Judges Opinions Public Notices, — March 17, 2020 10:46 — 0 Comments

Public Notices- March 4, 2020

Volume 57, No. 31

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF DISSOLUTION

 

TABLE OF CONTENTS

Commonwealth of Pennsylvania v. Michael Jovich

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF JANICE STEINER, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Annette Cooper, Co-Executrix

Virginia K. McGlaughlin, Co-Executrix

Kim Hoffsmith, Co-Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, Pa 17003

 

ESTATE OF JAMES F. MERTZ, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathy L. Kauffman, Executrix

Jon F. Arnold

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ALLEN C. BOYER, late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Kathy Fausnacht, Administratrix

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF FRANCIS E. PEYTON,        late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lisa M. Peyton, Executrix

126 Steeplechase Drive

North Wales, PA 19454

 

David P. Grau, Esquire

911 Easton Road

P.O. Box 209

Willow Grove, PA 19090

 

SECOND PUBLICATION

 

ESTATE OF JUNE LOUISE HAAG, a/k/a JUNE L. HAAG, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Gaeton Bernard Foschini, Executor

Steven D.W. Miller, Equire

P.O. Box 121

Cornwall, PA 17016

 

ESTATE OF JAMES M. WARD, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jane M. Ward, Executrix

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ROBERT A. HENRY, a/k/a ROBERT ALAN HENRY, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ryan A. Henry, Executor

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042

 

ESTATE OF DAVID R. LONG, a/k/a DAVID LONG, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Keith Fernsler, Executor

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF ARLENE A. FANOCOVIC late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Anthony J. Fitzgibbons, Executor, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF NANCY HILES, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Michael Hiles, Co-Executor

James Hiles, Co-Executor

960 E. Queen Street

Annville, PA 17003

 

ESTATE OF SUSAN L. SWEITZER, late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Clarence W. Sweitzer, Administrator

7 Woodland Road

Reading, PA 19610

 

Brett M. Fegely, Esquire

Hartman, Valeriano, Magovern & Lutz, P.C.

1025 Berkshire Blvd., Ste. 700

Wyomissing, PA 19610

 

ESTATE OF ISAAC J. WAMPLER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Mervin D. Wampler, Co-Executor

Wayne E. Wampler, Co-Executor

7136 Union Deposit Road

Hummelstown, PA 17036

 

Keith D. Wagner, Esquire

Brinser Wagner

6 East Main Street

PO Box 323

Palmyra, PA 17078

 

 

THIRD PUBLICATION

 

ESTATE OF RUTH N. FISHER, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Eugene F. Fisher, Jr., Executor

190 South Aspen Drive

Mount Joy, PA 17552

 

Karl Kreiser, Esquire

553 Locust Street

Columbia, PA 17512

 

ESTATE OF BONNIE L. WEST, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John M. Gruber, Esquire, Executor

Russell, Krafft & Gruber, LLP

930 Red Rose Court, Suite 300

Lancaster, PA 17601

 

ESTATE OF FRANCES M. REINHARD, late of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Cynthia A. Felty, Co-Executrix

Marc A. Reinhard, Co-Executor

Loreen M. Burkett, Esquire

Weiss Burkett

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF DAVID M. ENGLEHART, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Malisa J. Rutt

1401 W. Main Street

Newmanstown, PA

 

Donna Long Brightbill, Attorney

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD H. HEVERLING, JR., a/k/a RISHARD H. HEVERLING, late of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Renee Heverling, Administratrix

Loreen M. Burkett, Esquire

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF MILDRED M. HOUSER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Marlene E. Deiss, Executrix

2 Laurel Drive

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steinder & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF DORIS M. HORST, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

JoAnn L. Roschel, Executrix

4 Fisher Terrace

Willow Street, PA 17584

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF HELEN G. SHAAK, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Shirley Hains, Executrix

Estate of Helen G. Shaak

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

NOTICE OF DISSOLUTION

 

CORPORATE DISSOLUTION NOTICE IS HEREBY GIVEN to all creditors and claimants of Future Fortune Investments, Inc., a business corporation, that the Shareholders and Directors have approved a proposal that the Corporation voluntarily dissolve, and that the Board of Directors is now engaged in winding up and settling the affairs of the Corporation under the provisions of Section 1975 of the Pennsylvania Business Corporation Law of 1988, as amended.

