Commonwealth v. Rushing

CONCURRING OPINION BY

STEVENS, P.J.

While I agree with the Majority’s ultimate decision not to disturb Appellant’s three.life sentences, to vacate the sentence imposed on the kidnapping convictions and to reverse the second-degree murder convictions, the discussion of whether probable cause is necessary before the government may utilize real time cell phone tracking is not warranted, and I would not have reached it, nor do I agree with it.

Importantly, the Majority declared that a determination of whether the Commonwealth had had time to obtain a search warrant was “not dispositive”- . of- . this Court’s appellate review of the trial court’s finding of exigent circumstances. In addition, the Majority determined that the current Wiretap Act is inapplicable to the instant matter and that police were able to narrow Appellant’s whereabouts by using real time rather than stored ■ data after securing a court order based on specific and articulable facts.

Clearly; the Majority found our appellate review did not necessitate a search warrant discussion and that the Commonwealth had exigent circumstances and set forth specific, articulable facts to conduct the search under the totality of the circumstances. As such, it was unnecessary for the Majority.to proceed one step further in its analysis and declare probable cause is necessary in order for the government to utilize real time cell phone tracking.

Thus, I deem an issue raised on appeal concerning whether or not police properly obtained ■ real time cell site information data of an appellant’s cell phone is properly decided on a case-by-case basis, under the totality of the circumstances presented therein. I would agree with the Majority that in the matter sub judice, Appellant’s heinous crimes and future threat to others support a finding that exigent circumstances existed.