Summary
In Green, as in the instant case, police obtained a warrant to search for evidence of possession and distribution of child pornography on electronic devices in Green's home.
Summary of this case from Commonwealth v. SerianniOpinion
No. 6 MAP 2021
12-22-2021
COMMONWEALTH of Pennsylvania, Appellee v. Eric Lavadius GREEN, Appellant
Andrew Chapman Christy, Esq., ACLU of Pennsylvania, Peter E. Kratsa, Esq., West Chester, PA, for Amicus Curiae ACLU of Pennsylvania, et al James Patrick Davy, Esq., for Amicus Curiae Upturn, Inc. David Rudovsky, Esq., Philadelphia, PA, Nicole J. Spring, Esq., Matthew Bernard Welickovitch, Esq., Lycoming County Public Defender's Office, Kairys, Rudovsky, Messing, Feinberg, & Lin, LLP, for Appellant Eric Lavadius Green Neil Thomas Devlin, Esq., Ryan Coffman Gardner, Esq., Joseph Charles Ruby, Esq., Lycoming County District Attorney's Office, Kenneth A. Osokow, Esq., Martin Lewis Wade, Esq., for Appellee Commonwealth of Pennsylvania
Andrew Chapman Christy, Esq., ACLU of Pennsylvania, Peter E. Kratsa, Esq., West Chester, PA, for Amicus Curiae ACLU of Pennsylvania, et al
James Patrick Davy, Esq., for Amicus Curiae Upturn, Inc.
David Rudovsky, Esq., Philadelphia, PA, Nicole J. Spring, Esq., Matthew Bernard Welickovitch, Esq., Lycoming County Public Defender's Office, Kairys, Rudovsky, Messing, Feinberg, & Lin, LLP, for Appellant Eric Lavadius Green
Neil Thomas Devlin, Esq., Ryan Coffman Gardner, Esq., Joseph Charles Ruby, Esq., Lycoming County District Attorney's Office, Kenneth A. Osokow, Esq., Martin Lewis Wade, Esq., for Appellee Commonwealth of Pennsylvania
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE MUNDY This appeal originates from an investigation into internet sharing of child pornography. During the investigation, officers obtained a warrant to search for evidence of possession and distribution of child pornography on the electronic devices in the home of Appellant, Eric Green. We granted review in this matter to address whether that search warrant was overbroad.
I. Factual Background and Procedural History
On January 14, 2015, the Pennsylvania State Police applied for a search warrant for Appellant's residence. The application included an affidavit of probable cause written by Corporal Christopher Hill (Affiant), who stated that his affidavit was based on information he received from Corporal G. M. Goodyear. Affidavit of Probable Cause at ¶ 2. Affiant explained that Corporal Goodyear conducted undercover investigations into the sharing of child pornography over the internet. Id . at ¶ 20. On December 28, 2014, Corporal Goodyear located a computer that was sharing child pornography on BitTorrent, a peer-to-peer file sharing network. Id . Corporal Goodyear was able to download files directly from the user of that computer, which included a photograph of a prepubescent girl wearing a sheer dress with her legs spread as to clearly display her genital area. Id . Affiant explained that investigators can ascertain the IP address used by any computer sharing files. Id . at ¶ 19. As a result, Corporal Goodyear obtained the IP address for the computer that shared the image. He then utilized the American Registry of Internet Numbers to learn that the IP address was assigned to the internet service provider Comcast Cable Communications (Comcast). Id . at ¶ 21. On January 12, 2015, in response to a court order, Comcast identified Appellant as the subscriber assigned to that IP address and provided his residential address. Id . at ¶ 22. Affiant explained that individuals involved in the sharing and downloading of child pornography usually maintain their collections in the privacy and security of their own home, often without the knowledge of others residing with them. Id . at ¶¶ 23a, 25. The user identified by Corporal Goodyear "had such a collection of child pornography available on a [file-sharing network.]" Id . at ¶¶ 24-25. Therefore, based on Corporal Goodyear's investigation, Affiant stated his belief that a user of a computer connected to the internet at Appellant's address was sharing child pornography on the BitTorrent Network. Id .
These terms were defined earlier in the affidavit as follows:
File Sharing - the practice of distributing or providing access to digitally stored information (computer files), such as computer programs, music files, movie files, picture files, documents, or any other type of computer file. It may be implemented in a variety of storage, transmission, and distribution models. Common methods are manual sharing using removable media, centralized computer file server installations on computer networks, World Wide Web-based hyperlinked documents, and the use of distributed peer-to-peer (P2P) networking.
Peer-to-Peer (P2P) Networking - a network of computers composed of participants that make a portion of their resources (such as processing power, disk storage, and network bandwidth) available directly to their peers without intermediary network hosts or servers. Peers are both suppliers and consumers of resources, in contrast to the traditional client-server model where only servers supply, and clients consume (i.e. computer users can both download other peers’ computer files, as well as, make their own files available for upload, or "share").
Affidavit of Probable Cause at ¶ 6. The affidavit also provided the following illustration of how a peer-to-peer filing sharing program like BitTorrent operates in practice:
For example[,] a person interested in obtaining child pornographic images would query a tracker with a search term that he believes will provide a list of child pornographic material. The tracker then responds with a list of possible matching .torrent files[, a filename extension similar to .doc or .pdf]. The results of the search are returned to the user's computer and displayed. The user selects from the results displayed indicating the file he/she wants to download. The files are downloaded directly from the computers sharing them and are then stored in the area previously designated by the user where it remains until moved or deleted.
Id . at ¶ 15.
The affidavit also included definitions for these terms:
IP (Internet Protocol) Address , a numerical identification and logical address that is assigned to devices participating in a computer network utilizing the Internet Protocol for communication between its nodes. Although IP addresses are stored as binary numbers, they are usually displayed in human-readable notations, such as 208.77.188.166. Every machine that is on the Internet has a unique IP number - if a machine does not have an IP number, it is not really on the Internet.
American Registry of Internet Numbers (ARIN) - The American Registry for Internet Numbers (ARIN) is a nonprofit organization, responsible for managing the Internet numbering resources for North America, a portion of the Caribbean, and sub-equatorial Africa. Other registry organizations are separately responsible for registering and maintaining domain names, which are commonly used unique identifiers that are translated into numeric addresses (IP numbers). IP numbers are globally unique, numeric identifiers that computers use to identify hosts and networks connected to the Internet. A free public database lookup is available from their website located at http://www.arin.net. This database can be searched to determine who an [IP] address is assigned. This is usually a large business or an Internet Service Provider (ISP).
Affidavit of Probable Cause at ¶ 6.
Affiant also provided extensive details relevant to the search warrant, such as background information about the investigators, their experience with computer-based crimes, and the technical processes involved in investigating those crimes. Id . at ¶¶ 1-19. Affiant began by describing his own and Corporal Goodyear's qualifications and certifications, including the fact that they both are certified forensic computer examiners. Id . at ¶¶ 3-7. Affiant received training on crimes involving handheld computing devices, basic cell phone investigations, internet investigations, intermediate data recovery and acquisition, and was also specifically trained in BitTorrent investigations. Id . Both Affiant and Corporal Goodyear participated in investigations where computers were used to facilitate crimes, including child pornography cases. Id . at ¶¶ 4-5. Through their experiences they became "familiar with the techniques and methods of operation utilized by individuals involved in criminal activity to conceal their activities from detection by law enforcement." Id .
Based on their qualifications, Affiant stated that he and Corporal Goodyear "know that searching and seizing information from computers often requires investigators to seize all electronic storage devices (along with related peripherals) to be searched later by a qualified computer expert in a laboratory or other controlled environment." Id . at ¶ 7. Affiant explained that this type of seizure, along with a later search, is necessary because:
a. Computer storage devices (like hard drives, diskettes, tapes, laser disks, and CD-ROMs) can store the equivalent of hundreds of thousands of pages of information. Additionally, a suspect may try to conceal criminal evidence, and he might store criminal evidence in [a] random order or with deceptive file names or deceptive file extensions. This requires searching authorities to examine all the stored data to determine which particular files are evidence or instrumentalities of crime. This sorting process can take weeks or months, depending on the volume of data stored, and it would be impractical to attempt this kind of data search on site.
b. Searching computer systems for criminal evidence is a highly technical process, requiring expert skill and a properly controlled environment. The vast array of computer hardware and software available requires even computer experts to specialize in some systems and applications, so it is difficult to know before a search which expert is qualified to analyze the system and its data. In any event, data search protocols are exacting scientific procedures designed to protect the integrity of the evidence and to recover even "hidden," erased, compressed, password-protected, or encrypted files. Since computer evidence is extremely vulnerable to inadvertent or intentional modification or destruction (both from external sources and from destructive codes imbedded in the system, such as "booby traps"), a controlled environment is essential to its complete and accurate analysis.
Id . Affiant also explained that it is necessary to seize peripheral devices for "the analyst to be able to properly re-configure the system as it now operates in order to accurately retrieve the evidence contained therein." Id . at ¶ 8.
