Philadelphia Criminal Defense Blog

Zak Goldstein 5/23/23 Zak Goldstein 5/23/23

PA Superior Court: No Reasonable Expectation of Privacy in IP Address or Google Search History

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Kurtz, allowing police to use a very general warrant to obtain a defendant’s IP address and Google search history in order to solve an alleged rape. The Court also approved of the use of cell tower data dumps in order to connect suspects to potential locations. In this case, the Court found both that the defendant did not have a reasonable expectation of privacy in this information which he shared with Google as well as his cell carrier, and it also found that the search warrants obtained by the police were acceptable even though they had very little reason to believe the defendant would have used Google as part of committing the crime.

The Facts of Commonwealth v. Kurtz

In July 2016, a woman went to sleep and awoke to her dogs barking. When she went to investigate, a man jumped out, tied her up, and dragged her to his van. The man raped her and then released her into a field by her house. She eventually found help and called 911, and emergency personnel took her to the hospital. The medical staff at the hospital collected DNA samples. The police conducted a very thorough investigation; they executed a search warrant on Google demanding all of the IP addresses of anyone who had searched the victim’s name or address during the week leading up to the attack. Google disclosed that someone with a particular IP address had conducted two searches for the victims’ address hours before the incident.

Police identified the IP address as belonging to the defendant, who was actually the woman’s husband’s co-worker at the prison, and conducted surveillance. During the surveillance, police recovered the defendant’s used cigarette butts and obtained DNA from them. The officers compared the DNA collected from the victim and the defendant and found a match. The police arrested him, and he admitted to the rape as well as numerous other incidents involving other victims. All four of the other incidents had similar characteristics. In two cases, the defendant had also raped the victims, and the DNA collected in those cases matched the defendant.

The Defendant’s Pre-Trial Motions

The defendant filed a motion to suppress the evidence of the Google searches of the victim’s residence. He also filed a motion in limine to preclude the Google searches, alleging that the Commonwealth’s mishandling of the evidence prevented him from verifying its authenticity. He filed a second motion in limine to suppress the “tower dump” evidence obtained from AT&T. The motion alleged that the Commonwealth illegally obtained the records because the court order used the “Wiretap Act” instead of a warrant supported by probable cause and individualized suspicion that the defendant was engaged in criminal activity. The trial court denied all three motions. At trial, the jury found the defendant guilty on all charges. The trial court sentenced the defendant to an aggregate sentence of 59 to 280 years’ imprisonment.

The defendant raised various issues for appeal including the issues regarding the Google searches and cell phone tower dumps. First, he challenged whether the trial court erred in allowing the admission of unauthenticated, illegally obtained evidence because the investigatory search warrant lacked probable cause, and second, he challenged whether the trial court erred by allowing the admission of cell tower evidence that was the product of an invalid search warrant.

The Google Searches

The Superior Court rejected a number of challenges to the Google Search evidence. First, the court approved of the search warrant even though there was no direct evidence showing that the attacker had conducted a Google search prior to the execution of the warrant. The Court reasoned that the details of the attack made it likely that someone had searched for the victim’s address online in order to plan the attack and that most people use Google for internet searches. Police do not need an absolute certainty that they will find evidence for a search warrant to be valid; they just need probable cause, and here, the Court found probable cause to believe the attacher could have conducted a Google search.

Second, the Court also found that the defendant did not have a reasonable expectation of privacy in his Google search history or IP address because both of those things are shared with third parties. An IP address is an address assigned by the internet provider that identifies which internet account accessed another network. Therefore, it is always shared with a thirty party. Similarly, a Google search by definition has been shared with Google. Things that are shared with third parties often have less protection under the 4th Amendment than things that someone has kept private. In this case, the defendant chose to share his searches and IP address with Google, so they were not kept private. Therefore, police did not need a warrant to get that information. Courts have held that police need a search warrant to track someone’s real-time location through GPS data, but that is because such a search is so intrusive that even though data has been shared with a third party, society would generally recognize that it should be private.

Finally, the defendant argued that the data should be suppressed because the police had accidentally destroyed some of the metadata that accompanied the Google search results. Metadata might have shown that the data was tampered with or fabricated, but in this case, the defendant had no reason to believe that it was. Google certified that the data was correct, and so without some evidence of bad faith, the defendant was not entitled to the suppression of the evidence.

