Philadelphia Criminal Defense Blog

Zak Goldstein 3/23/26 Zak Goldstein 3/23/26

PA Superior Court: Trial Court Cannot Stack Three Maximum Sentences for Technical Probation Violations at a Single Hearing Under Act 44

The Pennsylvania Superior Court has decided the case of Commonwealth v. Goodwin, 2026 PA Super 54 (Pa. Super. March 19, 2026), holding that a trial court erred in imposing a one-to-two-year term of imprisonment for three technical probation violations that were all presented at the same hearing. Although the Superior Court affirmed the trial court’s finding that the defendant had committed flagrant technical violations, it vacated the sentence and remanded for resentencing consistent with the graduated sentencing scheme in 42 Pa.C.S.A. § 9771(c)(2). This case is one of the first to address the sentencing limits imposed by Act 44, Pennsylvania’s 2024 probation reform law, in the context of multiple technical violations addressed at a single hearing.

The Facts of Goodwin

In August 2022, the defendant was charged with multiple counts of burglary, criminal trespass, theft by unlawful taking, and receiving stolen property in Monroe County, PA. The charges arose from a series of burglaries at auto shops. At the time of his arrest, he was already on bail for crimes committed in 2021. He was sentenced in the earlier case to one month to one year of incarceration followed by two years of probation. He was paroled in October 2022.

In August 2023, the defendant pleaded guilty in the Monroe County case to burglary, theft by unlawful taking, and criminal mischief. In November 2023, he was sentenced to five years of restrictive probation, a consecutive two-year period of probation, and a fine. The restrictive condition of his five-year probation was the successful completion of the two-week Outmate Program at the Monroe County Correctional Facility when directed by the Monroe County Probation Office.

After sentencing, the defendant met with his probation officer and was provided with the rules of probation. His probation was subsequently transferred to Allegheny County. However, the defendant then left Allegheny County and traveled to North Carolina without seeking or receiving permission from the Commonwealth and without advising his probation officer of the move. His probation officer did not learn of this until three weeks later, when the defendant’s mother revealed his location.

Rather than immediately filing a violation petition, the probation officer attempted to transfer the defendant’s case to North Carolina. North Carolina declined to accept the transfer because the defendant’s mother, whose residence was the proposed home plan, said the defendant could not reside with her. The probation officer then directed the defendant to return to Pennsylvania to work out a solution, but the defendant did not return voluntarily.

In April 2024, the Commonwealth filed a violation of probation petition alleging four violations: failure to report to the Probation Department, failure to comply with criminal laws (based on a simple assault charge in Allegheny County), leaving the Commonwealth without permission and failing to return, and failure to complete the Outmate Program.

The defendant failed to appear for his violation hearing, and the court issued a bench warrant. He was eventually arrested in North Carolina, initially declined extradition, but then reversed course and waived extradition on June 11, 2024, the same day the Act 44 probation reform amendments became effective. At the violation hearing, the Commonwealth withdrew the violation based on the new arrest, and the defendant made a voluntary, knowing, and counseled admission to the three remaining technical violations. The court revoked probation and sentenced the defendant to one to two years of incarceration in a state correctional facility.

The Superior Court's Analysis

The Superior Court addressed three issues on appeal. First, it considered whether the evidence was sufficient to support the revocation of probation. Second and third, it addressed whether the trial court had the statutory authority to impose total confinement and whether the sentence was illegal under the graduated sentencing provisions of Act 44.

Revocation Was Supported by the Evidence

The Superior Court affirmed the trial court's finding that the defendant committed flagrant technical violations. The VOP court specifically found the defendant did not establish that he was homeless to the extent that he could not comply with the terms of his probation. The court noted the defendant’s inconsistent statements about his living situation, his deliberate choice not to return to Pennsylvania to participate in the Outmate Program despite his probation officer’s fair offer to not violate him if he returned, and his initial refusal to waive extradition. The Superior Court concluded that the trial court properly exercised its discretion in finding the violations and determining that the defendant’s conduct was not merely a consequence of homelessness.

Total Confinement Was Authorized

The Superior Court also upheld the trial court’s authority to impose a sentence of total confinement. Applying the newly effective Section 9771(c), the court found the defendant had absconded and could not be safely diverted from total confinement through less restrictive means. The record supported this finding. The defendant left the Commonwealth without permission, failed to contact his probation officer, refused to return when directed, and initially refused extradition.

