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Commonwealth v. Shaffer

Superior Court of Pennsylvania

December 21, 2017


         Appeal from the Judgment of Sentence Entered March 9, 2017 In the Court of Common Pleas of Butler County Criminal Division at No: CP-10-CR-0000896-2016

          BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.


          STABILE, J.

         Appellant, Jon Eric Shaffer, appeals from the March 9, 2017 judgment of sentence imposing an aggregate 6 to 12 months of incarceration followed by 156 months of probation for possession of child pornography (18 Pa.C.S.A. § 6312(d)) and criminal use of a communication facility (18 Pa.C.S.A. § 7512). We affirm.

         On November 25, 2015, a computer technician was attempting to save files from the failing hard drive in Appellant's laptop computer when he discovered explicit photographic images of young girls. The technician summoned the police, and the police arrested Appellant and charged him with the aforementioned offenses. Appellant filed a pretrial motion to suppress the evidence from the warrantless search and seizure of his laptop computer. The trial court conducted a hearing on July 7, 2016, and denied the motion on October 3, 2016. On November 10, 2016, the trial court, sitting as finder of fact, found Appellant guilty of both charges. The trial court imposed sentence on March 9, 2016, and Appellant filed this timely appeal on March 14, 2017.

         The trial court summarized the pertinent facts:

[Appellant] delivered his laptop computer to CompuGig for repair and completed an initial work order form that is dated November 25, 2015. On the form, in response to the question, 'What problems are you experiencing?', boxes next to 'Spyware/virus' and 'Can't get to Internet' are marked. Additional information provided by [Appellant] at the time he delivered the laptop to CompuGig indicated that 'Customer's son downloaded some things and now there are a lot of pop-ups. Internet has stopped working.' After running initial diagnostics, [computer technician Justin] Eidenmiller believed the computer had a failing hard drive. A telephone call was made to [Appellant] by CompuGig's administration. During that call [Appellant] indicated that he wished to replace the hard drive on the laptop. Mr. Eidenmiller was not privy to the phone call. Mr. Eidenmiller attempted to 'take an image of the hard drive and put it on a new hard drive at the customer's request.' While the hard drive was able to be imaged, the procedure of transferring the image successfully was unable to be completed. Another call was apparently placed to [Appellant] regarding the matter. In an attempt to move data from the failing hard drive to a new drive, Mr. Eidenmiller manually opened various portions of the data contained in the failing hard drive. In doing so, Mr. Eidenmiller observed the evidence which [Appellant] is seeking to suppress. Mr. Eidenmiller fist [sic] attempted to copy the entire folder that contained the evidence at issue without opening it, but was unable to do so. He then opened the folder in order to copy the within files manually. At that point he observed the files at issue in the form of thumbnail images. Mr. Eidenmiller notified his boss of the discovery.
The police were then called and Officer [Christopher] Maloney arrived, he spoke both to the owners of CompuGig and, after being handed the work order and escorted to the tech area by the owners, to Mr. Eidenmiller. Mr. Eidenmiller then went to where [Appellant's] laptop computer was located on a bench inside the tech area. Mr. Eidenmiller showed Officer Maloney, at the officer's request, the evidence [Appellant] is seeking to suppress. Mr. Eidenmiller prepared a statement for Officer Maloney and Officer Maloney took possession of the computer and hard drive that had been delivered to CompuGig, as well as other equipment. At a later date, warrants to search the laptop and accompanying hardware were secured by Detective Matthew Irvin of the Cranberry Township Police Department.

Trial Court Opinion, 10/3/16, at 2-3 (record citations and footnotes omitted).

         The only issue before us is whether the trial court properly suppressed evidence from the initial warrantless search and seizure of his laptop computer. Our standard of review is as follows:

[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where ... the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017). Article 1, Section 8 of the Pennsylvania Constitution precludes warrantless searches of private property. Pa. Const. art. I, § 8. "Absent the application of one of a few clearly delineated exceptions, a warrantless search or seizure is presumptively unreasonable. Commonwealth v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013) (quoting Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013)), appeal denied, 87 A.3d 320 (Pa. 2014).

         Both parties and the trial court rely heavily on Commonwealth v. Sodomsky, 939 A.2d 363 (Pa. Super. 2007), another case in which a computer technician discovered child pornography on a customer's computer. The Sodomsky Court concluded, under the circumstances there present, that the customer relinquished his privacy expectation in the contents of his hard drive. The Commonwealth and the trial court find Sodomsky controlling, while Appellant argues that it is distinguishable and/or that it should be overturned.

         In Sodomsky, the defendant took his computer to a Circuit City and requested installation of an optical drive and DVD burner into his computer. Id. at 364. The store informed the defendant that it would run tests to confirm the DVD burner was working, but did not describe that testing process in detail. Id. In order to test the newly installed DVD burner, the technician ran a "general search for a video" to be burned to a disc. Id. at 365. The search returned a number of files, some of which "appeared to be pornographic in nature due to their titles which included masculine first names, ages of either thirteen or fourteen, and sexual acts." Id. at 365-66. The technician clicked on "'the first one' that appeared questionable, and the video contained the lower torso of an unclothed male, and when a hand approached the male's penis, [the technician] immediately stopped the video." Id. at 366. The technician summoned police, as he had been told to do by ...

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