Com. v. Clark, S. ( 2023 )

J-A11022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAURICE DUPRE CLARK :
:
Appellant : No. 552 WDA 2022
Appeal from the Judgment of Sentence Entered January 19, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000230-2021
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: September 11, 2023
Appellant, Shaurice Dupre Clark, was convicted of two counts of
aggravated assault, one count of carrying a firearm without a license,
possessing instruments of crime, and recklessly endangering another person,
all of which stemmed from his firing a handgun at a vehicle. The trial court
imposed a sentence of 102 to 216 months of incarceration. We agree with
Appellant that the trial court erred in ruling on Appellant’s motion to suppress
evidence recovered from the execution of warrants for Appellant’s phone and
Facebook accounts. As explained in the body of this memorandum, it is not
clear what evidence introduced at trial, if any, the Commonwealth obtained
from the warrants. We therefore retain jurisdiction and direct the trial court
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* Retired Senior Judge assigned to the Superior Court.
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to hold a hearing on this matter. With respect to Appellant’s other claims, we
find no error.
I.
On August 30, 2020, at 7:03 p.m., officers were dispatched to
investigate a reported shooting at 17th and Poplar Streets. A few minutes
later, officers received reports of another shooting at 16th and Chestnut, which
was approximately five blocks from the Poplar shooting. Patrolman Leroy
Learn was the first to arrive, and he observed five shell casings on the ground.
Patrolman Justin Seath arrived shortly afterwards, and a witness handed him
an item described as “a small wallet keychain,” which the witness had found
on the ground. N.T. Trial, 11/5/21, at 86. That item included a key to a
Mitsubishi vehicle, as well as a WIC card1 bearing a sixteen-digit identification
number. Sergeant Craig Stoker later served a search warrant on the
Commonwealth’s Department of Health and determined that the card
belonged to Savannah Lopez, who had a son, L.C. Further investigation
established that Appellant was the father of L.C. DNA testing established that
Appellant’s “DNA was one of three individuals with DNA on the key and
keychain….” Trial Court Opinion, 9/1/22, at 9. Additionally, officers
discovered that the Mitsubishi had been struck by bullets at the Poplar scene.
The police located several surveillance cameras and obtained the
relevant recordings, one of which shows the shooter pursuing a black BMW.
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1 The Special Supplemental Nutrition Program for Women, Infants and
Children.
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As described in the affidavits of probable cause for the search warrants, the
video depicts “a black male with long hair wearing a dark colored sweat shirt
with a zipper. Under the sweat shirt[,] the driver/shooter had on a purple t-
shirt with a square picture. He was also wearing dark colored pants and purple
and black shoes.” Affidavit of Probable Cause, 10/15/20, at 2. Patrolman
Nicholas Strauch immediately identified Appellant as the man depicted in the
videos and, on this basis, the police began investigating Appellant as the
primary suspect.
At trial, the Commonwealth emphasized that the shooter’s sneakers and
sweatshirt, as captured by one of the surveillance videos, were distinctive.
This screenshot taken from that video is illustrative of the sneakers:
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The affidavit’s reference to a “square picture” is visible in the following
screenshot from the same exhibit:
The Commonwealth introduced photographs it recovered from the
execution of search warrants upon Appellant’s phone and Facebook accounts.
Specifically, the Commonwealth introduced photographs depicting Appellant
wearing purple shoes, as well as an image of an individual with his back to the
camera wearing a sweatshirt with a photograph. The Commonwealth argued
that these articles matched what the shooter wore.
Appellant was convicted and sentenced on January 19, 2022, as
previously stated. Appellant timely filed post-sentence motions, which were
denied by order and opinion filed April 6, 2022. Appellant timely filed a notice
of appeal and complied with the trial court’s order to file a concise statement.
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The court issued its opinion in response, and we now address Appellant’s four
claims:
1. Did the trial court commit an abuse of discretion when it
admitted all of the surveillance videos, over Appellant’s objection,
as the Commonwealth did not present a witness capable of
authenticating that what was portrayed on the videos was a fair
and accurate depiction of the events that occurred?
2. Did the trial court commit an abuse of discretion when it
permitted the Commonwealth to introduce Facebook
images/videos as the Commonwealth could not authenticate who
authored, created or posted the material?
3. Did the trial court commit an abuse of discretion when it
permitted the Commonwealth to call officer Nicholas Strauch, over
Appellant’s objection, where his testimony invariably suggested
that Appellant had multiple interactions with the police and/or the
police had an uncommon familiarity with Appellant as the
probative value of this testimony was outweighed by its prejudicial
effect?
4. Did the trial court err when it denied Appellant’s request to
suppress the data and images retrieved from the iPhone and
Facebook as the police lacked probable cause to search the iPhone
and as the search warrants for both were unconstitutionally over-
broad?
Appellant’s Brief at 8 (reordered for ease of disposition).
II.
Appellant’s first issue challenges the admission of multiple surveillance
camera videos. Appellant posits that the Commonwealth failed to
authenticate the surveillance videos because it failed to call any witness with
personal knowledge of what the videos depicted:
In the instant case, no person with personal knowledge of the
day’s events provided any testimony that the videos taken …
accurately depicted the events that occurred on that day. Rather,
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the Commonwealth purported to authenticate these videos by
presenting the testimony of individuals who either installed the
surveillance equipment or had familiarity with the system.
Appellant’s Brief at 47.
We conclude that the Commonwealth sufficiently authenticated the
videos. Pennsylvania Rule of Evidence 901 governs the authentication of
evidence. “Unless stipulated, to satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.”
Pa.R.E. 901. The Rule includes a list of “examples only—not a complete list—
of evidence that satisfies” this requirement. Pa.R.E. 901(b). “Generally,
authentication requires a low burden of proof,” Commonwealth v. Jackson,
283 A.3d 814, 818 (Pa. Super. 2022), as the Rule simply requires that the
proponent offer “evidence sufficient to support a finding that the item is what
the proponent claims it is.” Pa.R.E. 901(a). We review the trial court’s ruling
for an abuse of discretion. Commonwealth v. Mangel, 181 A.3d 1154, 1159
(Pa. Super. 2018).
