Com. v. Saia, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH SAIA, JR. : No. 1065 EDA 2020
Appeal from the Order Entered March 17, 2020
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000264-2018
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: Filed: January 28, 2021
The Commonwealth, represented by the Office of the Attorney General
of Pennsylvania (“OAG”), appeals from the order granting suppression,
contending that the suppression court too narrowly construed the terms of the
at-issue warrant, which the court interpreted as permitting the police to search
Joseph Saia, Jr.’s (“Defendant”) home, but not his nearby outdoor shed. After
careful review, we reverse.
As recounted in the Commonwealth’s affidavit of probable cause, Special
Agent Kathleen Fallon of the OAG’s Child Predator Section received a tip from
the National Center for Missing and Exploited Children (“NCMEC”) regarding a
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sexually explicit image of a juvenile posted on a Skype profile.1,2 Affidavit of
Probable Cause (“Affidavit”), 2/21/18, at 1-2. While investigating this
information, Agent Fallon received another tip from NCMEC regarding a
sexually explicit image of a child posted on a Skype profile with a similar
username.3 Id. at 3. Skype provided Agent Fallon with the IP addresses of
both accounts.4 Id. Agent Fallon viewed the images and confirmed that they
appeared “to depict children, under the age of eighteen (18) years old[,]
engaged in sexual acts and/or pose[s],” which Agent Fallon “believed to be
child pornography in violation of” 18 Pa.C.S. § 6312 (Sexual Abuse of
Children). Id. at 4.
Agent Fallon subpoenaed PenTelaData for information concerning the
two IP addresses. She learned that, at the time the images were uploaded,
the IP addresses were both assigned to “Lisa Saia” with a physical address at
115 Sawkill Meadow Lane in Milford, Pennsylvania. Id. Agent Fallon scouted
the physical address, discovering a ranch-style home with a detached garage.
Id. at 7. Agent Fallon concluded the Affidavit by stating that there was
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1Agent Fallon was assigned by OAG to the Internet Crimes Against Children
Task Force, a multi-jurisdictional entity responsible for conducting undercover
online investigations into the sexual exploitation of children.
2 The Skype profile was linked to the username “joebrewernj.”
3 The second image was posted to a Skype profile linked to the username
“jsbrewernj_1.”
4 Agent Fallon was able to determine from a public database that the IP
addresses of both accounts were assigned to a company known as
PenTelaData.
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probable cause to believe “there is evidence of the crime of Sexual Abuse of
Children … on [electronic devices] in the residence or additional buildings
at 115 Sawkill Meadow Lane….” Id. (emphasis added). However, in the
section of the search warrant application pertaining to the description of the
premises and/or persons to be searched, Agent Fallon used different language,
indicating that the Commonwealth sought “[a]ll electronic devices owned or
operated by any occupant located within the residence at 115 Sawkill
Meadow Lane … on his/her person and/or within his/her immediate control.”
Search Warrant Application (“Warrant Application”),5 2/21/18, at 1 (emphasis
added).
Defendant
was present at the residence during the course of the execution
of the search warrant. During the search, the Agents recovered
several electronic devices from within the residence. The Agents
also recovered several devices outside of the residence, including
[a] Dell tower computer … and a Dell laptop….
On July 22, 2019, … Defendant filed his [suppression] motion in
which he sought to suppress any and all evidence retrieved
outside of his residence[,] including but not limited to the Dell
tower computer, … [the] Dell laptop, … and all of their contents.
Th[e suppression court] held a hearing on the [suppression
motion] on November 19, 2019.
Suppression Order, 3/17/20, at 2 (some capitalization omitted).
The suppression court ruled that the “evidence retrieved outside the
residence should be suppressed as those items were not located within the
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5For clarity herein, the warrant under consideration is the Warrant Application
as signed by the issuing authority. They are not separate documents in the
record.
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scope of the search warrant.” Id. at 3. The court refused to consider the
Affidavit attached to the Warrant Application in defining the scope of the
premises to be search, because the Warrant Application “did not state that the
[A]ffidavit … is incorporated by reference.” Id. at 4. In reaching that
conclusion, the suppression court specifically relied on the Third Circuit’s
decision in Doe v. Groody, 361 F.3d 232 (3d Cir. 2004), which held that “it
is perfectly appropriate to construe a warrant in light of an accompanying
affidavit or other document that is incorporated within the warrant[,] but to
take advantage of this principle of interpretation, the warrant must expressly
incorporate the affidavit.” Id. at 239.
