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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LUIS ENRIQUE SOTO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 793 MDA 2018

Appeal from the Judgment of Sentence April 13, 2018

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0001464-2017

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.

DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019

Because the Affidavit of Probable Cause (Affidavit) did not give the

magistrate a substantial basis to issue a search warrant, I would hold that the 

trial court erred in denying Soto’s motion to suppress. Accordingly, I 

respectfully dissent on that ground.

As the majority correctly recounts, the Affidavit provides that the 

investigation of Soto began when Detective Gregory Wahl (the Affiant) 

identified Soto’s IP address on a BitTorrent peer-to-peer file sharing network. 

Affidavit of Probable Cause, 1/30/2017, at ¶ 27. The IP address was 

associated with “a file of investigative interest to child pornography 

investigations.” Id.

The Affiant then downloaded 50 files from that IP address, 29 of which

reportedly “depicted child pornography as defined by [18 Pa.C.S. § 6312].” 
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Id. at ¶ 28. After listing the titles of those 29 images, the Affiant averred:

“The above files were mostly of teenage girls in a shower or bath naked and 

were ‘LS Models.’ The rest of the images your Affiant would label as erotica.”

Id. at ¶ 29. The police obtained a search warrant and recovered material on 

Soto’s cell phone alleged to be child pornography.

Soto filed a suppression motion contending the Affidavit did not contain 

information that would form a substantial basis to find probable cause because 

paragraph 29 fails to allege a violation of Section 6312. He contends now that

the Affidavit does not set forth probable cause because that provision does 

not criminalize all visual depictions of nude children but only those under the 

age of 18, “if such nudity is depicted for the purpose of sexual stimulation or 

gratification of any person who might view such a depiction.” Soto’s Brief, at 

26. He also asserts that the Affidavit’s reference to “teenagers” could include 

those who are aged 18 or 19, and possession of such images is not prohibited 

by the statute, even if the nudity is for the purpose of sexual stimulation. Id.

Despite finding that the Affiant’s description of the pornographic images 

“could have been more detailed,” the majority nevertheless holds that the

description, coupled with the Affiant’s conclusion that the images constituted 

child pornography, were sufficient for the magistrate to determine there was 

a fair probability that evidence of a crime would be found at Soto’s home. As 

to Soto’s claim that the Affiant only described the images as those of 

“teenagers,” not a person under 18 years of age, the majority opines that this 
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is a sufficiency of the evidence issue for the jury to decide rather than a legal 

question regarding the validity of the search warrant.

I disagree with the majority because the Affidavit does not set forth 

facts that would give a magistrate a substantial basis to find probable cause 

that Soto possessed child pornography. In making a probable cause 

determination, the magistrate is confined to the four corners of the affidavit. 

See Pa.R.Crim.P. 203(B). No other evidence may be considered. See id. On 

review of a search warrant, we only consider whether the facts outlined by 

the affiant provided the magistrate with “a substantial basis” to conclude that

probable cause existed for the warrant’s issuance. Commonwealth v. 

Johnson, 42 A.3d 1017, 1031 (Pa. 2012).

In this case, the facts contained within the four corners of the Affidavit

do not support the Affiant’s conclusion of illegality. The Affiant stated that 

Soto possessed “child pornography” in the form of 29 separate images. The 

Affiant then vaguely described all of those materials in a single phrase, writing 

that they depicted “teenage girls in a shower or bath naked.” Nothing in the 

affidavit suggests that the images were intended for an illicit purpose. See

United States v. Cochran, 806 F. Supp. 560, 564 (E.D. Pa. 1992) (“[§ 6312]
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does not prohibit all visual depictions of nude children. In fact, such a law 

would not pass muster under the First Amendment.”).1

All the images that the Affiant described are legal to possess because 

they do not fall within the statutory definition of child pornography.2 The 

Affiant’s description of “teenage girls” does not specify that the individuals in 

the photos were below the age of 18. The description of those individuals 

being “in a shower or bath naked” does not specify that they engaged in a 

“prohibited sexual act.” No other facts contained within the Affidavit were 

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1 Clearly, depictions of children involving nudity alone fall outside 

the category of “sexual conduct” which may be proscribed. Any 

other interpretation would permit an absurd result. Family 

photographs of children in the bathtub could be criminalized. The 

police could seize anatomy textbooks used by medical students 

which contain depictions of nude children or works of art in 

museums, including the many depictions of the Madonna and 

Child.

United States v. Cochran, 806 F. Supp. 560, 564 (E.D. Pa. 1992).

2 “Child Pornography” is defined as “any book, magazine, pamphlet, slide, 

photograph, film, videotape, computer depiction or other material depicting a 

child under the age of 18 years engaged in a prohibited sexual act or in the 

simulation of such act.” 18 Pa.C.S. § 6312(d). “Prohibited sexual act” is 

defined as “sexual intercourse . . . , masturbation, sadism, masochism, 

bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such 

nudity is depicted for the purpose of sexual stimulation or gratification of any 

person who might view that depiction.” Id. at § 6312(g) (emphasis added).
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germane as to whether a search of Soto’s cell phone would turn up a crime or 

evidence of a crime.3

Copies of the images were not attached to the Affidavit, so the 

magistrate in this case did not personally view them. It is not required in all 

such cases for the magistrate to do so,4 but with only a description of legal 

material, the magistrate’s probable cause determination could have only been 

based on the Affiant’s opinion that the images were illegal. Federal courts 

have held that a search warrant is deficient under these circumstances.