Appellant faults the Commonwealth for failing to call a witness who
directly observed the incidents. Appellant’s Brief at 46 (“Rule 901(b)(1)
provides that one way of satisfying the requirement is through the testimony
of a witness with knowledge that an item is what it is claimed to be.”) (internal
quotation marks omitted). This is an accurate statement of the law. However,
the Commonwealth did not rely on this theory of authentication. Instead, the
Commonwealth relied on the evidence of the technicians who were familiar
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with the video surveillance system to authenticate the items. This falls within
the scope of Pa.R.E. 901(b)(9), which permits authentication based on
“[e]vidence describing a process or system and showing that it produces an
accurate result.” Pa.R.E. 901(b)(9).
The trial court did not explicitly cite this provision, but its order and
opinion denying Appellant’s post-sentence motions alluded to these concepts,
concluding that the “Commonwealth showed that [the cameras] were
functioning properly at the time in question, the positioning of the cameras[,]
and that those cameras were surveilling and recording the areas and streets
that they were specifically designed to view and record.” Opinion and Order
Denying Post-Sentence Motions, 4/7/22, at 3 (unnumbered). We agree with
the trial court.
We briefly note Appellant’s discussion of Commonwealth v. McKellick,
24 A.3d 982 (Pa. Super. 2011), which Appellant states is the one decision
“that permitted the Commonwealth to allow a third party, who did not
personally observe the events in question, to authenticate a video purporting
to show those events.” Appellant’s Brief at 48. In McKellick, the
Commonwealth prosecuted the defendant for a DUI. The Pennsylvania State
Trooper who arrested McKellick was killed in the line of duty, and the
Commonwealth presented a video of the dashboard-mounted video camera,
which was narrated by testimony from other Pennsylvania State Police
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Troopers who were generically familiar with the recording system.2 We held
that the recording was sufficiently authenticated because of their familiarity
with the system and the lack of an allegation that the video had been
fabricated or altered.
Appellant argues that this case is distinguishable from McKellick
because “Detective Stoker’s own testimony revealed that multiple, innocent
bystanders were present at the corner of 16th and Chestnut Streets at the
time of the shooting.” Appellant’s Brief at 48. Appellant also cites the
dissenting opinion of then-Judge, now Justice, Donohue, which argued, in
pertinent part, that a witness cannot authenticate a video “merely by watching
it and then offering that it ‘is what it purports to be’” because that “is at best
tautological and circular … which is worthless for authentication purposes.”
McKellick, 24 A.3d at 997 (Donohue, J., dissenting).
We conclude that McKellick is distinguishable. As then-Judge
Donohue’s dissent explained, in that case, the Commonwealth made no
attempt to authenticate the video under a Rule 901(b)(9) theory:
Pa.R.E. 901(b)(9) provides that authentication of evidence
(including substantive evidence) may, in appropriate cases, be
achieved upon presentation of “[e]vidence describing a process or
system used to produce a result and showing that the process or
system produces an accurate result.” Pa.R.E. 901(b)(9).
Appellate courts in other states have permitted the authentication
of photographs and video recordings (typically from stationary
surveillance cameras) under similar evidentiary rules upon
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2 McKellick’s appellate claims were largely directed towards whether the
admission of the video evidence without the arresting officer’s testimony
violated the Confrontation Clause.
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adequate proof that (1) the photograph has not been altered in
any significant respect, (2) the method by which the camera was
activated, (3) evidence of the time interval between frames, if
applicable, (4) evidence of the date the photographs were taken,
(5) the chain of custody of the film after its removal from the
camera, and (6) testimony of a competent witness who can
explain what the photograph portrays even though he was not
present when the photograph was taken. See, e.g., State v.
Pulphus, 465 A.2d 153, 161 (R.I. 1983) (collecting cases from
other jurisdictions). In addition, a proper foundation in these
cases has also required evidence that the images portrayed fairly
and accurately the place in question (e.g., the inside of a bank),
and of the reliability of its production process. Id.To my knowledge, no Pennsylvania appellate court has ruled on
the applicability of Rule 901(b)(9) to authenticate photographs or
video records. That issue is not presently before this Court, in
part because the Commonwealth made no attempt to authenticate
the videodisk under Rule 901(b)(9) so that it could be admitted
as substantive evidence.
Id. at 994 (Donohue, J., dissenting) (bracketing in original).
The Commonwealth’s method of authenticating the surveillance videos
in this case is not what occurred in McKellick, where the troopers
authenticated the video without reference to the reliability of the underlying
system which captured the incident. In contrast to that case, here, the
Commonwealth offered testimony from witnesses who discussed the
operability of each surveillance system that the Commonwealth used at trial.3
The trial court therefore did not err in admitting the evidence.
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3 Then-Judge Donohue’s dissent in McKellick noted the absence of a
precedential decision addressing the applicability of Rule 901(b)(9), and that
appears to still be the case. In concluding that the Commonwealth presented
sufficient evidence to authenticate the videos as part of a process or system
that produces an accurate result, we do not attempt to set forth a list of factors
(Footnote Continued Next Page)
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III.
Appellant’s second issue likewise concerns authentication, and
addresses evidence introduced at trial from various Facebook accounts.
Appellant cites Rule 901(b)(11), which specifically addresses the
authentication of digital evidence, stating:
(a) In General. Unless stipulated, to satisfy the requirement of
authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item
is what the proponent claims it is.
(b) Examples. The following are examples only--not a complete
list--of evidence that satisfies the requirement:
***
(11) Digital Evidence. To connect digital evidence with a person
or entity:
(A) direct evidence such as testimony of a person with
personal knowledge; or
(B) circumstantial evidence such as:
(i) identifying content; or
(ii) proof of ownership, possession, control, or access
to a device or account at the relevant time when
corroborated by circumstances indicating authorship.
