Philadelphia Criminal Defense Blog
PA Supreme Court Fails to Reach Decision on Whether Search Warrant Required for Google’s Search Records
Criminal Lawyer Zak Goldstein
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.
Goldstein Mehta LLC Criminal Defense
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.
PA Supreme Court: Expert Testimony on “Manner of Death” Must Be Held to a Reasonable Degree of Medical Certainty
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has issued a significant decision in Commonwealth v. Fitzpatrick, ruling that expert witnesses testifying about the "manner of death" in a homicide case must hold their opinions to a "reasonable degree of medical certainty." The Court rejected the Commonwealth’s argument that a lower standard—mere probability—should apply when an expert offers an opinion on whether a death was a homicide or an accident.
This ruling is a critical victory for defendants because it prevents the prosecution from using expert witnesses who are merely guessing or who cannot stand behind their conclusions with the requisite level of professional certainty.
The Facts of the Case
The case arose from a tragic incident in 2012. On June 6, 2012, Annemarie Fitzpatrick drowned in Muddy Creek, a tributary of the Susquehanna River. Her husband, Joseph Fitzpatrick, claimed that they were riding an ATV when the vehicle flipped backwards, throwing them both into the water. He claimed he could not save her.
Police investigations later uncovered suspicious circumstances, including a note in Annemarie’s day planner reading "If something happens to me—JOE," an extramarital affair, and significant life insurance policies. Joseph Fitzpatrick was eventually charged with and convicted of first-degree murder. However, that conviction was overturned because the trial court had improperly admitted the victim's note as evidence.
As the Commonwealth prepared for a retrial, they sought to introduce a new expert witness, Dr. James Caruso. Dr. Caruso, a forensic pathologist, was set to testify that the "manner of death" was homicide rather than an accident. However, during a pre-trial hearing, Dr. Caruso admitted that he did not hold this opinion to a "reasonable degree of medical certainty." Instead, he testified that he believed it was "more likely than not" a homicide.
The trial court ruled that Dr. Caruso’s testimony was inadmissible because it failed to meet the legal standard for expert testimony. The Commonwealth appealed, and the Superior Court reversed the trial court, creating a new rule that "manner of death" opinions need only be "probable" or "sturdy" rather than reasonably certain. The defense appealed to the Pennsylvania Supreme Court.
The Legal Issue
The issue before the Supreme Court was whether expert testimony regarding the manner of death (e.g., homicide, suicide, accident) is subject to the same strict evidentiary standards as testimony regarding the cause of death (e.g., drowning, gunshot wound).
The Commonwealth argued that because a jury can determine the manner of death without expert assistance, an expert who does testify on the subject should not be held to the strict "reasonable degree of medical certainty" standard. They argued that a "more likely than not" standard was sufficient.
The Supreme Court's Decision
In a definitive opinion written by Justice Wecht, the Pennsylvania Supreme Court reversed the Superior Court and reinstated the trial court’s order excluding the expert testimony.
The Court held that all expert testimony, regardless of the topic, must be held to a reasonable degree of professional certainty. The Court explained that experts enjoy a privileged place in the courtroom and are permitted to offer opinions on ultimate issues that lay witnesses cannot. Because of this power, their opinions must be "based on a reasonable degree of medical certainty rather than upon mere speculation".
The Court explicitly rejected the Superior Court's attempt to lower the bar for manner of death testimony. The Court noted that allowing an expert to testify that a homicide was “more likely than not” (a 51% probability) would violate long-standing evidentiary rules, specifically citing the precedent in Griffin, where a 51/49 probability was deemed inadmissible.
Because Dr. Caruso admitted he could not state his opinion to a reasonable degree of medical certainty, his testimony was mere speculation in the eyes of the law and therefore inadmissible.
Key Takeaway
This case reinforces a fundamental protection for criminal defendants in Pennsylvania. The prosecution cannot bolster its case with expert witnesses who are unsure of their conclusions. If an expert is going to tell a jury that a death was a homicide, they must be able to say so with professional certainty, not just as a probability or a guess.
