PRETRIAL MOTIONS PRACTICE
Presenters:
• Carrie Allman, Homicide Chief, Montgomery County (PA) Office of the
Public Defender
• Brie Halfond, Trial Attorney, Montgomery County (PA) Office of the Public
Defender
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0005776-2016,
CLIENT,
Defendant
MOTION IN LIMINE SEEKING EXCLUSION OF CELL PHONE TEXT MESSAGES
1. CLIENT is charged at the above-captioned as follows: Count 1 - Drug Delivery
Resulting in Death; Count 2 - Recklessly Endangering Another person; Count 3 - Criminal
Use of a Communication Facility; Count 4 - Possession with Intent to Deliver (Heroin); and
Count 5 - Possession (Heroin).
2. These charges are connected to the January 29, 2016 death of Ms. Renee Winslow.
3. Investigating Officers found three bags of suspected heroin and a cell phone near
Decendent when they responded to the 911 call.
4. Per the investigative reports, and discovery provided in this matter, a forensic digital
analysis of this phone was conducted and it was determined that Decendent’s last
communication was a “drug-related text message conversation with an individual stored in
her cellular phone as “Rachel”, on Thursday January 28, 2016.
5. Following this information, an application was made under the Wiretapping and
Electronic Surveillance Act ( 18 Pa. C.S. §5701) seeking subscriber information and
identification of cell phone number (484) 358-8938. This application was approved by court
order.
1
6. The subscriber associated to telephone number (484) 358-8938 was a CLIENT,
DOB 2/1/1980.
7. The defendant in this case is CLIENT, DOB 2/1/1980.
8. The text messages at issue begin with Decendent asking Rachel if she will be
around in 45 minutes to come to her apartment. Decendent then asks if Rachel wants to
meet her or if she should call Rachel. Rachel asks what Decendent needs, and Decendent
states, “depends you giivin to me for 10 or 15”, Decendent then sends a text that says “is
really appreciate 10 then I’d need 4”. Rachel responds “ok”. Decendent then sends three
texts stating “thanks babe so I’ll see you in like 45 mins”, “are you not coming I mean its
Thursday seems like you always tell me your coming on Thursdays but never show up”,
and “so what’s up with that promise??” (errors are in original texts)
9. During the preliminary hearing, Detective Millan was called by the Commonwealth to
testify regarding these text messages, and he testified that these texts were a “drug-related
conversation”. (Preliminary Hearing Transcript p. 13) Detective Milan agreed that the word
heroin was never mentioned in the texts, nor any code word; however, he made his
determination that the texts were about a drug-related conversation based on the totality of
the circumstances, including that three bags were recovered and a price was negotiated in
the texts. (Preliminary Hearing Transcript p. 25-26)
10. Based on the discovery, and the preliminary hearing testimony, it is believed that the
Commonwealth will seek to admit the text messages, as well as the Detectives
interpretation of the messages at trial.
1
This application and order was the subject of a previously filed suppression motion.
11. Pursuant to Commonwealth v. Koch, and Commonwealth v. Mosley, it is improper to
admit the substance of these texts or any interpretation thereof as the Commonwealth will
not be able to authenticate these messages and, even if they could, the content of the
messages is hearsay without exception, and therefore, admission of the texts, as well as
the Detectives interpretation of the texts, would violate the rules of evidence.
12. In Commonwealth v. Koch, an evenly divided Pennsylvania Supreme Court
determined that text messages were subject to authentication pursuant to Rule 901 of the
Pennsylvania Rules of Evidence.
13. Pennsylvania Rule of Evidence 901 states that, to satisfy the requirement of
authentication, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is. Pa.R.E. 901(a).
14. Authentication can be shown by the testimony of a witness with knowledge.
However, in the context of a communication, other factors may need to be looked at such
as distinctive characteristics. Commonwealth v. Koch, 106 A.3d 705, 712 (Pa. 2014).
15. Distinctive Characteristics may include information specifying an author-sender,
references to other relevant events that precede or follow the communication, or any other
aspects that the communication is what it claims to be. Id. at 712-713 (citing
Commonwealth v. Collins, 957 A.2d 237, 265-66 (Pa.2008)).
16. The Koch Court agreed that authentication is a low standard, but also that
communications technology presented novel questions with regard to both authentication
and hearsay. Id. at 713.
17. The Court then concluded that:
Suppression was denied on May 11, 2017 following a hearing.
The authentication inquiry will, by necessity, be fact-bound and case-by
case, but like courts in many other states, we believe that authorship is
relevant to authentication, particularly in the context of text messages
proffered by the government as proof of guilt in a criminal prosecution.
This is not an elevated “prima facie plus” standard or imposition of an
additional requirement. Rather, it is a reasonable contemporary means
of satisfying the core requirement of Rule 901 when a text message is
the evidence the Commonwealth seeks to admit against a defendant;
the Commonwealth must still show that the message is what the
Commonwealth claims it to be, and authorship can be a valid (and even
crucial) aspect of that determination.
Koch, 106 A.3d at 714.
18. The Court concluded in Koch that authentication had been established because the
appellant had admitted ownership of the phone, other evidence demonstrated the content
of the messages were drug sale activity, and because the appellant was charged as both
an accomplice and conspirator in a drug trafficking enterprise, the need for authorship was
not as crucial to authentication. Id.
19. In the instant matter, no ownership of the phone is admitted, no actual phone was
ever found on CLIENT, and the only evidence connecting him to any text messages is that
Decendent was texting a number that was later determined to be registered to a CLIENT.
20. The number Decendent was texting is labeled in her phone as “Rachel”, as such,
there are no circumstantial clues that connect the texts to CLIENT.
21. No one saw CLIENT making or sending these texts, and no one can testify that he
authored these texts.
22. Furthermore, any claim that these are authenticated because they appear on the
phone of the victim, cannot be sustained as Decendent is unable to testify to the content of
these texts, who they were with, or even that she was the one sending and receiving these
texts. There is no one who can testify as to authorship of any of the text messages.
23. Additionally, even if it could be shown that Decendent authored the texts, there is no
way to establish that CLIENT was the other party, and that is exactly what the
Commonwealth will seek to do as without that link, the text messages are wholly irrelevant
to this trial.
24. There can be no doubt that the Commonwealth intends to introduce these texts to
demonstrate that there was a drug-related conversation between Decendent and CLIENT
prior to her drug-related death. Any other explanation would not meet a relevancy test.
25. However, the texts cannot be authenticated in any manner and therefore their
admission is improper.
26. Because the Supreme Court was evenly divided in Koch, the award of a new trial, as
provided by the Superior Court panel who reviewed the case was affirmed. As such, the
holdings of the Superior Court on the issue must be evaluated. The Superior Court
concluded that the text messages could not be authenticated, they were inadmissible
hearsay as they were not offered for any reason other than to show the truth of the mater
asserted as to the content of the messages, and that the admission of unauthenticated
hearsay messages was not harmless error. Commonwealth v. Koch, 39 A.3d 996, 1003-
1005 (Pa. Super. 2011).
27. The Court further stated that a mere assertion of ownership does not establish that a
defendant was an active correspondent of particular text messages, and that confirmation
that the number or address belongs to a particular person does not satisfy the
authentication requirements under Pa. R. E. 901. Id. at 1005.
28. In Commonwealth v. Mosley, the Superior Court was again confronted with the issue
of authentication of text messages (again in a drug-related case) and determined that
there was no corroborating witness testimony regarding the authenticity of the messages
that the messages were not properly authenticated and should not have been admitted.
Commonwealth v. Mosley, 114 A.3d 1072, 1084 (Pa. Super. 2015).
29. Some of the factors looked to in Mosley included that there was no witness
testimony corroborating the authenticity of the text messages, others could have had
access to the phone, while there were messages that could be interpreted as drug-activity,
none of the communications identified Mosley, and no testimony was presented from
anyone who sent or received the texts. Id. at 1083.
30. In the instant matter, the text messages cannot be authenticated as no one can
testify as to who sent or received the messages, or that these messages are in anyway
connected to the defendant, CLIENT. The mere fact that he has the same name as the
subscriber associated to telephone number (484) 358-8938 is not sufficient to meet the
authentication requirements. As such, the text messages should be excluded.
Hearsay
31. Even if the text messages could be properly authenticated, they are still not
admissible as they are hearsay.
32. In the instant matter, the Commonwealth will seek to introduce these text messages
through Detective Millan who will testify to the content as well as his interpretation that this
was a drug-related conversation about the sale and purchase of heroin as he did at the
preliminary hearing.
33. Again, there is only one reason to introduce this evidence, and that is as part of the
Commonwealth’s efforts to connect the drug-death of Decendent to CLIENT. Otherwise,
the evidence is irrelevant.
34. In both Koch and Mosley, the Appellate Courts determined that admission of
testimony regarding the nature and content of the text messages was hearsay. In both
cases, testimony was admitted through a Detective or Officer who interpreted the drug-
related language and meaning of the texts, both cases involved allegations of drug-
trafficking or delivery.
35. In Koch, the Supreme Court stated the following regarding the use of a Detective
to testify to the content and meaning of the text messages:
Lawyers with trial experience know that when a party has classic hearsay
evidence that it knows is harmful to the opposing party, but cannot actually
identify a theory to overcome exclusion on hearsay grounds, a common
fallback position is to declare that the out-of-court statements are not being
offered for their truth. Counsel in such circumstances recognize that if they
can manage to get the evidence admitted this way, the party's cause will be
advanced, irrespective of reliability or relevancy. But, the required analytical
response to this facile fallback position is: if the hearsay is not being
offered for its truth, then what exactly is its relevance? And, assuming
some such tangential relevance, does the probative value of the
evidence outweigh the potential for prejudice? In this case, the inquiry
is not difficult because the only relevance of this evidence -- drug sales
text messages on appellee's cell phone -- is precisely for the truth of
the matter asserted, and we have little doubt that that is precisely how
the lay jury construed it.
At trial, after appellee lodged her hearsay objection while Detective Lively
was on the stand, the prosecutor responded that he was not trying to prove
the truth of the matter asserted in the messages, but wanted the detective to
testify that he understood the messages to be similar to "buy sheets"
recording and arranging drug sales and to show that "these statements were
on the phone that belonged to her and that -- that these other types of
statements then would constitute drug receipts, drug statements, and
orders." The prosecutor later added: "[T]he purpose of this evidence is to
show that [appellee's] phone was used in drug transactions, and, therefore, it
makes it more probable than not when the Defendant possessed this
marijuana that she did so with the intent to deliver as opposed to personal
use." N.T., Trial, 5/26/10, at 73-79 (emphasis supplied).
The trial prosecutor's candor should be determinative here. The prosecutor
conceded that he sought to admit the message contents as substantive
evidence probative of appellee's alleged intent to engage in drug sales
activity. And that is certainly how the jury would construe the messages. It
requires a suspension of disbelief to conclude that the messages had any
relevance beyond their substantive and incriminating import, especially
because they served as a platform for the crucial expert testimony of
Detective Lively. Furthermore, as the panel below recognized, the
Commonwealth's evidence of appellee's intent to deliver, without the truth
revealed in the messages (via the expert testimony of the detective), was
negligible. Simply put, the messages were out-of-court statements that were
relevant, and indeed proffered, for a purpose that depended upon the truth of
their contents, as probative of appellee's alleged intent to deliver.
Accordingly, appellee's hearsay objection had merit and, in light of the
paucity of other evidence that she possessed illegal drugs with the intent to
deliver, the trial court's abuse of discretion in admitting the message contents
was not harmless error.
In closing, we note that all sorts of inadmissible evidence may exist that
might be helpful to a party's cause, and we understand the special incentive
for the Commonwealth, in criminal cases, in perfect good faith, to attempt to
make use of all the helpful "evidence" it may have. This is so because, unlike
the defendant, the Commonwealth generally only gets one opportunity in a
case; there is a very limited prospect of appeal. But, courts must remain
mindful of those legal precepts that regulate unreliable evidence, in service of
higher principles, such as the right to a fair trial.
Commonwealth v. Koch, 106 A.3d 705, 716-17 (Pa. 2014).
36. The text messages are clearly out of court statements that are being admitted for the
truth of the matter asserted, namely that CLIENT delivered drugs to Decendent before her
death from a drug-related overdose.
For all of the foregoing reasons of fact and law, the text messages should be
excluded.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0000963-2018
CLIENT,
Defendant
DEFENSE RESPONSE TO COMMONWEALTH’S MOTION IN LIMINE
1. CLIENT is charged at the above-captioned as follows: Count 1 - Drug Delivery
Resulting in Death (F1); Count 2 - Criminal Use of a Communication Facility (F3); Count 3 -
Possession with Intent to Deliver (F); Count 4 – Recklessly Endangering Another Person
(F2); Count 5 - Possession (M); and Count 6 – Paraphernalia (M).
2. These charges are connected to the October 6, 2017 death of DECEDENT.
3. DECEDENT and CLIENT were both residents at the Coordinated Homeless
Outreach Center (CHOC) located at Norristown State Hospital.
4. CLIENT is scheduled for a jury trial on July 17, 2018; and motions are to be heard
on July 13, 2018.
5. On July 6, 2018, the Commonwealth filed a Motion in Limine seeking to admit
testimony from the Director of CHOC, Genny O’Donnell, that she reviewed surveillance
videos and saw a “transaction between CLIENT and DECEDENT at the time prior to
Hernandez’s death”. (Phrasing copied from Commonwealth’s motion)
6. The alleged surveillance video that she viewed no longer exists.
7. The Commonwealth’s motion notes that Ms. O’Donnell met with Detective Rippert on
October 16, 2017 and told him about this video.
8. She then informed Detective Rippert on November 6, 2017 that she was unable to
download the video as it had been written over with more recent footage.
9. There is no indication in the motion as to why 21 days passed between Detective
Rippert meeting with Ms. O’Donnell, at CHOC, learning of the existing of the footage, and
when Ms. O’Donnell stated the video no longer existed.
10. There is no indication as to what efforts were made by either Detective Rippert to
secure the video on October 16, 2017, or by any responding officers on October 6, 2017 to
determine if such video existed and preserve the video.
11. The best evidence rule requires that the Commonwealth produce the actual
video/surveillance footage. Pa.R.E. 1002 states: “to prove the content of writing, recording,
or photograph, the original writing, recording, or photograph is required”.
12. It is true that an exception can be made, and secondary evidence permitted, if the
originals are not available through “no fault of the Commonwealth”. Commonwealth v.
Dent, 837 A.2d 571, 589 (Pa.Super.2003).
13. However, in the instant matter, the Commonwealth, through its investigating officers
and Detective Rippert should have known of the surveillance and preserved it as soon as
October 6, 2017, and did, in fact, know of it by October 16, 2017 which is three weeks
before it was noted to be “unavailable”. (see Commonwealth v. Lewis, 460 A.2d 1149 (Pa.
Super. 1983 remanding where the unavailability of the tape was never satisfactorily
explained).
14. Additionally, the factual matter in Dent, is not comparable to the instant matter. In
Dent, which was a retail theft case, store surveillance was unavailable as the system
recycled itself; however, the manager, who testified to the video, had also encountered the
the defendant in the store, face to face, and observed unpaid items in her bag. Dent, 837
A.2d at 590.
15. In the instant matter, the testimony is only regrading what Ms. O’Donnell says she
saw on surveillance, not anything she herself also directly saw, encountered, or
experienced.
16. The Dent court also noted that such secondary evidence is appropriate where the
Commonwealth does not need to prove the contents of the recording in order to prove the
elements of the offense. Id. citing to Commonwealth v. Fisher, 764 A.2d 82 (Pa.Super.
2000).
17. In the instant matter, the Commonwealth MUST prove a delivery of drugs for both
the lead charge of Drug Delivery Resulting in Death, as well as lesser charges of drug
delivery. As such, the missing video would prove a necessary element of the offense and
extrinsic evidence of such video is not permitted.
18. Finally, the Commonwealth has two other fact witnesses who actually saw CLIENT
and DECEDENT together prior to his death, and both provided statements indicating they
observed a transaction, or “shady” behavior.
For all of the foregoing reasons of fact and law, the testimony of Ms. O’Donnell
regarding what she saw on surveillance footage should be excluded.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0000963-2018
CLIENT,
Defendant
MOTION IN LIMINE SEEKING EXCLUSION OF CELL PHONE TEXT MESSAGES
AND INTERPRETATIONS OF THOSE MESSAGES
1. CLIENT is charged at the above-captioned as follows: Count 1 - Drug Delivery
Resulting in Death (F1); Count 2 - Criminal Use of a Communication Facility (F3); Count 3 -
Possession with Intent to Deliver (F); Count 4 – Recklessly Endangering Another Person
(F2); Count 5 - Possession (M); and Count 6 – Paraphernalia (M).
2. These charges are connected to the October 6, 2017 death of DECEDENT.
3. Without stipulating, the facts, as alleged in the Affidavit, are as follows:
a. On October 6, 2017, Norristown Borough Police responded to 9 Locust
Street, Norristown State Hospital Grounds for a medical call around 8:30pm.
b. DECEDENT, a shelter resident, was deceased.
c. DECEDENT was a known heroin user and had been involved in a non-fatal
drug overdose on 9/22/17.
d. Michael Boles was the last person to see DECEDENT alive and told officers
that, at some unknown time on 10/6/17, he noticed Hernandez was high and tried to talk to
him about it to avoid Hernandez getting into trouble.
e. Mr. Boles continued checking on DECEDENT every five minutes and the last
time he checked on him, DECEDENT’s coloring appeared off and Mr. Boles could not find a
pulse.
f. Mr. Boles asked his friend, George Dinkins, for help and located staff
personnel to summon aid.
g. Mr. Boles told officers he did not know where DECEDENT obtained the drugs.
h. However, Boles later told officers that another person, David Lovett may have
observed the transaction.
i. Mr. Lovett was questioned and told officers that he saw CLIENTd walk up to
Hernandez and hand him something on the “QT”.
j. Lovett said they were whispering and he could not hear what they were
saying. Lovett stated it was obvious to him that it was a drug deal because he knew
Hernandez would try to get drugs from people.
k. Mr. Lovett observed this encounter between 4:30 and 7pm.
l. A cellular phone was found next to Hernandez’s body which had recent calls
and texts to “Sandy”.
m. The number associated with “Sandy” was 610-680-8918.
n. The texts include messages talking about “2 Jawns” which officers claim is
street slang for two drug bags.
o. Officers were informed that a white female named CLIENTd was also a
resident at the facility.
p. Officers asked to speak with CLIENT and she complied and went to the police
station.
q. CLIENT allowed officers to search her purse which contained drug
paraphernalia. CLIENT was arrested and charged with drug paraphernalia.
r. CLIENT did not give a statement to police.
s. Her cell phone was seized.
t. An additional resident, George Dinkins spoke with police, after Mr. Boles
advised that Mr. Dinkins had also seen a transaction between Hernandez and McDonald.
u. Mr. Dinkins stated that he did not know what was exchanged between
McDonald and Hernandez but described it as “shady”.
v. A search warrant was sought and obtained for the cell phone CLIENT had in
her possession at the time of her arrest.
w. There are numerous text messages between CLIENT and Hernandez on
10/5/17 and 10/6/17.
x. There are also numerous text messages between CLIENT and an individual
identified as “Eli Mariono”.
y. The affidavit states, that these messages are drug-related texts in which
CLIENT is securing drugs for herself and DECEDENT, at Hernandez’s request, by making
drug purchases from Eli Mariono.
z. The texts, according to the affidavit and testimony from the preliminary
hearing, are alleged to show that Hernandez requested drugs on 10/5/17, McDonald
received the drugs from Mariono, gave some to Hernandez, and the drugs were of low
quality. Thereafter, and in an effort to “make good”, CLIENT secured additional drugs for
DECEDENT, again from Mr. Mariono on 10/6/17 and told him she would give him the drugs
and a blow job to make up for the previous bad drugs.
1
1
The actual texts comprise several pages as such a this summary of what the
4. The affidavit indicates that the text messages between CLIENT and DECEDENT, as
well as between CLIENT and “Eli” are “drug-related conversations”.
5. Based on the discovery, and the preliminary hearing testimony, it is believed that the
Commonwealth will seek to admit the text messages, as well as the Detective’s
interpretation of the messages at trial.
6. Pursuant to Commonwealth v. Koch, and Commonwealth v. Mosley, it is improper to
admit the substance of these texts or any interpretation thereof as the Commonwealth will
not be able to authenticate these messages and, even if they could, the content of the
messages is hearsay without exception, and therefore, admission of the texts, as well as
the Detectives interpretation of the texts, would violate the rules of evidence.
7. In Commonwealth v. Koch, an evenly divided Pennsylvania Supreme Court
determined that text messages were subject to authentication pursuant to Rule 901 of the
Pennsylvania Rules of Evidence.
8. Pennsylvania Rule of Evidence 901 states that, to satisfy the requirement of
authentication, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is. Pa.R.E. 901(a).
9. Authentication can be shown by the testimony of a witness with knowledge.
However, in the context of a communication, other factors may need to be looked at such
as distinctive characteristics. Commonwealth v. Koch, 106 A.3d 705, 712 (Pa. 2014).
10. Distinctive Characteristics may include information specifying an author-sender,
references to other relevant events that precede or follow the communication, or any other
aspects that the communication is what it claims to be. Id. at 712-713 (citing
Commonwealth alleges has been provided for brevity. The affidavit of probable cause and
Commonwealth v. Collins, 957 A.2d 237, 265-66 (Pa.2008)).
11. The Koch Court agreed that authentication is a low standard, but also that
communications technology presented novel questions with regard to both authentication
and hearsay. Id. at 713.
12. The Court then concluded that:
The authentication inquiry will, by necessity, be fact-bound and case-by
case, but like courts in many other states, we believe that authorship is
relevant to authentication, particularly in the context of text messages
proffered by the government as proof of guilt in a criminal prosecution.
This is not an elevated “prima facie plus” standard or imposition of an
additional requirement. Rather, it is a reasonable contemporary means
of satisfying the core requirement of Rule 901 when a text message is
the evidence the Commonwealth seeks to admit against a defendant;
the Commonwealth must still show that the message is what the
Commonwealth claims it to be, and authorship can be a valid (and even
crucial) aspect of that determination.
Koch, 106 A.3d at 714.
discovery materials list all texts at issue.
13. The Court concluded in Koch that authentication had been established because the
appellant had admitted ownership of the phone, other evidence demonstrated the content
of the messages were drug sale activity, and because the appellant was charged as both
an accomplice and conspirator in a drug trafficking enterprise, the need for authorship was
not as crucial to authentication. Id.
14. In the instant matter, no one has ever seen CLIENT sending or receiving texts and
no one can authenticate that she was the person communicating with DECEDENT or “Eli”
in these texts.
15. Furthermore, any claim that these are authenticated because they appear on the
phone of the victim, cannot be sustained as DECEDENT is unable to testify to the content
of these texts, who they were with, or even that he was the one sending and receiving
these texts. There is no one who can testify as to authorship of any of the text messages.
16. Even if it could be shown that DECEDENT authored the texts, there is no way to
establish that CLIENT was the other party, and that is exactly what the Commonwealth will
seek to do as without that link, the text messages are wholly irrelevant to this trial.
17. There can be no doubt that the Commonwealth intends to introduce these texts to
demonstrate that there was a drug-related conversation between DECEDENT and CLIENT
prior to Hernandez’s drug-related death. Any other explanation would not meet a
relevancy test.
18. However, the texts cannot be authenticated in any manner and therefore their
admission is improper.
19. Because the Supreme Court was evenly divided in Koch, the award of a new trial, as
provided by the Superior Court panel who reviewed the case was affirmed. As such, the
holdings of the Superior Court on the issue must be evaluated. The Superior Court
concluded that the text messages could not be authenticated, they were inadmissible
hearsay as they were not offered for any reason other than to show the truth of the mater
asserted as to the content of the messages, and that the admission of unauthenticated
hearsay messages was not harmless error. Commonwealth v. Koch, 39 A.3d 996, 1003-
1005 (Pa. Super. 2011).
20. The Court further stated that a mere assertion of ownership does not establish that a
defendant was an active correspondent of particular text messages, and that confirmation
that the number or address belongs to a particular person does not satisfy the
authentication requirements under Pa. R. E. 901. Id. at 1005.
21. In Commonwealth v. Mosley, the Superior Court was again confronted with the issue
of authentication of text messages (again in a drug-related case) and determined that
there was no corroborating witness testimony regarding the authenticity of the messages
that the messages were not properly authenticated and should not have been admitted.
Commonwealth v. Mosley, 114 A.3d 1072, 1084 (Pa. Super. 2015).
22. With regard to "the admissibility of electronic communication, such messages are to
be evaluated on a case-by-case basis as any other document to determine whether or not
there has been an adequate foundational showing of their relevance and authenticity."
"[A]uthentication of electronic communications, like documents, requires more than mere
confirmation that the number or address belonged to a particular person. Circumstantial
evidence, which tends to corroborate the identity of the sender, is required."
Commonwealth v. Mosley, 114 A.3d 1072, 1081-82 (Pa. Super. 2015) internal citations
omitted.
23. Some of the factors looked to in Mosley included that there was no witness
testimony corroborating the authenticity of the text messages, others could have had
access to the phone, while there were messages that could be interpreted as drug-activity,
none of the communications identified Mosley, and no testimony was presented from
anyone who sent or received the texts. Id. at 1083.
24. In the instant matter, the text messages cannot be authenticated as no one can
testify as to who sent or received the messages, or that these messages are in anyway
connected to the defendant, CLIENTd.
25. The mere fact that she has the phone with that same number , or even had that
phone is her possession is not sufficient to meet the authentication requirement; as
ownership alone is insufficient per established case law. As such, the text messages
should be excluded.
Hearsay
26. Even if the text messages could be properly authenticated, they are still not
admissible as they are hearsay. Hearsay is an out-of-court statement offered for the truth
of the matter asserted and is inadmissible unless it falls within an exception to the hearsay
rule. See Pa.R.E. 801(c); Pa.R.E. 802.
27. In the instant matter, the Commonwealth will seek to introduce these text messages
through Detective Rippert who will testify to the content as well as his interpretation that this
was a drug-related conversation about the sale and purchase of heroin as was done at the
preliminary hearing and in the affidavit.
28. In both Koch and Mosley, the Appellate Courts determined that admission of
testimony regarding the nature and content of the text messages was hearsay. In both
cases, testimony was admitted through a Detective or Officer who interpreted the drug-
related language and meaning of the texts, both cases involved allegations of drug-
trafficking or delivery:
In Koch, a detective, who was a Commonwealth expert witness, testified that
in his opinion the text messages found on the defendant's cell phone, in
conjunction with other factors (bongs, pipes, large amounts of cash, drug
scales) were consistent with drug sales that implicated the defendant, even
though the detective conceded that the author of the drug-related text
messages could not be definitively ascertained, that several texts were
incomplete and that some messages referenced the defendant in the third
person. Koch, 39 A.3d at 1002-1003. In addition, the prosecutor
acknowledged that the purpose of the text evidence was to show that
defendant's phone was used in drug transactions, and, therefore, that it
makes it more probable than not that when the defendant possessed the
drugs she did so with the intent to deliver it as opposed to for personal use.
Id. at 1005-06.
As a result, the Court concluded that the only relevance of the evidence was
to prove the truth of the matter asserted — that there were drug-related text
messages on defendant's cell phone and, therefore, that admission of the
messages was an abuse of discretion and not harmless error.
Commonwealth v. Mosley, 2015 PA Super 88, 114 A.3d 1072, 1085.
29. This is very similar to what will be presented in the instant matter, and how it was
presented at the preliminary hearing. Detective Rippert will testify that the texts are drug
related conversations between Mss. McDonald and DECEDENT, despite having no
personal knowledge of who sent the texts, and will say that these messages show that
CLIENT had drugs to deliver to DECEDENT on the very day that he died of a drug
overdose.
30. There can be no doubt that these texts are being introduced to show that CLIENT
delivered drugs to DECEDENT before his death.
31. As the drug delivery death statute (18 Pa. C.S. §2506) only requires that the
Commonwealth prove a delivery and a death (from that delivery); the introduction of these
text messages are designed to assist the Commonwealth in proving the truth of the matter
asserted.
32. In Koch, the Supreme Court stated the following regarding the use of a Detective
to testify to the content and meaning of the text messages:
Lawyers with trial experience know that when a party has classic hearsay
evidence that it knows is harmful to the opposing party, but cannot actually
identify a theory to overcome exclusion on hearsay grounds, a common
fallback position is to declare that the out-of-court statements are not being
offered for their truth. Counsel in such circumstances recognize that if they
can manage to get the evidence admitted this way, the party's cause will be
advanced, irrespective of reliability or relevancy. But, the required analytical
response to this facile fallback position is: if the hearsay is not being
offered for its truth, then what exactly is its relevance? And, assuming
some such tangential relevance, does the probative value of the
evidence outweigh the potential for prejudice? In this case, the inquiry
is not difficult because the only relevance of this evidence -- drug sales
text messages on appellee's cell phone -- is precisely for the truth of
the matter asserted, and we have little doubt that that is precisely how
the lay jury construed it.
At trial, after appellee lodged her hearsay objection while Detective Lively
was on the stand, the prosecutor responded that he was not trying to prove
the truth of the matter asserted in the messages, but wanted the detective to
testify that he understood the messages to be similar to "buy sheets"
recording and arranging drug sales and to show that "these statements were
on the phone that belonged to her and that -- that these other types of
statements then would constitute drug receipts, drug statements, and
orders." The prosecutor later added: "[T]he purpose of this evidence is to
show that [appellee's] phone was used in drug transactions, and, therefore, it
makes it more probable than not when the Defendant possessed this
marijuana that she did so with the intent to deliver as opposed to personal
use." N.T., Trial, 5/26/10, at 73-79 (emphasis supplied).
The trial prosecutor's candor should be determinative here. The prosecutor
conceded that he sought to admit the message contents as substantive
evidence probative of appellee's alleged intent to engage in drug sales
activity. And that is certainly how the jury would construe the messages. It
requires a suspension of disbelief to conclude that the messages had any
relevance beyond their substantive and incriminating import, especially
because they served as a platform for the crucial expert testimony of
Detective Lively. Furthermore, as the panel below recognized, the
Commonwealth's evidence of appellee's intent to deliver, without the truth
revealed in the messages (via the expert testimony of the detective), was
negligible. Simply put, the messages were out-of-court statements that were
relevant, and indeed proffered, for a purpose that depended upon the truth of
their contents, as probative of appellee's alleged intent to deliver.
Accordingly, appellee's hearsay objection had merit and, in light of the
paucity of other evidence that she possessed illegal drugs with the intent to
deliver, the trial court's abuse of discretion in admitting the message contents
was not harmless error.
In closing, we note that all sorts of inadmissible evidence may exist that
might be helpful to a party's cause, and we understand the special incentive
for the Commonwealth, in criminal cases, in perfect good faith, to attempt to
make use of all the helpful "evidence" it may have. This is so because, unlike
the defendant, the Commonwealth generally only gets one opportunity in a
case; there is a very limited prospect of appeal. But, courts must remain
mindful of those legal precepts that regulate unreliable evidence, in service of
higher principles, such as the right to a fair trial.
Commonwealth v. Koch, 106 A.3d 705, 716-17 (Pa. 2014).
33. The text messages are clearly out of court statements that are being admitted for the
truth of the matter asserted, namely that CLIENT delivered drugs to DECEDENT before his
death from a drug-related overdose.
34. If they are not being introduced for that purpose, then they are irrelevant and should
be excluded.
MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY REGARDING THE
INTERPRETATION OF, OR MEANING OF, TEXT MESSAGES
35. Assuming, that the Commonwealth plans to introduce expert testimony regarding the
meaning or interpretation of text messages it found on cellular phones of CLIENT,
DECEDENT, and “Eli”, the Defense objects to any such testimony as it is not proper expert
testimony.
36. It has been noted:
Expert testimony generally is admissible to aid the jury when the subject
matter is distinctly related to a science, skill or occupation which is beyond
the knowledge or experience of an average lay person. Commonwealth v.
Counterman, 553 Pa. 370, 719 A.2d 284, 302-03 (citing Commonwealth v.
O'Searo, 466 Pa. 224, 352 A.2d 30, 33 (1976)), cert. denied, --- U.S. ----, 120
S.Ct. 97, 145 L.Ed.2d 82 (1999). Conversely, expert testimony is not
admissible where the issue involves a matter of common knowledge. Id. at
303. In assessing the credibility of a witness, jurors must rely on their
ordinary experiences of life, common knowledge of the tendencies of human
behavior, and observations of the witness' character and demeanor. Id.
Because the truthfulness of a witness is solely within the province of the jury,
expert testimony cannot be used to bolster the credibility of witnesses. See
id.
Commonwealth v. Minerd, 753 A.2d 225, 230 (Pa. 2000).
37. The Pennsylvania Rules of Evidence require that Expert Testimony is proper where
the specialized knowledge is beyond that possessed by the average person.
38. In the instant matter, the meaning of text messages is not something that requires
specialized knowledge or skill, and it is something that involves a matter of common
knowledge for the jury. Assuming the content of the text messages is admitted, the jury
should be determining the meaning of those messages.
39. There are no specialized words or hidden code language that needs deciphered or
explained. The ultimate question before the jury is whether or not CLIENT delivered drugs
to DECEDENT causing his death; as such, the jury must determine the meaning of the text
messages.
MOTION IN LIMINE TO EXCLUDE TEXT MESSAGES AS THEY CONTAIN PRIOR
BAD ACTS AND SHOULD BE BARRED BY RULE 404B OF THE PENNSYLVANIA
RULES OF EVIDENCE
40. Additionally, these text messages would introduce prior bad acts and should be
excluded as they are not proper 404b, and their prejudicial impact outweighs their probative
value.
41. Specifically, the texts would introduce evidence of a drug exchange on October 5,
2017. CLIENT is not charged with any acts connected to October 5, 2017.
42. The text messages from that day, if admitted, would include an allegation of a prior
bad act, namely that CLIENT had secured drugs, at the request of DECEDENT, from a
source and provided those drugs to DECEDENT.
43. Additionally, the October 5, 2017 texts between CLIENT’s cell phone and Eli
Mariono’s phone should be excluded as they are prior bad acts of a drug purchase.
44. As a general matter, evidence of other crimes, wrongs, or acts may not be
introduced against a criminal defendant. Pa.R.E. 404(b)(1); Commonwealth v. LaCava,
666 A.2d 221, 229 (Pa. 1995); Commonwealth v. Griffin, 684 A.2d 589, 594 (Pa. Super.
1996) (“It is well established that evidence of prior bad acts is not admissible to show that
the defendant committed the crime at issue.” (citing Commonwealth v. Peterson, 307 A.2d
264, 269 (Pa. 1973); Commonwealth v. Walker, 656 A.2d 90, 99 (Pa.), cert. denied, 516
U.S. 854 (1995)).
45. As an exception to this rule, this evidence can be introduced for other purposes
“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.” Pa.R.E. 404(b)(2). The evidence is admissible, however,
“only upon a showing that the probative value of the evidence outweighs its potential for
prejudice.” Pa.R.E. 404(b)(3).
46. Evidence of prior bad acts can cause a jury to believe that the defendant's
propensity to commit other crimes leads to the conclusion that he or she committed the
instant crime and because it can portray the defendant generally as having bad character
and, thus, worthy of conviction regardless of the proof about the charged crime. The
Supreme Court has said that
[t]he Commonwealth must prove beyond a reasonable doubt that a
defendant has committed the particular crime of which he is accused, and it
may not strip him of the presumption of innocence by proving that he has
committed other criminal acts. There are, of course, important exceptions to
the rule where the prior criminal acts are so closely related to the crime
charged that they show, inter alia, motive, intent, malice, identity, or a
common scheme, plan or design.
Commonwealth v. Stanley, 398 A.2d 631, 633-34 (Pa. 1979).
47. The Third Circuit has written that use of prior-bad-acts evidence often is intended
more to show a propensity to commit a crime than for the expressed reason for admission.
Despite our characterization of [Federal] Rule 404(b) as a rule of
admissibility, we have expressed our concern that, although the proponents
of Rule 404(b) evidence "will hardly admit it, the reasons proffered to admit
prior act evidence may often be potemkin village, because the motive, we
suspect, is often mixed between an urge to show some other consequential
fact as well as to impugn the defendant's character." Thus, when evidence of
prior bad acts is offered, the proponent must clearly articulate how that
evidence fits into a chain of logical inferences, no link of which may be the
inference that the defendant has the propensity to commit the crime charged.
United States v. Himelwright, 42 F.3d 777, 781-82 (3d Cir. 1994) (citations omitted) quoted
in Commonwealth v. Chapman, 763 A.2d 895, 901 n.6 (Pa. Super. 2000), allocatur denied,
771 A.2d 1278 (Pa. 2001).
48. As such, prior bad acts may not be used to infer that the defendant is likely to
commit the crime charged.
49. However, if evidence of other drug purchases/sales/exchanges is introduced, that is
exactly what the jury will infer, that CLIENT is a drug dealer, or has the propensity to
buy/sell drugs and therefore must have been involved in the drug delivery on October 6,
2017 that resulted in DECEDENT’s death.
50. Historically, our courts have held that evidence of prior bad acts should be strictly
limited. This limitation is designed to prevent evidence of prior crimes resulting in a fact-
finder forming a fixed bias or hostility in determining the charges in a current case. "[i]t is
not proper to raise a presumption of guilt on the ground that, having committed one crime,
the depravity it exhibits makes it likely [the same person] would commit another," thereby
relieving the Commonwealth of its constitutional burden of proof beyond a reasonable
doubt. Shaffner v. Commonwealth, 72 Pa. 60, 65 (1872). Rule 404b exists to prevent the
use of propensity evidence and to limit prior bad acts to very limited and specific
circumstances.
51. Additionally, it is important to recognize the inherent prejudice associated with the
introduction of prior bad acts and the virtual impossibility that a jury has in separating those
out from the crime charged in the instant matter:
The difficulty of requiring jurors to dismiss a defendant's prior criminal
record from their minds when deciding the issue of guilt while permitting
them to consider such evidence for some other purpose is clear. Even
with careful instructions from the trial court, allowance of such evidence
may lead to a confusion of issues. Jurors may be over-persuaded by
evidence of past criminal conduct, prejudge a defendant with a bad
general record, and deny him a fair opportunity to acquit himself of a
particular offense. Indeed, Judge Biggs has called the jurors' need to put
knowledge of a defendant's extensive record out of mind while
considering his guilt or innocence ‘a feat of psychological wizardry (which)
verges on the impossible even for berobed judges.’ United States ex rel.
Scoleri v. Banmiller, 310 F.2d 720, 725 (3rd Cir. 1962) reh. denied, *148
310 F.2d 736 (3rd Cir. 1962) cert. denied, 374 U.S. 828, 83 S.Ct. 1866,
10 L.Ed.2d 1051 (1963). And Judge Learned Hand in a similar case
termed the task of jurors instructed to consider evidence for one purpose
while disregarding it for another ‘a mental gymnastic which is beyond, not
only their powers, but anybody else's.’ Nash v. United States, 54 F.2d
1006, 1007 (2d Cir. 1932) cert. denied, 285 U.S. 556, 52 S.Ct. 457, 76
L.Ed. 945 (1932).
Com. v. Chapasco, 258 A.2d 638, 640 (Pa. 1969).
52. In the instant matter, the evidence of other drug transactions or activities does
not demonstrate any of the proper exceptions under the rule and the October 5, 2017
text messages should be excluded.
For all of the foregoing reasons of fact and law, the text messages should be
excluded. If the messages are admitted, the jury should determine their meaning, not
an “expert” in drug jargon, and no texts from October 5, 2017 should be admitted as
they constitute prior bad acts and should not be admitted per the balancing test of Rule
404b.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0007271-2017
Drug Delivery Resulting in Death
CLIENT,
Defendant
MOTION IN LIMINE TO EXCLUDE PRIOR BAD ACTS
AND NOW COMES the Defendant, CLIENT, by his attorney from the Law Office of
the Public Defender of Montgomery County; Carrie L. Allman, Homicide Chief/Trial
Counsel, and respectfully submits this Pre-Trial Motion of which the following is a
statement:
1. CLIENT was charged on September 28, 2017 at OTN T 975386-6 with numerous
charges, including one count of Drug Delivery Resulting in Death (18 Pa. C.S. §2506).
2. This charge is based on an incident that occurred on, or about, March 29, 2017 in
Spring City, Chester County, Pennsylvania involving the overdose death of DECEDENT.
3. Chester County provided a McPhail letter permitting prosecution in Montgomery
County.
4. The pertinent facts for this motion, as alleged in the affidavit, are as follows:
a. Police responded to an overdose on March 29, 2017 around 9:17pm in
Spring City. Upon arrival, Amanda Jones was found at the scene, and a male,
DECEDENT, was found unresponsive in a vehicle.
b. The vehicle was a Honda Accord that belonged to DECEDENT.
c. Medics provided care, but DECEDENT was pronounced dead and
transported to the coroner’s office.
d. DECEDENT cause of death was listed as acute fentanyl and alcohol
intoxication.
e. Ms. Jones told police she had snorted one bag of Heroin and Treys
snorted two bags. Jones stated she passed out and when she awoke, she found Treys
unresponsive and called 911.
f. Jones told police she had purchased 12 bags of heroin, for $60, from a
black male she knows as “Sheed”.
g. Jones stated that Treys asked her to get the heroin because he did not
have any contacts.
h. Jones stated she was introduced to “Sheed” about 12-18 months ago and
was provided with “Sheed’s phone number so she could make arrangements with him
to purchase heroin.
i. The number she provided as being connected with “Sheed” was (484)
804-1644.
j. Jones stated she purchased heroin on March 29, 2017 by a young black
male who was sent by “Sheed”; this purchase occurred in Norristown, Pa. She did not
meet “Sheed” that evening.
k. Jones allowed police to search her phone and texts were recovered between
Jones and individual she says is “Sheed”. Notably, not all text messages are available
because Jones erased them. The messages are alleged to be an effort by Ms. Jones to
obtain heroin from “Sheed”.
l. Jones says she purchased 12 bags from this unknown black male she met
on March 29, 2017, the black male she received the drugs from was not “Sheed”.
m. 12 bages of suspected heroin were recovered from Trey’s vehicle. The
suspected heroin was later identified as heroin and fentanyl.
n. On March 30, 2017, officers arranged a controlled buy between Jones and
“Sheed”. Again, the individual who delivered the drugs was not “Sheed”.
o. Another controlled buy was conducted on April 4, 2017 between a CI and
CLIENT, and CLIENT was arrested.
p. The affidavit also references two controlled buys in November 2016 with CIs.
q. Wilson was arrested following the controlled buy on April 4, 2017.
5. This motion seeking to exclude any reference to the November or April controlled
buys follows as they are other bad acts and are prohibited by Rule 404b where their
prejudicial impact would outweigh any probative value.
6. Based on the discovery provided, the Defense believes the Commonwealth will
seek to admit drug transactions and controlled buys from November 2016, March 30,
2017, and April 4, 2017.
7. The discovery materials, and affidavit, as well as the preliminary hearing testimony
contain evidence that there were two controlled buys with different CIs in November 2016,
then one with Amanda Jones on March 30, 2017, and one with another CI on April 4, 2017,
at which time, CLIENT was arrested.
8. CLIENT is NOT charged with any incidents from November 2016.
1
9. In the instant matter, the charges reflect the death of DECEDENT on March 29,
1
There are two other cases outstanding at CC NO.s 7220-16 and 0780-17 but
207 as well as the controlled buys on March 29, 2017 and April 4, 2017.
10. Any reference to the controlled buys in November should be excluded as they
are not connected to this case and are unduly prejudicial.
11. As a general matter, evidence of other crimes, wrongs, or acts may not be
introduced against a criminal defendant. Pa.R.E. 404(b)(1); Commonwealth v. LaCava,
666 A.2d 221, 229 (Pa. 1995); Commonwealth v. Griffin, 684 A.2d 589, 594 (Pa. Super.
1996) (“It is well established that evidence of prior bad acts is not admissible to show that
the defendant committed the crime at issue.” (citing Commonwealth v. Peterson, 307 A.2d
264, 269 (Pa. 1973); Commonwealth v. Walker, 656 A.2d 90, 99 (Pa.), cert. denied, 516
U.S. 854 (1995)).
12. As an exception to this rule, this evidence can be introduced for other purposes
“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.” Pa.R.E. 404(b)(2). The evidence is admissible, however,
“only upon a showing that the probative value of the evidence outweighs its potential for
prejudice.” Pa.R.E. 404(b)(3).
13. However, there is no connection between these November sales and the death of
DECEDENT in March 2017, and the only impact these additional controlled buys would
have is to prejudice the jury against CLIENT.
14. Evidence of prior bad acts can cause a jury to believe that the defendant's
propensity to commit other crimes leads to the conclusion that he or she committed the
instant crime and because it can portray the defendant generally as having bad character
both of thses occurred in September 2016.
and, thus, worthy of conviction regardless of the proof about the charged crime. The
Supreme Court has said that
[t]he Commonwealth must prove beyond a reasonable doubt that a
defendant has committed the particular crime of which he is accused, and it
may not strip him of the presumption of innocence by proving that he has
committed other criminal acts. There are, of course, important exceptions to
the rule where the prior criminal acts are so closely related to the crime
charged that they show, inter alia, motive, intent, malice, identity, or a
common scheme, plan or design.
Commonwealth v. Stanley, 398 A.2d 631, 633-34 (Pa. 1979).
15. The Third Circuit has written that use of prior-bad-acts evidence often is intended
more to show a propensity to commit a crime than for the expressed reason for admission.
Despite our characterization of [Federal] Rule 404(b) as a rule of
admissibility, we have expressed our concern that, although the proponents
of Rule 404(b) evidence "will hardly admit it, the reasons proffered to admit
prior act evidence may often be potemkin village, because the motive, we
suspect, is often mixed between an urge to show some other consequential
fact as well as to impugn the defendant's character." Thus, when evidence of
prior bad acts is offered, the proponent must clearly articulate how that
evidence fits into a chain of logical inferences, no link of which may be the
inference that the defendant has the propensity to commit the crime charged.
United States v. Himelwright, 42 F.3d 777, 781-82 (3d Cir. 1994) (citations omitted) quoted
in Commonwealth v. Chapman, 763 A.2d 895, 901 n.6 (Pa. Super. 2000), allocatur denied,
771 A.2d 1278 (Pa. 2001).
16. As such, prior bad acts may not be used to infer that the defendant is likely to
commit the crime charged.
17. However, if evidence of other drug sales is introduced, that is exactly what the jury
will infer, that CLIENT is a drug dealer and must have been involved in the drug delivery on
March 29, 2017 that resulted in DECEDENT’ death.
18. Historically, our courts have held that evidence of prior bad acts should be strictly
limited. This limitation is designed to prevent evidence of prior crimes resulting in a fact-
finder forming a fixed bias or hostility in determining the charges in a current case. "[i]t is
not proper to raise a presumption of guilt on the ground that, having committed one crime,
the depravity it exhibits makes it likely [the same person] would commit another," thereby
relieving the Commonwealth of its constitutional burden of proof beyond a reasonable
doubt. Shaffner v. Commonwealth, 72 Pa. 60, 65 (1872). Rule 404b exists to prevent the
use of propensity evidence and to limit prior bad acts to very limited and specific
circumstances.
19. Additionally, it is important to recognize the inherent prejudice associated with the
introduction of prior bad acts and the virtual impossibility that a jury has in separating those
out from the crime charged in the instant matter:
The difficulty of requiring jurors to dismiss a defendant's prior criminal
record from their minds when deciding the issue of guilt while permitting
them to consider such evidence for some other purpose is clear. Even
with careful instructions from the trial court, allowance of such evidence
may lead to a confusion of issues. Jurors may be over-persuaded by
evidence of past criminal conduct, prejudge a defendant with a bad
general record, and deny him a fair opportunity to acquit himself of a
particular offense. Indeed, Judge Biggs has called the jurors' need to put
knowledge of a defendant's extensive record out of mind while
considering his guilt or innocence ‘a feat of psychological wizardry (which)
verges on the impossible even for berobed judges.’ United States ex rel.
Scoleri v. Banmiller, 310 F.2d 720, 725 (3rd Cir. 1962) reh. denied, *148
310 F.2d 736 (3rd Cir. 1962) cert. denied, 374 U.S. 828, 83 S.Ct. 1866,
10 L.Ed.2d 1051 (1963). And Judge Learned Hand in a similar case
termed the task of jurors instructed to consider evidence for one purpose
while disregarding it for another ‘a mental gymnastic which is beyond, not
only their powers, but anybody else's.’ Nash v. United States, 54 F.2d
1006, 1007 (2d Cir. 1932) cert. denied, 285 U.S. 556, 52 S.Ct. 457, 76
L.Ed. 945 (1932).
Com. v. Chapasco, 258 A.2d 638, 640 (Pa. 1969).
In the instant matter, the evidence of other drug transactions or activities does
not demonstrate any of the proper exceptions under the rule and the November drug
transactions should be excluded.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0007567-2017
CLIENT,
Defendant
POST SENTENCE MOTION
AND NOW COMES the Defendant, CLIENT, by his attorney from the Law Office of
the Public Defender of Montgomery County; Carrie L. Allman, Homicide Chief/Trial
Counsel, and respectfully submits this Post Sentence Motion of which the following is a
statement:
1. CLIENT was charged on September 19, 2017 with one count of Drug Delivery
Resulting in Death (18 Pa. C.S. §2506), and numerous other charges including possession
with intent to deliver, involuntary manslaughter, recklessly endangering another person,
obstruction, tampering with evidence, and abuse of a corpse.
2. These charges are based on an incident that occurred on, or about, March 29 –
March 30, 2017 in Pottstown when DECEDENT was found deceased in an apartment
complex on High Street.
3. CLIENT was arrested in connection with these charges on September 27, 2017.
4. A preliminary hearing was held on November 8, 2017 and all charges were held.
5. CLIENT’s Formal Arraignment was scheduled for January 3, 2018; however, he
waived his appearance at that proceeding via a signed waiver form at the time of his
preliminary hearing.
6. Due to the nature of the charges, this case was scheduled for a Status Conference
on December 11, 2017 before this Honorable Court.
7. At that time, a date of February 8, 2018 was set for a suppression hearing and a jury
trial date of April 16, 2018 was also scheduled.
8. The Court denied suppression and a jury trial commenced on April 16, 2018.
9. The Commonwealth proceeded on the following charges:
Count 1 – Drug Delivery Resulting in Death (F1)
Count 2 – Controlled Substance/Delivery – Fentanyl (F)
Count 3 – Controlled Substance Delivery – Methamphetamine (F)
Count 4 – Paraphernalia (M)
Count 5 – Paraphernalia (M)
Count 7 – Recklessly Endangering Another Person – (M2)
Count 8 – Hindering Apprehension (F3)
Count 10 – Tampering with Evidence (M2)
Count 11 – Abuse of a Corpse (M2)
Count 12 – Possession – Fentanyl (M)
Count 13 – Possession – Methamphetamine (M)
10. The Commonwealth had withdrawn Counts 6 (Involuntary Manslaughter) and 9
(Obstruction) prior to trial.
11. On April 18, 2018, the jury returned a verdict of guilty to all charges.
12. The Court ordered a Presentence Report and scheduled sentencing for July 6, 2018.
13. At sentencing, the Commonwealth noted that, due to merger, they would only be
seeking a sentence on the following counts:
Count 1 – Drug Delivery Resulting in Death – “DDRD” (F1)
Counts 4 and 5 – Paraphernalia (M)
Count 8 – Hindering (F3)
Count 11 – Abuse of a Corpse (M2)
14. CLIENT’s prior record score was noted to be a 1, and the guidelines were listed as
follows:
Count 1 – DDRD – 66 - 84 months (+/- 12 months)
Counts 4 and 5 – Paraphernalia – RS - 1 (+/- 3 months)
Count 8 – Hindering – RS - 9 (+/- 3 months)
Count 11 – Abuse of a Corpse – RS – 6 (+/- 3 months)
15. The Court imposed the following sentence:
Count 1 – DDRD – 15 – 40 years of incarceration
Count 8 – Hindering – 2-5 years of incarceration consecutive to Count 1
Count 11 – Abuse of a Corpse – 1-2 years of incarceration consecutive to Count 8
The effective date of the sentence was 9/27/17.
16. CLIENT’ total aggregate sentence is 18-47 years of incarceration in a state
correctional facility.
17. At every count, the Court sentenced well outside of the guidelines; in fact, the
sentence at Count 1 is more than twice the top range of the standard guidelines for the
offense. The guidelines called for 66-84 months in the standard range (5 and ½ to 7 years)
and the Court instead imposed a sentence of 15-40 years.
18. The minimum sentence is more than twice the guidelines, and the maximum is the
statutory maximum permitted by law.
19. The Court sentenced outside of the guidelines on Counts 8 and 11 as well, imposing
sentences well outside the guidelines at each charge, including imposing the statutory
maximum at Count 11.
20. All counts were run consecutive for the total sentence of 18-47 years.
21. This timely post sentence motion follows:
The Verdict Rendered was Contrary to the Weight of the Evidence, as such a new
trial should be awarded
The jury erred in returning its verdict because “the evidence presented was so
contrary to the verdict rendered that it shock’s one’s sense of justice and the award of a
new trial is imperative so that right may be given another opportunity to prevail.”
Commonwealth v. Smith, 861 A.2d 892, 895 (Pa. Super. 2004). The Commonwealth’s
evidence was of such low quality, tenuous, vague and uncertain as to make the verdict of
guilty pure conjecture; and, therefore, shocks of the conscience of the Court. A finding of
guilt under the circumstances of this case should shock the conscience of the Court. The
verdict was contrary to the weight of the evidence and a new trial should be awarded.
Some factors demonstrating that the verdict was against the weight of evidence are as
follows:
a. There were multiple people in and out of the apartment all day long while
DECEDENT was present and any of them could have provided the drugs that resulted in
DECEDENT’s overdose death, including Shemar Reed who currently has pending criminal
charges for drug delivery. Specifically, at the time of CLIENT’ trial, Mr. Reed was facing
charges for delivering heroin. Mr. Reed also has a history of crimen falsi and none of his
testimony is credible. Finally, Mr. Reed has every incentive to be dishonest and claim he
has seen CLIENT with drugs before as he is looking to curry favor with the Commonwealth
for his own criminal cases.
b. Despite also being in the apartment numerous times that day, the
Commonwealth failed to present David Hiller or “Jessica” despite evidence showing they
were present at various times throughout the day, interacted with DECEDENT and could
have provided drugs to DECEDENT.
c. The only bag of drugs found in the apartment was initially reported to contain
only heroin, until the date of trial when suddenly it was claimed that the lab does not report
fentanyl, only heroin due to the classifications of each drug, but that fentanyl was also in
the baggie. This was claimed despite other lab reports, by the same exact scientist, from
the same lab, in the same month, where BOTH Heroin and Fentanyl were listed in the
reports.
d. Despite the cause of death being Fentanyl and Meth, no such drugs were
found in the apartment.
e. Commonwealth witnesses agreed that DECEDENT had fresh needle marks in
his arm, yet there was NO testimony presented that he injected drugs inside the apartment
of CLIENT and Mr. Weigand, as such, it is clear that DECEDENT used drugs prior to his
arrival at the Apartment.
f. The testimony of Jennifer Weigand was wholly incredible where she had
received immunity despite having the exact same access to the apartment, the drugs, and
DECEDENT. Ms. Weigand also lived in the apartment, had access to drugs, admitted to
using the meth in the apartment, admitted to having access to the meth, and where Ms.
Weigand is seen on camera making food and doing nothing to ever assist DECEDENT,
and even leaving the apartment to go shopping, purchasing makeup and other items while
DECEDENT remained in her apartment building. Ms. Weigand’s testimony was the only
evidence stating that CLIENT had given the drugs to DECEDENT and was said only to
protect herself from prosecution and only after a grant of immunity.
For all of the foregoing reasons of fact and law, CLIENT requests a new trial as the
verdict rendered by the jury is contrary to the weight of the evidence presented.
The Sentence imposed is manifestly excessive, unreasonable, and an abuse of
discretion
The sentence imposed is manifestly excessive, unreasonable and an abuse of
discretion where the Court failed to consider the rehabilitative needs of the defendant, the
nature and characteristics of the defendant, failed to give careful consideration to all
relevant factors and imposed a sentence that is inconsistent with the norms underlying the
sentencing code. This is true where the sentence imposed at the lead charge is more than
twice the sentence recommended by the guidelines. The guidelines at Count 1 – Drug
Delivery Resulting in Death called for a sentence of 5 and ½ to 7 years in the standard
range (with +/- 12 months, or one year for aggravating or mitigating factors. The Court
imposed a sentence of 15-40 years at Count 1, well outside the guidelines, and without
adequate support or factors placed on the record. The Court then stacked consecutive
sentences for Counts 8 and 11, including sentences that were outside the guidelines at
those counts, and despite using the elements of those offenses (erasing surveillance,
abusing the body) as factors to increase the sentence at Count 1. The Court double
penalized CLIENT for the same conduct by using the elements of Counts 8, and 11 (at
which lengthy sentences were imposed) to justify a sentence double the guidelines at
Count 1.
The Sentencing Code requires that a sentence be consistent with the protection of
the public, the gravity of the offense, and the rehabilitative needs of the defendant. 42 Pa.
C.S. §9721(b). The sentence imposed by the Court fails to follow those standards. The
sentence focuses solely on the seriousness of the offense and the Court’s personal
feelings about the matter and how offensive the Court found the actions of CLIENT.
Furthermore, the Court focused solely on the seriousness of the offense at the
expense of considering other pertinent factors. The sentence imposed was manifestly
excessive, unreasonable, and abuse of discretion where the Court did not consider the
particular circumstances of the case or the nature and characteristics of the defendant.
Specifically, the Court did not consider all of the mitigating factors such as: the defendant’s
lack of family support, addiction issues as the defendant had an addiction to alcohol, the
defendant’s mental health issues including ADHD and depression. The sentence imposed
fails to consider not only the rehabilitative needs of CLIENT, but also his personal nature
and characteristics and therefore is an abuse of discretion.
Additionally, the Court put an emphasis on the defendant’s lack of remorse and
failure to take responsibility which is an improper factor to consider when the defendant
maintains his innocence. The Superior Court has noted that if a sentencing court
considers improper factors in imposing a sentence upon a defendant, although the
sentence thereby imposed is not rendered illegal, the court has committed an abuse of
discretion. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citing
Commonwealth v. Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (en banc).
The Court considered additional improper factors when it stated that CLIENT had
thrown water on DECEDENT and slapped him, where the evidence clearly demonstrated
those were the specific acts of others, namely Jessica. CLIENT did use a blood pressure
cuff and a shock collar to check on and attempt to waken DECEDENT. Additionally, the
evidence showed that CLIENT did not pull DECEDENT down the stairwell, but rather
Jennifer Weigand testified that Floyd Wilkins had committed that act.
[T]he proper standard of review when considering whether to affirm the sentencing
court’s determination is an abuse of discretion. Commonwealth v. Walls, 592 Pa. 557,
564, 926 A.2d 957, 961 (Pa. 2007). The abuse of discretion standard includes review of
whether the judgment exercised was unreasonable. Id. At 962. The Supreme Court has
noted that the Sentencing Code sets forth a requirement of appellate review for whether a
sentence outside of the guidelines is “unreasonable.” 42 Pa.C.S. § 9781c. Thus, the
statutory unreasonableness inquiry is a component of the jurisprudential standard of review
for an abuse of discretion. Commonwealth v. Walls, 592 Pa. 557, 565, 926 A.2d 957,
962 (Pa.2007).
Furthermore, the Superior Court has noted that it may vacate an appellant’s
sentence if the trial court abused its discretion by imposing a sentence that is manifestly
unreasonable or where the sentencing court fails to give “careful consideration to all
relevant factors in sentencing [appellant].” Commonwealth v. Parlante, 823 A.2d 927, 930
(Pa. Super. 2003) (citing Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)).
Additionally, it has been noted that an abuse of discretion occurs when a sentence is
clearly unreasonable or manifestly excessive under the circumstances of the case,”
Commonwealth v. Duffy, 491 A.2d 230, 233 n.3 (Pa.Super. 1985), or when the sentence
“commits an error of law.” Commonwealth v. Townsend, 443 A.2d 1139, 1140 (Pa. 1982).
Notably, an error of law occurs whenever a sentence “overlook[s] pertinent facts” or “disre-
gard[s] the force of evidence.” Townsend, 443 A.2d at 1140. In the instant matter, the
failure to consider CLIENT’ history, lack of significant prior criminal history, addiction issues,
rehabilitative needs, and the Court punished CLIENT for acts he did not commit, and for his
decision to exercise his right to not speak about this case during presentence interviews.
For all of the foregoing reasons of fact and law, the sentence imposed is an
abuse of discretion and should be modified to comport with the sentencing guidelines.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0005776-2016,
CLIENT,
Defendant
POST SENTENCE MOTION
AND NOW COMES the Defendant, CLIENT, by his attorney from the Law Office of
the Public Defender of Montgomery County; Carrie L. Allman, Homicide Chief/Trial
Counsel, and respectfully submits this Post Sentence Motion of which the following is a
statement:
1. CLIENT was charged at the above-captioned as follows: Count 1 - Drug Delivery
Resulting in Death; Count 2 - Recklessly Endangering Another person; Count 3 - Criminal
Use of a Communication Facility; Count 4 - Possession with Intent to Deliver (Heroin); and
Count 5 - Possession (Heroin).
2. These charges are connected to the January 29, 2016 overdose death of Ms.
DECEDENT.
3. CLIENT was not charged until June of 2016.
1
4. Numerous pretrial motions were filed and litigated and a Jury Trial commenced on
July 9, 2018.
1
Attorney Douglas Breidenbach Jr. represented CLIENT from the time he was
charged until January 19, 2017 when he withdrew, and the Office of the Public Defender
5. After numerous hours of deliberation, the Jury returned the following verdict:
Count 1 – Drug Delivery Resulting in Death - Guilty
Count 2 – Recklessly Endangering Another Person – Not Guilty
Count 3 – Criminal Use of a Communication facility – Guilty
Count 4 – Possession with Intent to Deliver – Guilty
6. On October 30, 2018, CLIENT appeared for sentencing.
7. The Court had ordered a PSI and it was reviewed by both parties.
8. Additionally, both parties agreed that Count 4 would merge with Count 1 for
sentencing purposes. As such, a sentence could only be imposed at Counts 1 and 3.
9. CLIENT’s prior record score listed him as an RFEL; as such, the following guidelines
applied:
Count 1 – Drug Delivery Resulting in Death – OGS – 13; PRS-RFEL
Guidelines: 108-126 months (9-10 and ½ years) +/- 12 months
Count 3 – Criminal Use of a Communication facility – OGS -5; PRS –RFEL
Guidelines: 24-36 months (2-3 years) +/- 3 months
10. The Defense requested a sentence that considered CLIENT’s mitigating factors,
including his traumatic childhood, and his expressions of regret and requested a sentence
of 8-16 years at Count 1 and a concurrent sentence at Count 3.
11. The Commonwealth requested a sentence at the top of the standard range at each
Count, and requested they run consecutive.
12. The Court imposed the following sentence:
was appointed.
Count 1 – 10 and ½ to 28 years
Count 3 – 2 and ½ to 7 years (consecutive to Count 1)
13. As such, CLIENT’s aggregate sentence is 13-35 years of incarceration.
14. This timely post sentence motion follows:
The verdict rendered was contrary to the weight of the evidence, as such a new
trial should be awarded
The jury erred in returning its verdict because “the evidence presented was so
contrary to the verdict rendered that it shock’s one’s sense of justice and the award of a
new trial is imperative so that right may be given another opportunity to prevail.”
Commonwealth v. Smith, 861 A.2d 892, 895 (Pa. Super. 2004). The Commonwealth’s
evidence was of such low quality, tenuous, vague and uncertain as to make the verdict of
guilty pure conjecture; and, therefore, shocks of the conscience of the Court. A finding of
guilt under the circumstances of this case should shock the conscience of the Court. The
verdict was contrary to the weight of the evidence and a new trial should be awarded.
Some factors demonstrating that the verdict was against the weight of evidence are as
follows:
a. Not a single witness saw a drug exchange between CLIENT and
DECEDENT.
b. The texts and brief visit were consistent with what CLIENT explained, in his
own words, to his girlfriend in a jail call; namely that DECEDENT was badgering him for
drugs and he went to tell her to stop.
c. CLIENT was not arrested in possession of any drugs, nor is there any
evidence that he ever had drugs on him.
d. The texts show 12 messages, with 8 of them being sent from DECEDENT
seeking drugs and asking where CLIENT is, and why he never keeps his promises.
e. The theory that DECEDENT as the “buyer” is setting the price on the drugs is
inconsistent with common sense drug dealing as the dealer would seek to maximize his
profit, not allow a buyer to set terms and conditions.
f. DECEDENT was experiencing a substance use disorder and could have
received the drugs from others, particularly where her place of work employed those with
previous convictions, where the apartment complex she lived in had numerous people
engaging in drug activity mere doors down, and where she had a history of drug addiction
and use and would reasonably know where to find drugs.
g. The evidence presented was weighted in favor of the cause of death not
being a fentanyl overdoes, but rather the result of DECEDENT’s other prescription drugs.
For all of the foregoing reasons of fact and law, CLIENT requests a new trial as the
verdict rendered by the jury is contrary to the weight of the evidence presented.
The Sentence imposed is manifestly excessive, unreasonable, and an abuse of
discretion
The sentence imposed is manifestly excessive, unreasonable and an abuse of
discretion where the Court failed to consider the rehabilitative needs of the defendant, the
nature and characteristics of the defendant, failed to give careful consideration to all
relevant factors and imposed a sentence that is inconsistent with the norms underlying the
sentencing code.
Despite being a “standard” range sentence, the sentences imposed both start at the
top of the standard range, the maximum is more than twice the minimum at each count,
and each count was made to run consecutive. However, even a standard range sentence
can be an abuse of discretion as the guidelines are only advisory, a court must consider a
variety of factors in sentencing and is not bound by the guidelines. “Guidelines have no
binding effect, create no presumption in sentencing, and do not predominate over other
sentencing factors-they are advisory guideposts that are valuable, may provide an essential
starting point, and that must be respected and considered; they recommend, however,
rather than require a particular sentence.” Commonwealth v. Walls, 592 Pa. 557, 570, 926
A.2d 957, 964 - 965 (Pa. 2007).
In the instant matter, a sentence of 13-35 years does not reflect a careful
consideration of all factors. The Sentencing Code requires that a sentence be consistent
with the protection of the public, the gravity of the offense, and the rehabilitative needs of
the defendant. 42 Pa. C.S. §9721(b). The sentence imposed by the Court fails to follow
those standards. The sentence focuses solely on the seriousness of the offense and the
Court’s personal feelings about the matter and how offensive the Court found the actions of
CLIENT.
Furthermore, the Court focused solely on the seriousness of the offense at the
expense of considering other pertinent factors. The sentence imposed was manifestly
excessive, unreasonable, and abuse of discretion where the Court did not consider the
particular circumstances of the case or the nature and characteristics of the defendant.
Specifically, the Court did not consider all of the mitigating factors such as: the defendant’s
traumatic history of having a drug-addicted mother, an absent father, and a step-father who
was murdered; the defendant’s own addiction issues as the defendant had an addiction to
alcohol, marijuana, and percocets. As such, the sentence imposed fails to consider not only
the rehabilitative needs of CLIENT, but also his personal nature and characteristics and
therefore is an abuse of discretion.
The Superior Court has noted that it may vacate an appellant’s sentence if the trial
court abused its discretion by imposing a sentence that is manifestly unreasonable or
where the sentencing court fails to give “careful consideration to all relevant factors in
sentencing [appellant].” Commonwealth v. Parlante, 823 A.2d 927, 930 (Pa. Super. 2003)
(citing Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)). Additionally, it has
been noted that an abuse of discretion occurs when a sentence is clearly unreasonable or
manifestly excessive under the circumstances of the case,” Commonwealth v. Duffy, 491
A.2d 230, 233 n.3 (Pa.Super. 1985), or when the sentence “commits an error of law.”
Commonwealth v. Townsend, 443 A.2d 1139, 1140 (Pa. 1982). Notably, an error of law
occurs whenever a sentence “overlook[s] pertinent facts” or “disregard[s] the force of
evidence.” Townsend, 443 A.2d at 1140.
In the instant matter, the Court focused on the seriousness of the offense to the
exclusion of other factors, and imposed a sentence based on the idea that dealers should
“know” what their product is, which is wholly inconsistent with the testimony of the
Detectives offered at trial, and based on the Court’s distaste for this particular crime. The
Court punished CLIENT for factors already taken into account in the guidelines – namely
the seriousness of the offense and CLIENT’s prior record. The Court failed to consider the
mitigating evidence in fashioning a sentence and therefore imposed a sentence that is
excessive and not in keeping with the norms underlying the sentencing code.
For all of the foregoing reasons of fact and law, the sentence imposed is an abuse of
discretion and should be modified.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0007271-2017
Drug Delivery Resulting in Death
CLIENT,
Defendant
SUPPLEMENTAL MOTION TO SUPPRESS CELL SERVICE LOCATION
INFORMATION
AND NOW COMES the Defendant, CLIENT, by his attorney from the Law Office of
the Public Defender of Montgomery County; Carrie L. Allman, Homicide Chief/Trial
Counsel, and respectfully submits this Pre-Trial Motion of which the following is a
statement:
1. CLIENT was charged on September 28, 2017 at OTN T 975386-6 with numerous
charges, including one count of Drug Delivery Resulting in Death (18 Pa. C.S. §2506).
2. This charge is based on an incident that occurred on, or about, March 29, 2017 in
Spring City, Chester County, Pennsylvania involving the overdose death of DECEDENT.
3. Chester County provided a McPhail letter permitting prosecution in Montgomery
County.
4. The pertinent facts, as alleged in the affidavit, are as follows:
a. Police responded to an overdose on March 29, 2017 around 9:17pm in
Spring City. Upon arrival, Amanda Jones was found at the scene, and a male,
DECEDENT, was found unresponsive in a vehicle.
b. The vehicle was a Honda Accord that belonged to DECEDENT.
c. Medics provided care, but DECEDENT was pronounced dead and
transported to the coroner’s office.
d. DECEDENT cause of death was listed as acute fentanyl and alcohol
intoxication.
e. Ms. Jones told police she had snorted one bag of Heroin and Treys
snorted two bags. Jones stated she passed out and when she awoke, she found Treys
unresponsive and called 911.
f. Jones told police she had purchased 12 bags of heroin, for $60, from a
black male she knows as “Sheed”.
g. Jones stated that Treys asked her to get the heroin because he did not
have any contacts.
h. Jones stated she was introduced to “Sheed” about 12-18 months ago and
was provided with “Sheed’s phone number so she could make arrangements with him
to purchase heroin.
i. The number she provided as being connected with “Sheed” was (484)
804-1644.
j. Jones stated she purchased heroin on March 29, 2017 by a young black
male who was sent by “Sheed”; this purchase occurred in Norristown, Pa. She did not
meet “Sheed” that evening.
k. Jones allowed police to search her phone and texts were recovered between
Jones and individual she says is “Sheed”. Notably, not all text messages are available
because Jones erased them. The messages are alleged to be an effort by Ms. Jones to
obtain heroin from “Sheed”.
l. Jones says she purchased 12 bags from this unknown black male she met
on March 29, 2017, the black male she received the drugs from was not “Sheed”.
m. 12 bages of suspected heroin were recovered from Trey’s vehicle. The
suspected heroin was later identified as heroin and fentanyl.
n. On March 30, 2017, officers arranged a controlled buy between Jones and
“Sheed”. Again, the individual who delivered the drugs was not “Sheed”.
o. Another controlled buy was conducted on April 4, 2017 between a CI and
CLIENT, and CLIENT was arrested.
p. The affidavit also references two controlled buys in November 2016 with CIs.
q. Wilson was arrested following the controlled buy on April 4, 2018.
r. Wilson had $512.00 dollars on him and two cell phones – a Samsung Galaxy
and an Iphone. The Samsung phone rang when Detectives called (484) 804-1644.
s. On March 31, 2017, a Court order was issued in Chester County allowing
subscriber information, call detail records, and cell tower/location information for cell
number (484) 804-1644.
t. ON September 19, 2017, a second application was made under the wiretap
act for call detail records and cell service location information with the affiant being
Detective Fedak.
u. Then, on March 6, 2018, Detective Fedak, sought a warrant for the same
information.
5. This supplemental motion seeking suppression of certain evidence follows:
CELL SERVICE LOCATION DATA
6. On March 31, 2017, an order was issued allowing access to subscriber information,
call logs details, and cell service location data from number (484) 804-1644.
7. This information was obtained by a court order pursuant to the Wiretap Act 18 Pa.
C.S. §5743 (c) and (d).
8. The Wiretap Act allows for a court order to issue where there are “specific and
articulable facts showing that there are reasonable grounds to believe that …records or
other information sought, are relevant and material to an ongoing criminal investigation”.
9. This is a reasonable suspicion standard and falls below the probable cause standard
that would be required for a warrant to issue.