Pa.R.E. 901(a), (b)(11).
____________________________________________
that are relevant to that determination. Appellant does not claim that the
Commonwealth failed to sufficiently authenticate the evidence under Rule
901(b)(9), only that authentication was not possible in the absence of
testimony from someone “with personal knowledge of the day’s events[.]”
Appellant’s Brief at 47. Our citation of Rule 901(b)(9) merely demonstrates
that Appellant misconstrues the nature of the Commonwealth’s theory of
authentication.
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Appellant has waived this issue by failing to specifically discuss the
individual items, which impedes meaningful appellate review. Our review of
the record indicates that the Commonwealth introduced at least six pieces of
digital evidence that it obtained from Facebook. Commonwealth Exhibit 39
shows Appellant standing in front of the intersection of Poplar and West 17th
Street, with the street signs visible. The post includes a text overlay stating,
“Pussies said they looking for me I ain’t never hiding.’” N.T. Trial, 11/9/21,
at 45 (Detective Stoker reading the caption). The owner of that Facebook
account was “Dupree Clark”; Dupree is Appellant’s middle name.4
Commonwealth Exhibit 40 shows Appellant, wearing the same clothes as in
Exhibit 39, in front of a convenience store. Exhibit 41 is another picture in
front of the store, with a caption stating, “Beside the B’s life’s great.” Id. at
48 (reading caption).5 Commonwealth Exhibits 42 and 43 were links posted
on Facebook to videos by “Guap Prince,” and the video and its audio were
played at trial.6 Commonwealth Exhibit 44 shows a man facing away from the
camera, wearing a sweatshirt with a photograph on its back, which the
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4 Appellant’s middle name has been spelled as both “Dupree” and “Dupre” in
the record.
5 The transcription is slightly incorrect as the text in the exhibit states, “Beside
the bs life’s great.”
6 This video is not part of the certified record, and we do not know what it
contains beyond the limited description given at trial, which essentially
indicated that Appellant was in the videos.
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Commonwealth argued was the same sweatshirt depicted in the surveillance
video.
We conclude that Appellant has waived this claim for failing to
specifically discuss each item and the authenticity issues relevant to each.
Appellant argues that the Commonwealth “could not authenticate who
authored, created, or posted the material.” Appellant’s Brief at 49. In our
view, the concept of “authorship” is not relevant to several of these exhibits,
as the probative value lies in their depiction of Appellant wearing purple shoes
and/or the sweatshirt. The “author” of the picture in the sense of who took
the actual photograph or who uploaded the pictures to Facebook is irrelevant
to that purpose. “A photograph may be proven at the trial of a case without
calling the person who took it. Nevertheless, the photograph must be shown
to be a faithful and accurate reproduction of the object in question.” Semet
v. Andorra Nurseries, Inc., 219 A.2d 357, 360 (Pa. 1966) (citation
omitted). Appellant does not claim that the exhibits in which his face is visible
were not actually him.7
We agree that there is an authorship component at play with respect to
the added captions and the dates, as well as the picture in which no face is
shown. For example, whether Appellant wrote the text, “Pussies said they
looking for me I ain’t never hiding[,]” is relevant to authentication in that the
Commonwealth suggested that Appellant wrote that text. However,
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7 The fact that Appellant was present in the courtroom is also relevant, as the
jury could simply compare the depictions to Appellant.
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Appellant’s failure to separately discuss each piece of evidence has impeded
appellate review. Appellant attempts to make a global argument to all the
evidence, but authorship is irrelevant to several of these exhibits. We
therefore conclude that Appellant waived the issue. See Commonwealth v.
Armolt, 294 A.3d 364, 379 (Pa. 2023) (finding waiver where appellant
“submit[ted] only generalized assertions, not arguments, much less reasoned
and developed arguments supported with citations to relevant authority.”)
(cleaned up)
Had Appellant preserved the argument, we would determine that the
trial court did not abuse its discretion. We recognized in Commonwealth v.
Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided
court, 106 A.3d 705 (Pa. 2014), that “[o]ften more than one person uses an
e-mail address and accounts can be accessed without permission.” This
principle equally extends to social media platforms like Facebook.
Commonwealth v. Mangel, 181 A.3d 1154, 1162 (Pa. Super. 2018) (“In our
view, the same authorship concerns, as expressed by the Koch Court in
relation to e-mails and instant messages, exist in reference to Facebook and
other social media platforms, that can be accessed from any computer or
smart phone with the appropriate user identification and password.”).
Circumstantial evidence is sufficient to authenticate digital evidence,
and evidence of ownership is a relevant factor. See Commonwealth v. Orr,
255 A.3d 589, 601 (Pa. Super. 2021) (“In the present case, while there was
no direct testimony concerning the text messages, numerous circumstantial
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clues demonstrate that [the a]ppellant sent them. It is clear that [the
a]ppellant owned the cell phone.”). To illustrate, in Commonwealth v.
Danzey, 210 A.3d 333, 339 (Pa. Super. 2019), social media accounts bearing
names similar to the “Dupree” and “Guap Prince” designations at issue here
were linked to the defendant. In Danzey, the accounts used the names, inter
alia, “Bre TheBoss Holland,” “Bre Moved on Holland” and “shaunbre76.” Id.We stated that these accounts were circumstantially linked because Danzey’s
middle name was “Bree,” and he was born in 1976. Additionally, some of the
accounts used Danzey’s picture as their profile picture. We cited those facts
as contextual clues establishing ownership of the accounts. We then cited
additional contextual clues to establish that Danzey authored the posts.