Andrew Conley, President

1385 Sholly Avenue

Lebanon, PA 17046

 

JUDGE’S OPINION

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY,

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

 

V.

 

MICHAEL JOVICH

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CP-38-CR-70-2019

APPEARANCES:

Megan Ryland-Tanner, Esquire – for the Commonwealth

Nicholas Sidelnick, Esquire – for Defendant

OPINION, KLINE, J., JUNE 26, 2019

Before the Court is Defendant’s Omnibus Pretrial Motion to Suppress.  For the reasons set forth herein, Defendant’s Motion to Suppress is Granted as specified below.

 

FACTS AND PROCEDURAL BACKGROUND

Defendant is charged with three counts of Statutory Sexual Assault, Corruption of Minors, Endangering the Welfare of Children and three counts of Indecent Assault. Detective Todd Hirsch was assigned to the investigation of the case. According to Complaint, Defendant had a sexual contact with a 15-year-old girl at the time he was being supervised by State Parole Officer Monroe. Subsequently, Defendant was taken into custody. On December 11, 2018, upon learning of possible evidence on Defendant’s cellphones, Officer Monroe took possession of the phones but did not ask Defendant for passwords. On December 11, 2018, Officer Monroe turned the cell phones over to Detective Hirsch. On December 11, 2018, Detective Hirsch determined that cellphones could not be accessed without passwords. Charges were filed against Defendant on December 20, 2018. On December 21, 2018, Defendant was incarcerated on this matter. On January 2, 2019, Detective Hirsch applied for a search warrant to forensically examine Defendant’s two cellphones that remained in the physical custody of the detective. The search warrant N. 18-0369A was approved by Magistrate District Judge Anthony Verna. The warrant was for “two (2) Samsung S7 Edge Mobile Phones possessed/belonging to Michael Jovich.” This warrant was later served on Defendant while he was at the Lebanon County Correctional Facility. On January 2, 2019, Defendant told Detective Hirsch that he had an attorney and did not want to talk to him. Detective Hirsch told Defendant that the warrant required his cooperation in providing passwords, but never demanded the passwords. Defendant complied with the verbal demand and provided the passwords. Previously, Defendant told his Verizon passwords to his father.

DISCUSSION

Pa.R.Crim.P. 578 provides that “[u]nless otherwise required in the interests of justice, all pretrial requests shall be included in one omnibus motion.”  Suppression of evidence is an appropriate type of relief to include in an omnibus pretrial motion. Comment to Pa.R.Crim.P. 578.  Pa.R.Crim.P. 581 permits a defendant to “make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights.”  The burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth. v. Hamilton, 673 A.2d 915, 916 (Pa. 1996).

When a defendant seeks to suppress evidence, the Commonwealth has the burden of going forward with the evidence and establishing that the challenged evidence was not obtained in violation of the defendant’s rights. (Pa.R.C.P. 323(h).)

Scope of the search warrant.

The Court will address the first argument presented by Defendant, which it deems deficient on its face. Defendant argues that because the search warrant did not include authorization to obtain the password to his cellphone, that search warrant is illegal in its entirety and any subsequent evidence obtained must be suppressed because request to provide the password went beyond the scope of the search warrant. He further argues that the search warrant authorized the search of two Samsung S7 Edge Mobile phones, but did not request or compel disclosure of the password by Defendant. In his document titled “Brief in Support of Defendant’s Omnibus Pre-Trial Motion to Suppress Evidence and Dismiss Charges in The Lebanon County Court of Common Pleas Docket No. CP-38-CR-70-2019”, Defendant provides no legal authority to support this argument.

