PA: Computer file that had to be opened was not in “plain view”

Riley on cell phone searches applies to computer searches. Defendant had a reasonable expectation of privacy in his files. He took his computer to Circuit City to have a DVD burner put on his computer, and the store technician decided to test it by opening video files, which wasn’t necessary, but he did, and child pornography was found. He called the police. When they arrived, the computer had to be reopened, and the file was clicked on again. The video file wasn’t in plain view, and the trial court properly granted the motion to suppress. [Private search doctrine not discussed.] Commonwealth v. Sodomsky, 2015 PA Super 133, 2015 Pa. Super. LEXIS 324 (June 5, 2015) (2-1, dissent here):

Our review of the record discloses that police officers were called to the Circuit City store after Mr. Richert, a Circuit City employee, conducted a search of video files on Sodomsky’s computer. N.T., 9/28/05, at 23-24, 26. Upon arriving at the scene, Wyomissing Police Officer John Phillips (“Officer Phillips”) asked Mr. Richert to describe what he had seen on Sodomsky’s computer. Id. at 42. Upon the express direction of Officer Phillips, Mr. Richert double-clicked on the file to open it, and then played the video file for the officer. Id. at 38. The file was not visible on Sodomsky’s computer until Officer Phillips directed Mr. Richert to open the video data file. Id. at 38, 42.

Thus, the evidence, viewed in a light most favorable to Sodomsky, established that the suspect video file was not in “plain view” when Officer Phillips arrived at the scene, nor was its criminal nature readily apparent. The incriminating nature of the video became apparent only after Officer Phillips directed Mr. Richert to open and play the digital data file. By directing Mr. Richert to open and play the computer digital data file, Officer Phillips effectuated a warrantless search of the digital data stored on Sodomsky’s desktop computer.

Under Jones and Riley, the warrantless search of Sodomsky’s digital data files, stored on his desktop computer, violated Sodomsky’s Fourth Amendment protections. Consequently, the officers’ subsequent seizure of the computer, and additional searches conducted thereafter, were unlawful as “fruits of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963) (recognizing that evidence discovered as a result of a search in violation of the Fourth Amendment must be excluded from evidence).

Based upon the foregoing, we are constrained to affirm the Order of the suppression court.