Here, Appellant essentially concedes that the Commonwealth
established that he owned and controlled the accounts. See Appellant’s Brief
at 52 (conceding that the Commonwealth’s testimony “may [have]
establish[ed] Appellant’s ownership of or control or access to these
accounts”). Turning to authorship of the posts, the Commonwealth obtained,
through its warrant and Facebook’s authentication process, documents from
Facebook establishing timestamps for each exhibit. For example, the post
showing Appellant standing in front of the intersection of Poplar and West 17th
Street was uploaded by the “Dupree Clark” account on August 29, 2020, one
day before the shooting at that location. Appellant’s middle name is Dupree,
and that fact, in conjunction with the timing of the post, circumstantially
supports that Appellant authored it. The accompanying text essentially
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bragged that Appellant did not fear whoever was “looking for” him, and the
prominence of the street signs in the picture suggest that Appellant is telling
whoever reads the post where he may be found. The very next day a vehicle
belonging to Savannah Lopez, the mother of his child, was struck by gunfire
at that location. As another example, the post showing the man in the
sweatshirt with the picture on its back was posted on November 23, 2019,
which included a comment from a friend wishing Appellant a happy birthday.
Appellant’s date of birth is November 22. That other members of the public
treated the account as belonging to Appellant also supports a conclusion that
Appellant controlled and authored the posts introduced at trial. Therefore,
even if not waived, we would conclude that the Commonwealth presented
sufficient evidence to authenticate the material.
IV.
Appellant’s third issue concerns the testimony of Patrolman Nicholas
Strauch, who informed the jury that he had observed Appellant
“conservatively 500 times” in his career. N.T. Trial, 11/8/22, at 108.
Appellant contends that this unmistakably conveyed to the jury that Appellant
was a prolific criminal and thus prejudiced him.
The parameters of Officer Strauch’s testimony was the subject of pre-
trial motions by both parties. The Commonwealth’s pre-trial motion noted
that Patrolman Strauch knew Appellant from his prior work as a probation
officer. Additionally, he knew “that [Appellant] had been suspected in prior[,]
shots[-]fired calls and has had personal observations of [Appellant] while on
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patrol.” Commonwealth’s Motion in Limine, at unnumbered 1, ¶ 6.
Additionally, “Patrolman Strauch also had information that [Appellant] is a
member of the 1800 Gang in which Patrolman Strauch was collecting
intelligence on at the time of the incident.” Id. at unnumbered 2, ¶ 7.
Appellant filed a motion to preclude Patrolman Strauch from offering an
opinion of who the video depicted.
The parties discussed the issue on day two of the jury trial, and the trial
court ruled that it would permit Patrolman Strauch to testify that he identified
Appellant to explain the course of the investigation. N.T. Trial, 11/8/22, at 31
(“I’m going to be telling the jury, you’re accepting [the] testimony for the
limited purpose of … the explanation as to why this investigation began to look
at [Appellant].”). After Patrolman Strauch’s testimony, the trial court asked
if Appellant wanted a cautionary instruction at that point or after cross-
examination. Appellant requested that the instruction be given before cross.
The court then told the jury that its “observations of the video and anything
that happens in the video” is for the jury to determine as the finders of fact.
“The testimony of this witness is for the limited purpose of explaining to you
how this investigation moved forward with regard to [Appellant]….” Id. at
114. Appellant now challenges that ruling, claiming that these comments
informed the jury that Appellant had a criminal history. See Appellant’s Brief
at 55 (“A reference to prior criminal conduct is highly prejudicial to the
appellant[,] serving to effectively strip him of the presumption of innocence.”)
(citation omitted).
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We disagree. The Commonwealth’s pre-trial motion was clearly directed
at introducing evidence touching on Appellant’s prior criminal conduct for
purposes of establishing identity. The specific details that it wished to admit
directly implicated the type of material governed by Pa.R.E. 404(b) and its
prohibition on introducing other act evidence. Thus, had the trial court
granted the Commonwealth’s motion, we would agree with Appellant’s view.
However, the trial court only allowed the Commonwealth to inform the
jury that Patrolman Strauch was familiar with Appellant due to prior
encounters, which was relevant to how the investigation unfolded. The
testimony was, on its face, benign. The jury was not told any details about
Patrolman Strauch’s knowledge of Appellant or his activities, and we do not
agree that the testimony, standing alone, suggested a criminal history. The
jury would have had to make a leap in logic to conclude that the reference
was to criminal conduct. Nor did Patrolman Strauch’s testimony veer into
opinion testimony, i.e., he did not tell the jury that the individual on the video
must have been Appellant based on his knowledge and experience with
Appellant.
Appellant submits that the jury must have made this leap because it
“never heard an innocuous explanation as to why Strauch knew Appellant so
well.” Id. However, the Commonwealth did not elicit from Patrolman Strauch
a non-innocent explanation for his familiarity, either. Appellant chose to put
that issue to the jury, as reflected in his brief:
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On cross-examination, Strauch admitted that the 500
observations of Appellant were within his career as a police officer
and prior to his career. He admitted that he was not related to,
friends with, or a social acquaintance with Appellant.
While Strauch’s testimony may have been relevant to explain how
the police investigation unfolded and while Strauch did avoid
references to his history as a probation officer and as a member
of the gang and gun task forces, his testimony revealed an
uncanny number of observations – at least 500. The jury never
heard an innocuous explanation as to why Strauch knew Appellant
so well. And, while some of those observations may have
preceded his time as an Erie Police Officer, the jury learned that
Strauch and Appellant were not friends, family, or members of the
same social circle. This number of observations invariably tells a
jury that this police officer [had] an uncommon familiarity with
him and suggests the police either interact with or monitor
Appellant. The only conclusion one can draw is that Appellant has
a history of criminal activity or suspected criminal activity.
Id. (citations to transcript omitted; emphasis in original).
We decline to find that the jury must have concluded that the prior
interactions involved crime on the basis that Appellant’s own cross-
examination made that conclusion more likely.8 Examining only the trial
court’s limited ruling, we conclude that the trial court did not abuse its
discretion.