The Commonwealth, in its memorandum of law does not present any rebuttal to Defendant’s argument. Instead, the Commonwealth raises its own set of arguments: (1) Evidence should not be suppressed because Detective Hirsch has “years of experience in law enforcement”; (2) Defendant voluntarily provided his password to Detective Hirsch and thus no coercion had taken place. In support of its legal position, the Commonwealth cites elements of voluntariness presented in Commonwelath v. Miller[1]. The Court notes that upon a careful review of the holdings of the cited authority it is evident, that those are the elements of voluntariness pertaining to a blood draw in a Driving Under the Influence case; (3) Requiring a defendant to provide a passcode is not a violation of a defendant’s 5th Amendment right because asking for a password does not require him to make any incriminating statement relating to his guilt; and (4) Defendant’s request for relief must be denied because of the inevitable discovery doctrine.

As to the first issue raised by Defendant, we disagree that the entire search warrant is invalid because the officer asked Defendant to provide passwords during execution of the search warrant, thus exceeding the scope of the warrant. The Court notes that a request of the officer for Defendant’s cooperation in providing a password, must be viewed outside of the context of execution and validity of the search warrant, and instead must be analyzed under the custodial interrogation framework as a verbal statement to police in response to questioning.

As to the validity and the scope of the search warrant argument, the law is well settled. When analyzing the viability of a search warrant, we are limited to examining the “four corners” of the search warrant itself. See, e.g., Commonwealth v. Sharp, 683 A 2d 1219 (Pa. Super. 1996). Within that context, we must examine the “totality of circumstances” in order to assess whether the warrant establishes that the items to be seized are related to criminal conduct and that the items are presently located in the place to be searched. Commonwealth v. Jackson, 337 A 2d 582 (Pa. 1975).

Both the United States and Pennsylvania constitutions protect citizens against unreasonable searches. See Article 1, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Both constitutional precepts require that a warrant must specifically list the things to be seized. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 60 L.Ed. 2d 920 (1979); Commonwealth v. Grossman, 555 A.2d 896 (Pa. 1989). “Nothing is to be left to the discretion of the officer executing the warrant.” Grossman, 555 A.2d at 899 (citing Marron v. United States, 275 U.S. 192, 196, 72 L.Ed. 231 (1927)).

A search warrant must describe the place to be searched and the item or items to be seized. This “particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad”. Commonwealth v. Rivera, 816 A 2d 282, 290 (Pa. Super. 2003). A warrant must “describe the items as specifically as is reasonably possible.” The Comment to Pennsylvania Rule of Criminal Procedure 205 explains that “when an exact description of a particular item is not possible, a generic description may suffice.” (citing Commonwealth v. Matthews, 285 A.2d 510, 513-14 (Pa. 1971)). Essentially, we must decide whether a search warrant addresses legitimate and identifiable investigatory concerns, or whether it is merely sought as a “general investigatory tool” See Id. In the former instance, we must uphold the warrant, while in the latter, we may not.

When a search warrant adequately describes the place to be searched and things to be seized, the scope of the search “‘extends to the entire area in which the object of the search may be found’ and properly includes the opening and inspection of containers and other receptacles where the object may be secreted.” Commonwealth v. Reese 549 A.2d 909 (Pa. 1998).

Here, it is clear that the warrant addresses legitimate and identifiable concerns pertaining to the investigation of Statutory Sexual Assault, Corruption of Minors, Endangering the Welfare of Children and Indecent Assault. The precise phrasing of the items to be seized includes the models of the cellphones – “Two 2 Samsung S7 Edge Mobile Phones” and further indicates that those phones are to be seized from Michael Jovich.

We therefore conclude that the places to be searched and the items to be seized are described with sufficient particularity and thus the search warrant is not invalid and its scope is proper as it reasonably relates to the scope of investigation. As previously stated, additional verbal requests for production of passwords beyond the scope of the search warrant do not invalidate the warrant and instead must be analyzed under the custodial interrogation framework.

Parolee status. Warrantless seizure of a cellphone.