The Sentence Was Illegal Under Act 44’s Graduated Scheme

However, the Superior Court concluded that the trial court erred as a matter of law in imposing a one-to-two-year prison sentence. This is the critical holding of the case.

Under the amended Section 9771(c)(2), when a court imposes total confinement for technical probation violations, it must follow a graduated sentencing scheme: a maximum of 14 days for a first technical violation, a maximum of 30 days for a second, and for a third or subsequent violation, the court may impose any sentencing alternative available at initial sentencing. The purpose of this scheme is to embody a recidivist philosophy: to give a probationer the opportunity to reform his or her conduct before receiving a more severe sentence for repeated violations.

The trial court treated the defendant’s three technical violations as three separate violations and imposed a sentence for a “third or subsequent” violation. The Superior Court, agreeing with both the defendant and the Commonwealth, held that this was error. Because all three violations were presented to the court at the same first hearing, the recidivist philosophy required that they be treated as a first technical violation. To allow the court to stack three maximum sentences at a single hearing would be absurd and contrary to the legislature's intent in passing Act 44.

The Superior Court noted that the en banc decision in Commonwealth v. Seals, 2026 PA Super 29, had held that a claim that a court failed to follow the limitations in Section 9771(c) raises a challenge to the legality of the sentence. Accordingly, it vacated the defendant’s sentence and remanded for resentencing consistent with Section 9771(c)(2), which limits a first technical violation to a maximum of 14 days.

Interestingly, the court observed in a footnote that this new statutory framework may not achieve its intended goal of reducing incarceration for technical violations. The court suggested the graduated scheme may actually create a disincentive for probation officers to exercise discretion and handle minor violations informally, instead pressuring them to initiate court proceedings for every technical violation in order to build a record for enhanced sentencing later.

The Takeaway

Goodwin is an important decision for anyone on probation in Pennsylvania. The case makes clear that under Act 44, a trial court cannot circumvent the graduated sentencing limits by treating multiple technical violations from a single hearing as separate violations for sentencing purposes. If this is a defendant’s first violation hearing, the maximum sentence for technical violations is 14 days, regardless of how many individual technical violations are found at that hearing.

This case also reinforces that Act 44 challenges are legality-of-sentence claims that cannot be waived and may be raised at any time. If you or someone you know has received a sentence for technical probation violations that exceeds the Act 44 limits, the sentence may be illegal and subject to challenge on appeal.

Facing Criminal Charges or a Wrongful Conviction?

If you or a loved one has been wrongfully convicted or believes that the prosecution withheld evidence in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 2/28/26 Zak Goldstein 2/28/26

PA Supreme Court: Resentencing Counsel Ineffective for Failing to Object to Prejudicial “Serial Killer” Evidence in Death Penalty Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Smith, No. 815 CAP (Pa. Feb. 26, 2026), holding that resentencing counsel was ineffective for failing to adequately object to the Commonwealth’s evidence and argument portraying the defendant as an aspiring serial killer during a capital resentencing hearing. The Court reversed the PCRA court’s order and remanded the matter for a new penalty-phase hearing. The unanimous decision was authored by Justice Brobson.

The Facts of Commonwealth v. Smith

In November 1994, Eileen Jones and the appellant, Wayne Smith, left together in a car borrowed from Smith’s nephew. Smith returned the car later that evening, and the next day, he told his brother that he had murdered Jones by choking her in a nearby park. Jones’s body was discovered on November 22, 1994, and the county medical examiner concluded the cause of death was strangulation. Police also recovered newspaper articles about the recovery of Jones’s body from Smith’s home.

A jury found Smith guilty of first-degree murder and sentenced him to death. Smith’s conviction and sentence were affirmed on direct appeal by the Pennsylvania Supreme Court in Commonwealth v. Smith, 694 A.2d 1086 (Pa. 1997). Smith then filed a PCRA petition, and the Supreme Court ultimately vacated the death sentence and remanded for a new penalty-phase hearing after finding that counsel had provided ineffective assistance. Commonwealth v. Smith, 995 A.2d 1143 (Pa. 2010).