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8 We acknowledge that Appellant’s cross-examination choices were
constrained by the trial court’s ruling and the trial court stated that testimony
about the officer’s particular knowledge would be admissible if Appellant
opened the door on cross. However, Appellant could have chosen not to
develop the issue further and argued on appeal that the references standing
alone unmistakably conveyed to the jury that Appellant was a criminal. We
also note that while the Commonwealth told the trial court that it intended to
ask “how many times” Patrolman Strauch had encountered Appellant, N.T.
Trial, 11/8/22, at 30, the Commonwealth did not indicate that this would have
encompassed hundreds of observations. Appellant could have objected to the
specific answer.
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Moreover, we agree with the trial court that the cautionary instruction
adequately addressed any prejudicial effect with respect to the ruling itself.
The jury was instructed to consider the evidence for a limited purpose, and
the trial court informed the jury that it was required to ultimately determine
whether the video depicted Appellant. See Commonwealth v. Mollett, 5
A.3d 291, 313 (Pa. Super. 2010) (“Juries are presumed to follow a court's
instructions.”).
V.
We now address Appellant’s final issue challenging two search warrants,
prepared on October 15, 2020, which targeted Appellant’s cell phone, and
October 21, 2020, which authorized a search of three Facebook accounts. For
the following reasons, we agree that the trial court erred by failing to grant
suppression. However, we cannot assess whether a new trial is required on
this record, and we therefore retain jurisdiction and remand for further
proceedings.
The details of the warrant applications and the items to be searched are
crucial to Appellant’s argument and our conclusion, and we thus quote at
length the warrant applications. The October 15, 2020 warrant requested to
search the following items:
All call logs/records, both incoming and outgoing, all electronically
or digitally stored [and] saved data files, photographs, videos,
voice mails, IMEI number, text, applications and their data, cloud
based info, social media contacts, phone contacts, phone file,
Apple ID, e-mail or information contained or accessible through
the use of this electronic cell phone, internal and external memory
data. Contracted service to include but not limited to text
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messages, Voice Messages, Digital Photos sent and received,
currently stored or access[ed] through the use of electronic device
or cell phone.
Application for Search Warrant, 10/15/20, at 1.
To establish probable cause, the warrant relates the circumstances of
the shootings and the search warrant linking the WIC card to L.C. and
Savannah Lopez, and the investigation connecting Appellant to Lopez and L.C.
Significantly, the warrant then indicates that the police had already obtained
information from Facebook at this juncture, which we produce verbatim:
On 9/6/20 at 13:56 hrs posted Dupree Clark’s Facebook
(https://www.facebook.com/dupree.clark) are pictures of [L.C.]
as well as on 9/18/20 at 09:44 hrs. Both post state Dupree Clark
is with Vannah Lopez. Dupree Clark is Shaurice’s Facebook page
and Vannah Lopez is Savannah Lopez’s Facebook Page.
Found on Guap Prince’s Facebook Page on 8/28 at 15:36 hrs is
Shaurice Clark wearing purple shoes that match the suspects
shows seen on the security video of shooting
(https://www.facebook.com/guap.prince.5). On 8/29/20 at 2:36
hrs posted on the same page was a picture of Shaurice standing
at the corner of W 17th and Poplar with the caption “Pussy’s said
they looking for me I ain’t never hiding. This is one day prior to
Lopez’s 2018 Mitsubishi getting shot at that location on 8/30/20.
On 10/8/20 at 10:49 hrs this Affiant interviewed Shaurice Clark in
the Erie Police Major Crimes Interview room. During the interview
Clark was asked about the shooting at W 19th and Poplar St. … at
19:00 hrs. Clark stated that he was not there and had just missed
the shooting. I then asked about this incident at W 16th and
Poplar St. Clark stated that he did not wish to talk about this
incident. The interview ended.
After the interview I advised Shaurice that he would be charged
…. Shaurice was then booked at the Erie Police Department.
At approximately 13:30 hrs Ptlm Post and I went cell A1 where
Shaurice was waiting arraignment. … I advised Clark that I wanted
to take pictures of his tattoos. He then immediately stated that
he had pictures on his phone of his child’s birthday party that he
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was at. Clark then stated that these pictures were timed stamped
and would prove that he was not there. At this time Shaurice
would not consent to a search of his phone.
Clark’s black iPhone was tagged property #6 in evidence.
It is known to this Affaint that pictures are taken at special events.
It is also known to this Affiant that pictures taken with an iPhone
contains metadata that gives time stamps and locations.
Based on this information, this Affiant requesting a search warrant
to obtain a search of and Forensic Extraction for all call
logs/records, both incoming and outgoing, all electronically or
digitally stored & saved data files, photographs, videos, voice
mails, IMEI number, text, applications and their data, cloud based
info, social media contacts, phone contacts, phone files, Apple ID,
e-mail or information contained or accessible through the use of
his electronic cell phone. Internal and external memory data.
Contracted service to include but not limited to “text messages”,
“Voice Messages”, “Digital Photos” sent and received, currently
stored or access through the use of electronic device or cell phone
from Clark’s black iPhone.
Affidavit of Probable Cause, 10/15/20, at 2.
We conclude that, even if the Commonwealth established probable
cause to search Appellant’s phone, the warrant was so overbroad that
suppression was warranted. These concepts are related, and we thus discuss
them together.
