[J-107-2018][M.O. - Baer, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JON ERIC SHAFFER,

Appellant

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No. 16 WAP 2018

Appeal from the Order of the Superior 

Court entered 12/21/17 at No. 435 WDA 

2017, affirming the judgment of 

sentence of the Court of Common Pleas 

of Butler County entered 3/9/17 at No. 

CP-10-CR-0000896-2016

ARGUED: December 6, 2018

DISSENTING OPINION

CHIEF JUSTICE SAYLOR DECIDED: JUNE 18, 2019

On the issue of abandonment, I 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. See, e.g, United States v. 

Barth, 26 F. Supp. 2d 929, 936-37 (1998); State v. Cardwell, 778 S.E.2d 483, 488-89 

(S.C. Ct. App. 2015), aff’d as modified, 824 S.E.2d 451 (S.C. 2019). For my part, in the 

computer repair scenario, I am reluctant to find wholesale abandonment absent an 

express admonition to the defendant that closed files may be opened and viewed nonconfidentially in the repair process.

Substantively, my thoughts align more closely with the majority’s invocation of 

the private-search doctrine, since the present circumstances “significantly lessened 

[Appellant’s] reasonable expectation of privacy ‘by creating a risk of intrusion [by private 
[J-107-2018][M.O. - Baer, J.] - 2

parties] which [was] reasonable foreseeable.” Id. (quoting United States v. Paige 136 

F.3d 1012, 1017 (5th Cir. 1998)). Nevertheless, I agree with Justice Wecht that the 

record has not been appropriately developed to allow for consideration of the 

application of the doctrine in this case. See Concurring and Dissenting Opinion at 3-10.

Finally, to the degree that the private search doctrine applies, it would seem to 

me that it should only justify a viewing, by authorities, of files that already have been 

opened in the course of the private search. Here, however, police proceeded to seize

Appellant’s laptop from its place of entrustment without a warrant. See Majority 

Opinion, slip op. at 4. Other than relying on the concept of abandonment, the 

Commonwealth fails to identify an applicable exception to the warrant requirement to 

justify such seizure.1

Concluding, as I do, that the case should turn on the abandonment question, and 

that Appellant did not completely abandon his expectation of privacy in closed computer 

files stored on his hard disk, I would reverse the order the Superior Court.

Justice Donohue joins this dissenting opinion.

 

1 As Justice Wecht has amply demonstrated, many of the conceptual difficulties here 

arise from the shifting focus, at the present stage, from abandonment to the private 

search doctrine. See, e.g. Concurring and Dissenting Opinion at 3 (“Shaffer had no 

reason to anticipate or rebut any argument that Officer Maloney’s warrantless inquiry 

into the files on his computer was permissible as an extension of CompuGig’s private 

search.”). In these circumstances, I respectfully differ with the majority’s approach in 

faulting Appellant for failing to previously anticipate concerns and considerations 

relevant to the private search doctrine. See Majority Opinion, slip op. at 5 n.6. 

Closer consideration of exceptions to the warrant requirement other than abandonment 

might be in order, had this case been developed by the Commonwealth so as to bring 

such exceptions into play in a timely fashion. Again, the Commonwealth does bear a 

substantial burden relative to warrantless seizures at a suppression hearing. See, e.g., 

In re L.J., 622 Pa. 126, 146, 79 A.3d 1073, 1085 (2013).