Philadelphia Criminal Defense Blog
PA Supreme Court: 4th Amendment Does Not Bar Computer Repair Technicians From Showing Police Your Illegal Files
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Shaffer. The Court held that the Fourth Amendment does not prevent computer repair technicians who find child pornography on a computer brought in for repair from showing that illegal material to the police. The Constitution also does not prohibit the police from looking at what the repair technicians found without a search warrant so long as the police do not attempt to view additional files and portions of the hard drive until they have obtained a search warrant. The Supreme Court reaffirmed its prior holdings that the Fourth Amendment only provides protection against governmental action. However, the Court did hold that individuals maintain privacy interests in their computer files even when they are turned over to a private commercial establishment.
Commonwealth v. Shaffer
The defendant brought his laptop computer to a computer repair shop called CompuGig. In order to obtain repair services, the defendant was required to complete CompuGig’s intake form which asked what problems the customer was experiencing. This form listed several options. The defendant marked the boxes indicating “Spyware/virus” and “Can’t get to Internet.” He also provided his login password and told the employee that his son downloaded some things and now there were a lot of pop-ups and that the internet had stopped working.
After conducting a diagnostic testing, one of CompuGig’s technicians believed that the defendant’s computer had a failing hard drive. The technician called the defendant and asked if he would consent to replacing the hard drive. The defendant consented. The technician also took an image of the hard drive so that he could transfer it to the defendant’s new hard drive. However, the technician was having difficulty transferring the files on the defendant’s old hard drive to his new one. The technician began to manually open the files on the hard drive and copy them. While doing this, the technician uncovered what he believed to be sexually explicit photos of children. It is important to note that the technician was not searching for this material and had never been asked by law enforcement to look for evidence of child pornography. After discovering this contraband, the technician notified his boss, and the store called the police.
Later that afternoon, Officer Maloney of the Cranberry Township Police Department arrived at CompuGig. The store owners advised Officer Maloney that the technicians found explicit images of young girls on the defendant’s laptop and took the officer to the room where the technician had been working on the computer. Officer Maloney then asked to see the images that the technician had found. The technician, using the “exact route taken to find the images” which he had used earlier, showed Officer Maloney the pictures. After viewing these images, Officer Maloney directed the technician to “shut down the file,” and he seized the laptop, external hard drive copy, and power cord.
Detective Irvin of the Cranberry Township Police Department went to the defendant’s home and questioned him. The defendant admitted to having some images on his computer depicting children as young as eight years old in sexually explicit positions. He also identified the folders where these images were stored. Detective Irvin met with the defendant again and obtained a written inculpatory statement regarding the pictures on his computer.
Prosecutors charged the defendant with possession of child pornography and criminal use of a communication facility. The defendant then filed a pretrial omnibus motion to suppress the contraband images discovered on the hard drive of his laptop computer.
Can Police Search Your Computer Without A Warrant If The Store Found the Illegal Images First?
In his Motion to Suppress, the defendant argued that the police illegally searched his computer when Officer Maloney directed the technician to open the defendant’s computer files and display the suspected contraband images and then subsequently seized the laptop and the copy of the external hard drive. Further, he argued that the police conduct constituted a warrantless search of his laptop in violation of his reasonable expectation of privacy, as well as a trespass upon his property in violation of both the Pennsylvania and United States Constitutions. He also argued that his statements that he made to the detective were the fruit of the poisonous tree and should also be suppressed.
In response, the Commonwealth argued that the defendant abandoned his expectation of privacy in the computer files stored on the laptop. Notably, the Commonwealth did not argue the private search doctrine. Instead, the Commonwealth focused primarily on the Pennsylvania Superior Court’s decision in Commonwealth v. Sodomsky. The facts of Sodomsky were very similar to those in the defendant’s case. In Sodomsky, the Superior Court held that the defendant in that case had no reasonable expectation of privacy in his illegal computer files. The Sodomsky Court held that individuals do maintain a privacy interest in some things that are accessible to the public and thus can be constitutionally protected. Therefore, it is a very fact specific inquiry to determine whether a defendant abandoned his privacy interest. In Sodomsky, the Superior Court held that the defendant abandoned his interest because the computer employees informed him that the operability of his computer would be tested and that he did not inquire as to the manner of testing or restrict the employee’s access to the location of the illicit files. They also emphasized that the defendant did not delete the photos from his computer even though he turned it over to the police.