Addressing the Warrant Application alone, the court reasoned:
The description on the Application … does not say[,] “premises.”
The description only says[,] “occupant located within the
residence.” It does not mention a shed, garage, or vehicles. It
would strain common sense and strain the protections of privacy
afforded by both the United States Constitution and the
Pennsylvania Constitution to interpret the description to mean
anything other than the inside of the Defendant’s home.
Suppression Order, 3/17/20, at 3-4.
The Commonwealth appealed as of right, certifying that the suppression
“order terminates or substantially handicaps the prosecution.”
Commonwealth’s Notice of Appeal, 4/24/20, at 1; see also Pa.R.A.P. 311(d)
(“In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”). The
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Commonwealth now presents the following question for our review: “Did the
lower court err in suppressing evidence found next to an outbuilding on
[D]efendant’s property on the ground that, because the search warrant
application used the word ‘residence’ instead of ‘premises,’ the search was
limited to ‘the inside of Defendant’s home’?” Commonwealth’s Brief at 3.
When reviewing
an order granting suppression, we consider only the evidence of
the defense and so much of the evidence for the Commonwealth
as remains uncontradicted when read in the context of the
suppression hearing record as a whole. Where the record
supports the suppression court’s factual findings, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error. However, where the appeal turns on
allegations of legal error, the suppression court’s conclusions of
law are not binding as it is this Court’s duty to determine if the
suppression court properly applied the law to the facts. As such,
the legal conclusions of the lower courts are subject to our plenary
review.
Commonwealth v. Lukach, 195 A.3d 176, 183 (Pa. 2018) (cleaned up).
“When an official search is properly authorized-whether by consent or
by the issuance of a valid search warrant-the scope of the search is limited by
the terms of its authorization.” Commonwealth v. Parker, 619 A.2d 735,
740 (Pa. Super. 1993). As our Supreme Court explained:
“[T]he Fourth Amendment categorically prohibits the issuance of
any warrant except one ‘particularly describing the place to be
searched and the persons or things to be seized.’” Maryland v.
Garrison, 480 U.S. 79, 84 [] (1987), quoting U.S. CONST.
amend. IV. This requirement is meant to prevent general
searches and “ensures that the search will be carefully tailored to
its justifications, and will not take on the character of the wide-
ranging exploratory searches the Framers intended to prohibit.”
Id. Along those lines, “the scope of a lawful search is defined by
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the object of the search and the places in which there is probable
cause to believe that it may be found.” Id. (internal quotation
and citation omitted).
Commonwealth v. Turpin, 216 A.3d 1055, 1063–64 (Pa. 2019).
Instantly, the Commonwealth maintains:
The suppression court refused to consider the [A]ffidavit on the
ground that it was not “incorporated by reference.” That was error
for three reasons. First, the [A]ffidavit was incorporated—the
warrant stated on its face that it was based on the attached
affidavit. Second, in [Commonwealth v.] Carlisle[, 534 A.2d
469 (Pa. 1987),] four Justices of the Supreme Court held that the
warrant and affidavit are considered together. Third, the
suppression court relied on a Third Circuit decision that may not
be followed because it contradicts the Pennsylvania Supreme
Court. Indeed, the Third Circuit’s reasoning makes no sense: it
agrees the affidavit may properly guide a search, but only if
formally “incorporated.” As Carlisle shows, words of
incorporation are not what make an attached affidavit relevant.
Commonwealth’s Brief at 8.
We begin with a summary of our Supreme Court holding in Carlisle.
Therein, our Supreme Court stated:
Since the rules do not prescribe any particular form for the written
affidavit in support of the warrant, it is possible that the affidavit
may be on a separate sheet of paper which is then attached to the
warrant, or, as in this case, that the affidavit and warrant appear
on a single sheet of paper. In either case, however, the question
which arises is whether the affidavit, which must in some form be
attached to the search warrant, may be used to augment the
description of place listed on a search warrant. Analytically, the
two most obvious approaches to this question are either to
construe the affidavit and the warrant together, or to construe
only the warrant, without regard to the affidavit. In this case, if
the two writings were construed together, the place would be
described with sufficient particularity…. If the documents are to
be construed separately, however, the warrant would fail for lack
of particularity….