On January 14, 2015, a magisterial district judge granted the warrant to search Appellant's home based on Corporal Hill's affidavit of probable cause. The warrant identified the items that could be searched for and seized as follows:
Any and all computer hardware, including, but not limited to, any equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical or similar computer impulses or data. Any computer processing units, internal and peripheral storage devices, (such as fixed disks, eternal hard disks, floppy disk drives, and diskettes, tape drives, tapes, and optical storage devices), peripheral input/output devices (such as keyboards, printers, scanners, plotters, video display monitors, and optical readers), and related communication devices such as modems, cables, and connections, recording equipment, as well as any devices, mechanisms, or parts that can be used to restrict access to computer hardware. These items will be seized and then later searched for evidence relating to the possession and/or distribution of child pornography. This search is also to include any and all cellular phones, including, but not limited to, any cellular device that can collect, analyze, create, convert, store, conceal, transmit electronic data, and the items associated with any cellular device such as power cords, bases, sim cards, and memory cards.
Application for Search Warrant and Authorization at 1-2 (emphasis added).
On January 15, 2015, Corporal Hill and a team of other officials executed the search warrant on Appellant's home. N.T. Trial, 3/6/17, at 61. Those who executed the warrant included members of the mobile forensic lab, which allowed investigators to preview digital evidence on site. Id . During the search, authorities previewed a Samsung Galaxy phone and saw that it contained images of child pornography. Id . Appellant admitted that he was the only person who used that phone and that he used the BitTorrent program on the phone and his computer. Id . at 62-63. The phone was seized and data was later extracted for evidence of child pornography. Id . The forensic search of the phone discovered approximately 100 pornographic photographs of young girls. Id . at 7-9. The Commonwealth subsequently charged Appellant with approximately 100 counts of both possession of child pornography and criminal use of a communication facility.
These are the most specific details in the record relating to the execution of the search warrant and the forensic extraction of data from the phone. Notably, these details were elicited during trial and were not at issue during the suppression hearing. Appellant never claimed, within his motion to suppress or during the suppression hearing, that the officers’ method of searching his home or device was improper in any way.
Prior to trial, Appellant filed a motion to suppress. Relevant to the issue before us, Appellant argued that:
[T]he search warrant in this case [was] overbroad in violation of [ Article I section 8 of the Pennsylvania Constitution and under the Fourth Amendment to the United States Constitution]. Here, the warrant allowed the police to seize and analyze and search any and all electronic equipment which would be used to store information without limitation to account for any non-criminal use of said equipment. That is to say, the warrant allows the police to search any and all files on the electronic devices regardless of whether said files were used for criminal purposes as opposed to non-criminal purposes.
Motion to Suppress at 2-3 (internal quotations omitted). Appellant also argued that the warrant was not supported by probable cause because the IP address could have been utilized by a device outside Appellant's residence. Id . at 3.
On June 30, 2016, the parties argued the motion to suppress during a hearing before the Honorable Nancy L. Butts. Corporal Hill testified regarding Appellant's challenge to probable cause based on the IP address. He explained that the IP address identified the physical location of the modem providing internet access to the device that was sharing child pornography. N.T. Suppression Hearing, 6/30/16, at 10. However, the IP address could not identify for the investigators the exact electronic device that shared the images. Id . at 10-11. Therefore, no information in this case could have led investigators to a particular device. The street address assigned to the IP address was the most specific identifiable location. Id. at 11-12.
The parties then argued the breadth issue without further testimony. Appellant claimed that the warrant was overbroad because it allowed officers "to seize all computers, regardless of who they belonged to or who used them or what they were used for, so that they can search all the files and all of the computers looking for child pornography." Id . at 15. The Commonwealth responded that the warrant was not overbroad because "there is a clear outline and clear delineation as to what needs to be seized and searched and [the warrant] also describes why those items need to be seized and searched." Id . at 17. It was further explained that although the warrant allowed all electronic devices to be searched, the language of the warrant would not allow officers to conduct an in-depth search of a device that did not have a peer-to-peer file sharing program downloaded:
THE COURT: The Commonwealth's argument or this is what I'm hearing is that you may have grabbed all the electronics in a particular space, but if they don't have the BitTorrent Software to them you would immediately stop investigating that electronic device and go to the next one that would have that file-sharing application or program on it.
[THE PROSECUTOR]: Correct, Your Honor.
Id . at 17-18. Appellant concluded by reiterating his argument that the warrant was overbroad because it allowed the potential for too many devices to be searched, but acknowledged that "most of the time [officers] can't trace [criminal activity] to a particular computer." Id . at 20.
On December 8, 2016, the suppression court issued an order and opinion denying Appellant's motion to suppress. Regarding Appellant's claim that the warrant was overbroad, the court determined that "the scope of the warrant was sufficiently narrow as to exclude evidence of non[-]criminal behavior" because the warrant sought only "evidence relating to the possession and/or distribution of child pornography." Opinion and Order, Dec. 8, 2016, at 4. The court also held that the IP address provided sufficient probable cause to believe that the device that shared child pornography would be present at Appellant's home address. Id . at 6.
On March 6, 2017, during Appellant's bench trial, the Commonwealth introduced 99 pornographic images of young girls that were recovered from Appellant's cellphone. At the conclusion of trial, the Honorable Richard A. Gray found Appellant guilty of 99 counts of possession of child pornography and one count of criminal use of a communication facility. On July 14, 2017, the trial court sentenced Appellant to an aggregate term of four to eight years of imprisonment.
Appellant filed a notice of appeal to the Superior Court, claiming, inter alia , that the lower court erred in denying his motion to suppress. A unanimous panel of the Superior Court affirmed Appellant's conviction in a published decision. Commonwealth v. Green , 204 A.3d 469 (Pa. Super. 2019). In assessing Appellant's contention the warrant was overbroad, the Superior Court differentiated the instant case from two of its prior cases: Commonwealth v. Orie , 88 A.3d 983 (Pa. Super. 2004) (holding a warrant was overbroad for authorizing the search of a flash drive for "any contents contained therein" with no limitation to account for non-criminal use), and Commonwealth v. Melvin , 103 A.3d 1 (Pa. Super. 2014) (same, for a warrant requesting "all stored communications" to and from two email addresses). Here, the panel agreed with the suppression court that the warrant was not overbroad, holding that:
The denial of the motion to suppress was not error. [Appellant] was under investigation for computer-based criminal acts, i.e. , possession of child pornography on electronic equipment. The warrant contained a general description of the items to be seized, but permitted the seized devices to be searched only for evidence relating to the possession and/or distribution of child pornography.
Id . at 483 (quotations omitted). The Superior Court also rejected Appellant's argument that the warrant was unsupported by probable cause because someone outside Appellant's residence could have used the IP address associated with his residence. The Superior Court reasoned that "police were not required to prove their suspicion beyond a reasonable doubt, or disprove arguments that [Appellant] might conceivably raise. ... Rather, to obtain a warrant, police need only show the probability that evidence of criminality is in the place they seek permission to search. The affidavit here made that showing." Id .
Appellant filed a petition for allowance of appeal with this Court, which we granted to address the following issue: "Was the search warrant issued for [Appellant's] home and electronic devices overbroad, and did the affidavit fail to establish probable cause?" Commonwealth v. Green , 243 A.3d 1293 (Table) (Pa. 2021) (per curiam order).
II. Analysis
Appellant advances two main arguments as to why the search warrant was overbroad. He first avers that the search warrant "was overbroad due to the disparity between the immense number of items requested to be seized and later searched, and the underlying probable cause offered to support the warrant." Appellant's Brief at 12. He also maintains that the search warrant "was overbroad in that the language used to particularize the search did nothing to curtail law enforcement from searching each and every file on the seized devices." Id . We address each of these components in turn.
The first issue is familiar, as it simply deals with the search and seizure of physical items (computers, cell phones, and other electronic devices) within a physical space (Appellant's home). The second issue is novel, as our Court has not before assessed when a search warrant is overbroad regarding a digital search of electronic files contained within a personal electronic device. Although this Court recently granted review of such an issue in Commonwealth v. Johnson , ––– Pa. ––––, 240 A.3d 575 (2020), we never reached the issue of whether the language contained in the warrant in that case was in fact overbroad. That was because an overbreadth analysis begins with an assessment of probable cause, and we held as a threshold matter that there was no probable cause to believe any evidence of criminality would be found within Johnson's phone. Id . at 590. Nevertheless, this Court in Johnson thoroughly outlined the relevant legal standards for an overbreadth challenge as follows:
Article I, Section 8 of the Pennsylvania Constitution4 ensures that citizens of this Commonwealth are protected from unreasonable searches and seizures by requiring that warrants: (1) describe the place to be searched and the items to be seized with specificity and (2) be supported by probable cause to believe that the items sought will provide evidence of a crime. See, e.g. , Commonwealth v. Waltson , 555 Pa. 223, 724 A.2d 289, 292 (1998). Regarding the former requirement, we have interpreted the phrase "as nearly as may be" in Article I, Section 8 "as requiring more specificity in the description of items to be seized than the federal particularity requirement." Id . at 291, citing Commonwealth v. Grossman , 521 Pa. 290, 555 A.2d 896, 899 (1989) ("The clear meaning of the language is that a warrant must describe the items as specifically as is reasonably possible."). This more stringent requirement makes general searches impossible and " ‘prevents the seizure of one thing under a warrant describing another.’ " Grossman , 555 A.2d at 899, quoting Marron v. United States , 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927) ; see also Commonwealth v. Matthews , 446 Pa. 65, 285 A.2d 510, 514 (1971) ("It cannot be disputed that general or exploratory searches through which officers merely hope to discover evidence of [a]ny kind of [a]ny wrongdoing are not constitutionally permissible.").
