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- A15044

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2023 PA Super 224

COMMONWEALTH OF PENNSYLVANIA

v.

JACQUAY T. HALL

Appellant :
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:
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:
:
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 718 WDA 2022 Appeal from the Judgment of Sentence Entered May 18, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0004956

- 2021

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J. *

DISSENTING OPINION BY PELLEGRINI, J.: FILED: November 3, 2023

The majority concludes, without any discussion of the material law or

undisputed facts, that Hall’s overbreadth challenge as to the search of his

cellular phone is moot because his “abandonment” of the device deprives him

of standing to assert a Fourth Amendment violation. See M aj. Op. at p. 14.

In doing so , the majority overlooks that neither the police nor the prosecution

considered the phone to be abandoned at the inception of its search

. Further,

the majority ignores the fundamental principle that an illegal search cannot

b e legitimized after the fact

. Accordingly, I respectfully dissent.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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- I.

A.

The majority has detail ed how the 2014 Nissan registered to Hall was

involved in the accident which prompted its occupant to flee. However, i t is

important to add that f ollowing th e accident, t he vehicle was towed to the

Pittsburgh A uto Squad Garage , where the police conducted an inventory

search of the vehicle pursuant to an executed search warrant obtained at

a pproximately 8:20 a.m. on April 26, 2021. Shortly thereafte r, at

a pproximately 9:00 a.m. that morning , Hall contacted the police to report his

vehicle as being stolen.

Hall cla imed that he had left the vehicle parked at his apartment at

11:00 p.m. on April 25, 2021, and did not discover it was missing until

moments before calling the police. Additionally, Hall reported that he had left

his keys, cellular phone, jacket and money inside the vehicle. He indicate d

that he believed his phone was locked at the time he left it in his car, but he

suggested that it could have been possibly unlocked by his vehicle’s computer

system and then used by the person who stole the vehicle.

Knowing that the phone belonged to Hal l and that he had reported it as

stolen, the police applied for a search warrant t he next day, on April 27, 2021,

seeking to extract all the electronic contents from the device. The warrant

application for the phon e and the affidavit of probable cause are set out in full

in the majority opinion.J

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Among other things, Hall contends that the search warrant for his phone

was unconstitutionally overbroad because, even if there was probable cause

for a search to identify the driver of the vehicle on the night in question, that

alone would not justify access to every communication, text, call history,

picture, video or data on the phone’s SIM card. In this appeal, t he

Commonwealth has taken no position as to whether the scope of the search

of the phone was unconst itutionally overbroad, instead deferring to this

Court’s judgment on that issue. See Appellee’s Brief, at 23

- 25

. The majority’s focus on the initial warrantless entry by police into Hall’s

vehicle obscures that the true crux of this appeal is whether the subsequent

search warrant for Hall’s phone was constitutionally overbroad. Hall was not

convicted of any charges relating to the firearm or controlled substances found

in his vehicle. He was convicted of offenses which could only be proven from

evidence taken from data stored in his phone pursuant to the electronic

search. As t he Commonwealth stressed prior to trial, “this case does come

down entirely to the cell phone.” See Transcript Preliminary Hearing,

7/1/2021, at p. 42.

B.

T he constitutional infirmity of the phone search (discussed further

below) was not cured by the purported abandonment of the device as the

majority finds

. Under the theory of abandonment, the protections afforded

by the Fourth Amendment do not apply where a property owner hasJ

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“voluntarily discarded, left behind, or otherwise relinquished his interest in the

property in question so that he would no longer retain a reasonable

expectation of privacy with regard to it at the time of the search.”

Commonwealth v. Dowds , 761 A.2 1125, 1131 (Pa. 2 000); see also

Commonwealth v. Shoatz , 366 A.2d 1216, 1220 (Pa. 1976) (same).

However, for several decades, courts have held a search must be

justified at its inception

. See Terry v. Ohio , 392 U.S. 1, 20 (1968)

. E vidence

gathered as a direct result of illegal police conduct must be suppressed as fruit

of the poisonous tree. See generally Commonwealth v. Santiago , 209

A.3d 912 (Pa. 2019). It necessarily follows that a c ourt must consider the

validity of a search warrant before it can admit or rely on evidence obtained

from th e resulting search to the detriment of a criminal defendant

. 1

In the present case, the trial court found that the search of Hall’s phone

was valid because he had abandoned the device inside an immobilized vehi cle

at the scene of an accident. It was only possible to make that finding,

however, by ignoring the facts known to officers at the time of the search and ,

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1 In Commonwealth v. Fulton , 179 A.3d 475, 489

- 91 (Pa. 2018) , our Supreme Court held that derivative evidence from a warrantless search of a cell phone was inadmissible as fruit of the poisonous tree

. Similarly, in Commonwealth v. Arnold , 932 A.2d 143, 149 (Pa. Super. 2007) , this Court reject ed argument that a visitor in a home has no expectation of privacy because it would allow police “to provide retroacti ve justifications and randomly invade homes on the pretense that any person found to be a non

resident after the fact could be searched.”J

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instead , only considering the challenged evidence that police gleaned from the

search after it had already taken place

. It is undisputed that a t the time police searched the phone , they did not

know the identity of the driver involved in the subject auto collision. The

police only knew that the car was r egistered in Hall’s name, and that Hall

himself had reported to them that his car and locked phone had been stolen.