The trial court denied the defendant’s motion to suppress. The trial court held that the defendant abandoned his expectation of privacy when he requested repairs on his computer related to complaints of a virus and an inability to use the Internet and consented to the replacement of his hard drive. The trial court also rejected the defendant’s trespass argument because the technician was engaged in conduct permitted by the defendant when the files were discovered and thus there was no trespass on the defendant’s effects. The defendant then proceeded by way of a bench trial where he was found guilty. He was sentenced to six to twelve months of incarceration, followed by 156 months of probation. The defendant then filed a timely appeal.
The Superior Court’s Decision
The Superior Court affirmed the trial court’s decision. The Superior Court focused primarily on the Sodomsky decision. The defendant filed an appeal to the Pennsylvania Supreme Court and the Court granted his petition for allowance of appeal to determine whether the defendant abandoned his expectation of privacy in in the computer.
What is the Private Search Doctrine?
The Fourth Amendment applies only to the government. Thus, a criminal defendant cannot successfully argue that a private citizen, while acting in a purely private capacity, violated his or her constitutional rights when that person conducted a search and seizure of a defendant’s property. The United States Supreme Court has held that the Fourth Amendment is only implicated “if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” In other words, if a private party searches a defendant’s property, and the government does not exceed the private party’s search, then a defendant cannot claim that their Fourth Amendment rights were violated. Pennsylvania also follows the Private Search Doctrine as discussed in Commonwealth v. Corley.
The Pennsylvania Supreme Court’s Decision
The Pennsylvania Supreme Court affirmed the trial court’s denial of the defendant’s motion to suppress. As a preliminary matter, the Pennsylvania Supreme Court held that defendants maintain privacy interests in their computer files even when turned over to a private company. However, the Pennsylvania Supreme Court held that even though the defendant maintained a privacy interest in the files, because a non-governmental actor discovered them, the Fourth Amendment could not provide relief to him.
The Commonwealth had not not argued the Private Search Doctrine at the motion to suppress, but the Pennsylvania Supreme Court held that it could still apply the doctrine to the defendant’s case. In the defendant’s case, the Court found it of no consequence that Officer Maloney asked the technician to show him the illicit files because the technician had already discovered them. Therefore, the defendant’s privacy interest in them had already been compromised. As such, he was not entitled to relief, and consequently the defendant will not get a new trial.
Facing criminal charges? We can help.
Philadelphia Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
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. 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.
Not Guilty – Attorney Goldstein Wins Acquittal in Possession with the Intent to Deliver Case
Philadelphia Criminal Defense Attorney Zak Goldstein
Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a full acquittal in the case of Commonwealth v. D.V. following a bench trial in the Philadelphia Court of Common Pleas. The case involved charges of Possession with the Intent to Deliver and Knowing and Intentional Possession of a controlled substance.
In D.V., police officers alleged that they set up a narcotics surveillance in the Kensington area. Two veteran narcotics officers parked their car at an area known for a high level of drug sales and began watching the corner. Shortly thereafter, they claimed to have seen the defendant standing at the intersection right near their car. The defendant then allegedly engaged in three hand to hand transactions with alleged buyers in which the officers claimed that they saw the defendant accept money from the individuals, cross the street to what appeared to be a stash location, retrieve small objects consistent with drug packaging, and then provide those objects to the alleged buyers.
All three alleged buyers left the area shortly after the hand-to-hands and were promptly stopped by backup officers and found to be in possession of various controlled substances like heroin, crack, and marijuana. After arresting the buyers, the officers attempted to arrest D.V.. They claimed, however, that as they pulled up, D.V. took off running. They chased him and caught him after he fell. When they arrested him, he apparently had matching drugs and a large amount of money on him. They also recovered additional drugs from the stash location.