At the 2012 resentencing hearing, the jury again sentenced Smith to death after finding the aggravating circumstance of a prior voluntary manslaughter conviction outweighed the mitigating circumstances of emotional distress and an abusive childhood. The Supreme Court affirmed the sentence on direct appeal in Commonwealth v. Smith, 131 A.3d 467 (Pa. 2015), and the United States Supreme Court denied certiorari.Smith v. Pennsylvania, 580 U.S. 830 (2016).

The “Serial Killer” Evidence at the Resentencing Hearing

At the center of this appeal was highly inflammatory evidence the Commonwealth introduced at the 2012 resentencing hearing. Prior to the original trial, Smith had actually filed a motion in limine to exclude any reference to his alleged interest in being a serial killer, and the defense had successfully precluded the Commonwealth from pursuing that theory at the original trial and sentencing in 1995.

However, at the 2012 resentencing hearing, the Commonwealth sought to introduce testimony from Sonya Rollins, Smith’s ex-girlfriend, about Smith’s reading habits. The prosecution also asked the resentencing court to allow Rollins to testify that Smith read books about murder and crime, including titles such as “The Perfect Crime” and “How to Get Away with the Perfect Crime.” The Commonwealth argued this evidence was relevant to show intent and to rebut Smith’s anticipated mitigation evidence regarding mental illness and an abusive childhood.

Resentencing counsel objected to the Commonwealth’s motion in limine, arguing that evidence about reading habits was inadmissible character evidence that amounted to nothing more than smearing his client. However, the resentencing court permitted the testimony. Critically, resentencing counsel did not renew his objection when Rollins actually took the stand and testified, did not object to testimony from Smith’s brother Jeffrey about Smith’s alleged interest in serial killers, did not object to a police detective reading from Smith’s statement about fantasizing about being a serial killer, and did not object to the prosecutor’s repeated references to the serial-killer theme in both opening and closing arguments.

The prosecutor made this evidence the centerpiece of her case for death, arguing in her opening that Smith had been planning the murder for 14 years and comparing him to Ted Bundy. In closing, the prosecutor urged the jury to give Smith “his recognition” and “his attention” — referring to his alleged desire for the notoriety of a serial killer.

The PCRA Proceedings

Smith timely filed a PCRA petition in 2017 arguing that resentencing counsel was ineffective for failing to object to the serial-killer evidence. The PCRA court ultimately dismissed the petition after a hearing, finding that counsel’s decision not to continue objecting after the court granted the Commonwealth’s motion in limine was a reasonable tactical decision. The PCRA court also concluded that Smith had not established prejudice because the serial-killer evidence was only a small part of the Commonwealth’s overall case.

The Pennsylvania Supreme Court’s Decision

The Supreme Court unanimously reversed, finding that Smith had satisfied all three prongs of the ineffective assistance of counsel standard under Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007).

Arguable Merit: The Court agreed with Smith that the reading-material and serial-killer evidence were irrelevant to the resentencing proceedings. The Court noted that the sole issue for the jury was whether to sentence Smith to death or life imprisonment, and that Smith’s intent to kill Jones, which the Commonwealth claimed the reading evidence proved, had already been established by his first-degree murder conviction. As to the Commonwealth’s second justification, that the evidence rebutted Smith’s mitigation evidence regarding mental illness and an abusive childhood, the Court found it unclear how reading books about murder would undermine evidence that Smith was abused as a child, suffered from post-traumatic stress disorder, or was substantially impaired. Whatever minimal probative value the evidence may have had was outweighed by the danger of unfair prejudice under Pa.R.E. 403.

Reasonable Basis: The Court rejected the argument that resentencing counsel acted reasonably by not continuing to object after the motion in limine was granted. The Court highlighted two important factors: first, the Supreme Court itself had previously determined in Smith III that resentencing counsel failed to properly object to the reading-material evidence and had therefore waived the issue on direct appeal. Second, the Commonwealth’s motion in limine did not address Smith’s alleged desire to be a serial killer. The resentencing court never actually ruled on that evidence, and yet counsel failed to object to any of the serial-killer testimony or the prosecutor’s inflammatory use of it in opening and closing arguments.