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Carlisle, 534 A.2d at 471–72 (footnote omitted). In addressing this dilemma,
the Carlisle Court first noted:
In Commonwealth v. Gray, … 503 A.2d 921 ([Pa.] 1985), we
decided that the “totality of circumstances” test articulated in
Illinois v. Gates, 462 U.S. 213 … (1983), meets the
requirements of Article I, Section 8 of the Pennsylvania
Constitution for analyzing probable cause for search warrants
based on information received from confidential informants. This
case does not concern probable cause, but it is related to the
decisions in Gray and Gates in that those cases adopt the general
view of warrants that they are to be interpreted in a common-
sense fashion, not in a hypertechnical fashion.
***
We believe that the requirement of a “practical, common-sense”
approach should apply also to the question raised in this case,
whether the place to be searched is specified with sufficient
particularity.
Carlisle, 534 A.2d at 472. From that platform, the Court reasoned:
An argument against holding that the affidavit and the
“Description of Premises” box on the warrant are to be construed
together is the fear that the police officers who conduct the search
will be different from those who wrote the affidavit and that the
officers conducting the search will be unaware of what is in the
affidavit. We believe this argument is without merit. Even if the
police who conduct the search are different from the officers who
got the warrant, it is inconceivable that those who conduct the
search will not read the affidavit in order to learn as much as
possible about the possible dangers within the premises they are
about to search. And if police officers unfamiliar with the
investigation are likely to read the affidavit and thereby know
where they are authorized to search, those familiar with the
investigation, a fortiori, will know where the items to be searched
for are thought to be located and where they are authorized to
search.
Applying the “practical, common-sense” rule of Gates and Gray
to this case, it is our view that the police officers conducting the
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search in this case would be aware of the exact location to be
searched.
Carlisle, 534 A.2d at 472. The Carlisle Court further opined that it was
aware of the possibility that the government may act in bad faith
and use its enormous powers to intrude where it should not into
the private lives of our people. However, having said that, we do
not see such an abuse in this case. Rather, what appears to have
happened is that the police officer applying for the warrant
inadvertently omitted the apartment number from the box on the
form which called for it. Were there reason to believe that this
omission was not inadvertent, or were there reason to believe that
police officers conducting the search would not reasonably know
where the search was to be conducted, our view of this case would
be quite different.
Id. at 472–73.
We agree with the Commonwealth that Carlisle is sufficiently analogous
to apply here. The Affidavit expressly indicated that there was evidence of a
crime “in the residence or additional buildings at 115 Sawkill Meadow
Lane.” Affidavit at 7 (emphasis added). Agent Fallon, who filled out both the
Application and the Affidavit, testified that it was her understanding that the
warrant she sought in the Application was for the “entire property and the
additional buildings that were on it.” N.T., 11/19/19, at 43-44. She further
indicated that she had no reason to believe that the property was subdivided
in any way, and the at-issue shed was located between the residence and the
detached garage. Id. at 48-49. Nevertheless, the reference to the additional
buildings was omitted from the Application in the section setting forth the
“Specific Description of Premises and/or person to be searched.” Application
at 1. There is nothing to suggest in the record that this was an intentional
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omission, nor is there any obvious reason why it would have been omitted
given the description of the premises to be searched as set forth in the
Affidavit.
When questioned about this, Agent Fallon indicated that it was her
understanding that the Warrant Application necessarily included the Affidavit.
Id. at 58-59. Indeed, the Warrant Application includes boilerplate language
within the “Search Warrant” section, which is ultimately signed by the issuing
authority. See Application at 1. It reads, in pertinent part:
WHEREAS, facts have been sworn to or affirmed before me by
written affidavit(s) attached hereto from which I have found
probable cause, I do authorize you to search the premises or
person described, and to seize, secure, and inventory and make
return according to the Pennsylvania Rules of Criminal Procedure.
Id. (emphasis added). If this language does not expressly incorporate the
attached Affidavit, it at least strongly suggests incorporation.