D.V. retained Attorney Goldstein for trial and elected to have the judge decide the case instead of a jury. Although the officer’s testimony, if believed, certainly would have been enough evidence to convict D.V. due to the number of alleged transactions and the presence of matching drugs on the buyers and seller, Attorney Goldstein was able to destroy the officer’s credibility on cross-examination.
First, Attorney Goldstein highlighted that the claimed locations of the arrests of the buyers made absolutely no sense because they were all allegedly arrested within eyesight of the corner where the defendant was supposedly selling drugs. Thus, if the defendant had really been out there selling drugs, he would have seen the buyers get arrested and been able to leave before engaging in more sales.
Second, Attorney Goldstein highlighted discrepancies between the officer’s testimony at the preliminary hearing and at trial. At the preliminary hearing, the officer testified that he had not been able to see the defendant actually reach into the stash location because it was behind a building, but he knew that it was used as a stash from prior arrests. At trial, he claimed that he could actually see into the location and see the defendant pick up objects.
Third, Attorney Goldstein highlighted the fact that D.V. sustained severe injuries to his face and teeth when arrested. Although the police claimed that these injuries occurred as the result of a fall, it was clear from photos taken shortly taken after the incident that it was unlikely that D.V. was injured from falling. Further, the officers’ explanations for the injuries were inconsistent and contradictory on cross examination.
Finally, Attorney Goldstein introduced evidence that one of the backup officers involved in the case had recently been arrested by the Pennsylvania State Police and that other officers had previously been suspended for police brutality allegations.
After the judge viewed the injury photos, heard the cross-examination, and saw that the police story just did not add up, the judge concluded that she had reasonable doubt and found D.V. not guilty of all charges.
Facing criminal charges? We can help.
Demetra Mehta and Zak Goldstein - Philadelphia 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 state and federal 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 First-Degree 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.
United States v. Gamble: US Supreme Court Declines To Provide State/Federal Double Jeopardy Protections
Philadelphia Criminal Defense Lawyer Zak Goldstein
The United States Supreme Court has decided the case of Gamble v. United States. This decision upholds the concept of dual sovereignty which, for purposes of criminal law, allows both the federal government and a state government to prosecute a defendant for the exact same crime. It therefore remains the law that a criminal defendant cannot claim the protections of double jeopardy if he or she was already prosecuted at the state level if the federal government is unhappy with the result and decides to file charges.
Gamble v. United States
In November 2015, a police officer in Mobile, Alabama pulled the defendant over for a damaged headlight. When the officer approached the defendant, he smelled marijuana. The officer searched Gamble’s car, and he found a loaded 9mm handgun. The defendant had previously been convicted of second-degree robbery, and thus he was prohibited from possessing a firearm. At his trial, the defendant pleaded guilty to a charge of violating Alabama’s felon-in-possession-of-a-firearm statute.
After his plea, federal prosecutors then indicted him for the same instance of possession under federal law. The defendant then filed a motion to dismiss, arguing that the federal indictment was for the same offense as the one at issue in his state conviction and violated his double jeopardy rights as provided by the Fifth Amendment to the United States Constitution. The Federal District Court denied his motion, invoking the dual-sovereignty doctrine. The defendant then pleaded guilty to the federal offense, but appealed on double jeopardy grounds. The Eleventh Circuit Court of Appeals affirmed the decision. The defendant then filed a writ of certiorari to the United States Supreme Court, and the justices agreed to hear the case.
What is Double Jeopardy?
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same criminal episode. The basic premise behind the Double Jeopardy Clause is that the government only gets one opportunity to convict a defendant, as such if the defendant is acquitted of a crime then the government cannot continue putting him on trial until they secure a conviction. A conviction also triggers Double Jeopardy protection which is what the defendant in Gamble argued before the United States Supreme Court.
What is The Dual-Sovereignty Doctrine?