Moreover, for particularity purposes, we have clarified that although some
courts have treated overbreadth and ambiguity as relating to distinct defects in a warrant, see Commonwealth v. Santner , 308 Pa. Super. 67, 454 A.2d 24, 25 n.2 (1982), "both doctrines diagnose symptoms of the same disease: a warrant whose description does not describe as nearly as may be those items for which there is probable cause." Grossman , 555 A.2d at 899-900. For that reason, when assessing the validity of the description contained in a warrant, the natural starting point for a court is to determine for what items probable cause existed. Id . at 900. "The sufficiency of the description [in the warrant] must then be measured against those items for which there was probable cause. Any unreasonable discrepancy between the items for which there was probable cause [to search] and the description in the warrant requires suppression." Id . This is because "[a]n unreasonable discrepancy reveals that the description was not as specific as reasonably possible[,]" id ., meaning the warrant is overbroad, ambiguous, or perhaps both.
At the same time, we have also recognized the fact-dependent nature of such claims, and cautioned that "search warrants should ‘be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description will suffice.’ " Commonwealth v. Rega , 593 Pa. 659, 933 A.2d 997, 1012 (2007), quoting Pa.R.Crim.P. 205, Cmt. In that vein, we have held that "where the items to be seized are as precisely identified as the nature of the activity permits and an exact description is virtually impossible, the searching officer is only required to describe the general class of the item he is seeking." Matthews , 285 A.2d at 514 ; see also Commonwealth v. Johnson , 615 Pa. 354, 42 A.3d 1017, 1032 (2012) (search warrant not overbroad where "police were not certain as to the details of the assault and could not know exactly what to specify in the warrant application" and "[t]hus, they needed only to describe the class of items to be seized"); Commonwealth v. Sherwood , 603 Pa. 92, 982 A.2d 483, 504-05 (2009) (descriptions not overbroad, as the warrants "described the items police were seeking as nearly as possible under the circumstances" and the particular evidence sought "could be found in numerous places"); In re Search Warrant B-21778 , 513 Pa. 429, 521 A.2d 422, 426 (1987) (search warrant not overbroad where "investigators had no legitimate means of discovering information to narrow down the location of the records").
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4 Article I, Section 8 provides, "[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." PA. CONST. art. I, § 8.
Id . at 584-585.
Additionally, our standard of review for the denial of a suppression motion is de novo and "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." Commonwealth v. Shaffer , 653 Pa. 258, 209 A.3d 957, 968-69 (Pa. 2019). "Our scope of review is to 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 suppression record as a whole." Id . When the sole issue on appeal relates to a suppression ruling, our review includes only the suppression hearing record and excludes from consideration evidence elicited at trial. Commonwealth v. Yandamuri , 639 Pa. 100, 159 A.3d 503, 516 (Pa. 2017).
With this legal framework in mind, we will address: (1) whether the warrant was overbroad in the items it permitted to be seized, and (2) whether the warrant was overbroad with respect to the digital search of the electronic devices.
A. Items the Search Warrant Permitted to be Seized
The first issue we must address is whether the search warrant "was overbroad in that it authorized seizure of a sweeping list of devices." Appellant's Brief at 11. As we explained in Johnson , the natural starting place in assessing the validity of the description contained in a purportedly overbroad warrant is to determine for what items probable cause existed. Johnson , 240 A.3d at 587. Probable cause is determined by the totality of the circumstances. Id . In determining whether probable cause exists to support a search warrant, the issuing authority is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Commonwealth v. Torres , 564 Pa. 86, 764 A.2d 532, 537-38 (2001) (citing Commonwealth v. Gray , 509 Pa. 476, 503 A.2d 921 (1986) ). A court reviewing the underlying probable cause determination "must view the information offered to establish probable cause in a common-sense, non-technical manner." Id . "[P]robable cause is based on a probability, not a prima facie case of criminal activity." Commonwealth v. Housman , 604 Pa. 596, 986 A.2d 822, 843 (2009).
Appellant acknowledges that "probable cause existed for law enforcement to seize his phone and computer to look for evidence of the BitTorrent ‘seeding’ of suspected child pornography observed on December 28, 2014." Appellant's Brief at 15. However, according to Appellant, that is solely where probable cause existed, and therefore the warrant was overbroad in requesting to seize "every digital device found at the Appellant's address capable of accessing the internet, as well as all peripheral devices, software, etc., with no restriction on ownership whatsoever." Id . at 20. We disagree with this contention, as the affidavit of probable cause supporting the warrant was not as narrow as Appellant would suggest. We find that there was probable cause to search and seize all digital devices in Appellant's home, and so the warrant was not overbroad by failing to specify only Appellant's personal phone and computer. Corporal Goodyear's investigation in this case led him to an IP address being used by an unknown device to share child pornography. The owner of that IP address, Comcast, subsequently responded to a court order, identified Appellant as the subscriber of that IP address, and provided Appellant's residential address associated with that subscription. With that information, the warrant explained: "Based on the facts set forth in this affidavit, I believe that probable cause exists to believe that a user of the computer utilizing an internet account with a service address of [Appellant's residential address], was sharing child pornography on the BitTorrent network." Affidavit of Probable Cause at ¶ 24. The warrant did not request to search a particular device or even name a particular user because there was no way for investigators to obtain that information prior to a search. Corporal Hill explained the following in this regard during the suppression hearing:
The affidavit of probable cause describes "seeders" as "clients/peers that are sharing the files." Affidavit of Probable Cause at ¶ 14.
It is worth emphasizing at this point, that in Johnson , a point of contention was the fact that no party affirmatively argued or briefed probable cause. Notwithstanding this Court's explicit pronouncement that probable cause "is one of [the] main tenets" of an overbreadth analysis and that the two concepts could not be "meaningfully untangle[d]," Johnson , 240 A.3d 575, 586, Appellant forgoes a complete probable cause analysis in his brief. Although probable cause was specifically included in our grant for review, Appellant's brief goes so far as to omit probable cause from the question presented. Appellant's Brief at 6. Instead, he partially concedes that probable cause existed for certain items (his phone and computer) but provides no probable cause analysis for items he claims made this warrant overbroad (every other digital device). Id . at 14-15. This is particularly troubling given the fact that both lower courts found that there was probable cause to search all electronic devices in his home. In light of our observations in Johnson , going forward, litigants should include analysis of any alleged insufficient showing of probable cause as it relates to their overbreadth challenge.
Q: Okay. And you can't simply tell by the IP address the exact electronic device that was utilized to connect with a website?
[Corporal Hill]: At times, yes. In this case, no.
...
Q: Alright. But just to clarify, there was no information in this case which could – which would have led you to a particular device as opposed to just the IP address?
[Corporal Hill]: Correct.
N.T. Suppression Hearing, 6/30/16, at 10-12. Based on the information available to the corporals at the time they requested the warrant, the pornography could have been shared by any user on any device using the internet in the home. There was no way to narrow this inquiry without conducting a search.
Importantly, the warrant also included self-limiting language that permitted the officers only to search for "evidence relating to the possession and/or distribution of child pornography." This line was critical in focusing the search and seizure to items connected with the criminal activity for which there was probable cause. This limiting language prevented an indiscriminate or discretionary search of the home because any actions taken by the searching officers were restricted to only what could yield evidence of child pornography. The record reflects that this was not an exploratory search, but one "directed in good faith towards the objects specified in the warrant." Matthews , 285 A.2d at 514.
Ultimately, given the realistic limitations of this investigation and the nature of this crime, the warrant could not have described the device sharing the contraband with any more detail than the IP address and associated physical address. There was, nevertheless, probable cause to believe that evidence of criminality would be found on a device within the home. Stated simply, the warrant described as particularly as reasonably possible the items for which there was probable cause. Therefore, the warrant was not overbroad in this respect. See Matthews , supra ("where the items to be seized are as precisely identified as the nature of the activity permits ... the searching officer is only required to describe the general class of item he is seeking.").
Having concluded that the warrant was not overbroad with respect to the physical items it permitted to be searched and seized, we now address whether the warrant was overbroad with respect to the digital forensic search of the seized devices.
B. The Digital Forensic Search of the Device
To answer whether the warrant was overbroad with respect to the digital search of the device, we must first address whether a different legal standard should apply to an overbreadth challenge to the search of a digital device than the standard already outlined by our Court in Grossman and Johnson . Appellant suggests that "it is [the] very uniqueness in the often highly private information contained and accessible on [personal] devices, as well as their sheer storage capacity, that supports a more critical view of the language used in the warrant applications to avoid overbreadth." Appellant's Brief at 23. At the outset, this argument is at odds with Johnson where we stated, "we see no logical reason why the legal framework articulated in Grossman should not apply here [to an overbreadth challenge to the search of a cell phone.]" Johnson , 240 A.3d at 585. Nevertheless, Appellant views the "application of a stricter view of the particularity requirement in searches of digital devices such as his as a logical extension of the reasoning of the Supreme Court in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and this Court in Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475 (2018)." Appellant's Brief at 21.
