[ J

- 107

- 201 8 ] [M.O.

- Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENN SYLVANIA,

Appell ee

v.

JON ERIC SHAFFER
,

Appell ant :
:
:
:
:
:
:
:
:
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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

ARGUE D: December 6 , 201 8

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 aband onment absent an
express admonition to the defendant that closed files may be opened and viewed non

confidentially in the repair process

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

- search doctrine, since th e present circumstances “significantly lessened
[Appellant’s] reasonable expectation of privacy ‘by creating a risk of intrusion [by private[J

- 107

- 201 8 ] [M.O.

- Baer, J.]

- 2

parties] which [was] reasonable foreseeable.” Id. (quoting United States v. Paige 136 F.3d 1012, 1017 (5 th Cir. 19 98)). 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 seiz e 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 Co urt.

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 inqu iry 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 fault ing Appellant for failing to previously anticipate concerns and consider ations relevant t o the private search doctrine. See Majority Opinion, slip op. at 5 n.6.

Cl oser 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 b ring 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).