The Cell Tower DATA

In this case, police had also conducted cell tower dumps. A cell tower dump is where the police determine every device that connected to a cell tower during a particular period and then see if there are any devices of interest. In this case, they had done that for the towers closest to some of the crime scenes and found that the defendant’s phone had been nearby. The defendant challenged this procedure because the police had not obtained search warrants for the cell site data. Instead, they had issued court orders which did not contain explicit findings of probable cause. The Superior Court rejected the argument, however, finding that the orders asked for information only from a single tower and for a limited period of time. They did not ask for ongoing, real-time monitoring of a defendant’s individual cell phone, so the privacy concerns involved were not as strong. Therefore, the Court affirmed the constitutionality of the searches. The defendant’s conviction will stand.

Some of these issues deserve further review and consideration. For example, allowing the police to obtain a defendant’s Google search history without a warrant raises major privacy concerns. Pennsylvania courts have often rejected warrantless searches even of things shared with third parties like bank records and cell phone records. But bad cases often make bad law - in this case, the defendant was charged with horrific rapes, and the evidence against him was overwhelming, so it becomes very difficult for a court to seriously entertain suppressing the evidence or granting him a new trial. Nonetheless, it has become almost impossible to function in society without conducting a Google search, using Google Maps, storing data on Google drive, or communicating with a Google email account, so a rule that allows the police to obtain Google data without a warrant seems unreasonable. Hopefully, the defendant will seek further review, or a case with less horrible facts will warrant the courts to reconsider.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

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. 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 5/21/23 Zak Goldstein 5/21/23

PA Supreme Court: Adult May Be Prosecuted for Decades Old Crime Committed While Juvenile

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Armolt, holding that an adult defendant may be prosecuted in adult court for a crime he committed twenty years earlier as a juvenile. This case illustrates a serious problem with the criminal justice system. Had the defendant been prosecuted in juvenile court twenty years earlier, he likely would have received probation and some kind of treatment program. But because prosecutors did not file charges until twenty years later, he received a permanent, adult record, and the judge sentenced him to state prison. Nonetheless, the Supreme Court upheld this procedure and concluded that only the legislature could address the issue.

The Facts of Armolt

In Armolt, the defendant was convicted of sexually assaulting his step-sister while he was a minor. He, his brothers, and his mother moved in with the complainant and her father when he was a minor in the 1980s. According to the complainant, he and his brothers began sexually assaulting her while she was between the ages of seven and sixteen. She reported the abuse to the State Police at some point in 1996, but the police did not file charges, and she remained in the home. She did not alert any other authorities for another three decades.

In 2016, the complainant called the State Police to discuss a dispute with the defendant and his brothers over the inheritance of property from her father, who had recently died. This conversation led to her disclosing the abuse to a state trooper. The state trooper conducted an investigation, interviewed a number of witnesses, and recommended that prosecutors file charges. The Commonwealth eventually filed charges in 2018. Accordingly, the police arrested the defendant in 2018 and charged him as an adult with rape, involuntary deviate sexual intercourse, aggravated indecent assault, and indecent assault for crimes he committed thirty years earlier when he was a minor.

The trial court denied various pre-trial motions. The defendant proceeded by way of jury trial, and the jury found him guilty. The trial court sentenced him to 4 - 8 years’ incarceration in state prison.

The Appeal

The defendant appealed, arguing that he should not have been prosecuted as an adult because he committed the crimes when he was a juvenile. Specifically, in the trial court and on direct appeal to the Superior Court, he argued only that the juvenile court had jurisdiction because he committed the crimes as a minor. The Superior Court affirmed, and the defendant sought review in the Pennsylvania Supreme Court. The Supreme Court agreed to review the issue and granted his petition for allowance of appeal.

The Supreme Court, however, also affirmed. It found that the defendant was properly tried in adult court under the applicable statutes and that although his constitutional claims were interesting, he had waived those claims on appeal by failing to raise them in the trial court and Superior Court.

