Applying a property-based Fourth Amendment analysis, the Superior Court recently held that incriminating video files discovered on a computer by a technician performing repairs could not be offered into evidence. Commonwealth v. Sodomsky, __ A.3d __ (No. 870 MDA 2014, filed June 5, 2015). Kenneth Sodomsky brought his computer to a Circuit City store in Wyomissing to have an optical drive and DVD burner installed. After installing the hardware and accompanying software, the technician searched for a video file on the computer to test the new drive. The search results listed files that appeared to be pornographic in nature and contained masculine names and ages of either 13 or 14. The technician launched one of the videos, observed a hand approaching a male’s penis, and contacted police. Sodomsky was arrested and charged with sexual abuse of children and possession of child pornography.
Sodomsky filed a motion to suppress the evidence seized from his computer, which the suppression court granted. On appeal, the Superior Court reversed, holding that Sodomsky had abandoned any expectation of privacy in his computer when he relinquished control of it to Circuit City. On remand, Sodomsky offered evidence that Circuit City had not complied with industry standards in testing the drive. Based on the new evidence, the suppression court found that Sodomsky had a reasonable expectation of privacy in the digital data on his computer and suppressed the evidence. On appeal, the Superior Court again reversed, holding that the new evidence did not alter its previous conclusion that Sodomsky had abandoned his privacy interest when he relinquished control of the computer. On remand, Sodomsky petitioned to reopen the suppression hearing, citing an intervening change in the law, i.e., the U.S. Supreme Court’s decision in U.S. v. Jones, 565 U.S. __, 132 S.Ct. 945 (2012). The suppression court granted the petition and, based on Jones, suppressed the evidence. The Commonwealth then filed the instant appeal.
The Superior Court affirmed in a majority opinion authored by Judge Musmanno. The Court first held that Jones was an intervening change of law because neither the suppression court nor the Superior Court had considered its applicability in Sodomsky’s second appeal. The Court then discussed Jones, which involved the admissibility of data obtained by police officers through a GPS tracking device they installed on a suspect’s car. The Supreme Court held that this physical intrusion into the suspect’s property constituted a Fourth Amendment “search” regardless of any expectation of privacy he may have had. Applying the same property-based analysis in this case, the majority concluded that the digital data stored on Sodomsky’s computer was subject to Fourth Amendment protection, regardless of his reasonable expectation of privacy. The Court then held that because the incriminating video file was not in “plain view,” the arresting officer effectuated a warrantless search by directing the technician to play the video. Thus, the suppression court properly suppressed the data seized from Sodomsky’s computer.
In a dissenting opinion, Judge Ott opined that Jones did not involve an intervening change in the law that justified reopening Sodomsky’s suppression hearing. In Judge Ott’s view, Jones merely reaffirmed the Fourth Amendment’s long standing protection of a person’s “effects.” Judge Ott also observed that Jones is not analogous to the present case because Sodomsky relinquished control of his property, which the police had probable cause to search based on information relayed by the technician. Finally, Judge Ott criticized the majority for disregarding the Court’s prior determination in Sodomsky’s first appeal that the “plain view” exception to the warrant requirement was applicable.