Defendant argues that initial seizure of the cellphone without a warrant was a violation of Defendant’s rights. We disagree.

It is well established that individuals under parole supervision have limited search and seizure rights. Commonwealth v. Chambers, 55 A.3d 1208 (Pa. Super. 2012). “In exchange for early release from prison, the parolee cedes away certain constitutional protections enjoyed by the populace in general.” Commonwealth v. Edwards, 874 A.2d 1192, 1197 (Pa. Super. 2005). Parolees agree to warrantless searches based only on reasonable suspicion. Commonwealth v. Colon, 31 A.3d 309 (Pa. Super.2011). State parole agents are statutorily permitted to perform a personal search of an offender or his or her personal property if there is reasonable suspicion to believe “that the offender possesses contraband or other evidence of violations of conditions of supervision” or “that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.” 61 Pa.C.S. §6153(d)(1)(i),(2).

While the determination of whether reasonable suspicion exists is to be considered in light of the totality of the circumstances, Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011), under section 6153(d)(6), [t]he existence of reasonable suspicion to  search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such case law, the following factors, where applicable, may be taken into account: (i) The observations of agents; (ii) Information provided by others; (iii) The activities of the offender; (iv) Information provided by the offender; (v) The experience of agents with the offender; (vi) The experience of agents in similar circumstances; (vii) The prior criminal and supervisory history of the offender; (viii) The need to verify compliance with the conditions of supervision. 61 Pa.C.S. § 6153(d)(6).

We find that, in light of the totality of the circumstances, State Parole Officer Monroe had reasonable suspicion to conduct the warrantless search of Defendant and to seize his cellphones. At the time of the allegations, Defendant was under supervision of State Parole. Officer Monroe learned of the allegation against Defendant and on December 11, 2018 contacted Detective Hirsch to advise him about possible evidence on two cellphones owned by Defendant. The scope of the search was within Monroe’s duty as a parole officer and falls within the conditions of Defendant’s parole. Therefore, the initial warrantless seizure of the cellphones owned by Defendant was justified.

Functional equivalent of custodial interrogation.

The Commonwealth argues that at the time of serving the search warrant, Detective Hirsch “simply” asked Defendant if he would provide the passwords to his cellphones. The Commonwealth alleges that this “simple” request was not a violation of Defendant’s rights. Further, it is averred that Detective Hirsch never demanded the password and thus there was no coercion.

Defendant argues that on January 2, 2019, law enforcement met with Defendant at the Lebanon County Correctional Facility, where he was incarcerated, informed Defendant of the search warrant, and informed Defendant that the search warrant required cooperation by providing the passwords to the cellphones.

 

 

Interrogation

Custodial interrogation is generally defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Commonwealth v. McGrath, 470 A.2d 487, 491-92 (Pa. 1983). More specifically, “interrogation” is defined as “police conduct ‘calculated to, expected to, or likely to evoke [an] admission.’ ” Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en banc); Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001); Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa.2001) (holding that interrogation is “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” Rhode Island v Innis, 446 U.S. 291, 300-01 (1980)). This definition “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Commonwealth v. DeJesus, 787 A.2d 394, 402 (Pa. 2001).

The Commonwealth argues that Defendant’s questioning never subjected him to any coercion and that he provided his passwords “voluntarily.”

Our analysis is as follows. This Court declines to establish a substantially cognizable distinction, as a matter of law, between the officer “politely asking to provide a password” and “demanding to provide a password” for the purposes of the analysis under this framework. Either of those statements directed at a citizen by a police officer in a custodial setting is a functional equivalent of questioning the citizen with the purpose of building a case against him, regardless of the intonation in the officer’s voice. The Courts in our Commonwealth have persistently held that a request by a law enforcement officer that is likely to evoke an admission constitutes interrogation, and if the interrogation occurs in the custodial settings, statements must be suppressed as a matter of law. This case is not an exception.