Recently, in Commonwealth v. Ani, 293 A.3d 704 (Pa. Super. 2023),
we held that the Commonwealth failed to establish probable cause to search
Ani’s phone “for the vast majority of items requested.” Id. at 707. The
Commonwealth suspected Ani of a series of home invasion crimes, and one of
the victims observed Ani using his cell phone’s flashlight in her apartment,
while in another incident, Ani appeared to use his phone to send a text
message. The Commonwealth prepared multiple search warrants for his
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phone and its digital backups. The Commonwealth requested to search the
phone for, inter alia, “any applications requiring the use of the phone’s
keyboard, including text, photo, or video message applications, Internet
browsers, and applications for voice or video calls[.]” Id. at 709 (quoting
warrant application). We concluded that “there was no probable cause to
believe that the phone would contain actual evidence of the crimes,” as there
was no basis to conclude that Ani would have taken “trophy” photographs or
videos during the commission of his crimes, and nothing suggested that he
used the phone as part of the crimes. Id. at 723. We elaborated on this point
as follows:
The fact that [Ani] was seen using his cell phone establishes little
more than his using his phone. The Riley [v. California, 573
U.S. 373 (2014),] decision declined to extend the search incident
to arrest exception to the warrant requirement to smartphones
largely because smartphones are so integral to daily life, a
phenomenon that has only accelerated in the eight years since
Riley. Thus, it is quite easy to conjure up reasons why a phone
might contain evidence of a crime. “It would be a particularly
inexperienced or unimaginative law enforcement officer who could
not come up with several reasons to suppose evidence of just
about any crime could be found on a cell phone.” [Id.] at 399[.]
Riley would amount to a mere paperwork requirement if the
Commonwealth could obtain a warrant to search a phone based
on little more than the fact that a citizen carried a phone while
committing a crime. Thus, the fact that [Ani] was seen using his
phone in the hallways of the victims’ apartments and commented
to [a witness] that he was sending a text message is of minimal
value.
The Commonwealth hypothesizes that [Ani] may have taken
photographs or videos during the commission of these crimes.
Perhaps, but that could be said of any crime, and seeks to
enshrine a level of generality in place of individual circumstances,
which [Commonwealth v.] Jacoby[, 170 A.3d 1065 (Pa. 2017),]
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forbids. … [T]he notion that [Ani] took evidence of his “trophies”
or videotaped his crimes rested on pure conjecture. We cannot
imagine that, in the era before cell phones became a daily part of
life, a court would authorize a search warrant for a home on the
basis that such “trophy” photographs would likely be present in a
burglary suspect’s home. …
Finally, there is no indication that [Ani] was using his phone to
communicate about the crimes.
Id. at 727-28 (some bracketing added). We ultimately concluded that the
defective portions of the warrant were severable and authorized the
Commonwealth to use evidence for which it established probable cause; in
that case, locational data and evidence concerning the use of the phone’s
flashlight application.
Applying Ani, we conclude that the Commonwealth failed to establish
probable cause to search Appellant’s phone for anything. “[T]he natural
starting point for this inquiry is addressing probable cause. ‘Consequently, in
any assessment of the validity of the description contained in a warrant, a
court must initially determine for what items probable cause existed. The
sufficiency of the description must then be measured against those items for
which there was probable cause.’” Id. at 722. That legal determination must
be made by examining the four corners of the affidavit. The affidavit does not
establish probable cause to believe that Appellant’s cell phone would contain
any “items” that may be targeted by a search warrant. The key language
justifying a belief that the phone would contain anything relevant to the crime
of aggravated assault was due to Appellant’s comment that his phone
contained pictures that would give him an alibi. This does not establish
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probable cause to justify a search. The proper subjects of a search warrant
are dictated by rule.
A search warrant may be issued to search for and to seize:
(1) contraband, the fruits of a crime, or things otherwise criminally
possessed; or
(2) property that is or has been used as the means of committing
a criminal offense; or
(3) property that constitutes evidence of the commission of a
criminal offense.
Pa.R.Crim.P. 201.
The first two possibilities are not implicated, leaving the third. The trial
court determined that this warrant established sufficient probable cause
because authorities were permitted to search for exculpatory information. It
opined:
As the warrant obtained on October 15, 2020[,] specifically
indicates, [Appellant] made statements on October 8, 2020[,]
when he was in custody about content/photos on his phone.
Although those comments about the information/photos indicated
that [the] information was potentially exculpatory, they did
provide a legitimate reason to obtain the warrants so that
information could be retrieved as part of the overall investigation.
Order, 9/27/21, at unnumbered 1.
The trial court did not cite any authority for this proposition, and the
Commonwealth’s brief does not supply one either. We conclude that the
authorities were not permitted to search Appellant’s phone for potentially
exculpatory information. As our Supreme Court stated in Commonwealth v.
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Jones, 988 A.2d 649 (Pa. 2010), search warrants may be used as an
investigative tool under certain circumstances:
The “comment” to Rule 201(3) references Warden v. Hayden,
387 U.S. 294 … (1967). In Warden, the United States Supreme
Court reversed case law holding that only contraband and the
fruits of a crime can be seized pursuant to the Fourth Amendment,
but not “mere evidence.” The Court determined that nothing in
the Fourth Amendment supports a distinction between contraband
and “mere evidence,” concluding that evidence of a crime is
clearly subject to search and seizure under the Fourth
Amendment. The Court held that it is reasonable under the Fourth
Amendment to conduct otherwise permissible searches for
purpose of obtaining evidence that would aid in apprehending and
convicting criminals. Id. at 306–07…; see also Commonwealth
v. Butler, … 291 A.2d 89, 90 (Pa. 1972) (holding that a search
and seizure may be for “purely evidentiary items” when there is a
“nexus between the items to be seized and the suspected crime,”
citing and quoting Warden, supra at 307…).
Therefore, under Rule 201(3), we recognize that a search warrant
may be issued to search for and seize property that may constitute
“mere evidence” concerning a crime that has been committed.
Id. at 658 (emphasis in original).
Searching for things that would exonerate Appellant does not fall within
this possibility, as a general investigatory search is limited to evidence
“concerning a crime that has been committed.” Id. Evidence that exonerates
Appellant—who had already been arrested for these crimes—is not evidence
of a crime; it is evidence that he did not commit the crime. The trial court
therefore erred in finding that probable cause existed. As a result, the warrant
was entirely overbroad. Commonwealth v. Johnson, 240 A.3d 575, 586
(Pa. 2020) (OAJC) (“[W]here a search warrant issues in the total absence of
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probable cause, the warrant is, quite literally in some sense, entirely
‘overbroad.’”).