Additionally, the Rules of Criminal Procedure provide that:
No search warrant shall issue but upon probable cause supported
by one or more affidavits sworn to before the issuing authority in
person or using advanced communication technology. The issuing
authority, in determining whether probable cause has been
established, may not consider any evidence outside the
affidavits.
Pa.R.Crim.P. 203(B) (emphasis added). Rule 203(B) requires the issuing
authority to review an affidavit of probable cause. Moreover, rather than limit
the determination of probable cause by the issuing authority (a component
part of which is the description of the location to be searched) to the
application, Rule 203(B) limits his or her review to the “affidavits.” Id.
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There is no dispute here regarding whether the Warrant Application and
Affidavit were simultaneously presented to the issuing authority.6 Reading
Rule 203(B) in conjunction with the boilerplate language in the application
discussed above, we conclude that, whether or not that language expressly
incorporated the attached Affidavit, common sense dictates that, at a
minimum, it implicitly did so. Thus, under Carlisle, we are compelled to hold
that the suppression court erred by failing to consider the Affidavit in defining
the scope of the warrant. When read in conjunction with the Affidavit, it is
obvious that the target of the warrant included buildings on the named
property exterior to Defendant’s residence in which the at-issue evidence was
discovered, not just the residence itself.
Nevertheless, the suppression court held, and Defendant maintains, that
this case is instead controlled by the Third Circuit’s decision in Groody. Even
assuming that the Affidavit was implicitly, not explicitly, incorporated into the
Warrant Application, this was error.
As the Commonwealth correctly notes:
The Pennsylvania Supreme Court has repeatedly explained that
decisions of federal courts inferior to the United States Supreme
Court are without precedential force or effect in Pennsylvania. For
the Third Circuit to disagree with or contradict a ruling of the
Pennsylvania Supreme Court on a question of constitutional law
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6 Defendant asserts that the there is no evidence that he was presented with
the attached Affidavit at the time of the search. Defendant’s Brief at 23 n.3.
However, he provides no legal authority suggesting the relevance of that
circumstance. The scope of the warrant was defined at the time of issuance,
not at the time it was executed and presented to him.
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does not establish that the Supreme Court’s ruling was incorrect.
The law is precisely to the contrary.
Commonwealth’s Brief at 15.
As this Court has previously stated, our “law clearly states that, absent
a United States Supreme Court pronouncement, the decisions of federal courts
are not binding on Pennsylvania state courts, even when a federal question is
involved.” Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002);
accord Graziani v. Randolph, 856 A.2d 1212, 1218 (Pa. Super. 2004)
(citing Werner, but noting that “when considering a given issue, however, we
prefer Third Circuit decisions to those of other federal circuits, to discourage
litigants from ‘crossing the street’ to obtain a different result in federal court
than they would in [a] Pennsylvania court”). Here, of course, there is no risk
of forum shopping between states, as this is a criminal case, pursued by state
authorities. Further, the lower court did not cite, nor has our research
uncovered, any previous case in Pennsylvania citing Groody, much less
applying it, despite the fact that Groody was decided 17 years ago. Moreover,
our Supreme Court spoke to the matter at hand in Carlisle, which is binding
precedent for this Court. Thus, to the extent that Groody conflicts with
Carlisle, this Court must follow Carlisle until and unless either the
Pennsylvania Supreme Court or United States Supreme Court addresses the
issue.7
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7 We respectfully invite our Supreme Court to do so.
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Accordingly, we are constrained to agree with the Commonwealth that
the suppression court erred, as a matter of law, when it relied on Groody to
require an express incorporation of the Affidavit in the Warrant Application for
the scope of the warrant to include the additional buildings on Defendant’s
property. On this basis, we do not reach the question of whether the
circumstances discussed above constituted an express incorporation of the
Affidavit in the Application, as such a finding is not necessary under a common
sense consideration of the facts as required by Carlisle. It is enough that
those circumstances overwhelmingly suggest that the Affidavit was implicitly
incorporated into the Warrant Application, and that the search was “carefully
tailored to its justifications[,]” which were set forth in the Affidavit. Garrison,
480 U.S. at 84.
Suppression order reversed. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/21
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