Indeed, the purpose of the phone search, as stated in the affidavit of probable

cause, was “to assist with [the] investigation to find out the driver of the

vehicle.”

The police admittedly could not identify Hall as the driver who had left

his phone in the vehicle until after they had searched the phone, using its data

to make the identification. Hall’s identity as the driver and his alleged

abandonment of the phone could only be proven by evidence which was the

subject of Hall’s constitutional challenge

. It was , therefore , incumbent on the

trial court to assess the legality of the phone search ba sed on the facts known

to police at the search’s inception, without the benefit of the fruits yielded

from the disputed search itself

. Moreover, a side from the issue of Hall’s identity at the inception of the

phone search, the facts do not indicate that Hall abandoned his phone for

constitutional purposes. Rather than relinquish an ownership interest in the

property, Hall affirmed his continued int erest by explicitly telling police prior

to the search that his phone was in his vehicle when it was stolen and that heJ

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had intended for the device to remain locked. This is the exact opposite of

what is required in order for Hall to be divested of his ri ght to constitutional

protection against an unreasonable search. See Dowds , 761 A.2 at 1131

.

II.

Since the abandonment exception does not come into play, this Court

must consider Hall’s argument that the search of his phone was

unconstitutionally overbroad. He claims that even if there was probable cause

for a search of the phone to identify the driver of his vehicle on the night in

question, the search exceeded its lawful scope because police were granted

access to every commun ication, text, call history, picture, video or data on his

phone’s SIM card.

“A police officer has probable cause to believe that an object is

incriminating where the facts available to the officer would warrant a man of

reasonable caution in the belief th at certain items may be contraband or stolen

property or useful as evidence of a crime [.]” Commonwealth v. Wright , 99

A.3d 565, 569 (Pa. Super. 2014) (internal quotation marks and citation

omitted; emphasis in original).

A warrant is unconstitutionally ov erbroad if there is an “unreasonable

discrepancy” between the items sought and the items for which there is

probable cause to search and seize. Commonwealth v. Moser , 283 A.3d

850, 858 (Pa. Super. 2022) (quoting Commonwealth v. Green , 265 A.3d

541, 550 (P a. 2021)). “A warrant unconstitutional for its lack of particularityJ

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authorizes a search in terms so ambiguous as to allow the executing officers

to pick and choose among an individual’s possessions to find which items to

seize. This will result in the g eneral ‘rummaging’ banned by the Fourth

Amendment.” Commonwealth v. Young , 287 A.3d 907, 920 (Pa. Super.

2022) (quoting Commonwealth v. Orie , 88 A.3d 983, 1002 (Pa. Super.

2014)). The overbreadth doctrine “applies equally to a search of digital space

as it does for a physical space.” Moser , 283 A.3d at 858 (quoting Green ,
265 A.3d at 553

- 54).

An otherwise overbroad warrant may be cured by “self

- limiting

language” in the affidavit of probable cause:

For example, a warrant that authorizes the search and se izure of a flash drive and “any contents contained therein,” without limitation for non

- criminal use of the flash drive would be overbroad. However, an overbreadth challenge fails if a warrant for a search of an entire digital device has “self

- limiting la nguage” that allows police to search only for evidence of the crime for which there is probable cause.

Moser , 283 A.3d at 857 (internal citations omitted); see also

Commonwealth v. Grossman , 555 A.2d 896, 899 (Pa. 1989) (holding that

Pennsylvania Constitu tion requires a description of items to be seized “ as
specifically as is reasonably possible”).

In this case, the police obtained a warrant which granted unfettered

access to all information stored in a cellular phone. Most significantly, officers

were pe rmitted to search “any” content in Hall’s phone without restricting

access to items that would reasonably lead to evidence of a crime. SeeJ

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Omnibus Pretrial Motion, 10/14/2021, Exh. B at 3 (affidavit of probable cause

“requesting a search . . . for all and any time stamped information or data

stored with the body of the cell phone [], to include sim card and phone

memory, including any contacts, phone numbers, messages instant or text,

all pictures and all video stored.”).

The affidavit submitted in support of the search warrant application

included no “self

- limiting language” that would narrow the scope of the search

to encompass evidence of a crime for which the police had probable cause.

See Grossman , 555 A.2d at 899; Orie , 88 A.3d at 1002. 2 As the

Com monwealth has conceded in its brief :
[T]he warrant essentially allowed the police to search the entirety of [Hall’s] cell phone. Although the application limited its search to “time stamped” data, no specific parameters existed to prevent general rummaging through the device or accessing data or files th at were not reasonably connected to the alleged crimes.

Appellee’s Brief, at 24

- 25 (internal citations and quotations omitted).

Accordingly, I would find that the trial court erred in admitting into

evidence the data extracted from Hall’s phone and denying Hall’s suppression

motion. The warrant permitting unlimited data extraction from the device was

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2 The warrant’s general descriptions of items to be seized prevent the application of the doctrine of severability, which allows the piecemeal admission and exclusion of items seized pursuant to a warrant depending on whether the respective portions of the warrant were prepared with sufficient particularity. See generally Commonwealth v. Ani , 293 A.3d 704, 729 (Pa. Super. 2023) (citing Commonwealth v. Casuccio , 454 A.2d 621, 630 (Pa. Super. 1982)).J

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unconstitutionally overbroad, and the Commonwealth should hav e been

barred from using that Fourth Amendment violation to secure Hall’s

conviction.