Search of Home and Electronic Devices; Probable Cause

Commonwealth v. Green, 204 A.3d 469 (Pa. Super. 2019), allocatur granted Jan. 25, 2021, appeal docket 6 MAP 2021

Green was charged with multiple sexual abuse crimes after the Pennsylvania State Police uncovered evidence that he had downloaded child pornography using a peer-to-peer file-sharing network known as BitTorrent.

In seeking the search warrant that overcovered evidence leading to Green’s arrest, the PSP submitted the affidavit of probable cause of Corporal Christopher Hill, who based his affidavit on information received from Corporal Gerald Goodyear. According to the affidavit, Corporal Goodyear identified a computer that was sharing images of child pornography on the BitTorrent file-sharing network, and had downloaded contraband digital files through BitTorrent. The affidavit specifically described a particular image, which the affidavit described and averred was child pornography. The IP address that downloaded the described file was assigned to the internet service provider Comcast Cable Communications; pursuant to a court order, Comcast identified Green as the subscriber assigned to that IP address and provided law enforcement with Green’s address. The affidavit described the Corporals’ training and experience, described the BitTorrent file sharing process, and provided background information about police investigations involving computers and the internet. The affidavit explained 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.’” and “that such seizures, subject to later searches, were necessary in order to have access to all hardware and software that may have been used to create data and thus ensure proper data retrieval.” Slip op. at 3. The affidavit additionally “listed practices that, based on Corporal Hill’s experience, were often common to individuals involved in the file sharing and downloading of child pornography, including ‘maintain[ing] their collections at a secure, private location for long periods of time.’” Slip op. at 4.

The court granted the warrant to search Green’s home and specifically identified the items troopers could search for and seize, including:

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 optical 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.

Slip op. at 4-5. During execution of the search warrant, officers found a cell phone which had BitTorrent software installed. Green acknowledged the phone was his and only used by him.

Before trial, Green moved to suppress the cell phone evidence obtained during the search, arguing the warrant was overbroad and that the affidavit failed to provide probable cause that the electronic device used to download the material would be found at the location searched. The trial court denied the motion, reasoning that the warrant was not overbroad because it was limited to evidence relating to the possession and/or distribution of child pornography, and therefore did not target non-criminal activity. The trial court further “explained that by their nature, ‘[d]igitial storage systems must be seized in their entirety and then searched at a later time,’” thus considering the warrant in that context, it was not overbroad. Slip op. at 14. The trial court additionally found that “although there would be no guarantee” that the device that downloaded the photo would be in Green’s home, due to the portable nature of most computer devices, there was probable cause to believe it would, because “the device which contained the file sharing software was [Green’s] phone” and rejected Green’s contention that the possibility that another person could have used his IP address precluded a finding of probable cause. Slip op. at 17.

Following trial, Green was found guilty of 99 counts of sexual abuse of children (possession of child pornography) and one count of criminal use of communication facility. Green appealed arguing, inter alia, that the search warrant for his residence was overbroad because it allowed the police to search all files on electronic devices found at the residence, regardless of whether the devices were used for criminal purposes and without “certainty” that the suspected devices would be present. Green further argued that warrant was issued without probable cause that (1) the image described in the affidavit was child pornography and (2) the electronic device containing child pornography was in his home because the IP address could have been utilized by portable electronic equipment outside of his residence.

Superior Court affirmed the trial court’s determination that the warrant was not overbroad, reasoning that “Green was under investigation for computer-based criminal acts, i.e., possession of child pornography on electronic equipment” and the “warrant contained a general description of electronic 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,’” thus the warrant was limited to criminal activity. Slip op. at 14. Superior Court further explained that although the magisterial district judge did not view the photograph described in the affidavit, the affidavit of probable cause contained a sufficient description of it to provide probable cause to believe it was child pornography. Additionally, Superior Court agreed with the trial court that the affidavit was sufficient to establish probable cause, concluding that:

The affidavit contained information that child pornography had been downloaded by a device using an IP address associated with Green’s residence. This was sufficient to establish probable cause to believe a device containing child pornography was located at the residence. The police were not required to prove their suspicion beyond a reasonable doubt, or disprove arguments that Green might conceivably raise.

Slip op. at 17.

The Pennsylvania Supreme Court granted allocatur, limited to the following issue:

Was the search warrant issued for the defendant’s home and electronic devices overbroad, and did the affidavit fail to establish probable cause?

For more information, contact Kevin McKeon or Dennis Whitaker.