All of the discussed elements of the interrogation are supported by the evidence on the record. More specifically, the record shows that Detective Hirsch, a law enforcement officer, on January 2, 2019 visited Defendant in custody and initiated questioning by making a verbal inquiry to provide additional information regarding the cellphones. Undoubtedly, a question regarding the password to the password-locked phone is clearly expected to evoke an admission. The Commonwealth admits in their Brief that “Detective Hirsch has years of experience in law enforcement.” The Courts finds that officer’s experience is probative of the fact that the question regarding the password is calculated to evoke an admission. This Court does not find sufficient credible evidence on the record to substantiate the finding that Defendant ever volunteered his passwords without being asked to provide them. Upon review of the record, the Court concludes that “interrogation” of Defendant had taken place.

Is a password testimonial communication?

The Court must analyze whether the fact of Mr. Jovich communicating a password to his cellphone to the officer by means of oral communication constitutes a testimonial communication that falls under the ambit of constitutional protections under both U.S. and Pa. constitutions.

The Commonwealth argues that it is not a violation of Defendant’s rights because Detective Hirsch did not ask Defendant anything of a substantive nature and further alleges that providing a password does not require him to make any incriminating statement relating to his guilt. In support of their position, the Commonwealth cites Commonwealth v Davis 176 A.3d 869 (Pa. Super. 2017) as legal authority holding passwords to be nontestimonial for the purposes of 5th Amendment.

In his response, Defendant points out that the appeal in Commonwealth v Davis is currently pending before the Pennsylvania Supreme Court.

The Fifth Amendment provides “no person … shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. This prohibition not only permits an individual to refuse to testify against himself when he is a defendant but also privileges him to not answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Commonwealth v. Cooley, 118 A.3d 370, 375 (Pa. 2015) “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating and compelled.” Commonwealth v. Reed, 19 A.3d 1163, 1167 (Pa.Super. 2011), appeal denied, 612 Pa. 704, 30 A.3d 1193 (2011).

An act is testimonial when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the government. United States v. Doe, 487 U.S. 201, 212, (1987). A witness’s “act of production itself could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tend[s] to incriminate [him or her].” Fisher v. United States, 425 U.S. 391, 410, (1976)).

In United States v. Hubbell, 530 U.S. 27, 42 (2000), the Court was persuaded by the fact that in the act of production, the respondent had to take “the mental and physical steps necessary to provide the prosecutor with an accurate inventory of the many sources of potentially incriminating evidence sought.” The Court reasoned that “[b]y ‘producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Therefore, when the respondent produced these documents, it was the “functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.” “The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” Id. at 43.

Courts from foreign jurisdictions are split on the issue whether describing one’s password is testimonial communication. Some courts consider that the act of producing the passcode is testimonial as it requires the use of the defendant’s mind and cannot be compelled as violative of the defendant’s fifth amendment rights. See United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. 2010) (defendant’s passcode constituted testimony which the government could not compel defendant to reveal); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012) (providing passcode for hard drives was testimonial because it would require the defendant to use the contents of his mind); In re Search Warrant Application for [Redacted Text], 279 F.Supp.3d 800, 806 (N.D. Ill. 2017) (person cannot be compelled to reveal his passcode.)

Other courts have determined that disclosing a passcode is not testimonial as it falls under the foregone conclusion exception and is not protected by the Fifth Amendment privilege. See Commonwealth v. Gelfgatt, 11 N.E.3d 605, 615-16 (2014) (facts conveyed by disclosing passcode were foregone conclusion and not protected by the fifth amendment); State v. Stahl, 206 So.3d 124, 136-37 (Fla. Dist. Ct. App. 2016) (foregone conclusion that defendant could supply passcode); United States v. Fricosu, 841 F.Supp.2d 1232, 1237 (D. Colo. 2012) (same).