10. Again, on September 19, 2017, information was sought through the wiretap act with
affiant Detective Fedak.
11. Again, this information was obtained by a court order pursuant to the Wiretap Act 18
Pa. C.S. §5743 (c) and (d).
12. ONLY in March of 2018, did Detective Fedak seek a warrant for the same
information, and only because of the pending United States Court Supreme Court case
United States v. Carpenter, 819 F.3d 880 dealing with this exact question – namely
whether or not a warrant is required by the 4
th
amendment in order to obtain cell service
location information. See Carpenter v. United States, 2017 U.S. LEXIS 3686 (U.S., June 5,
2017).
13. This warrant was sought on March 6, 2018. The warrant was also sought by
Detective Fedak.
14. Pretrial Motions were due in this case on March 30, 2018.
15. The Defense filed several motions, but one of which sought suppression of CSLI
based on the pending carpenter case and arguing that a warrant was required. (see
previously filed suppression motion)
16. The Commonwealth did not provide the Defense a copy of the warrant until June 18,
2018.
17. On June 22, 2018, The US Supreme Court issued its decision in Carpenter, holding
that acquisition of historical cell-site location information (CSLI) was a search under the 4
th
amendment, it invaded a reasonable expectation of privacy, obtaining the information from
a third party did not overcome the 4
th
amendment protections, and that a warrant was
needed to obtain CSLI in the absence of an exception, such as exigent circumstances.
Carpenter v. United States, 2018 U.S. LEXIS 3844 (U.S., June 22, 2018).
18. As such, it is now clear that CSLI is private information and a warrant is required to
obtain historic CSLI information.
19. Therefore, on March 6, 2018, the Commonwealth sought a warrant for the exact
same information it had already obtained unlawfully through the provisions of the wiretap
act.
20. This subsequent warrant was obtained by the same affiant, there is no independent
source, and the information obtained from the warrant, namely the cell service location
information must be suppressed.
21. The Commonwealth cannot rely on Commonwealth v. Henderson, 47 A.3d 797 (Pa.
2012) which applies the independent source doctrine. Under Henderson, evidence tainted
by illegal police conduct may admitted if the evidence can be fairly regarded as having an
origin independent of the unlawful conduct. Id.
22. First, Henderson, is inconsistent with the standards the Pennsylvania Supreme
Court set for itself in Commonwealth v. Melendez where the Court held that “application of
the independent source doctrine is proper only in the very limited circumstances where the
independent source is truly independent from both the tainted evidence and the police or
investigative team which engaged in the misconduct by which the tainted evidence was
discovered.” Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996).
23. Second, there is NO independent source at all in this matter as Detective Fedak
sought both the wiretap application and the subsequent warrant.
24. The taint cannot be cured by simply getting a warrant.
25. It is clear that there is support for exclusion when the tainted evidence is not truly
independent and in this case, the evidence is not independent where the “new” affiant
relied on the materials he learned from the former affiant, including an in-person
conversation with the prior affiant, and where the warrant was sought in preparation for trial
at which time, the new affiant, employed by the same investigative agency knew all of the
details of the case and what the prior search had revealed.
26. There is no independent source in the instant matter and there are not the factual
circumstances that existed in Henderson, which involved a rape case and the need for a
subsequent blood draw due to some questions with the first warrant. The Court expressly
stated “in the present circumstances, we are unwilling to enforce a “true independence” rule
in the absence of police misconduct and on pain of the Commonwealth being forever
barred from obtaining non-evanescent evidence connecting Appellant with his crimes”.
Henderson, 47 A.3d at 804.
27. Outside of the federal 4
th
amendment privacy protections at play, it is important to
note that the Pennsylvania Constitution is being violated and this is more significant as
Article I §8 of the Pennsylvania Constitution has long encompassed a broader range of
protections than those provided by the 4
th
amendment.
28. The right to be free from unreasonable searches and seizures is guaranteed by the
United States and Pennsylvania Constitutions. The Pennsylvania Constitution provides
that: The people shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures, and no warrant to search any place or seize any
person or things shall issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation, subscribed to by the affiant. Pa. Const.
Article I §8. The United States Constitution provides that: The right of the people to be
secure in their persons, houses, papers and effects, against unreasonable search and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized. US Const. 4
th
Amend.
29. Despite the fact that the two sections are very similar, and both provisions guarantee
protection from “unreasonable searches and seizures”, Pennsylvania Courts have
recognized that our state constitution can provide greater rights and protections to the
citizens of this Commonwealth than those provided under similar provisions of the federal
constitution. Commonwealth v. Crouse, 729 A.2d 588, 595 (Pa. Super. 1999) (citing
Commonwealth v. Edmunds, supra 586 A.2d 887, 894 (Pa. Super. 1991)).
30. The purpose behind Pennsylvania’s exclusionary rule differs from the purpose of the
exclusionary rule founded in the Fourth Amendment. The Fourth Amendment's
exclusionary rule has been construed by the United States Supreme Court as serving
solely a deterrent purpose [to police misconduct], whereas the exclusionary rule under
Article I, Section 8 has been interpreted by this Court to serve the purposes of
safeguarding privacy and ensuring that warrants are issued only upon probable cause.
Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1159 n. 5 (2000) (citations omitted);
see Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).
31. Pennsylvania Courts have recognized that our state constitution can provide greater
rights and protections to the citizens of this Commonwealth than those provided under
similar provisions of the federal constitution. Commonwealth v. Crouse, 729 A.2d 588, 595
(Pa. Super. 1999) (citing Commonwealth v. Edmunds, supra 586 A.2d 887, 894 (Pa. Super.
1991)). The exclusionary rule is one area in which Pennsylvania has granted a greater
right than that afforded by the 4
th
Amendment based upon this Commonwealth’s belief that
the heart of the exclusionary rule in Pennsylvania is privacy. Commonwealth v. Williams,
547 Pa.577, 692 A.2d 1031 (1997).
31. As such, the issue of police misconduct is not the focus; rather the privacy interest
that has been invaded.
32. In the instant matter, the Commonwealth obtained phone logs detailing calling
information such as numbers dialed and when, length of call, number of calls, as well as
location data for those calls.
33. This is far more expansive information than that which can be obtained by pen
registers, and the Pennsylvania Supreme Court has held that a warrant is required under
Pennsylvania law for the use of a pen register, which is a device that merely records
numbers called from a particular phone line. The court held that probable cause was
required to place a pen register on appellants' telephone lines and that there was no "good
faith" exception to the probable cause requirement. Commonwealth v. Melilli, 521 Pa. 405,
408, 555 A.2d 1254, 1255 (1989).
34. The information was obtained in this case without a warrant, as such, it was an
unconstitutional search and seizure and the evidence gained must be suppressed. No
subsequent warrant can issue that ‘saves” the original unlawful search.
35. Additionally, there is no good-faith exception to the warrant requirement in
Pennsylvania. In fact, the Edmunds Court noted that, to adopt a ‘good faith’ exception to
the exclusionary rule, would virtually eliminate the safeguards which have developed under
the Pennsylvania Constitution over the past 200 years. Commonwealth v. Edmunds, 586
A.2d 887, 889 (Pa. 1991).
For all of the foregoing reasons of fact and law, the evidence, obtained without a
warrant, namely the subscriber information, call logs, and cell service location information
connected to (484) 804-1644 should be suppressed.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0007567-2017,
CLIENT,
Defendant
MOTION TO SUPPRESS STATEMENTS AND PHYSICAL EVIDENCE
AND NOW COMES the Defendant, CLIENT, by his attorney from the Law Office of
the Public Defender of Montgomery County; Carrie L. Allman, Homicide Chief/Trial
Counsel, and respectfully submits this Pre-Trial Motion of which the following is a
statement:
1. CLIENT was charged on September 19, 2017 with one count of Drug Delivery
Resulting in Death (18 Pa. C.S. §2506), and numerous other charges including possession
with intent to deliver, involuntary manslaughter, recklessly endangering another person,
obstruction, tampering with evidence, and abuse of a corpse.
2. These charges are based on an incident that occurred on, or about, March 29 –
March 30, 2017 in Pottstown when DECEDENT was found deceased in an apartment
complex on High Street.
3. CLIENT was arrested in connection with these charges on September 27, 2017.
4. On October 4, 2017, after meeting with CLIENT, and confirming that he qualified for
the services of the Public Defender, undersigned counsel filed a Motion with then
Administrative Judge, Steven T. O’Neill, seeking appointment. This was filed pursuant to
the policy established by Judge O’Neill for all homicide cases, including drug delivery
resulting in death cases.
5. On October 17, 2017, an Order was entered appointing undersigned counsel, and
the Office of the Public Defender to represent CLIENT.
6. A preliminary hearing was held on November 8, 2017 and all charges were held.
7. CLIENT’s Formal Arraignment was scheduled for January 3, 2018; however, he
waived his appearance at that proceeding via a signed waiver form at the time of his
preliminary hearing.
8. Due to the nature of the charges, this case was scheduled for a Status Conference
on December 11, 2017 before this Honorable Court.
9. At that time, a date of February 8, 2018 was set for a suppression hearing and a jury
trial date of April 16, 2018 was also scheduled.
10. The Commonwealth provided discovery, including the applicable search warrants
and police reports on January 9, 2018, with additional materials provided on January 10,
2018 and January 12, 2018, including numerous CDs containing video and phone
downloads.
11. This motion, seeking suppression of statements attributed to CLIENT, as well as
physical items gained from CLIENT’s residence at 376 East High Street (Apartment 9)
Pottstown, PA, follows
Statements obtained from CLIENT should be suppressed as they were obtained in
violation of the 5
th
amendment of the United States Constitution and Article I §9 of the
Pennsylvania Constitution as they were obtained without adequate safeguards as
required by Miranda
12. The pertinent facts, as alleged in the affidavit of probable cause are as follows:
a. Pottstown Police were dispatched to 374 E. High Street in the early morning
hours of March 30, 2017 for a report of an unconscious person. This is an apartment
building and police were responding to a 911 call from Jennifer Wiegand, an occupant of
Apartment 9.
b. Upon entry to the Apartment Complex, officers observed a white male lying at
the bottom of a stairway; the male was deceased.
c. The deceased was identified as DECEDENT.
d. Ms. Wiegand advised that DECEDENT was a guest in her apartment earlier
in the day. Ms. Wiegand resided in Apartment 9 with her boyfriend, CLIENT.
e. CLIENT was described as being “uncooperative” at the scene.
f. CLIENT was later questioned, at the Pottstown Police Station (Borough Hall)
by Sergeant Markovich.
g. CLIENT is alleged to have stated that:
-DECEDENT came to the apartment and used heroin in the living room.
-A plan was made to put DECEDENT in the hallway hoping he would leave when he
woke up.
-Later, DECEDENT did not look good, had a low body temperature, and police were
called.
h. Sergeant Markovich told CLIENT that he “thought there was more going on
here” and that “if Kevin used heroin in his apartment and overdosed it was not his [Ron’s]
fault”.
i. CLIENT is then alleged to have said “yeah, but what about the person that
gave it to him?”
13. CLIENT seeks to suppress the entire contents of this conversation as he was not
provided Miranda Warnings, was in police custody, was subjected to interrogation, and was
directly asked questions about an on-going investigation which were designed to elicit an
incriminating response.
14. CLIENT was transported to the police station by officers and asked questions about
what Officers deemed a suspicious death, this transport was not of his own volition or ability
and amounts to custodial detention. This transport and questioning happened after
CLIENT declined to cooperate at his own residence, and the police taking CLIENT, and his
girlfriend to a police station to ask additional questions was designed to be coercive and
intimidating. Additionally, the police seized CLIENT’s cell phone at the station and did not
return it but sought a warrant for its contents.
15. If the police choose to engage in a procedure that significantly deprives one of their
freedom than they bear the burden of providing appropriate warnings to the individual.
The Pennsylvania Supreme Court has held:
A person is in custody for Miranda purposes only when he ‘is physically
denied his freedom of action in any significant way or is placed in a situation in
which he reasonably believes that his freedom of action or movement is
restricted by the interrogation.’ Commonwealth v. Boczkowski, 577 Pa. 421,
846 A.2d 75, 90 (2004) (quoting Commonwealth v. Johnson, 556 Pa. 216, 727
A.2d 1089, 1100 (1999)) (footnote omitted). “The standard for determining
whether an encounter with the police is deemed ‘custodial’ ... is an objective
one based on a totality of the circumstances with due consideration given to
the reasonable impression conveyed to the person interrogated....”
Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 148 (1998) (citing
Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078, 1085 (1993)).
Commonwealth v. Johnson, 42 A.3d 1017, 1028 (Pa. 2012).
16. While at the police station, CLIENT was asked questions regarding an on-going
investigation about an individual who had died at his apartment, and these questions were
being asked after CLIENT had indicated he did not wish to speak with police at his
residence.
17. Removing CLIENT from his residence, using police transport, questioning at a police
station, and telling CLIENT that officers believed there was “more” to the story was the
functional equivalent of a custodial interrogation and CLIENT was not provided any
Miranda warnings:
18. The test for determining whether or not a person is in custody for Miranda purposes
is whether he “... is physically deprived of his freedom of action in any significant way or is
placed in a situation in which he reasonably believes that his freedom of action or
movement is restricted by such interrogation....” Commonwealth v. O'Shea, 318 A.2d 713,
715 (1974), cert. denied 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 685 (1974), (emphasis
deleted; citation omitted). Furthermore, the test for custodial interrogation does not depend
upon the subjective intent of the law enforcement officer interrogator. Commonwealth v.
Medley, 612 A.2d 430, 433 (Pa.1992).
19. Furthermore, CLIENT was being asked questions designed to elicit an incriminating
response, and an “interrogation “occurs when the police “should know that their words or
actions are reasonably likely to elicit an incriminating response from the suspect.”
Commonwealth v. Ingram, 814 A.2d 264, 271 (Pa.Super. 2002).
20. CLIENT had provided answers to the police questioning; however, Sergeant
Markovich expressly told him that he didn’t believe him, that there was more to the story,
and then Sergeant Markovich stated that it would not be CLIENT’s “fault” if someone did
drugs and died in his apartment. It was only after this suggested scenario that CLIENT
stated “what about the person that gave it to him”.
21. The totality of the circumstances and the nature of the questioning demonstrates
that this was a custodial interrogation and that the failure to provide adequate Miranda
warnings and safeguards should result in the suppression of all statements made by
CLIENT on March 30, 2017.
22. The failure to provide adequate safeguards violates CLIENT’s rights as provided by
the 5
th
amendment of the US Constitution and Article I §9 of the Pennsylvania Constitution.
Items obtained and searched as a result of the search warrants dated March 30,
2017 and all additional warrants should be suppressed as the warrants lacked probable
cause, and were overly broad
23. On March 30, 2017, a search warrant was sought for Apartment 9 of 374 East High
Street in Pottstown, PA. This warrant sought narcotics, drug paraphernalia, digital storage
devices, surveillance systems, SD Cards, computer hard-drives, external hard-drives, and
indicia of occupancy.
24. As a result of this search and seizure, an additional warrant was sought and
obtained to download/search the flash drives and computer seized on March 30, 2017, and
a separate warrant was obtained on April 3, 2017 to conduct a second search of the
residence for additional electronic storage devices and hardware due to “detectives not
realizing what that device actually was at that time”. (Warrant and Affidavit dated April 3,
2017)
25. All items obtained as a result of the initial March 30, 2017 warrant, and the
subsequent warrants connected to that initial warrant should be suppressed as they were
obtained without probable cause and the warrants were overly broad.
26. It is clear that both the 4
th
amendment of the United States Constitution and Article I
§8 of the Pennsylvania Constitution protect against unreasonable searches and seizures.
The expectation of privacy protected by the United States and Pennsylvania Constitutions
has been held to be greatest in one's home. See Commonwealth v. Gutierrez, 750 A.2d
906 (Pa.Super.2000).
27. Furthermore, for a warrant to issue, probable cause must exist. In determining
whether probable cause exists, Pennsylvania applies the “totality of the circumstances”
test. Commonwealth v. Sharp, 683 A.2d 1219, 1223 (1996). The duty of the Superior Court
is to ensure that the magistrate had a “substantial basis for concluding that probable cause
existed.” Id.
28. It is well established that a search warrant is not to be issued without probable cause
and the issuing authority cannot consider any evidence outside the four corners of the
affidavit in determining whether or not probable cause has been established. Pa.R.Crim.P.
203(B); Commonwealth v. Sharp, 683 A.2d 1219 (Pa.Super. 1996); Commonwealth v.
Singleton, 603 A.2d 1072 (Pa.Super. 1992). In determining whether probable cause exists,
Pennsylvania looks to the “totality of the circumstances”. Commonwealth v. Gray, 503 A.2d
921 (Pa. 1985).
29. In the instant matter, the warrant obtained on March 30, 2017 is not supported by
probable cause. The affidavit, after listing basic qualifications for the affiant, states that
DECEDENT was found deceased outside of Apartment 9 with overdose being the
suspected cause of death, that DECEDENT was at the residence, and removed when he
passed put, and that surveillance cameras existed in the apartment.
30. This bare-bones affidavit provides no support for why the affiant wants to search the
residence or what they anticipate gaining from the search or the items to be seized. There
is no connection made between the items to be searched for/seized and the death of
DECEDENT or any other criminal act.
31. The inclusion of surveillance items is overly broad where no time frame or limits are
placed on such a search, and there was no information to support why the surveillance was
being sought of the interior/exterior of a private residence. Surveillance items are perfectly
legal and have no inherent criminality and the affidavit lacks any support for the purpose of
such a seizure and then the subsequent downloads of this equipment.
32. A residential search warrant may only be issued if there exists present probable
cause to believe that contraband, evidence of crime, or stolen property will be found inside
the residence sought to be searched.
33. The determination of whether or not probable cause exists is to be made solely via
review of the affidavits submitted by the officer seeking the warrant. See Commonwealth v.
Edmunds, 586 A.2d 887, 891 (Pa. 1991) ("courts in Pennsylvania shall not consider oral
testimony outside the four corners of the written affidavit to supplement the finding of
probable cause for a search warrant").
34. The affidavit of probable cause failed to satisfy these requirements, and
consequently the search warrant issued in reliance upon the defective affidavit was itself
defective. That is, the affidavit failed to specify sufficient facts permitting the issuing
authority to conclude that present probable cause existed, at the time the warrant was
sought, to conclude that contraband was to be found inside the residence or within the
contents of the home’s surveillance systems. It was therefore a defectively-issued warrant
and all items seized should be suppressed.
35. Additionally, it was overly-broad to seek a warrant for any and all electronics and
electronic storage items. Items to be searched for must be stated with specificity,a nd
general searches are not permitted. “A warrant unconstitutional for its overbreadth
authorizes in clear or specific terms the seizure of an entire set of items, or documents,
many of which will prove unrelated to the crime under investigation. ... An overbroad
warrant is unconstitutional because it authorizes a general search and seizure.”
Commonwealth v. Melvin, 2014 PA Super 181, 103 A.3d 1, 18.
36. Finally, a cell phone was also seized from CLIENT at the time he was taken to the
police station on March 30, 2017 for questioning. A subsequent search warrant allowed for
a download and search of the phone. At this time, the Commonwealth has indicated that
no such download has been possible. However, should any items from Mr.. Purvis’s phone
be recovered as evidence, the Defense would seek suppression as the phone was
unlawfully seized without reasonable suspicion or probable cause, and the warrant lacked
probable cause.
For all of the foregoing reasons of fact and law, the Defense requests suppression of
statements attributed to CLIENT, as well as any items obtained as a result of the search of
Apartment 9 including surveillance feeds, videos, and all electronic items.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0005776-2016,
CLIENT,
Defendant
MOTION TO SUPPRESS
1. CLIENT is charged at the above-captioned as follows: Count 1 - Drug Delivery
Resulting in Death; Count 2 - Recklessly Endangering Another person; Count 3 - Criminal
Use of a Communication Facility; Count 4 - Possession with Intent to Deliver (Heroin); and
Count 5 - Possession (Heroin).
2. These charges are connected to the January 29, 2016 death of DECEDENT.
3. CLIENT was not charged until June of 2016.
1
4. During the investigation, a warrant was sought, and obtained for subscriber
information and identification of cell phone number (484) 358-8938. (Exhibit A attached)
5. The affidavit in support of the application states that “based on the affiant’s
knowledge, training, and experience, the victim and the individual possessing telephone
facility (484) 358-8938 were engaging in a drug-related conversation”. (see Exhibit A –
affidavit at p. 3).
6. The affidavit then states “Specifically, the victim ordered four (4) bags of purported
1
Attorney Douglas Breidenbach Jr. represented CLIENT from the time he was
charged until January 19, 2017 when he withdrew, and the Office of the Public Defender
was appointed. Prior Counsel provided Discovery to the Office of the Public Defender, and
heroin and agreed to pay $10.00 U.S. currency per bag.” (Exhibit A – affidavit at p. 3)
7. However, this is a material misstatement as the text messages never use the word
heroin or state any drug terms.
8. There are 429 text messages associated with the download of DECEDENT’s phone.
Within those messages, there are 12 text messages between DECEDENT and an
individual listed as “Rachel” with the phone number of (484)358-8938.
9. The text messages at issue begin with DECEDENT asking Rachel if she will be
around in 45 minutes to come to her apartment. DECEDENT then asks if Rachel wants to
meet her or if she should call Rachel. Rachel asks what DECEDENT needs, and
DECEDENT states, “depends you giivin to me for 10 or 15”, DECEDENT then sends a text
that says “is really appreciate 10 then I’d need 4”. (see Exhibit B – attached, text
messages p. 22; numbers 412-423; texts are included as they appear in the Discovery
without spelling or grammar correction)
10. Despite the language used in the application that the victim ordered 4 bags of
heroin for 10 dollars each, there are no text messages that the use the word heroin, or
clearly indicate a plan to purchase heroin for a certain price.
11. It is clear that material misstatements in a warrant are improper and subject to
investigation through a pre-trial proceeding:
In deciding today that, in certain circumstances, a challenge to a warrant's
veracity must be permitted, we derive our ground from language of the
Warrant Clause itself, which surely takes the affiant's good faith as its
premise: "[No] Warrants shall issue, but upon probable cause, supported by
Oath or affirmation . . . ." Judge Frankel, in United States v. Halsey, 257
F.Supp. 1002, 1005 (SDNY 1966), aff'd, Docket No. 31369 (CA2, June 12,
1967) (unreported), put the matter simply: "[When] the Fourth Amendment
demands a factual showing sufficient to comprise 'probable cause,' the
after review, this motion follows.
obvious assumption is that there will be a truthful showing" (emphasis in
original). This does not mean "truthful" in the sense that every fact recited in
the warrant affidavit is necessarily correct, for probable cause may be
founded upon hearsay and upon information received from informants, as
well as upon information within the affiant's own knowledge that sometimes
must be garnered hastily. But surely it is to be "truthful" in the sense that the
information put forth is believed or appropriately accepted by the affiant as
true. It is established law, see Nathanson v. United States, 290 U.S. 41, 47
(1933); Giordenello v. United States, 357 U.S. 480, 485-486 (1958); Aguilar
v. Texas, 378 U.S. 108, 114-115 (1964), that a warrant affidavit must set
forth particular facts and circumstances underlying the existence of probable
cause, so as to allow the magistrate to make an independent evaluation of
the matter. If an informant's tip is the source of information, the affidavit must
recite "some of the underlying circumstances from which the informant
concluded" that relevant evidence might be discovered, and "some of the
underlying circumstances from which the officer concluded that the informant,
whose identity need not be disclosed, . . . was 'credible' or his information
'reliable.'" Id., at 114. Because it is the magistrate who must determine
independently whether there is probable cause, Johnson v. United States,
333 U.S. 10, 13-14 (1948); Jones v. United States, 362 U.S. 257, 270-271
(1960), it would be an unthinkable imposition upon his authority if a warrant
affidavit, revealed after the fact to contain a deliberately or recklessly false
statement, were to stand beyond impeachment.
Franks v. Delaware, 438 U.S. 154, 164-165 (U.S. 1978).
12. CLIENT submits that, based on the misstatement in the application that a heroin sale
was discussed; he is entitled to a hearing on the validity of the warrant and whether or not
probable cause existed for the warrant to be issued, particularly if the misstatement is
excised from the application.
13. This is the appropriate remedy per Franks, which noted:
In sum, and to repeat with some embellishment what we stated at the
beginning of this opinion: There is, of course, a presumption of validity with
respect to the affidavit supporting the search warrant. To mandate an
evidentiary hearing, the challenger's attack must be more than conclusory
and must be supported by more than a mere desire to cross-examine. There
must be allegations of deliberate falsehood or of reckless disregard for the
truth, and those allegations must be accompanied by an offer of proof. They
should point out specifically the portion of the warrant affidavit that is claimed
to be false; and they should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable statements of witnesses
should be furnished, or their absence satisfactorily explained. Allegations of
negligence or innocent mistake are insufficient. The deliberate falsity or
reckless disregard whose impeachment is permitted today is only that of the
affiant, not of any nongovernmental informant. Finally, if these requirements
are met, and if, when material that is the subject of the alleged falsity or
reckless disregard is set to one side, there remains sufficient content in the
warrant affidavit to support a finding of probable cause, no hearing is
required. On the other hand, if the remaining content is insufficient, the
defendant is entitled, under the Fourth and Fourteenth Amendments, to his
hearing. Whether he will prevail at that hearing is, of course, another issue.
Franks v. Delaware, 438 U.S. 154, 171-172 (U.S. 1978).
14. Furthermore, in Pennsylvania such material misstatements do result in suppression
as Pennsylvania does not have a good faith exception to the warrant requirement.
15. Pennsylvania has long-recognized that there is a distinction between the 4
th
amendment to the United States Constitution and Article I §8 of the Pennsylvania
Constitution; namely that at the heart of the protections afforded under Pennsylvania law is
not government deterrence but rather a privacy interest. Commonwealth v. Edmunds, 586
A.2d 887 (Pa. 1991).
16. In fact, the Edmunds Court noted that, to adopt a ‘good faith’ exception to the
exclusionary rule, would virtually eliminate the safeguards which have developed under the
Pennsylvania Constitution over the past 200 years. Commonwealth v. Edmunds, 586 A.2d
887, 889 (Pa. 1991).
17. Based on these differing standards, the Pennsylvania Courts have suppressed
evidence based on material misstatements in a warrant and made it clear that such a
remedy is proper under Pennsylvania law:
The Commonwealth contends an affidavit that includes material
misstatements from a confidential informant should not render inadmissible
evidence obtained from a warrant approved on the basis of the faulty
affidavit. Because the good-faith exception to the exclusionary rule does
not apply in Pennsylvania, we hold that the trial court properly
suppressed the evidence obtained solely through the deliberate
misstatements the informant admittedly made to the affiant.
Commonwealth v. Antoszyk, 985 A.2d 975, 976 (Pa. Super. Ct. 2009) emphasis
added.
18. In Antoszyk, the faulty information was the result of an informant; who admitted at
the suppression hearing that he had provided false information to the police because the
defendant was harassing him about an old drug debt. Id. At 977. Despite the good faith
belief of the affiant, the warrant was deemed to lack probable cause and suppression was
granted.
19. In the instant matter, the warrant application contains a material misstatement, from
the affiant, as to the nature and content of the text messages; as such, the warrant fails
under both the United States and Pennsylvania Constitutions.
For all of the foregoing reasons of fact and law, the evidence obtained as a result of
the warrant, namely the subscriber information and identification to CLIENT should be
suppressed.
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,
v. Nos. CP-46-CR-0007271-2017,
CLIENT,
Defendant
DEFENSE PROPOSED VOIR DIRE AND POINTS FOR CHARGE
Proposed Voir Dire
a. Do you have strong feelings about the use of drugs, particularly heroin, or
fentanyl, that would prohibit you from fairly judging a case in which there are allegations
regarding the use and sale of such drugs?
b. Have you, or anyone you know, ever been the victim of a drug overdose?
c. Do you have strong feelings about individuals who struggle with addiction to
drugs that may prejudice you against such individuals?
d. Do you have strong feelings about drug sales which may prejudice you
against an individual who is alleged to have engaged in drug sales?
e. Do you follow the District Attorney’s Facebook page, or any other social
media by the District Attorney’s Office?
Proposed Points for Charge
The Defense requests the following proposed jury instructions, all of which are included
in the Pennsylvania Standard Jury Instructions, second edition:
3.10 A
3.13
3.18
4.09
4.15
4.17
7.01
7.02A
7.03
7.04
7.05
15.2506
15.2705
15.7512
16.01
16.02(b)A
16.13(a) (30)B
Respectfully Submitted,
____________________________________
CARRIE L. ALLMAN
PA ID No. 92080
Chief-Homicide
Montgomery County Public Defender
2
nd
Floor Courthouse
PO Box 311
Norristown, PA 19404
(610) 278-3571
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
KeyCite Yellow Flag - Negative Treatment
Not Followed on State Law Grounds State v. Carpenter, Ohio App. 3
Dist., January 14, 2019
134 S.Ct. 881
Supreme Court of the United States
Marcus Andrew BURRAGE, Petitioner
v.
UNITED STATES.
No. 12–7515.
|
Argued Nov. 12, 2013.
|
Decided Jan. 27, 2014.
Synopsis
Background: Defendant was convicted in the United
States District Court for the Southern District of Iowa,
Robert W. Pratt, J., of distribution of heroin and
distribution of heroin resulting in death, and he appealed.
The United States Court of Appeals for the Eighth Circuit,
Benton, Circuit Judge, 687 F.3d 1015,affirmed, and
certiorari was granted.
Holdings: The Supreme Court, Justice Scalia, held that:
[1]
at least where use of the drug distributed by the
defendant is not an independently sufficient cause of the
victim’s death or serious bodily injury, a defendant cannot
be liable under the penalty enhancement provision of
Controlled Substance Act applicable when death or
serious bodily injury results from use of the distributed
substance unless such use is a but-for cause of the death
or injury, abrogating United States v. Monnier, 412 F.3d
859, and United States v. McIntosh, 236 F.3d 968, and
[2]
defendant, who distributed heroin used by victim who
died of a drug overdose after also using other drugs, could
not be convicted under the penalty enhancement
provision, absent evidence that the victim would have
lived but for his heroin use.
Reversed and remanded.
Justice Alito joined in part.
Justice Ginsburg filed an opinion concurring in the
judgment, in which Justice Sotomayor joined.
West Headnotes (12)
[1]
Homicide
Extent of Punishment in General
Although language of the Controlled Substances
Act requiring a minimum sentence of 20 years, a
substantial fine, “or both” when death or seri
ous
bodily injury results from the use of the
distributed substance, read literally, suggests
that courts may impose a fine or a prison term,
the “death results” provision mandates a prison
sentence. Comprehensive Drug Abuse
Prevention and Control Act of 1
970, §
401(b)(1)(A–C), 21 U.S.C.A. § 841(b)(1)(A–C).
34 Cases that cite this headnote
[2]
Homicide
Relation between predicate offense or
conduct and homicide
Jury
Particular cases in general
Because the “death results” enhancement of the
Controlled Substances Act increased the
minimum and maximum sentences to which
defendant was exposed, it was an element that
was required be submitted to the jury and found
beyond a reasonable doubt. Comprehensive
Drug Abuse Prevention
and Control Act of
1970, § 401(b)(1)(A–C),
21 U.S.C.A. §
841(b)(1)(A–C).
71 Cases that cite this headnote
[3]
Homicide
Controlled substances
Crime charged under Controlled Substance Act
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
provision imposing 20 year minimum sentence
when “death results” from use of the distributed
substance has
two principal elements: (1)
knowing or intentional distribution of the
substance, and (2) death caused by (“resulting
from”) the use of that drug. Comprehensive
Drug Abuse Prevention and Control Act of
1970, § 401(a)(1), (b)(1)(C),
21 U.S.C.A. §
841(a)(1), (b)(1)(C).
66 Cases that cite this headnote
[4]
Criminal Law
Criminal act or omission
When a crime requires not merely conduct but
also a specified result of conduct, a defendant
generally may not be convicted unless his
conduct is both (1) the actual cause, and (2) the
“lega
l” cause (often called the “proximate
cause”) of the result.
38 Cases that cite this headnote
[5]
Criminal Law
Criminal act or omission
A thing “results” when it arises as an effect,
issue, or outcome from some action, process or
design.
8 Cases that cite this headnote
[6]
Statutes
Particular Words and Phrases
Statutory phrase “results from” imposes a
requirement of actual causality; in the usual
course, this requires proof that the harm would
not have occurred in the absence of—that is, b
ut
for—the defendant’s conduct.
Restatement of
Torts § 431, Comment.
23 Cases that cite this headnote
[7]
Criminal Law
Criminal act or omission
In common talk, the phrase “based on” indicates
a but-
for causal relationship, and the phrase “by
reason of” requires at least a showing of “but
for” causation.
7 Cases that cite this headnote
[8]
Statutes
Particular Words and Phrases
It is one of the traditional background principles
against which Congress legislates that a phrase
such as “results from” imposes a requirement of
but-for causation.
20 Cases that cite this headnote
[9]
Criminal Law
Liberal or strict construction; rule of lenity
Especially in the interpretation of a criminal
statute subject to the rule of lenity, courts cannot
give the text
a meaning that is different from its
ordinary, accepted meaning, and that disfavors
the defendant.
11 Cases that cite this headnote
[10]
Constitutional Law
Making, Interpretation, and Application of
Statutes
Constitutional Law
Policy
Role of Supreme Court is to apply the statute as
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
it is written, even if the Court thinks some other
approach might accord with good policy.
26 Cases that cite this headnote
[11]
Sentencing and Punishment
Physical injury and degree thereof
At least where use of the drug distributed by the
defendant is not an independently sufficient
cause of the victim’
s death or serious bodily
injury, a defendant cannot be liable under the
penalty enhancement provision of Controlled
Substance Act applicable when death or serious
bodily injury results from use of the distributed
substance unless such use is a but-for cau
se of
the death or injury; abrogating
United States v.
Monnier, 412 F.3d 859, and
United States v.
McIntosh, 236 F.3d 968.
Comprehensive Drug
Abuse Prevention and Control Act of 1970, §
401(b)(1)(C), 21 U.S.C.A. § 841(b)(1)(C).
209 Cases that cite this headnote
[12]
Homicide
Controlled substances
Defendant who distributed heroin used by
victim who died of a drug overdose after also
using other drugs could not be convicted under
the Controlled Sub
stances Act’s “death results”
penalty enhancement provision, where there was
no evidence that the victim would have lived but
for his heroin use. Comprehensive Drug Abuse
Prevention and Control Act of 1970, §
401(b)(1)(C), 21 U.S.C.A. § 841(b)(1)(C).
108 Cases that cite this headnote
**883 Syllabus
*
*204 Long-time drug user Banka died following an
extended binge that included using heroin purchased from
petitioner Burrage. Burrage pleaded not guilty to a
superseding indictment alleging, inter alia, that he had
unlawfully distributed heroin and that “death ... resulted
from the use of th [at] substance”—thus subjecting
Burrage to a 20–year mandatory minimum sentence under
the penalty enhancement provision of the Controlled
Substances Act, 21 U.S.C. § 841(b)(1)(C). After medical
experts testified at trial that Banka might have died even
if he had not taken the heroin, Burrage moved for a
judgment of acquittal, arguing that Banka’s death could
only “result from” heroin use if there was evidence that
heroin was a but-for cause of death. The court denied the
motion and, as relevant here, instructed the jury that the
Government only had to prove that heroin was a
contributing cause of death. The jury convicted Burrage,
and the court sentenced him to 20 years. In affirming, the
Eighth Circuit upheld the District Court’s jury instruction.
**884 Held : At least where use of the drug distributed by
the defendant is not an independently sufficient cause of
the victim’s death or serious bodily injury, a defendant
cannot be liable for penalty enhancement under §
841(b)(1)(C) unless such use is a but-for cause of the
death or injury. Pp. 886 – 892.
(a) Section 841(b)(1)(C)’s “death results” enhancement,
which increased the minimum and maximum sentences to
which Burrage was exposed, is an element that must be
submitted to the jury and found beyond a reasonable
doubt. See, e.g., Alleyne v. United States, 570 U.S. ––––,
––––, 133 S.Ct. 2151, ––––, 186 L.Ed.2d 314. Pp. 886 –
887.
(b) Because the Controlled Substances Act does not
define “results from,” the phrase should be given its
ordinary meaning. See Asgrow Seed Co. v. Winterboer,
513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682.
Ordinarily, that phrase imposes a requirement of actual
causality, i.e., proof “ ‘that the harm would not have
occurred’ in the absence of—that is, but for—the
defendant’s conduct.” University of Tex. Southwestern
Medical Center v. Nassar, 570 U.S. ––––, ––––, 133 S.Ct.
2517, 2525, 186 L.Ed.2d 503. Similar statutory
phrases—“because of,” see id., at ––––, 133 S.Ct., at
––––, “ ‘based on,’ ” Safeco Ins. Co. of America v. Burr,
551 U.S. 47, 63, 127 S.Ct. 2201, 167 L.Ed.2d 1045, and “
‘by reason of,’ ” *205 Gross v. FBL Financial Services,
Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d
119—have been read to impose a but-for causation
requirement. This Court declines to adopt the
Government’s permissive interpretation of “results from”
to mean that use of a drug distributed by the defendant
need only contribute to an aggregate force, e.g.,
mixed-drug intoxication, that is itself a but-for cause of
death. There is no need to address a special rule
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
developed for cases in which multiple sufficient causes
independently, but concurrently, produce death, since
there was no evidence that Banka’s heroin use was an
independently sufficient cause of his death. And though
Congress could have written § 841(b)(1)(C) to make an
act or omission a cause-in-fact if it was a “substantial” or
“contributing” factor in producing death, Congress chose
instead to use language that imports but-for causality. Pp.
887 – 891.
(c) Whether adopting the but-for causation requirement or
the Government’s interpretation raises policy concerns is
beside the point, for the Court’s role is to apply the statute
as written. Pp. 890 – 892.
687 F.3d 1015, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
the ROBERTS, C.J., and KENNEDY, THOMAS,
BREYER, and KAGAN, JJ., joined, and in which
ALITO, J., joined as to all but Part III–B. GINSBURG, J.,
filed an opinion concurring in the judgment, in which
SOTOMAYOR, J., joined.
Attorneys and Law Firms
Angela L. Campbell, Des Moines, IA, for Petitioner.
Benjamin J. Horwich, Washington, D.C., for Respondent.
Jeffrey T. Green, Ryan C. Morris, Jeremy M. Bylund,
Sidley Austin LLP, Washington, D.C., Angela L.
Campbell, Counsel of Record, Gary Dickey Jr., Dickey &
Campbell Law Firm PLC, Des Moines, IA, for Petitioner.
Donald B. Verrilli, Jr., Solicitor General, Counsel of
Record, Mythili Raman, Acting Assistant Attorney
General, Michael R. Dreeben, Deputy Solicitor General,
Benjamin J. Horwich, Assistant to the Solicitor General,
Stephan E. Oestreicher, Jr., Attorney, **885 Department
of Justice, Washington, D.C., for Respondent.
Opinion
Justice SCALIA delivered the opinion of the Court.
*
*206 The Controlled Substances Act imposes a 20–year
mandatory minimum sentence on a defendant who
unlawfully distributes a Schedule I or II drug, when
“death or serious bodily injury results from the use of
such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C)
(2012 ed.). We consider whether the mandatory-minimum
provision applies when use of a covered drug supplied by
the defendant contributes to, but is not a but-for cause of,
the victim’s death or injury.
I
Joshua Banka, a long-time drug user, died on April 15,
2010, following an extended drug binge. The episode
began on the morning of April 14, when Banka smoked
marijuana at a former roommate’s home. Banka stole
oxycodone pills from the roommate before departing and
later crushed, cooked, and injected the oxycodone. Banka
and his wife, Tammy Noragon Banka (Noragon), then
met with petitioner Marcus Burrage and purchased one
gram of heroin from him. Banka immediately cooked and
injected some of the heroin and, after returning home,
injected more heroin between midnight and 1 a.m. on
April 15. Noragon went to sleep at around 5 a.m., shortly
after witnessing Banka prepare another batch of heroin.
When Noragon woke up a few hours later, she found
Banka dead in the bathroom and called 911. A search of
the couple’s home and car turned up syringes, 0.59 grams
of heroin, alprazolam and clonazepam tablets, oxycodone
pills, a bottle of hydrocodone, and other drugs.
Burrage pleaded not guilty to a superseding indictment
alleging two counts of distributing heroin in violation of §
841(a)(1). Only one of those offenses, count 2, is at issue
here. (Count 1 related to an alleged distribution of heroin
*207 five months earlier than the sale to Banka.) Count 2
alleged that Burrage unlawfully distributed heroin on
April 14, 2010, and that “death ... resulted from the use of
th[at] substance”—thus subjecting Burrage to the 20–year
mandatory minimum of § 841(b)(1)(C).
Two medical experts testified at trial regarding the cause
of Banka’s death. Dr. Eugene Schwilke, a forensic
toxicologist, determined that multiple drugs were present
in Banka’s system at the time of his death, including
heroin metabolites,
codeine, alprazolam, clonazepam
metabolites, and oxycodone. (A metabolite is a “product
of metabolism,” Webster’s New International Dictionary
1544 (2d ed. 1950), or, as the Court of Appeals put it,
“what a drug breaks down into in the body,” 687 F.3d
1015, 1018, n. 2 (C.A.8 2012).) Although morphine, a
heroin metabolite, was the only drug present at a level
above the therapeutic range—i.e., the concentration
normally present when a person takes a drug as
prescribed—Dr. Schwilke could not say whether Banka
would have lived had he not taken the heroin. Dr.
Schwilke nonetheless concluded that heroin “was a
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
contributing factor” in Banka’s death, since it interacted
with the other drugs to cause “respiratory and/or central
nervous system depression.” App. 196. The heroin, in
other words, contributed to an overall effect that caused
Banka to stop **886 breathing. Dr. Jerri McLemore, an
Iowa state medical examiner, came to similar conclusions.
She described the cause of death as “mixed drug
intoxication” with heroin, oxycodone, alprazolam, and
clonazepam all playing a “contributing” role. Id., at 157.
Dr. McLemore could not say whether Banka would have
lived had he not taken the heroin, but observed that
Banka’s death would have been “[v]ery less likely.” Id., at
171.
The District Court denied Burrage’s motion for a
judgment of acquittal, which argued that Banka’s death
did not “result from” heroin use because there was no
evidence that heroin was a but-for cause of death. Id., at
30. The court *208 also declined to give Burrage’s
proposed jury instructions regarding causation. One of
those instructions would have required the Government to
prove that heroin use “was the proximate cause of
[Banka’s] death.” Id., at 236. Another would have defined
proximate cause as “a cause of death that played a
substantial part in bringing about the death,” meaning that
“[t]he death must have been either a direct result of or a
reasonably probable consequence of the cause and except
for the cause the death would not have occurred.” Id., at
238. The court instead gave an instruction requiring the
Government to prove “that the heroin distributed by the
Defendant was a contributing cause of Joshua Banka’s
death.” Id., at 241–242. The jury convicted Burrage on
both counts, and the court sentenced him to 20 years’
imprisonment, consistent with § 841(b)(1)(C)’s prescribed
minimum.
The Court of Appeals for the Eighth Circuit affirmed
Burrage’s convictions. 687 F.3d 1015. As to the
causation-in-fact element of count 2, the court held that
the District Court’s contributing-cause instruction was
consistent with its earlier decision in United States v.
Monnier, 412 F.3d 859, 862 (C.A.8 2005). See 687 F.3d,
at 1021. As to proximate cause, the court held that
Burrage’s proposed instructions “d[id] not correctly state
the law” because “a showing of ‘proximate cause’ is not
required.” Id., at 1020 (quoting United States v. McIntosh,
236 F.3d 968, 972–973 (C.A.8 2001)).
We granted certiorari on two questions: Whether the
defendant may be convicted under the “death results”
provision (1) when the use of the controlled substance
was a “contributing cause” of the death, and (2) without
separately instructing the jury that it must decide whether
the victim’s death by drug overdose was a foreseeable
result of the defendant’s drug-trafficking offense. 569
U.S. ––––, 133 S.Ct. 2049, 185 L.Ed.2d 884 (2013).
II
[1]
As originally enacted, the Controlled Substances Act,
84 Stat. 1242, 21 U.S.C. § 801 et seq., “tied the penalties
for *209 drug offenses to both the type of drug and the
quantity involved, with no provision for mandatory
minimum sentences.” DePierre v. United States, 564 U.S.
––––, ––––, 131 S.Ct. 2225, 2229, 180 L.Ed.2d 114
(2011). That changed in 1986 when Congress enacted the
Anti–Drug Abuse Act, 100 Stat. 3207, which redefined
the offense categories, increased the maximum penalties
and set minimum penalties for many offenders, including
the “death results” enhancement at issue here. See id., at
3207–4. With respect to violations involving distribution
of a Schedule I or II substance (the types of drugs defined
as the most dangerous and addictive
1
) the Act imposes
sentences ranging from 10 years to life imprisonment for
large-scale distributions, **887 § 841(b)(1)(A), from 5 to
40 years for medium-scale distributions, § 841(b)(1)(B),
and not more than 20 years for smaller distributions, §
841(b)(1)(C), the type of offense at issue here. These
default sentencing rules do not apply, however, when
“death or serious bodily injury results from the use of [the
distributed] substance.” § 841(b)(1)(A)-(C). In those
instances, the defendant “shall be sentenced to a term of
imprisonment which ... shall be not less than twenty years
or more than life,” a substantial fine, “or both.”
2
Ibid.
[2]
[3]
*210 Because the “death results” enhancement
increased the minimum and maximum sentences to which
Burrage was exposed, it is an element that must be
submitted to the jury and found beyond a reasonable
doubt. See Alleyne v. United States, 570 U.S. ––––, ––––,
133 S.Ct. 2151, 2162–2163, 186 L.Ed.2d 314 (2013);
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000). Thus, the crime charged in
count 2 of Burrage’s superseding indictment has two
principal elements: (i) knowing or intentional distribution
of heroin, § 841(a)(1),
3
and (ii) death caused by
(“resulting from”) the use of that drug, § 841(b)(1)(C).
III
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
A
[4]
The law has long considered causation a hybrid
concept, consisting of two constituent parts: actual cause
and legal cause. H. Hart & A. Honore, Causation in the
Law 104 (1959). When a crime requires “not merely
conduct but also a specified result of conduct,” a
defendant generally may not be convicted unless his
conduct is “both (1) the actual cause, and (2) the ‘legal’
cause (often called the ‘proximate cause’) of the result.” 1
W. LaFave, Substantive Criminal Law § 6.4(a), pp.
464–466 (2d ed. 2003) (hereinafter LaFave); see also
ALI, Model Penal Code § 2.03, p. 25 (1985). Those two
categories roughly coincide with the two questions on
which we granted certiorari. We find it necessary to
decide only the first: whether the use of heroin was the
actual cause of Banka’s death in the sense that §
841(b)(1)(C) requires.
[5]
[6]
The Controlled Substances Act does not define the
phrase “results from,” so we give it its ordinary meaning.
See Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187,
115 S.Ct. 788, 130 L.Ed.2d 682 (1995). A thing “results”
when it “[a]rise[s] as an effect, issue, or outcome from
some action, process or design.” 2 The New *211 Shorter
Oxford English Dictionary 2570 (1993). “Results from”
imposes, in other words, a requirement of actual causality.
“In the usual course,” this requires proof “ ‘that the harm
would not have occurred’ in the absence of—that is,
**888 but for—the defendant’s conduct.” University of
Tex. Southwestern Medical Center v. Nassar, 570 U.S.
––––, ––––, 133 S.Ct. 2517, 2525, 186 L.Ed.2d 503
(2013) (quoting Restatement of Torts § 431, Comment a
(1934)). The Model Penal Code reflects this traditional
understanding; it states that “[c]onduct is the cause of a
result” if “it is an antecedent but for which the result in
question would not have occurred.” § 2.03(1)(a). That
formulation represents “the minimum requirement for a
finding of causation when a crime is defined in terms of
conduct causing a particular result.” Id., Explanatory Note
(emphasis added); see also United States v. Hatfield, 591
F.3d 945, 948 (C.A.7 2010) (but for “is the minimum
concept of cause”); Callahan v. Cardinal Glennon
Hospital, 863 S.W.2d 852, 862 (Mo.1993) (same).
Thus, “where A shoots B, who is hit and dies, we can say
that A [actually] caused B’s death, since but for A’s
conduct B would not have died.” LaFave 467–468 (italics
omitted). The same conclusion follows if the predicate act
combines with other factors to produce the result, so long
as the other factors alone would not have done so—if, so
to speak, it was the straw that broke the camel’s back.
Thus, if poison is administered to a man debilitated by
multiple diseases, it is a but-for cause of his death even if
those diseases played a part in his demise, so long as,
without the incremental effect of the poison, he would
have lived. See, e.g., State v. Frazier, 339 Mo. 966,
974–975, 98 S.W.2d 707, 712–713 (1936).
This but-for requirement is part of the common
understanding of cause. Consider a baseball game in
which the visiting team’s leadoff batter hits a home run in
the top of the first inning. If the visiting team goes on to
win by a score of 1 to 0, every person competent in the
English language and familiar with the American pastime
would agree *212 that the victory resulted from the
home run. This is so because it is natural to say that one
event is the outcome or consequence of another when the
former would not have occurred but for the latter. It is
beside the point that the victory also resulted from a host
of other necessary causes, such as skillful pitching, the
coach’s decision to put the leadoff batter in the lineup,
and the league’s decision to schedule the game. By
contrast, it makes little sense to say that an event resulted
from or was the outcome of some earlier action if the
action merely played a nonessential contributing role in
producing the event. If the visiting team wound up
winning 5 to 2 rather than 1 to 0, one would be surprised
to read in the sports page that the victory resulted from
the leadoff batter’s early, non-dispositive home run.
Where there is no textual or contextual indication to the
contrary, courts regularly read phrases like “results from”
to require but-for causality. Our interpretation of statutes
that prohibit adverse employment action “because of” an
employee’s age or complaints about unlawful workplace
discrimination is instructive. Last Term, we addressed
Title VII’s antiretaliation provision, which states in part:
“It shall be an unlawful employment practice for an
employer ... to discriminate against any individual ...
because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e–3(a) (2006
ed.) (emphasis added).
Given the ordinary meaning of the word “because,” we
held that § 2000e–3(a) “require[s] proof that the desire to
retaliate **889 was [a] but-for cause of the challenged
employment action.” Nassar, supra, at ––––, 133 S.Ct., at
2528. The same result obtained in an earlier case
interpreting a provision in the Age Discrimination in
Employment Act that makes it “unlawful for an employer
... *213 to discharge any individual or otherwise
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1) (emphasis added). Relying on dictionary
definitions of “[t]he words ‘because of’ ”—which
resemble the definition of “ results from” recited
above—we held that “[t]o establish a disparate-treatment
claim under the plain language of [§ 623(a)(1) ] ... a
plaintiff must prove that age was [a] ‘but for’ cause of the
employer’s adverse decision.” Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174
L.Ed.2d 119 (2009).
4
[7]
Our insistence on but-for causality has not been
restricted to statutes using the term “because of.” We
have, for instance, observed that “[i]n common talk, the
phrase ‘based on’ indicates a but-for causal relationship,”
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63, 127
S.Ct. 2201, 167 L.Ed.2d 1045 (2007), and that “the
phrase, ‘by reason of,’ requires at least a showing of ‘but
for’ causation,” Gross, supra, at 176, 129 S.Ct. 2343
(citing Bridge v. Phoenix Bond & Indemnity Co., 553 U.S.
639, 653–654, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008)).
See also Holmes v. Securities Investor Protection
Corporation, 503 U.S. 258, 265–268, 112 S.Ct. 1311, 117
L.Ed.2d 532 (1992) (explaining that a statute permitting
recovery for injuries suffered “ ‘by reason of’ ” the
defendant’s unlawful conduct “require[s] a showing that
the defendant’s violation ... was,” among other things, “a
‘but for’ cause of his injury”). State courts, which hear
and decide the bulk of the Nation’s criminal matters,
usually interpret similarly worded criminal statutes in the
same manner. *214 See, e.g., People v. Wood, 276
Mich.App. 669, 671, 741 N.W.2d 574, 575–578 (2007)
(construing the phrase “[i]f the violation results in the
death of another individual” to require proof of but-for
causation (emphasis deleted)); State v. Hennings, 791
N.W.2d 828, 833–835 (Iowa 2010) (statute prohibiting “
‘offenses ... committed against a person or a person’s
property because of the person’s race’ ” or other protected
trait requires discriminatory animus to be a but-for cause
of the offense); State v. Richardson, 295 N.C. 309,
322–323, 245 S.E.2d 754, 763 (1978) (statute requiring
suppression of evidence “ ‘obtained as a result of’ ” police
misconduct “requires, at a minimum,” a but-for causal
relationship between the misconduct and collection of the
evidence).
[8]
In sum, it is one of the traditional background
principles “against which Congress legislate[s],” Nassar,
570 U.S., at ––––, 133 S.Ct., at 2525, that a phrase such
as “results from” imposes a requirement of but-for
causation. The Government argues, however, that
distinctive problems associated with drug overdoses
counsel in **890 favor of dispensing with the usual
but-for causation requirement. Addicts often take drugs in
combination, as Banka did in this case, and according to
the National Center for Injury Prevention and Control, at
least 46 percent of overdose deaths in 2010 involved more
than one drug. See Brief for United States 28–29. This
consideration leads the Government to urge an
interpretation of “results from” under which use of a drug
distributed by the defendant need not be a but-for cause of
death, nor even independently sufficient to cause death, so
long as it contributes to an aggregate force (such as
mixed-drug intoxication) that is itself a but-for cause of
death.
In support of its argument, the Government can point to
the undoubted reality that courts have not always required
strict but-for causality, even where criminal liability is at
issue. The most common (though still rare) instance of
this occurs when multiple sufficient causes independently,
but concurrently, produce a result. See Nassar, supra, at
––––, 133 S.Ct., at 2525; *215 see also LaFave 467
(describing these cases as “unusual” and “ numerically in
the minority”). To illustrate, if “A stabs B, inflicting a
fatal wound; while at the same moment X, acting
independently, shoots B in the head ... also inflicting [a
fatal] wound; and B dies from the combined effects of the
two wounds,” A will generally be liable for homicide
even though his conduct was not a but-for cause of B’s
death (since B would have died from X’s actions in any
event). Id., at 468 (italics omitted). We need not accept or
reject the special rule developed for these cases, since
there was no evidence here that Banka’s heroin use was
an independently sufficient cause of his death. No expert
was prepared to say that Banka would have died from the
heroin use alone.
Thus, the Government must appeal to a second, less
demanding (but also less well established) line of
authority, under which an act or omission is considered a
cause-in-fact if it was a “substantial” or “contributing”
factor in producing a given result. Several state courts
have adopted such a rule, see State v. Christman, 160
Wash.App. 741, 745, 249 P.3d 680, 687 (2011); People v.
Jennings, 50 Cal.4th 616, 643, 114 Cal.Rptr.3d 133, 237
P.3d 474, 496 (2010); People v. Bailey, 451 Mich. 657,
676–678, 549 N.W.2d 325, 334–336 (1996);
Commonwealth v. Osachuk, 43 Mass.App. 71, 72–73, 681
N.E.2d 292, 294 (1997), but the American Law Institute
declined to do so in its Model Penal Code, see ALI, 39th
Annual Meeting Proceedings 135–141 (1962); see also
Model Penal Code § 2.03(1)(a). One prominent authority
on tort law asserts that “a broader rule ... has found
general acceptance: The defendant’s conduct is a cause of
the event if it was a material element and a substantial
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
factor in bringing it about.” W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts
§ 41, p. 267 (5th ed. 1984) (footnote omitted). But the
authors of that treatise acknowledge that, even in the tort
context, “[e]xcept in the classes of cases indicated” (an
apparent reference to the situation where each of two
causes is independently effective) “no case has been *216
found where the defendant’s act could be called a
substantial factor when the event would have occurred
without it.” Id., at 268. The authors go on to offer an
alternative rule—functionally identical to the one the
Government argues here—that “[w]hen the conduct of
two or more actors is so related to an event that their
combined conduct, viewed as a whole, is a but-for cause
of the event, and application of the but-for rule to them
individually would absolve all of them, the conduct of
each is a cause in fact of the event.” Ibid. Yet, as of 1984,
“no judicial opinion ha[d] approved th[at] formulation.”
**891 Ibid., n. 40. The “death results” enhancement
became law just two years later.
[9]
We decline to adopt the Government’s permissive
interpretation of § 841(b)(1). The language Congress
enacted requires death to “result from” use of the
unlawfully distributed drug, not from a combination of
factors to which drug use merely contributed. Congress
could have written § 841(b)(1)(C) to impose a mandatory
minimum when the underlying crime “contributes to”
death or serious bodily injury, or adopted a modified
causation test tailored to cases involving concurrent
causes, as five States have done, see Ala.Code §
13A–2–5(a) (2005); Ark.Code Ann. § 5–2–205 (2006);
Me.Rev.Stat. Ann., Tit. 17–A, § 33 (2006); N.D. Cent.
Code Ann. § 12.1–02–05 (Lexis 2012); Tex. Penal Code
Ann. § 6.04 (West 2011). It chose instead to use language
that imports but-for causality. Especially in the
interpretation of a criminal statute subject to the rule of
lenity, see Moskal v. United States, 498 U.S. 103,
107–108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990), we
cannot give the text a meaning that is different from its
ordinary, accepted meaning, and that disfavors the
defendant.
B
The Government objects that the ordinary meaning of
“results from” will “unduly limi[t] criminal
responsibility” and “cannot be reconciled with sound
policy.” Brief for United States 24. We doubt that the
requirement of but-for causation *217 for this incremental
punishment will prove a policy disaster. A cursory search
of the Federal Reporter reveals that but-for causation is
not nearly the insuperable barrier the Government makes
it out to be. See, e.g., United States v. Krieger, 628 F.3d
857, 870–871 (C.A.7 2010) (affirming “death results”
conviction based on expert testimony that, although the
victim had several drugs in her system, the drug
distributed by the defendant was a but-for cause of death);
United States v. Webb, 655 F.3d 1238, 1254–1255
(C.A.11 2011) (per curiam ) (same). Moreover, even
when the prosecution is unable to prove but-for causation,
the defendant will still be liable for violating § 841(a)(1)
and subject to a substantial default sentence under §
841(b)(1).
Indeed, it is more likely the Government’s proposal that
“cannot be reconciled with sound policy,” given the need
for clarity and certainty in the criminal law. The judicial
authorities invoking a “substantial” or “contributing”
factor test in criminal cases differ widely in their
application of it. Compare Wilson v. State, 24 S.W. 409,
410 (Tex.Crim.App.1893) (an act is an actual cause if it
“contributed materially” to a result, even if other
concurrent acts would have produced that result on their
own), with Cox v. State, 305 Ark. 244, 248, 808 S.W.2d
306, 309 (1991) (causation cannot be found where other
concurrent causes were clearly sufficient to produce the
result and the defendant’s act was clearly insufficient to
produce it) (applying Ark.Code Ann. § 5–2–205 (1987)).
5
Here the Government is uncertain about the precise
application of the test that it proposes. Taken literally, its
“contributing-cause” test would treat as a cause-in-fact
every act or omission that makes a positive incremental
contribution *218 , however small, to a particular result.
See Brief for State of Alaska et al. as Amici Curiae 20;
see also Black’s Law Dictionary 250 (9th ed. 2009) **892
(defining “contributing cause” as “[a] factor that—though
not the primary cause—plays a part in producing a
result”). But at oral argument the Government insisted
that its test excludes causes that are “ not important
enough” or “too insubstantial.” Tr. of Oral Arg. 28.
Unsurprisingly, it could not specify how important or how
substantial a cause must be to qualify. See id., at 41–42.
Presumably the lower courts would be left to guess. That
task would be particularly vexing since the evidence in §
841(b)(1) cases is often expressed in terms of
probabilities and percentages. One of the experts in this
case, for example, testified that Banka’s death would have
been “[v]ery less likely” had he not used the heroin that
Burrage provided. App. 171. Is it sufficient that use of a
drug made the victim’s death 50 percent more likely?
Fifteen percent? Five? Who knows. Uncertainty of that
kind cannot be squared with the
beyond-a-reasonable-doubt standard applicable in
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
criminal trials or with the need to express criminal laws in
terms ordinary persons can comprehend. See United
States v. L. Cohen Grocery Co., 255 U.S. 81, 89–90, 41
S.Ct. 298, 65 L.Ed. 516 (1921).
[10]
But in the last analysis, these always-fascinating
policy discussions are beside the point. The role of this
Court is to apply the statute as it is written—even if we
think some other approach might “ ‘accor[d] with good
policy.’ ” Commissioner v. Lundy, 516 U.S. 235, 252, 116
S.Ct. 647, 133 L.Ed.2d 611 (1996) (quoting Badaracco v.
Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 78
L.Ed.2d 549 (1984)). As we have discussed, it is written
to require but-for cause.
* * *
[11]
[12]
We hold that, at least where use of the drug
distributed by the defendant is not an independently
sufficient cause of the victim’s death or serious bodily
injury, a defendant cannot be liable under the penalty
enhancement provision of *219 21 U.S.C. § 841(b)(1)(C)
unless such use is a but-for cause of the death or injury.
The Eighth Circuit affirmed Burrage’s conviction based
on a markedly different understanding of the statute, see
687 F.3d, at 1020–1024, and the Government concedes
that there is no “evidence that Banka would have lived but
for his heroin use,” Brief for United States 33. Burrage’s
conviction with respect to count 2 of the superseding
indictment is therefore reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Justice GINSBURG, with whom Justice SOTOMAYOR
joins, concurring in the judgment.
For reasons explained in my dissenting opinion in
University of Tex. Southwestern Medical Center v.
Nassar, 570 U.S. ––––, ––––, 133 S.Ct. 2517, 2534–2547,
186 L.Ed.2d 503 (2013), I do not read “because of” in the
context of antidiscrimination laws to mean “solely
because of.” See id., at –––– – ––––, –––– – ––––, 133
S.Ct., at 2544–2546, 2546–2547. And I do not agree that
words “appear[ing] in two or more legal rules, and so in
connection with more than one purpose, ha[ve] and
should have precisely the same scope in all of them.”
Cook, “Substance” and “Procedure” in the Conflict of
Laws, 42 Yale L.J. 333, 337 (1933). But I do agree that
“in the interpretation of a criminal statute subject to the
rule of lenity,” where there is room for debate, one should
not choose the construction “that disfavors the
defendant.” Ante, at 891. Accordingly, I join the Court’s
judgment.
All Citations
571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715, 122 Fair
Empl.Prac.Cas. (BNA) 237, 82 USLW 4076, 14 Cal.
Daily Op. Serv. 856, 2014 Daily Journal D.A.R. 1030, 24
Fla. L. Weekly Fed. S 531
Footnotes
*
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
*
Justice ALITO joins all but Part III–B of this opinion.
1
Schedule I drugs, such as heroin, have “a high potential for abuse,” “no currently accepted medical use in treatment in the United
States,” and “a lack of accepted safety” even “under medical supervision.” § 812(b)(1). Schedule II drugs, such as
methamphetamine,
likewise have “a high potential for abuse” and a propensity to cause “severe psychological or physical
dependence” if misused. 21 U.S.C. § 812(b)(2).
2
Although this language, read literally, suggests that courts may impose a fine or a prison term, it is undisputed here that the
“death results” provision mandates a
prison sentence. Courts of Appeals have concluded, in effect, that the “or” is a scrivener’s
error, see, e.g., United States v. Musser, 856 F.2d 1484, 1486 (C.A.11 1988) (per curiam
). The best evidence of that is the
concluding sentence of § 841(b)(1)(C)
, which states that a court “shall not place on probation or suspend the sentence of any
person sentenced under the provisions of this subparagraph
which provide for a mandatory term of imprisonment if death or
serious bodily injury results.” (Emphasis added.)
3
Violation of § 841(a)(1) is thus a lesser included offense of the crime charged in count 2. It is undisputed that Burrage is guilty of
that lesser included offense.
Burrage v. U.S., 571 U.S. 204 (2014)
134 S.Ct. 881, 122 Fair Empl.Prac.Cas. (BNA) 237, 187 L.Ed.2d 715, 82 USLW 4076...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
4
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), is not to the contrary. The three opinions of
six Justices in that case did not eliminate the but-for-cause requirement imposed by the “because of” provision of
42 U.S.C. §
2000e–2(a), but al
lowed a showing that discrimination was a “motivating” or “substantial” factor to shift the burden of
persuasion to the employer to establish the absence of but-for cause. See
University of Tex. Southwestern Medical Center v.
Nassar, 570 U.S. ––––, ––––, 133 S.Ct. 2517, 2525–2527, 186 L.Ed.2d 503 (2013).
Congress later amended the statute to dispense
with but-for causality. Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)).
5
Some cases apply what they call a “substantial factor” test only when multiple independently sufficient causes “operat[e]
together to cause the result.” Eversley v. Florida, 748 So.2d 963, 967 (Fla.1999); see also
Callahan v. Cardinal Glennon Hospital,
863 S.W.2d 852, 862–863 (Mo.1993)
. We will not exaggerate the confusion by counting these as genuine “substantial factor”
cases.
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
KeyCite Yellow Flag - Negative Treatment
Declined to Extend by United States v. VanDyck, 9th Cir.(Ariz.),
August 28, 2019
138 S.Ct. 2206
Supreme Court of the United States
Timothy Ivory CARPENTER, Petitioner
v.
United States.
No. 16–402.
|
Argued Nov. 29, 2017.
|
Decided June 22, 2018.
Synopsis
Background: In prosecution for multiple counts of
robbery and carrying a firearm during federal crime of
violence, the United States District Court for the Eastern
District of Michigan, Sean F. Cox, J., 2013 WL 6385838,
denied defendant’s motion to suppress cell-site location
information (CSLI), and denied defendant’s posttrial
motion for acquittal, 2013 WL 6729900, and the District
Court, Sean F. Cox, J., 2014 WL 943094, denied
defendant’s motion for new trial. Defendant appealed.
The United States Court of Appeals for the Sixth Circuit,
Kethledge, Circuit Judge, 819 F.3d 880, affirmed.
Certiorari was granted.
Holdings: The Supreme Court, Chief Justice Roberts,
held that:
[1]
an individual maintains a legitimate expectation of
privacy, for Fourth Amendment purposes, in the record of
his physical movements as captured through CSLI;
[2]
seven days of historical CSLI obtained from
defendant’s wireless carrier, pursuant to an order issued
under the Stored Communications Act (SCA), was the
product of a “search”;
[3]
Government’s access to 127 days of historical CSLI
invaded defendant’s reasonable expectation of privacy;
and
[4]
Government must generally obtain a search warrant
supported by probable cause before acquiring CSLI from
a wireless carrier.
Reversed and remanded.
Justice Kennedy filed a dissenting opinion, in which
Justices Thomas and Alito joined.
Justice Thomas filed a dissenting opinion.
Justice Alito filed a dissenting opinion, in which Justice
Thomas joined.
Justice Gorsuch filed a dissenting opinion.
West Headnotes (20)
[1]
Searches and Seizures
Fourth Amendment and reasonableness in
general
The basic purpose of the Fourth Amendment is
to safeguard the privacy and security of
individuals against arbitrary invasions by
governmental officials. U.S.C.A. Const.Ame
nd.
4.
26 Cases that cite this headnote
[2]
Searches and Seizures
Persons, Places and Things Protected
Property rights are not the sole measure of
Fourth Amendment violations; the Fourth
Amendment protects people, not places.
U.S.C.A. Const.Amend. 4.
36 Cases that cite this headnote
[3]
Searches and Seizures
What Constitutes Search or Seizure
Searches and Seizures
Expectation of privacy
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
When an individual seeks to preserve something
as private, and his expectation of privacy is one
that society is prepared to recognize as
reasonable, official intrusion into that private
sphere generally qualifies as a search under the
Fourth Amendment, and
requires a warrant
supported by probable cause.
U.S.C.A.
Const.Amend. 4.
30 Cases that cite this headnote
[4]
Searches and Seizures
Expectation of privacy
Although no single rubric definitively resolves
which expectations of privacy are entitled to
protection under the Fourth Amendment, the
ana
lysis is informed by historical understandings
of what was deemed an unreasonable search and
seizure when the Fourth Amendment was
adopted. U.S.C.A. Const.Amend. 4.
9 Cases that cite this headnote
[5]
Searches and Seizures
Expectation of privacy
While property rights are often informative in
resolving which expectations of privacy are
entitled to protection under the Fourth
Amendment, such an interest is not fundamental
or dispositive in determining which expectations
of privacy are legitimate.
U.S.C.A.
Const.Amend. 4.
21 Cases that cite this headnote
[6]
Searches and Seizures
Fourth Amendment and reasonableness in
general
The Fourth Amendment seeks to secure the
privacies of life against arbitrary power.
U.S.C.A. Const.Amend. 4.
11 Cases that cite this headnote
[7]
Searches and Seizures
Fourth Amendment and reasonableness in
general
A central aim of the Framers in adopting the
Fourth Amendment was to place obstacles in the
way of a too permeating police surveillance.
U.S.C.A. Const.Amend. 4.
2 Cases that cite this headnote
[8]
Searches and Seizures
Use of electronic devices; tracking devices or
“beepers.”
In light of the immense storage capacity of
modern cell phones, police officers must
generally obtain a warrant before searching the
contents of a phone. U.S.C.A. Const.Amend. 4.
9 Cases that cite this headnote
[9]
Searches and Seizures
Abandoned, surrendered, or disclaimed items
Under the third-party doctrine, a person has no
legitimate expectation of privacy, for Fourth
Amendment purposes, in in
formation he
voluntarily turns over to third parties, and that
remains true even if the information is revealed
on the assumption that it will be used only for a
limited purpose; as a result, the Government is
typically free to obtain such information from
the recipient without triggering Fourth
Amendment protections.
U.S.C.A.
Const.Amend. 4.
33 Cases that cite this headnote
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
[10]
Searches and Seizures
Expectation of privacy
Telecommunications
Carrier’s cooperation; pen registers and
tracing
An individual maintains a legitimate expectation
of privacy, for Fourth Amendment purposes, in
the record of his physical movements as
captured through cell-
site location information
(CSLI). U.S.C.A. Const.Amend. 4.
101 Cases that cite this headnote
[11]
Searches and Seizures
Use of electronic devices; tracking devices or
“beepers.”
Seven days of historical cell-site location
information (CSLI) obtained from suspect’s
wireless carrier, p
ursuant to an order issued by a
federal magistrate judge under the Stored
Communications Act (SCA), was the product of
a “search” under the Fourth Amendment.
U.S.C.A. Const.Amend. 4;
18 U.S.C.A. §
2703(d).
68 Cases that cite this headnote
[12]
Searches and Seizures
Persons, Places and Things Protected
A person does not surrender all Fourth
Amendment protection by venturing into the
public sphere, and to the contrary, what one
seeks to preserve as private, even in an area
accessible to the public, may be constitutionally
protected. U.S.C.A. Const.Amend. 4.
13 Cases that cite this headnote
[13]
Searches and Seizures
Expectation of privacy
Telecommunications
Carrier’s cooperation; pen registers and
tracing
Government’s access to 127 days of historical
cell-
site location information (CSLI) obtained
from suspect’s wireless carrier, pursuant to an
order issued by a federal magistrate judge under
the Stored Communications Act (SCA), invaded
suspect’s reasonable expectation
of privacy,
under the Fourth Amendment, in the whole
world of his physical movements.
U.S.C.A.
Const.Amend. 4; 18 U.S.C.A. § 2703(d).
66 Cases that cite this headnote
[14]
Searches and Seizures
Abandoned, surrendered, or disclaimed items
The third-party doctrine partly stems from the
notion that an individual has a reduced
expectation of privacy in inform
ation knowingly
shared with another, but the fact of diminished
privacy interests does not mean that the Fourth
Amendment falls out of the picture entirely.
U.S.C.A. Const.Amend. 4.
12 Cases that cite this headnote
[15]
Telecommunications
Carrier’s cooperation; pen registers and
tracing
The Government must generally obtain a search
warrant supported by probable cause before
acquiring cell-
site location information (CSLI)
from a wireless carrier.
U.S.C.A. Const.Amend.
4.
135 Cases that cite this headnote
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
[16]
Searches and Seizures
Necessity of and preference for warrant, and
exceptions in general
Although the ultimate measure of the
constitutionality of a governmental search,
under the Fourth Amendment, is reasonableness,
warrantless searches are typically unreasonable
where
a search is undertaken by law
enforcement officials to discover evidence of
criminal wrongdoing, and thus, in the absence of
a warrant, a search is reasonable only if it falls
within a specific exception to the warrant
requirement. U.S.C.A. Const.Amend. 4.
9 Cases that cite this headnote
[17]
Telecommunications
Carrier’s cooperation; pen registers and
tracing
An order issued by a federal magistrate judge
under the Stored Communications Act (SCA) is
not a permissible mech
anism for the
Government to access cell-
site location
information (CSLI), and before compelling a
wireless carrier to turn over a subscriber’s CSLI,
the Fourth Amendment requires the Government
to get a search warrant.