This decision also highlights the importance of rigorous pre-trial litigation. By challenging the expert's qualifications and the certainty of his opinion before the trial began, the defense prevented damaging, unreliable testimony from ever reaching the jury. It is always much harder to undo a wrongful conviction after the fact as appellate courts are often reluctant to overturn jury verdicts and may find harmless error. Additionally, appeals can take years, so even a successful appeal may mean the defendant has spent years in prison during the litigation before winning.
Facing Criminal Charges? We Can Help.
Goldstein Mehta LLC Criminal Defense
If you are facing criminal charges or are 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 Homicide, Aggravated Assault, Rape, and Violations of the Uniform Firearms Act. 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.
Pennsylvania Superior Court Rejects Challenge to Use of Preliminary Hearing Transcript and Related Exhibits Against Defendant at Trial
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson. The Court affirmed the defendant’s conviction based on the use of the preliminary hearing testimony and accompanying exhibits against him at trial. The Court ruled the the use of the prior sworn testimony and related exhibits did not violate the rules of evidence or the defendant’s rights under the Confrontation Clause because the defendant had a full and fair opportunity to cross-examine the witness at the preliminary hearing.
Facts and Procedural History
The police alleged the defendant exited a green Pontiac and fired multiple shots, striking the target and an innocent bystander. The target’s pregnant girlfriend initially identified the defendant and the driver from photo arrays and gave a signed statement to police.
At the preliminary hearing, however, the girlfriend largely recanted. She admitted signing the statement and the photo arrays but testified that she had been hiding and did not actually see who fired the gun. Before trial, she became unavailable despite the Commonwealth’s efforts to find her. The Commonwealth sent police officers to try to find her and bring her to court, but they were unsuccessful, and she never appeared for trial. The trial court therefore permitted the Commonwealth to introduce her preliminary hearing testimony, her signed police statement, and the photo arrays despite the defendant’s hearsay and confrontation objections.
A jury convicted the defendant of two counts of attempted murder, two counts of aggravated assault, and multiple firearm offenses. The trial court sentenced him to an aggregate 25–50 years’ incarceration. He appealed.
The Issues on Appeal
Proceeding pro se, the defendant argued that the trial court erred in admitting the girlfriend’s signed police statement and her photo array identifications as substantive evidence at trial. He contended that their admission violated both Pennsylvania’s evidentiary rules against hearsay and his constitutional right to confront the witnesses against him.
The Pennsylvania Superior Court’s Decision
The Superior Court affirmed. The panel emphasized that:
Pa.R.E. 803.1 permits admission of prior inconsistent statements if the declarant testified and was subject to cross-examination at the prior proceeding.
Pa.R.E. 804(b)(1) allows former testimony to be admitted when the witness is unavailable, provided the opposing party had a similar motive and opportunity to cross-examine.
The girlfriend testified at the preliminary hearing, was confronted with her prior statements by the defense attorney, and was subject to cross-examination. This satisfied both the Pennsylvania Rules of Evidence and the Confrontation Clause.
The Court relied heavily on Commonwealth v. Stays, where a similar recantation and later unavailability led to admission of prior statements. The Court also explained that even if admitting the girlfriend’s written police statement had been error, it was harmless, because her preliminary hearing testimony already included a verbatim reading of that statement.
The Takeaway
This case highlights the importance of preliminary hearing testimony in Pennsylvania criminal cases. Even when a witness recants at the hearing and later becomes unavailable, their prior identifications and statements may still be admitted at trial if the defense had an opportunity to cross-examine them. For defendants, this means a recantation does not necessarily prevent the jury from hearing the original identification.
Facing Criminal Charges or Appealing a Criminal Case?
Goldstein Mehta LLC Criminal Defense Attorneys
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 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 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.
PA Superior Court: Forwarded Emails May Qualify as Duplicates for Best Evidence Rule
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Fischer, holding that the trial court properly admitted forwarded emails as duplicates under the best evidence rule even though forwarded emails can easily be tampered with or forged. The Court held that the best evidence rule did not prohibit the admission of the emails.
The Facts of the Case
The defendant and the complainant, his ex-fiancée, were involved in a ten-year relationship that ended prior to August 2020. They shared a child, who was two years old at the time of the events in question. Between August and September 2020, the defendant allegedly engaged in repeated communications directed toward the complainant. The communications involved making phone calls to the complainant, sending text messages and emails, and making social media posts tagging the complainant. On one occasion, the defendant made 100 calls to the complainant in a single day, which seems excessive.