5 See

e.g., United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006) 

(government conceded that the affiant’s description of a photograph – “a 

young female (8–10 YOA) naked in a bathtub” – was insufficient to establish 

probable cause as a matter of law); United States v. Brunette, 256 F.3d 

14, 15 (1st Cir. 2001) (“Because neither the magistrate judge nor the district 

court judge independently viewed the images—which were not made part of 

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3

In the same sentence, the Affiant referenced “LS Models,” but nothing in the 

Affidavit explained what that term meant.

4 “[T]he rule is clear: there is no requirement that an official reviewing an 

affidavit to search and seize child pornography see the actual images, 

provided the description of the image in the affidavit itself, along with any 

other relevant information, set forth the requisite probable cause.” United

States v. Wagner, 2015 WL 3627007, at *5 (E.D. Tenn. June 9, 2015).

5

In the absence of precedential Pennsylvania cases addressing an issue, outof-state decisions are not binding but may be considered as persuasive 

authority. See Bochetto v. Piper Aircraft Co., 94 A.3d 1044, 1050 (Pa. 

Super. 2014).
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the record on appeal—and because the affidavit did not adequately describe 

them, we conclude that the warrant was not supported by probable cause.”); 

United States v. Doyle, 650 F.3d 460, 471-72 (4th. Cir. 2011) (no probable 

cause that defendant possessed child pornography where affidavit described 

defendant’s sexual assault and recounted allegation that he had “pictures of 

nude children.”).

Those cases are consistent with the well-established principle that a

magistrate must exercise independent judgment when making a probable 

cause determination and may not simply adopt the affiant’s conclusions. See 

Illinois v. Gates, 462 U.S. 213, 239 (1983) (“a mere conclusory statement” 

in an affidavit “that gives the magistrate virtually no basis at all for making a 

judgment regarding probable cause” does not suffice); United States v.

Pavulak, 700 F.3d 651, 661 (3rd Cir. 2012) (“Presented with just the label 

‘child pornography,’ the most the magistrate could infer was that the affiant

concluded that the images constituted child pornography”); United States v.

Wagner, 2015 WL 3627007, at *5 (E.D. Tenn. June 9, 2015) (holding that 

affiant’s legal conclusion and sparse description of images depicting naked 

children were insufficient for probable cause).6

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6

In its opinion, the trial court in this case failed to draw a logical connection 

between the possession of the legal images described in the Affidavit and the 

probability that Soto possessed child pornography. The trial court’s analysis 

started and ended with the Affiant’s all too brief description of the 29 images

enumerated in the Affidavit. See Trial Court Opinion, 7/10/2018, at 16.
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By not viewing the subject images and relying on a description of lawful

material, the magistrate in this case necessarily adopted the Affiant’s opinion

that Soto possessed child pornography. The Affidavit did not provide a

substantial basis for probable cause, and the magistrate did not exercise 

independent judgment.

7

 In the absence of a valid warrant supported by 

probable cause, the search of Soto’s cell phone was unlawful. To remedy the 

erroneous denial of Soto’s motion to suppress the fruits of that search, I would 

vacate the judgment of sentence and order a new trial. 

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7 The Concurrence dismisses the Dissent as “hypertechnical” when the Dissent

merely follows several federal cases that find analogous descriptions of 

electronic images to be insufficient for a warrant. Without addressing those 

cases, the Concurrence finds probable cause here because Detective Yarnell, 

who obtained the warrant, had experience and training in seeking out child 

pornographers, so when he said the subject images were child pornography, 

they must be child pornography. This is circular reasoning because it equates

the mere search for contraband with evidence to that effect; that is, an act is 

more likely to be a crime if a trained officer was looking for crime when the 

act was observed. Under the Concurrence’s view, for example, an affidavit 

would be sufficient if it states that a person possessed LSD by accepting 

delivery from UPS of 1000 pills of acetylsalicylic acid (aspirin), as long as the 

affiant is an experienced narcotics detective who says the pills are LSD.

The Concurrence does not correctly apply the constitutional standards that 

guide our review – whether or not the magistrate can make an independent 

judgment in determining probable cause based on the information within the 

four corners of the affidavit. In our well-settled probable cause analysis, the 

Affiant’s experience and training are irrelevant if he could not at least apply 

that background to explain how a crime was committed. Further, the 

Concurrence goes beyond the Affidavit to suggest that files shared on 

BitTorrent are inherently illicit when, in fact, the P2P network is a contentneutral system that is just as likely to be used for legal purposes. Probable 

cause had to be set forth in the Affidavit in this case and, for the reasons set 

forth above, it was not.
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Accordingly, I respectfully dissent.