
    Commonwealth v. Huntington
    
      C.P. of Berks County,
    no. CP-06-CR-0673-2006.
    
      Alisa R. Hobart, for Commonwealth.
    
      John T. Adams, for defendant.
    August 16, 2006
   YATRON, J,

On June 20, 2006, we entered an order suppressing evidence and granting a petition for writ of habeas corpus on motion of defendant, Thomas Lee Huntington. On or about July 13,2006, the Commonwealth filed a notice of appeal of this court’s June 20, 2006 order. By order dated July 21, 2006, the Commonwealth was directed to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On or about July 25,2006, the Commonwealth filed its concise statement asserting two errors in this court’s June 20, 2006 opinion and order. They are:

“(1) The trial court erred in granting defendant’s motion to suppress evidence based upon the four corners of a search warrant.

“(2) The trial court erred in granting defendant’s petition for a writ of habeas corpus and dismissing the charges.”

For the reasons that follow, we respectfully urge the court to deny the Commonwealth’s appeal.

We hereby adopt our opinion and order dated June 20, 2006, in its entirety as setting forth the court’s findings of fact and conclusions of law with regard to the defendant’s omnibus pretrial motion. A copy of our opinion and order is attached hereto. While we believe that our June 20 opinion, although narrative in format, satisfies the requirements of Pa.R.Crim.P. 581(1), we write to further explain our analysis and reasoning with regard to the defendant’s motion to suppress.

At the outset, we note that once the determination was made that the evidence had to be suppressed, the granting of the petition for writ of habeas corpus was inevitable. This matter was set for hearing on the defendant’s omnibus pretrial motion on May 16, 2006. At that time, counsel for the Commonwealth and the defendant indicated that no testimony would be offered and that the matter was being submitted to the court for determination based entirely on the information contained within the four corners of the search warrant. It was not even suggested by the Commonwealth that it was in possession of evidence against the defendant other than that seized by virtue of the search warrant. That being the case, it is clear that the only evidence against the defendant was that obtained by the seizure of the defendant’s computer. This being the case, the determination to grant the writ of habeas corpus follows the order of suppression as the night follows the day.

The deficiencies of the warrant in this case with regard to the failure to provide sufficient background information and definition of terms which would permit an understanding of the complicated technical averments contained in the brief affidavit are apparent when the instant warrant is compared to the usual warrant application in narcotics cases. Virtually every such warrant that comes before this court contains three to four pages of background information setting forth the affiant’s training and experience and containing an extensive overview of the drug trafficking business. Upon reviewing such a warrant, there is a temptation to dismiss such information as mere “boilerplate,” especially since computer word processing equipment makes virtually all such warrants startlingly similar. To reach that conclusion, however, is a mistake. The information contained in those averments is vital for an understanding of how drug traffickers operate, and is important to an understanding of the specific factual averments that relate to the particular requested search and seizure.

The search warrant sub judice fails to either describe or define numerous terms such as “e-mail addresses, screen names, IP addresses, Yahoo groups, cybertip, and IP tracker logs.” Without explanations or definitions of these terms, it is impossible to discern whether the information set forth in the page-and-a-half affidavit establishes probable cause to believe that contraband would be found on the defendant’s computer.

Nor does the affidavit provide any information from which the court can assess the reliability of the information. Despite reference, for example, to another law enforcement officer’s report, it is impossible to discern whether information from that report, upon which the affiant purportedly relied, is contained in the affidavit for the search warrant.

While the Commonwealth may attempt to justify the failure to provide sufficient background information by claiming exigent circumstances, such claim must fail. Paragraph 12 of the warrant affidavit contains the following averment, “Even if evidence of the existence of child pornography collection is several years old, chances are he/she still has the collection, now, only it’s larger.” This averment was apparently included in order to avoid an anticipated staleness attack on the affidavit, considering that paragraph 2 of the affidavit sets forth a claimed violation of the relevant statute on November 30, 2004. (The affidavit was sworn by the affiant on May 27,2005.) Thus, the Commonwealth had all the time it could possibly need to prepare an adequate affidavit in support of its request to seize the defendant’s computer. We believe the affidavit in question grossly fails the tests set forth in Commonwealth v. Ryerson, 817 A.2d 510 (Pa. Super. 2003). For these reasons, as well as those set forth in our June 20,2006 opinion, we respectfully request the Commonwealth’s appeal be denied.

June 20, 2006

MEMORANDUM OPINION

YATRON, J,

Thomas Lee Huntington is charged in a one-count information with sexual abuse of children pursuant to 18 Pa.C.S. §6312(d). This matter is before the court on defendant’s omnibus pretrial motion seeking a motion to suppress evidence and an adjunct writ of habeas corpus based upon evidence seized from defendant’s home following a search warrant. Upon the agreement of counsel, the search warrant and affidavit of probable cause were admitted into evidence and neither testimony nor oral arguments were heard; rather, counsel for the Commonwealth and counsel for the defendant submitted memoranda in support of their respective positions. The sole issue is whether the facts contained within the search warrant’s affidavit of probable cause sufficiently establish probable cause for the issuance of the warrant.