Alternatively, even if we accept that the authorities were entitled to “rule
out” Appellant by searching the phone, the warrant still fails because it is
insufficiently particular when measured against that limited probable cause.
This Court has recognized that the particularity component
subsumes two distinct, although often related, concepts. The first
concept addresses the degree of particularity required. A warrant
that is not “particular enough” permits “a search in terms so
ambiguous as to allow the executing officers to pick and choose,”
which amounts to the rummaging that so offended the drafters of
the federal and state constitutions. Commonwealth v. Santner,
… 454 A.2d 24, 25 n.2 (Pa. Super. 1982). This first component
thus ensures that the authorities are sufficiently limited in what
they can seize. The second concept is overbreadth. A warrant
can be clear in terms of what will be seized, thus ensuring that
the authorities’ discretion does not permit a general rummaging.
But if the warrant allows authorities to seize items for which
probable cause does not exist, it may be overbroad.
Ani, 293 A.3d at 716.
With respect to the degree of particularity, the warrant did not include
any kind of temporal limitation. While we disagree with the conclusion that
the authorities were permitted to search for exculpatory information, even
under that theory the Commonwealth knew exactly when the crime occurred.
Warrants must contain temporal limitations when possible in order to ensure
that the warrant does not authorize a general rummaging. On this point, the
Ani Court discussed Commonwealth v. Green, 265 A.3d 541 (Pa. 2021), in
which our Supreme Court held that the warrant involved need not include a
temporal limitation with respect to a search for child pornography on digital
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devices. We explained why Green cannot be read to hold that a temporal
limitation is never required when searching a digital device:
Additionally, it is quite difficult to separate the probable cause
resolution in Green from its analysis of the overbreadth question.
In rejecting Green’s argument that the probable cause was
limited to the particular child pornography image downloaded, the
Green Court pointed out that the target of the investigation was
“sharing a collection of child pornography in general, which is
exactly what the warrant permitted the officers to search for and
seize.” Green, 265 A.3d at 554. Thus, the “item” for which there
was probable cause was a collection of child pornography, which
could be anywhere on the device. In that context, a temporal
limitation makes little sense as the Court’s probable cause calculus
did not consider a crime occurring over a particular period of time.
Thus, nothing in Green suggests that a temporal requirement will
never be required. If a temporal limitation is “reasonably
possible,” then [Commonwealth v.] Grossman[, 555 A.2d 896(Pa. 1989),] demands its inclusion.
Ani, 293 A.3d at 723.
The Commonwealth knew from surveillance videos and police responses
exactly when the crime occurred. Yet, nothing in the warrant limited the
authorities to a certain day, let alone a timeframe encompassing the shooting.
Thus, even if we accept that the Commonwealth was entitled to look for
evidence that would tend to exonerate Appellant, any such search would have
to be temporally limited. Accordingly, the search warrant is overbroad as it
permitted the authorities to rummage.9
____________________________________________
9 As to whether the warrant was insufficiently particular in the sense it allowed
the authorities to search beyond photographs, we acknowledge that limiting
the Commonwealth to specific “categories” of information poses doctrinal
difficulties given the ease with which information can be hidden in devices like
a smartphone. See generally Ani, 293 A.3d at 722-23.
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Turning to the second warrant, many of the defects identified supra
apply to this warrant, as well. The second warrant was served on Facebook,
targeting three Facebook accounts. Two of the accounts belonged to Appellant
(“Dupree Clark” and “Guap Prince”). The third account belonged to Savannah
Lopez. The warrant sought to obtain the following:
Any and all Facebook account information to include user contact
information, including full name, user identification number, birth
date, contact e-mail addresses, physical address (including city,
state and zip code), telephone numbers, screen names, websites,
and any other personal identifiers and group identification
numbers, a list of current registered users to the group and group
contact info, including all contact information for the creator
and/or administrator of the group and a .pdf file of the current
status of the group profile page. All photo prints, including all
photos uploaded by that user I.D. and all photos uploaded by any
user that have that user tagged in them. All Neoprints, including
profile contact information, Mini-Feed information, status updates,
links to videos, videos, photographs, articles, and other items.
Notes. Wall postings. Friends lists, including the friends Facebook
user identification numbers. Groups and networks of which the
user is a member, including the groups Facebook group
identification numbers. Future and past event posting. Rejected
Friend requests. Comments, gifts, pokes, tags and information
about the users access and use of Facebook applications. All other
communications and messages made or received by the user,
including all private messages and pending Friend requests. All
IP logs, including all records of the IP addresses that logged into
the account. All information about the user’s access and use of
Facebook Marketplace. The length of service (including start
date), the types of service utilized by the user and the means and
source of payment associated with the service (including any
credit card or bank account number). All privacy settings and
other account settings. All recordings pertaining to
communications between Facebook and any person regarding the
user or the user’s Facebook account, including contacts with
support services and records of action taken.
Application for Search Warrant, 10/21/20, at 1-2.
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The affidavit of probable cause discussed Facebook in general and
largely reproduced everything from the first warrant. The only additional
pertinent information is the following paragraph added at the end:
Based on the experience and training of these Affiants, it is not
uncommon for people involved in criminal activity to use social
media prior to and after the commission of a crime. Individuals
may communicate on social media, specifically Facebook, through
the use of sending instant messages, Facebook audio and video
messages.
Affidavit of Probable Cause, 10/21/20, at 2.