U.S.C.A. Const.Amend.
4; 18 U.S.C.A. § 2703(d).
47 Cases that cite this headnote
[18]
Searches and Seizures
Emergencies and Exigent Circumstances;
Opportunity to Obtain Warrant
One well-recognized exception to the search
warrant requirement applies when the exigencies
of the situation make the needs of law
enforcement so compelling that a warrantless
search is objectively reasonable under the
Fourth Amendment. U.S.C.A. Const.Amend. 4.
9 Cases that cite this headnote
[19]
Searches and Seizures
Emergencies and Exigent Circumstances;
Opportunity to Obtain Warrant
Exigencies that support an exception to the
Fourth Amendment’s search warrant
requirement include the need to pursue a fleeing
suspect, protect individuals who are threatened
with imminent harm, or prevent the
imminent
destruction of evidence.
U.S.C.A. Const.Amend.
4.
10 Cases that cite this headnote
[20]
Searches and Seizures
Expectation of privacy
The Supreme Court is obligated, as subtler and
more far-
reaching means of invading privacy
have become available to the Government, to
ensur
e that the progress of science does not
erode Fourth Amendment protections.
U.S.C.A.
Const.Amend. 4.
4 Cases that cite this headnote
*2208 Syllabus
*
Cell phones perform their wide and growing variety of
functions by continuously connecting to a set of radio
antennas called “cell sites.” Each time a phone connects
to a cell site, it generates a time-stamped record known as
cell-site location information (CSLI). Wireless carriers
collect and store this information for their own business
purposes. Here, after the FBI identified the cell phone
numbers of several robbery suspects, prosecutors were
*2209 granted court orders to obtain the suspects’ cell
phone records under the Stored Communications Act.
Wireless carriers produced CSLI for petitioner Timothy
Carpenter’s phone, and the Government was able to
obtain 12,898 location points cataloging Carpenter’s
movements over 127 days—an average of 101 data points
per day. Carpenter moved to suppress the data, arguing
that the Government’s seizure of the records without
obtaining a warrant supported by probable cause violated
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
the Fourth Amendment. The District Court denied the
motion, and prosecutors used the records at trial to show
that Carpenter’s phone was near four of the robbery
locations at the time those robberies occurred. Carpenter
was convicted. The Sixth Circuit affirmed, holding that
Carpenter lacked a reasonable expectation of privacy in
the location information collected by the FBI because he
had shared that information with his wireless carriers.
Held :
1. The Government’s acquisition of Carpenter’s cell-site
records was a Fourth Amendment search. Pp. 2212 -
2221.
(a) The Fourth Amendment protects not only property
interests but certain expectations of privacy as well. Katz
v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19
L.Ed.2d 576. Thus, when an individual “seeks to preserve
something as private,” and his expectation of privacy is
“one that society is prepared to recognize as reasonable,”
official intrusion into that sphere generally qualifies as a
search and requires a warrant supported by probable
cause. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct.
2577, 61 L.Ed.2d 220 (internal quotation marks and
alterations omitted). The analysis regarding which
expectations of privacy are entitled to protection is
informed by historical understandings “of what was
deemed an unreasonable search and seizure when [the
Fourth Amendment] was adopted.” Carroll v. United
States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543.
These Founding-era understandings continue to inform
this Court when applying the Fourth Amendment to
innovations in surveillance tools. See, e.g., Kyllo v.
United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d
94. Pp. 2212 - 2215.
(b) The digital data at issue—personal location
information maintained by a third party—does not fit
neatly under existing precedents but lies at the
intersection of two lines of cases. One set addresses a
person’s expectation of privacy in his physical location
and movements. See, e.g., United States v. Jones, 565
U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (five Justices
concluding that privacy concerns would be raised by GPS
tracking). The other addresses a person’s expectation of
privacy in information voluntarily turned over to third
parties. See United States v. Miller, 425 U.S. 435, 96
S.Ct. 1619, 48 L.Ed.2d 71 (no expectation of privacy in
financial records held by a bank), and Smith, 442 U.S.
735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (no expectation of
privacy in records of dialed telephone numbers conveyed
to telephone company). Pp. 2214 - 2216.
(c) Tracking a person’s past movements through CSLI
partakes of many of the qualities of GPS monitoring
considered in Jones—it is detailed, encyclopedic, and
effortlessly compiled. At the same time, however, the fact
that the individual continuously reveals his location to his
wireless carrier implicates the third-party principle of
Smith and Miller. Given the unique nature of cell-site
records, this Court declines to extend Smith and Miller to
cover them. Pp. 2216 - 2221.
(1) A majority of the Court has already recognized that
individuals have a *2210 reasonable expectation of
privacy in the whole of their physical movements.
Allowing government access to cell-site records—which
“hold for many Americans the ‘privacies of life,’ ” Riley
v. California, 573 U.S. ––––, ––––, 134 S.Ct. 2473,
2494–2495, 189 L.Ed.2d 430—contravenes that
expectation. In fact, historical cell-site records present
even greater privacy concerns than the GPS monitoring
considered in Jones : They give the Government near
perfect surveillance and allow it to travel back in time to
retrace a person’s whereabouts, subject only to the
five-year retention policies of most wireless carriers. The
Government contends that CSLI data is less precise than
GPS information, but it thought the data accurate enough
here to highlight it during closing argument in Carpenter’s
trial. At any rate, the rule the Court adopts “must take
account of more sophisticated systems that are already in
use or in development,” Kyllo, 533 U.S., at 36, 121 S.Ct.
2038, and the accuracy of CSLI is rapidly approaching
GPS-level precision. Pp. 2217 - 2219.
(2) The Government contends that the third-party doctrine
governs this case, because cell-site records, like the
records in Smith and Miller, are “business records,”
created and maintained by wireless carriers. But there is a
world of difference between the limited types of personal
information addressed in Smith and Miller and the
exhaustive chronicle of location information casually
collected by wireless carriers.
The third-party doctrine partly stems from the notion that
an individual has a reduced expectation of privacy in
information knowingly shared with another. Smith and
Miller, however, did not rely solely on the act of sharing.
They also considered “the nature of the particular
documents sought” and limitations on any “legitimate
‘expectation of privacy’ concerning their contents.”
Miller, 425 U.S., at 442, 96 S.Ct. 1619. In mechanically
applying the third-party doctrine to this case the
Government fails to appreciate the lack of comparable
limitations on the revealing nature of CSLI.
Nor does the second rationale for the third-party
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
doctrine—voluntary exposure—hold up when it comes to
CSLI. Cell phone location information is not truly
“shared” as the term is normally understood. First, cell
phones and the services they provide are “such a
pervasive and insistent part of daily life” that carrying one
is indispensable to participation in modern society. Riley,
573 U.S., at ––––, 134 S.Ct., at 2484. Second, a cell
phone logs a cell-site record by dint of its operation,
without any affirmative act on the user’s part beyond
powering up. Pp. 2219 - 2220.
(d) This decision is narrow. It does not express a view on
matters not before the Court; does not disturb the
application of Smith and Miller or call into question
conventional surveillance techniques and tools, such as
security cameras; does not address other business records
that might incidentally reveal location information; and
does not consider other collection techniques involving
foreign affairs or national security. Pp. 2220 - 2221.
2. The Government did not obtain a warrant supported by
probable cause before acquiring Carpenter’s cell-site
records. It acquired those records pursuant to a court order
under the Stored Communications Act, which required the
Government to show “reasonable grounds” for believing
that the records were “relevant and material to an ongoing
investigation.” 18 U.S.C. § 2703(d). That showing falls
well short of the probable cause required for a warrant.
Consequently, an order issued under § 2703(d) is not a
permissible mechanism for accessing historical cell-site
*2211 records. Not all orders compelling the production
of documents will require a showing of probable cause. A
warrant is required only in the rare case where the suspect
has a legitimate privacy interest in records held by a third
party. And even though the Government will generally
need a warrant to access CSLI, case-specific
exceptions—e.g., exigent circumstances—may support a
warrantless search. Pp. 2220 - 2223.
819 F.3d 880, reversed and remanded.
ROBERTS, C.J., delivered the opinion of the Court, in
which GINSBURG, BREYER, SOTOMAYOR, and
KAGAN, JJ., joined. KENNEDY, J., filed a dissenting
opinion, in which THOMAS and ALITO, JJ., joined.
THOMAS, J., filed a dissenting opinion. ALITO, J., filed
a dissenting opinion, in which THOMAS, J., joined.
GORSUCH, J., filed a dissenting opinion.
Attorneys and Law Firms
Nathan Freed Wessler, Ben Wizner, Brett Max Kaufman,
American Civil Liberties, Union Foundation, New York,
NY, David D. Cole, American Civil Liberties, Union
Foundation, Washington, DC, Cecillia D. Wang, Jennifer
Stisa Granick, American Civil Liberties, Union
Foundation, San Francisco, CA, Harold Gurewitz,
Gurewitz & Raben, PLC, Detroit, MI, Daniel S.
Korobkin, Michael J. Steinberg, Kary L. Moss, American
Civil Liberties, Union Fund of Michigan, Detroit, MI,
Jeffrey L. Fisher, Stanford Law School, Supreme Court
Litigation Clinic, Stanford, CA, for Petitioner.
Noel J. Francisco, Solicitor General, Kenneth A. Blanco,
Acting Assistant Attorney General, Michael R. Dreeben,
Deputy Solicitor General, Elizabeth B. Prelogar, Assistant
to the Solicitor General, Jenny C. Ellickson, Attorney,
Department of Justice, Washington, DC, for Respondent.
Opinion
Chief Justice ROBERTS delivered the opinion of the
Court.
This case presents the question whether the Government
conducts a search under the Fourth Amendment when it
accesses historical cell phone records that provide a
comprehensive chronicle of the user’s past movements.
I
A
There are 396 million cell phone service accounts in the
United States—for a Nation of 326 million people. Cell
phones perform their wide and growing variety of
functions by connecting to a set of radio antennas called
“cell sites.” Although cell sites are usually mounted on a
tower, they can also be found on light posts, flagpoles,
church steeples, or the sides of buildings. Cell sites
typically have several directional antennas that divide the
covered area into sectors.
Cell phones continuously scan their environment looking
for the best signal, which generally comes from the
closest cell site. Most modern devices, such as
smartphones, tap into the wireless network several times a
minute whenever their signal is on, even if the owner is
not using one of the phone’s features. Each time the
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
phone connects to a cell site, it generates a time-stamped
record known as cell-site location information (CSLI).
The precision of this information depends on the size of
the geographic area covered by the cell site. The greater
the concentration of cell sites, the smaller the coverage
area. As data usage from cell phones has increased, *2212
wireless carriers have installed more cell sites to handle
the traffic. That has led to increasingly compact coverage
areas, especially in urban areas.
Wireless carriers collect and store CSLI for their own
business purposes, including finding weak spots in their
network and applying “roaming” charges when another
carrier routes data through their cell sites. In addition,
wireless carriers often sell aggregated location records to
data brokers, without individual identifying information
of the sort at issue here. While carriers have long retained
CSLI for the start and end of incoming calls, in recent
years phone companies have also collected location
information from the transmission of text messages and
routine data connections. Accordingly, modern cell
phones generate increasingly vast amounts of increasingly
precise CSLI.
B
In 2011, police officers arrested four men suspected of
robbing a series of Radio Shack and (ironically enough)
T–Mobile stores in Detroit. One of the men confessed
that, over the previous four months, the group (along with
a rotating cast of getaway drivers and lookouts) had
robbed nine different stores in Michigan and Ohio. The
suspect identified 15 accomplices who had participated in
the heists and gave the FBI some of their cell phone
numbers; the FBI then reviewed his call records to
identify additional numbers that he had called around the
time of the robberies.
Based on that information, the prosecutors applied for
court orders under the Stored Communications Act to
obtain cell phone records for petitioner Timothy
Carpenter and several other suspects. That statute, as
amended in 1994, permits the Government to compel the
disclosure of certain telecommunications records when it
“offers specific and articulable facts showing that there
are reasonable grounds to believe” that the records sought
“are relevant and material to an ongoing criminal
investigation.” 18 U.S.C. § 2703(d). Federal Magistrate
Judges issued two orders directing Carpenter’s wireless
carriers—MetroPCS and Sprint—to disclose “cell/site
sector [information] for [Carpenter’s] telephone[ ] at call
origination and at call termination for incoming and
outgoing calls” during the four-month period when the
string of robberies occurred. App. to Pet. for Cert. 60a,
72a. The first order sought 152 days of cell-site records
from MetroPCS, which produced records spanning 127
days. The second order requested seven days of CSLI
from Sprint, which produced two days of records
covering the period when Carpenter’s phone was
“roaming” in northeastern Ohio. Altogether the
Government obtained 12,898 location points cataloging
Carpenter’s movements—an average of 101 data points
per day.
Carpenter was charged with six counts of robbery and an
additional six counts of carrying a firearm during a
federal crime of violence. See 18 U.S.C. §§ 924(c),
1951(a). Prior to trial, Carpenter moved to suppress the
cell-site data provided by the wireless carriers. He argued
that the Government’s seizure of the records violated the
Fourth Amendment because they had been obtained
without a warrant supported by probable cause. The
District Court denied the motion. App. to Pet. for Cert.
38a–39a.
At trial, seven of Carpenter’s confederates pegged him as
the leader of the operation. In addition, FBI agent
Christopher Hess offered expert testimony about the
cell-site data. Hess explained that each time a cell phone
taps into the wireless network, the carrier logs a
time-stamped record of the cell site and particular sector
that were used. With this information, *2213 Hess
produced maps that placed Carpenter’s phone near four of
the charged robberies. In the Government’s view, the
location records clinched the case: They confirmed that
Carpenter was “right where the ... robbery was at the
exact time of the robbery.” App. 131 (closing argument).
Carpenter was convicted on all but one of the firearm
counts and sentenced to more than 100 years in prison.
The Court of Appeals for the Sixth Circuit affirmed. 819
F.3d 880 (2016). The court held that Carpenter lacked a
reasonable expectation of privacy in the location
information collected by the FBI because he had shared
that information with his wireless carriers. Given that cell
phone users voluntarily convey cell-site data to their
carriers as “a means of establishing communication,” the
court concluded that the resulting business records are not
entitled to Fourth Amendment protection. Id., at 888
(quoting Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct.
2577, 61 L.Ed.2d 220 (1979)).
We granted certiorari. 582 U.S. ––––, 137 S.Ct. 2211, 198
L.Ed.2d 657 (2017).
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
II
A
[1]
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” The
“basic purpose of this Amendment,” our cases have
recognized, “is to safeguard the privacy and security of
individuals against arbitrary invasions by governmental
officials.” Camara v. Municipal Court of City and County
of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18
L.Ed.2d 930 (1967). The Founding generation crafted the
Fourth Amendment as a “response to the reviled ‘general
warrants’ and ‘writs of assistance’ of the colonial era,
which allowed British officers to rummage through
homes in an unrestrained search for evidence of criminal
activity.” Riley v. California, 573 U.S. ––––, ––––, 134
S.Ct. 2473, 2494, 189 L.Ed.2d 430 (2014). In fact, as
John Adams recalled, the patriot James Otis’s 1761
speech condemning writs of assistance was “the first act
of opposition to the arbitrary claims of Great Britain” and
helped spark the Revolution itself. Id., at –––– – ––––,
134 S.Ct., at 2494 (quoting 10 Works of John Adams 248
(C. Adams ed. 1856)).
[2]
[3]
For much of our history, Fourth Amendment search
doctrine was “tied to common-law trespass” and focused
on whether the Government “obtains information by
physically intruding on a constitutionally protected area.”
United States v. Jones, 565 U.S. 400, 405, 406, n. 3, 132
S.Ct. 945, 181 L.Ed.2d 911 (2012). More recently, the
Court has recognized that “property rights are not the sole
measure of Fourth Amendment violations.” Soldal v.
Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121
L.Ed.2d 450 (1992). In Katz v. United States, 389 U.S.
347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), we
established that “the Fourth Amendment protects people,
not places,” and expanded our conception of the
Amendment to protect certain expectations of privacy as
well. When an individual “seeks to preserve something as
private,” and his expectation of privacy is “one that
society is prepared to recognize as reasonable,” we have
held that official intrusion into that private sphere
generally qualifies as a search and requires a warrant
supported by probable cause. Smith, 442 U.S., at 740, 99
S.Ct. 2577 (internal quotation marks and alterations
omitted).
[4]
[5]
[6]
[7]
Although no single rubric definitively resolves
which expectations of privacy *2214 are entitled to
protection,
1
the analysis is informed by historical
understandings “of what was deemed an unreasonable
search and seizure when [the Fourth Amendment] was
adopted.” Carroll v. United States, 267 U.S. 132, 149, 45
S.Ct. 280, 69 L.Ed. 543 (1925). On this score, our cases
have recognized some basic guideposts. First, that the
Amendment seeks to secure “the privacies of life” against
“arbitrary power.” Boyd v. United States, 116 U.S. 616,
630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Second, and
relatedly, that a central aim of the Framers was “to place
obstacles in the way of a too permeating police
surveillance.” United States v. Di Re, 332 U.S. 581, 595,
68 S.Ct. 222, 92 L.Ed. 210 (1948).
We have kept this attention to Founding-era
understandings in mind when applying the Fourth
Amendment to innovations in surveillance tools. As
technology has enhanced the Government’s capacity to
encroach upon areas normally guarded from inquisitive
eyes, this Court has sought to “assure [ ] preservation of
that degree of privacy against government that existed
when the Fourth Amendment was adopted.” Kyllo v.
United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150
L.Ed.2d 94 (2001). For that reason, we rejected in Kyllo a
“mechanical interpretation” of the Fourth Amendment
and held that use of a thermal imager to detect heat
radiating from the side of the defendant’s home was a
search. Id., at 35, 121 S.Ct. 2038. Because any other
conclusion would leave homeowners “at the mercy of
advancing technology,” we determined that the
Government—absent a warrant—could not capitalize on
such new sense-enhancing technology to explore what
was happening within the home. Ibid.
[8]
Likewise in Riley, the Court recognized the “immense
storage capacity” of modern cell phones in holding that
police officers must generally obtain a warrant before
searching the contents of a phone. 573 U.S., at ––––, 134
S.Ct., at 2489. We explained that while the general rule
allowing warrantless searches incident to arrest “strikes
the appropriate balance in the context of physical objects,
neither of its rationales has much force with respect to”
the vast store of sensitive information on a cell phone. Id.,
at ––––, 134 S.Ct., at 2484.
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
B
The case before us involves the Government’s acquisition
of wireless carrier cell-site records revealing the location
of Carpenter’s cell phone whenever it made or received
calls. This sort of digital data—personal location
information maintained by a third party—does not fit
neatly under existing precedents. Instead, requests for
cell-site records lie at the intersection of two lines of
cases, both of which inform *2215 our understanding of
the privacy interests at stake.
The first set of cases addresses a person’s expectation of
privacy in his physical location and movements. In United
States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75
L.Ed.2d 55 (1983), we considered the Government’s use
of a “beeper” to aid in tracking a vehicle through traffic.
Police officers in that case planted a beeper in a container
of chloroform before it was purchased by one of Knotts’s
co-conspirators. The officers (with intermittent aerial
assistance) then followed the automobile carrying the
container from Minneapolis to Knotts’s cabin in
Wisconsin, relying on the beeper’s signal to help keep the
vehicle in view. The Court concluded that the
“augment[ed]” visual surveillance did not constitute a
search because “[a] person traveling in an automobile on
public thoroughfares has no reasonable expectation of
privacy in his movements from one place to another.” Id.,
at 281, 282, 103 S.Ct. 1081. Since the movements of the
vehicle and its final destination had been “voluntarily
conveyed to anyone who wanted to look,” Knotts could
not assert a privacy interest in the information obtained.
Id., at 281, 103 S.Ct. 1081.
This Court in Knotts, however, was careful to distinguish
between the rudimentary tracking facilitated by the beeper
and more sweeping modes of surveillance. The Court
emphasized the “limited use which the government made
of the signals from this particular beeper” during a
discrete “automotive journey.” Id., at 284, 285, 103 S.Ct.
1081. Significantly, the Court reserved the question
whether “different constitutional principles may be
applicable” if “twenty-four hour surveillance of any
citizen of this country [were] possible.” Id., at 283–284,
103 S.Ct. 1081.
Three decades later, the Court considered more
sophisticated surveillance of the sort envisioned in Knotts
and found that different principles did indeed apply. In
United States v. Jones, FBI agents installed a GPS
tracking device on Jones’s vehicle and remotely
monitored the vehicle’s movements for 28 days. The
Court decided the case based on the Government’s
physical trespass of the vehicle. 565 U.S., at 404–405,
132 S.Ct. 945. At the same time, five Justices agreed that
related privacy concerns would be raised by, for example,
“surreptitiously activating a stolen vehicle detection
system” in Jones’s car to track Jones himself, or
conducting GPS tracking of his cell phone. Id., at 426,
428, 132 S.Ct. 945 (ALITO, J., concurring in judgment);
id., at 415, 132 S.Ct. 945 (SOTOMAYOR, J.,
concurring). Since GPS monitoring of a vehicle tracks
“every movement” a person makes in that vehicle, the
concurring Justices concluded that “longer term GPS
monitoring in investigations of most offenses impinges on
expectations of privacy”—regardless whether those
movements were disclosed to the public at large. Id., at
430, 132 S.Ct. 945 (opinion of Alito, J.); id., at 415, 132
S.Ct. 945 (opinion of Sotomayor, J.).
2
*2216
[9]
In a second set of decisions, the Court has drawn
a line between what a person keeps to himself and what
he shares with others. We have previously held that “a
person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.”
Smith, 442 U.S., at 743–744, 99 S.Ct. 2577. That remains
true “even if the information is revealed on the
assumption that it will be used only for a limited
purpose.” United States v. Miller, 425 U.S. 435, 443, 96
S.Ct. 1619, 48 L.Ed.2d 71 (1976). As a result, the
Government is typically free to obtain such information
from the recipient without triggering Fourth Amendment
protections.
This third-party doctrine largely traces its roots to Miller.
While investigating Miller for tax evasion, the
Government subpoenaed his banks, seeking several
months of canceled checks, deposit slips, and monthly
statements. The Court rejected a Fourth Amendment
challenge to the records collection. For one, Miller could
“assert neither ownership nor possession” of the
documents; they were “business records of the banks.”
Id., at 440, 96 S.Ct. 1619. For another, the nature of those
records confirmed Miller’s limited expectation of privacy,
because the checks were “not confidential
communications but negotiable instruments to be used in
commercial transactions,” and the bank statements
contained information “exposed to [bank] employees in
the ordinary course of business.” Id., at 442, 96 S.Ct.
1619. The Court thus concluded that Miller had “take[n]
the risk, in revealing his affairs to another, that the
information [would] be conveyed by that person to the
Government.” Id., at 443, 96 S.Ct. 1619.
Three years later, Smith applied the same principles in the
context of information conveyed to a telephone company.
The Court ruled that the Government’s use of a pen
register—a device that recorded the outgoing phone
numbers dialed on a landline telephone—was not a
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
search. Noting the pen register’s “limited capabilities,”
the Court “doubt[ed] that people in general entertain any
actual expectation of privacy in the numbers they dial.”
442 U.S., at 742, 99 S.Ct. 2577. Telephone subscribers
know, after all, that the numbers are used by the telephone
company “for a variety of legitimate business purposes,”
including routing calls. Id., at 743, 99 S.Ct. 2577. And at
any rate, the Court explained, such an expectation “is not
one that society is prepared to recognize as reasonable.”
Ibid. (internal quotation marks omitted). When Smith
placed a call, he “voluntarily conveyed” the dialed
numbers to the phone company by “expos[ing] that
information to its equipment in the ordinary course of
business.” Id., at 744, 99 S.Ct. 2577 (internal quotation
marks omitted). Once again, we held that the defendant
“assumed the risk” that the company’s records “would be
divulged to police.” Id., at 745, 99 S.Ct. 2577.
III
The question we confront today is how to apply the
Fourth Amendment to a new phenomenon: the ability to
chronicle a person’s past movements through the record
of his cell phone signals. Such tracking partakes of many
of the qualities of the GPS monitoring we considered in
Jones. Much like GPS tracking of a vehicle, cell phone
location information is detailed, encyclopedic, and
effortlessly compiled.
At the same time, the fact that the individual continuously
reveals his location to his wireless carrier implicates the
third-party principle of Smith and Miller. But while the
third-party doctrine applies to telephone numbers and
bank records, it is not clear whether its logic extends to
the qualitatively different category of cell-site *2217
records. After all, when Smith was decided in 1979, few
could have imagined a society in which a phone goes
wherever its owner goes, conveying to the wireless carrier
not just dialed digits, but a detailed and comprehensive
record of the person’s movements.
[10]
[11]
We decline to extend Smith and Miller to cover
these novel circumstances. Given the unique nature of cell
phone location records, the fact that the information is
held by a third party does not by itself overcome the
user’s claim to Fourth Amendment protection. Whether
the Government employs its own surveillance technology
as in Jones or leverages the technology of a wireless
carrier, we hold that an individual maintains a legitimate
expectation of privacy in the record of his physical
movements as captured through CSLI. The location
information obtained from Carpenter’s wireless carriers
was the product of a search.
3
A
[12]
A person does not surrender all Fourth Amendment
protection by venturing into the public sphere. To the
contrary, “what [one] seeks to preserve as private, even in
an area accessible to the public, may be constitutionally
protected.” Katz, 389 U.S., at 351–352, 88 S.Ct. 507. A
majority of this Court has already recognized that
individuals have a reasonable expectation of privacy in
the whole of their physical movements. Jones, 565 U.S.,
at 430, 132 S.Ct. 945 (ALITO, J., concurring in
judgment); id., at 415, 132 S.Ct. 945 (SOTOMAYOR, J.,
concurring). Prior to the digital age, law enforcement
might have pursued a suspect for a brief stretch, but doing
so “for any extended period of time was difficult and
costly and therefore rarely undertaken.” Id., at 429, 132
S.Ct. 945 (opinion of Alito, J.). For that reason, “society’s
expectation has been that law enforcement agents and
others would not—and indeed, in the main, simply could
not—secretly monitor and catalogue every single
movement of an individual’s car for a very long period.”
Id., at 430, 132 S.Ct. 945.
[13]
Allowing government access to cell-site records
contravenes that expectation. Although such records are
generated for commercial purposes, that distinction does
not negate Carpenter’s anticipation of privacy in his
physical location. Mapping a cell phone’s location over
the course of 127 days provides an all-encompassing
record of the holder’s whereabouts. As with GPS
information, the time-stamped data provides an intimate
window into a person’s life, revealing not only his
particular movements, but through them his “familial,
political, professional, religious, and sexual associations.”
Id., at 415, 132 S.Ct. 945 (opinion of SOTOMAYOR, J.).
These location records “hold for many Americans the
‘privacies of life.’ ” Riley, 573 U.S., at ––––, 134 S.Ct., at
2494–2495 (quoting Boyd, 116 U.S., at 630, 6 S.Ct. 524).
And like GPS monitoring, cell phone *2218 tracking is
remarkably easy, cheap, and efficient compared to
traditional investigative tools. With just the click of a
button, the Government can access each carrier’s deep
repository of historical location information at practically
no expense.
In fact, historical cell-site records present even greater
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
11
privacy concerns than the GPS monitoring of a vehicle we
considered in Jones. Unlike the bugged container in
Knotts or the car in Jones, a cell phone—almost a “feature
of human anatomy,” Riley, 573 U.S., at ––––, 134 S.Ct.,
at 2484—tracks nearly exactly the movements of its
owner. While individuals regularly leave their vehicles,
they compulsively carry cell phones with them all the
time. A cell phone faithfully follows its owner beyond
public thoroughfares and into private residences, doctor’s
offices, political headquarters, and other potentially
revealing locales. See id., at ––––, 134 S.Ct., at 2490
(noting that “nearly three-quarters of smart phone users
report being within five feet of their phones most of the
time, with 12% admitting that they even use their phones
in the shower”); contrast Cardwell v. Lewis, 417 U.S. 583,
590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality
opinion) (“A car has little capacity for escaping public
scrutiny.”). Accordingly, when the Government tracks the
location of a cell phone it achieves near perfect
surveillance, as if it had attached an ankle monitor to the
phone’s user.
Moreover, the retrospective quality of the data here gives
police access to a category of information otherwise
unknowable. In the past, attempts to reconstruct a
person’s movements were limited by a dearth of records
and the frailties of recollection. With access to CSLI, the
Government can now travel back in time to retrace a
person’s whereabouts, subject only to the retention
polices of the wireless carriers, which currently maintain
records for up to five years. Critically, because location
information is continually logged for all of the 400
million devices in the United States—not just those
belonging to persons who might happen to come under
investigation—this newfound tracking capacity runs
against everyone. Unlike with the GPS device in Jones,
police need not even know in advance whether they want
to follow a particular individual, or when.
Whoever the suspect turns out to be, he has effectively
been tailed every moment of every day for five years, and
the police may—in the Government’s view—call upon
the results of that surveillance without regard to the
constraints of the Fourth Amendment. Only the few
without cell phones could escape this tireless and absolute
surveillance.
The Government and Justice KENNEDY contend,
however, that the collection of CSLI should be permitted
because the data is less precise than GPS information. Not
to worry, they maintain, because the location records did
“not on their own suffice to place [Carpenter] at the crime
scene”; they placed him within a wedge-shaped sector
ranging from one-eighth to four square miles. Brief for
United States 24; see post, at 2232 - 2233. Yet the Court
has already rejected the proposition that “inference
insulates a search.” Kyllo, 533 U.S., at 36, 121 S.Ct. 2038.
From the 127 days of location data it received, the
Government could, in combination with other
information, deduce a detailed log of Carpenter’s
movements, including when he was at the site of the
robberies. And the Government thought the CSLI
accurate enough to highlight it during the closing
argument of his trial. App. 131.
At any rate, the rule the Court adopts “must take account
of more sophisticated systems that are already in use or in
development.” *2219 Kyllo, 533 U.S., at 36, 121 S.Ct.
2038. While the records in this case reflect the state of
technology at the start of the decade, the accuracy of
CSLI is rapidly approaching GPS-level precision. As the
number of cell sites has proliferated, the geographic area
covered by each cell sector has shrunk, particularly in
urban areas. In addition, with new technology measuring
the time and angle of signals hitting their towers, wireless
carriers already have the capability to pinpoint a phone’s
location within 50 meters. Brief for Electronic Frontier
Foundation et al. as Amici Curiae 12 (describing
triangulation methods that estimate a device’s location
inside a given cell sector).
Accordingly, when the Government accessed CSLI from
the wireless carriers, it invaded Carpenter’s reasonable
expectation of privacy in the whole of his physical
movements.
B
The Government’s primary contention to the contrary is
that the third-party doctrine governs this case. In its view,
cell-site records are fair game because they are “business
records” created and maintained by the wireless carriers.
The Government (along with Justice KENNEDY)
recognizes that this case features new technology, but
asserts that the legal question nonetheless turns on a
garden-variety request for information from a third-party
witness. Brief for United States 32–34; post, at 2229 -
2231.
The Government’s position fails to contend with the
seismic shifts in digital technology that made possible the
tracking of not only Carpenter’s location but also
everyone else’s, not for a short period but for years and
years. Sprint Corporation and its competitors are not your
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
12
typical witnesses. Unlike the nosy neighbor who keeps an
eye on comings and goings, they are ever alert, and their
memory is nearly infallible. There is a world of difference
between the limited types of personal information
addressed in Smith and Miller and the exhaustive
chronicle of location information casually collected by
wireless carriers today. The Government thus is not
asking for a straightforward application of the third-party
doctrine, but instead a significant extension of it to a
distinct category of information.
[14]
The third-party doctrine partly stems from the notion
that an individual has a reduced expectation of privacy in
information knowingly shared with another. But the fact
of “diminished privacy interests does not mean that the
Fourth Amendment falls out of the picture entirely.”
Riley, 573 U.S., at ––––, 134 S.Ct., at 2488. Smith and
Miller, after all, did not rely solely on the act of sharing.
Instead, they considered “the nature of the particular
documents sought” to determine whether “there is a
legitimate ‘expectation of privacy’ concerning their
contents.” Miller, 425 U.S., at 442, 96 S.Ct. 1619. Smith
pointed out the limited capabilities of a pen register; as
explained in Riley, telephone call logs reveal little in the
way of “identifying information.” Smith, 442 U.S., at 742,
99 S.Ct. 2577; Riley, 573 U.S., at ––––, 134 S.Ct., at
2493. Miller likewise noted that checks were “not
confidential communications but negotiable instruments
to be used in commercial transactions.” 425 U.S., at 442,
96 S.Ct. 1619. In mechanically applying the third-party
doctrine to this case, the Government fails to appreciate
that there are no comparable limitations on the revealing
nature of CSLI.
The Court has in fact already shown special solicitude for
location information in the third-party context. In Knotts,
the Court relied on Smith to hold that an individual has no
reasonable expectation of privacy in public movements
that he “voluntarily *2220 conveyed to anyone who
wanted to look.” Knotts, 460 U.S., at 281, 103 S.Ct. 1081;
see id., at 283, 103 S.Ct. 1081 (discussing Smith ). But
when confronted with more pervasive tracking, five
Justices agreed that longer term GPS monitoring of even a
vehicle traveling on public streets constitutes a search.
Jones, 565 U.S., at 430, 132 S.Ct. 945 (ALITO, J.,
concurring in judgment); id., at 415, 132 S.Ct. 945
(SOTOMAYOR, J., concurring). Justice GORSUCH
wonders why “someone’s location when using a phone” is
sensitive, post, at 2262, and Justice KENNEDY assumes
that a person’s discrete movements “are not particularly
private,” post, at 2232. Yet this case is not about “using a
phone” or a person’s movement at a particular time. It is
about a detailed chronicle of a person’s physical presence
compiled every day, every moment, over several years.
Such a chronicle implicates privacy concerns far beyond
those considered in Smith and Miller.
Neither does the second rationale underlying the
third-party doctrine—voluntary exposure—hold up when
it comes to CSLI. Cell phone location information is not
truly “shared” as one normally understands the term. In
the first place, cell phones and the services they provide
are “such a pervasive and insistent part of daily life” that
carrying one is indispensable to participation in modern
society. Riley, 573 U.S., at ––––, 134 S.Ct., at 2484.
Second, a cell phone logs a cell-site record by dint of its
operation, without any affirmative act on the part of the
user beyond powering up. Virtually any activity on the
phone generates CSLI, including incoming calls, texts, or
e-mails and countless other data connections that a phone
automatically makes when checking for news, weather, or
social media updates. Apart from disconnecting the phone
from the network, there is no way to avoid leaving behind
a trail of location data. As a result, in no meaningful sense
does the user voluntarily “assume[ ] the risk” of turning
over a comprehensive dossier of his physical movements.
Smith, 442 U.S., at 745, 99 S.Ct. 2577.
We therefore decline to extend Smith and Miller to the
collection of CSLI. Given the unique nature of cell phone
location information, the fact that the Government
obtained the information from a third party does not
overcome Carpenter’s claim to Fourth Amendment
protection. The Government’s acquisition of the cell-site
records was a search within the meaning of the Fourth
Amendment.
* * *
Our decision today is a narrow one. We do not express a
view on matters not before us: real-time CSLI or “tower
dumps” (a download of information on all the devices that
connected to a particular cell site during a particular
interval). We do not disturb the application of Smith and
Miller or call into question conventional surveillance
techniques and tools, such as security cameras. Nor do we
address other business records that might incidentally
reveal location information. Further, our opinion does not
consider other collection techniques involving foreign
affairs or national security. As Justice Frankfurter noted
when considering new innovations in airplanes and
radios, the Court must tread carefully in such cases, to
ensure that we do not “embarrass the future.” Northwest
Airlines, Inc. v. Minnesota, 322 U.S. 292, 300, 64 S.Ct.
950, 88 L.Ed. 1283 (1944).
4
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
13
*2221 IV
[15]
[16]
Having found that the acquisition of Carpenter’s
CSLI was a search, we also conclude that the Government
must generally obtain a warrant supported by probable
cause before acquiring such records. Although the
“ultimate measure of the constitutionality of a
governmental search is ‘reasonableness,’ ” our cases
establish that warrantless searches are typically
unreasonable where “a search is undertaken by law
enforcement officials to discover evidence of criminal
wrongdoing.” Vernonia School Dist. 47J v. Acton, 515
U.S. 646, 652–653, 115 S.Ct. 2386, 132 L.Ed.2d 564
(1995). Thus, “[i]n the absence of a warrant, a search is
reasonable only if it falls within a specific exception to
the warrant requirement.” Riley, 573 U.S., at ––––, 134
S.Ct., at 2482.
[17]
The Government acquired the cell-site records
pursuant to a court order issued under the Stored
Communications Act, which required the Government to
show “reasonable grounds” for believing that the records
were “relevant and material to an ongoing investigation.”
18 U.S.C. § 2703(d). That showing falls well short of the
probable cause required for a warrant. The Court usually
requires “some quantum of individualized suspicion”
before a search or seizure may take place. United States v.
Martinez–Fuerte, 428 U.S. 543, 560–561, 96 S.Ct. 3074,
49 L.Ed.2d 1116 (1976). Under the standard in the Stored
Communications Act, however, law enforcement need
only show that the cell-site evidence might be pertinent to
an ongoing investigation—a “gigantic” departure from the
probable cause rule, as the Government explained below.
App. 34. Consequently, an order issued under Section
2703(d) of the Act is not a permissible mechanism for
accessing historical cell-site records. Before compelling a
wireless carrier to turn over a subscriber’s CSLI, the
Government’s obligation is a familiar one—get a warrant.
Justice ALITO contends that the warrant requirement
simply does not apply when the Government acquires
records using compulsory process. Unlike an actual
search, he says, subpoenas for documents do not involve
the direct taking of evidence; they are at most a
“constructive search” conducted by the target of the
subpoena. Post, at 2252 - 2253. Given this lesser intrusion
on personal privacy, Justice ALITO argues that the
compulsory production of records is not held to the same
probable cause standard. In his view, this Court’s
precedents set forth a categorical rule—separate and
distinct from the third-party doctrine—subjecting
subpoenas to lenient scrutiny without regard to the
suspect’s expectation of privacy in the records. Post, at
2250 - 2257.
But this Court has never held that the Government may
subpoena third parties for records in which the suspect
has a reasonable expectation of privacy. Almost all of the
examples Justice ALITO cites, see post, at 2253 - 2255,
contemplated requests for evidence implicating
diminished privacy interests or for a corporation’s own
books.
5
The lone exception, of course, is *2222 Miller,
where the Court’s analysis of the third-party subpoena
merged with the application of the third-party doctrine.
425 U.S., at 444, 96 S.Ct. 1619 (concluding that Miller
lacked the necessary privacy interest to contest the
issuance of a subpoena to his bank).
Justice ALITO overlooks the critical issue. At some point,
the dissent should recognize that CSLI is an entirely
different species of business record—something that
implicates basic Fourth Amendment concerns about
arbitrary government power much more directly than
corporate tax or payroll ledgers. When confronting new
concerns wrought by digital technology, this Court has
been careful not to uncritically extend existing precedents.
See Riley, 573 U.S., at ––––, 134 S.Ct., at 2485 (“A
search of the information on a cell phone bears little
resemblance to the type of brief physical search
considered [in prior precedents].”).
If the choice to proceed by subpoena provided a
categorical limitation on Fourth Amendment protection,
no type of record would ever be protected by the warrant
requirement. Under Justice ALITO’s view, private letters,
digital contents of a cell phone—any personal information
reduced to document form, in fact—may be collected by
subpoena for no reason other than “official curiosity.”
United States v. Morton Salt Co., 338 U.S. 632, 652, 70
S.Ct. 357, 94 L.Ed. 401 (1950). Justice KENNEDY
declines to adopt the radical implications of this theory,
leaving open the question whether the warrant
requirement applies “when the Government obtains the
modern-day equivalents of an individual’s own ‘papers’
or ‘effects,’ even when those papers or effects are held by
a third party.” Post, at 2230 (citing United States v.
Warshak, 631 F.3d 266, 283–288 (C.A.6 2010)). That
would be a sensible exception, because it would prevent
the subpoena doctrine from overcoming any reasonable
expectation of privacy. If the third-party doctrine does not
apply to the “modern-day equivalents of an individual’s
own ‘papers’ or ‘effects,’ ” then the clear implication is
that the documents should receive full Fourth Amendment
protection. We simply think that such protection should
extend as well to a detailed log of a person’s movements
over several years.
This is certainly not to say that all orders compelling the
production of documents will require a showing of
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
14
probable cause. The Government will be able to use
subpoenas to acquire records in the overwhelming
majority of investigations. We hold only that a warrant is
required in the rare case where the suspect has a
legitimate privacy interest in records held by a third party.
[18]
[19]
Further, even though the Government will
generally need a warrant to access CSLI, case-specific
exceptions may support a warrantless search of an
individual’s cell-site records under certain circumstances.
“One well-recognized exception applies when ‘ “the
exigencies of the situation” make the needs of law
enforcement so compelling that [a] warrantless search is
objectively reasonable under the Fourth Amendment.’ ”
Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179
L.Ed.2d 865 (2011) (quoting *2223 Mincey v. Arizona,
437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290
(1978)). Such exigencies include the need to pursue a
fleeing suspect, protect individuals who are threatened
with imminent harm, or prevent the imminent destruction
of evidence. 563 U.S., at 460, and n. 3, 131 S.Ct. 1849.
As a result, if law enforcement is confronted with an
urgent situation, such fact-specific threats will likely
justify the warrantless collection of CSLI. Lower courts,
for instance, have approved warrantless searches related
to bomb threats, active shootings, and child abductions.
Our decision today does not call into doubt warrantless
access to CSLI in such circumstances. While police must
get a warrant when collecting CSLI to assist in the
mine-run criminal investigation, the rule we set forth does
not limit their ability to respond to an ongoing emergency.
* * *
[20]
As Justice Brandeis explained in his famous dissent,
the Court is obligated—as “[s]ubtler and more
far-reaching means of invading privacy have become
available to the Government”—to ensure that the
“progress of science” does not erode Fourth Amendment
protections. Olmstead v. United States, 277 U.S. 438,
473–474, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Here the
progress of science has afforded law enforcement a
powerful new tool to carry out its important
responsibilities. At the same time, this tool risks
Government encroachment of the sort the Framers, “after
consulting the lessons of history,” drafted the Fourth
Amendment to prevent. Di Re, 332 U.S., at 595, 68 S.Ct.
222.
We decline to grant the state unrestricted access to a
wireless carrier’s database of physical location
information. In light of the deeply revealing nature of
CSLI, its depth, breadth, and comprehensive reach, and
the inescapable and automatic nature of its collection, the
fact that such information is gathered by a third party does
not make it any less deserving of Fourth Amendment
protection. The Government’s acquisition of the cell-site
records here was a search under that Amendment.
The judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice KENNEDY, with whom Justice THOMAS and
Justice ALITO join, dissenting.
This case involves new technology, but the Court’s stark
departure from relevant Fourth Amendment precedents
and principles is, in my submission, unnecessary and
incorrect, requiring this respectful dissent.
The new rule the Court seems to formulate puts needed,
reasonable, accepted, lawful, and congressionally
authorized criminal investigations at serious risk in
serious cases, often when law enforcement seeks to
prevent the threat of violent crimes. And it places undue
restrictions on the lawful and necessary enforcement
powers exercised not only by the Federal Government,
but also by law enforcement in every State and locality
throughout the Nation. Adherence to this Court’s
longstanding precedents and analytic framework would
have been the proper and prudent way to resolve this case.
The Court has twice held that individuals have no Fourth
Amendment interests in business records which are
possessed, owned, and controlled by a third party. United
States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d
71 (1976); Smith v. Maryland, 442 U.S. 735, 99 S.Ct.
2577, 61 L.Ed.2d 220 (1979). This is true even when the
records contain personal and sensitive information. So
when the Government uses a subpoena to obtain, for
*2224 example, bank records, telephone records, and
credit card statements from the businesses that create and
keep these records, the Government does not engage in a
search of the business’s customers within the meaning of
the Fourth Amendment.
In this case petitioner challenges the Government’s right
to use compulsory process to obtain a now-common kind
of business record: cell-site records held by cell phone
service providers. The Government acquired the records
through an investigative process enacted by Congress.
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
15
Upon approval by a neutral magistrate, and based on the
Government’s duty to show reasonable necessity, it
authorizes the disclosure of records and information that
are under the control and ownership of the cell phone
service provider, not its customer. Petitioner
acknowledges that the Government may obtain a wide
variety of business records using compulsory process, and
he does not ask the Court to revisit its precedents. Yet he
argues that, under those same precedents, the Government
searched his records when it used court-approved
compulsory process to obtain the cell-site information at
issue here.
Cell-site records, however, are no different from the many
other kinds of business records the Government has a
lawful right to obtain by compulsory process. Customers
like petitioner do not own, possess, control, or use the
records, and for that reason have no reasonable
expectation that they cannot be disclosed pursuant to
lawful compulsory process.
The Court today disagrees. It holds for the first time that
by using compulsory process to obtain records of a
business entity, the Government has not just engaged in
an impermissible action, but has conducted a search of the
business’s customer. The Court further concludes that the
search in this case was unreasonable and the Government
needed to get a warrant to obtain more than six days of
cell-site records.
In concluding that the Government engaged in a search,
the Court unhinges Fourth Amendment doctrine from the
property-based concepts that have long grounded the
analytic framework that pertains in these cases. In doing
so it draws an unprincipled and unworkable line between
cell-site records on the one hand and financial and
telephonic records on the other. According to today’s
majority opinion, the Government can acquire a record of
every credit card purchase and phone call a person makes
over months or years without upsetting a legitimate
expectation of privacy. But, in the Court’s view, the
Government crosses a constitutional line when it obtains a
court’s approval to issue a subpoena for more than six
days of cell-site records in order to determine whether a
person was within several hundred city blocks of a crime
scene. That distinction is illogical and will frustrate
principled application of the Fourth Amendment in many
routine yet vital law enforcement operations.
It is true that the Cyber Age has vast potential both to
expand and restrict individual freedoms in dimensions not
contemplated in earlier times. See Packingham v. North
Carolina, 582 U.S. ––––, –––– – ––––, 137 S.Ct. 1730,
1735–1736, 198 L.Ed.2d 273 (2017). For the reasons that
follow, however, there is simply no basis here for
concluding that the Government interfered with
information that the cell phone customer, either from a
legal or commonsense standpoint, should have thought
the law would deem owned or controlled by him.
I
Before evaluating the question presented it is helpful to
understand the nature of cell-site records, how they are
commonly *2225 used by cell phone service providers,
and their proper use by law enforcement.
When a cell phone user makes a call, sends a text message
or e-mail, or gains access to the Internet, the cell phone
establishes a radio connection to an antenna at a nearby
cell site. The typical cell site covers a more-or-less
circular geographic area around the site. It has three (or
sometimes six) separate antennas pointing in different
directions. Each provides cell service for a different
120–degree (or 60–degree) sector of the cell site’s circular
coverage area. So a cell phone activated on the north side
of a cell site will connect to a different antenna than a cell
phone on the south side.
Cell phone service providers create records each time a
cell phone connects to an antenna at a cell site. For a
phone call, for example, the provider records the date,
time, and duration of the call; the phone numbers making
and receiving the call; and, most relevant here, the cell
site used to make the call, as well as the specific antenna
that made the connection. The cell-site and antenna data
points, together with the date and time of connection, are
known as cell-site location information, or cell-site
records. By linking an individual’s cell phone to a
particular 120– or 60–degree sector of a cell site’s
coverage area at a particular time, cell-site records reveal
the general location of the cell phone user.
The location information revealed by cell-site records is
imprecise, because an individual cell-site sector usually
covers a large geographic area. The FBI agent who
offered expert testimony about the cell-site records at
issue here testified that a cell site in a city reaches
between a half mile and two miles in all directions. That
means a 60–degree sector covers between approximately
one-eighth and two square miles (and a 120–degree sector
twice that area). To put that in perspective, in urban areas
cell-site records often would reveal the location of a cell
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
16
phone user within an area covering between around a
dozen and several hundred city blocks. In rural areas
cell-site records can be up to 40 times more imprecise. By
contrast, a Global Positioning System (GPS) can reveal an
individual’s location within around 15 feet.
Major cell phone service providers keep cell-site records
for long periods of time. There is no law requiring them to
do so. Instead, providers contract with their customers to
collect and keep these records because they are valuable
to the providers. Among other things, providers aggregate
the records and sell them to third parties along with other
information gleaned from cell phone usage. This data can
be used, for example, to help a department store
determine which of various prospective store locations is
likely to get more foot traffic from middle-aged women
who live in affluent zip codes. The market for cell phone
data is now estimated to be in the billions of dollars. See
Brief for Technology Experts as Amici Curiae 23.
Cell-site records also can serve an important investigative
function, as the facts of this case demonstrate. Petitioner,
Timothy Carpenter, along with a rotating group of
accomplices, robbed at least six RadioShack and
T–Mobile stores at gunpoint over a 2–year period. Five of
those robberies occurred in the Detroit area, each crime at
least four miles from the last. The sixth took place in
Warren, Ohio, over 200 miles from Detroit.
The Government, of course, did not know all of these
details in 2011 when it began investigating Carpenter. In
April of that year police arrested four of Carpenter’s
co-conspirators. One of them confessed to committing
nine robberies in Michigan and Ohio between December
2010 and March 2011. He identified 15 accomplices who
had participated in at *2226 least one of those robberies;
named Carpenter as one of the accomplices; and provided
Carpenter’s cell phone number to the authorities. The
suspect also warned that the other members of the
conspiracy planned to commit more armed robberies in
the immediate future.
The Government at this point faced a daunting task. Even
if it could identify and apprehend the suspects, still it had
to link each suspect in this changing criminal gang to
specific robberies in order to bring charges and convict.
And, of course, it was urgent that the Government take all
necessary steps to stop the ongoing and dangerous crime
spree.
Cell-site records were uniquely suited to this task. The
geographic dispersion of the robberies meant that, if
Carpenter’s cell phone were within even a dozen to
several hundred city blocks of one or more of the stores
when the different robberies occurred, there would be
powerful circumstantial evidence of his participation; and
this would be especially so if his cell phone usually was
not located in the sectors near the stores except during the
robbery times.
To obtain these records, the Government applied to
federal magistrate judges for disclosure orders pursuant to
§ 2703(d) of the Stored Communications Act. That Act
authorizes a magistrate judge to issue an order requiring
disclosure of cell-site records if the Government
demonstrates “specific and articulable facts showing that
there are reasonable grounds to believe” the records “are
relevant and material to an ongoing criminal
investigation.” 18 U.S.C. §§ 2703(d), 2711(3). The full
statutory provision is set out in the Appendix, infra.
From Carpenter’s primary service provider, MetroPCS,
the Government obtained records from between
December 2010 and April 2011, based on its
understanding that nine robberies had occurred in that
timeframe. The Government also requested seven days of
cell-site records from Sprint, spanning the time around the
robbery in Warren, Ohio. It obtained two days of records.
These records confirmed that Carpenter’s cell phone was
in the general vicinity of four of the nine robberies,
including the one in Ohio, at the times those robberies
occurred.
II
The first Clause of the Fourth Amendment provides that
“the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” The customary
beginning point in any Fourth Amendment search case is
whether the Government’s actions constitute a “search” of
the defendant’s person, house, papers, or effects, within
the meaning of the constitutional provision. If so, the next
question is whether that search was reasonable.
Here the only question necessary to decide is whether the
Government searched anything of Carpenter’s when it
used compulsory process to obtain cell-site records from
Carpenter’s cell phone service providers. This Court’s
decisions in Miller and Smith dictate that the answer is no,
as every Court of Appeals to have considered the question
has recognized. See United States v. Thompson, 866 F.3d
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
17
1149 (C.A.10 2017); United States v. Graham, 824 F.3d
421 (C.A.4 2016) (en banc); United States v. Carpenter,
819 F.3d 880 (C.A.6 2016); United States v. Davis, 785
F.3d 498 (C.A.11 2015) (en banc); In re Application of
U.S. for Historical Cell Site Data, 724 F.3d 600 (C.A.5
2013).
A
Miller and Smith hold that individuals lack any protected
Fourth Amendment interests *2227 in records that are
possessed, owned, and controlled only by a third party. In
Miller federal law enforcement officers obtained four
months of the defendant’s banking records. 425 U.S., at
437–438, 96 S.Ct. 1619. And in Smith state police
obtained records of the phone numbers dialed from the
defendant’s home phone. 442 U.S., at 737, 99 S.Ct. 2577.
The Court held in both cases that the officers did not
search anything belonging to the defendants within the
meaning of the Fourth Amendment. The defendants could
“assert neither ownership nor possession” of the records
because the records were created, owned, and controlled
by the companies. Miller, supra, at 440, 96 S.Ct. 1619;
see Smith, supra, at 741, 99 S.Ct. 2577. And the
defendants had no reasonable expectation of privacy in
information they “voluntarily conveyed to the
[companies] and exposed to their employees in the
ordinary course of business.” Miller, supra, at 442, 96
S.Ct. 1619; see Smith, 442 U.S., at 744, 99 S.Ct. 2577.
Rather, the defendants “assumed the risk that the
information would be divulged to police.” Id., at 745, 99
S.Ct. 2577.
Miller and Smith have been criticized as being based on
too narrow a view of reasonable expectations of privacy.
See, e.g., Ashdown, The Fourth Amendment and the
“Legitimate Expectation of Privacy,” 34 Vand. L. Rev.
1289, 1313–1316 (1981). Those criticisms, however, are
unwarranted. The principle established in Miller and
Smith is correct for two reasons, the first relating to a
defendant’s attenuated interest in property owned by
another, and the second relating to the safeguards inherent
in the use of compulsory process.
First, Miller and Smith placed necessary limits on the
ability of individuals to assert Fourth Amendment
interests in property to which they lack a “requisite
connection.” Minnesota v. Carter, 525 U.S. 83, 99, 119
S.Ct. 469, 142 L.Ed.2d 373 (1998) (KENNEDY, J.,
concurring). Fourth Amendment rights, after all, are
personal. The Amendment protects “[t]he right of the
people to be secure in their ... persons, houses, papers,
and effects”—not the persons, houses, papers, and effects
of others. (Emphasis added.)
The concept of reasonable expectations of privacy, first
announced in Katz v. United States, 389 U.S. 347, 88
S.Ct. 507, 19 L.Ed.2d 576 (1967), sought to look beyond
the “arcane distinctions developed in property and tort
law” in evaluating whether a person has a sufficient
connection to the thing or place searched to assert Fourth
Amendment interests in it. Rakas v. Illinois, 439 U.S. 128,
143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Yet “property
concepts” are, nonetheless, fundamental “in determining
the presence or absence of the privacy interests protected
by that Amendment.” Id., at 143–144, n. 12, 99 S.Ct. 421.
This is so for at least two reasons. First, as a matter of
settled expectations from the law of property, individuals
often have greater expectations of privacy in things and
places that belong to them, not to others. And second, the
Fourth Amendment’s protections must remain tethered to
the text of that Amendment, which, again, protects only a
person’s own “persons, houses, papers, and effects.”
Katz did not abandon reliance on property-based
concepts. The Court in Katz analogized the phone booth
used in that case to a friend’s apartment, a taxicab, and a
hotel room. 389 U.S., at 352, 359, 88 S.Ct. 507. So when
the defendant “shu[t] the door behind him” and “pa[id]
the toll,” id., at 352, 88 S.Ct. 507, he had a temporary
interest in the space and a legitimate expectation that
others would not intrude, much like the interest a hotel
guest has in a hotel room, *2228 Stoner v. California, 376
U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), or an
overnight guest has in a host’s home, Minnesota v. Olson,
495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The
Government intruded on that space when it attached a
listening device to the phone booth. Katz, 389 U.S., at
348, 88 S.Ct. 507. (And even so, the Court made it clear
that the Government’s search could have been reasonable
had there been judicial approval on a case-specific basis,
which, of course, did occur here. Id., at 357–359, 88 S.Ct.
507.)
Miller and Smith set forth an important and necessary
limitation on the Katz framework. They rest upon the
commonsense principle that the absence of property law
analogues can be dispositive of privacy expectations. The
defendants in those cases could expect that the third-party
businesses could use the records the companies collected,
stored, and classified as their own for any number of
business and commercial purposes. The businesses were
not bailees or custodians of the records, with a duty to
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
18
hold the records for the defendants’ use. The defendants
could make no argument that the records were their own
papers or effects. See Miller, supra, at 440, 96 S.Ct. 1619
(“the documents subpoenaed here are not respondent’s
‘private papers’ ”); Smith, supra, at 741, 99 S.Ct. 2577
(“petitioner obviously cannot claim that his ‘property’
was invaded”). The records were the business entities’
records, plain and simple. The defendants had no reason
to believe the records were owned or controlled by them
and so could not assert a reasonable expectation of
privacy in the records.
The second principle supporting Miller and Smith is the
longstanding rule that the Government may use
compulsory process to compel persons to disclose
documents and other evidence within their possession and
control. See United States v. Nixon, 418 U.S. 683, 709, 94
S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (it is an “ancient
proposition of law” that “the public has a right to every
man’s evidence” (internal quotation marks and alterations
omitted)). A subpoena is different from a warrant in its
force and intrusive power. While a warrant allows the
Government to enter and seize and make the examination
itself, a subpoena simply requires the person to whom it is
directed to make the disclosure. A subpoena, moreover,
provides the recipient the “opportunity to present
objections” before complying, which further mitigates the
intrusion. Oklahoma Press Publishing Co. v. Walling, 327
U.S. 186, 195, 66 S.Ct. 494, 90 L.Ed. 614 (1946).
For those reasons this Court has held that a subpoena for
records, although a “constructive” search subject to
Fourth Amendment constraints, need not comply with the
procedures applicable to warrants—even when challenged
by the person to whom the records belong. Id., at 202,
208, 66 S.Ct. 494. Rather, a subpoena complies with the
Fourth Amendment’s reasonableness requirement so long
as it is “ ‘sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will
not be unreasonably burdensome.’ ” Donovan v. Lone
Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 78 L.Ed.2d
567 (1984). Persons with no meaningful interests in the
records sought by a subpoena, like the defendants in
Miller and Smith, have no rights to object to the records’
disclosure—much less to assert that the Government must
obtain a warrant to compel disclosure of the records. See
Miller, 425 U.S., at 444–446, 96 S.Ct. 1619; SEC v. Jerry
T. O’Brien, Inc., 467 U.S. 735, 742–743, 104 S.Ct. 2720,
81 L.Ed.2d 615 (1984).
Based on Miller and Smith and the principles underlying
those cases, it is well established that subpoenas may be
used to *2229 obtain a wide variety of records held by
businesses, even when the records contain private
information. See 2 W. LaFave, Search and Seizure § 4.13
(5th ed. 2012). Credit cards are a prime example. State
and federal law enforcement, for instance, often subpoena
credit card statements to develop probable cause to
prosecute crimes ranging from drug trafficking and
distribution to healthcare fraud to tax evasion. See United
States v. Phibbs, 999 F.2d 1053 (C.A.6 1993) (drug
distribution); McCune v. DOJ, 592 Fed.Appx. 287 (C.A.5
2014) (healthcare fraud); United States v. Green, 305 F.3d
422 (C.A.6 2002) (drug trafficking and tax evasion); see
also 12 U.S.C. §§ 3402(4), 3407 (allowing the
Government to subpoena financial records if “there is
reason to believe that the records sought are relevant to a
legitimate law enforcement inquiry”). Subpoenas also
may be used to obtain vehicle registration records, hotel
records, employment records, and records of utility usage,
to name just a few other examples. See 1 LaFave, supra, §
2.7(c).
And law enforcement officers are not alone in their
reliance on subpoenas to obtain business records for
legitimate investigations. Subpoenas also are used for
investigatory purposes by state and federal grand juries,
see United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35
L.Ed.2d 67 (1973), state and federal administrative
agencies, see Oklahoma Press, supra, and state and
federal legislative bodies, see McPhaul v. United States,
364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).
B
Carpenter does not question these traditional investigative
practices. And he does not ask the Court to reconsider
Miller and Smith. Carpenter argues only that, under Miller
and Smith, the Government may not use compulsory
process to acquire cell-site records from cell phone
service providers.
There is no merit in this argument. Cell-site records, like
all the examples just discussed, are created, kept,
classified, owned, and controlled by cell phone service
providers, which aggregate and sell this information to
third parties. As in Miller, Carpenter can “assert neither
ownership nor possession” of the records and has no
control over them. 425 U.S., at 440, 96 S.Ct. 1619.
Carpenter argues that he has Fourth Amendment interests
in the cell-site records because they are in essence his
personal papers by operation of
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
19
statute imposes certain restrictions on how providers may
use “customer proprietary network information”—a term
that encompasses cell-site records. §§ 222(c), (h)(1)(A).
The statute in general prohibits providers from disclosing
personally identifiable cell-site records to private third
parties. § 222(c)(1). And it allows customers to request
cell-site records from the provider. § 222(c)(2).
Carpenter’s argument is unpersuasive, however, for § 222
does not grant cell phone customers any meaningful
interest in cell-site records. The statute’s confidentiality
protections may be overridden by the interests of the
providers or the Government. The providers may disclose
the records “to protect the[ir] rights or property” or to
“initiate, render, bill, and collect for telecommunications
services.” §§ 222(d)(1), (2). They also may disclose the
records “as required by law”—which, of course, is how
they were disclosed in this case. § 222(c)(1). Nor does the
statute provide customers any practical control over the
records. Customers do not create the records; they have
no say in whether or for how long the records are stored;
and they cannot require the records to be modified or
destroyed. Even *2230 their right to request access to the
records is limited, for the statute “does not preclude a
carrier from being reimbursed by the customers ... for the
costs associated with making such disclosures.” H.R.Rep.
No. 104–204, pt. 1, p. 90 (1995). So in every legal and
practical sense the “network information” regulated by §
222 is, under that statute, “proprietary” to the service
providers, not Carpenter. The Court does not argue
otherwise.
Because Carpenter lacks a requisite connection to the
cell-site records, he also may not claim a reasonable
expectation of privacy in them. He could expect that a
third party—the cell phone service provider—could use
the information it collected, stored, and classified as its
own for a variety of business and commercial purposes.
All this is not to say that Miller and Smith are without
limits. Miller and Smith may not apply when the
Government obtains the modern-day equivalents of an
individual’s own “papers” or “effects,” even when those
papers or effects are held by a third party. See Ex parte
Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878) (letters
held by mail carrier); United States v. Warshak, 631 F.3d
266, 283–288 (C.A.6 2010) (e-mails held by Internet
service provider). As already discussed, however, this
case does not involve property or a bailment of that sort.
Here the Government’s acquisition of cell-site records
falls within the heartland of Miller and Smith.
In fact, Carpenter’s Fourth Amendment objection is even
weaker than those of the defendants in Miller and Smith.
Here the Government did not use a mere subpoena to
obtain the cell-site records. It acquired the records only
after it proved to a Magistrate Judge reasonable grounds
to believe that the records were relevant and material to
an ongoing criminal investigation. See 18 U.S.C. §
2703(d). So even if § 222 gave Carpenter some attenuated
interest in the records, the Government’s conduct here
would be reasonable under the standards governing
subpoenas. See Donovan, 464 U.S., at 415, 104 S.Ct. 769.
Under Miller and Smith, then, a search of the sort that
requires a warrant simply did not occur when the
Government used court-approved compulsory process,
based on a finding of reasonable necessity, to compel a
cell phone service provider, as owner, to disclose cell-site
records.
III
The Court rejects a straightforward application of Miller
and Smith. It concludes instead that applying those cases
to cell-site records would work a “significant extension”
of the principles underlying them, ante, at 2219, and holds
that the acquisition of more than six days of cell-site
records constitutes a search, ante, at 2217, n. 3.
In my respectful view the majority opinion misreads this
Court’s precedents, old and recent, and transforms Miller
and Smith into an unprincipled and unworkable doctrine.
The Court’s newly conceived constitutional standard will
cause confusion; will undermine traditional and important
law enforcement practices; and will allow the cell phone
to become a protected medium that dangerous persons
will use to commit serious crimes.
A
The Court errs at the outset by attempting to sidestep
Miller and Smith. The Court frames this case as following
instead from United States v. Knotts, 460 U.S. 276, 103
S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v.
Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911
(2012). Those cases, the Court suggests, establish that
*2231 “individuals have a reasonable expectation of
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
20
privacy in the whole of their physical movements.” Ante,
at 2214 - 2216, 2217.
Knotts held just the opposite: “A person traveling in an
automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place
to another.” 460 U.S., at 281, 103 S.Ct. 1081. True, the
Court in Knotts also suggested that “different
constitutional principles may be applicable” to
“dragnet-type law enforcement practices.” Id., at 284, 103
S.Ct. 1081. But by dragnet practices the Court was
referring to “ ‘twenty-four hour surveillance of any citizen
of this country ... without judicial knowledge or
supervision.’ ” Id., at 283, 103 S.Ct. 1081.
Those “different constitutional principles” mentioned in
Knotts, whatever they may be, do not apply in this case.
Here the Stored Communications Act requires a neutral
judicial officer to confirm in each case that the
Government has “reasonable grounds to believe” the
cell-site records “are relevant and material to an ongoing
criminal investigation.” 18 U.S.C. § 2703(d). This judicial
check mitigates the Court’s concerns about “ ‘a too
permeating police surveillance.’ ” Ante, at 2214 (quoting
United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222,
92 L.Ed. 210 (1948)). Here, even more so than in Knotts,
“reality hardly suggests abuse.” 460 U.S., at 284, 103
S.Ct. 1081.
The Court’s reliance on Jones fares no better. In Jones the
Government installed a GPS tracking device on the
defendant’s automobile. The Court held the Government
searched the automobile because it “physically occupied
private property [of the defendant] for the purpose of
obtaining information.” 565 U.S., at 404, 132 S.Ct. 945.
So in Jones it was “not necessary to inquire about the
target’s expectation of privacy in his vehicle’s
movements.” Grady v. North Carolina, 575 U.S. ––––,
––––, 135 S.Ct. 1368, 1370, 191 L.Ed.2d 459 (2015) (per
curiam ).
Despite that clear delineation of the Court’s holding in
Jones, the Court today declares that Jones applied the “
‘different constitutional principles’ ” alluded to in Knotts
to establish that an individual has an expectation of
privacy in the sum of his whereabouts. Ante, at 2215,
2217 - 2218. For that proposition the majority relies on
the two concurring opinions in Jones, one of which stated
that “longer term GPS monitoring in investigations of
most offenses impinges on expectations of privacy.” 565
U.S., at 430, 132 S.Ct. 945 (ALITO, J., concurring). But
Jones involved direct governmental surveillance of a
defendant’s automobile without judicial
authorization—specifically, GPS surveillance accurate
within 50 to 100 feet. Id., at 402–403, 132 S.Ct. 945.
Even assuming that the different constitutional principles
mentioned in Knotts would apply in a case like Jones—a
proposition the Court was careful not to announce in
Jones, supra, at 412–413, 132 S.Ct. 945—those principles
are inapplicable here. Cases like this one, where the
Government uses court-approved compulsory process to
obtain records owned and controlled by a third party, are
governed by the two majority opinions in Miller and
Smith.
B
The Court continues its analysis by misinterpreting Miller
and Smith, and then it reaches the wrong outcome on
these facts even under its flawed standard.
The Court appears, in my respectful view, to read Miller
and Smith to establish a balancing test. For each
“qualitatively different category” of information, the
Court suggests, the privacy interests at stake must be
weighed against the fact that the information has been
disclosed to a third party. See *2232 ante, at 2216, 2219 -
2220. When the privacy interests are weighty enough to
“overcome” the third-party disclosure, the Fourth
Amendment’s protections apply. See ante, at 2220.
That is an untenable reading of Miller and Smith. As
already discussed, the fact that information was
relinquished to a third party was the entire basis for
concluding that the defendants in those cases lacked a
reasonable expectation of privacy. Miller and Smith do
not establish the kind of category-by-category balancing
the Court today prescribes.
But suppose the Court were correct to say that Miller and
Smith rest on so imprecise a foundation. Still the Court
errs, in my submission, when it concludes that cell-site
records implicate greater privacy interests—and thus
deserve greater Fourth Amendment protection—than
financial records and telephone records.
Indeed, the opposite is true. A person’s movements are
not particularly private. As the Court recognized in
Knotts, when the defendant there “traveled over the public
streets he voluntarily conveyed to anyone who wanted to
look the fact that he was traveling over particular roads in
a particular direction, the fact of whatever stops he made,
and the fact of his final destination.”
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
21
281–282, 103 S.Ct. 1081. Today expectations of privacy
in one’s location are, if anything, even less reasonable
than when the Court decided Knotts over 30 years ago.
Millions of Americans choose to share their location on a
daily basis, whether by using a variety of location-based
services on their phones, or by sharing their location with
friends and the public at large via social media.
And cell-site records, as already discussed, disclose a
person’s location only in a general area. The records at
issue here, for example, revealed Carpenter’s location
within an area covering between around a dozen and
several hundred city blocks. “Areas of this scale might
encompass bridal stores and Bass Pro Shops, gay bars and
straight ones, a Methodist church and the local mosque.”
819 F.3d 880, 889 (C.A.6 2016). These records could not
reveal where Carpenter lives and works, much less his “
‘familial, political, professional, religious, and sexual
associations.’ ” Ante, at 2217 (quoting Jones, supra, at
415, 132 S.Ct. 945 (SOTOMAYOR, J., concurring)).
By contrast, financial records and telephone records do “
‘revea[l] ... personal affairs, opinions, habits and
associations.’ ” Miller, 425 U.S., at 451, 96 S.Ct. 1619
(Brennan, J., dissenting); see Smith, 442 U.S., at 751, 99
S.Ct. 2577 (Marshall, J., dissenting). What persons
purchase and to whom they talk might disclose how much
money they make; the political and religious
organizations to which they donate; whether they have
visited a psychiatrist, plastic surgeon, abortion clinic, or
AIDS treatment center; whether they go to gay bars or
straight ones; and who are their closest friends and family
members. The troves of intimate information the
Government can and does obtain using financial records
and telephone records dwarfs what can be gathered from
cell-site records.
Still, the Court maintains, cell-site records are “unique”
because they are “comprehensive” in their reach; allow
for retrospective collection; are “easy, cheap, and efficient
compared to traditional investigative tools”; and are not
exposed to cell phone service providers in a meaningfully
voluntary manner. Ante, at 2216 - 2218, 2220, 2223. But
many other kinds of business records can be so described.
Financial records are of vast scope. Banks and credit card
companies keep a comprehensive account of almost every
transaction an individual makes on a daily basis. “With
*2233 just the click of a button, the Government can
access each [company’s] deep repository of historical
[financial] information at practically no expense.” Ante, at
2218. And the decision whether to transact with banks
and credit card companies is no more or less voluntary
than the decision whether to use a cell phone. Today, just
as when Miller was decided, “ ‘it is impossible to
participate in the economic life of contemporary society
without maintaining a bank account.’ ” 425 U.S., at 451,
96 S.Ct. 1619 (BRENNAN, J., dissenting). But this Court,
nevertheless, has held that individuals do not have a
reasonable expectation of privacy in financial records.
Perhaps recognizing the difficulty of drawing the
constitutional line between cell-site records and financial
and telephonic records, the Court posits that the accuracy
of cell-site records “is rapidly approaching GPS-level
precision.” Ante, at 2219. That is certainly plausible in the
era of cyber technology, yet the privacy interests
associated with location information, which is often
disclosed to the public at large, still would not outweigh
the privacy interests implicated by financial and
telephonic records.
Perhaps more important, those future developments are no
basis upon which to resolve this case. In general, the
Court “risks error by elaborating too fully on the Fourth
Amendment implications of emerging technology before
its role in society has become clear.” Ontario v. Quon,
560 U.S. 746, 759, 130 S.Ct. 2619, 177 L.Ed.2d 216
(2010). That judicial caution, prudent in most cases, is
imperative in this one.
Technological changes involving cell phones have
complex effects on crime and law enforcement. Cell
phones make crimes easier to coordinate and conceal,
while also providing the Government with new
investigative tools that may have the potential to upset
traditional privacy expectations. See Kerr, An
Equilibrium–Adjustment Theory of the Fourth
Amendment, 125 Harv. L. Rev 476, 512–517 (2011).
How those competing effects balance against each other,
and how property norms and expectations of privacy form
around new technology, often will be difficult to
determine during periods of rapid technological change.
In those instances, and where the governing legal standard
is one of reasonableness, it is wise to defer to legislative
judgments like the one embodied in § 2703(d) of the
Stored Communications Act. See Jones, 565 U.S., at 430,
132 S.Ct. 945 (ALITO, J., concurring). In § 2703(d)
Congress weighed the privacy interests at stake and
imposed a judicial check to prevent executive overreach.