Prejudice: The Court found that the PCRA court had improperly applied a “harmless error” standard rather than the correct prejudice standard for ineffective assistance claims. Under the proper standard, Smith needed to show a reasonable probability that at least one juror would have concluded that the aggravating circumstance did not outweigh the mitigating circumstances. The Court concluded that this standard was met, noting that the Commonwealth had made the serial-killer evidence the central theme of its case for death, repeatedly referring to it throughout the proceedings. The Court also noted that the resentencing jury had initially reported that it was unable to reach a unanimous verdict before ultimately sentencing Smith to death, which further bolstered the finding of prejudice. The Court rejected the Commonwealth’s argument that because the original jury (which did not hear the serial-killer evidence) also sentenced Smith to death, the evidence could not have been prejudicial, explaining that the two sentencing hearings were not comparable; the first lasted one day with a 39-page transcript, while the resentencing hearing spanned four days with hundreds of pages of testimony.

The Takeaway

This decision is significant for several reasons. First, it reinforces the principle that evidence admitted at a penalty-phase hearing must actually be relevant to the issues the jury is deciding, namely, whether aggravating circumstances outweigh mitigating circumstances. Evidence that serves primarily to paint a defendant in a negative light without bearing on the actual sentencing determination is inadmissible, particularly where its prejudicial effect substantially outweighs any probative value under Pa.R.E. 403.

Second, the decision clarifies the obligations of counsel at a resentencing hearing. The Court made clear that an attorney cannot simply stop objecting to inadmissible evidence after an initial objection is overruled. Counsel must preserve objections when evidence is actually introduced and must object to improper arguments by the prosecution.

Third, the Court’s analysis of the prejudice prong is noteworthy. The Court distinguished between the “harmless error” standard applicable on direct appeal and the “prejudice” standard applicable to ineffective assistance claims under the PCRA, noting that the PCRA court had improperly conflated the two. In a capital case, the proper question is whether there is a reasonable probability that at least one juror would have reached a different conclusion on the weighing of aggravating and mitigating circumstances.

Facing Criminal Charges or Appealing a Conviction? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won on appeal. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 2/12/26 Zak Goldstein 2/12/26

Third Circuit: A General Rule 29 Motion Does Not Preserve Specific Sufficiency of the Evidence Arguments for Appeal

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Abrams, Nos. 24-1998, 24-3003 (3d Cir. 2026), holding that a bare, non-specific motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 does not preserve every sufficiency of the evidence argument a defendant may later want to raise on appeal. This is an important decision for criminal defense lawyers practicing in federal court because it means that if you do not articulate your specific sufficiency challenges at trial, meaning provide the reasons for the sufficiency challenge at time time you move for a new trial or judgment of acquittal in the trial court, you will be limited to plain error review on appeal, which is an extremely difficult standard to meet.

The Facts of United States v. Abrams

The defendant in this case was convicted at a nine-day jury trial on 48 criminal counts, including wire fraud, mail fraud, aggravated identity theft, money laundering, unlawful monetary transactions, obstruction of justice, and making false statements. The charges arose from a scheme in which the defendant solicited investors for his clean energy startup by providing forged documents and false financial information. He then diverted investor funds for personal use, including purchasing a residence in South Carolina. The District Court imposed a 72-month prison sentence and ordered approximately $1.2 million in restitution.

The Rule 29 Motion at Trial

At the close of the government's case, the defendant moved for judgment of acquittal under Rule 29(a). The entire colloquy was remarkably brief:

THE COURT: Now that you are going to rest, are there motions?
DEFENSE COUNSEL: Yes. I move for judgment of acquittal on Rule 29(a). I waive argument.
GOVERNMENT COUNSEL: Subject to the pending stipulation, there's more than enough evidence in the record to justify all 48 counts in the indictment for a myriad of Title 18 offenses.
THE COURT: It's clear that the presentation of evidence so far if believed by the jury would certainly satisfy the government's burden of proof beyond a reasonable doubt, and so the Rule 29 motion is denied.

That was it. The defendant made no specific arguments about which elements of which offenses the government had allegedly failed to prove. He failed to identify any particular weaknesses in the evidence. He simply made a bare motion for an acquittal, with argument expressly waived.

On appeal, the defendant then raised a host of specific sufficiency arguments he had never presented to the trial court, including challenges to whether the government had proven the "money or property" element of fraud and whether the evidence established specific intent to defraud.