Commonwealth v Davis relied upon by the Commonwealth in this case adopted a “forgone conclusion” framework. The foregone conclusion doctrine is an application of the Fifth Amendment “by which the Government can show that no testimony is at issue.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1343 n. 19 (11th Cir. 2012). Specifically, “[w]hen the ‘existence and location’ of the documents under subpoena are a ‘foregone conclusion’ and the witness ‘adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the [documents],’ then no Fifth Amendment right is touched because the ‘question is not of testimony but of surrender.’ ” In re Grand Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d 905, 910 (9th Cir. 2004) (quoting Fisher v. United States, 425 U.S. 391, 411, (1976)). Notwithstanding, a witness’s response to a subpoena designed to elicit potentially incriminating evidence is testimonial. United States v. Hubbell, 530 U.S. 27, 43, 120 S.Ct. 2037 (2000). The foregone conclusion doctrine does not apply when the Government cannot show prior knowledge of the existence or the whereabouts of the documents ultimately produced. Id. at 45.

Today’s mobile phones are entitled to greater privacy protection. See Riley v. California, 134 S.Ct. 2473, 2484, 2489 (2014) (An unlocked smartphone cannot be searched incident to arrest other than to determine whether it may be used as a weapon.) In so finding, the Supreme Court acknowledged that smartphones are minicomputers with the capability to make phone calls, a search of which “would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is [present].” Id. at 2491. Further, “[i]n the cell phone context… it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurs.” Id. at 2492. Thus, mobile phones are subject to different treatment than more traditional storage devices, such as safes, and should be afforded more protection.

As the Riley Court recognized, smartphones contain large amounts of data and sensitive records, the full contents of which cannot be anticipated by law enforcement. See Riley, 134 S.Ct. at 2492.3 Consequently, the Government inherently lacks the requisite prior knowledge of the information and documents that could be obtained via a search of these unknown digital devices. See Hubbell, 530 U.S. at 44-45.

Upon plain reading of Hubbell, (holding that to sustain the forgone conclusion test, Government must show prior knowledge of the existence or the whereabouts of the documents ultimately produced) the primary focus is on the knowledge of the government regarding the documents it seeks to seize. The Davis Court instead considered Defendant’s knowledge of the “password” to satisfy this standard (holding that Commonwealth knew the password exists, was accused’s possession or control, and was authentic). We are inclined to construe Hubbell to require the Commonwealth under the forgone conclusion framework to establish the prior knowledge of documents and files it seeks to find on Defendant’s cellphone for the exception to be triggered, rather than simple proof that Commonwealth knew that Defendant knows and is in possession of an authentic password to his device. It is true that Stahl court did not require the exact “perfect knowledge” of the requested evidence. See Stahl, 206 So.3d at 135. However, at no point had the Court mistaken the password for the requested evidence.

Here, Detective Hirch’s act of asking for the password serves as a functional equivalent of submitting Defendant to the preparation of an answer to written interrogatory in the meaning and phrasing of Hubbell. The combination of the numbers of the password is information that is contained in Mr. Jovich’s mind. A request to provide the password is equivalent to “having to share his thoughts and beliefs with the government” under Doe. Additionally, the act of producing the password itself qualifies as a testimonial statement because under Riley, it would be presumed that revelation of such information would be equivalent to conceding the existence, possession and control, and authenticity of the incriminating documents. Thus, Mr. Jovich statement revealing his password is testimonial communication.

Here, the Commonwealth presents in its brief that Defendant already revealed his Verizon passwords during his prison communications with his father. Even if the Court will view this fact as a part of the record, and will assume that the Verizon account is a provider for the seized Samsung phones, the argument of the Commonwealth still fails on the following grounds. Even if the Commonwealth obtained knowledge of the fact that Mr. Jovich possessed an authentic password to his phone, compelled production of such will invariably require him, just like in Hubbell, to take the mental steps to provide police with accurate information containing memorized passwords to his cellphone, which is the very essence of the Fifth Amendment protections. Even if the Commonwealth argues that it learned of the authentic password by a way of analogizing with the Verizon password and using it to unlock the phones in its custody, under the adopted Hubbell view, the Commonwealth fails to present evidence of the prior knowledge of documents and contents that it seeks to seize from the phone. Prior knowledge of the Verizon account passwords and the prior knowledge of passwords that it knew Defendant possessed does not suffice under the forgone conclusion analysis to strip a citizen of our Commonwealth from his Fifth Amendment protections. The Court therefore concludes that the forgone conclusion framework does not apply to this case.