The Court should be wary of upsetting that legislative
balance and erecting constitutional barriers that foreclose
further legislative instructions. See Quon, supra, at 759,
130 S.Ct. 2619. The last thing the Court should do is
incorporate an arbitrary and outside limit—in this case six
days’ worth of cell-site records—and use it as the
foundation for a new constitutional framework. The
Court’s decision runs roughshod over the mechanism
Congress put in place to govern the acquisition of cell-site
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
22
records and closes off further legislative debate on these
issues.
C
The Court says its decision is a “narrow one.” Ante, at
2220. But its reinterpretation of Miller and Smith will
have dramatic consequences for law enforcement, courts,
and society as a whole.
Most immediately, the Court’s holding that the
Government must get a warrant to obtain more than six
days of cell-site records limits the effectiveness of an
important investigative tool for solving serious crimes. As
this case demonstrates, cell-site records are uniquely
suited to help *2234 the Government develop probable
cause to apprehend some of the Nation’s most dangerous
criminals: serial killers, rapists, arsonists, robbers, and so
forth. See also, e.g., Davis, 785 F.3d, at 500–501 (armed
robbers); Brief for Alabama et al. as Amici Curiae 21–22
(serial killer). These records often are indispensable at the
initial stages of investigations when the Government lacks
the evidence necessary to obtain a warrant. See United
States v. Pembrook, 876 F.3d 812, 816–819 (C.A.6 2017).
And the long-term nature of many serious crimes,
including serial crimes and terrorism offenses, can
necessitate the use of significantly more than six days of
cell-site records. The Court’s arbitrary 6–day cutoff has
the perverse effect of nullifying Congress’ reasonable
framework for obtaining cell-site records in some of the
most serious criminal investigations.
The Court’s decision also will have ramifications that
extend beyond cell-site records to other kinds of
information held by third parties, yet the Court fails “to
provide clear guidance to law enforcement” and courts on
key issues raised by its reinterpretation of Miller and
Smith. Riley v. California, 573 U.S. ––––, ––––, 134 S.Ct.
2473, 2491, 189 L.Ed.2d 430 (2014).
First, the Court’s holding is premised on cell-site records
being a “distinct category of information” from other
business records. Ante, at 2219. But the Court does not
explain what makes something a distinct category of
information. Whether credit card records are distinct from
bank records; whether payment records from digital
wallet applications are distinct from either; whether the
electronic bank records available today are distinct from
the paper and microfilm records at issue in Miller; or
whether cell-phone call records are distinct from the
home-phone call records at issue in Smith, are just a few
of the difficult questions that require answers under the
Court’s novel conception of Miller and Smith.
Second, the majority opinion gives courts and law
enforcement officers no indication how to determine
whether any particular category of information falls on
the financial-records side or the cell-site-records side of
its newly conceived constitutional line. The Court’s
multifactor analysis—considering intimacy,
comprehensiveness, expense, retrospectivity, and
voluntariness—puts the law on a new and unstable
foundation.
Third, even if a distinct category of information is deemed
to be more like cell-site records than financial records,
courts and law enforcement officers will have to guess
how much of that information can be requested before a
warrant is required. The Court suggests that less than
seven days of location information may not require a
warrant. See ante, at 2217, n. 3; see also ante, at 2220 -
2221 (expressing no opinion on “real-time CSLI,” tower
dumps, and security-camera footage). But the Court does
not explain why that is so, and nothing in its opinion even
alludes to the considerations that should determine
whether greater or lesser thresholds should apply to
information like IP addresses or website browsing history.
Fourth, by invalidating the Government’s use of
court-approved compulsory process in this case, the Court
calls into question the subpoena practices of federal and
state grand juries, legislatures, and other investigative
bodies, as Justice ALITO’s opinion explains. See post, at
2247 - 2257 (dissenting opinion). Yet the Court fails even
to mention the serious consequences this will have for the
proper administration of justice.
In short, the Court’s new and uncharted course will inhibit
law enforcement and “keep defendants and judges
guessing for years to come.” *2235 Riley, 573 U.S., at
––––, 134 S.Ct., at 2493 (internal quotation marks
omitted).
* * *
This case should be resolved by interpreting accepted
property principles as the baseline for reasonable
expectations of privacy. Here the Government did not
search anything over which Carpenter could assert
ownership or control. Instead, it issued a court-authorized
subpoena to a third party to disclose information it alone
owned and controlled. That should suffice to resolve this
case.
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
23
Having concluded, however, that the Government
searched Carpenter when it obtained cell-site records
from his cell phone service providers, the proper
resolution of this case should have been to remand for the
Court of Appeals to determine in the first instance
whether the search was reasonable. Most courts of
appeals, believing themselves bound by Miller and Smith,
have not grappled with this question. And the Court’s
reflexive imposition of the warrant requirement obscures
important and difficult issues, such as the scope of
Congress’ power to authorize the Government to collect
new forms of information using processes that deviate
from traditional warrant procedures, and how the Fourth
Amendment’s reasonableness requirement should apply
when the Government uses compulsory process instead of
engaging in an actual, physical search.
These reasons all lead to this respectful dissent.
APPENDIX
‘‘§ 2703. Required disclosure of customer
communications or records
“(d) REQUIREMENTS FOR COURT ORDER.—A court
order for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent
jurisdiction and shall issue only if the governmental entity
offers specific and articulable facts showing that there are
reasonable grounds to believe that the contents of a wire
or electronic communication, or the records or other
information sought, are relevant and material to an
ongoing criminal investigation. In the case of a State
governmental authority, such a court order shall not issue
if prohibited by the law of such State. A court issuing an
order pursuant to this section, on a motion made promptly
by the service provider, may quash or modify such order,
if the information or records requested are unusually
voluminous in nature or compliance with such order
otherwise would cause an undue burden on such
provider.”
Justice THOMAS, dissenting.
This case should not turn on “whether” a search occurred.
Ante, at 2223 - 2224. It should turn, instead, on whose
property was searched. The Fourth Amendment
guarantees individuals the right to be secure from
unreasonable searches of “their persons, houses, papers,
and effects.” (Emphasis added.) In other words, “each
person has the right to be secure against unreasonable
searches ... in his own person, house, papers, and effects.”
Minnesota v. Carter, 525 U.S. 83, 92, 119 S.Ct. 469, 142
L.Ed.2d 373 (1998) (Scalia, J., concurring). By obtaining
the cell-site records of MetroPCS and Sprint, the
Government did not search Carpenter’s property. He did
not create the records, he does not maintain them, he
cannot control them, and he cannot destroy them. Neither
the terms of his contracts nor any provision of law makes
the records his. The records belong to MetroPCS and
Sprint.
The Court concludes that, although the records are not
Carpenter’s, the Government must get a warrant because
Carpenter had a reasonable “expectation of privacy”
*2236 in the location information that they reveal. Ante,
at 2216 - 2217. I agree with Justice KENNEDY, Justice
ALITO, Justice GORSUCH, and every Court of Appeals
to consider the question that this is not the best reading of
our precedents.
The more fundamental problem with the Court’s opinion,
however, is its use of the “reasonable expectation of
privacy” test, which was first articulated by Justice Harlan
in Katz v. United States, 389 U.S. 347, 360–361, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967) (concurring opinion). The
Katz test has no basis in the text or history of the Fourth
Amendment. And, it invites courts to make judgments
about policy, not law. Until we confront the problems
with this test, Katz will continue to distort Fourth
Amendment jurisprudence. I respectfully dissent.
I
Katz was the culmination of a series of decisions applying
the Fourth Amendment to electronic eavesdropping. The
first such decision was Olmstead v. United States, 277
U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), where
federal officers had intercepted the defendants’
conversations by tapping telephone lines near their
homes. Id., at 456–457, 48 S.Ct. 564. In an opinion by
Chief Justice Taft, the Court concluded that this wiretap
did not violate the Fourth Amendment. No “search”
occurred, according to the Court, because the officers did
not physically enter the defendants’ homes. Id., at
464–466, 48 S.Ct. 564. And neither the telephone lines
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
24
nor the defendants’ intangible conversations qualified as
“persons, houses, papers, [or] effects” within the meaning
of the Fourth Amendment. Ibid.
1
In the ensuing decades,
this Court adhered to Olmstead and rejected Fourth
Amendment challenges to various methods of electronic
surveillance. See On Lee v. United States, 343 U.S. 747,
749–753, 72 S.Ct. 967, 96 L.Ed. 1270 (1952) (use of
microphone to overhear conversations with confidential
informant); Goldman v. United States, 316 U.S. 129,
131–132, 135–136, 62 S.Ct. 993, 86 L.Ed. 1322 (1942)
(use of detectaphone to hear conversations in office next
door).
In the 1960’s, however, the Court began to retreat from
Olmstead. In Silverman v. United States, 365 U.S. 505, 81
S.Ct. 679, 5 L.Ed.2d 734 (1961), for example, federal
officers had eavesdropped on the defendants by driving a
“spike mike” several inches into the house they were
occupying. Id., at 506–507, 81 S.Ct. 679. This was a
“search,” the Court held, because the “unauthorized
physical penetration into the premises” was an “actual
intrusion into a constitutionally protected area.” Id., at
509, 512, 81 S.Ct. 679. The Court did not mention
Olmstead ‘s other holding that intangible conversations
are not “persons, houses, papers, [or] effects.” That
omission was significant. The Court confirmed two years
later that “[i]t follows from [Silverman ] that the Fourth
Amendment may protect against the overhearing of verbal
statements as well as against the more traditional seizure
of ‘papers and effects.’ ” Wong Sun v. United States, 371
U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963);
accord, *2237 Berger v. New York, 388 U.S. 41, 51, 87
S.Ct. 1873, 18 L.Ed.2d 1040 (1967).
In Katz, the Court rejected Olmstead ‘s remaining
holding—that eavesdropping is not a search absent a
physical intrusion into a constitutionally protected area.
The federal officers in Katz had intercepted the
defendant’s conversations by attaching an electronic
device to the outside of a public telephone booth. 389
U.S., at 348, 88 S.Ct. 507. The Court concluded that this
was a “search” because the officers “violated the privacy
upon which [the defendant] justifiably relied while using
the telephone booth.” Id., at 353, 88 S.Ct. 507. Although
the device did not physically penetrate the booth, the
Court overruled Olmstead and held that “the reach of [the
Fourth] Amendment cannot turn upon the presence or
absence of a physical intrusion.” 389 U.S., at 353, 88
S.Ct. 507. The Court did not explain what should replace
Olmstead ‘s physical-intrusion requirement. It simply
asserted that “the Fourth Amendment protects people, not
places” and “what [a person] seeks to preserve as private
... may be constitutionally protected.” 389 U.S., at 351, 88
S.Ct. 507.
Justice Harlan’s concurrence in Katz attempted to
articulate the standard that was missing from the majority
opinion. While Justice Harlan agreed that “ ‘the Fourth
Amendment protects people, not places,’ ” he stressed
that “[t]he question ... is what protection it affords to
those people,” and “the answer ... requires reference to a
‘place.’ ” Id., at 361, 88 S.Ct. 507. Justice Harlan
identified a “twofold requirement” to determine when the
protections of the Fourth Amendment apply: “first that a
person have exhibited an actual (subjective) expectation
of privacy and, second, that the expectation be one that
society is prepared to recognize as ‘reasonable.’ ” Ibid.
Justice Harlan did not cite anything for this “expectation
of privacy” test, and the parties did not discuss it in their
briefs. The test appears to have been presented for the
first time at oral argument by one of the defendant’s
lawyers. See Winn, Katz and the Origins of the
“Reasonable Expectation of Privacy” Test, 40 McGeorge
L. Rev. 1, 9–10 (2009). The lawyer, a recent law-school
graduate, apparently had an “[e]piphany” while preparing
for oral argument. Schneider, Katz v. United States: The
Untold Story, 40 McGeorge L. Rev. 13, 18 (2009). He
conjectured that, like the “reasonable person” test from
his Torts class, the Fourth Amendment should turn on
“whether a reasonable person ... could have expected his
communication to be private.” Id., at 19. The lawyer
presented his new theory to the Court at oral argument.
See, e.g., Tr. of Oral Arg. in Katz v. United States, O.T.
1967, No. 35, p. 5 (proposing a test of “whether or not,
objectively speaking, the communication was intended to
be private”); id., at 11 (“We propose a test using a way
that’s not too dissimilar from the tort ‘reasonable man’
test”). After some questioning from the Justices, the
lawyer conceded that his test should also require
individuals to subjectively expect privacy. See id., at 12.
With that modification, Justice Harlan seemed to accept
the lawyer’s test almost verbatim in his concurrence.
Although the majority opinion in Katz had little practical
significance after Congress enacted the Omnibus Crime
Control and Safe Streets Act of 1968, Justice Harlan’s
concurrence profoundly changed our Fourth Amendment
jurisprudence. It took only one year for the full Court to
adopt his two-pronged test. See Terry v. Ohio, 392 U.S. 1,
10, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). And by 1979,
the Court was describing Justice Harlan’s test as the
“lodestar” for determining whether *2238 a “search” had
occurred. Smith v. Maryland, 442 U.S. 735, 739, 99 S.Ct.
2577, 61 L.Ed.2d 220 (1979). Over time, the Court
minimized the subjective prong of Justice Harlan’s test.
See Kerr, Katz Has Only One Step: The Irrelevance of
Subjective Expectations, 82 U. Chi. L. Rev. 113 (2015).
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
25
That left the objective prong—the “reasonable
expectation of privacy” test that the Court still applies
today. See ante, at 2213 - 2214; United States v. Jones,
565 U.S. 400, 406, 132 S.Ct. 945, 181 L.Ed.2d 911
(2012).
II
Under the Katz test, a “search” occurs whenever
“government officers violate a person’s ‘reasonable
expectation of privacy.’ ” Jones, supra, at 406, 132 S.Ct.
945. The most glaring problem with this test is that it has
“no plausible foundation in the text of the Fourth
Amendment.” Carter, 525 U.S., at 97, 119 S.Ct. 469
(opinion of Scalia, J.). The Fourth Amendment, as
relevant here, protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches.” By defining “search” to
mean “any violation of a reasonable expectation of
privacy,” the Katz test misconstrues virtually every one of
these words.
A
The Katz test distorts the original meaning of
“searc[h]”—the word in the Fourth Amendment that it
purports to define, see ante, at 2213 - 2214; Smith, supra.
Under the Katz test, the government conducts a search
anytime it violates someone’s “reasonable expectation of
privacy.” That is not a normal definition of the word
“search.”
At the founding, “search” did not mean a violation of
someone’s reasonable expectation of privacy. The word
was probably not a term of art, as it does not appear in
legal dictionaries from the era. And its ordinary meaning
was the same as it is today: “ ‘[t]o look over or through
for the purpose of finding something; to explore; to
examine by inspection; as, to search the house for a book;
to search the wood for a thief.’ ” Kyllo v. United States,
533 U.S. 27, 32, n. 1, 121 S.Ct. 2038, 150 L.Ed.2d 94
(2001) (quoting N. Webster, An American Dictionary of
the English Language 66 (1828) (reprint 6th ed. 1989));
accord, 2 S. Johnson, A Dictionary of the English
Language (5th ed. 1773) (“Inquiry by looking into every
suspected place”); N. Bailey, An Universal Etymological
English Dictionary (22d ed. 1770) (“a seeking after, a
looking for, & c.”); 2 J. Ash, The New and Complete
Dictionary of the English Language (2d ed. 1795) (“An
enquiry, an examination, the act of seeking, an enquiry by
looking into every suspected place; a quest; a pursuit”); T.
Sheridan, A Complete Dictionary of the English
Language (6th ed. 1796) (similar). The word “search” was
not associated with “reasonable expectation of privacy”
until Justice Harlan coined that phrase in 1967. The
phrase “expectation(s) of privacy” does not appear in the
pre-Katz federal or state case reporters, the papers of
prominent Founders,
2
early congressional documents and
debates,
3
collections of early American English texts,
4
or
early American newspapers. *2239
5
B
The Katz test strays even further from the text by focusing
on the concept of “privacy.” The word “privacy” does not
appear in the Fourth Amendment (or anywhere else in the
Constitution for that matter). Instead, the Fourth
Amendment references “[t]he right of the people to be
secure.” It then qualifies that right by limiting it to
“persons” and three specific types of property: “houses,
papers, and effects.” By connecting the right to be secure
to these four specific objects, “[t]he text of the Fourth
Amendment reflects its close connection to property.”
Jones, supra, at 405, 132 S.Ct. 945. “[P]rivacy,” by
contrast, “was not part of the political vocabulary of the
[founding]. Instead, liberty and privacy rights were
understood largely in terms of property rights.” Cloud,
Property Is Privacy: Locke and Brandeis in the
Twenty–First Century, 55 Am. Crim. L. Rev. 37, 42
(2018).
Those who ratified the Fourth Amendment were quite
familiar with the notion of security in property. Security
in property was a prominent concept in English law. See,
e.g., 3 W. Blackstone, Commentaries on the Laws of
England 288 (1768) (“[E]very man’s house is looked
upon by the law to be his castle”); 3 E. Coke, Institutes of
Laws of England 162 (6th ed. 1680) (“[F]or a man[’]s
house is his Castle, & domus sua cuique est tutissimum
refugium [each man’s home is his safest refuge]”). The
political philosophy of John Locke, moreover, “permeated
the 18th-century political scene in America.” Obergefell
v. Hodges, 576 U.S. ––––, ––––, 135 S.Ct. 2584, 2634,
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
26
192 L.Ed.2d 609 (2015) (THOMAS, J., dissenting). For
Locke, every individual had a property right “in his own
person” and in anything he “removed from the common
state [of] Nature” and “mixed his labour with.” Second
Treatise of Civil Government § 27 (1690). Because
property is “very unsecure” in the state of nature, § 123,
individuals form governments to obtain “a secure
enjoyment of their properties.” § 95. Once a government
is formed, however, it cannot be given “a power to
destroy that which every one designs to secure”; it cannot
legitimately “endeavour to take away, and destroy the
property of the people,” or exercise “an absolute power
over [their] lives, liberties, and estates.” § 222.
The concept of security in property recognized by Locke
and the English legal tradition appeared throughout the
materials that inspired the Fourth Amendment. In Entick
v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765)—a
heralded decision that the founding generation considered
“the true and ultimate expression of constitutional law,”
Boyd v. United States, 116 U.S. 616, 626, 6 S.Ct. 524, 29
L.Ed. 746 (1886)—Lord Camden explained that “[t]he
great end, for which men entered into society, was to
secure their property.” 19 How. St. Tr., at 1066. The
American colonists echoed this reasoning in their
“widespread hostility” to the Crown’s writs of
assistance
6
—a practice that inspired the Revolution and
became “[t]he driving force behind the adoption of the
[Fourth] Amendment.” *2240 United States v.
Verdugo–Urquidez, 494 U.S. 259, 266, 110 S.Ct. 1056,
108 L.Ed.2d 222 (1990). Prominent colonists decried the
writs as destroying “ ‘domestic security’ ” by permitting
broad searches of homes. M. Smith, The Writs of
Assistance Case 475 (1978) (quoting a 1772 Boston town
meeting); see also id., at 562 (complaining that “ ‘every
householder in this province, will necessarily become less
secure than he was before this writ’ ” (quoting a 1762
article in the Boston Gazette)); id., at 493 (complaining
that the writs were “ ‘expressly contrary to the common
law, which ever regarded a man’s house as his castle, or a
place of perfect security’ ” (quoting a 1768 letter from
John Dickinson)). John Otis, who argued the famous
Writs of Assistance case, contended that the writs violated
“ ‘the fundamental Principl[e] of Law’ ” that “ ‘[a] Man
who is quiet, is as secure in his House, as a Prince in his
Castle.’ ” Id., at 339 (quoting John Adam’s notes). John
Adams attended Otis’ argument and later drafted Article
XIV of the Massachusetts Constitution,
7
which served as a
model for the Fourth Amendment. See Clancy, The
Framers’ Intent: John Adams, His Era, and the Fourth
Amendment, 86 Ind. L.J. 979, 982 (2011); Donahue, The
Original Fourth Amendment, 83 U. Chi. L. Rev. 1181,
1269 (2016) (Donahue). Adams agreed that “[p]roperty
must be secured, or liberty cannot exist.” Discourse on
Davila, in 6 The Works of John Adams 280 (C. Adams
ed. 1851).
Of course, the founding generation understood that, by
securing their property, the Fourth Amendment would
often protect their privacy as well. See, e.g., Boyd, supra,
at 630, 6 S.Ct. 524 (explaining that searches of houses
invade “the privacies of life”); Wilkes v. Wood, 19 How.
St. Tr. 1153, 1154 (C.P. 1763) (argument of counsel
contending that seizures of papers implicate “our most
private concerns”). But the Fourth Amendment’s
attendant protection of privacy does not justify Katz ‘s
elevation of privacy as the sine qua non of the
Amendment. See T. Clancy, The Fourth Amendment: Its
History and Interpretation § 3.4.4, p. 78 (2008) (“[The
Katz test] confuse[s] the reasons for exercising the
protected right with the right itself. A purpose of
exercising one’s Fourth Amendment rights might be the
desire for privacy, but the individual’s motivation is not
the right protected”); cf. United States v. Gonzalez–Lopez,
548 U.S. 140, 145, 126 S.Ct. 2557, 165 L.Ed.2d 409
(2006) (rejecting “a line of reasoning that ‘abstracts from
the right to its purposes, and then eliminates the right’ ”).
As the majority opinion in Katz recognized, the Fourth
Amendment “cannot be translated into a general
constitutional ‘right to privacy,’ ” as its protections “often
have nothing to do with privacy at all.” 389 U.S., at 350,
88 S.Ct. 507. Justice Harlan’s focus on privacy in his
concurrence—an opinion that was issued between
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965), and Roe v. Wade, 410 U.S. 113, 93
S.Ct. 705, 35 L.Ed.2d 147 (1973)—reflects privacy’s
status as the organizing constitutional idea of the 1960’s
and 1970’s. The organizing constitutional idea of the
founding era, by contrast, was property.
*2241 C
In shifting the focus of the Fourth Amendment from
property to privacy, the Katz test also reads the words
“persons, houses, papers, and effects” out of the text. At
its broadest formulation, the Katz test would find a search
“wherever an individual may harbor a reasonable
‘expectation of privacy.’ ” Terry, 392 U.S., at 9, 88 S.Ct.
1868 (emphasis added). The Court today, for example,
does not ask whether cell-site location records are
“persons, houses, papers, [or] effects” within the meaning
of the Fourth Amendment.
8
Yet “persons, houses, papers,
and effects” cannot mean “anywhere” or “anything.” Katz
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
27
‘s catchphrase that “the Fourth Amendment protects
people, not places,” is not a serious attempt to reconcile
the constitutional text. See Carter, 525 U.S., at 98, n. 3,
119 S.Ct. 469 (opinion of Scalia, J.). The Fourth
Amendment obviously protects people; “[t]he question ...
is what protection it affords to those people.” Katz, 389
U.S., at 361, 88 S.Ct. 507 (Harlan, J., concurring). The
Founders decided to protect the people from unreasonable
searches and seizures of four specific things—persons,
houses, papers, and effects. They identified those four
categories as “the objects of privacy protection to which
the Constitution would extend, leaving further expansion
to the good judgment ... of the people through their
representatives in the legislature.” Carter, supra, at
97–98, 119 S.Ct. 469 (opinion of Scalia, J.).
This limiting language was important to the founders.
Madison’s first draft of the Fourth Amendment used a
different phrase: “their persons, their houses, their papers,
and their other property.” 1 Annals of Cong. 452 (1789)
(emphasis added). In one of the few changes made to
Madison’s draft, the House Committee of Eleven changed
“other property” to “effects.” See House Committee of
Eleven Report (July 28, 1789), in N. Cogan, The
Complete Bill of Rights 334 (2d ed. 2015). This change
might have narrowed the Fourth Amendment by
clarifying that it does not protect real property (other than
houses). See Oliver v. United States, 466 U.S. 170, 177,
and n. 7, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Davies,
Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547, 709–714 (1999) (Davies). Or the change might
have broadened the Fourth Amendment by clarifying that
it protects commercial goods, not just personal
possessions. See Donahue 1301. Or it might have done
both. Whatever its ultimate effect, the change reveals that
the Founders understood the phrase “persons, houses,
papers, and effects” to be an important measure of the
Fourth Amendment’s overall scope. See Davies 710. The
Katz test, however, displaces and renders that phrase
entirely “superfluous.” Jones, 565 U.S., at 405, 132 S.Ct.
945.
D
“[P]ersons, houses, papers, and effects” are not the only
words that the Katz test reads out of the Fourth
Amendment. The Fourth Amendment specifies that the
people have a right to be secure from unreasonable
searches of “their” persons, houses, papers, and effects.
Although phrased in the plural, “[t]he obvious meaning of
[‘their’] is that each person has the right to be secure
against unreasonable searches *2242 and seizures in his
own person, house, papers, and effects.” Carter, supra, at
92, 119 S.Ct. 469 (opinion of Scalia, J.); see also District
of Columbia v. Heller, 554 U.S. 570, 579, 128 S.Ct. 2783,
171 L.Ed.2d 637 (2008) (explaining that the Constitution
uses the plural phrase “the people” to “refer to individual
rights, not ‘collective’ rights”). Stated differently, the
word “their” means, at the very least, that individuals do
not have Fourth Amendment rights in someone else’s
property. See Carter, supra, at 92–94, 119 S.Ct. 469
(opinion of Scalia, J.). Yet, under the Katz test,
individuals can have a reasonable expectation of privacy
in another person’s property. See, e.g., Carter, 525 U.S.,
at 89, 119 S.Ct. 469 (majority opinion) (“[A] person may
have a legitimate expectation of privacy in the house of
someone else”). Until today, our precedents have not
acknowledged that individuals can claim a reasonable
expectation of privacy in someone else’s business records.
See ante, at 2224 (KENNEDY, J., dissenting). But the
Court erases that line in this case, at least for cell-site
location records. In doing so, it confirms that the Katz test
does not necessarily require an individual to prove that
the government searched his person, house, paper, or
effect.
Carpenter attempts to argue that the cell-site records are,
in fact, his “papers,” see Brief for Petitioner 32–35; Reply
Brief 14–15, but his arguments are unpersuasive, see ante,
at 2229 - 2230 (opinion of KENNEDY, J.); post, at 2257 -
2259 (ALITO, J., dissenting). Carpenter stipulated below
that the cell-site records are the business records of Sprint
and MetroPCS. See App. 51. He cites no property law in
his briefs to this Court, and he does not explain how he
has a property right in the companies’ records under the
law of any jurisdiction at any point in American history.
If someone stole these records from Sprint or MetroPCS,
Carpenter does not argue that he could recover in a
traditional tort action. Nor do his contracts with Sprint
and MetroPCS make the records his, even though such
provisions could exist in the marketplace. Cf., e.g.,
Google Terms of Service,
https://policies.google.com/terms (“Some of our Services
allow you to upload, submit, store, send or receive
content. You retain ownership of any intellectual property
rights that you hold in that content. In short, what belongs
to you stays yours”).
Instead of property, tort, or contract law, Carpenter relies
on the federal Telecommunications Act of 1996 to
demonstrate that the cell site records are his papers. The
Telecommunications Act generally bars cell-phone
companies from disclosing customers’ cell site location
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
28
information to the public. See 47 U.S.C. § 222(c). This is
sufficient to make the records his, Carpenter argues,
because the Fourth Amendment merely requires him to
identify a source of “positive law” that “protects against
access by the public without consent.” Brief for Petitioner
32–33 (citing Baude & Stern, The Positive Law Model of
the Fourth Amendment, 129 Harv. L. Rev. 1821,
1825–1826 (2016); emphasis deleted).
Carpenter is mistaken. To come within the text of the
Fourth Amendment, Carpenter must prove that the
cell-site records are his ; positive law is potentially
relevant only insofar as it answers that question. The text
of the Fourth Amendment cannot plausibly be read to
mean “any violation of positive law” any more than it can
plausibly be read to mean “any violation of a reasonable
expectation of privacy.”
Thus, the Telecommunications Act is insufficient because
it does not give Carpenter a property right in the cell-site
records. Section 222, titled “Privacy of customer *2243
information,” protects customers’ privacy by preventing
cell-phone companies from disclosing sensitive
information about them. The statute creates a “duty to
protect the confidentiality” of information relating to
customers, § 222(a), and creates “[p]rivacy requirements”
that limit the disclosure of that information, § 222(c)(1).
Nothing in the text pre-empts state property law or gives
customers a property interest in the companies’ business
records (assuming Congress even has that authority).
9
Although § 222 “protects the interests of individuals
against wrongful uses or disclosures of personal data, the
rationale for these legal protections has not historically
been grounded on a perception that people have property
rights in personal data as such.” Samuelson, Privacy as
Intellectual Property? 52 Stan. L. Rev. 1125, 1130–1131
(2000) (footnote omitted). Any property rights remain
with the companies.
E
The Katz test comes closer to the text of the Fourth
Amendment when it asks whether an expectation of
privacy is “reasonable,” but it ultimately distorts that term
as well. The Fourth Amendment forbids “unreasonable
searches.” In other words, reasonableness determines the
legality of a search, not “whether a search ... within the
meaning of the Constitution has occurred.” Carter, 525
U.S., at 97, 119 S.Ct. 469 (opinion of Scalia, J.) (internal
quotation marks omitted).
Moreover, the Katz test invokes the concept of
reasonableness in a way that would be foreign to the
ratifiers of the Fourth Amendment. Originally, the word
“unreasonable” in the Fourth Amendment likely meant
“against reason”—as in “against the reason of the
common law.” See Donahue 1270–1275; Davies
686–693; California v. Acevedo, 500 U.S. 565, 583, 111
S.Ct. 1982, 114 L.Ed.2d 619 (1991) (Scalia, J., concurring
in judgment). At the founding, searches and seizures were
regulated by a robust body of common-law rules. See
generally W. Cuddihy, The Fourth Amendment: Origins
and Original Meaning 602–1791 (2009); e.g., Wilson v.
Arkansas, 514 U.S. 927, 931–936, 115 S.Ct. 1914, 131
L.Ed.2d 976 (1995) (discussing the common-law
knock-and-announce rule). The search-and-seizure
practices that the Founders feared most—such as general
warrants—were already illegal under the common law,
and jurists such as Lord Coke described violations of the
common law as “against reason.” See Donahue
1270–1271, and n. 513. Locke, Blackstone, Adams, and
other influential figures shortened the phrase “against
reason” to “unreasonable.” See id., at 1270–1275. Thus,
by prohibiting “unreasonable” searches and seizures in
the Fourth Amendment, the Founders ensured that the
newly created Congress could not use legislation to
abolish the established common-law rules of search and
seizure. See T. Cooley, Constitutional Limitations *303
(2d ed. 1871); 3 J. Story, Commentaries on the *2244
Constitution of the United States § 1895, p. 748 (1833).
Although the Court today maintains that its decision is
based on “Founding-era understandings,” ante, at 2214,
the Founders would be puzzled by the Court’s conclusion
as well as its reasoning. The Court holds that the
Government unreasonably searched Carpenter by
subpoenaing the cell-site records of Sprint and MetroPCS
without a warrant. But the Founders would not recognize
the Court’s “warrant requirement.” Ante, at 2222. The
common law required warrants for some types of searches
and seizures, but not for many others. The relevant rule
depended on context. See Acevedo, supra, at 583–584,
111 S.Ct. 1982 (opinion of Scalia, J.); Amar, Fourth
Amendment First Principles, 107 Harv. L. Rev. 757,
763–770 (1994); Davies 738–739. In cases like this one, a
subpoena for third-party documents was not a “search” to
begin with, and the common law did not limit the
government’s authority to subpoena third parties. See
post, at 2247 - 2253 (ALITO, J., dissenting). Suffice it to
say, the Founders would be confused by this Court’s
transformation of their common-law protection of
property into a “warrant requirement” and a vague inquiry
into “reasonable expectations of privacy.”
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
29
III
That the Katz test departs so far from the text of the
Fourth Amendment is reason enough to reject it. But the
Katz test also has proved unworkable in practice. Jurists
and commentators tasked with deciphering our
jurisprudence have described the Katz regime as “an
unpredictable jumble,” “a mass of contradictions and
obscurities,” “all over the map,” “riddled with
inconsistency and incoherence,” “a series of inconsistent
and bizarre results that [the Court] has left entirely
undefended,” “unstable,” “chameleon-like,” “
‘notoriously unhelpful,’ ” “a conclusion rather than a
starting point for analysis,” “distressingly unmanageable,”
“a dismal failure,” “flawed to the core,” “unadorned fiat,”
and “inspired by the kind of logic that produced Rube
Goldberg’s bizarre contraptions.”
10
Even Justice Harlan,
four years after penning his concurrence in Katz,
confessed that the test encouraged “the substitution of
words for analysis.” United States v. White, 401 U.S. 745,
786, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (dissenting
opinion).
*2245 After 50 years, it is still unclear what question the
Katz test is even asking. This Court has steadfastly
declined to elaborate the relevant considerations or
identify any meaningful constraints. See, e.g., ante, at
2213 - 2214 (“[N]o single rubric definitively resolves
which expectations of privacy are entitled to protection”);
O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492,
94 L.Ed.2d 714 (1987) (plurality opinion) (“We have no
talisman that determines in all cases those privacy
expectations that society is prepared to accept as
reasonable”); Oliver, 466 U.S., at 177, 104 S.Ct. 1735
(“No single factor determines whether an individual
legitimately may claim under the Fourth Amendment that
a place should be free of government intrusion”).
Justice Harlan’s original formulation of the Katz test
appears to ask a descriptive question: Whether a given
expectation of privacy is “one that society is prepared to
recognize as ‘reasonable.’ ” 389 U.S., at 361, 88 S.Ct.
507. As written, the Katz test turns on society’s actual,
current views about the reasonableness of various
expectations of privacy.
But this descriptive understanding presents several
problems. For starters, it is easily circumvented. If, for
example, “the Government were suddenly to announce on
nationwide television that all homes henceforth would be
subject to warrantless entry,” individuals could not
realistically expect privacy in their homes. Smith, 442
U.S., at 740, n. 5, 99 S.Ct. 2577; see also Chemerinsky,
Rediscovering Brandeis’s Right to Privacy, 45 Brandeis
L.J. 643, 650 (2007) (“[Under Katz, t]he government
seemingly can deny privacy just by letting people know in
advance not to expect any”). A purely descriptive
understanding of the Katz test also risks “circular[ity].”
Kyllo, 533 U.S., at 34, 121 S.Ct. 2038. While this Court is
supposed to base its decisions on society’s expectations of
privacy, society’s expectations of privacy are, in turn,
shaped by this Court’s decisions. See Posner, The
Uncertain Protection of Privacy by the Supreme Court,
1979 S.Ct. Rev. 173, 188 (“[W]hether [a person] will or
will not have [a reasonable] expectation [of privacy] will
depend on what the legal rule is”).
To address this circularity problem, the Court has insisted
that expectations of privacy must come from outside its
Fourth Amendment precedents, “either by reference to
concepts of real or personal property law or to
understandings that are recognized and permitted by
society.” Rakas v. Illinois, 439 U.S. 128, 144, n. 12, 99
S.Ct. 421, 58 L.Ed.2d 387 (1978). But the Court’s
supposed reliance on “real or personal property law” rings
hollow. The whole point of Katz was to “ ‘discredi[t]’ ”
the relationship between the Fourth Amendment and
property law, 389 U.S., at 353, 88 S.Ct. 507, and this
Court has repeatedly downplayed the importance of
property law under the Katz test, see, e.g., United States v.
Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 65 L.Ed.2d 619
(1980) (“[P]roperty rights are neither the beginning nor
the end of this Court’s inquiry [under Katz ]”); Rawlings
v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65
L.Ed.2d 633 (1980) (“[This Court has] emphatically
rejected the notion that ‘arcane’ concepts of property law
ought to control the ability to claim the protections of the
Fourth Amendment”). Today, for example, the Court
makes no mention of property law, except to reject its
relevance. See ante, at 2214, and n. 1.
As for “understandings that are recognized or permitted in
society,” this Court has never answered even the most
basic questions about what this means. See Kerr, *2246
Four Models of Fourth Amendment Protection, 60 Stan.
L. Rev. 503, 504–505 (2007). For example, our
precedents do not explain who is included in “society,”
how we know what they “recogniz[e] or permi[t],” and
how much of society must agree before something
constitutes an “understanding.”
Here, for example, society might prefer a balanced regime
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
30
that prohibits the Government from obtaining cell-site
location information unless it can persuade a neutral
magistrate that the information bears on an ongoing
criminal investigation. That is precisely the regime
Congress created under the Stored Communications Act
and Telecommunications Act. See 47 U.S.C. § 222(c)(1);
18 U.S.C. §§ 2703(c)(1)(B), (d). With no sense of irony,
the Court invalidates this regime today—the one that
society actually created “in the form of its elected
representatives in Congress.” 819 F.3d 880, 890 (2016).
Truth be told, this Court does not treat the Katz test as a
descriptive inquiry. Although the Katz test is phrased in
descriptive terms about society’s views, this Court treats
it like a normative question—whether a particular practice
should be considered a search under the Fourth
Amendment. Justice Harlan thought this was the best way
to understand his test. See White, 401 U.S., at 786, 91
S.Ct. 1122 (dissenting opinion) (explaining that courts
must assess the “desirability” of privacy expectations and
ask whether courts “should” recognize them by
“balanc[ing]” the “impact on the individual’s sense of
security ... against the utility of the conduct as a technique
of law enforcement”). And a normative understanding is
the only way to make sense of this Court’s precedents,
which bear the hallmarks of subjective policymaking
instead of neutral legal decisionmaking. “[T]he only thing
the past three decades have established about the Katz
test” is that society’s expectations of privacy “bear an
uncanny resemblance to those expectations of privacy that
this Court considers reasonable.” Carter, 525 U.S., at 97,
119 S.Ct. 469 (opinion of Scalia, J.). Yet, “[t]hough we
know ourselves to be eminently reasonable,
self-awareness of eminent reasonableness is not really a
substitute for democratic election.” Sosa v.
Alvarez–Machain, 542 U.S. 692, 750, 124 S.Ct. 2739, 159
L.Ed.2d 718 (2004) (Scalia, J., concurring in part and
concurring in judgment).
* * *
In several recent decisions, this Court has declined to
apply the Katz test because it threatened to narrow the
original scope of the Fourth Amendment. See Grady v.
North Carolina, 575 U.S. ––––, ––––, 135 S.Ct. 1368,
1370, 191 L.Ed.2d 459 (2015) (per curiam ); Florida v.
Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495
(2013); Jones, 565 U.S., at 406–407, 132 S.Ct. 945. But
as today’s decision demonstrates, Katz can also be
invoked to expand the Fourth Amendment beyond its
original scope. This Court should not tolerate errors in
either direction. “The People, through ratification, have
already weighed the policy tradeoffs that constitutional
rights entail.” Luis v. United States, 578 U.S. ––––, ––––,
136 S.Ct. 1083, 1101, 194 L.Ed.2d 256 (2016)
(THOMAS, J., concurring in judgment). Whether the
rights they ratified are too broad or too narrow by modern
lights, this Court has no authority to unilaterally alter the
document they approved.
Because the Katz test is a failed experiment, this Court is
dutybound to reconsider it. Until it does, I agree with my
dissenting colleagues’ reading of our precedents.
Accordingly, I respectfully dissent.
Justice ALITO, with whom Justice THOMAS joins,
dissenting.
I share the Court’s concern about the effect of new
technology on personal privacy, *2247 but I fear that
today’s decision will do far more harm than good. The
Court’s reasoning fractures two fundamental pillars of
Fourth Amendment law, and in doing so, it guarantees a
blizzard of litigation while threatening many legitimate
and valuable investigative practices upon which law
enforcement has rightfully come to rely.
First, the Court ignores the basic distinction between an
actual search (dispatching law enforcement officers to
enter private premises and root through private papers and
effects) and an order merely requiring a party to look
through its own records and produce specified documents.
The former, which intrudes on personal privacy far more
deeply, requires probable cause; the latter does not.
Treating an order to produce like an actual search, as
today’s decision does, is revolutionary. It violates both the
original understanding of the Fourth Amendment and
more than a century of Supreme Court precedent. Unless
it is somehow restricted to the particular situation in the
present case, the Court’s move will cause upheaval. Must
every grand jury subpoena duces tecum be supported by
probable cause? If so, investigations of terrorism, political
corruption, white-collar crime, and many other offenses
will be stymied. And what about subpoenas and other
document-production orders issued by administrative
agencies? See, e.g., 15 U.S.C. § 57b–1(c) (Federal Trade
Commission); §§ 77s(c), 78u(a)-(b) (Securities and
Exchange Commission); 29 U.S.C. § 657(b)
(Occupational Safety and Health Administration); 29
C.F.R. § 1601.16(a)(2) (2017) (Equal Employment
Opportunity Commission).
Second, the Court allows a defendant to object to the
search of a third party’s property. This also is
revolutionary. The Fourth Amendment protects “[t]he
right of the people to be secure in their persons, houses,
papers, and effects” (emphasis added), not the persons,
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
31
houses, papers, and effects of others. Until today, we have
been careful to heed this fundamental feature of the
Amendment’s text. This was true when the Fourth
Amendment was tied to property law, and it remained true
after Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967), broadened the Amendment’s reach.
By departing dramatically from these fundamental
principles, the Court destabilizes long-established Fourth
Amendment doctrine. We will be making repairs—or
picking up the pieces—for a long time to come.
I
Today the majority holds that a court order requiring the
production of cell-site records may be issued only after
the Government demonstrates probable cause. See ante, at
2220 - 2221. That is a serious and consequential mistake.
The Court’s holding is based on the premise that the order
issued in this case was an actual “search” within the
meaning of the Fourth Amendment, but that premise is
inconsistent with the original meaning of the Fourth
Amendment and with more than a century of precedent.
A
The order in this case was the functional equivalent of a
subpoena for documents, and there is no evidence that
these writs were regarded as “searches” at the time of the
founding. Subpoenas duces tecum and other forms of
compulsory document production were well known to the
founding generation. Blackstone dated the first writ of
subpoena to the reign of King Richard II in the late 14th
century, and by the end of the 15th century, the use of
such writs had “become the daily practice of the
[Chancery] court.” 3 W. Blackstone, *2248
Commentaries on the Laws of England 53 (G. Tucker ed.
1803) (Blackstone). Over the next 200 years, subpoenas
would grow in prominence and power in tandem with the
Court of Chancery, and by the end of Charles II’s reign in
1685, two important innovations had occurred.
First, the Court of Chancery developed a new species of
subpoena. Until this point, subpoenas had been used
largely to compel attendance and oral testimony from
witnesses; these subpoenas correspond to today’s
subpoenas ad testificandum. But the Court of Chancery
also improvised a new version of the writ that tacked onto
a regular subpoena an order compelling the witness to
bring certain items with him. By issuing these so-called
subpoenas duces tecum, the Court of Chancery could
compel the production of papers, books, and other forms
of physical evidence, whether from the parties to the case
or from third parties. Such subpoenas were sufficiently
commonplace by 1623 that a leading treatise on the
practice of law could refer in passing to the fee for a “Sub
poena of Ducas tecum ” (seven shillings and two pence)
without needing to elaborate further. T. Powell, The
Attourneys Academy 79 (1623). Subpoenas duces tecum
would swell in use over the next century as the rules for
their application became ever more developed and
definite. See, e.g., 1 G. Jacob, The Compleat
Chancery–Practiser 290 (1730) (“The Subpoena duces
tecum is awarded when the Defendant has confessed by
his Answer that he hath such Writings in his Hands as are
prayed by the Bill to be discovered or brought into
Court”).
Second, although this new species of subpoena had its
origins in the Court of Chancery, it soon made an
appearance in the work of the common-law courts as well.
One court later reported that “[t]he Courts of Common
law ... employed the same or similar means ... from the
time of Charles the Second at least.” Amey v. Long, 9
East. 473, 484, 103 Eng. Rep. 653, 658 (K.B. 1808).
By the time Blackstone published his Commentaries on
the Laws of England in the 1760’s, the use of subpoenas
duces tecum had bled over substantially from the courts of
equity to the common-law courts. Admittedly, the
transition was still incomplete: In the context of jury
trials, for example, Blackstone complained about “the
want of a compulsive power for the production of books
and papers belonging to the parties.” Blackstone 381; see
also, e.g., Entick v. Carrington, 19 State Trials 1029, 1073
(K.B. 1765) (“I wish some cases had been shewn, where
the law forceth evidence out of the owner’s custody by
process. [But] where the adversary has by force or fraud
got possession of your own proper evidence, there is no
way to get it back but by action”). But Blackstone found
some comfort in the fact that at least those documents
“[i]n the hands of third persons ... can generally be
obtained by rule of court, or by adding a clause of
requisition to the writ of subpoena, which is then called a
subpoena duces tecum.” Blackstone 381; see also, e.g.,
Leeds v. Cook, 4 Esp. 256, 257, 170 Eng. Rep. 711 (N.P.
1803) (third-party subpoena duces tecum ); Rex v. Babb, 3
T.R. 579, 580, 100 Eng. Rep. 743, 744 (K.B. 1790)
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
32
(third-party document production). One of the primary
questions outstanding, then, was whether common-law
courts would remedy the “defect[s]” identified by the
Commentaries, and allow parties to use subpoenas duces
tecum not only with respect to third parties but also with
respect to each other. Blackstone 381.
That question soon found an affirmative answer on both
sides of the Atlantic. In the United States, the First
Congress established the federal court system in the
*2249 Judiciary Act of 1789. As part of that Act,
Congress authorized “all the said courts of the United
States ... in the trial of actions at law, on motion and due
notice thereof being given, to require the parties to
produce books or writings in their possession or power,
which contain evidence pertinent to the issue, in cases and
under circumstances where they might be compelled to
produce the same by the ordinary rules of proceeding in
chancery.” § 15, 1 Stat. 82. From that point forward,
federal courts in the United States could compel the
production of documents regardless of whether those
documents were held by parties to the case or by third
parties.
In Great Britain, too, it was soon definitively established
that common-law courts, like their counterparts in equity,
could subpoena documents held either by parties to the
case or by third parties. After proceeding in fits and starts,
the King’s Bench eventually held in Amey v. Long that the
“writ of subpoena duces tecum [is] a writ of compulsory
obligation and effect in the law.” 9 East., at 486, 103 Eng.
Rep., at 658. Writing for a unanimous court, Lord Chief
Justice Ellenborough explained that “[t]he right to resort
to means competent to compel the production of written,
as well as oral, testimony seems essential to the very
existence and constitution of a Court of Common Law.”
Id., at 484, 103 Eng. Rep., at 658. Without the power to
issue subpoenas duces tecum, the Lord Chief Justice
observed, common-law courts “could not possibly
proceed with due effect.” Ibid.
The prevalence of subpoenas duces tecum at the time of
the founding was not limited to the civil context. In
criminal cases, courts and prosecutors were also using the
writ to compel the production of necessary documents. In
Rex v. Dixon, 3 Burr. 1687, 97 Eng. Rep. 1047 (K.B.
1765), for example, the King’s Bench considered the
propriety of a subpoena duces tecum served on an
attorney named Samuel Dixon. Dixon had been called “to
give evidence before the grand jury of the county of
Northampton” and specifically “to produce three vouchers
... in order to found a prosecution by way of indictment
against [his client] Peach ... for forgery.” Id., at 1687, 97
Eng. Rep., at 1047–1048. Although the court ultimately
held that Dixon had not needed to produce the vouchers
on account of attorney-client privilege, none of the
justices expressed the slightest doubt about the general
propriety of subpoenas duces tecum in the criminal
context. See id., at 1688, 97 Eng. Rep., at 1048. As Lord
Chief Justice Ellenborough later explained, “[i]n that case
no objection was taken to the writ, but to the special
circumstances under which the party possessed the
papers; so that the Court may be considered as
recognizing the general obligation to obey writs of that
description in other cases.” Amey, supra, at 485, 103 Eng.
Rep., at 658; see also 4 J. Chitty, Practical Treatise on the
Criminal Law 185 (1816) (template for criminal subpoena
duces tecum ).
As Dixon shows, subpoenas duces tecum were routine in
part because of their close association with grand juries.
Early American colonists imported the grand jury, like so
many other common-law traditions, and they quickly
flourished. See United States v. Calandra, 414 U.S. 338,
342–343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Grand
juries were empaneled by the federal courts almost as
soon as the latter were established, and both they and their
state counterparts actively exercised their wide-ranging
common-law authority. See R. Younger, The People’s
Panel 47–55 (1963). Indeed, “the Founders thought the
grand jury so essential ... that they provided in the Fifth
Amendment that federal prosecution for serious crimes
can only be instituted by ‘a presentment or *2250
indictment of a Grand Jury.’ ” Calandra, supra, at 343, 94
S.Ct. 613.
Given the popularity and prevalence of grand juries at the
time, the Founders must have been intimately familiar
with the tools they used—including compulsory
process—to accomplish their work. As a matter of
tradition, grand juries were “accorded wide latitude to
inquire into violations of criminal law,” including the
power to “compel the production of evidence or the
testimony of witnesses as [they] conside[r] appropriate.”
Ibid. Long before national independence was achieved,
grand juries were already using their broad inquisitorial
powers not only to present and indict criminal suspects
but also to inspect public buildings, to levy taxes, to
supervise the administration of the laws, to advance
municipal reforms such as street repair and bridge
maintenance, and in some cases even to propose
legislation. Younger, supra, at 5–26. Of course, such
work depended entirely on grand juries’ ability to access
any relevant documents.
Grand juries continued to exercise these broad
inquisitorial powers up through the time of the founding.
See Blair v. United States, 250 U.S. 273, 280, 39 S.Ct.
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
33
468, 63 L.Ed. 979 (1919) (“At the foundation of our
Federal Government the inquisitorial function of the
grand jury and the compulsion of witnesses were
recognized as incidents of the judicial power”). In a series
of lectures delivered in the early 1790’s, Justice James
Wilson crowed that grand juries were “the peculiar boast
of the common law” thanks in part to their wide-ranging
authority: “All the operations of government, and of its
ministers and officers, are within the compass of their
view and research.” 2 J. Wilson, The Works of James
Wilson 534, 537 (R. McCloskey ed. 1967). That reflected
the broader insight that “[t]he grand jury’s investigative
power must be broad if its public responsibility is
adequately to be discharged.” Calandra, supra, at 344, 94
S.Ct. 613.
Compulsory process was also familiar to the founding
generation in part because it reflected “the ancient
proposition of law” that “ ‘ “the public ... has a right to
every man’s evidence.” ’ ” United States v. Nixon, 418
U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974);
see also ante, at 2228 (KENNEDY, J., dissenting). As
early as 1612, “Lord Bacon is reported to have declared
that ‘all subjects, without distinction of degrees, owe to
the King tribute and service, not only of their deed and
hand, but of their knowledge and discovery.’ ” Blair,
supra, at 279–280, 39 S.Ct. 468. That duty could be
“onerous at times,” yet the Founders considered it
“necessary to the administration of justice according to
the forms and modes established in our system of
government.” Id., at 281, 39 S.Ct. 468; see also Calandra,
supra, at 345, 94 S.Ct. 613.
B
Talk of kings and common-law writs may seem out of
place in a case about cell-site records and the protections
afforded by the Fourth Amendment in the modern age.
But this history matters, not least because it tells us what
was on the minds of those who ratified the Fourth
Amendment and how they understood its scope. That
history makes it abundantly clear that the Fourth
Amendment, as originally understood, did not apply to the
compulsory production of documents at all.
The Fourth Amendment does not regulate all methods by
which the Government obtains documents. Rather, it
prohibits only those “searches and seizures” of “persons,
houses, papers, and effects” that are “unreasonable.”
Consistent with that language, “at least until the latter half
of the 20th century” “our Fourth Amendment
jurisprudence was tied to common-law trespass.” *2251
United States v. Jones, 565 U.S. 400, 405, 132 S.Ct. 945,
181 L.Ed.2d 911 (2012). So by its terms, the Fourth
Amendment does not apply to the compulsory production
of documents, a practice that involves neither any
physical intrusion into private space nor any taking of
property by agents of the state. Even Justice Brandeis—a
stalwart proponent of construing the Fourth Amendment
liberally—acknowledged that “under any ordinary
construction of language,” “there is no ‘search’ or
‘seizure’ when a defendant is required to produce a
document in the orderly process of a court’s procedure.”
Olmstead v. United States, 277 U.S. 438, 476, 48 S.Ct.
564, 72 L.Ed. 944 (1928) (dissenting opinion).
1
Nor is there any reason to believe that the Founders
intended the Fourth Amendment to regulate courts’ use of
compulsory process. American colonists rebelled against
the Crown’s physical invasions of their persons and their
property, not against its acquisition of information by any
and all means. As Justice Black once put it, “[t]he Fourth
Amendment was aimed directly at the abhorred practice
of breaking in, ransacking and searching homes and other
buildings and seizing people’s personal belongings
without warrants issued by magistrates.” Katz, 389 U.S.,
at 367, 88 S.Ct. 507 (dissenting opinion). More recently,
we have acknowledged that “the Fourth Amendment was
the founding generation’s response to the reviled ‘general
warrants’ and ‘writs of assistance’ of the colonial era,
which allowed British officers to rummage through
homes in an unrestrained search for evidence of criminal
activity.” Riley v. California, 573 U.S. ––––, ––––, 134
S.Ct. 2473, 2494, 189 L.Ed.2d 430 (2014).
General warrants and writs of assistance were noxious not
because they allowed the Government to acquire evidence
in criminal investigations, but because of the means by
which they permitted the Government to acquire that
evidence. Then, as today, searches could be quite
invasive. Searches generally begin with officers
“mak[ing] nonconsensual entries into areas not open to
the public.” Donovan v. Lone Steer, Inc., 464 U.S. 408,
414, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984). Once there,
officers are necessarily in a position to observe private
spaces generally shielded from the public and discernible
only with the owner’s consent. Private area after private
area becomes exposed to the officers’ eyes as they
rummage through the owner’s property in their hunt for
the object or objects of the search. If they are searching
for documents, officers may additionally have to rifle
through many other papers—potentially filled with the
most intimate details of a person’s thoughts and
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
34
life—before they find the specific information *2252 they
are seeking. See Andresen v. Maryland, 427 U.S. 463,
482, n. 11, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). If
anything sufficiently incriminating comes into view,
officers seize it. Horton v. California, 496 U.S. 128,
136–137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
Physical destruction always lurks as an underlying
possibility; “officers executing search warrants on
occasion must damage property in order to perform their
duty.” Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct.
1682, 60 L.Ed.2d 177 (1979); see, e.g., United States v.
Ramirez, 523 U.S. 65, 71–72, 118 S.Ct. 992, 140 L.Ed.2d
191 (1998) (breaking garage window); United States v.
Ross, 456 U.S. 798, 817–818, 102 S.Ct. 2157, 72 L.Ed.2d
572 (1982) (ripping open car upholstery); Brown v. Battle
Creek Police Dept., 844 F.3d 556, 572 (C.A.6 2016)
(shooting and killing two pet dogs); Lawmaster v. Ward,
125 F.3d 1341, 1350, n. 3 (C.A.10 1997) (breaking locks).
Compliance with a subpoena duces tecum requires none
of that. A subpoena duces tecum permits a subpoenaed
individual to conduct the search for the relevant
documents himself, without law enforcement officers
entering his home or rooting through his papers and
effects. As a result, subpoenas avoid the many incidental
invasions of privacy that necessarily accompany any
actual search. And it was those invasions of
privacy—which, although incidental, could often be
extremely intrusive and damaging—that led to the
adoption of the Fourth Amendment.
Neither this Court nor any of the parties have offered the
slightest bit of historical evidence to support the idea that
the Fourth Amendment originally applied to subpoenas
duces tecum and other forms of compulsory process. That
is telling, for as I have explained, these forms of
compulsory process were a feature of criminal (and civil)
procedure well known to the Founders. The Founders
would thus have understood that holding the compulsory
production of documents to the same standard as actual
searches and seizures would cripple the work of courts in
civil and criminal cases alike. It would be remarkable to
think that, despite that knowledge, the Founders would
have gone ahead and sought to impose such a
requirement. It would be even more incredible to believe
that the Founders would have imposed that requirement
through the inapt vehicle of an amendment directed at
different concerns. But it would blink reality entirely to
argue that this entire process happened without anyone
saying the least thing about it—not during the drafting of
the Bill of Rights, not during any of the subsequent
ratification debates, and not for most of the century that
followed. If the Founders thought the Fourth Amendment
applied to the compulsory production of documents, one
would imagine that there would be some founding-era
evidence of the Fourth Amendment being applied to the
compulsory production of documents. Cf. Free Enterprise
Fund v. Public Company Accounting Oversight Bd., 561
U.S. 477, 505, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010);
Printz v. United States, 521 U.S. 898, 905, 117 S.Ct.
2365, 138 L.Ed.2d 914 (1997). Yet none has been brought
to our attention.
C
Of course, our jurisprudence has not stood still since
1791. We now evaluate subpoenas duces tecum and other
forms of compulsory document production under the
Fourth Amendment, although we employ a
reasonableness standard that is less demanding than the
requirements for a warrant. But the road to that doctrinal
destination was anything but smooth, and our initial
missteps—and the subsequent struggle to extricate
ourselves from their consequences—should provide an
object *2253 lesson for today’s majority about the
dangers of holding compulsory process to the same
standard as actual searches and seizures.
For almost a century after the Fourth Amendment was
enacted, this Court said and did nothing to indicate that it
might regulate the compulsory production of documents.
But that changed temporarily when the Court decided
Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.
746 (1886), the first—and, until today, the only—case in
which this Court has ever held the compulsory production
of documents to the same standard as actual searches and
seizures.
The Boyd Court held that a court order compelling a
company to produce potentially incriminating business
records violated both the Fourth and the Fifth
Amendments. The Court acknowledged that “certain
aggravating incidents of actual search and seizure, such as
forcible entry into a man’s house and searching amongst
his papers, are wanting” when the Government relies on
compulsory process. Id., at 622, 6 S.Ct. 524. But it
nevertheless asserted that the Fourth Amendment ought to
“be liberally construed,” id., at 635, 6 S.Ct. 524, and
further reasoned that compulsory process “effects the sole
object and purpose of search and seizure” by “forcing
from a party evidence against himself,” id., at 622, 6 S.Ct.
524. “In this regard,” the Court concluded, “the Fourth
and Fifth Amendments run almost into each other.” Id., at
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
35
630, 6 S.Ct. 524. Having equated compulsory process
with actual searches and seizures and having melded the
Fourth Amendment with the Fifth, the Court then found
the order at issue unconstitutional because it compelled
the production of property to which the Government did
not have superior title. See id., at 622–630, 6 S.Ct. 524.
In a concurrence joined by Chief Justice Waite, Justice
Miller agreed that the order violated the Fifth
Amendment, id., at 639, 6 S.Ct. 524, but he strongly
protested the majority’s invocation of the Fourth
Amendment. He explained: “[T]here is no reason why
this court should assume that the action of the court
below, in requiring a party to produce certain papers ...,
authorizes an unreasonable search or seizure of the house,
papers, or effects of that party. There is in fact no search
and no seizure.” Ibid. “If the mere service of a notice to
produce a paper ... is a search,” Justice Miller concluded,
“then a change has taken place in the meaning of words,
which has not come within my reading, and which I think
was unknown at the time the Constitution was made.” Id.,
at 641, 6 S.Ct. 524.
Although Boyd was replete with stirring rhetoric, its
reasoning was confused from start to finish in a way that
ultimately made the decision unworkable. See 3 W.
LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§ 8.7(a) (4th ed. 2015). Over the next 50 years, the Court
would gradually roll back Boyd ‘s erroneous conflation of
compulsory process with actual searches and seizures.
That effort took its first significant stride in Hale v.
Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906),
where the Court found it “quite clear” and “conclusive”
that “the search and seizure clause of the Fourth
Amendment was not intended to interfere with the power
of courts to compel, through a subpoena duces tecum, the
production, upon a trial in court, of documentary
evidence.” Id., at 73, 26 S.Ct. 370. Without that writ, the
Court recognized, “it would be ‘utterly impossible to
carry on the administration of justice.’ ” Ibid.
Hale, however, did not entirely liberate subpoenas duces
tecum from Fourth *2254 Amendment constraints. While
refusing to treat such subpoenas as the equivalent of
actual searches, Hale concluded that they must not be
unreasonable. And it held that the subpoena duces tecum
at issue was “far too sweeping in its terms to be regarded
as reasonable.” Id., at 76, 26 S.Ct. 370. The Hale Court
thus left two critical questions unanswered: Under the
Fourth Amendment, what makes the compulsory
production of documents “reasonable,” and how does that
standard differ from the one that governs actual searches
and seizures?
The Court answered both of those questions definitively
in Oklahoma Press Publishing Co. v. Walling, 327 U.S.
186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), where we held
that the Fourth Amendment regulates the compelled
production of documents, but less stringently than it does
full-blown searches and seizures. Oklahoma Press began
by admitting that the Court’s opinions on the subject had
“perhaps too often ... been generative of heat rather than
light,” “mov[ing] with variant direction” and sometimes
having “highly contrasting” “emphasis and tone.” Id., at
202, 66 S.Ct. 494. “The primary source of misconception
concerning the Fourth Amendment’s function” in this
context, the Court explained, “lies perhaps in the
identification of cases involving so-called ‘figurative’ or
‘constructive’ search with cases of actual search and
seizure.” Ibid. But the Court held that “the basic
distinction” between the compulsory production of
documents on the one hand, and actual searches and
seizures on the other, meant that two different standards
had to be applied. Id., at 204, 66 S.Ct. 494.
Having reversed Boyd ‘s conflation of the compelled
production of documents with actual searches and
seizures, the Court then set forth the relevant Fourth
Amendment standard for the former. When it comes to
“the production of corporate or other business records,”
the Court held that the Fourth Amendment “at the most
guards against abuse only by way of too much
indefiniteness or breadth in the things required to be
‘particularly described,’ if also the inquiry is one the
demanding agency is authorized by law to make and the
materials specified are relevant.” Oklahoma Press, supra,
at 208, 66 S.Ct. 494. Notably, the Court held that a
showing of probable cause was not necessary so long as
“the investigation is authorized by Congress, is for a
purpose Congress can order, and the documents sought
are relevant to the inquiry.” Id., at 209, 66 S.Ct. 494.
Since Oklahoma Press, we have consistently hewed to
that standard. See, e.g., Lone Steer, Inc., 464 U.S., at
414–415, 104 S.Ct. 769; United States v. Miller, 425 U.S.
435, 445–446, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976);
California Bankers Assn. v. Shultz, 416 U.S. 21, 67, 94
S.Ct. 1494, 39 L.Ed.2d 812 (1974); United States v.
Dionisio, 410 U.S. 1, 11–12, 93 S.Ct. 764, 35 L.Ed.2d 67
(1973); See v. Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737,
18 L.Ed.2d 943 (1967); United States v. Powell, 379 U.S.
48, 57–58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); McPhaul
v. United States, 364 U.S. 372, 382–383, 81 S.Ct. 138, 5
L.Ed.2d 136 (1960); United States v. Morton Salt Co.,
338 U.S. 632, 652–653, 70 S.Ct. 357, 94 L.Ed. 401
(1950); cf. McLane Co. v. EEOC, 581 U.S. ––––, ––––,
137 S.Ct. 1159, 1169–1170, 197 L.Ed.2d 500 (2017). By
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
36
applying Oklahoma Press and thereby respecting “the
traditional distinction between a search warrant and a
subpoena,” Miller, supra, at 446, 96 S.Ct. 1619, this
Court has reinforced “the basic compromise” between
“the public interest” in every man’s evidence and the
private interest “of men to be free from officious
meddling.” Oklahoma Press, supra, at 213, 66 S.Ct. 494.
*2255 D
Today, however, the majority inexplicably ignores the
settled rule of Oklahoma Press in favor of a resurrected
version of Boyd. That is mystifying. This should have
been an easy case regardless of whether the Court looked
to the original understanding of the Fourth Amendment or
to our modern doctrine.
As a matter of original understanding, the Fourth
Amendment does not regulate the compelled production
of documents at all. Here the Government received the
relevant cell-site records pursuant to a court order
compelling Carpenter’s cell service provider to turn them
over. That process is thus immune from challenge under
the original understanding of the Fourth Amendment.
As a matter of modern doctrine, this case is equally
straightforward. As Justice KENNEDY explains, no
search or seizure of Carpenter or his property occurred in
this case. Ante, at 2226 - 2235; see also Part II, infra. But
even if the majority were right that the Government
“searched” Carpenter, it would at most be a “figurative or
constructive search” governed by the Oklahoma Press
standard, not an “actual search” controlled by the Fourth
Amendment’s warrant requirement.
And there is no doubt that the Government met the
Oklahoma Press standard here. Under Oklahoma Press, a
court order must “ ‘be sufficiently limited in scope,
relevant in purpose, and specific in directive so that
compliance will not be unreasonably burdensome.’ ” Lone
Steer, Inc., supra, at 415, 104 S.Ct. 769. Here, the type of
order obtained by the Government almost necessarily
satisfies that standard. The Stored Communications Act
allows a court to issue the relevant type of order “only if
the governmental entity offers specific and articulable
facts showing that there are reasonable grounds to believe
that ... the records ... sough[t] are relevant and material to
an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
And the court “may quash or modify such order” if the
provider objects that the “records requested are unusually
voluminous in nature or compliance with such order
otherwise would cause an undue burden on such
provider.” Ibid. No such objection was made in this case,
and Carpenter does not suggest that the orders
contravened the Oklahoma Press standard in any other
way.
That is what makes the majority’s opinion so puzzling. It
decides that a “search” of Carpenter occurred within the
meaning of the Fourth Amendment, but then it leaps
straight to imposing requirements that—until this
point—have governed only actual searches and seizures.
See ante, at 2220 - 2221. Lost in its race to the finish is
any real recognition of the century’s worth of precedent it
jeopardizes. For the majority, this case is apparently no
different from one in which Government agents raided
Carpenter’s home and removed records associated with
his cell phone.
Against centuries of precedent and practice, all that the
Court can muster is the observation that “this Court has
never held that the Government may subpoena third
parties for records in which the suspect has a reasonable
expectation of privacy.” Ante, at 2221. Frankly, I cannot
imagine a concession more damning to the Court’s
argument than that. As the Court well knows, the reason
that we have never seen such a case is because—until
today—defendants categorically had no “reasonable
expectation of privacy” and no property interest in records
belonging to third parties. See Part II, infra. By implying
otherwise, the Court tries the nice trick of seeking shelter
under the cover of precedents that it simultaneously
perforates.
*2256 Not only that, but even if the Fourth Amendment
permitted someone to object to the subpoena of a third
party’s records, the Court cannot explain why that
individual should be entitled to greater Fourth
Amendment protection than the party actually being
subpoenaed. When parties are subpoenaed to turn over
their records, after all, they will at most receive the
protection afforded by Oklahoma Press even though they
will own and have a reasonable expectation of privacy in
the records at issue. Under the Court’s decision, however,
the Fourth Amendment will extend greater protections to
someone else who is not being subpoenaed and does not
own the records. That outcome makes no sense, and the
Court does not even attempt to defend it.
We have set forth the relevant Fourth Amendment
standard for subpoenaing business records many times
over. Out of those dozens of cases, the majority cannot
find even one that so much as suggests an exception to the
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
37
Oklahoma Press standard for sufficiently personal
information. Instead, we have always “described the
constitutional requirements” for compulsory process as
being “ ‘settled’ ” and as applying categorically to all “
‘subpoenas [of] corporate books or records.’ ” Lone Steer,
Inc., 464 U.S., at 415, 104 S.Ct. 769 (internal quotation
marks omitted). That standard, we have held, is “the most
” protection the Fourth Amendment gives “to the
production of corporate records and papers.” Oklahoma
Press, 327 U.S., at 208, 66 S.Ct. 494 (emphasis added).
2
Although the majority announces its holding in the
context of the Stored Communications Act, nothing stops
its logic from sweeping much further. The Court has
offered no meaningful limiting principle, and none is
apparent. Cf. Tr. of Oral Arg. 31 (Carpenter’s counsel
admitting that “a grand jury subpoena ... would be held to
the same standard as any other subpoena or subpoena-like
request for [cell-site] records”).
Holding that subpoenas must meet the same standard as
conventional searches will seriously damage, if not
destroy, their utility. Even more so than at the founding,
today the Government regularly uses subpoenas duces
tecum and other forms of compulsory process to carry out
its essential functions. See, e.g., Dionisio, 410 U.S., at
11–12, 93 S.Ct. 764 (grand jury subpoenas); McPhaul,
364 U.S., at 382–383, 81 S.Ct. 138 (legislative
subpoenas); Oklahoma Press, supra, at 208–209, 66 S.Ct.
494 (administrative subpoenas). Grand juries, for
example, have long “compel[led] the production of
evidence” in order to determine “whether there is
probable cause to believe a crime has been committed.”
Calandra, 414 U.S., at 343, 94 S.Ct. 613 (emphasis
added). Almost by definition, then, grand juries will be
unable at first to demonstrate “the probable cause required
for a warrant.” Ante, at 2221 (majority opinion); see also
Oklahoma Press, supra, at 213, 66 S.Ct. 494. If they are
required to do so, the effects are as predictable as they are
alarming: Many investigations will sputter out at the start,
and a host of criminals will be able to evade law
enforcement’s reach.
“To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available
for the production of evidence.” Nixon, 418 U.S., at 709,
94 S.Ct. 3090. For over a hundred years, we have
understood that holding *2257 subpoenas to the same
standard as actual searches and seizures “would stop
much if not all of investigation in the public interest at the
threshold of inquiry.” Oklahoma Press, supra, at 213, 66
S.Ct. 494. Today a skeptical majority decides to put that
understanding to the test.
II
Compounding its initial error, the Court also holds that a
defendant has the right under the Fourth Amendment to
object to the search of a third party’s property. This
holding flouts the clear text of the Fourth Amendment,
and it cannot be defended under either a property-based
interpretation of that Amendment or our decisions
applying the reasonable-expectations-of-privacy test
adopted in Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d
576. By allowing Carpenter to object to the search of a
third party’s property, the Court threatens to revolutionize
a second and independent line of Fourth Amendment
doctrine.
A
It bears repeating that the Fourth Amendment guarantees
“[t]he right of the people to be secure in their persons,
houses, papers, and effects.” (Emphasis added.) The
Fourth Amendment does not confer rights with respect to
the persons, houses, papers, and effects of others. Its
language makes clear that “Fourth Amendment rights are
personal,” Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct.
421, 58 L.Ed.2d 387 (1978), and as a result, this Court has
long insisted that they “may not be asserted vicariously,”
id., at 133, 99 S.Ct. 421. It follows that a “person who is
aggrieved ... only through the introduction of damaging
evidence secured by a search of a third person’s premises
or property has not had any of his Fourth Amendment
rights infringed.” Id., at 134, 99 S.Ct. 421.
In this case, as Justice KENNEDY cogently explains, the
cell-site records obtained by the Government belong to
Carpenter’s cell service providers, not to Carpenter. See
ante, at 2229 - 2230. Carpenter did not create the cell-site
records. Nor did he have possession of them; at all
relevant times, they were kept by the providers. Once
Carpenter subscribed to his provider’s service, he had no
right to prevent the company from creating or keeping the
information in its records. Carpenter also had no right to
demand that the providers destroy the records, no right to
prevent the providers from destroying the records, and,
indeed, no right to modify the records in any way
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
38
whatsoever (or to prevent the providers from modifying
the records). Carpenter, in short, has no meaningful
control over the cell-site records, which are created,
maintained, altered, used, and eventually destroyed by his
cell service providers.
Carpenter responds by pointing to a provision of the
Telecommunications Act that requires a provider to
disclose cell-site records when a customer so requests.
See 47 U.S.C. § 222(c)(2). But a statutory disclosure
requirement is hardly sufficient to give someone an
ownership interest in the documents that must be copied
and disclosed. Many statutes confer a right to obtain
copies of documents without creating any property right.
3
*2258 Carpenter’s argument is particularly hard to
swallow because nothing in the Telecommunications Act
precludes cell service providers from charging customers
a fee for accessing cell-site records. See ante, at 2229 -
2230 (KENNEDY, J., dissenting). It would be very
strange if the owner of records were required to pay in
order to inspect his own property.
Nor does the Telecommunications Act give Carpenter a
property right in the cell-site records simply because they
are subject to confidentiality restrictions. See 47 U.S.C. §
222(c)(1) (without a customer’s permission, a cell service
provider may generally “use, disclose, or permit access to
individually identifiable [cell-site records]” only with
respect to “its provision” of telecommunications
services). Many federal statutes impose similar
restrictions on private entities’ use or dissemination of
information in their own records without conferring a
property right on third parties.
4
*2259 It would be especially strange to hold that the
Telecommunication Act’s confidentiality provision
confers a property right when the Act creates an express
exception for any disclosure of records that is “required
by law.” 47 U.S.C. § 222(c)(1). So not only does
Carpenter lack “ ‘the most essential and beneficial’ ” of
the “ ‘constituent elements’ ” of property, Dickman v.