The Third Circuit's Holding on Preservation

The Third Circuit held that because Abrams made only a general, non-specific Rule 29 motion, he had not preserved his specific sufficiency arguments for appellate review. The Court applied plain error review instead of the de novo standard that ordinarily applies to sufficiency challenges.

The Court grounded its analysis in United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), which drew a careful distinction between “issues” and “arguments.” Under Joseph, a single “issue” can encompass more than one discrete “argument.” To preserve a specific argument for appeal, a party must raise the same argument, not merely the same broader issue, in the district court. Merely raising an issue that encompasses the appellate argument is not enough.

The Court had previously applied this framework to Rule 29 motions in United States v. Williams, 974 F.3d 320, 361 (3d Cir. 2020), holding that when a Rule 29 motion raises specific grounds, all arguments not raised are unpreserved. But Williams expressly left open the question of whether a broadly stated Rule 29 motion, meaning one that raises no specific grounds at all, preserves all sufficiency arguments. In United States v. Johnson, 19 F.4th 248, 255 n.6 (3d Cir. 2021), the Court reaffirmed that Williams did not hold that a general Rule 29 motion preserves all sufficiency arguments.

In Abrams, the Court squarely decided that open question: a general Rule 29 motion does not preserve all sufficiency arguments later raised on appeal. This holding was driven by two principles of preservation doctrine. First, a party must put the district court “squarely on notice” of the point at issue, giving the court a chance to consider and resolve the matter in the first instance. Second, arguments must be sufficiently particularized and framed as specific arguments because judges “are not clairvoyant” and need not “anticipate and join arguments that are never raised by the parties.”

The Court acknowledged that several other circuits have held (often with little analysis) that a broadly stated Rule 29 motion without specific grounds preserves the full array of sufficiency challenges for appeal. The Third Circuit declined to follow that approach, finding it inconsistent with preservation principles and noting that it would create a perverse incentive for defense lawyers to say as little as possible in the district court in order to save their best arguments for appeal. The Court cited Judge Oldham's concurrence in United States v. Kieffer, 991 F.3d 630, 638-39 (5th Cir. 2021), which observed that this double standard “encourages defendants to say as little as possible in the district court and to save their good arguments as 'gotchas!' for appeal.”

What Happens Under Plain Error Review

Because Abrams had not preserved his sufficiency arguments, the Third Circuit reviewed them only for plain error under United States v. Olano, 507 U.S. 725 (1993). That standard requires a showing that (1) there was an error, (2) the error was plain, (3) the error affected substantial rights, and (4) not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. An insufficiency claim succeeds under this standard only where affirmance would produce a '“manifest miscarriage of justice,” meaning the record must be devoid of evidence of guilt or the evidence must be so tenuous that a conviction is shocking. United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014). That is an extremely high bar. Unsurprisingly, the Third Circuit found no plain error in Abrams, noting that the evidence of fraud was overwhelming.

Facing Federal Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 1/23/26 Zak Goldstein 1/23/26

PA Supreme Court Fails to Reach Decision on Whether Search Warrant Required for Google’s Search Records

On December 16, 2025, the Pennsylvania Supreme Court issued a fractured decision in Commonwealth v. Kurtz, addressing a cutting-edge digital privacy question: do you have a reasonable expectation of privacy in the terms you type into a Google search bar?

The Court’s answer was “no”—at least for general, unprotected searches. However, because the decision was reached by a plurality (meaning a majority of justices did not agree on a single legal reasoning), it is not binding, and the ruling leaves significant questions unanswered regarding other types of digital data, particularly Internet Service Provider (ISP) records and IP address subscriber information.

Commonwealth v. Kurtz: The “Reverse Keyword” Warrant

In Kurtz, police were investigating a violent home invasion rape but had no DNA match or suspect. Investigators obtained a “reverse keyword search warrant” compelling Google to identify any IP addresses that had searched for the victim’s home address prior to the crime. Google identified an IP address associated with the defendant, leading to additional investigation, an eventual DNA match, and his conviction for rape in this case and other unsolved cases.

