Commonwealth v. Hudgens

270 A.3d 1141 (Table)

COMMONWEALTH of Pennsylvania

v.Dennis Paul HUDGENS, Appellant

No. 576 WDA 2020

Superior Court of Pennsylvania.

Filed: December 15, 2021

Reargument Denied February 25, 2022

MEMORANDUM BY McCAFFERY, J.:

Dennis Paul Hudgens (Appellant) appeals from the judgment of sentence¹ entered in the Court of Common Pleas of Clearfield County after a jury trial, at which Appellant was convicted of fifty counts of possession of child pornography and one count of criminal conspiracy.² Because the trial court erred in denying suppression, we reverse the suppression order and vacate the judgment of sentence. We hold that the search warrant's "all persons present" (or APP) clause was unconstitutional because the warrant lacked particularized facts to justify a search of "all persons present," and the search of Appellant and his tent was improper.

The trial court provided the following summary:

The investigation began when the Pennsylvania State Police believed that they had obtained child pornography from a file sharing site; this led the police to obtain a warrant for the IP address which possessed the child pornography. Verizon shared information that the IP address was linked to the address of [the Residence], Frenchville, Pennsylvania, where [Appellant] and [a] co-defendant resided.^[3] Based on that information, the Pennsylvania State Police obtained a warrant to search the property for all computer hardware and software, cell phones, tablets, and storage devices.

On December 20, 2018, the police [sent a team of six people to] execute[ ] a search warrant upon the property.^[4] While police were on the property, they discovered [Appellant's] tent located roughly twenty yards from the house, between the driveway and a shed. The tent had an extension cord running to it from the house, and the officers could hear a heater running inside. Officers approached the tent and asked [Appellant] to come outside and speak with them. After [Appellant] was outside the tent, Trooper Brown cleared the tent to ensure no one else was inside. He then asked [Appellant] to speak with him in his vehicle. [Appellant] was patted down prior to being placed in the officer's vehicle for the interview. During the pat down, an officer felt an object in the front pants pocket of [Appellant's] pants, which [Appellant] removed for the troopers. The object, an SD card used to store media, was then retained by police. Throughout the execution of the search warrant, troopers received multiple items, which were then placed into evidence.

As a result of the search warrant, thousands of images and videos were discovered on the items found during the search. On December 21, 2018, the Pennsylvania State Police filed a complaint against [Appellant] charging him with fifty counts of possession of child pornography, one count of dissemination of child pornography, and one count of criminal use of a communication facility. [Appellant] filed an omnibus pre-trial motion on July 22, 2019. Within that motion was a request to suppress the search warrant and the search of the tent and [Appellant's] body. After argument by counsel, the motion was denied. On August 12, 2019, the Commonwealth amended the information against [Appellant] to include one count of criminal conspiracy to possess child pornography.

[Appellant] proceeded to a two day jury trial. On August 13, 2019, prior to the beginning of the trial, the Commonwealth withdrew one count of dissemination of child pornography and one count of criminal use of a communication facility. At trial, [Appellant] was found guilty of all fifty counts of possession of child pornography and one count of criminal conspiracy to possess child pornography. On November 19, 2019, following a pre-sentence investigation being completed, [the trial court] sentenced [Appellant] to an aggregate term of thirty to sixty years of incarceration. [Appellant] filed a timely post-sentence motion, which was denied after reviewing argument and briefs by counsel.

A Notice of Appeal was filed on May 29, 2020. Following [the trial court's order, Appellant timely filed a statement per Pa.R.A.P. 1925(b) ] on June 22, 2020[.]

Trial Ct. Op., 12/10/20, at 1-3. Appellant filed the present timely appeal and complied with Pa.R.A.P. 1925(b).⁵

Appellant raises the following issues for our review:

I. Whether the trial court erred by denying [Appellant's] motion to suppress evidence, where police officers did not have sufficient cause to search [Appellant's] person.

A. Whether [Appellant] was a person to be searched under the search warrant issued for the [Residence.]

B. Whether police officers had reason to believe that criminal activity was afoot and that Appellant was armed and dangerous in performing [a] pat-down search of Appellant.

C. Whether the Commonwealth articulated a rationale for whether the searching officer believed the micro-SD card in Appellant's pocket was a weapon or contraband.