In Riley , the High Court recognized that cell phones often contain a vast amount of highly personal information such that its contents may not be searched without a warrant. In Fulton , our Court held that the rule created in Riley "is exceedingly simple: if a member of law enforcement wishes to obtain information from a cell phone, get a warrant." Fulton , 179 A.3d at 489. A warrant is required to search a cell phone "because, like one's home, an individual's expectation of privacy is in the cell phone itself, not in each and every piece of information stored therein." Id . at 316-17, 179 A.3d 475. In fact, "a cell phone search would typically expose to the government far more than the most exhaustive search of a house." Id . (citing Riley , 573 U.S. at 396-97, 134 S.Ct. 2473 ) (emphasis in original).
Because a cell phone often contains even more personal information than a home, it logically follows that a warrant should be required to search the contents of a cell phone, just as a warrant is required to search the contents of a home. This rationale, however, does not support the conclusion that, once obtained, a warrant to search a digital device should be held to a higher overbreadth standard than a warrant to search a home simply because of the former's storage capacity. Of course, as discussed supra , our Constitution requires that all warrants, including warrants to search a digital space, (1) describe the place to be searched and the items to be seized with specificity and (2) be supported by probable cause to believe that the items sought will provide evidence of a crime. In applying this standard, courts must be cognizant of the privacy interests associated with personal electronic devices. However, just as with a search of a home and other spaces where an individual maintains a privacy interest, if there is probable cause that evidence of a crime will be found within an electronic device, that evidence should not be shielded simply because a defendant comingles it with personal information in a digital space with vast storage capacity. This is particularly so when, like here, the nature of the crime is electronic or internet based.
Thus, consistent with Johnson , we hold that the Grossman standard for an overbreadth challenge applies equally to the search of a digital space as it does for a physical search. Johnson , 240 A.3d at 585. Applying that standard to the digital search in this case, we again look to see whether the warrant described "as nearly as may be those items for which there is probable cause." Grossman , 555 A.2d at 899 ("The clear meaning of this language is that a warrant must describe the items as specifically as reasonably possible."); PA. CONST. art. I, § 8.
As discussed earlier, Appellant argues that probable cause was limited to the evidence of child pornography shared from his IP address on December 28, 2014, and therefore the warrant was overbroad for failing to include "specific dates, types of files, [or] specific programs." Appellant's Brief at 15. According to Appellant, the warrant was overbroad because it "allowed for the prohibited ‘rummaging’ through all files on all seized devices, nearly all of which contained private, non-criminal material." Id . at 16. Appellant's argument again minimizes the depth of probable cause and exaggerates what that warrant authorized in this case.
Although Corporal Goodyear personally downloaded an image file depicting child pornography on December 28, 2014, that did not mean probable cause was limited to that particular date or that particular file. The affidavit of probable cause explained that, based on the corporals’ experience investigating this type of crime, individuals who download and share child pornography usually maintain a collection of child pornography in a secure, private location for long periods of time. Importantly, the affidavit noted that the user investigated here "had such a collection of child pornography available on a [file-sharing] network." Affidavit of Probable Cause at ¶ 25. These facts established probable cause that someone was sharing a collection of child pornography in general, which is exactly what the warrant permitted the officers to search for and seize. Because probable cause was not limited to the single instance of conduct that Appellant points to, the warrant did not need to include a specific date, type of file, or program in order to satisfy the requirement to describe the items as nearly as may be.
Even if the investigators had been able to discover some type of identifying metadata or file type prior to the search, the affidavit also explained how easily these files can be hidden, modified, or destroyed, such that the device needs to be searched in its entirety by a qualified computer expert in a laboratory or controlled environment. Therefore, the affidavit explained why the warrant could not include the specific details that Appellant argues should be necessary. Again, "where the items to be seized are as precisely identified as the nature of the activity permits and an exact description is virtually impossible, the searching officer is only required to describe the general class of the item he is seeking." Matthews , 285 A.2d at 514.
Appellant also argues that the warrant's self-limiting language allowing a search only for "evidence relating to the possession and/or distribution of child pornography" did not cure its alleged overbreadth because officers still had access to the entire device and all the personal, non-criminal information therein. As discussed supra , it is undisputed that "a warrant cannot be used as a general investigatory tool to uncover evidence of a crime. Nor may a warrant be so ambiguous as to allow ... the general ‘rummaging’ banned by the Fourth Amendment." Commonwealth v. Rega , 593 Pa. 659, 933 A.2d 997, 1011 (2007) (citation omitted). This case, however, is not one where officers were given free rein to look at anything within the phone to generally look for evidence of a crime. See e.g. , Orie , supra ; Melvin , supra . Instead, the warrant was issued because an unknown user within Appellant's home was under investigation for an internet-based crime. The warrant only allowed the officers to search for evidence of that particular crime. They could not indiscriminately rummage through any and all files as Appellant suggests, but rather could only conduct a digital forensic search "by a qualified computer expert in a laboratory or other controlled environment" and only for evidence of child pornography. Affidavit of Probable Cause at ¶ 7. We are, as the lower courts were, satisfied that the limiting language provided in the warrant and supported by the affidavit of probable cause was specific enough that rummaging would not be permitted, nor would this warrant be used as a general investigatory tool. Because we find that the warrant sufficiently described the items for which there was probable cause, it was not overbroad.
It should be noted that Appellant and amici repeatedly suggest that officers will look through a suspect's private information once a warrant provides a limited scope of access to a personal digital device. This, however, is a separate issue than the overbreadth claim before us. In assessing overbreadth, a reviewing court must determine if the warrant describes the items for which there is probable cause with sufficient particularity. When a warrant is not overbroad on its face, a separate and subsequent issue may be whether the searching officers went beyond the scope of authority granted by that warrant. See e.g. , Wayne R. LaFave, 4 Search and Seizure: A Treatise On The Fourth Amendment , § 4.10 Scope and intensity of the search (6th ed. 2020) ("Assuming that a warrant meets the constitutional requirements of particularity, the descriptions provided are highly relevant in determining the permissible scope and intensity of the search which may be undertaken pursuant to the warrant."). This latter issue is not subsumed within the question granted for review and there was no evidence that such overreach occurred here. As discussed supra , the officers conducted an expert forensic search only of devices that contained a file-sharing program and only for evidence of child pornography, which is exclusively what was discovered during the search.
III. Conclusion
We find no reason to establish a unique overbreadth standard for the contents of electronic devices. Applying the traditional overbreadth standard to the facts before us, we find no error with the lower courts’ determinations that the warrant was not overbroad because it described the physical devices and digital data for which there was probable cause as nearly as may be under the circumstances.
Accordingly, the judgement of the Superior Court is affirmed.
Chief Justice Baer and Justices Saylor and Dougherty join the opinion.
Justice Donohue files a dissenting opinion in which Justice Wecht joins.
Justice Wecht files a dissenting opinion in which Justices Todd and Donohue join.
JUSTICE DONOHUE, dissenting
The search warrant in this case authorized law enforcement to seize all digital devices connected to an IP address that it indicated would "later [be] searched for evidence relating to the possession and/or distribution of child pornography[.]" Search Warrant, 1/14/2015, at 1-2 ("items to be searched for and seized"). The question is whether this broad authorization to seize all devices and search through all data on the digital devices for evidence of possession and distribution of child pornography complied with Article I, Section 8 ’s requirement that the warrant must describe the place to be searched and the things to be seized "as nearly as may be[.]" I join the Dissenting Opinion of Justice Wecht. I write separately to express my view that the search warrant was unconstitutional. Because law enforcement here had established probable cause to believe that Eric Lavadius Green ("Green") was sharing images of child pornography via BitTorrent, and in view of the vast personal information found on digital devices, the magistrate should have authorized only a search for images of child pornography on the digital devices. Absent that limitation, the warrant permitted the type of rummaging prohibited by the Constitution by authorizing the executing officers to search through other private information found on the devices.
Article I, Section 8 of the Pennsylvania Constitution provides that "no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." Pa. Const . art. I, § 8.
Boyd v. United States , 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
This Court has stated that Article I, Section 8 has "twin aims," i.e., "the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause." Commonwealth v. Waltson , 555 Pa. 223, 724 A.2d 289, 292 (1998). Further, "where the items to be seized are as precisely identified as the nature of the activity permits and an exact description is virtually impossible, the searching officer is only required to describe the general class of the item he is seeking." Commonwealth v. Matthews , 446 Pa. 65, 285 A.2d 510, 514 (1971). We are also guided by the well-established principle that the sufficiency of the description of the items to be searched for and seized must be "measured against those items for which there was probable cause." Commonwealth v. Grossman , 521 Pa. 290, 555 A.2d 896, 900 (1989). Further, "[a]ny unreasonable discrepancy between the items for which there was probable cause and the description in the warrant requires suppression. An unreasonable discrepancy reveals that the description was not as specific as was reasonably possible." Id .