Commissioner, 465 U.S. 330, 336, 104 S.Ct. 1086, 79
L.Ed.2d 343 (1984)—i.e., the right to use the property to
the exclusion of others—but he cannot even exclude the
party he would most like to keep out, namely, the
Government.
5
For all these reasons, there is no plausible ground for
maintaining that the information at issue here represents
Carpenter’s “papers” or “effects.”
6
B
In the days when this Court followed an exclusively
property-based approach to the Fourth Amendment, the
distinction between an individual’s Fourth Amendment
rights and those of a third party was clear cut. We first
asked whether the object of the search—say, a house,
papers, or effects—belonged to the defendant, and, if it
did, whether the Government had committed a “trespass”
in acquiring the evidence at issue. Jones, 565 U.S., at 411,
n. 8, 132 S.Ct. 945.
When the Court held in Katz that “property rights are not
the sole measure of Fourth Amendment violations,”
Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538,
121 L.Ed.2d 450 (1992), the sharp boundary between
personal and third-party rights was tested. Under Katz, a
party may invoke the Fourth Amendment whenever law
enforcement officers violate the party’s “justifiable” or
“reasonable” expectation of privacy. See 389 U.S., at 353,
88 S.Ct. 507; see also id., at 361, 88 S.Ct. 507 (Harlan, J.,
concurring) (applying the Fourth Amendment where “a
person [has] exhibited an actual (subjective) expectation
of privacy” and where that “expectation [is] one that
society is prepared to recognize as ‘reasonable’ ”). Thus
freed from *2260 the limitations imposed by property
law, parties began to argue that they had a reasonable
expectation of privacy in items owned by others. After all,
if a trusted third party took care not to disclose
information about the person in question, that person
might well have a reasonable expectation that the
information would not be revealed.
Efforts to claim Fourth Amendment protection against
searches of the papers and effects of others came to a
head in Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d
71, where the defendant sought the suppression of two
banks’ microfilm copies of his checks, deposit slips, and
other records. The defendant did not claim that he owned
these documents, but he nonetheless argued that “analysis
of ownership, property rights and possessory interests in
the determination of Fourth Amendment rights ha[d] been
severely impeached” by Katz and other recent cases. See
Brief for Respondent in United States v. Miller, O.T.1975,
No. 74–1179, p. 6. Turning to Katz, he then argued that he
had a reasonable expectation of privacy in the banks’
records regarding his accounts. Brief for Respondent in
No. 74–1179, at 6; see also Miller, supra, at 442–443, 96
S.Ct. 1619.
Acceptance of this argument would have flown in the face
of the Fourth Amendment’s text, and the Court rejected
that development. Because Miller gave up “dominion and
control” of the relevant information to his bank,
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
39
439 U.S., at 149, 99 S.Ct. 421, the Court ruled that he lost
any protected Fourth Amendment interest in that
information. See Miller, supra, at 442–443, 96 S.Ct.
1619. Later, in Smith v. Maryland, 442 U.S. 735, 745, 99
S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Court reached a
similar conclusion regarding a telephone company’s
records of a customer’s calls. As Justice KENNEDY
concludes, Miller and Smith are thus best understood as
placing “necessary limits on the ability of individuals to
assert Fourth Amendment interests in property to which
they lack a ‘requisite connection.’ ” Ante, at 2227.
The same is true here, where Carpenter indisputably lacks
any meaningful property-based connection to the cell-site
records owned by his provider. Because the records are
not Carpenter’s in any sense, Carpenter may not seek to
use the Fourth Amendment to exclude them.
By holding otherwise, the Court effectively allows
Carpenter to object to the “search” of a third party’s
property, not recognizing the revolutionary nature of this
change. The Court seems to think that Miller and Smith
invented a new “doctrine”—“the third-party
doctrine”—and the Court refuses to “extend” this product
of the 1970’s to a new age of digital communications.
Ante, at 2216 - 2217, 2220. But the Court fundamentally
misunderstands the role of Miller and Smith. Those
decisions did not forge a new doctrine; instead, they
rejected an argument that would have disregarded the
clear text of the Fourth Amendment and a formidable
body of precedent.
In the end, the Court never explains how its decision can
be squared with the fact that the Fourth Amendment
protects only “[t]he right of the people to be secure in
their persons, houses, papers, and effects.” (Emphasis
added.)
* * *
Although the majority professes a desire not to “
‘embarrass the future,’ ” ante, at 2220, we can guess
where today’s decision will lead.
One possibility is that the broad principles that the Court
seems to embrace will be applied across the board. All
subpoenas duces tecum and all other orders compelling
*2261 the production of documents will require a
demonstration of probable cause, and individuals will be
able to claim a protected Fourth Amendment interest in
any sensitive personal information about them that is
collected and owned by third parties. Those would be
revolutionary developments indeed.
The other possibility is that this Court will face the
embarrassment of explaining in case after case that the
principles on which today’s decision rests are subject to
all sorts of qualifications and limitations that have not yet
been discovered. If we take this latter course, we will
inevitably end up “mak[ing] a crazy quilt of the Fourth
Amendment.” Smith, supra, at 745, 99 S.Ct. 2577.
All of this is unnecessary. In the Stored Communications
Act, Congress addressed the specific problem at issue in
this case. The Act restricts the misuse of cell-site records
by cell service providers, something that the Fourth
Amendment cannot do. The Act also goes beyond current
Fourth Amendment case law in restricting access by law
enforcement. It permits law enforcement officers to
acquire cell-site records only if they meet a heightened
standard and obtain a court order. If the American people
now think that the Act is inadequate or needs updating,
they can turn to their elected representatives to adopt
more protective provisions. Because the collection and
storage of cell-site records affects nearly every American,
it is unlikely that the question whether the current law
requires strengthening will escape Congress’s notice.
Legislation is much preferable to the development of an
entirely new body of Fourth Amendment caselaw for
many reasons, including the enormous complexity of the
subject, the need to respond to rapidly changing
technology, and the Fourth Amendment’s limited scope.
The Fourth Amendment restricts the conduct of the
Federal Government and the States; it does not apply to
private actors. But today, some of the greatest threats to
individual privacy may come from powerful private
companies that collect and sometimes misuse vast
quantities of data about the lives of ordinary Americans.
If today’s decision encourages the public to think that this
Court can protect them from this looming threat to their
privacy, the decision will mislead as well as disrupt. And
if holding a provision of the Stored Communications Act
to be unconstitutional dissuades Congress from further
legislation in this field, the goal of protecting privacy will
be greatly disserved.
The desire to make a statement about privacy in the
digital age does not justify the consequences that today’s
decision is likely to produce.
Justice GORSUCH, dissenting.
In the late 1960s this Court suggested for the first time
that a search triggering the Fourth Amendment occurs
when the government violates an “expectation of privacy”
that “society is prepared to recognize as ‘reasonable.’ ”
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
40
Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967) (Harlan, J., concurring). Then, in a
pair of decisions in the 1970s applying the Katz test, the
Court held that a “reasonable expectation of privacy”
doesn’t attach to information shared with “third parties.”
See Smith v. Maryland, 442 U.S. 735, 743–744, 99 S.Ct.
2577, 61 L.Ed.2d 220 (1979); United States v. Miller, 425
U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). By
these steps, the Court came to conclude, the Constitution
does nothing to limit investigators from searching records
you’ve entrusted to your bank, accountant, and maybe
even your doctor.
*2262 What’s left of the Fourth Amendment? Today we
use the Internet to do most everything. Smartphones make
it easy to keep a calendar, correspond with friends, make
calls, conduct banking, and even watch the game.
Countless Internet companies maintain records about us
and, increasingly, for us. Even our most private
documents—those that, in other eras, we would have
locked safely in a desk drawer or destroyed—now reside
on third party servers. Smith and Miller teach that the
police can review all of this material, on the theory that no
one reasonably expects any of it will be kept private. But
no one believes that, if they ever did.
What to do? It seems to me we could respond in at least
three ways. The first is to ignore the problem, maintain
Smith and Miller, and live with the consequences. If the
confluence of these decisions and modern technology
means our Fourth Amendment rights are reduced to
nearly nothing, so be it. The second choice is to set Smith
and Miller aside and try again using the Katz “reasonable
expectation of privacy” jurisprudence that produced them.
The third is to look for answers elsewhere.
*
Start with the first option. Smith held that the
government’s use of a pen register to record the numbers
people dial on their phones doesn’t infringe a reasonable
expectation of privacy because that information is freely
disclosed to the third party phone company. 442 U.S., at
743–744, 99 S.Ct. 2577. Miller held that a bank account
holder enjoys no reasonable expectation of privacy in the
bank’s records of his account activity. That’s true, the
Court reasoned, “even if the information is revealed on
the assumption that it will be used only for a limited
purpose and the confidence placed in the third party will
not be betrayed.” 425 U.S., at 443, 96 S.Ct. 1619. Today
the Court suggests that Smith and Miller distinguish
between kinds of information disclosed to third parties
and require courts to decide whether to “extend” those
decisions to particular classes of information, depending
on their sensitivity. See ante, at 2216 - 2221. But as the
Sixth Circuit recognized and Justice KENNEDY explains,
no balancing test of this kind can be found in Smith and
Miller. See ante, at 2231 - 2232 (dissenting opinion).
Those cases announced a categorical rule: Once you
disclose information to third parties, you forfeit any
reasonable expectation of privacy you might have had in
it. And even if Smith and Miller did permit courts to
conduct a balancing contest of the kind the Court now
suggests, it’s still hard to see how that would help the
petitioner in this case. Why is someone’s location when
using a phone so much more sensitive than who he was
talking to (Smith ) or what financial transactions he
engaged in (Miller )? I do not know and the Court does
not say.
The problem isn’t with the Sixth Circuit’s application of
Smith and Miller but with the cases themselves. Can the
government demand a copy of all your e-mails from
Google or Microsoft without implicating your Fourth
Amendment rights? Can it secure your DNA from
23andMe without a warrant or probable cause? Smith and
Miller say yes it can—at least without running afoul of
Katz. But that result strikes most lawyers and judges
today—me included—as pretty unlikely. In the years
since its adoption, countless scholars, too, have come to
conclude that the “third-party doctrine is not only wrong,
but horribly wrong.” Kerr, The Case for the Third–Party
Doctrine, 107 Mich. L. Rev. 561, 563, n. 5, 564 (2009)
(collecting criticisms but defending the doctrine
(footnotes omitted)). The reasons are obvious. “As an
empirical statement about subjective *2263 expectations
of privacy,” the doctrine is “quite dubious.” Baude &
Stern, The Positive Law Model of the Fourth
Amendment, 129 Harv. L. Rev. 1821, 1872 (2016).
People often do reasonably expect that information they
entrust to third parties, especially information subject to
confidentiality agreements, will be kept private.
Meanwhile, if the third party doctrine is supposed to
represent a normative assessment of when a person should
expect privacy, the notion that the answer might be
“never” seems a pretty unattractive societal prescription.
Ibid.
What, then, is the explanation for our third party doctrine?
The truth is, the Court has never offered a persuasive
justification. The Court has said that by conveying
information to a third party you “ ‘assum[e] the risk’ ” it
will be revealed to the police and therefore lack a
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
41
reasonable expectation of privacy in it. Smith, supra, at
744, 99 S.Ct. 2577. But assumption of risk doctrine
developed in tort law. It generally applies when “by
contract or otherwise [one] expressly agrees to accept a
risk of harm” or impliedly does so by “manifest[ing] his
willingness to accept” that risk and thereby “take[s] his
chances as to harm which may result from it.”
Restatement (Second) of Torts §§ 496B, 496C(1), and
Comment b (1965); see also 1 D. Dobbs, P. Hayden, & E.
Bublick, Law of Torts §§ 235–236, pp. 841–850 (2d ed.
2017). That rationale has little play in this context.
Suppose I entrust a friend with a letter and he promises to
keep it secret until he delivers it to an intended recipient.
In what sense have I agreed to bear the risk that he will
turn around, break his promise, and spill its contents to
someone else? More confusing still, what have I done to
“manifest my willingness to accept” the risk that the
government will pry the document from my friend and
read it without his consent?
One possible answer concerns knowledge. I know that my
friend might break his promise, or that the government
might have some reason to search the papers in his
possession. But knowing about a risk doesn’t mean you
assume responsibility for it. Whenever you walk down the
sidewalk you know a car may negligently or recklessly
veer off and hit you, but that hardly means you accept the
consequences and absolve the driver of any damage he
may do to you. Epstein, Privacy and the Third Hand:
Lessons From the Common Law of Reasonable
Expectations, 24 Berkeley Tech. L.J. 1199, 1204 (2009);
see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
& Keeton on Law of Torts 490 (5th ed.1984).
Some have suggested the third party doctrine is better
understood to rest on consent than assumption of risk. “So
long as a person knows that they are disclosing
information to a third party,” the argument goes, “their
choice to do so is voluntary and the consent valid.” Kerr,
supra, at 588. I confess I still don’t see it. Consenting to
give a third party access to private papers that remain my
property is not the same thing as consenting to a search of
those papers by the government. Perhaps there are
exceptions, like when the third party is an undercover
government agent. See Murphy, The Case Against the
Case Against the Third–Party Doctrine: A Response to
Epstein and Kerr, 24 Berkeley Tech. L.J. 1239, 1252
(2009); cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct.
408, 17 L.Ed.2d 374 (1966). But otherwise this
conception of consent appears to be just assumption of
risk relabeled—you’ve “consented” to whatever risks are
foreseeable.
Another justification sometimes offered for third party
doctrine is clarity. You (and the police) know exactly how
much protection you have in information confided *2264
to others: none. As rules go, “the king always wins” is
admirably clear. But the opposite rule would be clear too:
Third party disclosures never diminish Fourth
Amendment protection (call it “the king always loses”).
So clarity alone cannot justify the third party doctrine.
In the end, what do Smith and Miller add up to? A
doubtful application of Katz that lets the government
search almost whatever it wants whenever it wants. The
Sixth Circuit had to follow that rule and faithfully did just
that, but it’s not clear why we should.
*
There’s a second option. What if we dropped Smith and
Miller ‘s third party doctrine and retreated to the root Katz
question whether there is a “reasonable expectation of
privacy” in data held by third parties? Rather than solve
the problem with the third party doctrine, I worry this
option only risks returning us to its source: After all, it
was Katz that produced Smith and Miller in the first place.
Katz’s problems start with the text and original
understanding of the Fourth Amendment, as Justice
THOMAS thoughtfully explains today. Ante,at 2237 -
2244 (dissenting opinion). The Amendment’s protections
do not depend on the breach of some abstract
“expectation of privacy” whose contours are left to the
judicial imagination. Much more concretely, it protects
your “person,” and your “houses, papers, and effects.”
Nor does your right to bring a Fourth Amendment claim
depend on whether a judge happens to agree that your
subjective expectation to privacy is a “reasonable” one.
Under its plain terms, the Amendment grants you the right
to invoke its guarantees whenever one of your protected
things (your person, your house, your papers, or your
effects) is unreasonably searched or seized. Period.
History too holds problems for Katz. Little like it can be
found in the law that led to the adoption of the Fourth
Amendment or in this Court’s jurisprudence until the late
1960s. The Fourth Amendment came about in response to
a trio of 18th century cases “well known to the men who
wrote and ratified the Bill of Rights, [and] famous
throughout the colonial population.” Stuntz, The
Substantive Origins of Criminal Procedure, 105 Yale L.J.
393, 397 (1995). The first two were English cases
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
42
invalidating the Crown’s use of general warrants to enter
homes and search papers. Entick v. Carrington, 19 How.
St. Tr. 1029 (K.B. 1765); Wilkes v. Wood, 19 How. St. Tr.
1153 (K.B. 1763); see W. Cuddihy, The Fourth
Amendment: Origins and Original Meaning 439–487
(2009); Boyd v. United States, 116 U.S. 616, 625–630, 6
S.Ct. 524, 29 L.Ed. 746 (1886). The third was American:
the Boston Writs of Assistance Case, which sparked
colonial outrage at the use of writs permitting government
agents to enter houses and business, breaking open doors
and chests along the way, to conduct searches and
seizures—and to force third parties to help them. Stuntz,
supra, at 404–409; M. Smith, The Writs of Assistance
Case (1978). No doubt the colonial outrage engendered
by these cases rested in part on the government’s
intrusion upon privacy. But the framers chose not to
protect privacy in some ethereal way dependent on
judicial intuitions. They chose instead to protect privacy
in particular places and things—“persons, houses, papers,
and effects”—and against particular
threats—“unreasonable” governmental “searches and
seizures.” See Entick, supra, at 1066 (“Papers are the
owner’s goods and chattels; they are his dearest property;
and so far from enduring a seizure, that they will hardly
bear an inspection”); see also ante, at 2235 - 2246
(THOMAS, J., dissenting).
*2265 Even taken on its own terms, Katz has never been
sufficiently justified. In fact, we still don’t even know
what its “reasonable expectation of privacy” test is. Is it
supposed to pose an empirical question (what privacy
expectations do people actually have) or a normative one
(what expectations should they have)? Either way brings
problems. If the test is supposed to be an empirical one,
it’s unclear why judges rather than legislators should
conduct it. Legislators are responsive to their constituents
and have institutional resources designed to help them
discern and enact majoritarian preferences. Politically
insulated judges come armed with only the attorneys’
briefs, a few law clerks, and their own idiosyncratic
experiences. They are hardly the representative group
you’d expect (or want) to be making empirical judgments
for hundreds of millions of people. Unsurprisingly, too,
judicial judgments often fail to reflect public views. See
Slobogin & Schumacher, Reasonable Expectations of
Privacy and Autonomy in Fourth Amendment Cases: An
Empirical Look at “Understandings Recognized and
Permitted by Society,” 42 Duke L.J. 727, 732, 740–742
(1993). Consider just one example. Our cases insist that
the seriousness of the offense being investigated does not
reduce Fourth Amendment protection. Mincey v. Arizona,
437 U.S. 385, 393–394, 98 S.Ct. 2408, 57 L.Ed.2d 290
(1978). Yet scholars suggest that most people are more
tolerant of police intrusions when they investigate more
serious crimes. See Blumenthal, Adya, & Mogle, The
Multiple Dimensions of Privacy: Testing Lay
“Expectations of Privacy,” 11 U. Pa. J. Const. L. 331,
352–353 (2009). And I very much doubt that this Court
would be willing to adjust its Katz cases to reflect these
findings even if it believed them.
Maybe, then, the Katz test should be conceived as a
normative question. But if that’s the case, why (again) do
judges, rather than legislators, get to determine whether
society should be prepared to recognize an expectation of
privacy as legitimate? Deciding what privacy interests
should be recognized often calls for a pure policy choice,
many times between incommensurable goods—between
the value of privacy in a particular setting and society’s
interest in combating crime. Answering questions like that
calls for the exercise of raw political will belonging to
legislatures, not the legal judgment proper to courts. See
The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.
Hamilton). When judges abandon legal judgment for
political will we not only risk decisions where
“reasonable expectations of privacy” come to bear “an
uncanny resemblance to those expectations of privacy”
shared by Members of this Court. Minnesota v. Carter,
525 U.S. 83, 97, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)
(Scalia, J., concurring). We also risk undermining public
confidence in the courts themselves.
My concerns about Katz come with a caveat. Sometimes, I
accept, judges may be able to discern and describe
existing societal norms. See, e.g., Florida v. Jardines, 569
U.S. 1, 8, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)
(inferring a license to enter on private property from the “
‘habits of the country’ ” (quoting McKee v. Gratz, 260
U.S. 127, 136, 43 S.Ct. 16, 67 L.Ed. 167 (1922))); Sachs,
Finding Law, 107 Cal. L. Rev. (forthcoming 2019), online
at https://ssrn.com/abstract=3064443 (as last visited June
19, 2018). That is particularly true when the judge looks
to positive law rather than intuition for guidance on social
norms. See Byrd v. United States, 584 U.S. ––––, –––– –
––––, 138 S.Ct. 1518, 1527, ––– L.Ed.2d –––– (2018)
(“general property-based concept[s] guid[e] the resolution
of this case”). So there may be some occasions where
Katz is capable of principled application— *2266 though
it may simply wind up approximating the more traditional
option I will discuss in a moment. Sometimes it may also
be possible to apply Katz by analogizing from precedent
when the line between an existing case and a new fact
pattern is short and direct. But so far this Court has
declined to tie itself to any significant restraints like these.
See ante, at 2214, n. 1 (“[W]hile property rights are often
informative, our cases by no means suggest that such an
interest is ‘fundamental’ or ‘dispositive’ in determining
which expectations of privacy are legitimate”).
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
43
As a result, Katz has yielded an often unpredictable—and
sometimes unbelievable—jurisprudence. Smith and Miller
are only two examples; there are many others. Take
Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102
L.Ed.2d 835 (1989), which says that a police helicopter
hovering 400 feet above a person’s property invades no
reasonable expectation of privacy. Try that one out on
your neighbors. Or California v. Greenwood, 486 U.S. 35,
108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), which holds that
a person has no reasonable expectation of privacy in the
garbage he puts out for collection. In that case, the Court
said that the homeowners forfeited their privacy interests
because “[i]t is common knowledge that plastic garbage
bags left on or at the side of a public street are readily
accessible to animals, children, scavengers, snoops, and
other members of the public.” Id., at 40, 108 S.Ct. 1625
(footnotes omitted). But the habits of raccoons don’t
prove much about the habits of the country. I doubt, too,
that most people spotting a neighbor rummaging through
their garbage would think they lacked reasonable grounds
to confront the rummager. Making the decision all the
stranger, California state law expressly protected a
homeowner’s property rights in discarded trash. Id., at 43,
108 S.Ct. 1625. Yet rather than defer to that as evidence
of the people’s habits and reasonable expectations of
privacy, the Court substituted its own curious judgment.
Resorting to Katz in data privacy cases threatens more of
the same. Just consider. The Court today says that judges
should use Katz ‘s reasonable expectation of privacy test
to decide what Fourth Amendment rights people have in
cell-site location information, explaining that “no single
rubric definitively resolves which expectations of privacy
are entitled to protection.” Ante, at 2213 - 2214. But then
it offers a twist. Lower courts should be sure to add two
special principles to their Katz calculus: the need to avoid
“arbitrary power” and the importance of “plac[ing]
obstacles in the way of a too permeating police
surveillance.” Ante, at 2214 (internal quotation marks
omitted). While surely laudable, these principles don’t
offer lower courts much guidance. The Court does not tell
us, for example, how far to carry either principle or how
to weigh them against the legitimate needs of law
enforcement. At what point does access to electronic data
amount to “arbitrary” authority? When does police
surveillance become “too permeating”? And what sort of
“obstacles” should judges “place” in law enforcement’s
path when it does? We simply do not know.
The Court’s application of these principles supplies little
more direction. The Court declines to say whether there is
any sufficiently limited period of time “for which the
Government may obtain an individual’s historical
[location information] free from Fourth Amendment
scrutiny.” Ante, at 2217, n. 3; see ante, at 2216 - 2219.
But then it tells us that access to seven days’ worth of
information does trigger Fourth Amendment
scrutiny—even though here the carrier “produced only
two days of records.” Ante, at 2217, n. 3. Why is the
relevant fact the seven days of *2267 information the
government asked for instead of the two days of
information the government actually saw ? Why seven
days instead of ten or three or one? And in what possible
sense did the government “search” five days’ worth of
location information it was never even sent? We do not
know.
Later still, the Court adds that it can’t say whether the
Fourth Amendment is triggered when the government
collects “real-time CSLI or ‘tower dumps’ (a download of
information on all the devices that connected to a
particular cell site during a particular interval).” Ante, at
2220. But what distinguishes historical data from
real-time data, or seven days of a single person’s data
from a download of everyone ‘s data over some indefinite
period of time? Why isn’t a tower dump the paradigmatic
example of “too permeating police surveillance” and a
dangerous tool of “arbitrary” authority—the touchstones
of the majority’s modified Katz analysis? On what
possible basis could such mass data collection survive the
Court’s test while collecting a single person’s data does
not? Here again we are left to guess. At the same time,
though, the Court offers some firm assurances. It tells us
its decision does not “call into question conventional
surveillance techniques and tools, such as security
cameras.” Ibid. That, however, just raises more questions
for lower courts to sort out about what techniques qualify
as “conventional” and why those techniques would be
okay even if they lead to “permeating police surveillance”
or “arbitrary police power.”
Nor is this the end of it. After finding a reasonable
expectation of privacy, the Court says there’s still more
work to do. Courts must determine whether to “extend”
Smith and Miller to the circumstances before them. Ante,
at 2216, 2219 - 2220. So apparently Smith and Miller
aren’t quite left for dead; they just no longer have the
clear reach they once did. How do we measure their new
reach? The Court says courts now must conduct a second
Katz-like balancing inquiry, asking whether the fact of
disclosure to a third party outweighs privacy interests in
the “category of information” so disclosed. Ante, at 2218,
2219 - 2220. But how are lower courts supposed to weigh
these radically different interests? Or assign values to
different categories of information? All we know is that
historical cell-site location information (for seven days,
anyway) escapes Smith and Miller ‘s shorn grasp, while a
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
44
lifetime of bank or phone records does not. As to any
other kind of information, lower courts will have to stay
tuned.
In the end, our lower court colleagues are left with two
amorphous balancing tests, a series of weighty and
incommensurable principles to consider in them, and a
few illustrative examples that seem little more than the
product of judicial intuition. In the Court’s defense,
though, we have arrived at this strange place not because
the Court has misunderstood Katz. Far from it. We have
arrived here because this is where Katz inevitably leads.
*
There is another way. From the founding until the 1960s,
the right to assert a Fourth Amendment claim didn’t
depend on your ability to appeal to a judge’s personal
sensibilities about the “reasonableness” of your
expectations or privacy. It was tied to the law. Jardines,
569 U.S., at 11, 133 S.Ct. 1409; United States v. Jones,
565 U.S. 400, 405, 132 S.Ct. 945, 181 L.Ed.2d 911
(2012). The Fourth Amendment protects “the right of the
people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures.” True
to those words and their original understanding, the
traditional approach *2268 asked if a house, paper or
effect was yours under law. No more was needed to
trigger the Fourth Amendment. Though now often lost in
Katz ‘s shadow, this traditional understanding persists.
Katz only “supplements, rather than displaces the
traditional property-based understanding of the Fourth
Amendment.” Byrd, 584 U.S., at ––––, 138 S.Ct., at 1526
(internal quotation marks omitted); Jardines, supra, at 11,
133 S.Ct. 1409 (same); Soldal v. Cook County, 506 U.S.
56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (Katz did
not “snuf[f] out the previously recognized protection for
property under the Fourth Amendment”).
Beyond its provenance in the text and original
understanding of the Amendment, this traditional
approach comes with other advantages. Judges are
supposed to decide cases based on “democratically
legitimate sources of law”—like positive law or analogies
to items protected by the enacted Constitution—rather
than “their own biases or personal policy preferences.”
Pettys, Judicial Discretion in Constitutional Cases, 26 J.L.
& Pol. 123, 127 (2011). A Fourth Amendment model
based on positive legal rights “carves out significant room
for legislative participation in the Fourth Amendment
context,” too, by asking judges to consult what the
people’s representatives have to say about their rights.
Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this
approach hobbled by Smith and Miller, for those cases are
just limitations on Katz, addressing only the question
whether individuals have a reasonable expectation of
privacy in materials they share with third parties. Under
this more traditional approach, Fourth Amendment
protections for your papers and effects do not
automatically disappear just because you share them with
third parties.
Given the prominence Katz has claimed in our doctrine,
American courts are pretty rusty at applying the
traditional approach to the Fourth Amendment. We know
that if a house, paper, or effect is yours, you have a Fourth
Amendment interest in its protection. But what kind of
legal interest is sufficient to make something yours ? And
what source of law determines that? Current positive law?
The common law at 1791, extended by analogy to modern
times? Both? See Byrd, supra, at –––– – ––––, 138 S.Ct.,
at 1531 (THOMAS, J., concurring); cf. Re, The Positive
Law Floor, 129 Harv. L. Rev. Forum 313 (2016). Much
work is needed to revitalize this area and answer these
questions. I do not begin to claim all the answers today,
but (unlike with Katz ) at least I have a pretty good idea
what the questions are. And it seems to me a few things
can be said.
First, the fact that a third party has access to or possession
of your papers and effects does not necessarily eliminate
your interest in them. Ever hand a private document to a
friend to be returned? Toss your keys to a valet at a
restaurant? Ask your neighbor to look after your dog
while you travel? You would not expect the friend to
share the document with others; the valet to lend your car
to his buddy; or the neighbor to put Fido up for adoption.
Entrusting your stuff to others is a bailment. A bailment is
the “delivery of personal property by one person (the
bailor ) to another (the bailee ) who holds the property for
a certain purpose.” Black’s Law Dictionary 169 (10th ed.
2014); J. Story, Commentaries on the Law of Bailments §
2, p. 2 (1832) (“a bailment is a delivery of a thing in trust
for some special object or purpose, and upon a contract,
expressed or implied, to conform to the object or purpose
of the trust”). A bailee normally owes a legal duty to keep
the item safe, according to the terms of the parties’
contract if they have one, and according to the
“implication[s] from their *2269 conduct” if they don’t. 8
C.J. S., Bailments § 36, pp. 468–469 (2017). A bailee
who uses the item in a different way than he’s supposed
to, or against the bailor’s instructions, is liable for
conversion. Id., § 43, at 481; see Goad v. Harris, 207 Ala.
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
45
357, 92 So. 546 (1922); Knight v. Seney, 290 Ill. 11, 17,
124 N.E. 813, 815–816 (1919); Baxter v. Woodward, 191
Mich. 379, 385, 158 N.W. 137, 139 (1916). This approach
is quite different from Smith and Miller ‘s
(counter)-intuitive approach to reasonable expectations of
privacy; where those cases extinguish Fourth Amendment
interests once records are given to a third party, property
law may preserve them.
Our Fourth Amendment jurisprudence already reflects
this truth. In Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877
(1878), this Court held that sealed letters placed in the
mail are “as fully guarded from examination and
inspection, except as to their outward form and weight, as
if they were retained by the parties forwarding them in
their own domiciles.” Id., at 733. The reason, drawn from
the Fourth Amendment’s text, was that “[t]he
constitutional guaranty of the right of the people to be
secure in their papers against unreasonable searches and
seizures extends to their papers, thus closed against
inspection, wherever they may be.” Ibid. (emphasis
added). It did not matter that letters were bailed to a third
party (the government, no less). The sender enjoyed the
same Fourth Amendment protection as he does “when
papers are subjected to search in one’s own household.”
Ibid.
These ancient principles may help us address modern data
cases too. Just because you entrust your data—in some
cases, your modern-day papers and effects—to a third
party may not mean you lose any Fourth Amendment
interest in its contents. Whatever may be left of Smith and
Miller, few doubt that e-mail should be treated much like
the traditional mail it has largely supplanted—as a
bailment in which the owner retains a vital and protected
legal interest. See ante, at 2230 (KENNEDY, J.,
dissenting) (noting that enhanced Fourth Amendment
protection may apply when the “modern-day equivalents
of an individual’s own ‘papers’ or ‘effects’ ... are held by
a third party” through “bailment”); ante, at 2259, n. 6
(ALITO, J., dissenting) (reserving the question whether
Fourth Amendment protection may apply in the case of
“bailment” or when “someone has entrusted papers he or
she owns ... to the safekeeping of another”); United States
v. Warshak, 631 F.3d 266, 285–286 (C.A.6 2010) (relying
on an analogy to Jackson to extend Fourth Amendment
protection to e-mail held by a third party service
provider).
Second, I doubt that complete ownership or exclusive
control of property is always a necessary condition to the
assertion of a Fourth Amendment right. Where houses are
concerned, for example, individuals can enjoy Fourth
Amendment protection without fee simple title. Both the
text of the Amendment and the common law rule support
that conclusion. “People call a house ‘their’ home when
legal title is in the bank, when they rent it, and even when
they merely occupy it rent free.” Carter, 525 U.S., at
95–96, 119 S.Ct. 469 (Scalia, J., concurring). That rule
derives from the common law. Oystead v. Shed, 13 Mass.
520, 523 (1816) (explaining, citing “[t]he very learned
judges, Foster, Hale, and Coke,” that the law “would be
as much disturbed by a forcible entry to arrest a boarder
or a servant, who had acquired, by contract, express or
implied, a right to enter the house at all times, and to
remain in it as long as they please, as if the object were to
arrest the master of the house or his children”). That is
why tenants and resident family members—though they
have no legal title—have standing to complain *2270
about searches of the houses in which they live. Chapman
v. United States, 365 U.S. 610, 616–617, 81 S.Ct. 776, 5
L.Ed.2d 828 (1961), Bumper v. North Carolina, 391 U.S.
543, 548, n. 11, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
Another point seems equally true: just because you have
to entrust a third party with your data doesn’t necessarily
mean you should lose all Fourth Amendment protections
in it. Not infrequently one person comes into possession
of someone else’s property without the owner’s consent.
Think of the finder of lost goods or the policeman who
impounds a car. The law recognizes that the goods and
the car still belong to their true owners, for “where a
person comes into lawful possession of the personal
property of another, even though there is no formal
agreement between the property’s owner and its
possessor, the possessor will become a constructive bailee
when justice so requires.” Christensen v. Hoover, 643
P.2d 525, 529 (Colo.1982) (en banc); Laidlaw, Principles
of Bailment, 16 Cornell L.Q. 286 (1931). At least some of
this Court’s decisions have already suggested that use of
technology is functionally compelled by the demands of
modern life, and in that way the fact that we store data
with third parties may amount to a sort of involuntary
bailment too. See ante, at 2217 - 2218 (majority opinion);
Riley v. California, 573 U.S. ––––, ––––, 134 S.Ct. 2473,
2484, 189 L.Ed.2d 430 (2014).
Third, positive law may help provide detailed guidance on
evolving technologies without resort to judicial intuition.
State (or sometimes federal) law often creates rights in
both tangible and intangible things. See Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1001, 104 S.Ct. 2862, 81
L.Ed.2d 815 (1984). In the context of the Takings Clause
we often ask whether those state-created rights are
sufficient to make something someone’s property for
constitutional purposes. See id., at 1001–1003, 104 S.Ct.
2862; Louisville Joint Stock Land Bank v. Radford, 295
U.S. 555, 590–595, 55 S.Ct. 854, 79 L.Ed. 1593 (1935). A
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
46
similar inquiry may be appropriate for the Fourth
Amendment. Both the States and federal government are
actively legislating in the area of third party data storage
and the rights users enjoy. See, e.g., Stored
Communications Act, 18 U.S.C. § 2701 et seq.; Tex.
Prop.Code Ann. § 111.004(12) (West 2017) (defining
“[p]roperty” to include “property held in any digital or
electronic medium”). State courts are busy expounding
common law property principles in this area as well. E.g.,
Ajemian v. Yahoo!, Inc., 478 Mass. 169, 170, 84 N.E.3d
766, 768 (2017) (e-mail account is a “form of property
often referred to as a ‘digital asset’ ”); Eysoldt v. ProScan
Imaging, 194 Ohio App.3d 630, 638, 2011–Ohio–2359,
957 N.E.2d 780, 786 (2011) (permitting action for
conversion of web account as intangible property). If state
legislators or state courts say that a digital record has the
attributes that normally make something property, that
may supply a sounder basis for judicial decisionmaking
than judicial guesswork about societal expectations.
Fourth, while positive law may help establish a person’s
Fourth Amendment interest there may be some
circumstances where positive law cannot be used to defeat
it. Ex parte Jackson reflects that understanding. There this
Court said that “[n]o law of Congress” could authorize
letter carriers “to invade the secrecy of letters.” 96 U.S., at
733. So the post office couldn’t impose a regulation
dictating that those mailing letters surrender all legal
interests in them once they’re deposited in a mailbox. If
that is right, Jackson suggests the existence of a
constitutional floor below which Fourth Amendment
rights may not descend. Legislatures cannot *2271 pass
laws declaring your house or papers to be your property
except to the extent the police wish to search them
without cause. As the Court has previously explained,
“we must ‘assur[e] preservation of that degree of privacy
against government that existed when the Fourth
Amendment was adopted.’ ” Jones, 565 U.S., at 406, 132
S.Ct. 945 (quoting Kyllo v. United States, 533 U.S. 27, 34,
121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). Nor does this
mean protecting only the specific rights known at the
founding; it means protecting their modern analogues too.
So, for example, while thermal imaging was unknown in
1791, this Court has recognized that using that technology
to look inside a home constitutes a Fourth Amendment
“search” of that “home” no less than a physical inspection
might. Id., at 40, 121 S.Ct. 2038.
Fifth, this constitutional floor may, in some instances, bar
efforts to circumvent the Fourth Amendment’s protection
through the use of subpoenas. No one thinks the
government can evade Jackson ‘s prohibition on opening
sealed letters without a warrant simply by issuing a
subpoena to a postmaster for “all letters sent by John
Smith” or, worse, “all letters sent by John Smith
concerning a particular transaction.” So the question
courts will confront will be this: What other kinds of
records are sufficiently similar to letters in the mail that
the same rule should apply?
It may be that, as an original matter, a subpoena requiring
the recipient to produce records wasn’t thought of as a
“search or seizure” by the government implicating the
Fourth Amendment, see ante, at 2247 - 2253 (opinion of
ALITO, J.), but instead as an act of compelled
self-incrimination implicating the Fifth Amendment, see
United States v. Hubbell, 530 U.S. 27, 49–55, 120 S.Ct.
2037, 147 L.Ed.2d 24 (2000) (THOMAS, J., dissenting);
Nagareda, Compulsion “To Be a Witness” and the
Resurrection of Boyd, 74 N.Y.U. L. Rev. 1575, 1619, and
n. 172 (1999). But the common law of searches and
seizures does not appear to have confronted a case where
private documents equivalent to a mailed letter were
entrusted to a bailee and then subpoenaed. As a result,
“[t]he common-law rule regarding subpoenas for
documents held by third parties entrusted with
information from the target is ... unknown and perhaps
unknowable.” Dripps, Perspectives on The Fourth
Amendment Forty Years Later: Toward the Realization of
an Inclusive Regulatory Model, 100 Minn. L. Rev. 1885,
1922 (2016). Given that (perhaps insoluble) uncertainty, I
am content to adhere to Jackson and its implications for
now.
To be sure, we must be wary of returning to the doctrine
of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29
L.Ed. 746. Boyd invoked the Fourth Amendment to
restrict the use of subpoenas even for ordinary business
records and, as Justice ALITO notes, eventually proved
unworkable. See ante, at 2253 (dissenting opinion); 3 W.
LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§ 8.7(a), pp. 185–187 (4th ed. 2015). But if we were to
overthrow Jackson too and deny Fourth Amendment
protection to any subpoenaed materials, we would do well
to reconsider the scope of the Fifth Amendment while
we’re at it. Our precedents treat the right against
self-incrimination as applicable only to testimony, not the
production of incriminating evidence. See Fisher v.
United States, 425 U.S. 391, 401, 96 S.Ct. 1569, 48
L.Ed.2d 39 (1976). But there is substantial evidence that
the privilege against self-incrimination was also originally
understood to protect a person from being forced to turn
over potentially incriminating evidence. Nagareda, supra,
at 1605–1623; Rex v. Purnell, 96 Eng. Rep. 20 (K.B.
1748); Slobogin, Privacy at Risk 145 (2007).
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
47
*2272 *
What does all this mean for the case before us? To start, I
cannot fault the Sixth Circuit for holding that Smith and
Miller extinguish any Katz-based Fourth Amendment
interest in third party cell-site data. That is the plain effect
of their categorical holdings. Nor can I fault the Court
today for its implicit but unmistakable conclusion that the
rationale of Smith and Miller is wrong; indeed, I agree
with that. The Sixth Circuit was powerless to say so, but
this Court can and should. At the same time, I do not
agree with the Court’s decision today to keep Smith and
Miller on life support and supplement them with a new
and multilayered inquiry that seems to be only
Katz-squared. Returning there, I worry, promises more
trouble than help. Instead, I would look to a more
traditional Fourth Amendment approach. Even if Katz
may still supply one way to prove a Fourth Amendment
interest, it has never been the only way. Neglecting more
traditional approaches may mean failing to vindicate the
full protections of the Fourth Amendment.
Our case offers a cautionary example. It seems to me
entirely possible a person’s cell-site data could qualify as
his papers or effects under existing law. Yes, the
telephone carrier holds the information. But 47 U.S.C. §
222 designates a customer’s cell-site location information
as “customer proprietary network information” (CPNI), §
222(h)(1)(A), and gives customers certain rights to
control use of and access to CPNI about themselves. The
statute generally forbids a carrier to “use, disclose, or
permit access to individually identifiable” CPNI without
the customer’s consent, except as needed to provide the
customer’s telecommunications services. § 222(c)(1). It
also requires the carrier to disclose CPNI “upon
affirmative written request by the customer, to any person
designated by the customer.” § 222(c)(2). Congress even
afforded customers a private cause of action for damages
against carriers who violate the Act’s terms. § 207.
Plainly, customers have substantial legal interests in this
information, including at least some right to include,
exclude, and control its use. Those interests might even
rise to the level of a property right.
The problem is that we do not know anything more.
Before the district court and court of appeals, Mr.
Carpenter pursued only a Katz “reasonable expectations”
argument. He did not invoke the law of property or any
analogies to the common law, either there or in his
petition for certiorari. Even in his merits brief before this
Court, Mr. Carpenter’s discussion of his positive law
rights in cell-site data was cursory. He offered no
analysis, for example, of what rights state law might
provide him in addition to those supplied by § 222. In
these circumstances, I cannot help but
conclude—reluctantly—that Mr. Carpenter forfeited
perhaps his most promising line of argument.
Unfortunately, too, this case marks the second time this
Term that individuals have forfeited Fourth Amendment
arguments based on positive law by failing to preserve
them. See Byrd, 584 U.S., at ––––, 138 S.Ct., at 1526.
Litigants have had fair notice since at least United States
v. Jones (2012) and Florida v. Jardines (2013) that
arguments like these may vindicate Fourth Amendment
interests even where Katz arguments do not. Yet the
arguments have gone unmade, leaving courts to the usual
Katz handwaving. These omissions do not serve the
development of a sound or fully protective Fourth
Amendment jurisprudence.
All Citations
138 S.Ct. 2206, 201 L.Ed.2d 507, 86 USLW 4491, 18
Cal. Daily Op. Serv. 6081, 2018 Daily Journal D.A.R.
6026, 27 Fla. L. Weekly Fed. S 415
Footnotes
*
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
1
Justice KENNEDY believes that there is such a rubric—the “property-based concepts” that Katz purported to move beyond. Post,
at 2224 (dissenting opinion). But while property rights are often informative, our cases by no means suggest that such an int
erest
is “fundamental” or “dispositive” in determining which expectations of privacy are legitimate. Post, at 2227 -
2228. Justice
THOMAS (and to a large extent Justice GORSUCH) would have us abandon Katz and return to an exclusively property-
based
approach. Post, at 2235 - 2236, 2244 - 2246 (THOMAS J., dissenting); post, at 2264 - 2266 (GORSUCH, J., dissenting). Katz
of
course “discredited” the “premise that property interests control,” 389 U.S., at 353, 88 S.Ct. 507
, and we have repeatedly
emphasized that privacy interests do not rise or fall with property rights, see, e.g., United States v. Jones,
565 U.S. 400, 411, 132
S.Ct. 945, 181 L.Ed.2d 911 (2012) (refusing to “make trespass the exclusive test”); Kyllo v. United States,
533 U.S. 27, 32, 121 S.Ct.
2038, 150 L.Ed.2d 94 (2001) (“We have since decoupled violation of a person’s Fourth Amendment rights from trespassory
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
48
violation of his property.”). Neither party has asked the Court to reconsider Katz in this case.
2
Justice KENNEDY argues that this case is in a different category from Jones and the dragnet-type practices posited in Knotts
because the disclosure of the cell-site records was subject to “judicial authorization.” Post, at 2230 -
2232. That line of argument
conflates the threshold question whether a “search” has occurred with the separate matter of whether the search was
reasona
ble. The subpoena process set forth in the Stored Communications Act does not determine a target’s expectation of
privacy. And in any event, neither Jones nor Knotts
purported to resolve the question of what authorization may be required to
conduct such electronic surveillance techniques. But see Jones, 565 U.S., at 430, 132 S.Ct. 945
(ALITO, J., concurring in judgment)
(indicating that longer term GPS tracking may require a warrant).
3
The parties suggest as an alternative to their primary submissions that the acquisition of CSLI becomes a search only if it extends
beyond a limited period. See Reply Brief 12 (proposing a 24–hour cutoff); Brief for United States 55–56 (suggesting a seven-
day
cutoff). As part of its argument, the Government treats the seven days of CSLI requested from Sprint as the pertinent period,
even though Sprint produced only two days of records. Brief for United States 56. Contrary to Justice KENNEDY’s assertion, pos
t,
at 2233, we need not decide whether there is a limited period for which the Government may obtain an individual’s historical
CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today t
o
hold that accessing seven days of CSLI constitutes a Fourth Amendment search.
4
Justice GORSUCH faults us for not promulgating a complete code addressing the manifold situations that may be presented by
this new technology—under a constitutional provision turning on what is “reasonable,” no less. Post, at 2266 -
2268. Like Justice
GORSUCH, we “do not begin to claim all the answers today,” post,
at 2268, and therefore decide no more than the case before
us.
5
See United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (“No person can have a reasonable expectation
that others will not know the sound of his voice”); Donovan v. Lone Steer, Inc.,
464 U.S. 408, 411, 415, 104 S.Ct. 769, 78 L.Ed.2d
567 (1984) (payroll and sales records); California Bankers Assn. v. Shultz, 416 U.S. 21, 67,
94 S.Ct. 1494, 39 L.Ed.2d 812 (1974)
(Bank Secrecy Act reporting requirements); See v. Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) (finan
cial books
and records); United States v. Powell, 379 U.S. 48, 49, 57, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964) (corporate tax records);
McPhaul v.
United States, 364 U.S. 372, 374, 382, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960) (books and records of an organization);
United States v.
Morton Salt Co., 338 U.S. 632, 634, 651–653, 70 S.Ct. 357, 94 L.Ed. 401 (1950)
(Federal Trade Commission reporting
requirement); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 189, 204–208, 66 S.Ct. 494, 90 L.Ed. 614 (1946)
(payroll
records); Hale v. Henkel, 201 U.S. 43, 45, 75, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (corporate books and papers).
1
Justice Brandeis authored the principal dissent in Olmstead. He consulted the “underlying purpose,” rather than “the words of
the [Fourth] Amendment,” to conclude that the wiretap was a search. 277 U.S., at 476, 48 S.Ct. 564
. In Justice Brandeis’ view, the
Framers “recogniz
ed the significance of man’s spiritual nature, of his feelings and of his intellect” and “sought to protect
Americans in their beliefs, their thoughts, their emotions and their sensations.” Id., at 478, 48 S.Ct. 564
. Thus, “every unjustifiable
intrusion by the Government upon the privacy of the individual, whatever the means employed,” should constitute an
unreasonable search under the Fourth Amendment. Ibid.
2
National Archives, Library of Congress, Founders Online, https://founders.archives.gov (all Internet materials as last visited June
18, 2018).
3
A Century of Lawmaking For A New Nation, U.S. Congressional Documents and Debates, 1774–1875 (May 1, 2003),
https://memory.loc.gov/ammem/amlaw/lawhome.html.
4
Corpus of Historical American English, https://corpus.byu.edu/coha; Google Books (American),
https://googlebooks.byu.edu/x.asp; Corpus of Founding Era American English, https://lawncl.byu.edu/cofea.
5
Readex, America’s Historical Newspapers (2018), https://www.readex.com/content/americas-historical-newspapers.
6
Writs of assistance were “general warrants” that gave “customs officials blanket authority to search where they pleased for
goods imported in violation of the British tax laws.” Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).
7
“Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his
possessions. All warrants, therefore, are contrary to right, if the cause or foundation of them be not previously supported b
y oath
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
49
or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more
suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of sear
ch,
arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribe
d by the laws.” Mass. Const.,
pt. I, Art. XIV (1780).
8
The answer to that question is not obvious. Cell-site location records are business records that mechanically collect the
interactions between a person’s cell phone and the company’s towers; they are not private papers and do not reveal the
contents of any communications. Cf. Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869, 923–
924
(1985) (explaining that business records that do not reveal “personal or speech-
related confidences” might not satisfy the
original meaning of “papers”).
9
Carpenter relies on an order from the Federal Communications Commission (FCC), which weakly states that “ ‘[t]o the extent [a
customer’s location information] is property, ... it is better understood as belonging to the customer, not the carrier.’ ” B
rief for
Petitioner 34, and n. 23 (quoting 13 FCC Rcd. 8061, 8093 ¶ 43 (1998)
; emphasis added). But this order was vacated by the Court
of Appeals for the Tenth Circuit. U.S. West, Inc. v. FCC, 182 F.3d 1224, 1240 (1999)
. Notably, the carrier in that case argued that
the FCC’s regulation of customer information was a taking of its property. See id., at 1230
. Although the panel majority had no
occasion to address this argument, see id., at 1239, n. 14
, the dissent concluded that the carrier had failed to prove the
information was “property” at all, see id., at 1247–1248 (opinion of Briscoe, J.).
10
Kugler & Strahilevitz, Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, 2015 S.Ct. Rev. 205,
261; Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468 (1985); Kerr,
Four Models of Fourth Amendment
Protection, 60 Stan. L. Rev. 503, 505 (2007); Solove, Fourth Amendment Pragmatism, 51 Boston College L. Rev. 1511 (2010)
;
Wasserstom & Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19, 29 (1988)
; Colb, What Is a Search?
Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 122 (2002)
; Clancy, The
Fourth Amendment: Its History and Interpretation § 3.3.4, p. 65 (2008); Minnesota v. Carter,
525 U.S. 83, 97, 119 S.Ct. 469, 142
L.Ed.2d 373 (1998) (Scalia, J., dissenting); State v. Campbell, 306 Ore. 157, 164, 759 P.2d 1040, 1044 (1988); Wilkins,
Defining the
“Reasonable Expectation of Privacy”: an Emerging Tripartite Analysis, 40 Vand. L. Rev. 1077, 1107 (1987); Yeager,
Search, Seizure
and the Positive Law: Expectations of Privacy Outside the Fourth Amendment, 84 J.Crim. L. & C. 249, 251 (1993); Thomas,
Time
Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 Notre Dame L.
Rev. 1451, 1500 (2005); Rakas v. Illinois, 439 U.S. 128, 165, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (White, J., dissenting); Cloud,
Rube
Goldberg Meets the Constitution: The Supreme Court, Technology, and the Fourth Amendment, 72 Miss. L.J. 5, 7 (2002).
1
Any other interpretation of the Fourth Amendment’s text would run into insuperable problems because it would apply not only
to subpoenas duces tecum
but to all other forms of compulsory process as well. If the Fourth Amendment applies to the
compelled production of documents, then it must also apply to the compelled production of testimony—
an outcome that we
have repeatedly rejected and which, if accepted, would send much of the field of criminal procedure into a tailspin. See,
e.g.,
United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)
(“It is clear that a subpoena to appear before a grand
jury is not a ‘seizure’ in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome”);
United
States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (“
Grand jury questions ... involve no independent
governmental invasion of one’s person, house, papers, or effects”). As a matter of original understanding, a subpoena
duces
tecum no more effects a “search” or “seizure” of papers within the meaning of the Fourth Amendment than a subpoena
ad
testificandum effects a “search” or “seizure” of a person.
2
All that the Court can say in response is that we have “been careful not to uncritically extend existing precedents” when
confronting new technologies. Ante, at 2222. But applying a categorical rule categorically does
not “extend” precedent, so the
Court’s statement ends up sounding a lot like a tacit admission that it is overruling our precedents.
3
See, e.g., Freedom of Information Act, 5 U.S.C. § 552(a) ( “Each agency shall make available to the public information as follows
...”); Privacy Act, 5 U.S.C. § 552a(d)(1)
(“Each agency that maintains a system of records shall ... upon request by any individual to
gain ac
cess to his record or to any information pertaining to him which is contained in the system, permit him and upon his
request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion
thereof ...”); Fair Credit Reporting Act, 15 U.S.C. § 1681j(a)(1)(A)
(“All consumer reporting agencies ... shall make all disclosures
pursuant to section 1681g of this title once during any 12–
month period upon request of the consumer and without charge to
the consumer”); Right to Financial Privacy Act of 1978, 12 U.S.C. § 3404(c)
(“The customer has the right ... to obtain a copy of the
record which the financial institution shall keep of all instances in which the customer’s record is disclosed to a Governme
nt
authority pursuant to this section, including the identity of the Government authority to which such disclosure is made”);
Government in the Sunshine Act, 5 U.S.C. § 552b(f)(2) (“Copies of such transcript, or minutes, or a transcription of such recording
Carpenter v. U.S., 138 S.Ct. 2206 (2018)
201 L.Ed.2d 507, 86 USLW 4491, 18 Cal. Daily Op. Serv. 6081...
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
50
disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription”); Cable
Act, 47 U.S.C. § 551(d) (“
A cable subscriber shall be provided access to all personally identifiable information regarding that
subscriber which is collected and maintained by a cable operator”); Family Educational Rights and Privacy Act of 1974,
20 U.S.C. §
1232g(a)(1)(A)
(“No funds shall be made available under any applicable program to any educational agency or institution which
has a policy of
denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of
such agency or at such institution, as the case may be, the right to inspect and review the education records of their childr
en....
Each educa
tional agency or institution shall establish appropriate procedures for the granting of a request by parents for access
to the education records of their children within a reasonable period of time, but in no case more than forty-
five days after the
request has been made”).
4
See, e.g., Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g(b)(1) (“No funds shall be made available under any
appli
cable program to any educational agency or institution which has a policy or practice of permitting the release of education
records (or personally identifiable information contained therein other than directory information ...) of students without t
he
written consent of their parents to any individual, agency, or organization ...”); Video Privacy Protection Act,
18 U.S.C. §
2710(b)(1)
(“A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning
any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d)”); Driver Pri
vacy
Protection Act, 18 U.S.C. § 2721(a)(1) (“A State department of motor vehicles, and any officer, employee, or contra
ctor thereof,
shall not knowingly disclose or otherwise make available to any person or entity ... personal information ...”); Fair Credit
Reporting Act, 15 U.S.C. § 1681b(a)
(“[A]ny consumer reporting agency may furnish a consumer report under the following
circumstances and no other ...”); Right to Financial Privacy Act, 12 U.S.C. § 3403(a)
(“No financial institution, or officer,
e
mployees, or agent of a financial institution, may provide to any Government authority access to or copies of, or the
information contained in, the financial records of any customer except in accordance with the provisions of this chapter”);
Patient Safety and Quality Improvement Act, 42 U.S.C. § 299b–22(b)
(“Notwithstanding any other provision of Federal, State, or
l
ocal law, and subject to subsection (c) of this section, patient safety work product shall be confidential and shall not be
disclosed”); Cable Act, 47 U.S.C. § 551(c)(1)
(“[A] cable operator shall not disclose personally identifiable information concerning
any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as
are
necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator”).
5
Carpenter also cannot argue that he owns the cell-site records merely because they fall into the category of records referred to
as “customer proprietary network information.” 47 U.S.C. § 222(c)
. Even assuming labels alone can confer property rights,
nothing in this particular label indicates whether the “information” is “proprietary” to the “customer” or to the provider of t
he
“network.” At best, the phrase “customer proprietary network information” is ambiguous, and context makes clear that it refer
s
to the provider
‘s information. The Telecommunications Act defines the term to include all “information that relates to the
qu
antity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to
by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue o
f the
carrier-customer relationship.” 47 U.S.C. § 222(h)(1)(A). For Carpenter to be right, he must own not only the cell-site re
cords in
this case, but also records relating to, for example, the “technical configuration” of his subscribed service—
records that
presumably include such intensely personal and private information as transmission wavelengths, transport protocols, and lin
k
layer system configurations.
6
Thus, this is not a case in which someone has entrusted papers that he or she owns to the safekeeping of another, and it does not
involve a bailment. Cf. post, at 2268 - 2269 (GORSUCH, J., dissenting).
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
132 A.3d 986
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee
v.
Somwang Laos KAKHANKHAM, Appellant.
Submitted Jan. 28, 2015.
|
Filed Oct. 28, 2015.
Synopsis
Background: Defendant was convicted in the Court of
Common Pleas, Cumberland County, Criminal Division,
No. CP–21–CR–0003607–2012, Hess, J., of drug delivery
resulting in death, and he appealed.
Holdings: The Superior Court, No. 712 MDA 2014,
Stabile, J., held that:
[1]
statute, prohibiting drug delivery resulting in death,
was not unconstitutionally vague, and
[2]
defendant’s conduct satisfied both parts of the
causation test under statute.
Affirmed.
West Headnotes (17)
[1]
Criminal Law
Review De Novo
Analysis of the constitutionality of a criminal
statute, and whether the Commonwealth met its
prima facie case under the statute, are both
questions of law, and therefore, appellate court’s
standard of review is de novo.
Cases that cite this headnote
[2]
Criminal Law
Scope of Inquiry
Appellate court’s scope of review, to the extent
necessary to resolve the legal questions before
it, is plenary, i.e., appellate court may consider
the entire record before it.
Cases that cite this headnote
[3]
Constitutional Law
Presumptions and Construction as to
Constitutionality
Court presumes the statute to be constitutional
and will only invalidate it as unconstitutional if
it clearly, palpably, and plainly violates
constitutional rights.
Cases that cite this headnote
[4]
Constitutional Law
Avoidance of constitutional questions
Courts have the duty to avoid constitutional
difficulties, if possible, by construing statutes in
a constitutional manner.
Cases that cite this headnote
[5]
Constitutional Law
Constitutional Rights in General
Constitutional Law
Statutes in general
As a general proposition, statutory limitations on
citizens’ individual freedoms are reviewed by
courts for substantive
authority and content, in
addition to definiteness or adequacy of
expression.
Cases that cite this headnote
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
[6]
Constitutional Law
Certainty and definiteness; vagueness
Statute may be deemed to be unconstitutionally
vague if it fails in its definiteness or adequacy of
statutory expression, and this
void-for-vagueness doctrine, as it is
known,
implicates due process notions that a statute
must provide reasonable standards by which a
person may gauge his future conduct, i.e., notice
and warning. U.S.C.A. Const.Amend. 14.
2 Cases that cite this headnote
[7]
Constitutional Law
Particular offenses in general
Homicide
Constitutional and statutory provisions
Statute prohibiting drug delivery resulting in
death was sufficiently definite that ordinary
people could understand what conduct was
prohibited, and was not so vague that men of
common intelligence had to necessarily guess at
its meaning and differ as to its application.
18
Pa.C.S.A. § 2506.
3 Cases that cite this headnote
[8]
Constitutional Law
Particular offenses in general
Homicide
Constitutional and statutory provisions
Statute prohibiting drug delivery resulting in
death was not unconstitutionally vague, and
defendant failed to present any argument or
analysis on how the statute was vague as applied
to him; defendant intentionally dispensed,
delivered, gave or distribute
d heroin to victim,
and that victim died as a result of the heroin, and
defendant’s conduct was precisely what the
legislature intended to proscribe when it enacted
statute. 18 Pa.C.S.A. § 2506.
4 Cases that cite this headnote
[9]
Constitutional Law
Vagueness in General
Defendant who engages in some conduct that is
clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct
of others, and thus, court should examine the
co
mplainant’s conduct before analyzing other
hypothetical applications of the law.
Cases that cite this headnote
[10]
Homicide
Controlled substances
Statute prohibiting drug delivery resulting in
death defines the required mens rea for
establishing guilt, and the mental state required
is “intentionally” doing one of the acts described
therein, namely, administering, dis
pensing,
delivering, giving, prescribing, selling or
distributing any controlled substance or
counterfeit controlled substances.
18 Pa.C.S.A.
§ 2506.
7 Cases that cite this headnote
[11]
Constitutional Law
Particular offenses in general
Homicide
Constitutional and statutory provisions
Statute prohibiting drug delivery resulting in
death required a “but-
for” test of causation and,
thus, was not unconstitutionally vague as to the
level of causation necessary for guilt.
18
Pa.C.S.A. § 2506.
2 Cases that cite this headnote
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
[12]
Criminal Law
Criminal act or omission
Criminal causation requires the results of the
defendant’
s actions cannot be so extraordinarily
remote or attenuated that it would be unfair to
hold the defendant criminally responsible.
1 Cases that cite this headnote
[13]
Criminal Law
Acts prohibited by statute
Omission of an explicit mens rea element in a
criminal statute is not alone sufficient evidence
of the legislature’s plain intent to dispense with
a traditional mens rea requirement and impose
absolute criminal liability.
Cases that cite this headnote
[14]
Homicide
Controlled substances
Statute prohibiting drug delivery resulting in
death does not regulate conduct that is the
subject of the typical public welfare offense for
which the legislature imposes absolute criminal
liability (i.e
., traffic and liquor laws), and
instead, purpose of the statute is to criminalize
conduct not otherwise covered by the Crimes
Code, i.e., death resulting from using illegally
transferred drugs. 18 Pa.C.S.A. § 2506.
Cases that cite this headnote
[15]
Homicide
Controlled substances
Legislature did not intend to impose absolute
liability under statute prohibiting drug delivery
resulting in death, and instead, the mens rea
requirement is recklessness, i.e., death must be
at least “reckless.” 18 Pa.C.S.A. §§ 302(c)
,
(b)(3), 2506.
3 Cases that cite this headnote
[16]
Homicide
Controlled substances
Defendant’s conduct satisfied both parts of the
causation test under statute, prohibiting drug
delivery resulting in death; defendant “fronted”
victim a bundle of heroin, eight packets were
found next to the victim, two used and six
unused, and victim died of a hero
in overdose,
and but for defendant selling victim a bundle of
heroin, victim would not have died of a heroin
overdose, and victim’s death was a natural or
foreseeable consequence of defendant’s conduct.
18 Pa.C.S.A. § 2506.
2 Cases that cite this headnote
[17]
Criminal Law
Preliminary Proceedings
Once a defendant has gone to trial and has been
found guilty of the crime or crimes charged, any
defect in the preliminary hearing is rendered
immaterial.
Cases that cite this headnote
Attorneys and Law Firms
*988 Gregory B. Abein, Carlisle, for appellant.
Matthew P. Smith, Assistant District Attorney, Carlisle,
for Commonwealth, appellee.
BEFORE: MUNDY, STABILE, and FITZGERALD,
*
JJ.
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
Opinion
OPINION BY STABILE, J.:
Appellant, Somwang Laos Kakhankham, appeals from the
judgment of sentence entered April 1, 2014 in the Court
of Common Pleas of Cumberland County. For the reasons
stated below, we affirm.
The trial court summarized the relevant factual
background as follows:
*989 On February 6, 2012, [victim]
was found deceased in his home at
328 West Penn Street in the
borough of Carlisle. A search of
[victim]’s home resulted in the
discovery of a syringe, two (2)
empty bags, stamped with the name
Blackout, in addition to six (6) bags
of heroin, also stamped with the
name Blackout. A witness[, JL,]
told police officers that [Appellant]
entered [victim]’s home at
approximately 1 A.M. the day
[victim] was found. [Appellant]
told a second witness that
[Appellant] had provided the heroin
to [victim].
[1]
This same witness,
identified as DS, also purchased
$100 worth of heroin from
[Appellant,] which was stamped
with the name Blackout. The next
day, DS met with police officers to
conduct a controlled purchase of
heroin from [Appellant], during
which DS purchased two (2) bags
of Blackout-stamped heroin using
$40 of official funds. On February
8, 2012, a probation check of
[Appellant]’s residence found two
(2) bags of heroin stamped with the
name Blackout as well as $656 in
cash which contained the $40 in
official funds from the prior day’s
controlled purchase. On February
16, 2012, a third witness told police
[that he, the witness] had purchased
heroin with the stamp Blackout
from [Appellant]. [Another
witness, witness number four,]
additionally told the police that
[Appellant] told them he provided
the heroin to [victim].
[2,3]
Finally, a
Cumberland County Coroner’s
report dated October 4, 2012 stated
that the level of morphine in
[victim]’s bloodstream was 295
nanograms per millimeter. Heroin
metabolizes into morphine upon
being absorbed by the body. The
therapeutic level for morphine is
ten (10) nanograms per millimeter.
The level of metabolized heroin
was the cause of [victim]’s death.
Trial Court Opinion, 8/4/14, 1–3 (citation to stipulated
record omitted).
As a result, Appellant was charged with drug delivery
resulting in death, 18 Pa.C.S.A. § 2506, and possession of
a controlled substance with intent to deliver, 35 P.S. §
780–113(a)(30)
. Following a preliminary hearing,
Appellant filed a petition for writ of habeas corpus
alleging that the Commonwealth “failed to present
sufficient evidence to establish a prima facie case of the
elements of [18 Pa.C.S.A. § 2506,]” requiring dismissal
of the charges. Petition for Writ of Habeas Corpus,
8/28/14, at 1. After a hearing, the court denied the
petition. See Order of Court, 12/18/13.
Following a trial,
4
Appellant was found guilty of drug
delivery resulting in death. 18 Pa.C.S.A. § 2506. The trial
court sentenced Appellant, inter alia, to 78 months to 156
months’ imprisonment. This appeal followed.
Appellant raises the following issues for our review:
1. Did the [h]abeas and [t]rial courts err in finding
Pennsylvania’s [d]rug [d]elivery [r]esulting in
[d]eath [s]tatute (18 Pa.C.S.A. § 2506) not *990
unconstitutionally vague when (1) the statute fails to
clearly indicate the requisite mens rea for conviction,
and (2) the statute fails to clearly indicate the
requisite level of causation for the result-of-conduct
element, and the vagueness of the statute will result
in arbitrary and discriminatory enforcement of the
law?
2. Did the [h]abeas and [t]rial courts err in finding
the Commonwealth established a prima facie case
when the Commonwealth did not present any
evidence related to [Appellant]’s culpability
regarding the result-of-conduct element of
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
Pennsylvania’s [d]rug [d]elivery [r]esulting in
[d]eath [s]tatute (18 Pa.C.S.A. § 2506)?
Appellant’s Brief at 4.
In his brief, Appellant essentially asks us to “measure the
challenged statutory proscription, not against the specific
conduct involved in this case, but against hypothetical
conduct that the statutory language could arguably
embrace.” Commonwealth v. Heinbaugh, 467 Pa. 1, 354
A.2d 244, 245 (1976)
. However, “[i]t is well established
that vagueness challenges to statutes which do not involve
First Amendment freedoms must be examined in the light
of the facts of the case at hand.” Id. (quotation omitted).
“Therefore, we will address the alleged vagueness of §
[2506] as it applies to this case.” Commonwealth v.
Mayfield, 574 Pa. 460, 832 A.2d 418, 422 (2003).
[1]
[2]
We review Appellant’s claims under the following
standard:
Analysis of the constitutionality of
a statute, and whether the
Commonwealth met its prima facie
case under Section 2506, are both
questions of law, therefore, our
standard of review is de novo.
Commonwealth v. MacPherson,
561 Pa. 571, 752 A.2d 384, 388
(2000)
; Pa.R.A.P. 2111(a)(2). Our
scope of review, to the extent
necessary to resolve the legal
questions before us, is plenary, i.e.,
we may consider the entire record
before us.
Buffalo Township v.
Jones, 571 Pa. 637, 813 A.2d 659,
664 n. 4 (2002)
; Pa.R.A.P.
2111(a)(2).
Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623, 628
n. 5 (2005).
[3]
[4]
[5]
[6]
In reviewing challenges to the constitutionality
of a statute, and in particular whether a statute is
unconstitutionally vague,
[we presume the statute] to be constitutional and will
only be invalidated as unconstitutional if it “clearly,
palpably, and plainly violates constitutional rights.”
[MacPherson, 752 A.2d at 388] (citation omitted).
Related thereto, courts have the duty to avoid
constitutional difficulties, if possible, by construing
statutes in a constitutional manner.
Harrington v. Dept.
of Transportation, Bureau of Driver Licensing, 563 Pa.
565, 763 A.2d 386, 393 (2000)
; see also 1 Pa.C.S. §
1922(3) (setting forth the presumption that the General
Assembly does not intend to violate the Constitution of
the United States or of this Commonwealth).
Consequently, the party challenging a statute’s
constitutionality bears a heavy burden of persuasion.
MacPherson, 752 A.2d at 388.
Turning to the constitutional challenge raised in this
appeal, as a general proposition, statutory limitations
on our individual freedoms are reviewed by courts for
substantive authority and content, in addition to
definiteness or adequacy of expression. See, Kolender
v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75
L.Ed.2d 903 (1983). A statute may be deemed to be
unconstitutionally vague if it fails in its definiteness or
adequacy of *991 statutory expression. This
void-for-vagueness doctrine, as it is known, implicates
due process notions that a statute must provide
reasonable standards by which a person may gauge his
future conduct, i.e., notice and warning. Smith v.
Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 39 L.Ed.2d
605 (1974); [Heinbaugh, 354 A.2d at 246].
Specifically with respect to a penal statute, our Court
and the United States Supreme Court have found that to
withstand constitutional scrutiny based upon a
challenge of vagueness a statute must satisfy two
requirements. A criminal statute must “define the
criminal offense with sufficient definiteness that
ordinary people can understand what conduct is
prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Kolender,
461 U.S. at 358, 103 S.Ct. 1855; [
Mayfield, 832 A.2d at
422]; Commonwealth v. Mikulan, 504 Pa. 244, 470
A.2d 1339, 1342 (1983); see also Heinbaugh, 354 A.2d
at 246; see generally Goldsmith, THE
VOID–FOR–VAGUENESS DOCTRINE IN THE
SUPREME COURT, REVISITED, 30 Am. J.Crim. L.
279 (2003).
In considering these requirements, both High Courts
have looked to certain factors to discern whether a
certain statute is impermissibly vague. For the most
part, the Courts have looked at the statutory language
itself, and have interpreted that language, to resolve the
question of vagueness. See Kolender, 461 U.S. at 358,
103 S.Ct. 1855; Mayfield, 832 A.2d at 422
;
Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217,
220 (2000). In doing so, however, our Court has
cautioned that a statute “is not to be tested against
paradigms of legislative draftsmanship,” Heinbaugh,
354 A.2d at 246, and thus, will not be declared
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
unconstitutionally vague simply because the
Legislature could have “chosen ‘clear and more precise
language’....” Id. (citation omitted). The Courts have
also looked to the legislative history and the purpose in
enacting a statute in attempting to discern the
constitutionality of the statute. See United States Civil
Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413
U.S. 548, 570–575, 93 S.Ct. 2880, 37 L.Ed.2d 796
(1973); Cotto, 753 A.2d at 221
. Consistent with our
prior decisions, as well as United States Supreme Court
case law, we will first consider the statutory language
employed by the General Assembly in determining
whether Section 2506 is unconstitutionally vague.
Ludwig, 874 A.2d at 628–29 (footnote omitted).
The statute challenged here, Section 2506, reads as
follows:
(a) Offense defined.—A person commits a felony of
the first degree if the person intentionally administers,
dispenses, delivers, gives, prescribes, sells or
distributes any controlled substance or counterfeit
controlled substance in violation of section 13(a)(14) or
(30) of the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug, Device and
Cosmetic Act, and another person dies as a result of
using the substance.
(b) Penalty.—A person convicted under subsection (a)
shall be sentenced to a term of imprisonment which
shall be fixed by the court at not more than 40 years.
18 Pa.C.S.A. § 2506 (2011).
[7]
[8]
The crime described above consists of two principal
elements:
5
(i) [i]ntentionally *992 administering,
dispensing, delivering, giving, prescribing, selling or
distributing any controlled substance or counterfeit
controlled substance and (ii) death caused by (“resulting
from”) the use of that drug. “It is sufficiently definite that
ordinary people can understand what conduct is
prohibited, and is not so vague that men of common
intelligence must necessarily guess at its meaning and
differ as to its application.” Mayfield, 832 A.2d at 423
(internal quotation marks and citations omitted). As
applied to Appellant, Section 2506 could not be any
clearer. The record shows that Appellant intentionally
dispensed, delivered, gave or distributed heroin to victim,
and that victim died as a result of the heroin. See N.T.
Stipulated Record, 1/14/14, at 6–7; see also Trial Court
Opinion, 8/4/14, at 4. Appellant’s conduct is precisely
what the legislature intended to proscribe when it enacted
Section 2506. Accordingly, Section 2506 is not
unconstitutionally vague.
[9]
We do not need to address Appellant’s argument
advocating possible interpretations of Section 2506. “[An
appellant] who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others. A court should therefore
examine the complainant’s conduct before analyzing
other hypothetical applications of the law.”
Commonwealth v. Costa, 861 A.2d 358, 362
(Pa.Super.2004) (quoting Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102
S.Ct. 1186, 71 L.Ed.2d 362 (1982)). “In cases that do not
implicate First Amendment freedoms, facial vagueness
challenges may be rejected where an appellant’s conduct
is clearly prohibited by the statute in question.” Id. (citing
Mayfield, 832 A.2d at 467–68). Because Appellant failed
to present any argument or analysis on how the statute
was vague as applied to him, he is not entitled to relief.