The Dual-Sovereignty Doctrine is the idea that more than one sovereign (for example a state government and the federal government) may prosecute an individual without violating the prohibition against double jeopardy if the individual’s act breaks the laws of each sovereignty. Further, the Supreme Court has held that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. As such, a citizen owes a separate and independent allegiance to each sovereign government and must abide by their respective laws. This doctrine is sometimes often referred to as an exception to the Double Jeopardy Clause of the Fifth Amendment. However, as Justice Alito points out in Gamble, that this is “not an exception at all” because the text of the Fifth Amendment prohibits a subsequent prosecution for an “offense,” not an act.
The Supreme Court’s Decision
In a 7-2 ruling, the United States Supreme Court declined to overturn previous precedent upholding the Dual-Sovereignty Doctrine. In its opinion, the Supreme Court focused on how Double Jeopardy Bars subsequent prosecutions for offenses and not acts. Double Jeopardy protects individuals from being in jeopardy “for the same offense.” The Court then analyzed previous decisions which all consistently held that an offense is something that is defined by law and that each law is defined by a sovereign aka government. Therefore, because the U.S. Constitution did not do away with the sovereignty of the states, states are free to make their own laws as well. Consequently, both the federal government and the states could have similar interests in preventing specific evils and thus could have identical laws (i.e. prohibiting persons who have certain convictions from possessing a gun). Therefore, a person can be convicted in both federal and state court for the exact same conduct.
The Court provided a number of hypotheticals to support its ruling that the defendant’s argument should fail. For example, the Court gave the hypothetical of what if a US citizen was killed in a different country (which is a federal offense) and that country prosecuted the murderer and convicted him. Per the Court, if it were to apply jeopardy to acts and not just offenses, then arguably the United States Government would be precluded from prosecuting the murderer because he had already been prosecuted by a foreign government. Per the Court, this is not what the founding fathers intended when they ratified the Fifth Amendment. Accordingly, the defendant will not get relief, and he will be forced to serve both his state sentence and his federal sentence.
Facing criminal charges? We can help.
Philadelphia Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
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 state and federal 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 First-Degree 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.
Can I be tried for the same crime in state and federal court?
Double Jeopardy Protections
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
Double jeopardy is an issue that frequently comes up when a defendant commits a crime in multiple jurisdictions such as different states, different counties, or the state and federal system. The issue often arises either when the defendant’s conduct violates both state and federal law or when the crime takes place in multiple states. Most people have a general idea of what double jeopardy is, but many are surprised to learn that United States Constitution’s double jeopardy protections are much weaker than one might think. In general, double jeopardy is the idea that a defendant may not be tried twice for the same case. If the defendant has already been convicted or acquitted, then the defendant should not be tried again for the same crime in the same court.
A Defendant Who Is Acquitted Cannot Be Tried Twice In The Same Jurisdiction
This rule holds true in both Pennsylvania and federal courts to the extent that a defendant who is acquitted in a Pennsylvania court may not be tried again in a Pennsylvania court and a defendant who is acquitted in a federal court generally may not be tried again in a federal court. However, the law becomes much more complicated when the issue is whether a defendant may face charges in both Pennsylvania and federal court or Pennsylvania and another state.
The Federal Government May Prosecute Despite a State Court Conviction or Acquittal
Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so. Further, federal prosecutors in Philadelphia have recently begun to routinely disregard those guidelines due to political disagreements between the United States Attorney’s Office for the Eastern District of Pennsylvania and the Philadelphia District Attorney’s Office as to how harshly certain defendants should be punished upon conviction. Federal prosecutions of defendants who have previously faced charges in the state system are now increasingly common.
Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.
Recently, it appeared that the United States Supreme Court was considering limiting the ability of federal prosecutors to bring charges following a state prosecution. The Court granted certiorari in the case of Gamble v. United States to determine whether the “dual sovereign doctrine” should apply. Unfortunately, the Court has now decided the Gamble case, and the Court voted 7-2 to uphold the concept of dual sovereignty which, for purposes of criminal law, allows both the federal government and a state government to prosecute a defendant for the exact same crime.
