BY OLSON, J.

Appellant, Clyde J. Hoppert, appeals from the judgment of sentence entered on February 1, 2011 following his bench trial convictions on 19 counts of sexual abuse of children (dissemination of child pornography) and two counts of sexual abuse of children (possession of child pornography).*fn2 After careful consideration, we affirm.

The facts and procedural history of this case are as follows. While investigating a child pornography case involving an America Online (AOL) user with a screen name "wersupr," a detective from California obtained a search warrant and received information that "wersupr" had received and opened three e-mails sent by an AOL user "CJHOPPERT." These e-mails were sent on November 23, 2007 and each contained attachments of photos depicting girls under the age of ten displaying their genitals. By federal subpoena, the detective discovered that "CJHOPPERT" was a computer user on an AOL account registered to Sallie Hoppert who resided on Countryside Drive, Lancaster, Pennsylvania. On May 8, 2008, the California detective relayed this information to Detective Peter J. Savage of the Lancaster County District Attorney's Office and Appellant became the subject of investigation in Pennsylvania.

Subsequently, Detective Savage checked the Pennsylvania Department of Transportation ("PennDOT") records and determined that Appellant previously lived on Countryside Drive, but learned that he was currently residing on Haskell Drive in Manheim Township, Lancaster County, Pennsylvania. Detective Savage also personally viewed the images contained in the e-mails and opined that the photos contained images of girls, under the age of eighteen, exposing their genitalia, and were therefore in violation of 18 Pa.C.S.A. § 6312. Accordingly, Detective Savage submitted an affidavit of probable cause and application for a search warrant seeking the AOL records pertaining to the account registered to Sallie Hoppert. A search warrant was issued on May 16, 2008 (hereinafter "first warrant"). Upon receiving the documents from AOL, Detective Savage ascertained that "CJHOPPERT" was logged on to AOL for five hours on November 23, 2007, that the three e-mails at issue had been sent during that time period, and that "wersupr" was on the contact list established by "CJHOPPERT." Moreover, the AOL account was closed on February 1, 2008. Detective Savage relayed this information to Detective Allen Leed of the Manheim Township Police Department.

Detective Leed submitted an affidavit of probable cause for a search warrant at Appellant's Haskell Drive address that was granted on July 16, 2008 (hereinafter "second warrant"). On July 17, 2008, police executed the second warrant and recovered three computers and AOL documentation from the subject residence. An ensuing search of the computers revealed 183 images of child pornography, 60 images of child erotica, and 40 e-mails, either sent or received, containing child pornography.

The Commonwealth charged Appellant with the aforementioned crimes. Prior to trial, Appellant filed a motion to suppress the evidence obtained from both search warrants at issue. He also sought to suppress subsequent statements he made to police, arguing that the statements were the fruit of the unlawful searches. Following a hearing, the trial court denied relief on August 18, 2010. The case proceeded to a stipulated bench trial. On October 15, 2010, the trial court found Appellant guilty of the above- mentioned crimes. On February 1, 2011, the trial court sentenced Appellant to an aggregate term of imprisonment of three to 23 months, with an additional five years of probation. This timely appeal followed.*fn3

On appeal, Appellant presents a single issue for our review:

Did the trial court err in denying the Motion to Suppress, where the information contained in the search warrant issued on May 15, 2008 was stale, where there was no probable cause to conclude that AOL had retained copies of any of [Appellant's] e-mails subsequent to the termination of his account and there was no probable cause to conclude that child pornography was ever stored or viewed on a computer owned by [Appellant] and located at [his] Haskell Drive [residence]?

Appellant's Brief at 4.

Appellant contends that the trial court erred in denying suppression of the evidence obtained on the seized computers, as well as his later statements to police. Appellant argues that the information contained in the affidavit of probable cause supporting the first warrant was stale because there was no probable cause "to believe that AOL had retained copies of e- mails sent by its user 'CJHOPPERT' on one of its servers over three months after the account was closed." Id. at 8 and 12. With regard to the second warrant, Appellant asserts "the affidavit of probable cause failed to establish any nexus between the three e-mail attachments forwarded in November 2007 and any computer at [Appellant's] Haskell Drive [address]." Id. at 13. Appellant contends that there was no evidence that the AOL users from Countryside Drive were linked to his residence on Haskell Drive. Id.

Moreover, Appellant claims that there was no indication that the three e-mail attachments were ever downloaded, saved, deleted or viewed by "CJHOPPERT" at the Haskell Drive address. Id. at 14. Accordingly,

Appellant argues that the search warrants were issued without probable cause and required suppression. Id. at 16. Finally, Appellant maintains that his statements made to police mandated ...


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