See Costa, 861 A.2d at 365.
To the extent we can construe Appellant’s argument as an
as-applied challenge, we would nonetheless find the
statute is not unconstitutionally vague.
[10]
Appellant argues the statute is vague as to the mens
rea for the offense. We disagree. The statute is as clear
and direct as a statute can be. The mental state required is
“intentionally” doing one of the acts described therein,
namely, administering, dispensing, delivering, giving,
prescribing, selling or distributing any controlled
substance or counterfeit controlled substances.
Additionally, the Crimes Code defines “intentionally” as
follows:
(1) A person acts intentionally with respect to a
material element of an offense when:
(i) if the element involves the nature of his conduct or a
result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances,
he is aware of the existence of such circumstances or he
believes or hopes that they exist.
18 Pa.C.S.A. § 302(b)(1).
Thus, under the statute, the first element of the crime is
met if one “intentionally” administers, dispenses, delivers,
gives, prescribes, sells or distributes any controlled
substance or counterfeit controlled substances. The first
challenge is, therefore, meritless because the statute
clearly defines the required mens rea for establishing guilt
under Section 2506.
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
[11]
[12]
Appellant next argues the statute is unconstitutional
because it is vague as to the level of causation necessary
for guilt. We disagree. The statute uses the *993 phrases
“results from,” a concept which is defined also in the
Crimes Code.
6
Section 303 of the Crimes Code, in
relevant part, provides:
Causal relationship between conduct and result
(a) General rule.—Conduct is the cause of a result
when:
(1) it is an antecedent but for which the result in
question would not have occurred; and
(2) the relationship between the conduct and result
satisfies any additional causal requirements imposed
by this title or by the law defining the offense.
18 Pa.C.S.A. § 303(a).
7
The statute, therefore, is clear
as to the level of causation. It requires a “but-for” test
of causation. Additionally, criminal causation requires
“the results of the defendant’s actions cannot be so
extraordinarily remote or attenuated that it would be
unfair to hold the defendant criminally responsible.”
Commonwealth v. Nunn, 947 A.2d 756, 760
(Pa.Super.2008) (citing Commonwealth v. Rementer,
410 Pa.Super. 9, 598 A.2d 1300, 1305 (1991)
, appeal
denied, 533 Pa. 599, 617 A.2d 1273 (1992)); see also
18 Pa.C.S.A. § 303(b)–(c);
Commonwealth v. Devine,
26 A.3d 1139 (Pa.Super.2011). Thus, Section 2506 is
not unconstitutionally vague as to the causal
relationship under Section 2506 necessary to impose
criminal liability.
8
Appellant also argues that Section 2506 could be read to
subject the second element of the crime (“results from”)
to the same mens rea required for the first element
(conduct), i.e., “intentionally.”
9
As noted by the learned
trial court, such a reading would make Section 2506
superfluous, for intentionally causing the death of another
person is already criminalized (i.e., first degree murder).
See Trial Court Opinion, 8/7/14, at 4 n. 2.
*994 Appellant finally argues Section 2506 can also be
read not to require any mens rea as to the second element
of the crime. It would be, in essence, a case of absolute
liability. The trial court disagreed with this potential
reading of the provision, noting that strict liability
criminal statutes are generally disfavored.
10
The trial court
found that the mere absence of an explicit mens rea
requirement should not be read as an indication that the
legislature intended to create a strict liability statute.
According to the trial court, Section 302(c) provides the
culpability requirement for the second element of the
crime, i.e., death must be intentional, knowing, or
reckless. 18 Pa.C.S.A. § 302(c).
11
In support, the trial
court notes two statutes, as currently interpreted, provide
support for its conclusion, namely 75 Pa.C.S.A. § 3735
(relating to homicide by vehicle while driving under the
influence) and 18 Pa.C.S.A. § 2502(b) (relating to murder
of the second degree). These statutes, according to the
trial court, while they do not require any specific mens
rea as to the result, are not interpreted as imposing
absolute criminal liability.
While Section 302 of the Crimes Code provides default
culpability standards to be applied where such standards
are not provided, this provision is not applicable to
summary offenses and offenses wherein the legislature’s
intent to impose absolute liability “plainly appears.” 18
Pa.C.S.A. § 305(a)(2).
12
The issue here is whether it
plainly appears the legislature intended not to subject the
second element of Section 2506 (“results from”) to any
mens rea.
[13]
No intent to impose absolute liability plainly appears
in Section 2506. “The omission of an explicit mens rea
element in a criminal statute is not alone sufficient
evidence of the legislature’s plain intent to dispense with
a traditional mens rea requirement and impose absolute
criminal liability.” Commonwealth v. Parmar, 551 Pa.
318, 710 A.2d 1083, 1089 (1998)
(OISA) (citation
omitted); see also Commonwealth v. Gallagher, 592 Pa.
262, 924 A.2d 636, 638–39 (2007). In the absence of
plain legislative intent, “we must consider the purpose for
the ... statute[ ], the severity of punishment and its effect
on the defendant’s reputation and, finally, the *995
common law origin of the crimes to determine whether
the legislature intended to impose absolute criminal
liability.” Parmar, 710 A.2d at 1089.
13
[14]
[15]
Section 2506 does not regulate conduct “that is the
subject of the typical public welfare offense for which the
legislature imposes absolute criminal liability” (i.e.,
traffic and liquor laws). Id. The purpose of the statute is to
criminalize conduct not otherwise covered by the Crimes
Code, i.e., death resulting from using illegally transferred
drugs. See Legislative Journal—House (2011) pages
757–58. The penalty imposed for its violation, i.e., a
sentence of imprisonment of up to 40 years, is clearly
serious. Finally, the common law origin of the crime
involved (homicide), traditionally has a mens rea
requirement. These considerations strongly indicate that
the legislature did not intend to impose absolute liability
as to the second element of Section 2506. Accordingly,
we conclude Section 302(c)
provides the mens rea
requirement for the second element of Section 2506, i.e.,
death must be at least “reckless.” 18 Pa.C.S.A. § 302(c).
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
The Crimes Code defines “recklessly” as follows:
A person acts recklessly with
respect to a material element of an
offense when he consciously
disregards a substantial and
unjustifiable risk that the material
element exists or will result from
his conduct. The risk must be of
such a nature and degree that,
considering the nature and intent of
the actor’s conduct and the
circumstances known to him, its
disregard involves a gross deviation
from the standard of conduct that a
reasonable person would observe in
the actor’s situation.
18 Pa.C.S.A. § 302(b)(3).
Additionally, when recklessly causing a particular result
is an element of an offense,
the element is not established if the actual result is not
within the risk of which the actor is aware or, in the
case of negligence, of which he should be aware unless:
(1) the actual result differs from the probable result
only in the respect that a different person or different
property is injured or affected or that the probable
injury or harm would have been more serious or more
extensive than that caused; or
(2) the actual result involves the same kind of injury or
harm as the probable result and is not too remote or
accidental in its occurrence to have a bearing on the
liability of the actor or on the gravity of his offense.
18 Pa.C.S.A. § 303(c).
[16]
Here, Appellant “fronted” victim a bundle of heroin.
Eight packets were found next to the victim, two used and
six unused. Victim died of a heroin overdose. Appellant’s
conduct, therefore, satisfied both parts of the causation
test. See Pa.C.S.A. § 303; Devine, supra; Nunn, supra.
But for Appellant selling victim a bundle of heroin, victim
would not have died of a heroin overdose. Victim’s death
was a natural or foreseeable consequence of Appellant’s
conduct.
[I]t is certain that frequently harm
will occur to the buyer if one sells
heroin. Not only is it criminalized
because of the great risk of harm,
but in this day and age, everyone
realizes the dangers of heroin use.
It cannot be said that [unauthorized
*996 heroin provider] should have
been surprised when [victim]
suffered an overdose and died.
While not every sale of heroin
results in an overdose and death,
many do.
Minn. Fire and Cas. Co. v. Greenfield, 805 A.2d 622, 624
(Pa.Super.2002), aff’d, 579 Pa. 333, 855 A.2d 854 (2004).
On appeal, then-Justice Castille noted:
Although the overwhelming majority of heroin users do
not die from a single injection of the narcotic, it
nevertheless is an inherently dangerous drug and the
risk of such a lethal result certainly is foreseeable. See
Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714,
718 (1973) (plurality opinion) (“although we recognize
heroin is truly a dangerous drug, we also recognize that
the injection of heroin into the body does not generally
cause death”). The intravenous self-administration of
illegally-purchased heroin ... is a modern form of
Russian roulette. Indeed, that is one of the reasons the
drug is outlawed and why its use, no less than its
distribution, is so heavily punished.
..........
. The General Assembly has classified heroin as a
Schedule I controlled substance, which is the most
serious of designations, and carries the heaviest of
punishments. See 35 P.S. § 780–104(1)(ii)(10). A drug
falls within this schedule because of its “high potential
for abuse, no currently accepted medical use in the
United States, and a lack of accepted safety for use
under medical supervision.” Id. § 780–104(1).
Minn. Fire and Cas. Co. v. Greenfield, 579 Pa. 333, 855
A.2d 854, 870–71 (2004) (Castille, J., concurring).
14
Accordingly, we conclude that reckless conduct, such as
that in this case, may result in criminal liability under
Section 2506.
[17]
Finally, Appellant argues that the Commonwealth did
not establish a prima facie case at the preliminary hearing,
and that the trial court erred in finding otherwise. The
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
claim fails. It is well-known that any defect in the
preliminary hearing is cured by subsequent trial. “Once a
defendant has gone to trial and has been found guilty of
the crime or crimes charged, however, any defect in the
preliminary hearing is rendered immaterial.”
Commonwealth v. Melvin, 103 A.3d 1, 35
(Pa.Super.2014) (citation omitted).
Judgment of sentence affirmed.
All Citations
132 A.3d 986
Footnotes
*
Former Justice specially assigned to the Superior Court.
1
“During the purchase, [Appellant] told the witness, DS, that he had fronted the victim heroin the day before his death.” N.T.
Stipulated Record, 1/14/14, at 6.
2
Appellant “told this witness that [Appellant] had supplied the victim with the heroin that resulted in victim’s death.” N.T.
Stipulated Record, 1/14/14, at 7.
3
Another witness, witness number five, stated that Appellant stated to the witness that “he had fronted the victim a bundle of
heroin stamped Blackout.” N.T. Stipulated Record, 1/14/14, at 8.
4
Appellant’s trial consisted of a stipulated record whereby the district attorney read into the record the facts of the case. See Trial
Court Opinion, 8/4/14, at 1.
5
See also the Pennsylvania Suggested Jury Criminal Instructions 15.2506.
6
“Where there is no textual or contextual indication to the contrary, courts regularly read phrases like ‘results from’ to require
but-for causality.” Burrage v. United States, ––– U.S. ––––, 134 S.Ct. 881, 888, 187 L.Ed.2d 715 (2014).
18 Pa.C.S.A. § 303(a)(1)
“establishes the ‘but-for’ test of causation. Under existing law causation is established if the actor commits an act or sets of
f a
chain of events from which in the common experience of mankind the result is natural or reasonably foreseeable.”
18 Pa.C.S.A. §
303, Comment.
7
Subsection 303(a)(2) is not applicable here because there is no additional causal requirement imposed by Title 18 or Section
2506.
8
In this context, Appellant argues that the “Commonwealth failed to present any evidence that heroin was the sole or even the
primary cause of [victim’s] death.” Appellant’s Brief at 13. Appellant fails to recognize that he stipulated that heroin caus
ed the
victim’s death. See Stipulated Record, 1/14/14, at 8. We also note that:
Defendant’
s conduct need not be the only cause of the victim’s death in order to establish a causal connection. Criminal
responsibility may be properly assessed against an individual whose conduct was a direct and substantial factor in producing
the death even though other factors combined with that conduct to achieve the result.
Nunn, 947 A.2d at 760 (citations and quotations marks omitted). Here, as noted, Appellant stipulated that he “
fronted” a
bundle of heroin and that the victim died of a heroin overdose. Appellant’s criminal liability for the victim’s death cannot
be
any clearer.
9
See Section 302(d):
Prescribed culpability requirement applies to all material elements.—
When the law defining an offense prescribes the kind
of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements
thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.
18 Pa.C.S.A. 302(d).
10
See Costa, supra:
Absolute criminal liability statutes are an exception to the centuries old philosophy of criminal law that imposed criminal
responsibility only for an act coupled with moral culpability. A criminal statute that imposes absolute liability typically
Com. v. Kakhankham, 132 A.3d 986 (2015)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
involves regulation of traffic or liquor laws. Such so-called statutory crimes are in reality an attempt to utilize the machinery
of criminal administration as an enforcing arm for social regulation of a purely civil nature, with the punishment totally
unrelated to questions of moral wrongdoing or guilt.
Costa, 861 A.2d at 363–64 (citation omitted).
11
Section 302(c) reads as follows: “When the culpability sufficient to establish a material element of an offense is not prescribed by
law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.” 18 Pa.C.S.A. § 302(c)
.
12
Section 305(a) reads as follows:
(a) When culpability requirements are inapplicable to summary offenses and to offenses defined by other statutes.—
The
requirements of culpability prescribed by section 301 of this title (relating to requirement of voluntary act) and
section 302
of this title (relating to general requirements of culpability) do not apply to:
(1) summary offenses, unless the requirement involved is included in the definition of the offense or the court determines
that its application is consistent with effective enforcement of the law defining the offense; or
(2) offenses defined by statutes other than this title, in so far as a legislative purpose to impose absolute liability for s
uch
offenses or with respect to any material element thereof plainly appears.
18 Pa.C.S.A. § 305(a).
13
See also Commonwealth v. Gallagher, 874 A.2d 49, 52 n. 3 (Pa.Super.2005), aff’d, 592 Pa. 262, 924 A.2d 636 (2007); Costa, 861
A.2d at 363–64 (Pa.Super.2004).
14
See also Commonwealth v. Catalina, 407 Mass. 779, 556 N.E.2d 973, 980 (1990) (“[O]ne can reasonably conclude that the
consumption of heroin i
n unknown strength is dangerous to human life, and the administering of such a drug is inherently
dangerous and does carry a high possibility that death will occur.”)
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
KeyCite Yellow Flag - Negative Treatment
Declined to Extend by Duvall v. State, Ark.App., February 28, 2018
630 Pa. 374
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant
v.
Amy N. KOCH, Appellee.
Argued Oct. 16, 2012.
|
Resubmitted Feb. 19, 2014.
|
Decided Dec. 30, 2014.
No. 45 MAP 2012, Appeal from the order of Superior
Court at No. 1669 MDA 2010, entered 09–16–2011,
reconsideration denied 11–22–2011, reversing and
remanding the judgment of sentence of the Cumberland
County Court of Common Pleas, Criminal Division, at
No. CP–21–CR–2876–2009, dated 07–20–2010, J.
Wesley Oler, Jr., J.
Attorneys and Law Firms
David James Freed, Esq., Matthew Peter Smith, Esq.,
Cumberland County District Attorney’s Office, for
Commonwealth of Pennsylvania.
Michael Oresto Palermo Jr., Esq., Carlisle, Palermo Law
Offices, for Amy N. Koch.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD,
STEVENS, JJ.
ORDER
PER CURIAM.
*375AND NOW, this 30th day of December, 2014, the
Court being evenly divided, the Order of the Superior
Court is AFFIRMED.
Chief Justice CASTILLE files an opinion in support of
affirmance in which Justices BAER and TODD join.
Justice SAYLOR files an opinion in support of reversal.
Justice EAKIN files an opinion in support of reversal in
which Justice STEVENS joins.
**706 Chief Justice CASTILLE, in support of affirmance.
This discretionary appeal concerns the proper manner in
which cell phone text messages can be authenticated and
whether and when such messages are inadmissible
hearsay. The trial court admitted the messages as
sufficiently authenticated and not hearsay; the Superior
Court reversed on both grounds in a unanimous published
opinion that ordered a new trial. This Court accepted the
Commonwealth’s appeal, but has evenly divided. For the
reasons set forth below, we would affirm.
*376 On March 14 and 24, 2009, North Middleton
Township Police Officer Richard Grove and another
officer, acting on suspicion that unlawful controlled
substances were present and that drug sales activity was
being transacted, conducted “trash pulls” of discarded
garbage at a residence lived in by Amy Koch (appellee),
her boyfriend, Dallas Conrad, and her brother, Norman
Koch, also known as “Matt.” Appellee’s brother was the
original target of the officers’ suspicions after a
confidential informant indicated that he was living at the
residence and selling cocaine from his car. Based upon
evidence recovered from the trash pulls, including plastic
“baggies” containing residue of both cocaine and
marijuana, the police obtained a search warrant, which
was served and executed at appellee’s residence on March
25, 2009, by Officer Grove and North Middleton
Township Police Detective Timothy Lively. During the
search, the officers found two baggies, each containing
roughly ten grams of marijuana, and $700 cash in the
drawer of a dresser in the master bedroom; in a shoebox
on top of the same dresser, the officers found a used
“bong,” two marijuana pipes, a grinder (commonly used
to separate marijuana seeds and stems from the leaves that
are smoked), an open package of “Philly Blunts,” empty
baggies of various sizes, and the “end portion of a joint.”
Searching the basement of the residence, the officers
found a small bag of marijuana inside a freezer and a
“bud” of marijuana in a small woven basket.
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
During the search, the officers also found a used
marijuana pipe and an electronic scale covered with
marijuana residue on top of the refrigerator in the kitchen.
Detective Lively looked for cell phones in the residence
because drug dealers and users commonly use cell phones
to communicate and arrange transactions. He seized two
cell phones, one of which he found on the kitchen table
near where appellee was during the search; appellee asked
him several times “why her cell phone was being taken.”
Appellee was arrested, along with Dallas Conrad and
Norman Koch.
After obtaining a warrant, Detective Lively searched for
drug-related communications and information on
appellee’s *377 cell phone. He read text messages stored
on the phone, both sent and received, and transcribed the
messages that he considered to be indicative of drug sales
activity. These included the following outgoing messages,
which were sent between March 15 and 21, 2009:
To “Pam”: “I got a nice gram of that gd Julie to get
rid of dude didn’t have enuff cash so I had 2 throw in
but I can’t keep it 8og.”
To “Matt”: “Can I get that other o from u”
To “Tiff”: “Sorry I didn’t wait I wanted 2 smoke but
call me then if u r cuming out.”
To “Pam”: “Not lookn good on my end can u get a g
4 me”
To “Pam”: “no go 2 nite he only could split a ball w
me but I got a new hook up and its cheap”
**707 To “Brian”: “Call me I nd trees”
To “Pam”: “If do happen to cum across any 2 nite let
me know this is not that gr8”
Detective Lively subsequently testified at trial that he
believed these messages reflected drug sales activity due
to references he understood from his training and
experience: “Julie” refers to cocaine, an “O” is an ounce
of drugs, “G” is a gram of drugs, “trees” refers to
marijuana, and a “ball” is about 3.33 grams of cocaine, a
common quantity about the size of a pool ball, which is
also referred to as an “eight ball.”
Along similar lines, Detective Lively transcribed the
following incoming messages that were received on
appellee’s phone between March 18 and 21, 2009:
From “Tam”: “was wondering if u could hook me up
then after work”
From “Tam”: “cool I neED a half r u gonna text me
then”
From “Tam”: “cool when did u want me to come
out”
From “Pam”: “let me know asap”
From “Pam”: [17 minutes later] “sweet how much?”
From “Pam”: [3 minutes later] “K”
From “Pam”: [45 minutes later] “well?”
From “Pam”: [1 minute later] “k”
*378 From “Pam”: [33 minutes later] “hey u”
From “Pam”: [6 minutes later] “can u part with
any?”
From “Pam”: [2 minutes later] “tks tree looks good”
Detective Lively interpreted the messages from “Tam” as
drug-related, understanding “a half” to mean some
manner in which drugs are measured, such as a half an
ounce of marijuana, and the terms “hook me up” and
“come out” to be arrangements for a sale. Likewise,
Detective Lively concluded that the messages from
“Pam” reflected a request for a price and, ultimately, a
successful deal made for marijuana (“tree”) nearly two
hours later the same night.
In light of the foregoing, along with the physical evidence
recovered from the search, appellee was charged with
felony possession with intent to deliver (PWID)
marijuana, both as a principal and an accomplice;
criminal conspiracy with regard to the PWID charge; and
unlawful possession (of marijuana), a misdemeanor.
1
Dallas Conrad’s case was severed from appellee’s prior to
trial, and Norman Koch’s case concluded after a
preliminary hearing during which he pled guilty to
possession of drug paraphernalia, leaving appellee the
only defendant to stand trial.
At appellee’s jury trial in May 2010, the Commonwealth
called Officer Grove, who testified to the physical
evidence of drug activity-marijuana, cash, baggies, and
scales—that was found during the search; a forensic
chemistry expert who confirmed that the confiscated
substances were marijuana; and Detective Lively. When
the prosecutor began to question Detective Lively about
his interpretation of the text messages on appellee’s cell
phone, defense counsel, at sidebar, objected to the
messages as hearsay, describing them as “unreliable
because the phone was shared between two people” and
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
protesting against the detective “read[ing] a conversation
between two people that have not been called as a witness
[sic].... He cannot testify to the contents of ... a text
message if he wasn’t a party to it.” The prosecutor
responded *379 that the messages were not hearsay
because their import was only “ that **708 these things
were said on this phone ... and that these [statements]
would constitute drug receipts, drug statements, and
orders.” N.T., Trial, 5/26/10, at 10–75.
The court ruled that Detective Lively could testify about
his impression of the messages on appellee’s phone to
show that, in the prosecutor’s words, “[appellee’s] phone
was used in drug transactions, and, therefore, it makes it
more probable than not when [appellee] possessed this
marijuana that she did so with the intent to deliver as
opposed to personal use.” Defense counsel reiterated his
objection, arguing that admission of the contents of the
messages invited speculation by the jury as to “who is
making those calls,” and was prejudicial to appellee in
regards to both the PWID and conspiracy charges. The
court overruled appellee’s objection but agreed to provide
a cautionary instruction based on the outcome of
Detective Lively’s testimony regarding the text messages.
Id. at 76–79.
Thereafter, Detective Lively read aloud and discussed the
text messages and his understanding that they were
related to drug sales activity; the messages were referred
to neutrally as appearing on “this phone” as opposed to
“appellee’s phone” or to or from appellee herself. The
detective’s substantive testimony during direct
examination focused on terms used in the text messages
and his opinion of their drug-related meanings, such as
“g’s” and “o’s” for grams and ounces, “Julie” for cocaine,
“ball” for an “8–ball” of cocaine. Id. at 80–89.
During cross-examination, appellee elicited the
detective’s admission that he had not followed up by
attempting to contact the purported recipients and authors
of the text messages, whose numbers were in the phone,
in order to ascertain whether appellee or someone else
was the correspondent. Id. at 105–06. During both direct
and cross-examination, Detective Lively testified that
although the messages were in a phone that appellee had
asserted she owned, he could not determine whether
appellee had been the correspondent in the purported drug
sales messages. At least one outgoing message, although
non-incriminating in its content, suggested that appellee
was not the author of certain messages, *380 since
appellee was referred to in the third person in an exchange
concerning a baked goods fundraiser: “Let me know total,
and I’ll give [appellee] money 4 u.” Id. at 82–84, 92,
103–06, 128–29. Appellee did not take the stand in her
own defense.
The jury convicted appellee of felony PWID (as an
accomplice) and the misdemeanor possession charge (also
as an accomplice), but found her not guilty of the
conspiracy charge. Appellee filed a post-verdict motion
challenging admission of the content of the text messages
as inadmissible hearsay. The motion also reiterated
appellee’s objection regarding authorship of the
messages, arguing that the messages were “inherently
unreliable as there is no competent way for a jury to
decide which messages came from which sender [i.e.,
appellee or Dallas [Conrad]].” Post–Verdict Motion,
6/4/10, at 2. The trial court denied appellee’s post-verdict
motion and sentenced her to 23 months of supervised
probation. Appellee appealed to the Superior Court and
filed a statement pursuant to Pa.R.A.P. 1925(b), again
challenging admission at trial of the text messages as
unauthenticated and hearsay, and also challenging the
sufficiency and weight of the evidence supporting her
convictions.
In its Pa.R.A.P. 1925(a) opinion, the trial court noted the
dearth of contemporary Pennsylvania case law on the
authentication of electronic and wireless communications,
but then opined that the Commonwealth had presented
sufficient **709 circumstantial evidence to establish the
authenticity of the messages, as required by Rule of
Evidence 901 (“Authenticating or Identifying
Evidence”).
2
According to the court, the possibility that
someone other than appellee was the author of all, some,
or any of the outgoing drug-sales-related text messages
went to the weight of the evidence. Trial Ct. Op.,
11/30/10, at 12–13.
*381 Turning to appellee’s claim that the text messages
were inadmissible hearsay, the trial court stated that the
messages were not admitted to prove the truth of the
matter asserted, but to demonstrate an operative fact of
the crime of PWID—that appellee was sending and
receiving communications intended to facilitate drug sales
activity. The trial court finally addressed appellee’s
sufficiency and weight claims, stating that while the
evidence was largely circumstantial, it was sufficient to
support appellee’s convictions and that the convictions
were not against the weight of the evidence. Id. at 13–17.
In her brief to the Superior Court, appellee pursued both
her sufficiency claim, arguing that the uncertain
authorship of the text messages rendered the evidence
insufficient to prove PWID, and her challenge to the
admissibility of the text messages. Appellee also claimed
that the text messages were improperly admitted because:
“Although the District Attorney was clear that the text
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
messages were not being offered for the truth of the
matter asserted, once admitted into evidence, the jury was
then left to guess at which if any text messages were sent
and received by [appellee] and then speculate on whether
or not [appellee] was involved with delivering narcotics.
In addition, certain text messages were clearly evidencing
drug transactions; it was not a coincidence that [appellee]
was then convicted of [PWID].” Appellee’s Brief to
Superior Court, at 16–20. In response, the Commonwealth
posited, as the trial court had, that questions of authorship
of the text messages went to the weight of the evidence.
Regarding appellee’s hearsay claim, the Commonwealth
hewed to its position that the messages were not admitted
to prove the truth of the matter asserted, but rather to
show appellee’s intentional involvement in selling drugs,
not through the messages’ content, but by the fact that she
was actively engaged in making arrangements using her
cell phone. Commonwealth’s Brief to Superior Court,
5/23/11, at 6–9.
In a unanimous published opinion authored by the
Honorable Mary Jane Bowes, Commonwealth v. Koch, 39
A.3d 996 (Pa.Super.2011), the Superior Court reversed
and remanded *382 for a new trial. The panel agreed with
the trial court that the Commonwealth’s evidence,
considered collectively, was sufficient to support the
PWID conviction. Nevertheless, the panel agreed with
appellee that the text messages should not have been
admitted at trial, and the error was not harmless; thus, a
new trial was warranted.Id. at 1001–07.
The panel believed that the question of what proof is
necessary to authenticate a text message raised an issue of
first impression in Pennsylvania and began its inquiry by
looking to cases involving other forms of electronic
communication, such as instant messages, which were at
issue in In re F.P., 878 A.2d 91 (Pa.Super.2005). Briefly,
in F.P., the Superior Court concluded that sufficient
evidence existed to authenticate and admit transcripts of
instant message exchanges between F.P. **710 and his
assault victim. F.P. referred to himself by his first name in
the exchanges and did not deny sending them during a
school mediation; in addition, details in the transcripts
foretold specifics about the dispute and the assault on the
victim. Id. at 93–95. Notably, the F.P. panel recognized
the difficulty in authenticating electronic communications
and the dearth of applicable precedent, but declined to
“create a whole new body of law just to deal with e-mails
or instant messages.” Rather, the court opined: “We
believe that e-mail messages and similar forms of
electronic communication can be properly authenticated
within the existing framework of Pa.R.E. 901 and
Pennsylvania case law.” Id. at 95–96.
In this case, the panel recognized that establishing
authorship of a text message can be difficult without
direct evidence or an admission by a correspondent, but
that circumstantial evidence, if sufficient, is also
acceptable, as a number of other states have held,
including cases the panel cited from North Dakota,
Maryland, Illinois, and North Carolina. Although text
messages are particular to the cell phone on which they
are received or from which they are sent, the panel
concluded that this fact alone is not sufficient, since it is
simple enough for another person to use one’s phone. And
in this case, the Commonwealth’s own witness, Detective
Lively, agreed that authorship was unknown. The
messages themselves did not *383 contain any
“contextual clues” like those in F.P., and the mere fact
that appellee admitted the phone itself was hers did not
establish that she had been an active correspondent in
these particular drug sales text messages. Thus, the panel
concluded that authentication—the Commonwealth’s
assertion that these messages were sent by appellee to
arrange and plan drug sales—had not been established.
Koch, 39 A.3d at 1003–05.
The panel decided that the text messages were also
inadmissible as hearsay that was not offered for any
reason other than to show the truth of the matter asserted
by the Commonwealth as to the content of the
messages—that appellee used her phone to conduct drug
sales and therefore possessed marijuana with the intent to
deliver it and not merely for personal use. The panel
added that the improper admission of the messages was
compounded by their being used as the basis for an expert
opinion by Detective Lively that appellee was using her
cell phone to arrange drug sales via text messaging. And,
according to the panel, the messages could not be
admitted under any recognized exception to the hearsay
rule. The panel again concluded that admission of the
unauthenticated hearsay messages was not harmless error:
“The prejudicial effect of the improperly admitted text
message evidence was so pervasive in tending to show
that [appellee] took an active role in an illicit enterprise
that it cannot be deemed harmless. Even with the
improperly admitted evidence, the jury only found
[appellee] liable as an accomplice.” For this independent
reason, the panel held that a new trial was required.Id. at
1005–07.
This Court granted the Commonwealth’s petition for
allowance of appeal, which challenged both of the
evidence-related grounds for the Superior Court’s grant of
a new trial. Commonwealth v. Koch, 615 Pa. 612, 44 A.3d
1147 (2012).
The standard of review governing evidentiary issues is
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
settled. The decision to admit or exclude evidence is
committed to the trial court’s sound discretion, and
evidentiary rulings will only be reversed upon a showing
that a court abused that discretion. A finding of abuse of
discretion may *384 not be made “merely because an
appellate **711 court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.”
Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636
(2010) (citation and quotation marks omitted); see also
Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 48
(2011). Matters within the trial court’s discretion are
reviewed on appeal under a deferential standard, and any
such rulings or determinations will not be disturbed short
of a finding that the trial court “committed a clear abuse
of discretion or an error of law controlling the outcome of
the case.” Commonwealth v. Chambers, 602 Pa. 224, 980
A.2d 35, 50 (2009) (jury instructions); see also
Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d
1086, 1095 (1998) (scope of cross-examination).
I. Authentication
We address authentication first because, logically, it is the
question precedent: if proffered evidence fails an
authentication challenge, meaning that its proponent
cannot prove that the evidence is what the proponent
claims it to be, the evidence cannot be admitted,
regardless of its potential relevance, and the hearsay
query is not reached.
The Commonwealth argues that the Superior Court
decision conflicts with Superior Court precedent,
specifically the statement in In re F.P., 878 A.2d at 96,
that: “[w]e see no justification for constructing unique
rules for admissibility of electronic communications such
as instant messages; they are to be evaluated on a
case-by-case basis as any other document to determine
whether or not there has been an adequate foundational
showing of their relevance and authenticity.” To the
Commonwealth, the panel decision here improperly
elevates the standard for authentication of electronic
communications, which often can only be established by
recourse to circumstantial evidence, to “prima facie
plus.” The Commonwealth also believes the panel
misread Rule of Evidence 901 and “infused”
authentication with relevancy in a manner likely to have a
far-ranging negative impact on prosecution of drug *385
(and other) offenses where electronic communications are
at issue. The Commonwealth asserts that while a
communication from a physically nebulous source, such
as an e-mail address or a phone number, may need
additional circumstantial evidence to establish
authenticity, this case involves a communication (text
message) from an actual physical source (cell phone) that
can be physically and directly attributed to the defendant
(appellee). According to the Commonwealth, text
messages require less support to be authenticated when
the phone itself is available and part of the evidence.
Here, the Commonwealth argues, there is no dispute that
appellee claimed the actual phone was hers during the
search, and when the messages were recovered from the
phone, there was sufficient evidence of authorship by
appellee to prove authentication. Commonwealth’s Brief
at 26–33.
Moreover, the Commonwealth avers, proof of authorship
of the messages here is not required because appellee was
charged as both a principal and an accomplice; thus, the
Commonwealth asserts, the crucial fact is not that
appellee did or did not write, send, and receive the drug
sales text messages, but that the actual physical phone she
acknowledged to be hers was used in drug transactions.
According to the Commonwealth, “[t]he texts were not
authenticated as ... authored by [appellee], but rather, as
the prosecutor stated at trial: ... to show that [appellee’s]
phone was used in drug transactions,” making it more
probable than not that appellee was **712 consciously
involved in the subject drug sales. Id. at 33–38.
Appellee disputes the claim that the panel’s decision
created an improperly heightened burden of proof.
Appellee asserts that, pursuant to Rule 901, all parties
must show that proposed evidence can be identified as
genuinely what the proponent claims it to be, here, drug
sales text messages sent and received by appellee on her
personal cell phone. Appellee adds that, the
Commonwealth’s case for authentication of the text
messages at trial revealed its own weakness when
Detective Lively conceded that someone other than
appellee likely authored at least some of the text
messages. Appellee avers *386 that the Commonwealth
was not held to a higher or “prima facie plus” standard,
but that it simply could not make a sufficient case to
satisfy Rule 901 that appellee herself was the author of
the incriminating text messages. Id. at 10–13.
Appellee further asserts that mere possession of a cell
phone does not prove authorship of text messages sent
from that phone, and additional evidence to corroborate
the identity of the sender, such as the context or content of
the messages themselves, if unique to the parties
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
involved, is needed for authentication. Appellee
concludes by stating that the drug sales text messages in
this case were never authenticated as having been written
by her, even though they were “in” her phone, and the
Superior Court properly found that their admission
against her as proof of intent to deliver was reversible
error by the trial court, warranting a new trial. Id. at
13–15.
As both lower courts recognized, communications
technology presents arguably novel questions with regard
to evidentiary issues like authenticity and hearsay. It
appears that there have been no further intermediate court
developments in this specific area since the Superior
Court’s opinion in this case was published.
Pennsylvania Rule of Evidence 901, adopted as part of the
Evidence Code promulgated in 1998, is titled
“Authenticating or Identifying Evidence,” and provides in
relevant part:
(a) In General. To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it
is.
(b) Examples. The following are examples only-not a
complete list-of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony
that an item is what it is claimed to be.
* * *
(4) Distinctive Characteristics and the Like. The
appearance, contents, substance, internal patterns, or
other distinctive *387 characteristics of the item, taken
together with all the circumstances.
Pa.R.E. 901(a) & (b).
3
Thus, evidence that cannot be
authenticated directly pursuant to subsection (1) may be
authenticated by other parts of section (b) of the Rule,
including circumstantial evidence pursuant to subsection
(4). In the context of a communication, subsection (4)’s
“distinctive characteristics” may include information
tending to specify an author-sender,
4
reference to or
correspondence with relevant **713 events that precede
or follow the communication in question, or any other
facts or aspects of the communication that signify it to be
what its proponent claims. Commonwealth v. Collins, 598
Pa. 397, 957 A.2d 237, 265–66 (2008). Authentication
generally entails a relatively low burden of proof; in the
words of Rule 901 itself, simply “evidence sufficient to
support a finding that the item is what the proponent
claims.” Pa.R.E. 901(a).
This Court has not yet spoken on the manner in which
text messages may be authenticated where, as here, there
is no first-hand corroborating testimony from either
author or recipient. We are mindful, however, that the
burden for authentication is low, and we agree with the
Justices writing in support of reversal that the trial court
did not abuse its discretion in finding that the
Commonwealth met the burden here, albeit we see the
question as close, and we view authorship as a potentially
relevant part of authentication analysis.
As a predicate matter, we also agree with the panel below
that modern communications technology can present
arguably novel questions with regard to evidentiary issues
like authenticity and hearsay. A handful of states’ high
courts have spoken on this issue since 2007, when the
Supreme Court of Rhode Island decided State v.
McLaughlin, 935 A.2d 938 (R.I.2007). In that case,
threatening text messages sent by the defendant to his
girlfriend were admitted at his probation violation
hearing, albeit with the caveat that “[s]trict application
*388 of the rules of evidence is not required at a
probation violation hearing.” Id. at 942. The messages
were authenticated by direct testimony from the recipient
herself. Rodriguez v. State, –––Nev. ––––, 273 P.3d 845
(2012), involved incriminating text messages sent from
the assault victim’s cell phone, which had been stolen
from her during the attack, to her boyfriend, who showed
them to police detectives. After considering a number of
cases from other states’ courts, including the Superior
Court’s opinion in this case, Nevada’s high court
concluded:
[E]stablishing the identity of the
author of a text message through
the use of corroborating evidence is
critical to satisfying the
authentication requirement for
admissibility. We thus conclude
that, when there has been an
objection to admissibility of a text
message, the proponent of the
evidence must explain the purpose
for which the text message is being
offered and provide sufficient
direct or circumstantial
corroborating evidence of
authorship in order to authenticate
the text message as a condition
precedent to its admission.
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
Id. at 849 (citations & footnote omitted). Other states’
high courts also call for direct or circumstantial
“corroborating evidence of authorship” to authenticate
text messages.
5
**714*389 On the other hand, one state’s highest court
has taken a position more aligned with that of the trial
court, which is that a text message may be authenticated
with only the cell phone number and possession of the
phone on which the message appears. See State v. Forde,
233 Ariz. 543, 315 P.3d 1200, 1220 (2014) (because both
sender and recipient were registered subscribers of phone
numbers and both possessed phones used to send and
receive, prosecution met its authentication burden).
In this case, the trial court shared Arizona’s simple and
permissive approach, while the Superior Court panel
below aligned itself with the growing number of
jurisdictions that require at least some corroboration of
authorship, whether direct or circumstantial. The
authentication inquiry will, by necessity, be fact-bound
and case-by-case, but, like courts in many other states, we
believe that authorship is relevant to authentication,
particularly in the context of text messages proffered by
the government as proof of guilt in a criminal prosecution.
This is not an elevated “prima facie plus” standard or
imposition of an additional requirement. Rather, it is a
reasonable contemporary means of satisfying the core
requirement of Rule 901 when a text message is the
evidence the Commonwealth seeks to admit against a
defendant; the Commonwealth must still show that the
message is what the Commonwealth claims it to be, and
authorship can be a valid (and even crucial) aspect of the
determination.
Here, appellee admitted ownership of the cell phone, and
other evidence from the Commonwealth showed that the
content of the messages indicated drug sales activity.
However, whether appellee was the author of the
messages was not established by any evidence, either
direct or circumstantial. Nevertheless, the burden for
authentication is not high, and appellee was charged as
both an accomplice and a conspirator *390 in a drug
trafficking enterprise. As such, authorship was not as
crucial to authentication as it might be under different
facts. For these reasons, we are satisfied that the trial
court did not abuse its discretion in determining that the
Commonwealth met its authentication burden as to the
text messages.
II. Hearsay
In our view, however, the Commonwealth cannot have it
both ways when it comes to appellee’s separate and
related challenge that the substance of the text messages
was inadmissible hearsay. Of course, the concepts of
inadmissible hearsay and non-hearsay, which can be
admissible, are well-known evidentiary principles:
Hearsay, which is a statement made
by someone other than the
declarant while testifying at trial
and is offered into evidence to
prove the truth of the matter
asserted, is normally inadmissible
at trial.... In the alternative,
out-of-court statements may be
admissible because they are
non-hearsay, in which case they are
admissible for some relevant
purpose other than to prove the
truth of the matter asserted. See
**715Commonwealth v.
[Raymond] Johnson, 576 Pa. 23,
838 A.2d 663, 680 (2003)
(defendant’s statements threatening
witness’s family admissible as
verbal acts, a form of non-hearsay,
because evidence not offered to
establish truth of matter asserted,
but rather, to demonstrate fact of
attempted influencing of witness);
Commonwealth v. Puksar, 559 Pa.
358, 740 A.2d 219, 225 (1999)
(statements by witness who
overheard defendant and his
brother (the victim) arguing were
admissible as non-hearsay because
not offered to prove truth of matter
asserted, but rather to establish
motive for killings).
Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 315–16
(2010) (quotation marks & some citations omitted). When
this type of evidence is in question, the distinction can be
subtle between a statement that, if admitted, would serve
as affirmative and substantive evidence of the accused’s
guilt, and non-hearsay that may be admitted to establish
some other aspect of a case, such as motive or a witness’s
relevant course of *391 conduct. Commonwealth v.
Busanet, 618 Pa. 1, 54 A.3d 35, 68–69 (2012);
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017,
1035 (2012). On appeal, reviewing courts should be wary
of proffered bases for admission that may be pretexts for
getting fact-bound evidence admitted for a substantive
purpose.See Commonwealth v. Moore, 594 Pa. 619, 937
A.2d 1062, 1071–73 (2007) (victim’s statements to father,
sister, and friend concerning bullying by defendant were
not admissible under state of mind hearsay exception:
“Commonwealth’s allusions to the victim’s state of mind
in this passage and otherwise are tangential, and it is
readily apparent that the state of mind hearsay exception
was used as a conduit to support the admission of
fact-bound evidence to be used for a substantive
purpose.”).
The Commonwealth argues here, as it did below, that the
message contents were not offered for the truth of the
matter asserted, but as “drug-related records” of the sort
found admissible in Commonwealth v. Glover, 399
Pa.Super. 610, 582 A.2d 1111, 1113 (1990) (book
recording dates and sums of money “was not offered to
prove the truth of the sums and dates it contained, only
that these types of records were kept and were in the
possession of Glover. A written statement is not hearsay if
offered to prove that it was made rather than its truth. This
book was offered to show that it existed and was found in
Glover’s room; as offered, it is not hearsay.”) (citation
omitted). The Commonwealth also relies upon
Commonwealth v. Murphy, 418 Pa.Super. 140, 613 A.2d
1215, 1225 n. 11 (1992), a case involving charges of,
inter alia, murder, criminal conspiracy, and corrupt
organizations, which held that the challenged documents
“were not ‘business records’ in the ordinary sense, offered
to establish the actual workings of a business or to prove
the truth of the dealings contained in them. Instead, the
evidence was offered and received to show that the parties
mentioned therein were associated with one another. See
Commonwealth v. Glover ....”
The Commonwealth also cites federal cases where
“records” allegedly like those represented here in the text
messages on appellee’s phone, were found to be
admissible non-hearsay *392 because the evidence simply
established the accused’s relationship with other
individuals in an illegal conspiracy or operation. In the
alternative, the Commonwealth argues, the messages here
were not hearsay because they were admissible as the
statements of co-conspirators or co-participants in a
crime, pursuant to Rule of Evidence 803(25)(E).
Commonwealth’s Brief at 22–26.
In response, appellee argues that, “in reality at trial,” the
messages here were obviously hearsay proffered (and
wrongly **716 admitted) solely for their content and
truth. Appellee adds that the impropriety was
compounded by the messages’ use as a basis for the
testimony by Detective Lively, the Commonwealth’s
expert. The purpose of the detective’s testimony was to
deconstruct and interpret the slang that was used in the
messages—i.e., their very text—to explain to the jury
what was said out of court in the messages. And, of
course, it just so happened that what the detective
discerned in the messages was evidence of the very
crimes with which appellee was charged. Thus, the
detective opined that the text messages evidenced drug
sales in a manner that implicated appellee, even though
the detective admitted he could not prove she had been a
correspondent. Appellee distinguishes Glover because, in
that case, the notebook containing dates and sums was
described as only possibly (not surely) indicating drug
sales activity and was proffered not to prove the truth of
its contents, but to show only “that these types of records
were kept and were in [Glover’s] possession.” 582 A.2d
at 1113.
Appellee further argues that the content of the text
messages was offered and used by the Commonwealth at
her trial purely to impress upon the jury that her
possession of marijuana was with the intent to deliver; she
asserts that without the “truth” revealed in the messages,
her conviction on the PWID charge, even as an
accomplice, would have been unlikely. Appellee avers
that the Commonwealth’s expressed reason for seeking to
submit the message contents (which clearly imply drug
sales) to the jury, “under the guise” that they were not
being admitted for the truth of the matter asserted, was to
prove her intent to deliver, and not merely to show the
*393 otherwise irrelevant fact that she just happened to
own a phone that had messages on it referring to what a
police expert thought were drug sales. Appellee’s Brief at
5–9.
Taking into account the foregoing arguments, we note the
following. Lawyers with trial experience know that when
a party has classic hearsay evidence that it knows is
harmful to the opposing party, but cannot actually identify
a theory to overcome exclusion on hearsay grounds, a
common fallback position is to declare that the
out-of-court statements are not being offered for their
truth. Counsel in such circumstances recognize that if
they can manage to get the evidence admitted this way,
the party’s cause will be advanced, irrespective of
reliability or relevancy. But, the required analytical
response to this facile fallback position is: if the hearsay is
not being offered for its truth, then what exactly is its
relevance? And, assuming some such tangential
relevance, does the probative value of the evidence
outweigh the potential for prejudice? In this case, the
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
inquiry is not difficult because the only relevance of this
evidence—drug sales text messages on appellee’s cell
phone—is precisely for the truth of the matter asserted,
and we have little doubt that that is precisely how the lay
jury construed it.
At trial, after appellee lodged her hearsay objection while
Detective Lively was on the stand, the prosecutor
responded that he was not trying to prove the truth of the
matter asserted in the messages, but wanted the detective
to testify that he understood the messages to be similar to
“buy sheets” recording and arranging drug sales and to
show that “these statements were on the phone that
belonged to her and that—that these other types of
statements then would constitute drug receipts, drug
statements, and orders.” The prosecutor later added:
“[T]he purpose of this evidence is to show that
[appellee’s] phone was used in drug transactions, and,
therefore, **717 it makes it more probable than not
when the Defendant possessed this marijuana that she
did so with the intent to deliver as opposed to personal
use.” N.T., Trial, 5/26/10, at 73–79 (emphasis supplied).
*394 The trial prosecutor’s candor should be
determinative here. The prosecutor conceded that he
sought to admit the message contents as substantive
evidence probative of appellee’s alleged intent to engage
in drug sales activity. And that is certainly how the jury
would construe the messages. It requires a suspension of
disbelief to conclude that the messages had any relevance
beyond their substantive and incriminating import,
especially because they served as a platform for the
crucial expert testimony of Detective Lively.
Furthermore, as the panel below recognized, the
Commonwealth’s evidence of appellee’s intent to deliver,
without the truth revealed in the messages (via the expert
testimony of the detective), was negligible. Simply put,
the messages were out-of-court statements that were
relevant, and indeed proffered, for a purpose that
depended upon the truth of their contents, as probative of
appellee’s alleged intent to deliver. Accordingly,
appellee’s hearsay objection had merit and, in light of the
paucity of other evidence that she possessed illegal drugs
with the intent to deliver, the trial court’s abuse of
discretion in admitting the message contents was not
harmless error.
In closing, we note that all sorts of inadmissible evidence
may exist that might be helpful to a party’s cause, and we
understand the special incentive for the Commonwealth,
in criminal cases, in perfect good faith, to attempt to make
use of all the helpful “evidence” it may have. This is so
because, unlike the defendant, the Commonwealth
generally only gets one opportunity in a case; there is a
very limited prospect of appeal. But, courts must remain
mindful of those legal precepts that regulate unreliable
evidence, in service of higher principles, such as the right
to a fair trial.
We would affirm.
Justices BAER and TODD join this opinion.
Justice SAYLOR, in support of reversal.
I am in alignment with Mr. Justice Eakin’s Opinion in
Support of Reversal relative to the authenticity issue, as
well *395 as its reasoning that the messages were
properly authenticated as being drug-related and sent to
and from Appellee’s phone. Accordingly, I too would
reverse the Superior Court. However, as to the authorship
aspect of authentication, I have reservations with the
notion that “any question concerning the actual author or
recipient of the text messages bore on the evidentiary
weight to be afforded them.” Opinion in Support of
Reversal, at 721 (Eakin, J., joined by Stevens, J.). In this
regard, my view is closer to that expressed in Mr. Chief
Justice Castille’s Opinion in Support of Affirmance,
namely, that authorship is a relevant consideration in most
electronic communication authentication matters. See
Opinion in Support of Affirmance, at 712–13 (Castille,
C.J.). As it concerns the present matter, my position in
support of reversal is grounded in the Commonwealth’s
offer of the messages at trial, which did not rely on who
drafted the messages (a fact that the Commonwealth
readily conceded it could not demonstrate), but rather as
circumstantial evidence of Appellee’s complicity in
dealing drugs in the same way that drug records or
receipts may be relevant.
As it pertains to the hearsay question, I believe the
reasoning advanced in Justice Eakin’s Opinion in Support
of Reversal is materially incomplete; it concludes, on the
**718 basis of one example—“tree looks good”-that all of
the text messages were non-hearsay, since they were not
offered to prove the truth of the matter asserted. Opinion
in Support of Reversal, at 722 (Eakin, J.).
1
In my view,
this reliance on a single example overlooks the hearsay
concerns implicated by other messages and fails to
account for one text message that, indeed, was offered to
prove its assertion.
The Commonwealth’s primary argument is that the text
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
messages stored on Appellee’s cell phone were offered
into evidence, not for the truth of the matters asserted in
them, but rather, solely to show that statements pertaining
to illegal drugs were made utilizing Appellee’s cell
phone.
2
In terms of *396 the elements of the hearsay rule,
the Commonwealth’s position appears to be that the
messages should not be regarded as containing any “
assertions” at all, but rather, they merely reflect the
subject matter of the participants’ conversation (i.e.,
illegal drugs). Pa.R.E. 801(a) (defining “statement,” for
purposes of the rule against hearsay, in terms of assertive
verbal or non-verbal conduct).
The rule against hearsay and the expansive scheme of
exceptions that has evolved around it have been roundly
criticized on various fronts. See, e.g.,IRVING
YOUNGER, ABA SECTION OF LITIGATION
MONOGRAPH SERIES NO. 3, AN IRREVERENT
INTRODUCTION TO HEARSAY 18–19 (ABA Press
1977) (“I put to you that any rule which begins by telling
us that hearsay is not admissible, but which ends with a
dozen major exceptions and a list of about a hundred
exceptions all told, is not much of a rule.”); id. at 20
(describing the author’s practice of arranging the hearsay
exceptions “in ascending order of absurdity”); Edmund
M. Morgan & John M. Maguire, Looking Backward and
Forward at Evidence, 50 HARV. L.REV. 909, 921 (1937)
(positing that the exceptions to the hearsay rule resemble
“an old-fashioned crazy quilt made of patches cut from a
group of paintings by cubists, futurists and surrealists”).
Putting aside controversies about the exceptions, the
general hearsay rule itself is problematic on account of
the difficulty in distinguishing between speech which is
assertive and that which is to be regarded as
non-assertive. See 4 JONES ON EVIDENCE § 24.12 n.
40 (7th ed. 2013) (“No authoritative single definition of
the distinction between assertive and nonassertive verbal
conduct exists.” (quoting Roger C. Park, “I Didn’t Tell
Them About You”: Implied Assertions as Hearsay Under
the Federal Rules of Evidence, 74 MINN. L.REV. 783,
794 (1990))).
*397 For example, speech often contains underlying
information or assumptions in the nature of implied
assertions, and courts and rulemakers in various
jurisdictions have taken differing approaches to these.
Much of the older common law would seem to hold that
implied assertions are hearsay, at least where used to
prove the truth of the matter to be taken as impliedly
asserted. In this regard, English courts seem to recognize
that conversations similar to those presently in issue
implicate the **719 rule against hearsay on the basis that
they contain implied assertions. Along these lines, in
Regina v. Kearley, [1992] 2 A.C. 228 (H.L.) (U.K.), a
jurist discussed the implied assertions in one such
conversation as follows:
[The government] frankly concedes that if the inquirer
had said in the course of making his request “I would
like my usual supply of amphetamine at the price
which I paid you last week” or words to that effect,
then although the inquirer could have been called to
give evidence of the fact that he had in the past
purchased from the appellant his requirement of
amphetamine and had made his call at the appellant’s
house for a further supply on the occasion when he met
and spoke to the police, the hearsay rule prevents the
prosecution from calling police officers to recount the
conversation which I have described. This is for the
simple reason that the request made in the form set out
above contains an express assertion that the premises at
which the request was being made was being used as a
source of supply of drugs and the supplier was the
appellant.
If, contrary to the view which I have expressed above,
the simple request or requests for drugs to be supplied
by the appellant, as recounted by the police, contains in
substance, but only by implication, the same assertion,
then I can find neither authority nor principle to suggest
that the hearsay rule should not be equally applicable
and exclude such evidence. What is sought to be done
is to use the oral assertion, even though it may be an
implied assertion, as evidence of the proposition
asserted. That the proposition is asserted by way of
necessary implication rather than expressly cannot, to
my mind, make any difference.
*398Regina v. Kearley, [1992] 2 A.C. 228 (H.L.) 254–55
(Ackner, J.) (U.K.) (emphasis added), quoted in David E.
Seidelson, Implied Assertions and Federal Rule of
Evidence 801: A Continuing Quandary for Federal
Courts, 16 MISS. C.L.REV. 33, 50–51 (1995); cf. United
States v. McGlory, 968 F.2d 309, 332 (3d Cir.1992)
(explaining, in the implied assertion context, that the court
“disfavored the admission of statements which are not
technically admitted for the truth of the matter asserted,
whenever the matter asserted, without regard to its truth
value, implies that the defendant is guilty of the crime
charged.”).
In the United States, however, a strong countercurrent has
emerged, as reflected in an advisory committee note to the
Federal Rules of Evidence (upon which, notably, the
Pennsylvania Rules of Evidence were, in large part,
modeled). According to the advisory committee,
The effect of the definition of “statement” is to exclude
from the operation of the hearsay rule all evidence of
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
11
conduct, verbal or nonverbal, not intended as an
assertion. The key to the definition is that nothing is an
assertion unless intended to be one....
... Similar considerations govern nonassertive verbal
conduct and verbal conduct which is assertive but
offered as a basis for inferring something other than the
matter asserted, also excluded from the definition of
hearsay by the language of subdivision (c).
Fed.R. Evid. 801 advisory committee’s note; accord
United States v. Boswell, 530 Fed.Appx. 214, 216 (4th
Cir.2013) (taking the position that a text message
containing a drug solicitation was non-hearsay); United
States v. Rodriguez–Lopez, 565 F.3d 312, 314–15 (6th
Cir.2009) (holding that drug solicitations directed to a
defendant’s cell phone, answered by an arresting officer,
were not hearsay).
**720 The federal advisory committee’s approach to the
text of Federal Rule of Evidence 801 has been criticized
as “lend[ing] itself to a rigid literalism which can produce
absurd results,” and as “ignor[ing] how difficult it
sometimes is to distinguish verbal conduct that is
assertive from that which is nonassertive.” *399 4 JONES
ON EVIDENCE § 24.12; cf. Christopher B. Mueller &
Laird C. Kirkpatrick, 4 FED. EVID. § 8.6 (4th ed. 2013)
(denoting a constrained approach to defining the
boundaries of assertive verbal or non-verbal conduct as
“almost certainly wrong”).
3
Nevertheless, Pennsylvania
Rule of Evidence 801 is patterned after its federal
analogue and, although the specific language from the
federal advisory committee was not incorporated into the
commentary, such comments reflect a categorical and
literalistic approach which would appear to exclude
implied assertions from the reach of the hearsay rule in a
broad range of contexts. See, e.g.,Pa.R.E. 801, cmt.
(indicating that “questions, greetings, expressions of
gratitude, exclamations, offers, instructions, warnings,
etc.” simply are not hearsay, without reference to the fact
that such verbalizations may contain strong implied
assertions).
4
In the present matter, Justice Eakin’s Opinion in Support
of Reversal concludes that the “messages were offered to
demonstrate activity involving the distribution or intent to
distribute drugs and the relationship between the parties
sending and receiving the messages [and, thus] were not
hearsay statements.” Opinion in Support of Reversal, at
722 (Eakin, J.) (citations omitted). As it pertains to the
relationship aspect, I agree that the message sent from the
phone to a number listed as “Matt” (identified as one of
*400 Appellee’s alleged co-accomplices) was properly
admitted as non-hearsay, since the relationship of the
parties is demonstrated by the name of the contact (i.e.,
“Matt”) and not any assertion in the accompanying
drug-related message, “can I get that other o from u.”
R.R. at 226.
5,6
Relative to the Commonwealth’s proffer of the messages
as evincing drug distribution, I would conclude that one
message sent from the phone, “I got a nice gram of that
gd julie to get rid of dude didn’t have enuff cash so I had
to throw in but I cant **721 keep it 8og,” asserts the very
matter for which it was offered. Id. The testifying
detective explained that “julie” is a reference to cocaine,
and that the sender had used his own money to buy some
cocaine, but needed to sell it. See N.T., May 26–27, 2010,
at 85. Stated plainly, the assertion of this message is that
the sender possesses drugs with the intent to sell them.
Thus, the assertion is the same as what the
Commonwealth attempted to prove true, namely,
possession with the intent to distribute an illegal
substance. In my view, this corresponds to the commonly
understood definition of hearsay as an “out-of-court
statement offered to prove the truth of the matter
asserted.” Pa.R.E. 801, cmt.
On the whole, it may be worth considering refinements to
our evidentiary rules based on accumulating wisdom and
reflection.
7
For the present, however, I do not believe the
*401 hearsay rule in Pennsylvania operates to preclude
the admission into evidence of implied assertions such as
those arising from at least the majority of the text
messages in issue here. Thus, I am of the view that,
although one message was improperly admitted, the other
drug-related messages and the other circumstantial
evidence of drug distribution obviate the need for a new
trial under the harmless error standard. See
Commonwealth v. Johnson, 576 Pa. 23, 41–42, 838 A.2d
663, 674 (2003) (explaining that an error in admitting
hearsay evidence is harmless where such evidence is
cumulative of other untainted, substantially similar
evidence). Accordingly, I would reverse the Superior
Court’s order relative to the hearsay issue.
Justice EAKIN, in support of reversal.
I agree with the Opinion in Support of Affirmance that the
trial court did not abuse its discretion in determining the
Commonwealth met its burden as to the text messages.
However, I write separately because I disagree with the
view that authorship is a relevant part of authentication
analysis. See Opinion in Support of Affirmance, at
712–13. I also disagree that the text messages were
hearsay.
Regarding authentication, Rule 901 requires only that the
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
12
proponent of the item establish it is what he claims it is.
SeePa.R.E. 901(a). As the Commonwealth established the
criminal content of the text messages and the ownership
of the cell phone, the threshold requirement for
authentication was met, and any question concerning the
actual author or recipient of the text messages bore on the
evidentiary weight to be afforded to them. See Trial Court
Opinion, 11/30/10, at 13 (“[T]here was sufficient
circumstantial evidence to authenticate the cellular phone
as belonging to [appellee], and sufficient authenticity of
the messages contained therein. The possibility that a
person other than [appellee] was the author of the
drug-related text messages went ... to the weight of the
evidence rather than admissibility of the messages.”).
*402 Respectfully, I believe the Opinion in Support of
Affirmance mistakenly conflates authentication and
authorship; the latter is not a requirement of the former
under the Rule or the **722 facts of this case. Authorship
may be pertinent to the value of the evidence, but it is not
a part of authenticating it.
I also disagree that modern communications technology
can present “novel questions” with regard to
authentication issues and that the authentication inquiry
must be fact-bound and case-by-case. See Opinion in
Support of Affirmance, at 712–13, 714. There is no
reason to analyze these electronic messages differently
than a “traditional” handwritten note; there is no need for
a new rule of law for authentication simply because
recordation is electronic. Rule 901 rightly requires
evidence that an item such as a note, be it electronic or
quill on papyrus, is what the proponent of the item says it
is. The logic of authentication does not change with the
nature of the message or its recording, and the mysteries
of ever-changing technology offer no reason to change
venerable legal concepts and principles in response.
Application of the principles can be adaptable, but the
principles are unchanging. We cannot alter our manner of
review every time there is new technology—technology
changes every day, but the rules under which we operate,
having the firmness of integrity in the first place, cannot
ebb and flow with the perpetual creation of new
manifestations to which they must be applied. The Rule,
and the standards behind it, will accommodate the
appropriate consideration of new technology. What must
advance is our understanding of it, and we should not
essay to reinvent the process because the details are
electrons on a screen instead of paper and pencil. The
factors that may bear on the evidentiary value of a
message may vary with the nature of its recording, but
relevance is a very discrete notion from authentication.
Regarding hearsay, Pennsylvania Rule of Evidence 802
provides: “Hearsay is not admissible except as provided
by these rules, by other rules prescribed by the
Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802.
“Hearsay” is a statement, other than one made by the
declarant while testifying *403 at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted. Id., 801(c). A “statement,” as pertinent to this
instance, is an oral or written assertion, id., 801(a), and a
“declarant” is a person who makes a statement, id.,
801(b). Thus, any “out[-]of[-]court statement offered not
for its truth but to explain the witness’s course of conduct
is not hearsay.” Commonwealth v. Rega, 593 Pa. 659, 933
A.2d 997, 1017 (2007) (citing Commonwealth v. Sneed,
514 Pa. 597, 526 A.2d 749, 754 (1987)).
In the instant case, the text messages were not offered to
prove the truth of the matter asserted—i.e., that the “tree
look[ed] good[.]” Trial Court Opinion, 11/30/10, at 9.
Rather, the messages were offered to demonstrate activity
involving the distribution or intent to distribute drugs and
the relationship between the parties sending and receiving
the messages. See Commonwealth v. Murphy, 418
Pa.Super. 140, 613 A.2d 1215, 1225 n. 11 (1992)
(business papers, receipt books, and other memoranda
were not hearsay because they were offered only “to show
that the parties mentioned therein were associated with
one another” (citation omitted)); Commonwealth v.
Glover, 399 Pa.Super. 610, 582 A.2d 1111, 1113 (1990)
(book noting dates and sums of money was not hearsay
because it was offered “only [to show] that these types of
records were kept and were in the possession of [the
defendant]”). The trial court properly admitted the text
messages because they were not hearsay statements.
Accordingly, I would reverse the decision of the **723
Superior Court and reinstate appellee’s judgment of
sentence.
Justice STEVENS joins this opinion.
All Citations
630 Pa. 374, 106 A.3d 705 (Mem)
Footnotes
1
Respectively, 35 P.S. § 780–113(a)(30), 18 Pa.C.S. § 306, id. § 903(a)(1), and 35 P.S. § 780–113(a)(16).
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
13
2
The Rule states: “(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).
3
Subsection (b) provides ten ways that evidence can be authenticated and states clearly that these are simply examples, not a
complete list.
4
Or, as the case may be, the recipient, although in practice, the question almost invariably concerns authorship.
5
Gulley v. State, 2012 Ark. 368, 423 S.W.3d 569, 578–79 (2012) (recipient testimony and corresponding specific facts in message
contents sufficient to authenticate text messages as written by defendant); Holloman v. State, 293 Ga. 151, 744 S.E.2d 59, 61–
62
(2013) (recipient, the infant murder
victim’s mother, authenticated messages through testimony that she knew defendant and
recognized text messages she received on her phone as from him); State v. Koch,
157 Idaho 89, 334 P.3d 280, 288 (2014)
(“[E]stablishing the identity of the author of a text message or e-
mail through the use of corroborating evidence is critical to
satisfying the authentication requirement for admissibility.”); State v. Elseman, 287 Neb. 134, 841 N.W.2d 225, 233 (2014)
(text
messages sufficiently authenticated by testimony of defendant’s girlfriend that she and defendant exchanged the messages);
State v. Thompson, 777 N.W.2d 617, 625–26 (N.D.2010)
(testimony of husband sufficient to authenticate threatening text
messages written and sent to him by wife); Tienda v. State, 358 S.W.3d 633, 642 (Tex.Crim.App.2012); (“[T]h
at a text message
emanates from a cell phone number assigned to the purported author—
none of these circumstances, without more, has typically
been regarded as sufficient to support a finding of authenticity”); see also Smith v. State, 136 So.3d 424, 433 (Miss.2014)
(citing
with approval Texas case of Tienda v. State for principle that
“something more” is needed when authentication of electronic
communication is at issue); State v. Lampman, 190 Vt. 512, 22 A.3d 506, 516 (2011)
(origin of allegedly threatening text messages
from victim to defendant would need to be shown to lay foundation for question involving contents of messages).
1
The testifying detective explained that “tree” is code for marijuana. See N.T., May 26–27, 2010, at 87.
2
Parenthetically, in its present brief, the Commonwealth advances the theory that, even if the text messages in issue amount to
hearsay, they were admissible under various exceptions to the hearsay rule, including those pertaining to admissions and
coconspirator’s statements. SeePa.R.E. 803(25)
. These bases, however, do not appear to have been advanced in the trial and
intermediate courts and, in any event, are plainly outside the scope of the issues on which appeal was allowed by this Court.
See
Commonwealth v. Koch, 615 Pa. 612, 44 A.3d 1147 (2012) (per curiam ).
3
Consistent with these criticisms, and in a factual context similar to the present case, one court reasoned as follows:
The text messages here purport to be expressions of a desire to engage in a drug transaction. This is a drug case. We
therefore disagree with the State that the text messages were not offered for the truth of the matter asserted.
Black v. State, 358 S.W.3d 823, 831 (Tex.Ct.App.2012). Some commentators also express the concern that impl
ied assertions
arguably impose higher risks of inaccuracy and ambiguity than direct ones. See, e.g., State v. Palmer,
229 Ariz. 64, 270 P.3d
891, 900–01 (Ct.App.2012) (Eckstrom, P.J., dissenting) (collecting articles).
4
While our rules, in this regard, may appear to be vulnerable to the criticism that they are more reflexive than analytical, it should
be noted that trial judges are invested with discretion to exclude evidence (including statements containing implied assertio
ns),
where the probative value is outweighed by dangers of unfair prejudice, confusion of the issues, or misleading jurors. See
Pa.R.E.
403.
5
In any event, the message is phrased as a question, which, as explained by the comments to Rule 801, means that it is not an
assertion and, thus, not hearsay. SeePa.R.E. 801
, cmt. (“Communications that are not assertions are not hearsay. These would
include questions, greetings, expressions of gratitude, exclamations, offers, instructions, warnings, etc.”).
6
The detective explained that “o” is a reference to an ounce, a commonly used weight measurement for illicit drugs. See N.T., May
26–27, 2010, at 86.
7
In such an undertaking, however, it would also be worth considering the perspective that implied assertions arising out of
performance-based or instrumental verbal conduct (such as drug solicitations) should be treated as non-
hearsay, at least where
the assertive quality of the speech fairly can be viewed as subordinate to the instrumental aspect. See, e.g.,
Mueller &
Kirkpatrick, 4 FED. EVID. § 8:24; accord People v. Morgan, 125 Cal.App.4th 935, 23 Cal.Rptr.3d 224, 229–30 (2005) (treating
Com. v. Koch, 630 Pa. 374 (2014)
106 A.3d 705
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
14
drug-solicitation text messages as primarily conduct-based as opposed to assertive).
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
KeyCite Yellow Flag - Negative Treatment
Distinguished by Commonwealth v. Russell, Pa.Super., May 3, 2019
114 A.3d 1072
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee
v.
Donte MOSLEY, Appellant.
Argued Dec. 9, 2014.
|
Filed April 20, 2015.
Synopsis
Background: Defendant was convicted following a jury
trial in the Court of Common Pleas, Delaware County,
Criminal Division, Nos. CP–23–CR–0007437–2012,
Capuzzi, J., of possession of a controlled substance and
possession with intent to deliver a controlled substance.
He appealed, following denial of his post-sentence motion
for a new trial, 2014 WL 8105549.
Holdings: The Superior Court, No. 827 EDA 2014,
Lazarus, J., held that:
[1]
trial court abused its discretion in admitting hearsay
statements testified to by officer regarding telephone call
he received and statement made at scene;
[2]
trial court’s error in admitting hearsay statements was
harmless;
[3]
any improper viewing by officer of text messages on
cell phones confiscated incident to defendant’s arrest on
drug charges was harmless;
[4]
drug-related text messages recovered from cell phones
confiscated incident to defendant’s arrest were not
properly authenticated, as required for admission into
evidence; and
[5]
trial court’s error in admitting drug-related text
messages recovered from cell phones confiscated incident
to defendant’s arrest was harmless.
Convictions affirmed, judgment of sentence vacated, and
case remanded.
West Headnotes (22)
[1]
Criminal Law
Evidence as to information acted on
Criminal Law
Identity
Trial court abused its discretion in admitting
hearsay statements testified to by officer
regarding a telephone call he received,
indicating that defendant and a third party were
“squatters” selling
drugs out of caller’s
apartment, as well as a statement made at the
scene to effect that caller pointed at vehicle
driven by defendant, indicating to officer that
the occupants were the two men who had been
involved in drug activity at his apartment, in
p
rosecution for possession and possession with
intent to deliver controlled substance; such
statements would unavoidably have prejudicial
impact, and trial court did not give jury a
cautionary instruction, despite defense’s
objections to officer’s statements.
1 Cases that cite this headnote
[2]
Criminal Law
Evidence as to information acted on
While certain out-of-court statements offered to
explain a course of police conduct are
admissible because they are offered merely to
show the information upon which police acted,
some out-of-
court statements bearing upon
police conduct are inadmissible be
cause they
may be considered by the jury as substantive
evidence of guilt, especially where the accused’s
right to cross-
examine and confront witnesses
against him would be nullified.
4 Cases that cite this headnote
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
[3]
Criminal Law
Prejudice to Defendant in General
Not all error at trial entitles a defendant to a new
trial, and the harmless error doctrine reflects the
reality that the accused is entitled to
a fair trial,
not a perfect trial.
1 Cases that cite this headnote
[4]
Criminal Law
Curing Error by Facts Established Otherwise
An error which, when viewed by itself, is not
minimal, may nonetheless be determined
harmless if properly admitted evidence is
substantially similar to the erroneously admitted
evidence.
2 Cases that cite this headnote
[5]
Criminal Law
Admissions, declarations, and hearsay;
confessions
Trial court’s error in admitting hearsay
statements testified to by officer regarding a
telephone call he received, indicating that
defendant and a third party we
re “squatters”
selling drugs out of caller’s apartment, as well as
a statement made at the scene to effect that
caller pointed at vehicle driven by defendant,
indicating to officer that the occupants were the
two men who had been involved in drug activity
at his apartment, was harmless, in prosecution
for possession and possession with intent to
deliver controlled substance; there was relevant,
cumulative evidence indicative of drug activity,
including evidence that defendant threw bags of
drugs from vehicl
e he was driving, while being
pursued by police, as well as defendant’s
possession of two cell phones and currency on
his person which was consistent with drug
activity.
Cases that cite this headnote
[6]
Criminal Law
Causal nexus; independent discovery or basis
or source
Any improper viewing by officer of text
messages on cell phones confiscated incident to
defendant’s a
rrest on drug charges was
harmless, even if viewing amounted to improper
search; applying independent source doctrine,
probable cause existed to support subsequent
issuance of valid warrant to search phones.
U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[7]
Criminal Law
Causal nexus; independent discovery or basis
or source
There is a two-prong test governing the
application of the independent source doctrine
as applied to evidence recovered during an
illegal search or seizure: (1) whether the
deci
sion to seek a warrant was prompted by
what was seen during the initial warrantless
entry, and, (2) whether the magistrate was
informed at all of the information improperly
obtained. U.S.C.A. Const.Amend. 4.
1 Cases that cite this headnote
[8]
Criminal Law
Necessity and scope of proof
Criminal Law
Reception and Admissibility of Evidence
Admission of evidence is within the sound
discretion of the trial court and will be reversed
only upon a showing that the trial
court clearly
abused its discretion.
4 Cases that cite this headnote
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
[9]
Criminal Law
Telecommunications
With regard to the admissibility of electronic
communication, such messages are to be
evaluated on a case-by-
case basis as any other
document to determine whether or not there has
been an adequate foundational showing of their
relevance and authenticity.
Rules of Evid., Rule
901(a), 42 Pa.C.S.A.
2 Cases that cite this headnote
[10]
Criminal Law
Telecommunications
Authentication of electronic communications,
like documents, requires more than mere
confirmation that the number or address
belonged to a particular person; circumstantial
evidence, which
tends to corroborate the identity
of the sender, is required.
Rules of Evid., Rule
901(a), 42 Pa.C.S.A.
3 Cases that cite this headnote
[11]
Courts
Number of judges concurring in opinion, and
opinion by divided court
Courts
Opinion by divided court
When a judgment of sentence is affirmed by an
equally divided court, no precedent is
established and the holding is not binding on
other cases.