The defendant challenged the warrant, arguing he had a privacy interest in his search history and that the warrant provided no reason to believe that the perpetrator conducted a Google search at all let alone for the victim’s address. The trial court rejected this claim, and the defendant appealed. The Superior Court rejected the claim, too, finding that the defendant did not have a reasonable expectation of privacy in the records maintained by Google and that the police had obtained a legitimate search warrant even if he did. The defendant petitioned the Supreme Court for review, and the Pennsylvania Supreme Court agreed to hear the case. That Court, however, failed to reach a decision - three justices concluded that he had no reasonable expectation of privacy in the search records, three concluded that the warrant was fine and declined to address the REOP decision, and one justice would have granted the motion to suppress.

Accordingly, the Court affirmed the defendant’s conviction as it would have required four justices to vote to overturn it. In support of upholding the conviction, Justice Wecht authored an Opinion Announcing the Judgment of the Court (OAJC) which reasoned that the defendant did not have a reasonable expectation of privacy in the information and that investigators did not have to obtain a warrant at all because:

Voluntary Disclosure: By typing a query into Google, the user voluntarily discloses that information to a third party, meaning the user does not make an attempt to keep the information private.
Notice: Google’s privacy policy explicitly warns users that it collects search queries and shares them with law enforcement.
Lack of Necessity: The Court noted that using Google is a choice, not a necessity; users can use other search engines, libraries, or physical maps. They can also take steps to shield their identities and increase their privacy.

Accordingly, the defendant had no reasonable expectation of privacy in the search results.

Why Kurtz Is Not the Final Word

While Kurtz is a significant ruling for search history and the Superior Court’s ruling stands, it is not a total defeat for digital privacy rights in Pennsylvania for two key reasons:

1. It Is a Plurality Opinion: Crucially, the main opinion in Kurtz was joined by only three of the seven justices. When a court decides a case without a majority opinion, the holding is generally limited to the specific result of that case, and the legal reasoning is not fully binding precedent for future cases. This means the broad language about the third-party doctrine may not apply automatically to different factual scenarios or even similar scenarios.

2. It Is Limited to "Unprotected" Searches: The Court repeatedly stressed that its ruling applied only to “general, unprotected internet searches.” The justices expressly stated they were not deciding the privacy rights of users who utilize Virtual Private Networks (VPNs), private browsing modes, or encrypted browsers. Moreover, the courts have required legitimate search warrants where investigators seek to obtain bank records, phone records, and location data.

The Next Battleground: IP Addresses and ISP Records

The Kurtz decision creates a sharp distinction that defense attorneys can use in cases involving IP addresses and ISP subscriber records (the information “behind” the IP address, such as the customer's name and address).

In Kurtz, the Court emphasized that users have a choice: they can use Google, or they can use a privacy-focused competitor (like DuckDuckGo) or offline resources . However, this logic does not apply to IP addresses. Kurtz dealt with whether the police could obtain a list of IP addresses that had searched for a particular address. It did not address whether the police could obtain the information behind the resulting IP addresses without a search warrant, and in Pennsylvania, police often use administrative subpoenas to obtain that information rather than warrants. Whether they can do that under the Pennsylvania Constitution remains questionable for the following reasons:

Necessity vs. Convenience: You cannot use the internet without an IP address. It is technologically impossible. Unlike choosing a search engine, assigning an IP address is an involuntary condition of internet access, similar to how bank records or phone numbers are necessary to participate in modern life. Pennsylvania courts have long held that citizens do have privacy rights in bank records (Commonwealth v. DeJohn) and phone records (Commonwealth v. Melilli) because they are essential services.
The “Information Behind the IP”: Kurtz dealt with the content of a search communicated to Google. ISP inquiries deal with the identity of the user maintained by the internet provider. This information is generated automatically by the ISP, not voluntarily typed out by the user.

The Takeaway

At least for now, Commonwealth v. Kurtz establishes that if you type a search into Google without privacy protections, you cannot expect that search to remain private from police. However, because the decision relies heavily on the “voluntary” nature of using Google and Google’s explicit privacy warnings, it may not extend to the mandatory, automatic records generated by simply connecting to the internet via an ISP.

If you are facing charges based on digital evidence, IP address identification, or administrative subpoenas, the specific technical details of your case matter. The law is evolving rapidly, and a nuanced defense strategy is essential.

Facing criminal charges? We can help.

If you are under investigation or facing charges involving digital evidence, search warrants, or administrative subpoenas, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.