We conclude that this warrant is overbroad because it too fails to include
any kind of temporal or categorical limitation. We find persuasive the decision
in United States v. Blake, 868 F.3d 960 (11th Cir. 2017), which involved an
investigation of a prostitution ring. The authorities applied for two search
warrants of a Facebook account belonging to Moore, one of the two co-
defendants. At the time the warrant was obtained, the authorities “had
extensive evidence linking Moore to the prostitution ring…. Moore’s Facebook
account was suggestive of criminal conduct: the publicly viewable version of
the account listed Moore's occupation as ‘Boss Lady’ at ‘Tricks R [U]s.’” Id.
at 966. The warrants
required Facebook to “disclose” to the government virtually every
type of data that could be located in a Facebook account, including
every private instant message Moore had ever sent or received,
every IP address she had ever logged in from, every photograph
she had ever uploaded or been “tagged” in, every private or public
group she had ever been a member of, every search on the
website she had ever conducted, and every purchase she had ever
made through “Facebook Marketplace,” as well as her entire
contact list. The disclosures were not limited to data from the
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period of time during which Moore managed the prostitution ring;
one warrant asked for all data “from the period of the creation of
the account” and the other did not specify what period of time was
requested. The warrants did state that the only information that
would be “seized,” after all that data had been “disclosed” to the
FBI, was data that “constitute[d] fruits, evidence and
instrumentalities” of a specified crime.
Id. at 966–67 (footnote omitted).
The Blake Court did not decide whether the warrant was overbroad
because it applied the “good faith exception” to the exclusionary rule, which
does not apply in this Commonwealth. Commonwealth v. Edmunds, 586
A.2d 887 (Pa. 1991). Its discussion, however, suggests that the warrants
were overbroad:
The Facebook warrants are another matter. They required
disclosure to the government of virtually every kind of data that
could be found in a social media account. And unnecessarily so.
With respect to private instant messages, for example, the
warrants could have limited the request to messages sent to or
from persons suspected at that time of being prostitutes or
customers. And the warrants should have requested data only
from the period of time during which Moore was suspected of
taking part in the prostitution conspiracy. Disclosures consistent
with those limitations might then have provided probable cause
for a broader, although still targeted, search of Moore’s Facebook
account. That procedure would have undermined any claim that
the Facebook warrants were the internet-era version of a “general
warrant.”
Blake, 868 F.3d at 974 (citations omitted).
We recognized in Ani that searches of digital evidence is still a
developing area of the law, especially with respect to ex ante restrictions on
“where” authorities may search. However, the foregoing suggests that the
need for an extensive search is not as prevalent in the Facebook context
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because “when it comes to Facebook account searches, the government need
only send a request with the specific data sought and Facebook will respond
with precisely that data.” Id. Here, the foregoing discussion from Blake is
persuasive, and is fully consistent with Ani. The Commonwealth sought the
complete contents of these Facebook accounts instead of limiting it
temporally. Furthermore, the warrant purported to establish probable cause
to search for communications between Appellant and other unspecified
individuals. While we do not express any opinion on whether probable cause
existed to do so, the Commonwealth easily could have requested to obtain
only direct messages during the relevant timespan. Instead, it chose to obtain
virtually everything that Facebook captures. We therefore conclude that the
Facebook warrants are overbroad.
VI.
However, we cannot decide the remedy based on this record. While we
may apply harmless error sua sponte, we are not presently convinced that the
error was harmless beyond a reasonable doubt. See Commonwealth v.
Hamlett, 234 A.3d 486, 488 (Pa. 2020). While the Commonwealth presented
DNA evidence and video surveillance showing the perpetrator pursuing the
black BMW, the Commonwealth’s own filings reflect uncertainty that
identification was guaranteed based solely on that evidence. The Facebook
images constituted powerful corroborating evidence, and we are not presently
inclined to sua sponte declare at this juncture, without the benefit of advocacy
from both parties, that the error was harmless beyond a reasonable doubt.
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That aside, the more pressing problem is that the record does not
indicate what evidence the Commonwealth obtained from these search
warrants. Thus, we cannot even determine what evidence should have been
suppressed. As we previously noted, the application for the first warrant
referenced that the Commonwealth possessed photographs obtained from
Facebook, including a photograph depicting Appellant in purple shoes. The
Commonwealth may have obtained this information from publicly-accessible
portions of Facebook. The test set forth in Katz v. United States, 389 U.S.
347, 351 (1967), states, “What a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth Amendment
protection.” We have not discovered any precedential decision from this Court
applying that principle to social media accounts, but other jurisdictions have
grappled with the reasonable expectation of privacy in Facebook postings,
including associated questions of whether the government can become “false
friends” with the target. Compare Everett v. State, 186 A.3d 1224, 1236
(Del. 2018) (“We resolve the case on narrow grounds—namely, that the
Fourth Amendment does not guard against the risk that the person from whom
one accepts a ‘friend request’ and to whom one voluntary disclosed such
information might turn out to be an undercover officer or a ‘false friend.’”)
with Commonwealth v. Carrasquillo, 179 N.E.3d 1104, 1120 (Mass. 2022)
("[A]lthough an individual’s choice to share social media content with others
diminishes the individual’s privacy interests, it does not per se defeat them.”).
We need not extensively survey the cases on this point. We observe only that
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the record does not indicate which of the Commonwealth’s trial exhibits, if
any, are traceable to the execution of these warrants, nor does it indicate
which photographs existed when the Commonwealth applied for the warrant
and how the Commonwealth obtained those items.
Accordingly, we direct the trial court to hold a hearing within 30 days of
the date the record is remitted to determine (a) how the Commonwealth
obtained the Facebook photographs cited in the warrant applications; and (b)
what evidence, if any, was introduced at trial due to the execution of these
invalid warrants. This Court retains the option to require the parties to brief
harmless error upon return of the record. Hamlett, supra at 494 (“[W]hen
an appellate court deems it appropriate to exercise its discretion to undertake
a harmless error analysis of its own accord in close cases, it has the ability to
enhance fairness to the defendant and facilitate its own review by directing
that there be supplemental briefing.”).
Case remanded for further proceedings. Panel jurisdiction retained.
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