II. Whether the trial court erred by denying [Appellant's] motion to suppress evidence, where police did not have sufficient cause to search the tent being occupied by [Appellant] as the same was beyond the scope of the search warrant.

III. Whether sufficient evidence was presented at trial to support convictions for fifty (50) counts of possession of child pornography and criminal conspiracy.

IV. Whether Appellant's convictions ... were against the weight of the evidence.

V. Whether the [trial court] erred by allowing the Commonwealth to, over defense counsel's objection, admit into evidence and publish to the jury inflammatory photographs and video containing child pornography.

VI. Whether the [trial court] erred by allowing the Commonwealth to present inflammatory evidence of Appellant's incarceration.

Appellant's Brief at 7-9 (some subheadings omitted). Because we reverse as to Appellant's motion to suppress his search, we do not reach issues three through six.

We review suppression decisions to determine "whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Jones , 988 A.2d 649, 654 (Pa. 2010).

I. The Warrant

Appellant argues that the trial court erred in denying suppression because there was not sufficient cause to search his person.⁶ First, he argues that the search of his person was improper, as he was not a person to be searched under the warrant. Appellant's Brief at 24-30. He cites Commonwealth v. Wilson , 631 A.2d 1356, 1358 (Pa. Super. 1993), and some related cases for the proposition that "all persons present" warrants are disfavored.⁷

The Commonwealth points out that "all persons present" warrants have been upheld in situations involving narcotics sales. Commonwealth's Brief at 10-12. The Commonwealth claims that "[t]he basis of the warrant was child pornography being uploaded at the IP address associated with the residence, which creates a direct nexus between all of the people present and the probable cause for the warrant." Commonwealth's Brief at 11.

The trial court cites Commonwealth v. Graciani , 554 A.2d 560 (Pa. Super. 1989), for the proposition that where the type of evidence sought is easily concealed on the body, "all persons present" searches have been upheld.⁸ Trial Ct. Op. at 4 (unnumbered).

"All persons present" warrants are "only permissible when the affidavit of probable cause contains sufficient facts to justify a search of everyone found on the premises." Wilson , 631 A.2d at 1358 (citation omitted). The United States Supreme Court has expressly declined to address the validity of such a warrant. See Ybarra v. Illinois , 444 U.S. 85, 92 n.4 (1979) ("Consequently, we need not consider situations where the warrant itself authorizes the search of unnamed persons in a place and is supported by probable cause to believe that persons who will be in the place at the time of the search will be in possession of illegal drugs.").

The search warrant contained the following provision:

I also respectfully request the authority to search any vehicle or vehicles or the body of any person or persons which are present at the time the search warrant is executed or which may arrive on the property during the course of the execution of the search warrant. This is requested due to the size and portability of many of today's storage media devices.

Application for Search Warrant, 12/19/18, at 2. The provision went on to discuss the relatively small size of data storage options (such as the micro SD card at issue here) and included a photograph of an SD card, a micro SD card, a small USB drive, and a smartphone. Id.

"[O]ur constitution prioritizes the protection of privacy rights caused by the unreasonable search above the need to present incriminating evidence in court and to assist law enforcement efforts." Commonwealth v. Alexander , 243 A.3d 177, 204 (Pa. 2020) (Pennsylvania's Constitution provides broader privacy protections than its federal counterpart). Search warrants must name and describe with particularity the persons or places to be searched. Pa.R.Crim.P. 205(A)(3). "Because Pennsylvania law requires that every search warrant ‘name with particularity the person or place to be searched,’ ... ‘all persons present warrants’ are not favored." Wilson , 631 A.2d at 1358 (citation omitted). APP warrants are "only permissible when the affidavit of probable cause contains sufficient facts to justify a search of everyone found on the premises." Id.

An early case from the Supreme Court of New Jersey provided a map for our courts’ analysis of APP warrants. In State v. De Simone , 288 A.2d 849 (N.J. 1972), that Court upheld denial of suppression where an APP warrant for an automobile was issued in an investigation of illegal sale of lottery slips. The Court described the warrant as "in our view, unassailable" as to its demonstration of probable cause. Id. at 851. After pointing out the diminished expectation of privacy that applies to automobiles, id. , t...