The communications included threats and manipulative language. For example, one email stated: “If you don’t ensure our daughter is reunited with me this evening, your life will change forever tomorrow, as will your mother’s. Tread carefully. You’re being watched.”
At trial, the Commonwealth relied on forwarded emails from the complainant. The complainant had forwarded the emails from one account to another and then printed out the emails and given them to the police. The prosecution introduced them into evidence as evidence of the defendant’s harassing conduct.
The Commonwealth charged the defendant with three counts of harassment and one count of stalking. A jury convicted him of two harassment charges but acquitted him of stalking and one of the three harassments counts. The trial court sentenced the defendant to two years of probation with restrictive conditions. The defendant appealed, arguing that the trial court erred in admitting the forwarded emails because they should not have been admissible under the Best Evidence Rule.
The Superior Court Appeal
The defendant argued that the forwarded emails were not admissible for three reasons.
They were not “originals” or “duplicates” under the Pennsylvania Rules of Evidence.
The forwarding process allowed for potential manipulation of the content.
Omitted portions of the email correspondence removed necessary context from the evidence.
The trial court overruled these objections, admitting the emails as “duplicates” under Pennsylvania Rule of Evidence 1001(e), which defines a duplicate as a copy produced through an electronic or other reliable process that accurately reproduces the original.
The Superior Court affirmed the trial court’s decision, holding that the forwarded emails were properly admitted as duplicates. The Court’s reasoning was based on the following:
Duplicate Status: The Court determined that the forwarded emails met the definition of duplicates because they were created through an electronic process that accurately reproduced the original content, including the sender’s and recipient’s email addresses, timestamps, and subject lines. The forwarded emails contained more detailed metadata than the screenshots at issue in Commonwealth v. Talley, a leading case on the Best Evidence Rule.
Authenticity: The defendant failed to raise specific challenges to the authenticity of the emails. The complainant authenticated the forwarded emails through her testimony, testifying that they were identical to the messages she received from the defendant. Thus, this claim was waived, and it would have been rejected anyway because the complainant could authenticate the emails as the emails that she received.
Fairness: The Court rejected the defendant’s argument that the forwarded emails were unfairly admitted because other communications were omitted. The Court noted that the defense could have addressed these omissions through cross-examination or by introducing additional evidence.
Precedent: The Court relied on the Pennsylvania Supreme Court’s decision in Talley, which held that screenshots of text messages are admissible as duplicates under the Best Evidence Rule if created through a reliable process and authenticated at trial.
Ultimately, the Superior Court held that the forwarded-and-then-printed emails were duplicates of the originals and that forwarding an email and then printing it was basically the same thing as screenshooting it. In Talley, the Supreme Court ruled that screenshots of text messages were admissible as duplicates.
The problem is that screenshotting in fact creates a duplicate, whereas a forwarded email is not the exact same thing as the original email. It is easy for someone to change the text in the forwarded email, and one of the judges issued a concurrence suggesting that she would not have allowed for the admission of the emails because the risk of manipulation was too high.
In this case, however, the Court ruled that the emails were properly admitted and that any challenge to whether they were real should be decided by the fact-finder rather than as a challenge to their admissibility. The defense was free to cross-examine the complainant on the fact that she did not have the original emails available and then argue that they were fake. The problem with this analysis is that judges and juries are often too quick to rely on electronic evidence like text messages and emails that looks real even when it is not. It takes only a matter of seconds to edit or forge a text message or email, and unless someone is particularly savvy with technology, they may not realize just how easy it is to forge this type of evidence. Further, it is usually not particularly difficult to obtain actual records from the service provider to show that the screenshots or forwarded messages are real. Unfortunately, the courts have generally rejected the idea that the prosecution should have to obtain solid proof that the images are real, instead shifting the burden to the defense to prove that they are fake. Hopefully, the defendant will seek further review in this case. The appellate courts may also begin to reevaluate the low standard for the admissibility of electronic evidence as it becomes clearer that this type of evidence can be fabricated in a matter of seconds.
Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.
Goldstein Mehta LLC Criminal Defense Attorneys
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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.