Similarly, the Fourth Amendment prohibits general searches to avoid placing "the liberty of every man in the hands of every petty officer." Marron v. United States , 275 U.S. 192, 195-96, 48 S.Ct. 74, 72 L.Ed. 231 (1927) (internal citations omitted). A particular warrant "assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." Groh v. Ramirez , 540 U.S. 551, 561, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (citing United States v. Chadwick , 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) ). The Supreme Court's instruction with regard to seizures applies with equal force to searches – "As to what is to be taken," and as to what is to be searched, "nothing is left to the discretion of the officers executing the warrant." Marron , 275 U.S. at 196, 48 S.Ct. 74.
Id. (internal quotation marks and citation omitted).
In addressing the concerns applicable to cell phone searches, which would apply to searches on almost all digital information, the United States Supreme Court has observed that a "cell phone search would typically expose to the government far more than the most exhaustive search of a house[.]" Riley v. California , 573 U.S. 373, 396, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In applying Riley , this Court has observed that the "variety of information that can be stored, the details about a person's life that the information can convey, and the length of time the information can remain catalogued in a cell phone, which are carried by the great majority of people, led the Court to conclude that data stored on a cell phone is entirely distinguishable from any physical evidence counterpart." Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475, 485 (2018) (citing Riley , 573 U.S. at 393-94, 134 S.Ct. 2473 ); see also In re Search of 3817 W. West End, First Floor Chicago, Illinois 60621 , 321 F. Supp. 2d 953, 959 (N.D. Ill. 2004) ("The capacity of the computer to store ... large quantities of information increases the risk that many of the intermingled documents will have nothing to do with the alleged criminal activity that creates the probable cause for a search and seizure.").
For that reason, I disagree with the Majority's position that the search of Green's digital devices should be treated identically to a search of a physical residence for physical things. Majority Op. at 553. The Majority is correct that these searches are held to the same constitutional standard, and that the items to be seized must be "as precisely identified as the nature of the activity permits." Id . at 20 n.6 (citing Matthews , 285 A.2d at 514 ). However, as we explained in Fulton , data stored on digital devices is distinguishable from physical evidence, and our consideration thereof must account for the differences. Significantly, digital searches, by their nature, permit the use of modern forensic tools to narrow the content to be searched using specific software, dates, file types, hash values, etc., the combination of which avoids the rummaging that the Fourth Amendment and Article I, Section 8 seek to prevent. See In re Search of 3817 W. West End, 321 F. Supp. 2d at 953 (stating that "[a] number of courts addressing the issue have found that the search and seizure of a computer requires careful scrutiny of the particularity requirement"). As Green and Amici cogently argue, "[t]he same mobile device forensic tools (‘MDFT’) that are currently used to extract data and files from a digital device, can also be programmed to limit the search by targeting the files and data likely to contain the evidence being sought." Green's Reply Brief at 10-11 (citing Amicus Upturn, Inc.’s Brief at 16 (discussing the powerful filtering tools built into MDFTs which allow data responsive to the warrant to be quickly identified and saved, and non-responsive data to be permanently deleted)). The Majority ignores these tools, which were available to law enforcement to narrow and focus the search. That there exist technological and other rudimentary tools to minimize a digital search to avoid exposure to non-criminal data has been recognized by the Superior Court. Indeed, the Superior Court has addressed search warrants that utilized procedures to narrow the content to be searched and to avoid the type of rummaging prohibited by the particularity requirement. In Commonwealth v. Melvin and Commonwealth v. Orie , the Superior Court approved of search warrant procedures authorizing a search process which required first, review by a special master for privilege, and second, limited the search to certain file types and documents containing keywords. Commonwealth v. Melvin , 103 A.3d 1, 32 (Pa. Super. 2014) ; Commonwealth v. Orie , 88 A.3d 983, 1003 (Pa. Super. 2014). By contrast, the court found that a warrant authorizing seizure of all stored communications from identified email accounts for a specific period of time to be overbroad because it "did not justify the search of all communications for that period." Id . at 1008-09. Orie and Melvin shed light on the reality that investigators must narrow and tailor searches of digital information to avoid overbroad searches. They also demonstrate that those capabilities exist. See also In re Search of 3817 W. West End, 321 F. Supp. 2d at 959 ("[C]omputer technology affords a variety of methods by which the government may tailor a search to target on the documents which evidence the alleged criminal activity... includ[ing] limiting the search by date range; doing key word searches; limiting the search to text files or graphic files; and focusing on certain software programs."). In my view, at a minimum, the underlying warrant was required to specify that it authorized a search for images of child pornography, because that was the scope of the probable cause established.
The Commonwealth argues that a search of everything in the devices was authorized because in a home search for drugs, officers are entitled to open dresser drawers and leaf through its contents, potentially exposing items like sex toys or intimate photographs. Commonwealth's Brief at 16-17. Thus, the same is true here: the officers were permitted to look at each and every file to see if it contained evidence of child pornography. The counter arguments, which are largely developed by the Amici, essentially posit that the vast amount of private information on phones and computers distinguishes their searches from those of homes. Phones, unlike homes, store data regarding a person's movements and store deleted information long after it would be physically discarded. See Riley , 573 U.S. at 393, 134 S.Ct. 2473. Further, they assert that technology has obviated the need for humans to perform that type of intrusive search in the digital sphere.
There is little doubt that technological tools can perform an initial screening function; even the basic search function of common operating systems like Microsoft Windows allows users to filter files by type, such as photographs, videos, or music. This does not end the matter as technology likewise allows the sophisticated user to evade or otherwise frustrate these types of basic filtering. However, the affidavit of probable cause suggests Green was not a sophisticated user of technology. See Affidavit of Probable Cause, ¶¶ 17.d, 20 (describing how during the installation of a BitTorrent client, various settings are established, including a default setting to share files; Green's computer was configured to share files).
These arguments address how a search is performed, and I agree with Justice Wecht that technology can provide some level of "guardrails or limitations to account for non-criminal material[.]" Dissenting Op. at 565–67 (Wecht, J.). Simultaneously, just how sophisticated these tools are is not developed in any meaningful fashion by Green, and thus I am unprepared to say at this juncture whether the Fourth Amendment and/or Article I, Section 8 demand that a search warrant for digital devices must state exactly how the search will be conducted, and that topic in my view remains ripe for development in future cases. Presently, I limit my analysis to the fact that the warrant authorized the officers to search for material well beyond images. To borrow the Commonwealth's analogy, a police officer searching Green's home for printed copies of child pornography could open a dresser drawer to see if the photographs were there. The officer could not, however, read through the pages of a diary that happened to be in that drawer. This warrant, however, authorized the officer to do just that if Green happened to store his thoughts in a digital format. See infra at 9.
U.S. CONST. amend. IV ("No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.").
One of the approved search warrants allowed seizure of computer hardware and search of electronically stored data referencing "Joan Orie Melvin or her 2009 political campaign, and checks, campaign contribution, thank you letters, and mastheads for Joan Orie Melvin's 2009 political campaign, and Orie's 2001-2009 elections or political campaigns, and checks, campaign contributions, thank you letters, and masthead for Orie's 2001 through present political campaigns." Orie , 88 A.3d at 1005. Significantly, law enforcement did not view the data within those items, but instead, obtained a second search warrant for the data contained within the computer hard drives, which authorized search of certain file types (Microsoft outlook calendar data, Microsoft excel spreadsheets) and documents containing certain keywords. Id . at 1006-07.
Marron v. United States , 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927).
Here, the affidavit of probable cause described how the Pennsylvania State Police determined that there were likely to be images of child pornography on a digital device at Green's residence. First, it described the background of the investigation. The affiant explained that BitTorrent is a peer to peer ("P2P") file sharing protocol, that "allows the user to set up file(s) on a computer to be shared with others running compatible P2P software." Affidavit of Probable Cause, ¶11. It further explained:
A person interested in obtaining child pornographic images would query a tracker [computer that coordinates file sharing] with a search term that he believes will provide a list of child pornographic material. The tracker then responds with a list of possible matching
.torrent files. The results of the search are returned to the user's computer and displayed. The user selects from the results displayed indicating the file he/she wants to download. The files are downloaded directly from the computers sharing them and are then stored in the area previously designated by the user where it remains until moved or deleted.
Id . ¶15. Additionally, "[d]uring the installation of a BitTorrent client, various settings are established which configure the host computer to share files. Depending upon the client software used, a user may have the ability to reconfigure some of those settings during installation or after the installation has been completed." Id . ¶17.d. Thus, the installation of a BitTorrent client typically creates a setting whereby the host computer will share files.
Then, the affidavit of probable cause set out the specific probable cause relating to Green as follows:
SPECIFIC PROBABLE CAUSE
20. On December 28, 2014 at 0815 HRS EST, Corporal GOODYEAR was conducting undercover investigations into the internet sharing of child pornography. He was able to locate a computer which was sharing child pornography on the BitTorrent file sharing network using client software which was reported as uTorrent3.3. He determined that the user of this computer system configured his BitTorrent client software to "seed" files.