With respect to the statutory claim, the Supreme Court found that Pennsylvania law clearly directs that an adult who is prosecuted for crimes committed while a juvenile should be prosecuted as an adult in the Court of Common Pleas. The Court noted that the Juvenile Act conveyed limited jurisdiction to juvenile courts, the scope of which applies “exclusively to . . . [p]roceedings in which a child is alleged to be delinquent or dependent.” 42 Pa.C.S. §6303(a)(1) (emphasis added). The Act explicitly defines a “child” as an individual who “is under the age of 18 years” or “is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years.” Id. § 6302.10

Thus, the Act plainly extends juvenile jurisdiction to offenders who committed an offense while under the age of eighteen only if they are prosecuted before turning twenty-one. Because the Court found no ambiguity in this definition, it found itself bound to abide by the letter of the statute. See 1 Pa.C.S. §1921(b). Further, the statutes provide that the juvenile court loses jurisdiction when a defendant turns 21. Accordingly, if the defendant’s argument were correct, then he could not be prosecuted at all because the juvenile court would not have jurisdiction, either.

The Court rejected the defendant’s other arguments. It found that he failed to present any evidence that the Commonwealth acted in bad faith by waiting to charge him, and that although he had raised a number of interesting constitutional challenges in the Supreme Court, he had failed to raise these challenges in the lower courts. Therefore, the Court found that he waived those claims by failing to raise them earlier.

The Court therefore denied the appeal. It did recommend that the legislature consider whether the system is really fair to adults who are prosecuted for crimes committed decades earlier when they were minors, but it found no real dispute that the statutory language directs such a result. The Court did suggest that it may be willing to consider a properly preserved challenge as to whether an adult defendant may be sentenced to prison for crimes committed as a juvenile, but it found that this case was not the right case for deciding that issue.

Facing 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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, VUFA, and Murder. We have also won criminal appeals and PCRAs in state and federal court. 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 5/12/23 Zak Goldstein 5/12/23

Not Guilty: Jury Acquits Attorney Goldstein’s Client of Indecent Assault

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal for a client charged with multiple counts of indecent assault. In Commonwealth v. L.B., police arrested and charged L.B. with indecent assault as a felony of the third degree and indecent exposure for one complainant as well as indecent assault as a misdemeanor of the second degree for a second complainant. L.B. worked as a massage therapist, and two women accused him of touching them inappropriately during massages.

The first complainant was a regular patient of the client’s. She claimed that L.B. sexually assaulted her during one of the massages by touching her inappropriately and masturbating in front of her. L.B. denied the accusation to the police, and the police initially declined to file charges.

That decision changed, however, when a second complainant made similar allegations against L.B. She claimed that she also went to see him for a massage. During the massage, he began to touch her inappropriately. Specifically, she alleged that he touched too far up her legs and eventually touched the outside of her vagina. She then left, and later that night, she sent L.B. a text message accusing him of assaulting her.

Once the second complainant made her allegations, the police arrested L.B. Prosecutors charged him with indecent assault as a felony of the third degree for allegedly putting his fingers in the first complainant’s vagina and indecent assault as a misdemeanor for touching the outside of the second complainant’s vagina.

Sexual assault cases involving more than one complainant are extremely difficult to defend. Although the jury should consider each allegation separately, it becomes very difficult for jurors to properly evaluate the evidence when more than one person makes an allegation. Judges routinely permit the Commonwealth to try these cases together even though it makes it very difficult to receive a fair trial, and in this case, the defense’s motion to sever the cases was denied.

Fortunately, L.B. retained Attorney Goldstein for trial. L.B. proceeded by way of jury trial, and Attorney Goldstein successfully argued to the jury that the complainants had fabricated the assaults. Attorney Goldstein’s cross-examination established that the first complainant had continued trying to make appointments for massages at the same spa after the alleged assault, failed to tell anyone for about a month, failed to warn other people she knew went there for massages that they should not go there anymore, and that she had hired a lawyer and sued the spa before she even went to the police.

Similarly, cross-examination revealed that the second complainant had also hired the same lawyer and sued the spa, failed to tell the police for a few weeks, and made allegations that were not even necessarily an indecent assault. Additionally, she had given L.B. a large tip for the massage.

Given the financial motive, inconsistencies, and strange behavior, the complainants’ stories were difficult to believe. There was also no other evidence, but sexual assault cases can be very difficult to defend. There is usually no other evidence that something happened other than the complainant’s testimony. Therefore, Pennsylvania law allows the prosecution to bring charges and for a jury to convict without any other evidence if the jury believes the testimony beyond a reasonable doubt. Further, prosecutors and judges will repeatedly instruct the jury throughout the trial that they do not have to have any other evidence other than oral testimony in order to convict. Many jurors also have trouble believing that someone could lie about something so serious.