4 Cases that cite this headnote
[12]
Criminal Law
Telecommunications
Drug-related text messages recovered from cell
phones confiscated incident to defendant’s arrest
were not properly authenticated, as require
d for
admission into evidence in drug prosecution;
while there were similar “contacts” in both
phones, defendant’s mother was a contact on
both phones, there were texts from mother of
defendant’s child on both phones, and prior
incoming texts referenced de
fendant’s first
name, the texts referencing defendant’s first
name occurred more than one week earlier, texts
from defendant’s mother were sent weeks to
months earlier, there was no reference to
defendant’s name in any of drug-
related text
messages, nor wa
s there any corroborating
witness testimony regarding authenticity of the
messages. Rules of Evid., Rule 901(a)
, 42
Pa.C.S.A.
1 Cases that cite this headnote
[13]
Criminal Law
Particular cases
Criminal Law
Telephone records
Drug-related text messages recovered from cell
phones confiscated incident to defendant’s arrest
were not admissible, in drug prosecution, under
hearsay exception allowing for introduction of
statements offered against an opposing party and
made by the par
ty in an individual or
representative capacity or when the statements
were ones the party manifested that it adopted or
believed to be true, despite prosecution’s
assertion that defendant’s responses to drug
requests that were in the form of questions were
admitted to provide context for outgoing text
messages or statements he sent; only relevance
of such evidence was to prove truth of matter
asserted, which was that there were drug-
related
text messages on the phones.
Rules of Evid.,
Rules 801(c), 802, 803(25), 42 Pa.C.S.A.
4 Cases that cite this headnote
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
[14]
Criminal Law
Documentary and demonstrative evidence
Trial court’s error in admitting drug-related text
messages recovered from cell phones
confiscated incident to defendant’s arrest was
harmless, in drug prosecution, where there was
substantially similar evidence showing that
defendant possessed drugs with intent to deliver.
2 Cases that cite this headnote
[15]
Controlled Substances
Possessory offenses
Controlled Substances
Possession for sale or distribution
Evidence was sufficient to establish defendant’s
conscious dominion over drugs, as required to
establish possession needed for convictions of
possession of a controlled substance and
possession with intent to distribute a controlled
substance; defendant was driving car from
which two clear plastic bags
were thrown out of
driver’s side window, no drugs, paraphernalia or
other incriminating drug evidence was found on
vehicle’s passenger, and expert testimony
confirmed that packaging, weight, and type of
drugs, in addition to cash and cell phones found
on
defendant’s person at time of his arrest were
all indicative of possessing drugs with intent to
deliver.
Cases that cite this headnote
[16]
Controlled Substances
Possessory offenses
Controlled Substances
Possession for sale or distribution
Verdict convicting defendant of possession of a
controlled substance and possession with intent
to distribute a controlled substance was not
against the weight of the evidence, despite
defendant’s claim that actua
l possessor of drugs
thrown from vehicle could not be determined;
jury heard evidence that defendant was driver of
vehicle, that two bags later identified as
containing drugs were discarded from driver’s
side window while vehicle was being pursued
by polic
e, and that over $100 in currency and
two cell phones were found on defendant’s
person upon being stopped and searched, which
an expert testified was indicative of drug
possession and possession with intent to
distribute.
Cases that cite this headnote
[17]
Criminal Law
Weight and sufficiency of evidence in general
When a defendant challenges the weight of the
evidence, relief in the form of a new trial may be
granted only where the
verdict shocks one’s
sense of justice.
1 Cases that cite this headnote
[18]
Criminal Law
Sufficiency of evidence
Appellate court reviews the trial court’s exercise
of discretion in ruling on a weight claim, not the
underlying question of whether the verdict was
against the weight of the evidence.
5 Cases that cite this headnote
[19]
Criminal Law
Province of jury or trial court
In reviewing the trial court’s decision
concerning the weight of the evidence, an
appellate court is not passing on the credibility
of witnesses; this is a function tha
t is solely
within the province of the finder of fact which is
free to believe all, part, or none of the evidence.
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
11 Cases that cite this headnote
[20]
Criminal Law
Mootness
Defendant’s challenge to trial court’s denial of
his request, at end of suppression hearing, to
reopen record to permit him to introduce
testimony regarding operatio
n of and access to
cell phones confiscated incident to his arrest, in
order to show, in support of claim of improper
viewing by police, that some affirmative action
by officer who read text messages on phones
was required, was rendered moot, on appeal, by
fact that appellate court determined that any
improper viewing of messages was harmless
error in light of subsequently and independently
secured search warrant.
U.S.C.A. Const.Amend.
4.
1 Cases that cite this headnote
[21]
Criminal Law
Right to jury determination
Criminal Law
In General; Necessity of Motion
Criminal Law
Allowance or leave from appellate court
Defendant’s challenge to trial court’s application
of mandatory minimum to his sentence, as being
illegal under Alleyne v. United States
, was not
waivable, and could be raised sua sponte by the
appellate court, despite defendant’s failure to
include Alleyne-
based sentence challenge at
sentencing, in his post-
sentence motion, or in his
concise statement of errors complained of on
appeal. 18 Pa.C.S.A. § 7508.
30 Cases that cite this headnote
[22]
Jury
Statutory provisions
Trial court’s act of permitting jury, on special
verdict slip, to determine beyond a reasonable
doubt the factual predicate of aggregate weight
of drugs, as
required for mandatory minimum
sentencing for possession of and possession with
intent to distribute a controlled substance, was
an impermissible legislative function that did
not cure unconstitutionality of mandatory
minimum sentencing statute in delegat
ing
fact-
finding authority to sentencing judge rather
than to the jury. 18 Pa.C.S.A. § 7508.
12 Cases that cite this headnote
West Codenotes
Held Unconstitutional
18 Pa.C.S.A. § 7508.
Attorneys and Law Firms
*1076 Lawrence R. Dworkin, Wallingford, for appellant.
William R. Toal, III, Assistant District Attorney, Media,
for Commonwealth, appellee.
BEFORE: LAZARUS, J., WECHT, J., and
STRASSBURGER, J.
*
Opinion
OPINION BY LAZARUS, J.:
Donte Mosley appeals from his judgment of sentence,
entered in the Court of Common Pleas of Delaware
County, after being convicted by a jury of three counts of
possession of a controlled substance
1
and one count of
possession with the intent to deliver a controlled
substance (cocaine).
2
The Commonwealth sought, and the
sentencing court applied, the mandatory minimum
sentence of five years’ imprisonment pursuant to 18
Pa.C.S. § 7508 (drug trafficking sentencing/penalties).
Mosley was sentenced to a term of 66–132 months’
imprisonment for the intent to deliver charge, an
aggravated-range sentence.
3
After careful review, we
affirm Mosley’s convictions, vacate his judgment of
sentence and remand for resentencing.
On August 13, 2012, at approximately 2:00 p.m., Ridley
Township Police Officer Leo Doyle was on patrol in the
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
Secane area in response to a complaint about illegal drug
activity at the Presidential Square Apartments on South
Avenue. James Latticlaw, the complainant, had told the
police that squatters were selling drugs out of his
apartment. Sergeant Charles Palo and Corporal Daniel
Smith, also members of the Ridley Township Police
Department, accompanied Officer Doyle to the Secane
address in a separate police vehicle. When the two police
vehicles arrived at the apartment complex, the police
observed a black Cadillac driving towards them and saw
Latticlaw pointing toward the Cadillac.
After seeing Latticlaw gesture toward the Cadillac, both
police vehicles followed the car as it pulled out of the
parking lot. While only a few feet behind the Cadillac,
Officer Doyle saw Mosley, the driver of the Cadillac, put
his arm out of the driver’s side window and drop two
clear plastic bags.
4
Corporal Smith picked up the two bags
while Officer Doyle activated his siren and police lights
and pulled the Cadillac over. Corporal Smith contacted
Officer Doyle to tell him the baggies contained narcotics.
5
Doyle arrested Mosley and, in *1077 a search incident to
arrest, recovered two cellular phones and $117.00 in cash
from his person. Affidavit of Probable Cause, 8/13/12, at
1. No drugs or drug paraphernalia were found on the
passenger in the Cadillac.
Prior to trial, Mosley filed a motion to suppress text
messages that were viewed by a police officer on the two
cell phones
6
confiscated from him during the search
incident to his arrest. Ridley Township Police Officer
John McDevitt testified that as Mosley was being
processed at the police station on the instant charges, the
officer viewed texts that kept “popping up” on the screens
of the mobile phones. Officer McDevitt first testified that
the phones were already powered on and they required no
password or other manipulation (like “swiping”) to view
the texts. However, the officer later testified that he was
unable to recall whether he had to swipe anything to view
the text messages.
Mosley filed a pretrial motion to suppress the search of
the two cell phones and the numerous text messages
found on them, basing his arguments on authentication
and hearsay grounds. Mosley filed a second motion
seeking to suppress all data obtained as a result of a
subsequent search warrant for the phones. After the
suppression hearing, but before the court rendered a
decision, Mosley filed a motion to open the hearing in
order to present testimony to prove that the texts could not
have been viewed by the police unless they took some
affirmative action to read them. On April 22, 2013, all
pretrial motions were denied.
On September 16–17, 2013, a jury trial was held. At trial,
Sergeant Kenneth Rutherford, an expert in the field of
drugs and drug investigations, testified for the
Commonwealth. Officer Doyle had contacted Sgt.
Rutherford about the instant case, gave him basic
information about the arrest (including what was
confiscated at the stop) and asked the sergeant to prepare
a search warrant. In response, Sgt. Rutherford prepared an
application for a search warrant,
7
specifically requesting
that the contents of the cell phones found on Mosley be
searched. Text messages from both cell phones revealed
personal messages received by Mosley from friends and
family. Several other text messages were indicative of
drug related sales/activity. The cell phone report records
were marked and admitted into evidence at trial. The trial
court gave the jury a limiting instruction on the text
messages.
8
*1078 At the conclusion of trial, Mosley was found guilty
of possession of a controlled substance (oxycodone),
possession of a controlled substance (heroin), possession
of a controlled substance (cocaine), and possession with
intent to deliver. Mosley was sentenced to 66–132
months’ imprisonment, followed by 5 years of state
probation. Mosley filed an unsuccessful motion in arrest
of judgment and/or for a new trial. This appeal follows.
On appeal, Mosley raises the following issues for our
consideration:
9
(1) Did the lower court err in admitting the hearsay
statements testified to by Officer Leo Doyle
regarding a telephone call he received as well as a
statement made at the scene?
(2) Did the lower court err in allowing evidence
of text messages despite the fact that said
messages were not properly authenticated, but
were also hearsay?
(3) Did the lower court err in failing to suppress
evidence of text messages taken from the
cellphones by the arresting officers?
(4) Did the lower court err in failing to suppress
the information and/or text messages taken from
the above cellphones as a result of a search
warrant since said evidence was the “fruit of the
poisonous tree”?
(5) Did the lower court err in failing to suppress
the said text messages taken pursuant to a
search warrant from the cell phones found on
the person of the Appellant as a violation of the
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
United States Constitution, Amendments 4 and
14[,] and the Pennsylvania Constitution, Article
1, Section 8[,] for failure to link the items
requested to be searched with the alleged crime
committed?
(6) Did the lower court err in finding that there
was sufficient evidence to uphold the verdict
and also err in finding that the verdict was not
against the weight of the evidence?
(7) Did the lower court err in failing to reopen
the suppression hearing to allow Appellant to
introduce evidence contradicting the police
officers concerning their reading of the text
messages?
(8) Was sentencing the Appellant to a five year
mandatory minimum sentence pursuant to 18
Pa.C.S. [§ ]7508 illegal because the statute was
unconstitutional? Admission of Officer Doyle’s
Statements
[1]
Mosley asserts that the trial court erred in admitting
hearsay evidence regarding “drug activity” offered by
Commonwealth witness, Officer Leo Doyle. Officer
Doyle was the first officer to appear at the scene to
investigate Latticlaw’s complaint, which led to him
following, stopping and arresting Mosley. Mosley claims
that this hearsay testimony was highly prejudicial because
it negated his defense (that the passenger in the vehicle
was the one who controlled the drugs and not him).
Mosley also contends that admission of the testimony was
reversible error as evidence of his guilt was not
overwhelming.
[2]
While certain out-of-court statements offered to explain
a course of police conduct are admissible because they are
offered merely to show the information upon which police
acted, some out-of-court statements bearing upon police
conduct *1079 are inadmissible because they may be
considered by the jury as substantive evidence of guilt,
especially where the accused’s right to cross-examine and
confront witnesses against him would be nullified.
Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808, 810
(1989).
Mosley’s arresting officer, Officer Leo Doyle, testified at
trial regarding a phone call he received from James
Latticlaw, who indicated that Mosley and a third party
were “squatters” selling drugs out of Latticlaw’s
apartment. Officer Doyle also testified that when he
arrived at the apartment complex to investigate the matter,
Latticlaw pointed at the black Cadillac driven by Mosley,
indicating to Officer Doyle that the occupants were the
two men who had been involved in drug activity at his
apartment. Specifically, the prosecutor questioned Officer
Doyle at trial as follows:
Q: What area did they make a complaint? A specific
type of crime or of a specific incident that happened in
a certain place?
A: Yes.
Q: What—what was that?
A: Drug activity.
Q: Drug activity. And what location?
A: At the 640 South. I forget the exact apartment, but
James Latticelaw [sic]’s apartment in 640 South
Avenue, Presidential Square.
* * *
A: I was—the van was in front of me with Sergeant
Paylow and Corporal Smith and I was behind the van
and the black Cadillac was coming towards me
occupied by two black males. Okay. And I also then
observed James Latticelaw [sic], who I know from
running that area and having calls, pointing at the car
making a motion that that’s the car that was—that had
the two occupants in it that were why we were there.
N.T. Jury Trial, 9/16/13, at 122–24.
The trial court justified its decision to admit Officer
Doyle’s testimony as follows:
This [c]ourt properly admitted the
statements, as they were introduced
by the prosecution to show why
Officer Doyle went to the
Presidential Apartments and why
his attention was drawn to the black
Cadillac, not to prove the truth of
the matter asserted.
Trial Court Opinion, 5/15/14, at 6.
In Commonwealth v. Yates, 531 Pa. 373, 613 A.2d 542
(1992), the defendant was convicted of possession and
possession with the intent to deliver. At trial, two officers
testified why they went to the specific area where the
defendant was arrested. In their testimony, the officers
stated “that an informant had notified them that a large
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
black male, i.e. [defendant], was ‘dealing drugs’ at that
location.” Id. at 543. The trial court admitted the
testimony, reasoning that the testimony explained the
course of police conduct and that, without the testimony,
the jury would not have any way of knowing why the
police went to that location. Even though the trial court
gave the jury a cautionary instruction, the Supreme Court
reversed the defendant’s conviction and granted a new
trial since the informant’s statements were of a highly
incriminating nature, contained specific assertions of
criminal conduct, and would have the unavoidable effect
of prejudice. Id.
Similarly, Mosley was charged and convicted of
possession and possession with the intent to deliver.
Therefore, Officer Doyle’s statement that he responded to
Latticlaw’s apartment complex in response to a complaint
that defendant was conducting “drug activity” would
likewise unavoidably “have had a prejudicial impact.” Id.
Moreover, unlike the trial court *1080 in Yates, here the
judge did not give the jury a cautionary instruction despite
the defense’s objections to the police officer’s alleged
hearsay statements. Where Officer Doyle’s testimony
contained specific assertions of criminal conduct, it was
likely that the jury would interpret this testimony from a
police officer as substantive evidence of Mosley’s guilt; it
also deprived Mosley of his right to confront and
cross-examine Latticlaw at trial. Cf. Commonwealth v.
Taggart, 997 A.2d 1189 (Pa.Super.2010) (where officer
testified that defendant fit description of robber, and
prosecutor cut him off and elicited testimony that
defendant was not one of robbers described in flash
information, defendant not deprived of opportunity to
confront informant who provided information in flash
report).
[3]
[4]
However, “not all error at trial ... entitles a
[defendant] to a new trial, and [t]he harmless error
doctrine ... reflects the reality that the accused is entitled
to a fair trial, not a perfect trial[.]” Commonwealth v.
West, 834 A.2d 625, 634 (Pa.Super.2003). Moreover, it is
well established that “an error which, when viewed by
itself, is not minimal, may nonetheless be determined
harmless if properly admitted evidence is substantially
similar to the erroneously admitted evidence.”
Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 165
(1978).
[5]
Because there is relevant, cumulative evidence
indicative of drug activity, we find that the admission of
this out-of-court statement, while an abuse of the trial
court’s discretion, was harmless error. Here, there was
independent evidence showing that Mosley threw bags of
drugs from a car he was driving, while being pursued by
the police. Mosley’s possession of two cell phones and
U.S. currency on his person was consistent with drug
activity, while the weight and packaging of the drugs was
indicative of possession with the intent to deliver. See
Commonwealth v. Watson, 945 A.2d 174 (Pa.Super.2008)
(harmless error exists where erroneously admitted
evidence was merely cumulative of other untainted
evidence which was substantially similar to erroneously
admitted evidence); see also Commonwealth v. Williams
(erroneous admission of evidence does not necessarily
entitle defendant to relief if error is harmless).
Failure to Suppress Text Messages
[6]
Mosley contends that Officers McDevitt and Doyle
should have secured a search warrant before reading the
text messages on the cell phones. Recently, in
Commonwealth v. Stem, 96 A.3d 407 (Pa.Super.2014),
our Court addressed this issue, relying upon the legal
analysis and holding of the United States Supreme Court
in Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189
L.Ed.2d 430 (2014). In Riley, the Supreme Court
determined that warrantless searches of a cellular
telephone conducted incident to a defendant’s arrest are
unconstitutional. Id. at 2495.
Here, there is no question that Officer McDevitt viewed
the text messages on the cell phones without first securing
a warrant. The record is unclear,
10
however, regarding
whether Officer McDevitt actually “searched” the phones
(i.e., by scrolling through messages, swiping the phone
on, or otherwise pulling up the texts) like *1081 in Stem,
where a police officer inspected the cell phone after the
defendant’s arrest, turned on the phone, hit the picture
icon and then searched cell phone data. Stem, 96 A.3d at
408. However, even if Officer McDevitt improperly
searched and viewed text messages on the cell phones
confiscated incident to Mosley’s arrest, we find that
because a valid warrant was subsequently issued to search
the phones, any improper viewing by Officer McDevitt
was harmless error.
[7]
Our Supreme Court has held that “where there is
probable cause independent of police misconduct that is
sufficient in itself to support the issuance of a warrant, the
police should not be placed in a worse situation than they
would have been absent the error or violation under which
the evidence was seized.” Commonwealth v. Brundidge,
533 Pa. 167, 620 A.2d 1115, 1119–20 (1993).
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
There is a two-prong test governing
the application of the independent
source doctrine: (1) whether the
decision to seek a warrant was
prompted by what was seen during
the initial warrantless entry; and,
(2) whether the magistrate was
informed at all of the information
improperly obtained.
Commonwealth v. Ruey, 854 A.2d 560, 564–65
(Pa.Super.2004).
Here, Sgt. Rutherford, who prepared the warrant, testified
at the suppression hearing that he never spoke with
Officer McDevitt prior to or during the process of
securing the search warrant for the cellphones. Moreover,
while Sgt. Rutherford did speak with Mosley’s arresting
officer, Officer Doyle, who was aware of the content of
the text messages and who asked Sgt. Rutherford to
prepare the warrant, the record shows that Officer Doyle
did not discuss the content of the text messages with Sgt.
Rutherford. N.T. Suppression Hearing, at 4/18/13, at
11–12, 56. Accordingly, we find that there was probable
cause independent of any alleged misconduct on the part
of Officer McDevitt in viewing the text messages prior to
the issuance of a warrant. This probable cause is sufficient
in itself to support the subsequent warrant secured by Sgt.
Rutherford. Ruey, supra.
Admission of Text Messages at Trial
Authentication/Authorship
Mosley next asserts that the trial court improperly
permitted testimony at trial regarding text messages from
the two cellphones taken from his person, incident to his
arrest, where the messages had never been authenticated
and constituted inadmissible hearsay.
[8]
Admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing
that the trial court clearly abused its discretion.
Commonwealth v. Lilliock, 740 A.2d 237
(Pa.Super.1999). Generally, the requirement of
authentication or identification as a condition precedent to
the admissibility of evidence is satisfied by evidence
sufficient to support a finding that the matter in question
is what its proponent claims. Pa. R.E. 901(a).
[9]
[10]
With regard to “the admissibility of electronic
communication, such messages are to be evaluated on a
case-by-case basis as any other document to determine
whether or not there has been an adequate foundational
showing of their relevance and authenticity.” In the
Interest of F.P., 878 A.2d 91, 96 (Pa.Super.2005).
“[A]uthentication of electronic communications, like
documents, requires more than mere confirmation that the
number or address belonged to a particular person.
Circumstantial evidence, which tends to corroborate the
identity of the sender, is required.” *1082 Commonwealth
v. Koch, 39 A.3d 996, 1005 (Pa.Super.2011) (Koch ).
[11]
In Commonwealth v. Koch, ––– Pa. ––––, 106 A.3d
705 (2014) (Koch II ), an equally divided Supreme Court
11
affirmed our Court’s grant of a new trial, wherein we held
that: (1) the defendant’s text messages had not been
authenticated; (2) the messages were inadmissible hearsay
that were not offered for any reason other than to show
the truth of the matter asserted as to the content of the
messages; and (3) admission of the unauthenticated
hearsay messages was not harmless error because the
prejudicial effect of the evidence was “so pervasive in
tending to show that [defendant] took an active role in an
illicit [drug selling] enterprise that it [could not] be
deemed harmless.” Koch, 39 A.3d at 1005–07.
While the defendant in Koch admitted to owning the cell
phone, and the content of the messages on the phone
indicated drug sale activity, it was also conceded at trial
that someone other than the defendant likely authored at
least some of the text messages. Even so, the mere
assertion of ownership of the phone did not establish that
defendant was an active correspondent in the particular
drug sales text messages. Id. at 1003. Moreover,
confirmation that the number or address belongs to a
particular person also did not satisfy the authentication
requirement under the Rules of Evidence. Id. at 1005.
Ultimately, the Court found that the Commonwealth
failed to establish, either by direct or circumstantial
evidence, whether defendant was the author of the texts.
Id.
However, the Koch Court, referencing Rule 901,
explained the ways in which text messages could be
authenticated by using: (1) first-hand corroborating
testimony from either the author or the sender; and/or (2)
circumstantial evidence, which includes distinctive
characteristics like information specifying the
author-sender, reference to or correspondence with
relevant events preceding or following the communication
in question; or (3) any other facts or aspects of the
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
communication that signify it to be what its proponent
claims it to be. Id. at 1002. Ultimately, the Court found
that the trial court abused its discretion in admitting the
text messages where the cell phone’s physical proximity
to the defendant at the time of her arrest had no probative
value with regard to whether she authored the messages.
Id. at 1005. Finally, because there was no evidence
substantiating that defendant had written the drug-related
text messages, it was improper to find that the identity of
the sender had been corroborated. Id.
As the Court in Koch acknowledged, the authentication
inquiry will, by necessity, “be evaluated on a case-by-case
basis as any other document to determine whether there
has been an adequate foundation showing of its relevance
and authenticity.” Id. at 1003 (citation omitted). Instantly,
Mosley denied that he owned the two cell phones that
were confiscated from his person incident to his arrest.
Moreover, there was no first-hand corroborating
testimony from a witness regarding the authenticity of the
text messages. Pa. R.E. 901(b)(1). In addition, there were
two email addresses attached to the cell phones, which
could indicate that someone else had access to or owned
the phones. Finally, while several of the text messages
could be interpreted as indicative of drug dealing, none of
the specific drug-related communications identified
Mosley. In *1083 fact, Donte (Mosley’s first name) is
only referenced in a few text messages dated months prior
to the instant investigation. None of the text messages
sent from the Samsung phone concerned drugs and there
were no drug-related text messages sent from the phones
around the time of Mosley’s arrest.
Unlike the defendant in Koch, who had been charged as
both an accomplice and a conspirator, here Mosley was
charged with purely possessory offenses, including with
the intent to deliver. Therefore, the authorship of the texts
is more critical to an authentication analysis under the
facts of this specific case. The fact that that the trial court
failed to give an authentication instruction to the jury
further compounds the effect that the issue of authorship
has on the case. Here, the court generally instructed the
jury with regard to circumstantial evidence and the weight
to be accorded it in terms of evaluating whether Mosley
was the transmitter or receiver of the messages.
12
However, the court did not instruct the jury that in order
to prove authentication, circumstantial evidence which
tends to corroborate the identity of the sender is required.
[12]
Instantly, the trial court found that the Commonwealth
authenticated the messages based on the following facts:
(1) similar contacts in both phones; (2) Donte Mosley’s
mother (“Momma Dooks”) as a contact on both phones;
(3) mother of Mosley’s child texting similar messages on
both phones; (4) prior incoming texts referencing
“Donte”. N.T. Jury Trial, 4/18/13, at 93. While these facts
may support authentication, the court does not take into
account the fact that the texts referencing “Donte”
occurred more than one week prior to the current incident
and that the texts from Momma Dooks were sent in April,
June and July of 2012—weeks to months before Mosley’s
arrest. Finally, and most relevant to the issue of
authorship, the court does not discuss the fact that there is
no reference to Donte in any of the drug-related text
messages.
Like Koch, this is a close case regarding authorship and
authentication. Here, there is no evidence, direct or
circumstantial, tending to substantiate that Mosley was
the author of the drug-related text messages. Moreover,
no testimony was presented from persons who sent or
received the text messages. While there may be
contextual clues with regard to some texts, (i.e., one of the
text messages is from Mosley’s mother on July 26, 2012,
just 18 days before his arrest, wishing Mosley a happy
birthday), there are no such clues in the drug-related texts
messages themselves tending to reveal the identity of the
sender. Compare Koch, supra (“reference to or
correspondence with relevant events that precede or
follow the communication in question” may be a
distinctive characteristic under Rule 901(b)(4)).
Additionally, the fact that a text message corroborates the
“crazy horse” stamp on one of the baggies of drugs
discarded by Mosley just prior to his arrest is merely
circumstantial evidence of authentication. Nothing in that
specific message, however, indicates the identity of the
author or recipient of the message.
*1084 As the United States Supreme Court noted in Riley,
supra, more substantial privacy interests are at stake when
digital data is in play:
Cell phones differ in both a
quantitative sense from other
objects that might be kept on an
arrestee’s person. The term “cell
phone” is itself misleading
shorthand; many of these devices
are in fact minicomputers that also
happen to have the capacity to be
used as a telephone. They could
just as easily be called cameras,
video players, rolodexes, calendars,
tape recorders, libraries, diaries,
albums, televisions, maps, or
newspapers.
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
11
Id. at 2489. Moreover, due to their immense capacity to
store data, cell phones “have several interrelated
consequences for privacy[,]” including the different types
of data (i.e., addresses, notes, bank statements,
prescriptions, videos) that can be stored on them, the
sheer amount of information with regard to each type of
stored data, and the fact that the data stored on the cell
phone can date back months or even years to the original
purchase of the phone (or even beyond that date with the
ability to transfer data from an older phone to a newer
one). Id. Finally, due to the fact that most people in the
general population carry a cell phone on their person
throughout the day, “more than 90% of American adults
who own a cell phone keep on their person a digital
record of nearly every aspect of their lives—from the
mundane to the intimate.” Id. at 2490 (citation omitted).
Bearing in mind the unique nature of a cell phone and its
pervasiveness in everyday society, we believe that in
order to use content from a cell phone as testimonial
evidence in a criminal prosecution, the Commonwealth
must clearly prove its authentication. Because there was
no evidence, direct or circumstantial, clearly proving that
Mosley was the author of the drug-related text messages,
or any corroborating witness testimony regarding
authenticity of the messages, we find that the trial court
erred in determining that the drug-related texts were
authenticated properly in the instant case.
13
Hearsay
Even concluding that the text messages were not properly
authenticated, we must still address Mosley’s claims that
the text messages were inadmissible hearsay. Hearsay is
an out-of-court statement offered for the truth of the
matter asserted and is inadmissible unless it falls within
an exception to the hearsay rule. See Pa. R.E. 801(c); Pa.
R.E. 802; Commonwealth v. May, 587 Pa. 184, 898 A.2d
559, 565 (2006). When this type of evidence is in
question, the distinction can be subtle between a
statement that, if admitted, would serve as affirmative and
substantive evidence of the accused’s guilt, and
non-hearsay that may be admitted to establish some other
aspect of a case, such as motive or a witness’s relevant
course of conduct.
[13]
Here, the Commonwealth argues that the texts are
admissible under the hearsay exception set forth in Pa.
R.E. 803(25), which states, “[t]he statement is offered
against an opposing party and: (A) was made by the party
in an individual or representative capacity; [or] (B) is one
the party manifested that it adopted or believed to be
true.” Specifically, the Commonwealth claims that
Mosley’s responses to drug requests that were in the form
of questions falls within the section 803(25) hearsay
exception because they were admitted *1085 to provide
context for the outgoing text messages (statements) he
sent.
With respect to the issue of inadmissible hearsay in Koch,
a detective, who was a Commonwealth expert witness,
testified that in his opinion the text messages found on the
defendant’s cell phone, in conjunction with other factors
(bongs, pipes, large amounts of cash, drug scales) were
consistent with drug sales that implicated the defendant,
even though the detective conceded that the author of the
drug-related text messages could not be definitively
ascertained, that several texts were incomplete and that
some messages referenced the defendant in the third
person. Koch, 39 A.3d at 1002–1003. In addition, the
prosecutor acknowledged that the purpose of the text
evidence was to show that defendant’s phone was used in
drug transactions, and, therefore, that it makes it more
probable than not that when the defendant possessed the
drugs she did so with the intent to deliver it as opposed to
for personal use. Id. at 1005–06. As a result, the Court
concluded that the only relevance of the evidence was to
prove the truth of the matter asserted—that there were
drug-related text messages on defendant’s cell phone and,
therefore, that admission of the messages was an abuse of
discretion and not harmless error. Id. at 1006–07.
Similarly, here Sgt. Rutherford testified that there were
several text messages on the cell phones that, in his
professional opinion, appeared to involve drug trafficking
or setting up deals. N.T. Jury Trial, 9/17/13, at 55. He also
testified that drug dealers often carry two phones, one
personal and one for business, and that cell phones are the
main mode of communication in the drug dealing trade.
Id. at 55–56, 41. However, Sgt. Rutherford testified that
there was no identifying information regarding Mosley in
any of the drug-related texts on either phone. Id. at 59–62,
71. On direct examination, Sgt. Rutherford testified that
narcotics sales are frequently set up with text messaging,
id. at 26, and that because there were similar numbers on
both cell phones and some of the text messages included
Mosley’s name, such facts were consistent with a pattern
of drug sales.
On direct examination by the prosecution, Sgt. Rutherford
testified that the phones contained text messages from
various people indicating “there was a sale of narcotics,
there was a request for different types of narcotics, drugs,
meet, locations, places to meet, things like that.” Id. at 29.
Sergeant Rutherford consistently testified to common
street terms used in illegal drug sales, the manner in
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
12
which dealers often stamp their bags of drugs with
symbols and wording, and that text messages are often
sent to a phone in an attempt to buy drugs. Ultimately, the
prosecutor asked Sgt. Rutherford if, based on his
expertise, he had formed an opinion that the drugs and
cell phones confiscated from Mosley were associated with
the distribution of drugs, or just mere possession for
personal use, to which he replied:
Yes. A combination. I take into account everything, the
totality of everything. You know, a combination of the
packaging, the text messages, this is consistent with
someone who is involved with the sale of narcotics.
And in this case, different types of narcotics.
* * *
A lot of times dealers—I mean, especially with the
heroin because the weights can really affect severe jail
terms. They don’t like to carry a whole lot. I mean,
they’d rather have less. A lot of times you’ll see—in
some of the text messages he says what do you need.
What do you need because sometimes—depending on
where they set up their operation, they *1086 may only
come out with what you ask for.
Id. at 46, 52.
[14]
Taking into account the content of the texts in this
case, as well as the erroneously admitted evidence of
Officer Doyle’s statement regarding drug activity, we
conclude that under Koch the admission of the messages
was an abuse of discretion where the texts were admitted
to prove the truth of the matter asserted—that Mosley
possessed the drugs with the intent to deliver. However, if
we discount the improperly admitted text messages and
Officer Doyle’s statement, we conclude that there is
substantially similar evidence showing that Mosley
possessed the drugs with the intent to deliver. See infra at
1086–87. Therefore, we find that the improper admission
of the statement and text messages was harmless error,
did not unduly prejudice Mosley, and still resulted in a
fair trial. See Watson, supra; West, supra; Story, supra.
Sufficiency & Weight of the Evidence
[15]
Mosley contends that there was insufficient evidence
to prove that he committed the crimes of possession and
possession with intent to deliver. Specifically, he argues
that the passenger in the Cadillac was just as likely to
have possessed the drugs as he was and that the
Commonwealth failed to show that he exercised
conscious dominion over the drugs.
In reviewing a challenge to the sufficiency of the
evidence, we must determine whether, viewing the
evidence in the light most favorable to the
Commonwealth as verdict winner, together with all
reasonable inferences therefrom, the trier of fact could
have found that each and every element of the crimes
charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674
(Pa.Super.2000).
First, Mosley was driving the car from which two clear
plastic bags (each containing multiple baggies within)
were thrown out of the driver’s side window. Second, no
drugs, paraphernalia or other incriminating drug evidence
was found on the passenger in the Cadillac. Third, expert
testimony by Sgt. Rutherford confirmed that the
packaging, weight and type of drugs, in addition to the
$117.00 and cell phones found on Mosley’s person at the
time of his arrest, are all indicative of possessing drugs
with the intent to deliver. Accordingly, we find that there
was sufficient evidence to support Mosley’s conviction
for possession and possession with the intent to deliver.
Cf. Koch, supra at 1007 (Commonwealth failed to present
overwhelming properly admitted evidence regarding
defendant’s involvement in drug transactions;
prosecution’s case consisted of text message evidence and
that drugs were found in defendant’s shared bedroom, in
common areas of home, and no drugs or money found on
defendant’s person).
[16]
Next, Mosley contends that the verdict is against the
weight of the evidence, where the actual possessor of the
drugs thrown from the car was not and could not be
determined. We disagree.
[17]
[18]
[19]
When a defendant challenges the weight of the
evidence, relief in the form of a new trial may be granted
only where the verdict shocks one’s sense of justice. This
Court reviews the trial court’s exercise of discretion in
ruling on the weight claim, not the underlying question of
whether the verdict was against the weight of the
evidence. Commonwealth v. Champney, 574 Pa. 435, 832
A.2d 403, 408 (2003); Commonwealth v. Rabold, 920
A.2d 857, 860–61 (Pa.Super.2007), aff’d 597 Pa. 344, 951
A.2d 329 (2008). In reviewing the trial court’s decision
concerning the weight of the evidence, an appellate court
*1087 is not passing on the credibility of witnesses.
Commonwealth v. Woody, 451 Pa.Super. 324, 679 A.2d
817, 819–20 (1996). This is a function that is solely
within the province of the finder of fact which is free to
believe all, part of none of the evidence. Id.
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
13
Here, the jury heard the evidence that Mosley was the
driver of the black Cadillac, that two bags later identified
as containing drugs were discarded from the driver’s side
window while the vehicle was being pursued by the
police, and that $117 in U.S. currency, and two cell
phones were found on his person upon being stopped and
searched. A Commonwealth expert testified that this
evidence was indicative of drug possession and
possession with the intent to deliver. Accordingly, we find
that given the evidence presented to prove that Mosley
committed these possessory offenses, the verdict does not
shock one’s sense of justice; the court’s decision to deny
the challenge to the weight of the evidence is not contrary
to law, manifestly unreasonable or the result of bias,
prejudice, partiality or ill-will. Champney, supra.
Reopen Suppression Hearing
[20]
Mosley next contends that the trial court improperly
denied his request, at the end of the suppression hearing,
to reopen the record to permit him to introduce testimony
regarding the operation of and access to the cell phones.
Specifically, Mosley asserted that because defense
counsel was surprised at the hearing by Officer
McDevitt’s testimony regarding the operation of the cell
phone, counsel needed proof that in order to view the
texts, some affirmative action by the officer (such as
swiping or unlocking with a password) needed to occur.
Having found that any improper viewing of the text
messages, by Officer McDevitt, on the cell phones
confiscated incident to Mosley’s arrest was harmless error
in light of the subsequently and independently secured
search warrant, we find this issue moot on appeal.
Alleyne Sentencing Issue
Finally, Mosley contends that the trial court’s application
of the mandatory minimum to his sentence is illegal
because the United States Supreme Court’s decision,
Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151,
186 L.Ed.2d 314 (2013), has rendered the sentencing
scheme under section 7508 constitutionally suspect.
Additionally, he claims that even though the jury used a
special verdict to allow the factfinder to determine the
weight of the drugs possessed, by a reasonable doubt, the
verdict still violates section 7508 and its plain legislative
intent. We agree.
[21]
First, we must address the Commonwealth’s
contention that Mosley has waived this issue on appeal
due to his failure to include an Alleyne-based sentence
challenge at sentencing, in his post-sentence motion, or in
his Pa. R.A.P. 1925(b) concise statement of errors
complained of on appeal. In Commonwealth v. Watley, 81
A.3d 108, 118 (Pa.Super.2013) (en banc),
14
our Court
observed that “where [a]pplication of a mandatory
minimum sentence gives rise to illegal sentence concerns,
even where the sentence is within the statutory limits[,]
[sic] [l]egality of sentence questions are not waivable”
and may be raised sua sponte by this Court.
15
*1088
Because Mosley’s claim falls within this narrow ambit of
cases and, therefore, is not subject to traditional issue
preservation, we will address its merits.
In Alleyne, supra, a case concerning the application of a
federal mandatory minimum statute, the Supreme Court
held that any fact that triggers an increase in the
mandatory minimum sentence for a crime is necessarily
an element of the offense. Id. at 2163–64. The Supreme
Court reasoned that “the core crime and the fact triggering
the mandatory minimum sentence together constitute a
new, aggravated crime” and consequently, the Sixth
Amendment requires that every element of the crime,
including any fact that triggers the mandatory minimum,
must be alleged in the charging document, submitted to a
jury, and found beyond a reasonable doubt. Id. at
2160–64.
In Commonwealth v. Munday, 78 A.3d 661
(Pa.Super.2013), our Court discussed the application of
Alleyne to this Commonwealth’s mandatory minimum
statutes:
This term, in Alleyne, the United States Supreme Court
expressly overruled Harris, holding that any fact that
increases the mandatory minimum sentence for a crime
“is ‘an element’ that must be submitted to the jury and
found beyond a reasonable doubt.” Alleyne, 133 S.Ct.
at 2155, 2163. The Alleyne majority reasoned that
“[w]hile Harris limited Apprendi to facts increasing the
statutory maximum, the principle applied in Apprendi
applies with equal force to facts increasing the
mandatory minimum.” [Id.] at 2160. This is because
“[i]t is impossible to dissociate the floor of a sentencing
range from the penalty affixed to the crime[,]” and “it
is impossible to dispute that facts increasing the legally
prescribed floor aggravate the punishment.” Id. at 2161.
Thus, “[t]his reality demonstrates that the core crime
and the fact triggering the mandatory minimum
sentence together constitute a new, aggravated crime,
each element of which must be submitted to the jury.”
Id.
Id. at 665. In Munday, the Court held that even where a
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
14
statute specifically stated that its “provisions ... shall not
be an element of the crime,”
16
the sentencing factor [or
factual predicate] at issue still had to be determined by the
factfinder, beyond a reasonable doubt. Id. at 666. Thus,
the Court found that the defendant’s sentence, which
included the mandatory minimum sentence under section
9712.1 (sentences for certain drug offenses committed
with firearms), violated the Due Process Clause of the
Fourteenth Amendment and the jury trial guarantee of the
Sixth Amendment. As a result, the Court vacated the
defendant’s judgment of sentence and remanded for
resentencing. Id. at 667.
[22]
Instantly, Mosley was sentenced pursuant to the
mandatory minimum statute, section 7508 of the
Sentencing Code, which states, in pertinent part:
(a) General rule.—Notwithstanding any other
provisions of this or any other act to the contrary, the
following provisions shall apply:
*1089 (3) A person who is convicted of violating
section 13(a)(14), (30) or (37) of The Controlled
Substance, Drug, Device and Cosmetic Act where
the controlled substance is coca leaves or is any salt,
compound, derivative or preparation of coca leaves
or is any salt, compound, derivative or preparation
which is chemically equivalent or identical with any
of these substances or is any mixture containing any
of these substances except decocainized coca leaves
or extracts of coca leaves which (extracts) do not
contain cocaine or ecgonine shall, upon conviction,
be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this
subsection:
(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at
least ten grams and less than 100 grams; three
years in prison and a fine of $ 15,000 or such larger
amount as is sufficient to exhaust the assets utilized
in and the proceeds from the illegal activity;
however, if at the time of sentencing the defendant
has been convicted of another drug trafficking
offense: five years in prison and $ 30,000 or such
larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal
activity[.]
(b) Proof of sentencing.—Provisions of this section
shall not be an element of the crime. Notice of the
applicability of this section to the defendant shall not
be required prior to conviction, but reasonable notice of
the Commonwealth’s intention to proceed under this
section shall be provided after conviction and before
sentencing. The applicability of this section shall be
determined at sentencing. The court shall consider
evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to
present necessary additional evidence and shall
determine, by a preponderance of the evidence, if this
section is applicable.
18 Pa.C.S. § 7508(a)(3)(ii) (emphasis added), (b)
(emphasis added). Therefore the factual predicate of
section 7508 is that the aggregate weight of the prohibited
substance possessed by the defendant be at least 10 and
no more than 100 grams.
In Commonwealth v. Thompson, 93 A.3d 478
(Pa.Super.2014), the trial court applied the mandatory
minimum provisions of section 7508 to the defendant’s
sentence. On appeal, our Court held that because the
weight of the drugs possessed by the defendant had not
been determined by the fact-finder, nor proven beyond a
reasonable doubt, the defendant’s sentence was illegal and
required vacation. Specifically, the Court noted that
section 7508(a) cannot be constitutionally applied in light
of Alleyne, or it would result in an illegal sentence.
Similarly, in Commonwealth v. Fennell, 105 A.3d 13
(Pa.Super.2014), where the defendant stipulated to the
weight of the drugs for purposes of applying the
mandatory minimum to his sentence, our Court also
concluded that section 7508(b), which permits the trial
court to find the necessary elements by a preponderance
of the evidence, was not severable from the rest of the
statute. The Court concluded that stipulating to the drug’s
weight, in effect, allows a trial court to impose a
mandatory minimum outside the statutory framework,
where such procedures are solely within the province of
the factfinder. Id. at 20. As a result the Court deemed
section 7508 unconstitutional and that any mandatory
minimum imposed under this statute is illegal. Id. at
15–18.
Although the principles of Alleyne and it progeny apply to
Mosley’s section 7508 *1090 mandatory minimum
sentence, the sentencing procedure in the instant case
differs from that employed in Thompson and Fennell.
17
As
a result, the Commonwealth contends that Mosley’s
sentence should not be deemed illegal. We disagree.
Here, the jury was presented with a special verdict form
that included the specific issue:
If you find the defendant guilty of
Count 4(c): possession with intent
to deliver, do you find the
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
15
defendant guilty of possession with
intent to deliver greater than 10
grams of cocaine?
Jury Verdict Form, 9/17/13 (emphasis added). Therefore,
the issue regarding the weight of the drugs possessed by
Mosley appears to have been determined, beyond a
reasonable doubt, by the jury as factfinder. However, our
Court has held that trial courts lack the authority to
employ special verdict slips in cases involving mandatory
minimum sentences that implicate Alleyne. See
Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super.2014); Commonwealth v. Newman, 99 A.3d 86
(Pa.Super.2014) (en banc).
In Valentine, the defendant had been convicted by a jury
of robbery and sentenced to 5–10 years’ imprisonment,
which included application of two mandatory minimum
sentencing provisions, 42 Pa.C.S. §§ 9712 (visible
possession of firearm) and 9713 (offense committed
in/near public transportation). Valentine, 101 A.3d at
804–805. Similar to the instant case, the trial court
presented the jury with a special verdict slip, asking it to
determine whether the factual predicates had been proven
beyond a reasonable doubt. Id. On appeal, the defendant,
like Mosley, raised the issue whether the mandatory
minimum sentence imposed was illegal since the
provisions of the sentencing statutes were rendered
unconstitutional in light of Alleyne. In coming to its
decision, the Valentine Court found Newman, supra,
instructive, which also reviewed the constitutionality of
section 9712 and determined that the factual predicate of
that statute (visible possession of firearm) must be
presented to the factfinder and determined beyond a
reasonable doubt. Notably, the Newman Court declined to
accept the Commonwealth’s proposed remedy to have the
case remanded for a sentencing jury to determine beyond
a reasonable doubt whether the Commonwealth had
proven the factual predicates of section 9712.
In reaching its holding, the Newman Court stated:
The Commonwealth’s suggestion
that we remand for a sentencing
jury would require this court to
manufacture whole cloth a
replacement enforcement
mechanism for Section 9712.1; in
other words, the Commonwealth is
asking us to legislate. We recognize
that in the prosecution of capital
cases in Pennsylvania, there is a
similar, bifurcated process where
the jury first determines guilt in the
trial proceeding (the guilt phase)
and then weighs aggravating and
mitigating factors in the sentencing
proceeding (the penalty phase).
However, this mechanism was
created by the General Assembly
and is enshrined in our statutes at
42 Pa.C.S.[ ] § 9711. We find that
it is manifestly the province of the
General Assembly to determine
what new procedures must be
created in order to impose
mandatory minimum sentences in
Pennsylvania following Alleyne.
We cannot do so.
*1091 Newman, 99 A.3d at 102. Ultimately, the Valentine
Court applied the holding of Newman to conclude that
“the trial court performed an impermissible legislative
function by creating a new procedure in an effort to
impose the mandatory minimum sentences in compliance
with Alleyne.” Valentine, 101 A.3d at 811. Because
Newman makes it clear that it is the General Assembly’s
function to determine what new procedures must be
created to impose mandatory minimum sentences in this
Commonwealth, the trial court exceeded its authority by
asking the jury to determine the factual predicates of
sections 9712(c) and 9713(c). Id. at 812.
Similarly, here the trial court exceeded its authority by
permitting the jury, via a special verdict slip, to determine
beyond a reasonable doubt the factual predicate of section
7508—whether Mosley possessed cocaine that weighed
greater than 10 grams. Even though the jury responded
“yes” to the inquiry, the trial court performed an
impermissible legislative function by creating a new
procedure in an effort to impose the mandatory minimum
sentence in compliance with Alleyne. Accordingly, we
must vacate the defendant’s judgment of sentence and
remand for resentencing without the mandatory
minimum. Valentine, supra. See also Commonwealth v.
Ferguson, 2015 PA Super 1, 107 A.3d 206
(Pa.Super.2015) (defendant’s sentence vacated and
remanded for resentencing without consideration of
mandatory minimum sentences where trial court lacked
authority to have jury determine, via verdict slip, factual
predicate under section 9712).
Convictions affirmed. Judgment of sentence vacated.
Case remanded. Jurisdiction relinquished.
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
16
All Citations
114 A.3d 1072, 2015 PA Super 88
Footnotes
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780–113(a)(16).
2
35 P.S. § 780–113(a)(30).
3
The possession charges merged, for sentencing purposes, with the intent to deliver charge.
4
Each bag was knotted at the top. One bag contained five bags (baggies) of a white powdery substance. N.T. Trial Testimony,
9/16/13, at 177. The other bag contained three bags (baggies) of suspected heroin. Id.
5
The parties stipulated that the Pennsylvania State Police Crime Lab evaluated the substances found in the two plastic bags
discarded from the Cadillac and determined the interior baggies contained 10.5 grams of cocaine, 0.64 grams of heroin, and 6
oxycontin pills. The baggies of heroin had the words “crazy horse” written on them.
6
One cell phone was a Samsung and the other phone was an HTC.
7
The search warrant identified the following items to be searched and seized:
Any and all text messages (incoming and outgoing), email messages (incoming and outgoing), photographs, contacts and
other forms of electronic communication. Any items used to kee
p drug transaction records (spreadsheets etc.). Any and all
secondary cell phone applications (and its contents) which are capable of sending receiving voice calls, text messages, and
emails. Any and all other contraband.
Application for Search Warrant and Authorization, 2/28/13, at 1, 4.
8
The trial judge gave the following limiting instruction as to text messages:
This evidence is before you for a limited purpose and it is for the
purpose of tending to show the Defendant is fluent in the
language used by those persons who deal in illegal drug transactions. Thi
s evidence must not be construed by you or
considered by you in any way other than for the purpose I just stated. You must not regard this evidence as showing that the
Defendant is a person of bad character or criminal tendencies from which you might include—
be inclined to infer guilt. The
Defendant contends that he is not the transmitter or receiver of the text messages. However, you may consider
circumstantial evidence in evaluating this issue and provide whatever weight you deem appropriate thereto.
N.T. Jury Trial, 9/17/13, at 165 (emphasis added).
9
We have consolidated our review of issues 2–5, as they are intertwined.
10
Compare N.T. Suppression Hearing, 4/18/13 (McDevitt testifying that he did not click on any icon to view messages, but that they
just “were popping up ... coming up on the screen”) and id. at 83–
84 (McDevitt testifying that he did not have to do anything to
view the messages on the cell phone) with id.
at 84 (McDevitt testifying that he didn’t recall whether he had to swipe anything to
view the text messages).
11
When a judgment of sentence is affirmed by an equally divided court, as in the Koch case, no precedent is established and the
holding is not binding on other cases. Commonwealth v. James, 493 Pa. 545, 427 A.2d 148 (1981).
12
Interestingly, the trial court stated:
In light of the testimony that’s been presented[,] I’m going to say the authentication of electronic communications—
like
documents, requires more than mere confirmation that the number address belonged to a particular person. Circumstantial
evidence which tends to corroborate the identity of the sender is required. I’m going to give that instruction.
Com. v. Mosley, 114 A.3d 1072 (2015)
2015 PA Super 88
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
17
N.T. Jury Trial, 9/17/13, at 101. Despite this statement, the court never gave an instruction specifically referencing
authentication of the messages; defense counsel objected to this omission. Id. at 112.
13
We leave for another day the quantum and quality of evidence necessary to “clearly” prove authentication of text messages.
14
In Watley, the defendant did not even raise his Alleyne argument on appeal. Rather, this Court raised the issue sua sponte.
15
We are aware that our Supreme Court has accepted allowance of appeal on the issue of whether Alleyne relates to the legality of
sentence, stating as the issue follows:
Whether a challenge to a sentence pursuant to Alleyne v. United States [––– U.S. ––––], 133 S.Ct. 2151 [186
L.Ed.2d 314]
(2013), implicates the legality of the sentence and is therefore non-waivable.
Commonwealth v. Johnson, 625 Pa. 562, 93 A.3d 806 (2014)
. However, until the Supreme Court overrules the non-
waivability
language found in Watley, we are bound by that case and its progeny.
16
We note that section 7508 contains identical language in its “proof at sentencing” subsection as that found in other mandatory
minimum statutes. See also 18 Pa.C.S. § 6317(b) & 42 Pa.C.S. § 9712.1(c) (identical proof of sentencing provision language).
17
See also Commonwealth v. Vargas, 2014 PA Super 289, 108 A.3d 858 (2014) (relying on Fennell which held section 7508
unconstitutional, as applied in light of Alleyne,
and that even though defendant stipulated to weight of drugs, sentence applying
mandatory minimum was illegal).
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Commonwealth v. Graham, 196 A.3d 661 (2018)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
196 A.3d 661
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellant
v.
Sabine I. GRAHAM
No. 1438 MDA 2017
|
Submitted April 30, 2018
|
Filed September 24, 2018
Synopsis
Background: Defendant was charged with one count of
drug delivery resulting in death, possession with intent to
deliver a controlled substance, and delivery of a
controlled substance. The Court of Common Pleas, Centre
County, Criminal Division, No.
CP-14-CR-0000758-2017, Thomas King Kistler, J.,
granted defendant’s motion to transfer venue.
Commonwealth appealed.
[Holding:] The Superior Court, No. 1438 MDA 2017,
Olson, J., held that venue existed in both county where
defendant conveyed the controlled substance to victim
and county where victim ingested controlled substance
and died.
Vacated and remanded.
Kunselman, J. joined the opinion.
Musmanno, J., filed a dissenting opinion.
West Headnotes (2)
[1]
Criminal Law
Jurisdiction and venue
Criminal Law
Jurisdiction and venue
Appellate review of venue challenges, similar to
that applicable to other pre-
trial motions, should
turn on whether the trial court’s factual findings
are supported by the record and its conclusions
of law are free of legal error.
Cases that cite this headnote
[2]
Criminal Law
Homicide
Venue existed in both county where defendant
conveyed the controlled substance to victim and
county where victim ingested the controlled
substance, her body
was recovered, law
enforcement started an investigation, the
autopsy was performed, witnesses resided, and
physical evidence was collected, and thus, trial
court was required to assess the convenience of
the parties in going forward with the prosecution
f
or drug delivery resulting in death and other
offenses. 18 Pa. Cons. Stat. Ann. §§ 102
,
2506(a).
Cases that cite this headnote
*662 Appeal from the Order Entered August 15, 2017, In
the Court of Common Pleas of Centre County, Criminal
Division at No(s): CP-14-CR-0000758-2017. Thomas
King Kistler, J.
Attorneys and Law Firms
Sean P. McGraw, Assistant District Attorney, Bellefonte,
for Commonwealth, appellant.
Steven P. Trialonas, State College, for appellee.
BEFORE: OLSON, J., KUNSELMAN, J., and
MUSMANNO, J.
Opinion
OPINION BY OLSON, J.:
The Commonwealth of Pennsylvania (Commonwealth)
appeals from the order entered on August 15, 2017 which
Commonwealth v. Graham, 196 A.3d 661 (2018)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
granted Sabine I. Graham’s (Graham) motion to transfer
venue and transferred this case from Centre County to
Clinton County.
1
After careful consideration, we vacate
and remand.
The trial court summarized the relevant facts as follows:
The Commonwealth alleges that on
February 13, 2016, [Graham],
along with Maria Gilligan [
(Gilligan) ] and Corinne Pena [
(Pena) ], traveled from State
Collage, in Centre County, to Lock
Haven, in Clinton County. The
purpose of this trip was for
[Graham] to obtain heroin to sell to
Gilligan and Pena. [Graham] met
with a man named “Jay” in the
Lock Haven area and obtained
twenty-two (22) bags of what
[Graham] believed to be heroin.
[Graham] then gave fourteen (14)
of those bags to Pena before
[Graham], Gilligan, and Pena drove
back to State College. When Pena
returned to State College, her
friend[,] Robert Moir [ (Moir),]
picked her up from the parking lot
near Walmart on North Atherton
Street and drove her to his home.
Later that evening, Pena ingested
eight (8) bags of what she believed
was heroin. The bags actually
contained fentanyl[,] and Pena
subsequently died of a fentanyl
overdose [in Moir’s home].
Trial Court Opinion, 8/15/17, at 1-2.
Graham was charged in Centre County with one count of
drug delivery resulting in death, possession with intent to
deliver a controlled substance, and delivery of a
controlled substance.
2
See 18 Pa.C.S.A. § 2506(a); 35 P.S.
§ 780-113(a)(30). Graham filed a motion to transfer on
June 28, *663 2017,
3
asserting that venue in Centre
County was improper, and that the case should be
transferred to Clinton County. Following a hearing and an
opportunity for both parties to submit briefs on the issue,
the trial court granted Graham’s motion to transfer and
directed that the case be transferred to Clinton County.
The Commonwealth filed a timely notice of appeal. On
September 14, 2017, the trial court ordered the
Commonwealth to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After receiving an extension of time to file its concise
statement, the Commonwealth complied.
The Commonwealth’s brief raises the following question
for our review:
Whether Centre County has
properly exercised venue over a
prosecution for a criminal episode
that began in Centre County with
an agreement to obtain heroin and
ended in Centre County with a
deceased overdose victim whose
body was found in Centre County?
Commonwealth’s Brief at 4.
[1]
“Appellate review of venue challenges, similar to that
applicable to other pre-trial motions, should turn on
whether the trial court’s factual findings are supported by
the record and its conclusions of law are free of legal
error.” Commonwealth v. Gross, 627 Pa. 383, 101 A.3d
28, 33-34 (2014).
[2]
The Commonwealth argues that the trial court erred in
granting Graham’s motion to transfer. Commonwealth’s
Brief at 10. Characterizing this case as a homicide, the
Commonwealth argues that “jurisdiction is conferred
upon Centre County by statute” because Pena’s body was
recovered in Centre County. Id. (quotation and ellipses
omitted); see also 18 Pa.C.S.A. § 102(c) (stating that
[w]hen the offense is homicide ..., either the death of the
victim ... or the bodily impact causing death constitutes a
‘result’ ..., and if the body of a homicide victim ... is
found within this Commonwealth, it is presumed that
such result occurred within this Commonwealth[ ]”).
4
Additionally, the Commonwealth argues that Centre
County is the proper venue because it is the county where
(1) law enforcement started an investigation; (2) the
autopsy was performed; (3) witnesses reside; and, (4)
physical evidence was collected. Commonwealth’s Brief
at 15. The Commonwealth also points out that both
Graham and co-defendant Gilligan were residents of
Centre County. Id.
Our Supreme Court has explained the concept of venue
under Pennsylvania law and contrasted that concept with
Commonwealth v. Graham, 196 A.3d 661 (2018)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
the closely-related subject of jurisdiction.
Jurisdiction relates to the court’s power to hear and
decide the controversy presented. Commonwealth v.
Bethea, 574 Pa. 100, 828 A.2d 1066, 1074 (Pa. 2003)
(citation omitted). “[A]ll courts of common pleas have
statewide subject matter jurisdiction in cases arising
under the Crimes Code.” Id. ... Venue, on the other
hand, refers to the convenience and locality of trial, or
“the right of a party to have the controversy brought
and heard in a particular judicial district.” Bethea, at
1074 (citation omitted). Venue assumes jurisdiction
exists *664 and it “can only be proper where
jurisdiction already exists.” Id. at 1074–1075 (citation
omitted). Even though all common pleas courts may
have jurisdiction to resolve a case, such should only be
exercised in the judicial district in which venue lies.
See id. at 1075 (“Rules of venue recognize the
propriety of imposing geographic limitations on the
exercise of jurisdiction.”). “Venue in a criminal action
properly belongs in the place where the crime
occurred.” Id. (citation omitted).
Our criminal procedural rules provide a system in
which defendants can seek transfer of proceedings to
another judicial district due to prejudice or pre-trial
publicity. Such decisions are generally left to the trial
court’s discretion. See Commonwealth v. Chambers,
546 Pa. 370, 685 A.2d 96, 103 (1996) (citation
omitted). Venue challenges concerning the locality of a
crime, on the other hand, stem from the Sixth
Amendment to the United States Constitution and
Article I, § 9 of the Pennsylvania Constitution, both of
which require that a criminal defendant stand trial in
the county in which the crime was committed,
protecting the accused from unfair prosecutorial forum
shopping. Thus, proof of venue, or the locus of the
crime, is inherently required in all criminal cases.
The burden of proof in relation to venue challenges has
not been definitively established in our decisional law
or our criminal procedural rules. Because the
Commonwealth selects the county of trial, we now hold
it shall bear the burden of proving venue is
proper—that is, evidence an offense occurred in the
judicial district with which the defendant may be
criminally associated, either directly, jointly, or
vicariously. Although our sister states are not in
agreement as to the requisite degree of proof, [the
Pennsylvania Supreme Court finds that] the
Commonwealth should prove venue by a
preponderance of the evidence once the defendant
properly raises the issue. Venue merely concerns the
judicial district in which the prosecution is to be
conducted; it is not an essential element of the crime,
nor does it relate to guilt or innocence. Because venue
is not part of a crime, it need not be proven beyond a
reasonable doubt as essential elements must be.
Accordingly, applying the
preponderance-of-the-evidence standard to venue
challenges allows trial courts to speedily resolve this
threshold issue without infringing on the accused’s
constitutional rights. Like essential elements of a crime,
venue need not be proven by direct evidence but may
be inferred by circumstantial evidence. See, e.g.,
Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655,
662 (2007) (citation omitted)[.]
Commonwealth v. Gross, 627 Pa. 383, 101 A.3d 28,
32-34 (Pa. 2014) (parallel citations omitted).
Although there is no exclusive provision which sets forth
the statutory grounds for establishing venue in a particular
county within Pennsylvania, “our courts frequently [look
to 18 Pa.C.S.A. § 102] in determining the proper county
in which a criminal trial should take place.”
Commonwealth v. Field, 827 A.2d 1231, 1233 (Pa.
Super. 2003) (citing cases), appeal denied, 847 A.2d 1279
(Pa. 2004). Looking to this provision, § 102 provides, in
relevant part, that an individual may be convicted in a
county if, among other things, his “conduct which is an
element of the offense or the result of which is such an
element occurs within the [county].” 18 Pa.C.S.A. §
102(a)(1) (emphasis added). Under § 102, then, venue is
proper in a county where either an element of an offense
or a required result occurs. An “element of an *665
offense” consists of conduct which is “included in the
description of the forbidden conduct in the definition of
the offense.” See 18 Pa.C.S.A. § 103. Section 102 further
provides that in the case of a homicide, “either the death
of the victim ... or the bodily impact causing death
constitutes a result within the meaning of paragraph (a)(1)
of this section[.]” 18 Pa.C.S.A. 102(c) (internal citations
omitted). In the present case, the Commonwealth charged
the defendant with drug delivery resulting in death, which
involves two principal elements: (1) an intentional
conveyance of any controlled substance or counterfeit
controlled substance, and (2) death resulting from the use
of the conveyed substance. See Commonwealth v.
Kakhankham, 132 A.3d 986, 991-992 (Pa. Super. 2015),
appeal denied, 635 Pa. 773, 138 A.3d 4 (2016).
The trial court concluded that while the victim died in
Centre County, and while the death of an individual is an
element of the instant offense, it would be inappropriate
for Centre County to exercise venue since the only overt
act was the defendant’s conveyance of drugs to the
victim, which occurred in Clinton County. See Trial Court
Opinion, 8/15/17, at 3. In resolving the venue question
presented in this case, the trial court relied solely on the
Commonwealth v. Graham, 196 A.3d 661 (2018)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
defendant’s overt act of conveying a controlled substance
to the victim without regard to the resulting death that
occurred in Centre County.
The trial court misconstrued the plain language of § 102.
The court seems to conclude that venue is proper only
where an overt act occurred, regardless of the location
where an elemental result transpires. Under the plain
terms of § 102, however, venue is proper where either an
element of the offense occurred or a required result took
place. Here, the defendant conveyed a controlled
substance to the victim in Clinton County and, thereafter,
the victim ingested the drugs and died in Centre County.
Under § 102, the statutory requirements for venue exist in
both Clinton and Centre Counties. Since venue would be
proper in either county under § 102, it was incumbent
upon the trial court to assess the convenience of the
parties in going forward with the proceedings in either
Clinton County or Centre County. See Bethea, 828 A.2d
at 1074-1075 (“venue pertains to the locality most
convenient to the proper disposition of a matter”).
Because it was error for the trial court to exclude Centre
County as a viable venue option, we vacate the court’s
transfer order and remand this matter for further
proceedings in which the convenience of the parties can
be assessed.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Kunselman joins.
Judge Musmanno files a Dissenting Opinion.
DISSENTING OPINION BY MUSMANNO, J.:
I respectfully disagree with the Majority’s conclusion that
the trial court erred by failing to assess the convenience of
the parties, relative to each locality, before transferring
the case from Centre County to Clinton County.
“Venue in a criminal action properly belongs in the place
where the crime occurred.” Commonwealth v. Bethea,
574 Pa. 100, 828 A.2d 1066, 1075 (2003). Pursuant to 18
Pa.C.S.A. § 102(a)(1), a person may be convicted in this
Commonwealth if “the conduct which is an element of the
offense or the result which is such an element occurs
within this Commonwealth.” 18 Pa.C.S.A. § 102(a)(1);
see also Commonwealth v. Field, 827 A.2d 1231, 1233
(Pa. Super. 2003) (stating that our courts have looked to
the provisions of *666 section 102 in determining the
proper county in which a criminal trial should take place).
“For a county to exercise jurisdiction over a criminal case,
an overt act involved in the crime must have occurred
within that county.” Commonwealth v. Passmore, 857
A.2d 697, 709 (Pa. Super. 2004). “In order to base
jurisdiction on an overt act, the act must have been
essential to the crime[.]” Commonwealth v. Donahue,
428 Pa.Super. 259, 630 A.2d 1238, 1243 (1993) (citation
omitted); see also Field, 827 A.2d at 1234 (stating that,
while not constitutionally prohibited, “trial outside the
county [where the offense occurred] is a mechanism
which must be used sparingly, to prohibit dragging the
accused all over the [C]ommonwealth....” (citation
omitted) ).
In considering Graham’s Motion to Transfer, the trial
court acknowledged that the death of an individual is an
element of the crime of drug delivery resulting in death,
and that the death occurred in Centre County. See Trial
Court Opinion, 8/15/17, at 3. The trial court rejected the
Commonwealth’s argument, based on 18 Pa.C.S.A. §
102(c) (concerning homicide offenses), that venue is
proper in Centre County because Pena’s body was found
in Centre County.
1
The trial court granted Graham’s
Motion to Transfer, reasoning that the only overt act, i.e.,
Graham’s delivery of the drugs to Pena, occurred in
Clinton County. See id. at 3-4. Here, Graham traveled
from Centre County to Clinton County for the purpose of
obtaining heroin, and delivered the drugs to Pena while
they were in Clinton County. After the delivery had been
completed, Graham no longer exercised control over the
drugs, and did not control where or when Pena ingested
the drugs, the quantity of the drugs she consumed, or
whether she died as a result. Thus, the facts support the
trial court’s determination.
On review, the Majority concludes that the venue
requirements set forth in section 102 exist in both Clinton
and Centre County, and remands the case for the trial
court to assess the convenience of the parties with respect
to proceeding in either locality. However, as the Majority
acknowledges, venue may be proper in either county, and
therefore, I cannot agree that the trial court’s decision to
transfer the case to Clinton County was clearly erroneous.
See Commonwealth v. Gross, 627 Pa. 383, 101 A.3d 28,
33-34 (2014) (stating that our review of venue challenges
“should turn on whether the trial court’s factual findings
are supported by the record and its conclusions of law are
free of legal error.”). While acknowledging that a venue
challenge generally encompasses the question of which
locality is most convenient to the disposition of the case,
see Bethea, 828 A.2d at 1074-75, I cannot agree with the
Commonwealth’s assertion that “transferring this case ...
Commonwealth v. Graham, 196 A.3d 661 (2018)
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
would significantly disrupt the execution of justice.”
Commonwealth’s Brief at 16. Indeed, Centre County and
Clinton County are adjacent to one another, and their
respective courthouses are located less than 30 miles
apart. See *667 Commonwealth v. Miskovitch, 64 A.3d
672, 689 (Pa. Super. 2013) (concluding that appellant was
not prejudiced by transfer of venue from Allegheny to
Westmoreland County, because they are adjoining
counties, and “the burdens associated with traveling to the
other venue are minimal”). Based upon the foregoing, I
would affirm the Order of the trial court.
Judgment Entered.
All Citations
196 A.3d 661
Footnotes
1
An appeal from an interlocutory order transferring venue in a criminal case is reviewable as of right. See Pa.R.A.P. 311(3).
2
Gilligan was also charged as a result of the incident, and on June 1, 2017, the Commonwealth issued notice of its intent to
consolidate the cases pursuant to Pa.R.Crim.P. 582. Gilligan, however, is not a party to the instant appeal.
3
The motion was docketed on June 29, 2017.
4
The Commonwealth in its brief cites to Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623 (2005) and asserts that 18 Pa.C.S.A. §
2506 classifies drug delivery resulting in death a murder of the third degree. Although the version of § 2506 challenged in
Ludwig
defined the offense as third-degree murder, the current version of § 2506
defines drug delivery resulting in death as a felony of
the first-degree. See 18 Pa.C.S.A. § 2506.
1
The Commonwealth relied on—and the Majority cites to—section 102(c), which permits the presumption that if the body of a
homicide victim is found within this Commonwealth, it is presumed that the death or bodily impact resulting in death also
occurred within this Commonwealth. However, because the offense of drug delivery resulting in death is a first-
degree felony,
rather than a homicide offense, see 18 Pa.C.S.A. § 2506, section 102(c) is irrelevant to the venue analysis in the instant case.
See
generally Field, 827 A.2d at 1234 (noting that the specific provision in section 102(c)
, which permits trial in the county where the
victim is found, overrides the general rule that trial is proper only in the county where the criminal conduct occurred).
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
156 A.3d 261
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee
v.
Jonathan Michael PROCTOR, Appellant
No. 168 WDA 2016
|
Argued November 30, 2016
|
FILED FEBRUARY 09, 2017
|
Reargument Denied April 19, 2017
Synopsis
Background: Defendant was convicted in the Court of
Common Pleas, Potter County, Criminal Division, No.
CP–53–CR–0000249–2014, Stephen P.B. Minor, J., of
drug delivery resulting in death, flight to avoid
apprehension, trial, or punishment, manufacture, delivery,
or possession of a controlled substance with intent to
manufacture or deliver, possession of a controlled
substance, criminal conspiracy, and use or possession of
drug paraphernalia, and was sentenced to an aggregate
term of 12 years and 10 months to 26 years and 10
months of incarceration. Defendant appealed.
Holdings: The Superior Court, No. 168 WDA 2016,
Strassburger, J., held that:
[1]
statute prohibiting drug delivery resulting in death was
not unconstitutionally vague as applied to defendant;
[2]
defendant’s conduct satisfied causation element of the
crime of drug delivery resulting in death;
[3]
trial court did not abuse its discretion in refusing to
grant mistrial;
[4]
trial court did not abuse its discretion in imposing
aggravated sentence; and
[5]
defendant’s sentence was not grossly disproportionate
to gravity of offenses in violation of the Eighth
Amendment.
Affirmed.
Lazarus, J., joined.
Solano, J., concurred in the result.
West Headnotes (28)
[1]
Criminal Law
Necessity
Defendant waived claims on direct appeal
challenging sufficiency and weight of evidence
of defendant’s conviction for drug delivery
resulting in death as it related to factual cause of
victim’s
death, where defendant did not specify
challenges in statement of matters complained
of, and therefore trial court did not address them
in its opinion. Pa. R. App. P. 1925(b).
2 Cases that cite this headnote
[2]
Criminal Law
Necessity
Issues that are not set forth in an appellant’s
statement of matters complained of on appeal
are deemed waived.
Pa. R. App. P.
1925(b)(4)(vii).
8 Cases that cite this headnote
[3]
Criminal Law
Review De Novo
Analysis of the constitutionality of a statute is a
question of law and, thus, Superior Court’
s
standard of review is de novo.
2 Cases that cite this headnote
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
[4]
Constitutional Law
Drugs; controlled substances
Homicide
Constitutional and statutory provisions
Statute prohibiting drug delivery resulting in
death was not unconstitutionally vague as
applied to defendant, in violation of defendant’s
right to due process; although defendant
contended that victim died not solely because of
the heroin defendant suppli
ed, but as a result of
having already taken other drugs unbeknownst
to defendant, and therefore statute as applied
failed to provide adequate notice that engaging
in criminal conduct that did not generally cause
death could be source of criminal liability
for
the unforeseen and unforeseeable death of a
third party, prosecution offered expert testimony
that, notwithstanding the other drugs in victim’s
system, amount of heroin ingested was a lethal
dose, and thus victim’s death was foreseeable.
U.S. Const. Amend. 14;
18 Pa. Cons. Stat. Ann.
§ 2506.
Cases that cite this headnote
[5]
Criminal Law
Construction and Effect of Charge as a Whole
When evaluating the propriety of jury
instructions, Superior Court will look to the
instructions as a whole, and not simply i
solated
portions, to determine if the instructions were
improper.
3 Cases that cite this headnote
[6]
Criminal Law
Form and Language in General
A trial court has broad discretion in phrasing its
jury instructions, and may choose its own
wording so long as the law is clearly,
adequately, and accurately presented to the jury
for its consideration.
2 Cases that cite this headnote
[7]
Criminal Law
Instructions
Criminal Law
Instructions in general
When evaluating the propriety of jury
instructions, only where there is an abuse of
discretion or an inaccurate statement of the law
is there reversible error.
2 Cases that cite this headnote
[8]
Criminal Law
Application of Instructions to Case
It is not improper for an instructing court to refer
to the facts and/or the evidence of the case when
giving a jury charge.
Cases that cite this headnote
[9]
Criminal Law
Weight and Sufficiency of Evidence
Criminal Law
Issues and Theories of Case in General
Proper balance to be struck between trial court’s
duty to frame the legal issues for a jury and
instruct the jury on the applicable
law, while not
usurping the power of the jury to be sole judge
of the evidence, depends heavily on the facts
and circumstances of each case.
Cases that cite this headnote
[10]
Criminal Law
Instructions Invading Province of Jury
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
In instructing jury on the applicable law, trial
court may not comment on, or give its opinion
of, the guilt or innocence of the accused, and
may not state an opinion as to the credibility of
witnesses, or remove from the jury its
responsibility to decide the degree of culpability.