Cpl. GOODYEAR was subsequently able to download contraband digital files from this user. The downloaded file(s) were viewed and one of them is described as follows:
Name of file : ism-024-074.jpg
Type of file : Image
Description : This image file depicts a prepubescent girl approximately 12 years old sitting on a rocky outcropping in front of an unidentified body of water. The girl has brown hair which is braided and is wearing a multicolored sheer piece of fabric and various bracelets on both wrists. She appears otherwise nude and has her legs spread so as to display her genital area which is clearly visible. In the upper left corner of the image is printed a company logo "LS Island"
* * *
Affidavit of Probable Cause, ¶ 20. The affiant described how law enforcement identified the IP address of the device from which that image was downloaded, and determined it related to a Comcast Cable Communications Inc. IP address for which the subscriber was listed as Green. Id . ¶22. The affiant then averred that "I believe that probable cause exists to believe that a user of the computer utilizing an internet account with a service address of 105 N 5th St. Apt 7 Hughesville, PA 17737, was sharing child pornography on the BitTorrent network." Id . ¶24.
In consideration of the facts and circumstances conveyed by the affiant, the affidavit of probable cause established probable cause to believe that images of child pornography would be found on devices using the IP address associated with Green's Comcast account. Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 655 (Pa. 2010) (internal citations omitted) ("Probable cause exists where the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted."). I agree with the Majority on that point. Majority Op. at 554. However, the averments in the affidavit of probable cause do not establish probable cause for anything other than digital depictions of child pornography that Green downloaded and shared with other users via the BitTorrent protocol.
The warrant, nonetheless, authorized officers to examine material on the devices that went far beyond that. Although the probable cause was limited to images of child pornography, the warrant's only limitation was that officers were only to search for evidence relating to the possession and/or distribution of child pornography. Search Warrant, 1/14/2015, at 1-2. That sentence does not adequately cabin officer discretion or the scope of the search. One officer could read the warrant as authorizing a broad search of every single file on the computer and phone – every spreadsheet, every executable, every deleted text message, every Apple pay record, all of the exercise data on the app tracking Green's steps. To that officer, those pieces of information could be evidence that Green purchased contraband images, could show communications with other persons involved in illegality, could show his movement to demonstrate where and when he looked at contraband images, and could reveal his most personal thoughts regarding his attraction to children. By contrast, another officer could decide to restrict his search to image files and those downloaded or shared via the BitTorrent protocol. His focused search would certainly uncover the collection of child pornography on which probable cause was based, but it would not give the officer access to all the data that together creates a mosaic of Green's life and conduct. Riley , 573 U.S. at 394-397, 134 S.Ct. 2473 (describing how "[t]he sum of an individual's private life can be reconstructed" through digital data, and in particular, cell phones). The search warrant's authorization for an unlimited search of all data therefore violates the notion that "nothing is left to the discretion of the officers executing the warrant." Marron , 275 U.S. at 196, 48 S.Ct. 74.
Thus, the warrant's authorization to search all files on the computer for evidence of possession and/or distribution of child pornography exceeded the scope of probable cause, which only extended to images of child pornography. Grossman , 555 A.2d at 900 (providing that the sufficiency of the description must be measured against the items for which there was probable cause). For that reason, I would hold that this warrant does not adequately describe, as nearly as may be, the things to be searched.
Here, the search warrant should have specified that law enforcement could only search for images in order to target Green's collection of child pornography. Because this search warrant violated the particularity requirement, all evidence seized pursuant to it should have been suppressed. I would reverse the order of the Superior Court and remand to the trial court.
Justice Wecht joins this dissenting opinion.
JUSTICE WECHT, dissenting
The Fourth Amendment to the United States Constitution was designed to prohibit—ex ante —those searches and seizures that are unreasonable. At the time the Amendment was drafted and ratified, the founders were particularly concerned with unreasonable seizures that often occurred through the issuance of general writs of assistance, which permitted government officials to rummage through people's possessions for smuggled goods or contraband, all at the discretion of the officials and without limitation.1 This practice was denounced as "the worst instrument of arbitrary power ... since [it] placed the liberty of every man in the hands of every petty officer."2 To curtail the use of general warrants—and to limit the arbitrary exercise of discretion by government agents—the Fourth Amendment requires that a warrant narrow the breadth of the search by stating the items to be seized and the places to be searched with particularity.3 Almost a century ago, the Supreme Court of the United States explained that the particularity requirement "makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left the discretion of the officer executing the warrant."4
While the times certainly have changed since Marron was decided in 1927, our bedrock constitutional principles have not. The Fourth Amendment still prohibits general searches; it still requires search warrant applications to be drafted with particularity. So, too, does the Pennsylvania Constitution. In fact, because Article I, Section 8 requires a warrant to describe the place to be searched and the items to be seized "as nearly as may be," this Court has held that our Constitution provides even more protection than its federal counterpart. Thus, in Pennsylvania, a police officer requesting a search warrant must be as specific as reasonably possible about the place to be searched and the things to be seized, such that the subsequent search is confined to the limits authorized by a neutral and detached magistrate, which ensures that it is not a boundless hunt for evidence conducted at the investigator's whim.
Pa. Const. art. I, § 8.
Commonwealth v. Waltson , 555 Pa. 223, 724 A.2d 289, 291 (1998).
See Commonwealth v. Matthews , 446 Pa. 65, 285 A.2d 510, 514 (1971) (explaining that our Constitutions prohibit exploratory searches where "officers merely hope to discover evidence of [a]ny kind of [a]ny wrongdoing.").
The present case tasks this Court with deciding how these hoary yet venerable principles apply in the modern age of sophisticated technology. In late 2014 and early 2015, the Pennsylvania State Police ("the PSP") conducted an undercover investigation of an internet-based distribution network for child pornography. During that investigation, the PSP learned that an internet-capable computer linked to an IP address associated with Eric Green's residence was using a file sharing program called BitTorrent to obtain and distribute images of child pornography. The PSP applied for, and obtained, a search warrant for Green's residence. On the warrant application, the PSP listed Green's residence as the place to be searched and identified the following as items to be seized:
Notably, on the face of the warrant application, the PSP listed only Green's residence as a place to be searched. The PSP did not indicate on the face of the warrant whether any electronic devices seized during the search of Green's home also would constitute places to be searched. See Application for Search Warrant, 1/14/2015, at 1.
Any and all computer hardware, including, but not limited to, any equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical or similar computer impulses or data. Any computer
processing units, internal and peripheral storage devices, (such as fixed disks, eternal hard disks, floppy disk drives, and diskettes, tape drives, tape, and optimal storage devices), peripheral input/output devices (such as keyboard, printers, scanners, plotters, video display monitors, and optical readers), and related communication devices such as modems, cables, and connections, recording equipment, as well as any devices, mechanisms, or parts that can be used to restrict access to computer hardware. These items will be seized and then later searched for evidence relating to the possession and/or distribution of child pornography. This search is also to include any and all cellular phones, including, but not limited to, any cellular device that can collect, analyze, create, convert, store, conceal, transmit electronic data, and the items associated with any cellular device such as power cords, bases, sim cards, memory cards.
Id.
The affidavit of probable cause submitted in support of the warrant extensively described the investigating law enforcement agents’ training and experience, the nature and difficulties attendant to investigations of internet-based crimes involving child pornography, the necessity of seizing various electronic devices and their associated peripherals for subsequent searches, and the information giving rise to probable cause in this case.
However, with regard to the actual demonstration of probable cause to support the sweeping search that the PSP sought in this instance, the PSP noted only that it had identified a single computer that had been using BitTorrent for purposes of sharing child pornography. Despite asserting probable cause for a single device, the PSP nonetheless asked to search for "[a]ny and all" electronic devices inside the home. The vast authorization the PSP sought was not based upon any individualized suspicion of Green's potentially criminal activities, but instead upon, inter alia , the PSP's general belief that those who possess or distribute child pornography "sometimes" keep copies of the illicit contraband "in the privacy and security of their home." The PSP did not assert that specific probable cause existed to believe that Green had done so, only that some people "sometimes" do. Based upon the apparent probable cause as to this one device, and the generalized assertions about how offenders of this type are believed to act, the PSP was issued a warrant allowing its troopers to seize virtually any device in Green's home capable of electronic storage and to search anywhere on those devices for evidence related to the receipt, distribution, or possession of child pornography. For all practical purposes, the PSP was permitted to enter Green's residence, seize any devices with a plug, remove them from the property, and then rummage through every digital file and any app on each device—without limitation—in the "hope [of] discover[ing] evidence of any kind of any wrongdoing." The result was the discovery of approximately one hundred images of child pornography on Green's smart phone.
Affidavit of Probable Cause, 1/14/2015, ¶ 20 (stating, in the section entitled "Specific Probable Cause," that Corporal Goodyear "was able to locate a computer which was sharing child pornography") (capitalization normalized; emphasis added); id . ¶ 24 (providing the belief that "probable cause exists to believe that a user of the computer utilizing an internet account with a service address" that matched Green's address "was sharing child pornography").
