Philadelphia criminal appeals lawyer Lloyd Long discusses details surrounding the Pennsylvania’s Superior Court’s decision in the Sodomsky case. The trial court in three separate instances granted Sodomsky’s motion to suppress child pornography found on his computer by a Circuit City technician and police. The technician found one file and called police, who came to the store and watched the technician play the video. Based on the plain sight exception to the warrant requirement, police seized the computer and later found more child pornography.

The Superior Court had already reversed the trial court’s suppression rulings twice. The first reversal was based on the trial court’s erroneous determination that Sodomsky retained a reasonable expectation of privacy in the computer. By turning the computer over to Circuit City, he had voluntarily relinquished control of the computer and its files.

On remand, the trial court allowed Sodomsky to reopen the record and present expert opinion that Circuit City’s method of opening the original file was not commercially acceptable. It granted suppression based on this testimony, but the Superior Court again reversed because nothing changed the earlier conclusion that Sodomsky had abandoned control over the files by giving the computer to Circuit City.

Sodomsky again sought to reopen the record based on the USSC’s decision in US v. Jones, 132 S.Ct. 945 (2012), which was decided after briefs were submitted to the Superior Court in the second appeal. Jones held that attaching a GPS to a car and monitoring the vehicle’s movement was a search under the Fourth Amendment, thereby requiring a warrant. According to Sodomsky, this was a clear change in the law that was applicable to his case.

The trial court agreed and again granted suppression. On appeal, a divided panel of the Superior Court affirmed.

The Commonwealth sought reargument en banc and the suppression order was reversed. Jones did not create new law — it reaffirmed that a person’s effects (like a car) were subject to protection under the Fourth Amendment. But in that case, there had been no abandonment of the item at issue. In this case, there had: turning a computer over to a private citizen who viewed what he perceived to be an unlawful video and showed it to police.

Pa.R.Crim.P. 581 permits a suppression record to be reopened on motion if the opportunity to present certain evidence did not previously exist or if the interests of justice otherwise require. Because Jones did not announce a clear change in the law, the opportunity to make certain arguments always existed. The interests of justice did not require reopening of the record for the same reason.

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