Cases that cite this headnote
[11]
Criminal Law
Weight and effect of evidence
Criminal Law
Necessity of instructions
Criminal Law
Statement and review of evidence
In instructing jury on the applicable law, trial
court may summarize the evidence and note
possible inferences to be drawn from it; in doing
so, the court may express its own opinion on the
evidence, including the weight and effect to be
accorded it and it
s points of strength and
weakness, providing that the statements have a
reasonable basis and it is clearly left to the jury
to decide the facts, regardless of any opinion
expressed by the judge.
Cases that cite this headnote
[12]
Criminal Law
Elements of offense and defenses
Defendant failed to object at trial to jury
instruction relating to the causation element of
the crime of drug delivery resulting in de
ath
after trial court instructed jury, and thus waived
claims of error with respect to the instructions.
Cases that cite this headnote
[13]
Homicide
Controlled substances
Defendant’s actions satisfied causation element
of crime of drug delivery resulting in death,
despite fact that victim’s cause of death was
combined drug toxicity and not just victim’s act
of injecting himself with heroin supplied by
defendant; criminal statute required a “but-
for”
test of causation, and defendant’s conduct did
not need to be sole cause of victim’s death in
order to establish a causal connection, but was
assessed as to whether defendant’s conduct was
direct and substantial factor in producing death.
18 Pa. Cons. Stat. Ann. § 2506.
Cases that cite this headnote
[14]
Criminal Law
Comments on accused’s silence or failure to
testify
Trial court did not abuse its discretion in
refusing to grant mistrial after prosecution
argued that jury should consider fact that
defendant expressed no remo
rse as evidence of
his guilt of crime of drug delivery resulting in
death; although defendant asserted that comment
was only relevant for improper purpose of
implying that defendant lacked remorse because
he had not testified in his own defense,
prosecutio
n’s references to defendant’s lack of
remorse were not improper, and, prior to closing
statements, trial court instructed jury that it was
defendant’s constitutional right not to call any
witnesses either through his own testimony or
other witnesses, that
jury should make no
inference concerning that decision, and that
closing statements were not evidence.
U.S.
Const. Amend. 5.
Cases that cite this headnote
[15]
Criminal Law
Arguments and statements by counsel
Superior Court’s standard of review for a claim
of prosecutorial misconduct is limited to
whether the trial court abused its discretion.
3 Cases that cite this headnote
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
[16]
Criminal Law
Statements as to Facts, Comments, and
Arguments
A prosecutor’s arguments to the jury are
generally not a basis for the granting of a new
trial unless the unav
oidable effect of such
comments would be to prejudice the jury,
forming in their minds fixed bias and hostility
towards the accused which would prevent them
from properly weighing the evidence and
rendering a true verdict.
2 Cases that cite this headnote
[17]
Criminal Law
Statements as to Facts and Arguments
Criminal Law
Rebuttal Argument; Responsive Statements
and Remarks
A prosecutor must have reasonable latitude in
fairly presenting a case to the jury and must be
free to present his
arguments with logical force
and vigor; prosecutor is also permitted to
respond to defense arguments.
2 Cases that cite this headnote
[18]
Criminal Law
Arguments and conduct of counsel
In order to evaluate whether a prosecutor’s
comments to a jury were improper, Superior
Court does not look at the comments in a
vacuum; rather Superior Court must look at
them in the context in which they were made.
2 Cases that cite this headnote
[19]
Sentencing and Punishment
Factors Related to Offender
Sentencing and Punishment
Use and effect of report
Sentencing and Punishment
Total sentence deemed not excessive
Trial court did not abuse its discretion in
imposing aggravated sentence for defendant’s
conviction for drug delivery resulting in death in
addition to consecutive sentences for other
convictions which resulted in an aggregate term
of 12 years and 10 month
s to 26 years and 10
months of incarceration; although defendant
argued that trial court failed to consider
mitigating factors, including defendant’s severe
addiction to heroin, his attempts at getting
treatment, his remorse, and his lack of intent, in
sen
tencing defendant, trial court explained that it
considered, inter alia, mitigating factors,
presentence investigation report (PSI), and
evidence presented at the hearing.
42 Pa. Cons.
Stat. Ann. §§ 9721(b), 9781(b).
3 Cases that cite this headnote
[20]
Criminal Law
Sentencing and Punishment
Criminal Law
In General; Necessity of Motion
Criminal Law
Allowance or leave from appellate court
Criminal Law
Notice of Appeal
An appellant challenging the discretionary
aspects of his sentence must invoke Superior
Court’s jurisdiction by satisfying a four-
part
analysis to determine: (1) whether appellant has
filed a timely notice of appeal, (2) whether the
issue was properly pres
erved at sentencing or in
a motion to reconsider and modify sentence, (3)
whether appellant’s brief has a fatal defect, and
(4) whether there is a substantial question that
the sentence appealed from is not appropriate
under the Sentencing Code.
42 Pa. Cons. Stat.
Ann. § 9781(b); Pa. R. App. P. 902, 903
,
2119(f); Pa. R. Crim. P. 720.
8 Cases that cite this headnote
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
[21]
Criminal Law
Allowance or leave from appellate court
The determination of what constitutes a
substantial question as to appropriateness of
sentence, for purpose of determining whether
discretionary aspect of sentence may be
appealed, must be evaluated on a case-by-
case
basis. 42 Pa. Cons. Stat. Ann. § 9781(b).
3 Cases that cite this headnote
[22]
Criminal Law
Allowance or leave from appellate court
A substantial question exists, for purpose of
determining whether discretionary aspect of
sentence may be appealed, only when the
appellant advances a colorable argument that the
sentencing judge’s actions were either: (1)
inconsistent with a specific prov
ision of the
Sentencing Code; or (2) contrary to the
fundamental norms which underlie the
sentencing process. 42 Pa. Cons. Stat.
Ann. §
9781(b).
7 Cases that cite this headnote
[23]
Sentencing and Punishment
Total sentence deemed not excessive
Sentencing and Punishment
Cumulative or consecutive sentences
Defendant’s sentence to term of incarceration of
10 years to 20 years, consisting of 10 months for
his drug delivery resulting in death conviction,
and an aggregate sentence of 12 years and 10
months to 26 ye
ars and 10 months of
incarceration, was not grossly disproportionate
to gravity of offenses in violation of the Eighth
Amendment’s restriction against cruel and
unusual punishment, where defendant was
convicted of several crimes stemming from his
providing victim with a dose of heroin that
resulted in victim’s death.
U.S. Const. Amend.
8; 18 Pa. Cons. Stat. Ann. § 2506.
Cases that cite this headnote
[24]
Constitutional Law
Presumptions and Construction as to
Constitutionality
All properly enacted statutes enjoy a strong
presumption of constitutionality.
Cases that cite this headnote
[25]
Constitutional Law
Presumptions and Construction as to
Constitutionality
Constitutional Law
Doubt
A statute will not be declared unconstitutional
unless it clearly, palpably, and plainly violates
the Constitution, and all doubts are to be
resolved in favor of finding that the legislative
enactment passes constitutional muster.
1 Cases that cite this headnote
[26]
Constitutional Law
Burden of Proof
There is a very heavy burden of persuasion upon
one who challenges the constitutionality of a
statute.
Cases that cite this headnote
[27]
Sentencing and Punishment
Proportionality
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
The Eighth Amendment does not require strict
proportionality between crime and sentence;
rather, it forbids only extreme sentences which
are grossly disproportionate to the crime.
U.S.
Const. Amend. 8.
Cases that cite this headnote
[28]
Criminal Law
Scope of Inquiry
Criminal Law
Sentencing
Appellate review of constitutional challenges to
statutes, disputes over the legality of a sentence,
a court’s application of a statute, and general
questions of law involve a plenary scope of
review.
1 Cases that cite this headnote
*265 Appeal from the Judgment of Sentence December
21, 2015, in the Court of Common Pleas of Potter County,
Criminal Division at No(s): CP–53–CR–0000249–2014,
Before MINOR, J.
Attorneys and Law Firms
Caleb J. Kruckenberg, Philadelphia, for appellant.
Rebecca D. Ross, Assistant District Attorney,
Coudersport, for Commonwealth, appellee.
BEFORE: LAZARUS, SOLANO, and
STRASSBURGER,
*
JJ.
Opinion
OPINION BY STRASSBURGER, J.:
Jonathan Michael Proctor (Appellant) appeals from the
judgment of sentence imposed following his convictions
for drug delivery resulting in death; flight to avoid
apprehension, trial, or punishment; manufacture, delivery,
or possession of a controlled substance with intent to
manufacture or deliver; possession of a controlled
substance; criminal conspiracy; and use or possession of
drug paraphernalia. Upon review, we affirm.
On September 30, 2015, following a jury trial, Appellant
was convicted of the aforementioned crimes stemming
from an incident wherein Daniel Lowe (Lowe) died from
an overdose after ingesting heroin that was provided to
him by Appellant. Appellant was sentenced on December
21, 2015, to an aggregate term of 12 years and 10 months
to 26 years and 10 months of incarceration.
Appellant filed post-sentence motions, which were
denied. On January 22, 2016, Appellant filed a notice of
appeal to this Court. On January 26, 2016, the trial court
directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After requesting and receiving an extension of time,
Appellant filed his concise statement. The trial court
issued its opinion pursuant to Pa.R.A.P. 1925(a) on April
28, 2016.
Appellant raises the following issues for our
consideration:
I. Did the Commonwealth present insufficient
evidence to support [Appellant’s] conviction for drug
delivery resulting in death?
II. Was [Appellant’s] conviction for drug delivery
resulting in death against the weight of the evidence?
III. Is 18 Pa.C.S. § 2506 unconstitutionally vague
and does § 2506 violate due process pursuant to the
United States and Pennsylvania Constitutions
because the statute does not provide sufficient notice
as to what conduct it criminalizes and the statute
encourages arbitrary enforcement?
*266 IV. Did the trial court err when the court
instructed the jury the final element of drug delivery
resulting in death is “that a person has died as a
result of using the substance even if other substances
were found in his system” and that ... Lowe “died as
a result of using the substance even though other
substances were found in his system[ ]”?
V. Did the trial court err when the court denied
defense counsel’s request for a mistrial after the
Commonwealth referred to [Appellant’s] lack of
remorse during [its] closing argument, thereby
violating his right to remain silent?
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
VI. Did the sentencing court abuse its discretion
when the court imposed an aggravated sentence for
Appellant[’s] conviction for drug delivery resulting
in death and then imposed two additional
consecutive sentences?
VII. Does Appellant’s sentence and § 2506 itself
violate the Eighth Amendment’s restriction against
cruel and unusual punishment because Appellant was
a drug addict and never intended to cause any loss of
life and the statute permits severely disproportionate
punishments of individuals tangentially involved in a
drug overdose?
Appellant’s Brief at 5 (unnecessary capitalization
omitted).
[1]
We address together Appellant’s first two issues,
wherein he challenges the sufficiency and weight of the
evidence to support his conviction for the offense of drug
delivery resulting in death. In support of his sufficiency
challenge, Appellant argues that the Commonwealth
failed to prove that (1) he acted with reckless disregard to
the likelihood of Lowe’s death from injecting himself
with heroin, and (2) Lowe’s death was reasonably
foreseeable to Appellant and thus Appellant’s conduct
was the legal cause of his death. Appellant’s Brief at
20–32. Appellant argues that the jury’s guilty verdict for
drug delivery resulting in death is against the weight of
the evidence because (1) he lacked any culpable mens rea
concerning the likelihood of Lowe’s death and it was the
“product of a legally invalid prosecution theory” that no
mens rea in that regard was required, and (2) the
“overwhelming medical evidence” suggests that
Appellant did not proximately cause Lowe’s death. Id. at
32–34.
Notwithstanding Appellant’s claims on appeal, our review
of the record reveals that the only issues Appellant
included in his Rule 1925(b) statement relating to
sufficiency or weight of the evidence state as follows:
3. Was [Appellant’s] conviction for drug delivery
resulting in death against the weight of the evidence
because the cause of [Lowe’s] death was combined
drug toxicity?
4. Did the Commonwealth present insufficient
evidence to support [Appellant’s] conviction for drug
delivery resulting in death because the cause of
[Lowe’s] death was combined drug toxicity?
Appellant’s Rule 1925(b) Statement, 4/25/2016, at 2
(unnecessary capitalization omitted).
As written, Appellant’s issues fail to make any mention of
a challenge with respect to the mens rea required or
whether Lowe’s death was reasonably foreseeable to
Appellant.
1
Rather, Appellant’s issues *267 challenge the
sufficiency and weight of the evidence only as it relates to
the factual cause of Lowe’s death (which, as alleged by
Appellant, was combined drug toxicity). Indeed, in its
Rule 1925(a) opinion, the trial court addressed
Appellant’s issues as challenging whether the verdict was
against the weight of the evidence and whether the
Commonwealth failed to present sufficient evidence
“because [Lowe’s] death was caused by combined drug
toxicity as opposed to being caused solely by the heroine
[sic] provided by [Appellant].” Trial Court Opinion
(TCO), 4/28/2016, at 1–2.
[2]
A court-ordered concise statement “shall concisely
identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “The
Pennsylvania Supreme Court has explained that Rule
1925 is a crucial component of the appellate process,
which is intended to aid trial judges in identifying and
focusing upon those issues which the parties plan to raise
on appeal.” Commonwealth v. Freeman, 128 A.3d 1231,
1248 (Pa. Super. 2015) (internal quotation marks and
citation omitted). Moreover, it is well-settled that
“[i]issues that are not set forth in an appellant’s statement
of matters complained of on appeal are deemed waived.”
Commonwealth v. Perez, 103 A.3d 344, 347 n.1 (Pa.
Super. 2014) (citing Pa.R.A.P. 1925(b)(4)(vii) (“Issues
not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4)
are waived.”)).
Based on the foregoing, we conclude that Appellant has
waived his sufficiency and weight challenges as presented
on appeal,
2
as he did not specify them in his Rule 1925(b)
statement and the trial court did not address them in its
opinion. Commonwealth v. Reeves, 907 A.2d 1, 2–3 (Pa.
Super. 2006) (explaining that, from a reading of Reeves’
Rule 1925(b) statement, “the trial court reasonably
thought that Reeves was only complaining about the
quantum of evidence, not the specific issue that SEPTA is
not a ‘person’ under the terms of the statute” and
concluding that “[b]ecause the specific issue as to whether
SEPTA was a ‘person’ was not presented to the trial court
to give [the trial court] a chance to address it in [its]
opinion, the issue has been waived”); see also
Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super.
2013) (quoting Commonwealth v. Rush, 959 A.2d 945,
949 (Pa. Super. 2008) (stating “for any claim that was
required to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular legal
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
theory was presented to the trial court”)). Thus, he is not
entitled to relief on those claims.
[3]
[4]
In his third issue, Appellant argues that, if we reject
his sufficiency and weight challenges, then the drug
delivery resulting in death statute is void for vagueness.
*268 Analysis of the constitutionality of a statute is a
question of law and, thus, our standard of review is de
novo. Commonwealth v. Kakhankham, 132 A.3d 986,
990 (Pa. Super. 2015). “Our scope of review, to the extent
necessary to resolve the legal question[ ] before us, is
plenary...” Id.
The offense of drug delivery resulting in death is defined
as follows.
(a) Offense defined.—A person commits a felony of
the first degree if the person intentionally administers,
dispenses, delivers, gives, prescribes, sells or
distributes any controlled substance or counterfeit
controlled substance in violation of section 13(a)(14) or
(30) of the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug, Device and
Cosmetic Act, and another person dies as a result of
using the substance.
18 Pa.C.S. § 2506(a) (footnote omitted).
In Kakhankham, this Court rejected a vagueness
challenge to section 2506, explaining, in part, as follows:
The crime ... consists of two
principal elements: (i)
[i]ntentionally administering,
dispensing, delivering, giving,
prescribing, selling or distributing
any controlled substance or
counterfeit controlled substance
and (ii) death caused by (“resulting
from”) the use of that drug. It is
sufficiently definite that ordinary
people can understand what
conduct is prohibited, and is not so
vague that men of common
intelligence must necessarily guess
at its meaning and differ as to its
application.
Kakhankham, 132 A.3d at 991–92 (footnote, citations,
and some internal quotation marks omitted). The Court
continued by concluding that Kakhankham’s conduct in
providing drugs to a person who died as a result of
ingesting them was “precisely what the legislature
intended to proscribe when it enacted Section 2506.
Accordingly, Section 2506 is not unconstitutionally
vague.” Id. at 992.
In advancing his argument, Appellant contends that Lowe
died not solely because of the heroin, but as a result of
having already taken other drugs unbeknownst to
Appellant. Appellant’s Brief at 36–37. Appellant argues
that, in light of these facts, the statute as applied fails to
provide adequate notice “that engaging in criminal
conduct, but conduct that does not generally cause death,
can, in some rare and unlucky situations, be the source of
criminal liability for the unforeseen and unforeseeable
death of a third party.” Id. (citation, internal quotation
marks, and emphasis omitted).
The Kakhankham Court observed that
[An appellant] who engages in
some conduct that is clearly
proscribed cannot complain of the
vagueness of the law as applied to
the conduct of others. A court
should therefore examine the
complainant’s conduct before
analyzing other hypothetical
applications of the law. In cases
that do not implicate First
Amendment freedoms, facial
vagueness challenges may be
rejected where an appellant’s
conduct is clearly prohibited by the
statute in question.
Id. at 992 (internal quotation marks and citations
omitted)).
Appellant’s argument does not entitle him to relief under
the facts of this case. Specifically, the Commonwealth
offered expert testimony that, notwithstanding the other
drugs in Lowe’s system, the amount of heroin ingested by
Lowe was a lethal dose. N.T., 9/29–30/2015, at 477–89
(Michael Coyer, forensic toxicologist, discussing one
study wherein it was found that a *269 morphine
3
level
“over 100 nanograms is lethal” and another study finding
“between 41.3 and 145.7 nanograms” is a fatal range;
testifying that the level of 160 nanograms of morphine
herein is a lethal dose by itself; and opining that the
“[c]ause of [Lowe’s] death is [h]eroin [ ] overdose”); see
also id. at 348, 350 (Kevin Dusenbury, Sr., coroner of
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
Potter County, explaining that “[t]he level of the [h]eroin[
] metabolite was a lethal level” and, when asked whether
“[h]eroin[ ] in and of itself when you inject it is not lethal,
correct?,” answering, “It was in this case I believe.”).
Indeed, even Appellant’s expert testified that the dose of
heroin herein was “potentially fatal.” Id. at 419, 428–49,
435, 437, 439–40 (Dr. Bill Manion explaining that the
level of morphine in this case “could cause, can cause
death” and “is potentially fatal”); see also id. at 452, 460
(Commonwealth witness Dr. Eric Vey, forensic
pathologist, testifying that the level of morphine in this
case is “a potentially lethal level”). Clearly, it is
foreseeable that, if you give a person a lethal dose—or
even a potentially lethal dose—of heroin, that person
could die. Thus, as applied to Appellant, section 2506 is
not vague.
4
[5]
[6]
[7]
In his fourth issue, Appellant challenges a portion
of the jury instructions provided by the trial court.
[W]hen evaluating the propriety of
jury instructions, this Court will
look to the instructions as a whole,
and not simply isolated portions, to
determine if the instructions were
improper. We further note that, it is
an unquestionable maxim of law in
this Commonwealth that a trial
court has broad discretion in
phrasing its instructions, and may
choose its own wording so long as
the law is clearly, adequately, and
accurately presented to the jury for
its consideration. Only where there
is an abuse of discretion or an
inaccurate statement of the law is
there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.
Super. 2014) (quoting Commonwealth v. Trippett, 932
A.2d 188, 200 (Pa. Super. 2007)).
[8]
[9]
[10]
[11]
Moreover, “it is not improper for an instructing
court to refer to the facts and/or the evidence of the case
when giving a charge.” Commonwealth v. Meadows, 567
Pa. 344, 787 A.2d 312, 318 (2001).
On one hand, the trial court must frame the legal issues
for the jury and instruct the jury on the applicable law,
while on the other hand, it must not usurp the power of
the jury to be sole judge of the evidence. Plainly, these
principles may conflict with each other, for in order to
instruct the jury on the law the court may have to refer
to the evidence. The proper balance to be struck will
depend heavily on the facts and circumstances of each
case. However, some general guidelines have been
formulated. Thus the court may not comment on, or
give its opinion of, the guilt or innocence of the
accused. Nor may it state an opinion as to the
credibility of witnesses, nor *270 remove from the jury
its responsibility to decide the degree of culpability.
However, the court may summarize the evidence and
note possible inferences to be drawn from it. In doing
so, the court may “....express [its] own opinion on the
evidence, including the weight and effect to be
accorded it and its points of strength and weakness,
providing that the statements have a reasonable basis
and it is clearly left to the jury to decide the facts,
regardless of any opinion expressed by the judge.”
Id. (citations omitted) (quoting Commonwealth v.
Leonhard, 336 Pa.Super. 90, 485 A.2d 444, 444 (1984)).
Appellant takes issue with the following specific
instruction relating to the causation element of the crime
of drug delivery resulting in death:
And fourthly, that a person has died
as a result of using the substance
even if other substances were found
in his system. I will say that again
because that seemed to be [a] point
of contention. He died as a result of
using the substance even though
other substances were found in his
system.
N.T., 9/29–30/2015, at 641. Appellant argues that the
above instruction improperly suggested that the jury
should reach the conclusion that, despite Appellant’s
defense that the cause of death was combined drug
toxicity and not just Lowe’s act of injecting himself with
heroin, Lowe died as a result of using the heroin even
though other substances were found in his system.
Appellant’s Brief at 39. Appellant contends that this
usurped the role of the jury and improperly expressed an
opinion as to the existence of facts to support an element
of the offense, warranting a new trial. Id. at 39. Appellant
further contends that the instruction “completely ignore[d]
the proximate causation requirement imposed by the law,
and [wa]s a direct command to the jury to reject
[Appellant’s] defense.” Id. at 39–40.
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
[12]
Preliminarily, we observe that counsel did not lodge a
contemporaneous objection to the trial court’s instruction.
N.T., 9/29–30/2015, at 641. Moreover, the trial court
asked counsel if there were “any questions regarding the
charges” after instructing the jury on them, and later
asked if counsel had “anything further before release [sic]
the jury.” Id. at 650, 656. Appellant’s trial counsel did not
respond in either instance. This Court has held that “[a]
specific and timely objection must be made to preserve a
challenge to a particular jury instruction. Failure to do so
results in waiver.” Commonwealth v. Moury, 992 A.2d
162, 178 (Pa. Super. 2010) (internal citations omitted)
(“Generally, a defendant waives subsequent challenges to
the propriety of the jury charge on appeal if he responds
in the negative when the court asks whether additions or
corrections to a jury charge are necessary”);
Commonwealth v. McCloskey, 835 A.2d 801, 812 (Pa.
Super. 2003) (finding claims concerning jury instructions
waived because McCloskey “did not object to the
instructions at the time they were made and, further, did
not mention the alleged errors at the close of the jury
charge when the court specifically asked both parties if
they were satisfied”). Thus, Appellant’s claim is waived.
[13]
Assuming arguendo that Appellant had not waived his
claim, we would reject it on the merits. The trial court
explained that the instruction
was necessary to avoid jury
confusion in this case as the
defense had routinely drawn
attention to the fact that other drugs
were present in [Lowe’s] body
when he died and that the cause of
death was combined drug toxicity.
The ... instruction given at trial
clarified that despite any defense
assertions otherwise, *271 the test
for the final element of the offense
is one of “but-for” causation.
TCO, 4/28/2016, at 3.
As explained by the trial court, the Kakhankham Court
held that the statute “requires a ‘but-for’ test of
causation.” Kakhankham, 132 A.3d at 993. In so doing, it
noted that a defendant’s “conduct need not be the only
cause of the victim’s death in order to establish a causal
connection” and that “[c]riminal responsibility may be
properly assessed against an individual whose conduct
was a direct and substantial factor in producing the death
even though other factors combined with that conduct to
achieve the result.”
5
Id. at 993 n.8 (quoting
Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super.
2008)). In light of the foregoing, we discern no error in
the portion of the jury instruction challenged above. See
Meadows, 787 A.2d at 318–19 (concluding that “the trial
court’s instruction properly informed the jury of the law
and, while noting certain facts of record, left the ultimate
determination of the facts to the jury”).
[14]
[15]
[16]
[17]
[18]
Appellant next argues that “the [t]rial
[c]ourt erred when it refused to grant a mistrial after the
[Commonwealth] argued that the jury should consider the
fact that [Appellant] expressed no remorse during the trial
as evidence of his guilt.” Appellant’s Brief at 41.
Appellant contends that the “prosecutor improperly
suggested that the jury should use [Appellant’s] decision
[not to] testify as substantive evidence of guilt by
imploring them, in his final substantive comment in
closing argument, to consider whether they had ‘seen one
ounce of remorse’ from [Appellant] through the trial.” Id.
at 41–42; see N.T., 9/29–30/2015, at 624 (“Have any of
you during the facts of this case or observing [Appellant]
these last 3 days have any of you seen one ounce of
remorse? Have any of you seen one ounce of remorse?”).
Appellant contends that the comment could only be
relevant for the improper purpose of implying that
Appellant lacked remorse because he had not testified in
his own defense, and the trial court’s handling of the
comment by failing to give an immediate limiting
instruction and instead simply giving general instructions
regarding Appellant’s right to remain silent did not
remedy the harm that was caused. Id. at 42–43.
Our standard of review for a claim of prosecutorial
misconduct is limited to whether the trial court abused
its discretion. In considering this claim, our attention is
focused on whether the defendant was deprived of a
fair trial, not a perfect one.
[A] prosecutor’s arguments to the jury are
[generally] not a basis for the granting of a new trial
unless the unavoidable effect of such comments
would be to prejudice the jury, forming in their
minds fixed bias and hostility towards the accused
which would prevent them from properly weighing
the evidence and rendering a true verdict.
A prosecutor must have reasonable latitude in fairly
presenting a case to the jury and must be free to
present [his] arguments with logical force and vigor.
The prosecutor is also permitted to respond to
defense arguments. Finally, in order to evaluate
whether the comments were improper, we do *272
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
11
not look at the comments in a vacuum; rather we
must look at them in the context in which they were
made.
Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa.
Super. 2011) (internal quotation marks and citations
omitted).
Appellant’s claim does not entitle him to relief. First, we
disagree that the Commonwealth’s brief comments in this
regard implied that Appellant lacked remorse because he
had not testified in his own defense. Commonwealth v.
Fletcher, 580 Pa. 403, 861 A.2d 898, 918 (2004)
(concluding that the prosecutor did not improperly
comment on Fletcher’s lack of remorse, explaining that
the comments “did not inappropriately implicate
[Fletcher’s] constitutional right to remain silent,” as “the
prosecutor in no way inferred or implied that [Fletcher]
had a duty to testify. Instead, the prosecutor explicitly
limited his remorse comments to [Fletcher’s] non-verbal
demeanor and behavior during trial and on the morning of
the murders”); Commonwealth v. Robinson, 581 Pa. 154,
864 A.2d 460, 519 (2004) (explaining that the
prosecutor’s “brief statement ... did not contain a direct
reference to the fact that [Robinson] did not testify during
the trial”). Second, this Court has held that references to a
defendant’s lack of remorse is not improper.
Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d
1246, 1254 (1986) (rejecting Tillia’s contention that the
trial court permitted the prosecutor to make improper
comments during closing argument regarding Tillia’s lack
of remorse, explaining that “[w]hether or not [Tillia]
expressed remorse is irrelevant to the determination of
guilt”).
Finally, prior to closing statements, the trial court
instructed the jury that Appellant “did not have to call any
witnesses either through his own testimony or other
witnesses and that is his constitutional right. You should
make no inference whatsoever concerning that decision.”
N.T., 9/29–30/2015, at 585; see also id. at 494 (“Again,
[Appellant] does not have to offer any evidence
whatsoever. If they decide to offer nothing that’s
appropriate, you cannot use against them that fact. So
we’ll see when [the] appropriate time comes whether or
not they want to present any evidence. Of course
[Appellant] does not have to testify, that’s his
constitutional right and again you should not make any
inference if he decides not to testify.”). Following closing
arguments, the trial court instructed the jury that
[a] person accused of a crime is not
required to present any evidence or
to prove anything in his own
defense. He doesn’t have to call
any witnesses. Any reference that
he didn’t call a witness is
immaterial to your consideration.
You are not to give any thought as
to or any inference as to whether he
didn’t call any witnesses, that is
[not] his responsibility. His
responsibility is to not present
anything in his own defense if he
so wishes.
Id. at 633. The trial court also instructed that closing
statements are not evidence, id. at 585, and that the jurors
“should not base [their] decision on which attorney made
the better speech or which attorney [they] like better that
should not play any part in [their] decision.” Id. at 632.
As “[j]uries are presumed to follow a court’s
instructions,” Commonwealth v. Mollett, 5 A.3d 291, 313
(Pa. Super. 2010), Appellant’s claim fails. See also
Robinson, 864 A.2d at 519–20 (explaining that the trial
court’s specific instruction that “[i]t is entirely up to the
defendant whether to testify and you must not draw any
adverse inference from his silence ... more than
adequately cured any ill effect of this fleeting comment
that ... did not even contain a direct reference to
[Robinson’s] exercise of his Fifth Amendment right”).
[19]
[20]
*273 In his sixth claim of error, Appellant contends
that the sentencing court abused its discretion by
imposing an aggravated sentence for his conviction for
drug delivery resulting in death in addition to consecutive
sentences for other convictions.
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right. An
appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by
satisfying a four-part test:
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P.
720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.[ ] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super.
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
12
2013) (some citations omitted) (quoting Commonwealth
v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
Instantly, Appellant timely filed a notice of appeal,
challenged the discretionary aspects of his sentence in his
post-sentence motion, and included a statement pursuant
to Rule 2119(f) in his brief. Thus, we now consider
whether he has raised a substantial question worthy of
appellate review.
[21]
[22]
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super.
2007). “A substantial question exists only when the
appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2)
contrary to the fundamental norms which underlie the
sentencing process.” Griffin, 65 A.3d at 935 (citation and
internal quotation marks omitted).
In his Rule 2119(f) statement, Appellant contends that he
raises a substantial question in that “[t]he sentencing court
did not place any valid reasons on the record pursuant to
42 [Pa.C.S.] § 9721(b) to justify the imposition of an
aggravated sentence.” Appellant’s Brief at 19. “The
failure to set forth adequate reasons for the sentence
imposed has been held to raise a substantial question.”
Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super.
2009). Thus, we proceed to the merits.
Sentencing is a matter vested in the
sound discretion of the sentencing
judge, and a sentence will not be
disturbed on appeal absent a
manifest abuse of discretion. In this
context, an abuse of discretion is
not shown merely by an error in
judgment. Rather, the appellant
must establish, by reference to the
record, that the sentencing court
ignored or misapplied the law,
exercised its judgment for reasons
of partiality, prejudice, bias or ill
will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.
Super. 2015) (citation omitted).
Appellant contends that the trial court did not give
adequate reasons for its sentence. Specifically, the “trial
court’s sentence was unreasonable ... because it failed to
account for any of the mitigating factors and imposed the
same sentence it would have had none been present.”
Appellant’s Brief at 45. Appellant specifically references
his genuine remorse, his severe addiction to heroin and
inability to attend a rehabilitation program despite
numerous attempts, and Appellant’s mother’s testimony
*274 at the sentencing hearing that she had tried to help
Appellant receive treatment but had not been able to
because they lacked money and insurance coverage. Id.
Appellant argues that, instead of accounting for these
factors, the court “simply determined that ... Lowe’s
resulting death, even if accidental and unforeseen by
[Appellant], warranted the maximum sentence,” which
represents a misunderstanding concerning the elements of
the offense of drug delivery resulting in death and
presents a profound unfairness. Id. Appellant further
argues that “[e]ven if the court were correct concerning
the legal requirements for liability, certainly the fact that
... Lowe’s death was an unforeseeable accident bears
some mitigation.” Id.
With respect to the mitigating factors Appellant sets forth
above, the court heard testimony at the sentencing hearing
from both Appellant and Appellant’s mother, as well as
argument from Appellant’s counsel, regarding
Appellant’s severe addiction to heroin, his attempts at
getting treatment, his remorse, and his lack of intent.
N.T., 12/21/2015, at 9–25. Finally, the trial court had the
benefit of a presentence investigation report (PSI). See
Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.
Super. 2010) (“Our Supreme Court has determined that
where the trial court is informed by a [PSI], it is presumed
that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has
been so informed, its discretion should not be
disturbed.”). In sentencing Appellant, the trial court
explained that it considered, inter alia, “the [PSI] and
evidence that’s been presented” at the hearing.
6
Id. at 69.
Based on the foregoing, Appellant’s arguments do not
persuade us that the trial court abused its discretion in
imposing sentence. The court did consider the above
mitigating factors, and simply did not accord them the
weight Appellant wished it did. See Commonwealth v.
Raven, 97 A.3d 1244, 1255 (Pa. Super. 2014) (in
rejecting Raven’s discretionary aspects of sentencing
claim, explaining that “[t]he gist of Raven’s argument is
not that the court failed to consider the pertinent
sentencing factors, but rather that the court weighed those
factors in a manner inconsistent with his wishes” and that
“the court carefully considered all of the evidence
presented at the sentencing hearing”). No relief is due.
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
13
[23]
In his final issue, Appellant argues that his sentence
and section 2506 violate the Eighth Amendment’s
restriction against cruel and unusual punishment.
Appellant argues that his aggregate sentence is
disproportionate to his culpability, as he had no idea that
giving Lowe heroin would result in Lowe’s death and his
conduct does not reflect any particular depravity or
callousness. Appellant’s Brief at 47. Appellant argues that
this was a tragic accident resulting from his drug
addiction, which shows that he is “less culpable because
his conduct was the product of impaired judgment and the
simple failure to *275 appreciate risks,” and demonstrates
his capacity to be rehabilitated. Id.
[24]
[25]
[26]
[27]
[28]
We address Appellant’s claim mindful of
the following.
All properly enacted statutes enjoy a strong
presumption of constitutionality.
Accordingly, a statute will not be declared
unconstitutional unless it clearly, palpably, and
plainly violates the Constitution. All doubts are to be
resolved in favor of finding that the legislative
enactment passes constitutional muster. Thus, there
is a very heavy burden of persuasion upon one who
challenges the constitutionality of a statute.
Appellate review of constitutional challenges to
statutes, disputes over the legality of a sentence, a
court’s application of a statute, and general questions of
law involve a plenary scope of review. As with all
questions of law, the appellate standard of review is de
novo. ...
***
The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather,
it forbids only extreme sentences which are grossly
disproportionate to the crime. In Commonwealth v.
Spells, 417 Pa.Super. 233, 612 A.2d 458, 462 (
[Pa.Super.] 1992) (en banc ), the Superior Court
applied the three-prong test for Eighth Amendment
proportionality review set forth by the United States
Supreme Court in Solem v. Helm, 463 U.S. 277,
292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and
determined that a five-year mandatory minimum
sentence for offenses committed with a firearm does
not offend the Pennsylvania constitutional
prohibition against cruel punishments. The Spells
court observed that the three-prong Solem
proportionality test examines: “(i) the gravity of the
offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other
jurisdictions.” The Spells court correctly observed
that a reviewing court is not obligated to reach the
second and third prongs of the test unless “a
threshold comparison of the crime committed and
the sentence imposed leads to an inference of gross
disproportionality.”
4
4
Justice Kennedy’s understanding of the first prong
of the Solem test as a threshold hurdle in establishing
an Eighth Amendment violation has been recently
cited with approval by the High Court as well. “A
court must begin by comparing the gravity of the
offense and the severity of the sentence.” In the “rare
case” in which this threshold comparison leads to an
inference of gross disproportionality, the reviewing
court “should then compare the defendant’s sentence
with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for
the same crime in other jurisdictions.” “If this
comparative analysis ‘validate[s] an initial judgment
that [the] sentence is grossly disproportionate,’ the
sentence is cruel and unusual.”
Commonwealth v. Colon–Plaza, 136 A.3d 521, 530–31
(Pa. Super. 2016) (some citations and internal quotation
marks omitted).
Herein, Appellant was convicted of several crimes
stemming from his providing Lowe with a dose of heroin
that resulted in Lowe’s death. Appellant was sentenced to
a term of incarceration of 10 years to 20 years, 10 months
for his drug-delivery-resulting-in-death conviction, and an
aggregate sentence of 12 years and 10 *276 months to 26
years and 10 months of incarceration. In light of the
gravity of the offense(s) at issue, most importantly the
death of a young man, and the severity of the sentences
imposed, we conclude that this is not a “rare case” in
which this threshold comparison leads to an inference of
gross disproportionality. Thus, Appellant’s claim is
without merit.
Based on the foregoing, Appellant has failed to establish
that he is entitled to relief. Accordingly, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
Judge Lazarus joins.
Judge Solano concurs in the result.
Commonwealth v. Proctor, 156 A.3d 261 (2017)
2017 PA Super 30
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
14
All Citations 156 A.3d 261, 2017 PA Super 30
Footnotes
*
Retired Senior Judge assigned to the Superior Court.
1
To be clear, this Court has held that, with respect to the crime of drug delivery resulting in death, the statute requires “but-for”
causation in addition to requiring that “the results of the defendant’s actions cannot be so extraordinarily remote or attenu
ated
that it would be unfair to hold the defendant criminally responsible.” Commonwealth v. Kakhankham
, 132 A.3d 986, 993 (Pa.
Super. 2015) (internal quotation marks and citation omitted). Moreover, the “results from” element of Section 2506 has a
mens
rea requirement; the “death must be at least ‘reckless.’ ” Id. at 995.
2
In his sufficiency argument on appeal, Appellant also presents a separate claim that the trial court erred in relieving the
prosecution of its burden to prove an element of the offense with respect to the requisite mens rea
, which cannot be said to
have been harmless error. Appellant’s Brief at 25–27. Appellant likewise failed to raise any such issue in his
Rule 1925(b)
statement. Thus, any claim in this regard is waived as well. Perez, 103 A.3d at 347 n.1; Pa.R.A.P. 1925(b)(4)(vii).
3
“Heroin[ ] technically is called diacetyl morphine.” N.T., 9/29–30/2015, at 470; see also id. at 423 (explaining that morphine is the
active ingredient in heroin).
4
Appellant also contends that the statute encourages arbitrary enforcement as exemplified by this case, as the person who sold
the heroin to Appellant was not prosecuted with causing Lowe’s death. Appellant’s Brief at 37. We are unpersuaded that
Appellant has met his “heavy burden” to show that the statute encourages arbitrary enforcement simply based on Appellant’s
representation that the person who supplied the heroin to Appellant was not charged in this case. See Kakhankham
, 132 A.3d at
991 (“[T]he party challenging a statute’s constitutionality bears a heavy burden of persuasion.” (citation omitted)).
5
To the extent Appellant argues that the instruction ignored the proximate cause requirement of causation, we note that
Appellant did not include a challenge to the instructions with respect to proximate causation in his Rule 1925(b)
statement. Thus,
this claim is waived on this basis as well. Perez, 103 A.3d at 347 n.1; Pa.R.A.P. 1925(b)(4)(vii); Lincoln, 72 A.3d at 610.
6
Although the trial court offered reasons for its sentence in generic terms, we note that the evidence included, inter alia,
testimony regarding Appellant’s delivery of heroin to another individual at the scene of the death during the period of time
in
which Lowe was unresponsive. N.T., 12/21/2015, at 52. See also N.T., 9/29–30/2015, at 243–
46 (testimony of Jacob Blass
explaining that he had given Appellant money to buy heroin earlier in the day of Lowe’s death and that, later that night, he
contacted Appell
ant to make sure Appellant had obtained the heroin, at which point Appellant said Lowe was unresponsive;
Blass went to the scene and, while Lowe was unresponsive, Appellant delivered two bags of heroin to Blass).
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
1
167 A.3d 750
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee
v.
Zephaniah STOREY, Appellant
No. 1194 EDA 2016
|
Argued April 4, 2017
|
Filed July 20, 2017
Synopsis
Background: Defendant was convicted in the Court of
Common Pleas, Monroe County, Criminal Division, No.
CP–45–CR–0000342–2014, Stephen M. Higgins, J., of
drug delivery resulting in death, two counts of possession
with intent to deliver, two counts of possession of drug
paraphernalia, and two counts of possession of a
controlled substance. Defendant appealed.
Holdings: The Superior Court, No. 1194 EDA 2016,
Lazarus, J., held that:
[1]
statute proscribing drug delivery resulting in death with
not void for vagueness;
[2]
evidence supported conviction for drug delivery
resulting in death;
[3]
testimony by officer that phone of purchaser of drugs
called certain number multiple times on days when drug
deals occurred was admissible;
[4]
prosecutor’s statement during closing argument that
prosecutor would not have called purchaser as witness if
prosecutor did not believe him was not prosecutorial
misconduct;
[5]
instruction on accomplice liability did not include
contradictory statements that confused jury; and
[6]
guilty verdict for drug delivery resulting in death was
not against weight of evidence.
Affirmed.
West Headnotes (32)
[1]
Constitutional Law
Particular offenses in general
Homicide
Constitutional and statutory provisions
Statute proscribing drug delivery resulting in
death was not unconstitutionally void for
vagueness as applied to defendant, despite
cl
aims that he was unaware that victim would
ultimately consume drugs he sold and, thus, he
could not have known that his conduct could
result in liability under statute and that, since he
was not aware of victim’s existence, he could
not have had reckless s
tate of mind that victim
might die as result of his drug sales; statute only
required that another person died as result of
using substance sold and did not require death of
person to whom defendant originally sold illegal
substance and, thus, it applied t
o defendant,
since, but for his illegal sale of drugs, victim
would not have died, and statute did not impose
strict liability. 18 Pa. Cons. Stat. Ann. § 2506.
2 Cases that cite this headnote
[2]
Constitutional Law
Criminal Justice
To withstand constitutional scrutiny based on a
challenge of vagueness, a criminal statute must
define the criminal offense with sufficient
definiteness that ordinary people can understan
d
what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory
enforcement.
1 Cases that cite this headnote
[3]
Constitutional Law
Vagueness on face or as applied
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
2
Vagueness challenges which do not involve
First Amendment freedoms must be examined in
the light of the facts of the case at hand.
U.S.
Const. Amend. 1.
Cases that cite this headnote
[4]
Homicide
Cause of death
Homicide
Commission of or Participation in Act by
Accused; Identity
Sufficient evidence supported conviction for
drug delivery resulting in death; testimony by
purchaser of drugs identified defendant as dealer
from whom he purchased drugs, cell phone da
ta
corroborated purchaser’s testimony, officer
observed drug paraphernalia around defendant’s
room, coroner discovered four empty wax pages
stamped with same initials as drugs purchaser
bought earlier in victim’s pockets, and
toxicology report concluded th
at victim died
from heroin overdose.
18 Pa. Cons. Stat. Ann. §
2506.
Cases that cite this headnote
[5]
Criminal Law
Construction of Evidence
Criminal Law
Reasonable doubt
The standard the Superior Court applies in
reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at
trial in the light most favorable to the verdict
w
inner, there is sufficient evidence to enable the
fact-
finder to find every element of the crime
beyond a reasonable doubt.
5 Cases that cite this headnote
[6]
Criminal Law
Weight of Evidence in General
Criminal Law
Weighing evidence
In applying the sufficiency of the evidence test,
the Superior Court may not weigh the evidence
and substitute its judgment for the fact-finder.
Cases that cite this headnote
[7]
Criminal Law
Degree of proof
Under the sufficiency of the evidence test, the
facts and circumstances established by the
Commonwealth need not preclude every
possibility of innocence.
3 Cases that cite this headnote
[8]
Criminal Law
Circumstantial evidence
Any doubts regarding a defendant’s guilt may be
resolved by the fact-
finder unless the evidence is
so weak and inconclusive that as a matter of law
no probability of fact may be drawn
from the
combined circumstances.
1 Cases that cite this headnote
[9]
Criminal Law
Circumstantial Evidence
Criminal Law
Degree of proof
The Commonwealth may sustain its burden of
proving every element of the crime beyond a
reasonable doubt by means of wholly
circumstantial evidence.
4 Cases that cite this headnote
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
3
[10]
Criminal Law
Weight and sufficiency
Criminal Law
Evidence considered; conflicting evidence
In applying the sufficiency of the evidence test,
the entire record must be evaluated and all
evidence actually received must be considered.
Cases that cite this headnote
[11]
Criminal Law
Credibility of witnesses in general
Criminal Law
Weight and Sufficiency of Evidence in
General
The trier of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or
none of the evidence.
1 Cases that cite this headnote
[12]
Criminal Law
Reception of evidence
Defendant waived for appellate review claim
that trial court erred in allowing bad acts
testimony, that defendant had a lot of customers,
by purchase
r of drugs from defendant without
giving cautionary instruction in prosecution for
drug delivery resulting in death, possession with
intent to deliver, possession of drug
paraphernalia, and possession of a controlled
substance; while defendant objected at
trial, he
did not request cautionary instruction after judge
sustained objection.
18 Pa. Cons. Stat. Ann. §
2506(a); 35 Pa. Stat. Ann. §§ 780-113(a)(16)
,
780-113(a)(30), 780-113(a)(32).
1 Cases that cite this headnote
[13]
Criminal Law
Reception of evidence
Failure to request a cautionary instruction upon
the introduction of evidence constitutes a waiver
of a claim of trial court error in failing to issue a
cautionary instruction.
1 Cases that cite this headnote
[14]
Criminal Law
Admission of evidence
Testimony by officer, that phone of purchaser of
drugs from defendant called certain number
multiple times on days when drug deals
occurred, was admissible in prosecution for drug
delivery resulting in death, possession with
intent to deliver, possession o
f drug
paraphernalia, and possession of a controlled
substance; testimony was originally elicited as
result of objection interposed by defense
regarding foundational basis for officer’s
knowledge of phone number of defendant’s
parents and, thus, it was def
ense that opened
door to testimony, court issued cautionary
instruction that jury was not to speculate as to
how or why officer knew phone number, and
evidence was relevant to prove that defendant
was dealer purchaser met with.
18 Pa. Cons.
Stat. Ann. § 2506(a);
35 Pa. Stat. Ann. §§
780-113(a)(16), 780-113(a)(30), 780-113(a)(32).
Cases that cite this headnote
[15]
Criminal Law
Necessity and scope of proof
Criminal Law
Reception and Admissibility of Evidence
The admission of evidence is a matter vested
within the sound discretion of the trial court, and
such a decision shall be reversed only upon a
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
4
showing that the trial court abused its discretion.
1 Cases that cite this headnote
[16]
Criminal Law
Evidence calculated to create prejudice
against or sympathy for accused
In determining whether evidence should be
admitted, the trial court must weigh the relevant
and probative value of the evidence against the
prejudicial impact of that evidence.
4 Cases that cite this headnote
[17]
Criminal Law
Relevancy in General
Evidence is “relevant” if it logically tends to
establish a material fact in the case or tends to
support a reasonable inference regarding a
material fact.
2 Cases that cite this headnote
[18]
Criminal Law
Evidence calculated to create prejudice
against or sympathy for accused
Although a court may find that evidence is
relevant, the court may nevertheless conclude
that such evidence is inadmissible on account of
its prejudicial impact.
2 Cases that cite this headnote
[19]
Criminal Law
Custody and conduct of jury
If the trial judge gives curative instructions, it is
presumed that the jury will follow the
instructions of the court.
1 Cases that cite this headnote
[20]
Criminal Law
Comments on evidence or witnesses
Prosecutor’s statement during closing
arguments, that prosecutor would not have
called purchaser of drugs from defendant as
witness if prosecutor did not believe him, was
not prosecutorial misconduct in prosecution for
drug delivery resulting in death, possession wit
h
intent to deliver, possession of drug
paraphernalia, and possession of a controlled
substance; defense, in its closing arguments,
asserted that Commonwealth did not trust
purchaser and, thus, it opened door to subject.
18 Pa. Cons. Stat. Ann. § 2506(a);
35 Pa. Stat.
Ann. §§ 780-113(a)(16), 780-113(a)(30)
,
780-113(a)(32).
1 Cases that cite this headnote
[21]
Criminal Law
Statements as to Facts, Comments, and
Arguments
Generally, comments by a prosecutor do not
constitute reversible error unless the
unavoidable effect of such comments would be
to prejudice the jury, forming in their minds
fixed bias and hostility toward the defendant so
that they could not weigh the evidence
objectively and render a true verdict.
Cases that cite this headnote
[22]
Criminal Law
Arguments and conduct of counsel
When reviewing allegedly improper comments
by a prosecutor, the Superior Court must do so
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
5
within the context of defense counsel’s conduct.
Cases that cite this headnote
[23]
Criminal Law
Form, requisites, and sufficiency of
instructions
Instruction on accomplice liability, which stated
that jury had to regard purchaser of drugs from
defendant as acco
mplice in crime charged and
then stated that it had to decide whether
purchaser was accomplice, did not include
contradictory statements that confused jury in
prosecution for drug delivery resulting in death,
possession with intent to deliver, possession o
f
drug paraphernalia, and possession of a
controlled substance; while, taken out of
context, sentences seemed to contradict each
other, taken as a whole, instruction made clear
that jury was tasked with deciding if purchaser
was accomplice and instructed j
ury on elements
necessary to find that he was accomplice.
18 Pa.
Cons. Stat. Ann. § 2506(a);
35 Pa. Stat. Ann. §§
780-113(a)(16), 780-113(a)(30), 780-113(a)(32).
Cases that cite this headnote
[24]
Criminal Law
Construction and Effect of Charge as a Whole
When evaluating jury instructions, the charge
must be read as a whole to determine whether it
was fair or prejudicial.
Cases that cite this headnote
[25]
Criminal Law
Form and Language in General
The trial court has broad discretion in phrasing
its instructions, and may choose its own wording
so long as the law is clearly, adequately, and
accurately presented to the jury for its
consideration.
Cases that cite this headnote
[26]
Homicide
Controlled substances
Homicide
Homicide in Commission of or with Intent to
Commit Other Unlawful Act
Guilty verdict against defendant for drug
delivery resulting in death was not against
weight of evidence; while defendant had no
connection t
o victim and neither intended to nor
actually did distribute anything to victim, his
knowledge of end-
user, i.e., victim, was
irrelevant to his guilt for drug delivery resulting
in death, and verdict was not so against weight
of evidence as to shock one’s
sense of justice.
18 Pa. Cons. Stat. Ann. § 2506.
1 Cases that cite this headnote
[27]
Criminal Law
Weight and sufficiency of evidence in general
An allegation that the verdict is against the
weight of the evidence is addressed to the
discretion of the trial court.
1 Cases that cite this headnote
[28]
Criminal Law
Weight and sufficiency of evidence in general
A new trial should not be granted because of a
mere conflict in the testimony or because the
judge on the same facts would
have arrived at a
different conclusion.
Cases that cite this headnote
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
6
[29]
Criminal Law
Weight and sufficiency of evidence in general
On a claim that the verdict is against the weight
of the evidence, a trial judge must do more than
reassess the credibility of the witnesses and
allege that he would not have assented to the
verdict if he were a juror.
Cases that cite this headnote
[30]
Criminal Law
Weight and sufficiency of evidence in general
Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence, do
not sit as the 13th juror; rather,
the role of the
trial judge is to determine that notwithstanding
all the facts, certain facts are so clearly of
greater weight that to ignore them or to give
them equal weight with all the facts is to deny
justice.
Cases that cite this headnote
[31]
Criminal Law
Weight and sufficiency of evidence in general
A court may grant a new trial because the
verdict is against the weight of the evidence
only when the verdict rendered is so contrary to
the evidence as to shock one’s sense of justice.
1 Cases that cite this headnote
[32]
Criminal Law
Weight and sufficiency of evidence in general
Criminal Law
Sufficiency of evidence
The determination of whether to grant a new
trial because the verdict is against the weight of
the evidence rests within the discretion of the
trial court, and the Superior Court will not
disturb this determination absent an abuse of
discretion.
1 Cases that cite this headnote
*754 Appeal from the Judgment of Sentence December 2,
2015, In the Court of Common Pleas of Monroe County,
Criminal Division at No(s): CP–45–CR–0000342–2014.
Stephen M. Higgins, J.
Attorneys and Law Firms
John P. O’Neill, Philadelphia, for appellant.
Kimberly A. Metzger, Assistant District Attorney,
Stroudsburg, for Commonwealth, appellee.
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS,
P.J.E.
*
Opinion
OPINION BY LAZARUS, J.:
Zephaniah Storey appeals from his judgment of sentence,
entered in the Court of Common Pleas of Monroe County,
following his conviction for one count of drug delivery
resulting in death,
1
two counts of possession with the
intent to deliver,
2
two counts of possession of drug
paraphernalia,
3
and two counts of possession of a
controlled substance.
4
Upon review, we affirm.
*755 Nicholas Possinger testified that Donald J. O’Reilly,
a recovering heroin addict, called him asking Possinger to
obtain heroin for him. Possinger testified that he then
telephoned Storey, his usual dealer, to secure the heroin.
Possinger and Storey made arrangements to meet at the
Mount Airy Casino parking lot on February 10, 2013, for
the exchange. Possinger took O’Reilly’s money and
approached Storey’s vehicle to purchase the heroin.
Possinger was the only one who met with or saw Storey
during the drug deal. Possinger bought ten bags of heroin,
which he gave to O’Reilly. O’Reilly gave Possinger two
bags as compensation for setting up the drug deal.
O’Reilly contacted Possinger again on February 13, 2013,
to have him set up another drug deal, again offering him
two bags of heroin as compensation. This deal occurred at
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
7
the intersection of Abeel Road and Fish Hill Road. As in
the previous deal, Possinger was the only person who saw
or dealt with Storey. This time, Possinger purchased six
bags of heroin, which were stamped with the initials
A.O.N. Possinger testified that he recognized this stamp
from heroin he had used in the past, and warned O’Reilly
to be careful when taking his four bags, as this heroin was
stronger than that purchased on February 10, 2013, and
O’Reilly was just starting to use heroin again.
On February 14, 2013, at approximately 1:45 a.m.,
Officer Christopher Staples of the Pocono Township
Police Department responded to a call regarding an
unresponsive male with a possible drug overdose. Officer
Staples testified that he found O’Reilly in his bedroom in
the early stages of rigor mortis. Officer Staples observed
drug paraphernalia around O’Reilly’s room, including a
lighter, a spoon, hypodermic needles, a measuring cup,
and a belt. Deputy Coroner Teri Rovito subsequently
pronounced O’Reilly dead. In O’Reilly’s pockets, she
discovered four empty wax paper bags stamped with the
letters A.O.N. The toxicology report indicated that there
were fatal levels of morphine in O’Reilly’s blood.
Police obtained a search warrant for the cell phone
records of Storey, Possinger, and O’Reilly in an attempt
to determine their general location during the two drug
transactions. The records indicated that Possinger’s cell
phone was utilizing towers in the general vicinity of the
Mount Airy Casino on February 10, 2013, and that Storey
was within the vicinity of the second transaction on
February 13, 2013.
A jury convicted Storey of the aforementioned charges on
September 10, 2015, and on December 2, 2015, he was
sentenced to an aggregate term of not less than 108
months nor more than 276 months’ imprisonment. Storey
filed post-sentence motions on December 14, 2015, in
which he requested reconsideration of sentence, arrest of
judgment and a new trial. Post-sentence motions were
denied on April 11, 2016. Storey filed a notice of appeal
on April 18, 2016, followed by a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal on
June 7, 2016. The trial court filed its Rule 1925(a) opinion
on June 16, 2016.
Storey raises the following issues for our appeal,
verbatim:
1. Whether the trial court erred in denying both pre-
and post-trial motions arguing the drug delivery
resulting in death statute, 18 Pa.C.S.A. § 2506, as
applied, is unconstitutionally vague?
2. Whether the trial court erred in denying both pre-
and post-trial motions arguing the drug delivery
resulting in death statute, 18 Pa.C.S.A. § 2506, as
applied, unconstitutionally rendered [Storey] strictly
liable for the death of the decedent?
*756 3. Whether the conviction for the drug delivery
charge was insufficient as a matter of law?
4. Whether the trial court erred in allowing the highly
prejudicial bad acts testimony by Nicholas Possinger
without giving any cautionary instruction that [Storey]
had a lot of customers?
5. Whether the trial court erred in allowing Officer
Christopher Staples to respond to the Commonwealth’s
questions about whether he know [Storey’s] phone
number by stating “every day you respond to a call, it
goes into the database,” a statement which placed
[Storey’s] prior interaction with law enforcement
before the jury?
6. Whether the Commonwealth committed
prosecutorial misconduct by bolstering its case before
the jury within the jury?
7. Whether the trial court erred in giving an accomplice
liability charge to the jury that they could not
understand, as clearly acknowledge by the attorneys
and the trial judge on the record? This ambiguity was
never cleared up with the trial judge even after the jury
asked for clarification on the elements of the drug
resulting in death charge and the confusing charge was
left with them to decide whether [Storey] was guilty if
either of the two drug delivery resulting in death
charges in the alternative – either as a principal or as an
accomplice.
8. Whether the conviction for the drug delivery
resulting in death was against the greater weight of the
evidence?
Brief of Appellant, at 5–6.
[1]
[2]
[3]
Storey’s first and second claims are that section
2506 is unconstitutionally void for vagueness as applied
to Storey, because the vague language of the statute made
it impossible for him to know what conduct was illegal.
To withstand constitutional scrutiny based on a challenge
of vagueness, a criminal statute must “define the criminal
offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461
U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In
addition, “vagueness challenges which do not involve
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
8
First Amendment freedoms must be examined in the light
of the facts of the case at hand.” Commonwealth v.
Heinbaugh, 467 Pa. 1, 354 A.2d 244, 245 (1976)
(quotation omitted).
Section 2506 provides, in relevant part:
(a) Offense defined.—A person
commits a felony of the first degree
if the person intentionally
administers, dispenses, delivers,
gives, prescribes, sells or
distributes any controlled substance
or counterfeit controlled substance
in violation of section 13(a)(14) or
(30) of the act of April 14, 1972
(P.L. 233, No. 64), known as The
Controlled Substance, Drug,
Device and Cosmetic Act, and
another person dies as a result of
using the substance.
18 Pa.C.S.A. § 2506(a). “When the words of a statute are
clear and free from all ambiguity, the letter of the statute
is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa.C.S.A. § 1921(c).
This Court has previously rejected a challenge to the
constitutionality of section 2506 in Commonwealth v.
Kakhankham, 132 A.3d 986 (Pa. Super. 2015). In
Kakhankham, we examined the statute in the context of a
drug dealer who sold heroin directly to the user, who
subsequently died as a result of an overdose. In that case,
we noted that section 2506 consists of two principal
elements: (i) intentionally administering, delivering,
giving, prescribing, selling, or distributing any controlled
substance or counterfeit controlled substance, *757 and
(ii) death caused by the use of that drug. Id. at 991–92.
We also found the level of causation necessary for guilt to
be a “but-for” test. Id. at 993. Finally, we held that the
mens rea for the first element of section 2506 requires
“intentional” action, while the second element requires
that death must be the result of at least “reckless” action.
Id. at 992, 95. Since the dangers of heroin are so great and
well-known, we concluded that the sale of heroin, itself, is
sufficient to satisfy the recklessness requirement when a
death occurs as a result of the sale. Id. at 995–96.
Storey attempts to distinguish his case from Kakhankham
by referring to the fact that he was unaware of O’Reilly’s
existence and did not intend to sell drugs specifically to
him. Because Storey was unaware that O’Reilly would
ultimately consume the drugs he sold, he could not have
known that his conduct could result in liability under the
statute if his sale of drugs resulted in O’Reilly’s death.
Additionally, since he was not aware of O’Reilly’s
existence, he could not have had the reckless state of
mind that O’Reilly might die as a result of Storey’s drug
sales. Under the holding of Kakhankham and the
statute’s own words, this difference is immaterial. The
statute requires that “another person dies as a result of
using the substance [sold].” 18 Pa.C.S.A. § 2506(a)
(emphasis added). It does not require the death of the
person to whom the defendant originally sold the illegal
substance. See Orlosky v. Haskell, 304 Pa. 57, 155 A. 112
(1931) (holding that legislature must be intended to mean
what it plainly expresses.) Therefore, section 2506 clearly
applies to Storey’s conduct; but for Storey’s illegal sale of
drugs, O’Reilly would not have died. Kakhankham, 132
A.3d at 993. Additionally, Kakhankham held that section
2506 does not impose strict liability, so Storey’s second
claim must fail. Id. at 995. For the foregoing reasons,
section 2506 is not unconstitutionally vague as applied to
Storey.
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
Storey next claims that the there was
insufficient evidence to support his section 2506
conviction. Our standard of review upon a challenge to
the sufficiency of the evidence is well settled:
The standard we apply in reviewing
the sufficiency of the evidence is
whether viewing all the evidence
admitted at trial in the light most
favorable to the verdict winner,
there is sufficient evidence to
enable the fact-finder to find every
element of the crime beyond a
reasonable doubt. In applying [the
above] test, we may not weigh the
evidence and substitute our
judgment for the fact-finder. In
addition, we note that the facts and
circumstances established by the
Commonwealth need not preclude
every possibility of innocence. Any
doubts regarding a defendant’s
guilt may be resolved by the
fact-finder unless the evidence is so
weak and inconclusive that as a
matter of law no probability of fact
may be drawn from the combined
circumstances. The Commonwealth
may sustain its burden of proving
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
9
every element of the crime beyond
a reasonable doubt by means of
wholly circumstantial evidence.
Moreover, in applying the above
test, the entire record must be
evaluated and all evidence actually
received must be considered.
Finally, the trier of fact while
passing upon the credibility of
witnesses and the weight of the
evidence produced, is free to
believe all, part or none of the
evidence.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.
Super. 2001), quoting Commonwealth v. Hennigan, 753
A.2d 245, 253 (Pa. Super 2000) (citations and quotation
marks omitted).
Storey again claims that, because he was unaware of
O’Reilly’s existence, he could *758 not have been found
to have intentionally sold heroin to him. As we have
noted above, this is not what the jury had to find in order
to find him guilty of the section 2506 charge. Instead, the
jury must have found beyond a reasonable doubt that
Storey: (i) intentionally sold a controlled substance, and
(ii) the death of another person resulted from this sale. 18
Pa.C.S. § 2506(a).
Upon review of the record and viewing all evidence in a
light most favorable to the Commonwealth, DiStefano,
supra, we find that there was sufficient evidence to
support a finding beyond a reasonable doubt that Storey
intentionally sold heroin to Possinger, and that the heroin
Storey sold to Possinger caused the death of O’Reilly.
Possinger’s testimony identified Storey as the dealer from
whom he had purchased the drugs. The cell phone data
corroborated Possinger’s testimony. Officer Staples
observed drug paraphilia around O’Reilly’s room, and the
coroner discovered four empty wax pages stamped with
the same initials as the drugs Possinger had purchased
earlier in O’Reilly’s pockets. Finally, the toxicology
report concluded that O’Reilly died from a heroin
overdose.
Storey is correct in noting that no “recklessness”
instructions were given to the jury as to the second
element of the charge. However since we have previously
held that the sale of heroin satisfies the reckless element
as to the possibility of death by the buyer, this argument
garners Storey no relief. Kakhankham, 132 A.3d at
995–96. Therefore, we find there was sufficient evidence
to allow a jury to conclude beyond a reasonable doubt that
Storey intentionally sold heroin to Possinger, and this sale
was responsible for O’Reilly’s death.
[12]
[13]
Storey next claims that the trial court erred in
allowing bad acts testimony by Nicholas Possinger
without giving a cautionary instruction. Specifically,
Possinger testified that Storey had “a lot of customers.”
N.T. Trial, 9/9/15, at 15. While Storey objected to this at
trial, he did not request a cautionary instruction after the
judge sustained the objection. “Failure to request a
cautionary instruction upon the introduction of evidence
constitutes a waiver of a claim of trial court error in
failing to issue a cautionary instruction.” Commonwealth
v. Bryant, 579 Pa. 119, 855 A.2d 726, 739 (2004).
Therefore, we find this claim waived.
[14]
[15]
[16]
[17]
[18]
[19]
Storey next claims that the trial court
erred in allowing certain testimony of Officer Staples, and
that the cautionary instruction regarding his testimony
was insufficient. Our standard for examining if evidence
was properly admitted is whether the trial court abused its
discretion:
The admission of evidence is a
matter vested within the sound
discretion of the trial court, and
such a decision shall be reversed
only upon a showing that the trial
court abused its discretion. In
determining whether evidence
should be admitted, the trial court
must weigh the relevant and
probative value of the evidence
against the prejudicial impact of
that evidence. Evidence is relevant
if it logically tends to establish a
material fact in the case or tends to
support a reasonable inference
regarding a material fact. Although
a court may find that evidence is
relevant, the court may
nevertheless conclude that such
evidence is inadmissible on account
of its prejudicial impact.
Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550
(2002) (citations omitted). If the trial judge gives curative
instructions, it is “presume[d] that the jury will follow the
instructions of the court.” *759 Commonwealth v.
Brown, 567 Pa. 272, 786 A.2d 961, 971 (2001).
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
10
At trial, Officer Staples testified that Possinger’s phone
called a certain number multiple times on the days when
the drug deals occurred. The Commonwealth attempted to
prove that the number Possinger called was Storey’s by
showing that the number Possinger called also had
frequent outgoing and incoming calls with the number
assigned to Storey’s parents’ residence. Storey asserts that
this testimony could have led the jury to infer that the
police were aware of Storey’s parents’ number because of
previous bad acts Storey may have committed when he
resided with his parents. This claim is without merit.
We begin by noting that the information Storey now
deems objectionable was originally elicited as the result
of an objection interposed by the defense regarding the
foundational basis for Officer Staples’ knowledge of
Staples’ parents’ phone number. Thus, it was the defense
that “opened the door” to Officer Staples’ testimony.
Notwithstanding that fact, at the request of defense
counsel, the court issued the following cautionary
instruction to the jury:
THE COURT: So members of the
jury, there was just testimony of
this witness that he knows Mr. and
Mrs. Storey, the defendant’s
parents’ phone number or contact
information, all right. That’s the
evidence in this case. You’re not to
speculate, in any manner
whatsoever, as to how or why that
information is available to this
particular witness.
N.T. Trial, 9/9/15, at 133.
In sum, because the evidence was relevant to prove that
Storey was the dealer Possinger met with on February 10
and 13, 2013, and because the trial court provided a
sufficient limiting instruction, we can discern no abuse of
discretion by the trial court in allowing the testimony.
[20]
Storey next claims that the Commonwealth committed
prosecutorial misconduct when it bolstered Possinger’s
credibility by stating in its closing arguments that “I
wouldn’t have called him if I didn’t believe him.” N.T.
Trial, 9/10/15, at 137. This claim is meritless.
[21]
[22]
Generally, comments by a prosecutor do not
constitute reversible error unless the unavoidable effect of
such comments would be to prejudice the jury, forming in
their minds fixed bias and hostility toward the defendant
so that they could not weigh the evidence objectively and
render a true verdict. Commonwealth v. Hawkins, 549
Pa. 352, 701 A.2d 492, 503 (1997). When reviewing
allegedly improper comments, we must do so within the
context of defense counsel’s conduct. Id.
Here, the defense, in its closing arguments, asserted that
the Commonwealth did not trust Possinger. N.T. Trial,
9/10/15, at 117 (“But why did the Commonwealth go to
that length? It’s because they don’t trust Mr. Possinger
either. They need something else. They don’t trust Mr.
Possinger, they don’t believe him either.”). Having
“opened the door” to this subject, Storey cannot now
complain because the Commonwealth chose to further
comment on what was behind that door. Hawkins, 701
A.2d at 503. Accordingly, Storey is entitled to no relief.
[23]
[24]
[25]
Next, Storey claims that the trial court erred in
its instructions as to accomplice liability. Our standard of
review for evaluating jury instructions is as follows:
When evaluating jury instructions,
the charge must be read as a whole
to determine whether it was fair or
prejudicial. The trial court has
broad discretion in phrasing its
instructions, and may *760
choose its own wording so long as
the law is clearly, adequately, and
accurately presented to the jury for
its consideration.
Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d
1273, 1274 (1990).
Storey points to one line of the accomplice liability
instruction that he believes polluted the verdict because
the jurors were confused due to seemingly contradictory
statements contained within. Specifically, Storey cites the
following passage: “In reviewing the evidence and
testimony of Nick Possinger’s criminal involvement, you
must regard him as an accomplice in the crime charged
and apply the special rules to his testimony. You must
decide whether Nick Possinger was an accomplice in the
crimes charged.” N.T. Trial, 9/10/15, at 174–75. We agree
that, taken out of context, these two sentences may seem
to contradict each other. However, taken as a whole, the
trial court’s instruction makes it clear to the jury that it
was tasked with deciding if Possinger was, indeed, an
accomplice, and instructed the jury on the elements
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
11
necessary to find that Storey was an accomplice. The
relevant portion of the instruction reads in full as follows:
Now I’m going to talk a little bit about the testimony in
this case of the alleged accomplice which was Nick
Possinger. Before I begin these instructions, let me
define to you the term “accomplice.”
A person is an accomplice of another person in the
commission of a crime if he or she has the intent of
promoting or facilitating the commission of that crime
and solicits the other person to commit it or aids or
agrees or attempts to aid such other person in planning
or committing a crime. Put simply, an accomplice is a
person who knowingly and voluntarily cooperates with
or aids another person is committing an offense.
When a Commonwealth witness is an accomplice, his
or her testimony must be judged by special
precautionary rules. Experience shows that an
accomplice, when caught, may often try to place the
blame falsely on someone else. He or she may testify
falsely in the hope of obtaining favorable treatment or
for some corrupt or wicked motive. On the other hand,
an accomplice may be a perfectly truthful witness. The
special rules that I give you are meant to help you
distinguish between truthful and false accomplice
testimony.
In reviewing the evidence and the testimony of Nick
Possinger’s criminal involvement, you must regard him
as an accomplice in the crime charged and apply the
special rules to his testimony. You must decide whether
Nick Possinger was an accomplice in the crime
charged. If after considering all the evidence you find
that he was an accomplice, then you must apply the
special rules to his testimony, otherwise ignore those
rules. Use this test to determine whether Nick
Possinger was an accomplice. Again, an accomplice is
a person who knowingly and voluntarily cooperates
with or aids another person in the commission of a
crime.
See id. at 173–75 (emphasis added). Because the
instruction governing the jury’s determination of
Possinger’s accomplice liability, taken as a whole, clearly,
adequately, and accurately states the law, Storey’s claim
is without merit.
5
[26]
[27]
[28]
[29]
[30]
[31]
[32]
*761 Storey last claims that the
verdict was against the weight of the evidence.
An allegation that the verdict is
against the weight of the evidence
is addressed to the discretion of the
trial court. A new trial should not
be granted because of a mere
conflict in the testimony or because
the judge on the same facts would
have arrived at a different
conclusion. A trial judge must do
more than reassess the credibility
of the witnesses and allege that he
would not have assented to the
verdict if he were a juror. Trial
judges, in reviewing a claim that
the verdict is against the weight of
the evidence[,] do not sit as the
thirteenth juror. Rather, the role of
the trial judge is to determine that
notwithstanding all the facts,
certain facts are so clearly of
greater weight that to ignore them
or to give them equal weight with
all the facts is to deny justice.
Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. Super.
2013), quoting Commonwealth v. Widmer, 560 Pa. 308,
744 A.2d 745, 751–52 (2000) (citations, quotation marks,
and footnote omitted). In other words, a court may grant a
new trial because the verdict is against the weight of the
evidence only when the verdict rendered is so contrary to
the evidence as to shock one’s sense of justice. Id. at 651.
The determination of whether to grant a new trial rests
within the discretion of the trial court, and we will not
disturb this determination absent an abuse of discretion.
Id.
Here, Storey again relies upon the fact that he had no
connection to O’Reilly and neither intended to nor
actually did distribute anything to O’Reilly. However, as
we have noted in our earlier discussion, Storey’s
knowledge of the end-user—O’Reilly—is irrelevant to his
guilt under section 2506. Upon review of the record as a
whole, the jury’s verdict is not so against the weight of
the evidence as to shock one’s sense of justice. See id. As
such, the trial court did not abuse its discretion in denying
Storey’s motion for a new trial.
Judgment of sentence affirmed.
All Citations
167 A.3d 750, 2017 PA Super 237
Commonwealth v. Storey, 167 A.3d 750 (2017)
2017 PA Super 237
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
12
Footnotes
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 2506(a).
2
35 P.S. § 780–113(a)(30).
3
35 P.S. § 780–113(a)(32).
4
35 P.S. § 780–113(a)(16).
5
Storey also argues that the jury’s request for clarification on the drug delivery charge indicated that the jury was confused about
the accomplice liability charge. However, since the jury never requested clarification on
accomplice liability charge, this claim is
nothing more than speculative and, as such, is without merit.
End of Document
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