Following Gamble, the law remains such that a defendant cannot successfully claim a double jeopardy violation if he or she was acquitted or even convicted of a crime at the state level and the federal government subsequently decides to prosecute the case. This case drew a great deal of attention because of the benefit it could have provided to famous criminal defendant Paul Manafort, President Trump’s former campaign manager, who was convicted in federal court for various offenses. At the time of the decision, there was widespread speculation that President Trump could pardon Mr. Manafort for his federal crimes and he would then be able to move to dismiss pending charges brought by New York State. Because of Gamble, however, defendants like Mr. Manafort cannot be protected from a subsequent state prosecution by a federal pardon.
Pennsylvania Prosecutors Often May Not Bring Charges After A Federal Conviction or Acquittal
Pennsylvania law provides much stronger protections against being tried twice for the same conduct than federal law. A recent case from the Superior Court, Commonwealth v. Gross, illustrates the protections available to a defendant under Pennsylvania law when the defendant has already been tried in federal court. In Gross, the defendant was charged in Pennsylvania with conspiracy to commit unlawful possession of a firearm, firearms not to be carried without a license, possession of firearm prohibited, and lending or giving of firearms prohibited. While the charges were pending, Gross was indicted and pleaded guilty in the federal system for making false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A).4. Specifically, the federal government alleged that Gross knowingly lied to a licensed firearms dealer about her current residence when completing ATF Form 4473 in connection with the purchase of a firearm by stating that she resided in Pennsylvania when she actually resided in New Jersey.
After Gross pleaded guilty in federal court, she moved to dismiss the Pennsylvania charges on double jeopardy grounds. The trial court denied the motion to dismiss, and Gross appealed. In most cases, a criminal defendant may not appeal the denial of a pre-trial motion before the trial has taken place. However, double jeopardy motions provide a rare instance in which the defendant may take an interlocutory appeal following the denial of a pre-trial motion so long as the trial court does not find that the interlocutory appeal would be frivolous.
The Superior Court reversed the trial court’s denial of the motion to dismiss on double jeopardy grounds because Pennsylvania provides relatively strong protections against being retried for the same offense following a federal or out-of-state conviction or acquittal. The Superior Court noted that Section 111 of the Pennsylvania Crimes Code governs the issue and provides:
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances: (1) The first prosecution resulted in an acquittal or a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless: (i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.
Pennsylvania May Not Prosecute if the State and Federal Statutes Were Intended to Prevent the Same Harm or Evil
In Gross, the trial court and Commonwealth agreed that Gross had been charged for the same conduct and that the first prosecution had resulted in a conviction. Further, the federal statutes and state statutes clearly had different elements which prosecutors would be required to prove. Therefore, the issue was whether the laws defining each of the offenses were intended to prevent a substantially different harm or evil.
The Superior Court took a fairly broad view in defining the harm or evil which the laws were meant to prevent. The Superior Court found that the purpose of the federal statute prohibiting false statements in connection with the purchase of a firearm was not limited to preventing fraud in connection with the purchase of a firearm from a licensed dealer. Instead, the statute also had the purpose of curbing crime by keeping firearms out of the hands of people who were not entitled to possess them. Thus, the purpose of the federal statute was not only to prevent fraud; it was also to reduce gun violence and violent crime in general.
Likewise, the purpose of the Pennsylvania statutes was to regulate the possession and distribution of firearms, which are highly dangerous and are frequently used in the commission of crimes. Therefore, the Superior Court found that both the federal and state statutes under which Gross was prosecuted were designed to vindicate substantially the same interests, i.e., the protection of the public by prohibiting the transfer of certain firearms to various categories of individuals. Because the Commonwealth failed to show that Pennsylvania had a substantially different interest, the Superior Court barred state prosecutors from bringing charges against Gross for the same conduct for which she had already been convicted in federal court.
Pennsylvania Provides Greater Double Jeopardy Protections Than Federal Law
Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta
As Gross illustrates, Pennsylvania law provides greater double jeopardy protections than federal law. Further, these critical distinctions between state and federal law show that criminal law is complicated and that there may be defenses in cases which a non-criminal lawyer could miss. If you are facing criminal charges, it is critical that you hire a criminal defense attorney who focuses his or her practice on criminal law and stays on top of new developments in the law. If you are facing criminal charges in Pennsylvania or New Jersey, call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.