On May 27, 2005, Detective W. Douglas Weaver of the Berks County District Attorney’s Office applied for a warrant to search the residence at 101 Hickory Drive, Bethel Township, Berks County, Pennsylvania. District Justice Carol A. Stoudt authorized the warrant to search the residence at 101 Plickory Drive and to search and/or seize personal property that included, inter alia, electronically-stored and paper files, data, materials, and records pertaining to child pornography; computer hardware and software used to store, view, display, and disseminate child pornography; and information pertaining to internet service providers (ISPs). See Commw. exhibit 1, appl. for search warn

DISCUSSION

“In determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four comers of the affidavit.” Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003) (quoting Commonwealth v. Sharp, 453 Pa. Super. 349, 357, 683 A.2d 1218, 1223 (1996)). Thus, the Pennsylvania Supreme Court has articulated that the starting point for evaluating the underlying probable cause of a warrant is the “totality of the circumstances” test. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). In order to do this, “[t]he information offered to establish probable cause must be viewed in a commonsense, nontechnical manner.” Ryerson, 817 A.2d at 514.

The warrant’s underlying affidavit of probable cause contains 13 individually numbered paragraphs. See exhibit 1, aff. prob. cause. Contained within the probable cause’s paragraphs are averments alleging, inter alia, that Detective Weaver began an investigation on May 16,2005 because Yahoo Inc. reported a possible use of an e-mail account on November 30, 2004, for the purpose of “uploading] images of children, who appeared to be under the age of 18, and were exposing their gentitals [sic] while in sexually explicit poses” via “cybertip 288696.” Exhibit 1, aff. prob. cause at para. 2. While not stated explicitly, one can infer that Yahoo Inc. is somehow involved with the internet. However, this inference teeters on the cusp of reading the affidavit non-technically and going impermissibly outside the four comers of the affidavit. Yet, the affidavit does not even begin with the basics of explaining who or what “Yahoo Inc.” is or does. Likewise, the affidavit leaves open to speculation what the definitions and explanations of “cybertip” and “e-mail address” are. However, even more problematic is the reliability of the information provided by Yahoo Inc. See exhibit 1 at para. 2. Citing Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelliv. United States, 393 U. S. 410 (1969), the Superior Court stated that in order establish probable cause for a search warrant based upon information given to the affiant by an informant, “[fjirst, the affidavit must include the underlying circumstances supporting the informant’s conclusion that the [items] to be seized will be found at the place to be searched. Second, the affidavit must present the circumstances justifying the affiant’s belief in the reliability of the informant.” Commonwealth v. Forster, 253 Pa. Super. 433, 436, 385 A.2d 416, 417-18 (1978).

In the case at bar, there has been no mention of the circumstances justifying a belief that Yahoo’s “cybertip” was reliable. In addition, nowhere in the affidavit does it describe or explain the connection between the alleged November 30, 2004 violation and the defendant, the defendant’s family, or the defendant’s residence and/or personal property.

Paragraph 3 of the affidavit also contains further technical usage of e-mail addresses, “screen name[s],” an IP address of “63.214.197.252,” and “a Yahoo group titled ‘the_future_shines_bright.’ ” See exhibit 1 at para. 3. The connections among this “IP address,” the alleged crime, and the defendant are also not explained either in this paragraph or any subsequent paragraphs. Also contained within this paragraph is an assertion that Detective Weaver relied upon the investigative report compiled by Detective Lieutenant David C. Peifer of the Delaware County District Attorney’s Office that “comprehensively documented several facts and circumstances.” See exhibit 1 at para. 3. It is unclear from the affidavit’s face whether the totality of the facts in the report are set forth in the affidavit or not, and if they are, they fail to appear “comprehensive.” Moreover, “the underlying circumstances justifying ... the reliability” of the information contained in this paragraph as provided by the Yahoo legal department are not set forth. See Forster, 253 Pa. Super. at 436, 385 A.2d at 418.