Id. ¶ 23c.
Matthews, 285 A.2d at 514 (capitalization adjusted).
The Majority discerns no constitutional problems with the expansive seizure and searches that occurred in this case. In my view, the Majority's decision eviscerates the particularity requirement as it applies to searches and seizures of digital devices—a problematic result in this day and age when more and more private information is being stored on our laptops and smart phones. The result enables police to conduct unbridled scavenges of digital devices that would not be permitted when performing a search in any other context.
As I noted recently, in the twenty-first century, an "inextricable relationship ... has developed ... between a person and his or her internet-capable device." I explained:
Commonwealth v. Dunkins , ––– Pa. ––––, 263 A.3d 247 (2021) (Wecht, J., concurring in part and dissenting in part).
Cell phones, smart devices, and computers have evolved in a way that integrates the internet into nearly every aspect of their operation and function. Advancements in the ability to use the internet have turned communication technologies that once were futuristic and fantastical gadgets possible only in the world of the Jetsons or Dick Tracey into everyday realities. Physical distance is no longer a barrier to face-to-face interaction. Applications such as Zoom, WebEx, and Skype allow face-to-face, personal, professional, and educational discussions that previously could be performed only in person or by conference call or telephone call. We now have at our fingertips the ability to manage our calendars or access an unlimited amount of information, regardless of where we are located. Instantaneously, a person can check news reports, weather forecasts, sports scores, and stock prices. Modern matchmaking and dating commonly now begin with internet connections. As time passes, the internet has come to be used and relied upon in nearly every aspect of our daily lives, from organizing family reunions, to scheduling medical appointments, to conducting academic research, to operating every aspect of a business.
Id.
This near omnipresence of smart phone usage in today's society has led to some seismic shifts in search and seizure law. The Supreme Court observed that smart phones have become a "feature of human anatomy" and "such a pervasive and insistent part of daily life" that "carrying one is indispensable to participation in modern society." Because of this novel and important function, the Court held that police may not open or access such a device without a search warrant, even when the device is seized pursuant to a lawful arrest. The Court then held that individuals have an expectation of privacy not just in the content on the devices, but also in the records that are generated by those devices. That expectation was so intertwined with contemporary existence that the Court held that it persists even in the face of some of the most fundamental and long-standing limitations on the Fourth Amendment, including the traditional principles that one does not possess an expectation of privacy while moving in public or when information is shared with third-parties.
Riley v. California , 573 U.S. 373, 385, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).
Id.
Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2220, 201 L.Ed.2d 507 (2018).
Riley , 573 U.S. at 386, 134 S.Ct. 2473.
See Carpenter , 138 S.Ct. at 2214-20.
As courts throughout the country endeavor to ensure that technological innovation does not become an excuse for governmental overreach, today's Majority chooses a different approach—one that ignores the realities of how these devices work and how they are used—thereby sanctioning the modern equivalent of the general warrant that the framers so despised.
See Maj. Op. at 553–54 (declaring that a search of one's phone is not distinct in a meaningful way from a search of one's home and thus holding that "if there is probable cause that evidence of a crime will be found within an electronic device, that evidence should not be shielded simply because a defendant comingles it with personal information in a digital space with vast storage capacity"). The Majority inaptly equates the search of an entire home with a search of an entire cellphone. The search of all places in a home and all effects located therein is more akin to the search of an entire smartphone.
The typical smart phone (or laptop) user stores a significant amount of personal information on his or her devices. These devices likely contain medical records, personal schedules of the user or his or her family, intimate correspondence stretching back a decade or more, journal entries containing one's innermost thoughts, financial records, or confidential business documents. Rather than contemplate how police officers must craft a search warrant in order to maintain the constitutional boundary between the evidence that law enforcement possesses probable cause to believe is connected to the alleged crime and those private materials that unquestionably are not within that category, the Majority gives officers free rein to scour all digital files and any application on the phone or computer in hopes of locating incriminating information. Under the Majority's rule, a police officer need only seek permission to seize "any and all" electronic devices inside a home, and so long as the officer provides probable cause as to one of them, a subsequent search of every file, photo, history, application, and storage folder on those devices, without any sort of limitation, does not run afoul of the Constitution. In the absence of concrete guidance, the Majority effectively would give law enforcement unfettered access to years’ worth of browsing history, bank records, and conversations—provided only that these are located on an electronic device. On little else than a mere showing of probable cause that an electronic device was connected to some crime, the whole of an individual's world will be unveiled and broadcast to the government's prying eyes. I cannot square this holding with any reasonable interpretation of the particularity requirement. Nor can I comprehend how such a broad holding protects the interests underlying that requirement.
Our Superior Court has addressed similar overbreadth challenges in Commonwealth v. Orie , and in Commonwealth v. Melvin . In Orie , former State Senator Jane Orie was convicted of a number of offenses in connection with her legislative staff's participation in campaign-related work. As part of the investigation into those activities, law enforcement obtained and executed approximately twenty search warrants. Orie argued that the warrants were overbroad and permitted the police to engage in unconstitutional fishing expeditions. The Superior Court found no overbreadth issues with all but two of the warrants. However, one search warrant permitted the seizure of a flash drive that Orie had provided to a member of her staff. The warrant authorized a search of the flash drive for "any contents contained therein, including all documents, images, recordings, spreadsheets or any other data stored in digital format," without any restrictions to account for contents that law enforcement did not have probable cause to believe contained inculpatory information. Another warrant was for Orie's personal email account, authorizing the police to seize to "all stored communications and other files ... between August 1, 2009 and the present, including all documents, images, recordings spreadsheets or any other data stored in digital format."
88 A.3d 983 (Pa. Super. 2014), allocatur denied , 627 Pa. 757, 99 A.3d 925 (Pa. 2014) (per curiam ).
103 A.3d 1 (Pa. Super. 2014).
Orie , 88 A.3d at 1008.
Id.
The Superior Court first explained that the particularity clause
is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched .... The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity 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 general "rummaging" banned by the [F]ourth [A]mendment. A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation .... An overbroad warrant is unconstitutional because it authorizes a general search and seizure.
Id. at 1002-03 (quoting Commonwealth v. Rivera , 816 A.2d 282, 290 (Pa. Super. 2003) ).
Drawing from these general principles, the Superior Court found the warrants for the flash drive and the email account to be constitutionally overbroad because the descriptions of the places to be searched and the things to be seized failed to include a "limitation to account for any non-criminal use."
Id. at 1008. Despite finding the warrants to be overbroad, the Superior Court concluded that Orie nonetheless was not entitled to relief because the actual search of the drive and the email was performed pursuant to a second, constitutionally issued warrant. Id. at 1009.
Similarly, in Melvin , the police obtained search warrants for two of former Justice Melvin's personal email accounts. As in Orie , the Superior Court found that the warrants permitted the police to seize and search every email in the accounts, including those that bore no relation to criminal activity. In both cases, the relevant warrants permitted the seizure of every email in the account without any attempt to distinguish the potentially relevant emails from those unrelated to the investigation[.]" Thus, the court reasoned that the warrant for Melvin's email accounts permitted a general search and seizure that was unconstitutionally overbroad.
Melvin , 103 A.3d at 17.
Id . at 17-18.
See id. at 17-19. Ultimately, the Superior Court held that the error was harmless, and that Melvin was not entitled to relief. Id. at 19-22.
Although not binding on this Court, Orie and Melvin nonetheless are, in my view, persuasive. Both decisions are consistent with, and meaningfully enforce, the protections provided by the particularity requirement. The Majority does not substantively attempt to discuss, distinguish, or even overrule these cases. But it is hard to discern how Orie and Melvin can remain on the books harmoniously with the Majority's decision in the present case. The Majority briefly explains that this case is unlike Orie and Melvin because this case is "not one where officers were given free rein to look at anything within the phone to generally look for evidence." But that is exactly what happened here. PSP personnel developed probable cause for one device that they believed was located in Green's home. Based upon that suspicion, the PSP obtained a warrant for "any and all" electronic devices in the home, including keyboards, disc drives, and even scanners. Once seized, the PSP was allowed to take that equipment and then search every aspect of those devices for evidence.
Maj. Op. at 554–55.
As with Orie and Melvin , there was nothing set forth in the warrant before us to account for the presence of data or files that were not reasonably connected to the alleged crime. That the affiants stated that they were looking for evidence of distribution or possession of child pornography is no limitation at all. Such a statement informs the authorizing judicial officer as to what law enforcement agents are looking for, but it does not limit where they can look or how they must confine the technical parameters of their search to limit the exposure of unrelated, non-inculpatory personal information. It is difficult, if not impossible, to discern any cohesion between Orie and Melvin and this case. It seems to me axiomatic that if police officers cannot search a flash drive or an email address without guardrails or limitations to account for non-criminal material, then they likewise cannot search every file and folder stored on larger devices that contain much more information in the absence of similar restraints.