In this case, however, Attorney Goldstein’s cross-examination revealed that the stories just were not credible. The jury deliberated for a few hours and then acquitted L.B. of all charges. Had he been convicted, he would have been facing a state prison sentence and Megan’s Law registration. Now, he has the right to have all of the charges expunged.

If you are facing allegations of sexual misconduct or sexual assault, it is extremely important that you retain counsel with experience defending against these types of allegations. There are often critical motions which need to be filed and important investigations that need to be conducted in order to obtain exculpatory evidence. Most importantly, successful cross-examination of the witnesses in these cases requires a great deal of experience, sensitivity, and skill. Fortunately, L.B. retained Attorney Goldstein, and Attorney Goldstein was able to obtain a full acquittal.

Facing criminal charges? We can help.

Zak Goldstein 11/27/22 Zak Goldstein 11/27/22

PA Superior Court Defines "Nudity" for Transmission of Sexually Explicit Images by Minor Statute

The Superior Court has decided the case of In re: T.Q.B., rejecting a sufficiency challenge by the juvenile defendant who argued that because the images in question did not contain photos of the complainant’s actual nipple but instead showed only the bottom of her breast, they did not qualify under the statute’s definition of nudity. This is a concerning decision because such a broad interpretation of the statute allows for juvenile adjudications even where the person in the image that was transmitted had clothing on.

THE FACTS OF IN RE: T.Q.B.

On October 18, 2020, T.Q.B. went live on Instagram but told the victim, A.D., that the video they were making was private. T.Q.B. convinced A.D. to lift up her shirt and expose her bra and the bottom of her breast, below the nipple. T.Q.B. was 13 at the time of the video, A.D. was 12 years old at the time of the video and suffered from intellectual disabilities . The video was made public and shared for several months despite attempts by A.D.’s mother to remove the video from the internet. The video was also shared amongst peers at their school. Eventually, the police became involved, and they charged T.Q.B. with transmission of sexually explicit images by a minor and cyber harassment of a minor.

The Crimes Charged

The statutes define the crimes as:

§ 6321. Transmission of sexually explicit images by minor.
(a) Summary offense.--Except as provided in section 6312 (relating to sexual abuse of children), a minor commits a summary offense when the minor:
(1) Knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of himself.
(2) Knowingly possesses or knowingly views a sexually explicit image of a minor who is 12 years of age or older.
(b) Misdemeanor of the third degree.--Except as provided in section 6312, a minor commits a misdemeanor of the third degree when the minor knowingly transmits, distributes, publishes or disseminates an electronic communication containing a sexually explicit image of another minor who is 12 years of age or older.
(c) Misdemeanor of the second degree.--Except as provided in section 6312, a minor commits a misdemeanor of the second degree when, with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, the minor:
(1) makes a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor; or
(2) transmits, distributes, publishes or disseminates a visual depiction of any minor in a state of nudity without the knowledge and consent of the depicted minor.
(d) Application of section.--This section shall not apply to the following:
(1) Conduct that involves images that depict sexual intercourse, deviate sexual intercourse or penetration, however slight, of the genitals or anus of a minor, masturbation, sadism, masochism or bestiality.
(2) Conduct that involves a sexually explicit image of a minor if the image was taken, made, used or intended to be used for or in furtherance of a commercial purpose.
(e) Forfeiture.--Any electronic communication device used in violation of this section shall be subject to forfeiture to the Commonwealth, and no property right shall exist in it.
(f) Diversionary program.--The magisterial district judge or any judicial authority with jurisdiction over the violation shall give first consideration to referring a person charged with a violation of subsection (a) to a diversionary program under 42 Pa.C.S. § 1520 (relating to adjudication alternative program) and the Pennsylvania Rules of Criminal Procedure. As part of the diversionary program, the magisterial district judge or any judicial authority with jurisdiction over the violation may order the person to participate in an educational program which includes the legal and nonlegal consequences of sharing sexually explicit images. If the person successfully completes the diversionary program, the person's records of the charge of violating subsection (a) shall be expunged as provided for under Pa.R.C.P. No.320 (relating to expungement upon successful completion of ARD program).
(g) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
"Disseminate." To cause or make an electronic or actual communication from one person, place or electronic communication device to two or more other persons, places or electronic communication devices.
"Distribute." To deliver or pass out.
"Electronic communication." As defined in section 5702 (relating to definitions).
"Knowingly possesses." The deliberate, purposeful, voluntary possession of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent possession of such an image.
"Knowingly views." The deliberate, purposeful, voluntary viewing of a sexually explicit image of another minor who is 12 years of age or older. The term shall not include the accidental or inadvertent viewing of such an image.
"Minor." An individual under 18 years of age.
"Nudity." The showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state.
"Publish." To issue for distribution.
"Sexually explicit image." A lewd or lascivious visual depiction of a minor's genitals, pubic area, breast or buttocks or nudity, if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such nudity.
"Transmit." To cause or make an electronic communication from one person, place or electronic communication device to only one other person, place or electronic communication device.
"Visual depiction." A representation by picture, including, but not limited to, a photograph, videotape, film or computer image.