Further hearsay information averred to by Detective Weaver as relayed to him via Detective Peifer from Yahoo states that the “thom682000” screen name was created on January 17, 2001, from the IP address previously mentioned (63.214.197.252). Yet, the affidavit further states information concerning the registrant’s name, location of the registrant, and birth date. However, these details are not even verified by Yahoo (not to mention the underlying reasons for reliability of believing Yahoo). In this respect, the affidavit attempts to connect inferentially, but not explicitly, the defendant to the computer and internet and the alleged crime by use of his initials in the screen name. There is neither any explanation of the relationship between the registrant’s alleged Delaware address and the defendant’s Pennsylvania address, nor any passing reference to the defendant’s birth date in the affidavit. However, the affidavit continues by stating that the “thom682000” screen name was accessed at a second IP address (68.82.123.219) on December 20,2004. Exhibit 1 at para. 6. This is “known” because of “IP tracker logs,” which, like the IP addresses, are not explained, defined, or demonstrated as being connected to the defendant, the alleged crime, or each other. See exhibit 1 at para. 6. Despite not knowing what an IP address is, it appears to be connected to the Huntington residence (but to some unknown degree) as proven through subsequent paragraphs. See exhibit 1 at paras. 7-11. As the affidavit explains, on December 20, 2004, Comcast Cable Communications owned the 68.82.123.219 IP address, which was registered to an account belonging to Sheila Huntington, the defendant’s wife. This account was still active on April 18, 2005. However, despite this information, it is unclear what Comcast is, what the Comcast account is, or how it is connected to the alleged crime and the defendant. What appear in the affidavit are conclusive statements, with insufficient facts to support them.

Based upon the foregoing recitation of facts, it appears to this court that even a non-technical, commonsense approach to understanding and reading of the affidavit of probable cause leaves much to be desired. Instead, the intertwined relationship between the unexplained technological jargon, (seemingly) factual averments, and alleged crime are left to the imagination, providing no meaning as to what the affidavit contains. Rather, the task of making a practical, commonsense decision, when viewing the totality of the circumstances surrounding the affidavit, is difficult under these particular facts, even if the reviewing magistrate is extraordinarily technologically savvy. Instead, the representations set forth in the affidavit in question are analogous to someone presenting to a magistrate a “connect-the-dots” puzzle that has neither numbers nor instructions for giving guidance on how to connect the dots into a properly formed picture.

“[Tjhis court is to ensure that the magistrate had a ‘ substantial basis for concluding that probable cause existed.’ ” Commonwealth v. Days, 718 A.2d 797, 800 (Pa. Super. 1998) (quoting Commonwealth v. Sharp, 453 Pa. Super. 349, 357, 683 A.2d 1219, 1223 (1996)). This court is extremely hard-pressed to conclude that there was even a basis, let alone a substantial basis, for concluding probable cause existed to issue the search warrant sub judice. Based upon the above, we conclude that the magistrate either lacked “substantial basis” for concluding probable cause existed or considered information outside the affidavit in reaching the conclusion that probable cause existed. The Superior Court has further stated that “ ‘ [pjrobable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched. ’ Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa. Super. 156, 446 A.2d 277 (1982). The facts stated in an affidavit will support a search warrant only when they would persuade a reasonable person that there is probable cause for a search; mere suspicion or conjecture is insufficient. Commonwealth v. Mazzochetti, 299 Pa. Super. 447, 445 A.2d 1214 (1982).” Commonwealth v. Kanouff, 315 Pa. Super. 392, 394-95, 462 A.2d 251, 252 (1983).

Thus, “[t]he validity of the warrant is dependent upon the facts shown at the time of its issuance. A warrant issued without probable cause, as this warrant was, violated the Fourth Amendment’s mandate that ‘no warrants shall issue, but upon probable cause.’... ‘[W]e are not now concerned with that which happened after the search warrant was issued. We are concerned only with the search warrant itself and with the authority it gave the officer to whom it was directed. It gave him authority to search the house of an innocent person without any attempt to show probable cause, which the Constitution of the United States (Amend. 4) intended to prevent.’ ” Commonwealth v. Kelly, 2001 WL 34315475, at *2 (Columbia Cty. 2001) (quoting Commonwealth v. Copertino, 209 Pa. Super. 63, 69-70, 224 A.2d 228, 230-31 (1966) (citations omitted)).

Therefore, because the search warrant in the case at bar has been found to be lacking in probable cause, the defendant’s home was searched pursuant to an illegal and unconstitutional search warrant. Consequently, the defendant’s property was seized illegally. In accordance with our findings, the defendant’s motion to suppress the evidence seized pursuant to warrant control no. DA-05-002692 and for writ of habeas corpus is granted.

ORDER

And now, June 20, 2006, after consideration of the defendant’s omnibus pretrial motion and the arguments and memoranda of counsel, the defendant’s motion to suppress evidence is granted and further the defendant’s petition for writ of habeas corpus is granted and the charge and information against him is dismissed.

COMMONWEALTH EXHIBIT 1 
      
      . The e-mail address is listed in the affidavit as “thom682000@ yahoo.” Exhibit 1 at para. 3.
     
      
      . The Yahoo screen name is listed as “thom682000.” Exhibit 1 at para. 3.
     
      
      . The registrant of the account is allegedly from “Mr. t. h. of Bridgeville, DE, 19933” whose birth date is supposedly December 4, 1968. Exhibit 1 at para. 5.
     
      
      . Inferentially, this information provided by Comcast is assumed reliable as it was provided under court order. See exhibit 1 at paras. 7-9.
     