For further indicia of overbreadth, one need look no further than the first three words of the description of the items to be seized section of the warrant, "any and all." A number of courts have found that the use of this phrase in warrant applications led to constitutionally overbroad searches. For instance, in United States v. Otero , the Tenth Circuit Court of Appeals considered a warrant that described fourteen categories of items to be seized, some of which were computers or digital equipment, each of which began with the phrase "any and all." The court first noted that the "modern development of the personal computer and its ability to store and intermingle a huge array of one's personal papers in a single place increases law enforcement's ability to conduct a wide-ranging search into a person's private affairs, and accordingly makes the particularity requirement that much more important." Because the particularity requirement must "affirmatively limit" the search to evidence related to the crimes suspected, the court found that the "any and all" warrant was overbroad in violation of the federal particularity requirement.
563 F.3d 1127, 1130 (10th Cir. 2009).
Id. at 1132.
Id. (citing United States v. Riccardi , 405 F.3d 852, 862 (10th Cir. 2005) ). Although the warrant was invalid, the court did not order the seized evidence to be suppressed, finding that the warrant was executed in good faith. Id. at 1136.
Similarly, in State v. Henderson , the Supreme Court of Nebraska invalidated a search warrant for a smart phone that permitted the seizure of "any and all information" from the device, and of "any other information that can be gained from the internal components and/or memory [c]ards." The Court explained that such broad warrants contravene the particularly requirement because "they do not sufficiently limit the search of the contents of the cell phone."
289 Neb. 271, 854 N.W. 2d 616, 633 (2014).
Id. As with Otero , the Henderson Court ultimately held that, despite the unconstitutionality of the warrant, suppression was not required because the warrant was executed in good faith. Id at 634-35.
The warrant issued in this case is as overbroad as those in Orie , Melvin , Otero , and Henderson . None of the warrants in any of those cases limited the searches in a constitutionally meaningful way, leaving the searches to the discretion of the officers. The same is true here. The decisions as to where to look, what files or applications to open, and how deeply to dig all were left to the discretion of the officers. Nothing in the warrant to search and seize Green's electronic devices prevented law enforcement from examining any banking, social media, text messaging, or shopping apps on Green's device. But the warrant contains no indicia that any such apps would produce information connected to those effects within the phone. Similarly, the warrant contained no temporal limitations. Under its broad language, the warrant allowed police officers to search for information that was stored in the phone long before any crimes occurred, even though the investigators had reason to believe only that Green's crime occurred within a specific timeframe. Facially, these consequences fail our particularity requirement.
It is tempting to validate or accede to the broad allegations made by the PSP in the affidavit in support of its warrant application, finding particularity where it does not exist. For example, in the affidavit, the PSP asserts, inter alia , that those who collect and distribute child pornography "sometimes" maintain those images in a secure, private location for long periods of time. Search warrants, however, must be particularized, that is, based upon individual facts and circumstances, not based upon a police officer's belief as to how some individuals "sometimes" will act. Broad-based assumptions of human behavior are sufficient neither to establish probable cause nor to satisfy the particularity requirement. The PSP did not offer specific probable cause that Green's conduct conformed to its assumptions.
Affidavit, 1/14/2015, ¶ 25.
See City of Indianapolis v. Edmond , 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (citing Chandler v. Miller , 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) ); Commonwealth v. Mistler , 590 Pa. 390, 912 A.2d 1265, 1271 (2006).
See, e.g. , Commonwealth v. Jacoby , 642 Pa. 623, 170 A.3d 1065, 1085 (2017) (rejecting a search warrant predicated upon the general belief that gun owners, even those who use the gun to commit murder, do not discard those firearms).
The PSP also relied upon its belief that "a suspect may try to conceal criminal evidence, and he might store criminal evidence in random order or with deceptive file names or deceptive file extensions," in asserting that such a broad search and seizure was necessary. Again, however, the PSP did not assert any probable cause to show that Green was storing his files in such a way, or that he was engaging in such deceptive practices. Without any individualized beliefs, the PSP effectively is asking to perform certain actions because Green might act as others "sometimes" act. The problem with this type of reasoning is easily illustrated with a hypothetical. It is indisputable that a police officer can search only those areas for which there is "a fair probability that contraband or evidence of a crime will be found." Thus, if a police officer obtains a search warrant to look for a rifle, the officer cannot look for that weapon in a woman's purse. A rifle cannot fit in a purse. Since it cannot be there, the police cannot look there. By the PSP's logic in its affidavit, and via the Majority's approval, the police officer in the hypothetical still would be able to search in the purse, so long as the officer asserts in the affidavit that a person could dismantle the rifle into parts and then hide them throughout the house, including in a purse. The officer would not need to assert that the suspect actually did so, or even that he has probable cause to believe the suspect did so. The officer only would have to state that some other people "sometimes" might do so, and the entire house would be available to be searched. Clearly, this type of generalized conjecture does not comport with the constitutional requirement of a "fair probability" that the item will be located in a particular place. Yet, in this case, and in the context of searches for digital data generally, the Majority nonetheless allows searches predicated upon such bald extrapolations.
Affidavit, 1/14/2015, at 4.
Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)
To further emphasize the breadth of the warrant at issue in this case, consider one more hypothetical, one in which the present facts are slightly modified. Assume that this same warrant was issued for a residence in which three people lived: a husband, a wife, and their fourteen-year-old daughter. The warrant, predicated upon probable cause that the husband used a desktop computer to share child pornography, authorizes the police to seize the husband's iPad, the wife's laptop, the daughter's smart phone, the family's scanner, and a long-since obsolete fax machine held over from years before. The police can retain those devices for as long as it would take for them to be searched. It could be days, weeks, or even months. Once those devices were submitted to trained experts, every file, program, or folder contained on those devices would be available for probing and inspection. If the police were searching for photographs of child pornography, nothing would prohibit the officers from scouring the wife's personal calendar. If they are looking for audio files, they can read every page of the daughter's personal diary. If they are seeking only documents, they nonetheless can pore over countless personal, confidential messages passed between the girl and her friends or love interests. The warrant places no bounds on the police at all.
The particularly requirement is necessary to ensure that "nothing is left to the discretion of the officer executing the warrant." Here, however, everything was left to the discretion of the PSP. Fairly read, this warrant permitted the PSP—based upon probable cause for a single device—to seize "any and all" electronic devices from the home, to keep them for however long was deemed necessary, to turn them over to some expert at some future date, and to have them searched without constraint by those technicians. Simply put, the warrant authorized the PSP to take any device and to search anywhere on that device. This is precisely the general exploratory expedition that the particularity requirement was designed to thwart.
Marron , 275 U.S. at 196, 48 S.Ct. 74.
Our Constitution requires that warrants describe the places to be searched or the things to be seized "as nearly as may be." It is a heavy burden, but not an insurmountable one. That requirement does not preclude police from obtaining warrants. It merely requires them to write warrants in a way that circumscribes the parameters of the requested searches. It is not unreasonable to require that the warrant "tell the officers how to separate the items subject to seizure from irrelevant items." In this case, for example, the PSP had probable cause to believe that Green was using BitTorrent to share and collect images of child pornography. The PSP could have sought a warrant for devices capable of running that program, and for a search of only those programs on the devices that interact with that program. There was no probable cause to believe that Green (not child pornographers generally) was using electronic devices for any other purpose. Such a search would preclude the PSP from searching, for example, digital calendars, notetaking applications, or medical records on the device that cannot be used with the BitTorrent program. And it would place the discretion of where to search in the hands of the issuing judicial officer and not the investigator. The warrant in this case was not limited in any way, but, instead, allowed police officers to rummage anywhere they wanted on any device they seized, regardless of whether the PSP had any indication that the particular device was the one running the BitTorrent program.
Pa. Const. art. I, § 8.
Davis v. Gracey , 111 F.3d 1472, 1478–79 (10th Cir. 1997) ("We ask two questions: did the warrant tell the officers how to separate the items subject to seizure from irrelevant items, and were the objects seized within the category described in the warrant?"); see also United States v. Tamura , 694 F.2d 591, 595 (9th Cir. 1982) (Stating that a request to search must be accompanied by "sufficiently specific guidelines for identifying the documents sought ... [to be] followed by the officers conducting the search.").
Because the Majority endorses this unconstitutional rummaging, I dissent.
Because these situations largely are fact and circumstance dependent, setting forth a specific protocol on how to search for digital data may be premature at this point. I note that there is a national debate on whether courts should create such protocols, and, if so, what they might look like. See Henderson , 854 N.W.2d at 633 (collecting sources). Some courts already have developed such requirements. For instance, in In re Application for Search Warrant , 193 Vt. 51, 71 A.3d 1158 (2012), the Supreme Court of Vermont held that digital searches: (1) should be conducted by trained computer experts working behind a firewall to ensure that no one views non-criminal material that officers are not permitted to view, such that investigators only get the information related to the underlying offense after the expert uncovers that information; (2) should be conducted using specific and limiting software; and (3) should limit the copying of files so that only relevant material gets turned over to the police while all else is returned to the owner immediately. Id . at 1184-85. While these protocols appear sound as a general matter, any proposal for their adoption in Pennsylvania should await contextualized consideration in an appropriate future case.
Justice Todd and Justice Donohue join this dissenting opinion.