(a.1) Cyber harassment of a child.--
(1) A person commits the crime of cyber harassment of a child if, with intent to harass, annoy or alarm, the person engages in a continuing course of conduct of making any of the following by electronic means directly to a child or by publication through an electronic social media service:
(i) seriously disparaging statement or opinion about the child's physical characteristics, sexuality, sexual activity or mental or physical health or condition; or
(ii) threat to inflict harm.
(2) (i) If a juvenile is charged with a violation of paragraph (1), the judicial authority with jurisdiction over the violation shall give first consideration to referring the juvenile charged with the violation to a diversionary program under Pa.R.J.C.P. No. 312 (relating to Informal Adjustment) or No. 370 (relating to Consent Decree). As part of the diversionary program, the judicial authority may order the juvenile to participate in an educational program which includes the legal and nonlegal consequences of cyber harassment.
(ii) If the person successfully completes the diversionary program, the juvenile's records of the charge of violating paragraph (1) shall be expunged as provided for under section 9123 (relating to juvenile records).

The trial court adjudicated the juvenile delinquent of both offenses, and the juvenile appealed.

THE SUPERIOR COURT’S DECISION

First, the appellant challenged the ruling of “nudity” finding for 18 Pa.C.S. § 6321(c), arguing that what the video portrayed was not nudity per the statute and precedent. The crux of the appellant’s argument was that since the nipple was not exposed, this did not constitute nudity. The Superior Court acknowledged the limited precedent on the matter and focused primarily on the statute’s wording and definition. 18 Pa.C.S. § 6321(g) defines nudity as “the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple[.]” The Superior Court determined that because the bottom of the breast was exposed, this is below the top of the nipple and thus met the definition of “nudity” for the purposes of the statute and the juvenile court did not err in its determination.

Second, the appellant challenged the ruling that the video state was “seriously disparaging” and that there was insufficient evidence due to no showing of a physical manifestation of harm to meet 18 Pa.C.S. § 2709(a)(1). The Superior Court utilized the totality of the circumstances to determine that the repeated pressure for A.D. to expose herself, the lying about the video’s privacy, and the refusal to take the video down meant it was to be harassing in nature. The Superior Court reiterated that “[s]eriously disparaging statement or opinion” is that which “is intended to and under the circumstances is reasonably likely to cause substantial emotional distress to a child of the victim’s age and which produces some physical manifestation of the distress.” 18 Pa.C.S. § 2709(a)(1)(f). The Superior Court determined that an actual physical manifestation does not need to be nightmares, depression, or another physical ailment, but that A.D.’s humiliation is enough for physical manifestation. They also stated that it was reasonably likely due to the victim’s age and mental capacity to harm A.D. in conjunction with the extended period of time in which the video was allowed to be publicly viewed and circulated. The Superior Court deemed that the juvenile court did not err in finding that the appellant’s conduct was sufficient to be convicted on 18 Pa.C.S. § 2709(a)(1).

These are very, very broad readings of both statutes, and it is very possible that further appeals could take place as the Superior Court may consider granting en banc argument. The Supreme Court may also consider granting an appeal to review these definitions.

FACING 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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals in state and federal court. 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.