 

Miranda

Having concluded that the verbal statement consisting of Mr. Jovich’s password to police constituted a testimonial communication made during custodial interrogation, the Court will analyze whether lack of Miranda warnings prior to questioning will serve as a ground for suppressing evidence obtained.

Commonwealth argues that Defendant voluntarily told the Detective his password, there was no duress or coercion. Further, Defendant never told the officer that he is already represented by an attorney.

The legal standard of review is as follows. “To protect an individual’s Fifth Amendment privilege against self-incrimination, the United States Supreme Court has held that, before an individual in police custody may be interrogated, he must first be informed, in clear and unequivocal terms, that he has the right to remain silent, that anything he says can and will be used against him in court, and that he has the right to consult with counsel and to have counsel present during interrogation, and, if he is indigent, counsel will be appointed for him.” Commonwealth v Frein 206 A.3d 1049 (Pa. 2019) quoting Miranda v. Arizona, 384 U.S. 436, 467–69 (1966). If an individual “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” and any statement taken after the person invokes his privilege “cannot be other than the product of compulsion, subtle or otherwise.” Id. at 473-74. Further, “if the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.” Id. at 474. If the individual is unable to obtain an attorney, but indicates that he wants one before speaking to police, the police must respect the individual’s decision to remain silent. Id.

The Superior Court of Pennsylvania has stated that the purpose behind administration of Miranda warnings is to “preserve the privilege during incommunicado interrogation of individuals in a police-dominated atmosphere. That atmosphere is said to generate inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Commonwealth v. Fetter, 770 A.2d 762 (Pa. Super. 2001)

In Michigan v. Mosley, 423 U.S. 96, (1975), the Supreme Court explained that it is “[t]hrough the exercise of his option to terminate questioning” that an accused “can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.” Id. at 103-04. Accordingly, the Court held that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Id. at 104, 96. If a person is not informed of his Miranda rights prior to a custodial interrogation, any evidence obtained as a result of the interrogation cannot be used against him in court. In re K.O.M., 873 A.2d 752 (Pa. Super. 2005).

In Oregon v. Elstad, 470 U.S. 298, (1985), as subsequently followed and discussed in Commonwealth v. DeJesus, 787 A.2d 394 (2001), and Commonwealth v. Freeman, 827 A.2d 385 (2003), the Supreme Court considered the appropriate remedy when a suspect in custody is first interviewed without Miranda warnings and is later given proper warnings and interviewed again. In Elstad, the defendant was taken into custody for committing a burglary. He was initially questioned at the scene of the arrest and made an incriminating admission. After he was taken to the police station, Miranda warnings were given, he signed a written waiver, and confessed to the crime. The state appellate court held that, even if the confession had not resulted from actual compulsion, the defendant’s initial statement had a coercive impact because it had let the ‘cat … out of the bag.’ The state appellate court consequently held that the later statement had to be suppressed. The Supreme Court reversed, holding that “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.” The Court added that a subsequent administration of Miranda warnings who has given a voluntary statement to police should suffice to remove the conditions that precluded admission of the earlier statement.

As the Courts of our Commonwealth have emphasized, admission of statements made in response to a custodial interrogation made without Miranda warnings do not comport with the public policy objectives of ensuring that whenever a citizen of our Commonwealth is questioned by a legally sophisticated government, especially in such an important matter as a criminal investigation, he does so in a knowing, intelligent and voluntary manner with full understanding of his rights and consequences of his statements. This can be assured by timely administration of Miranda warnings, which did not occur in this case. Thus, statements obtained from Mr. Jovich in response to his custodial interrogation should be suppressed as a matter of law.

This case is dissimilar to Elstad in that here, the Miranda warnings were not administered either before or after the questioning. Further, Mr. Jovich’s statement to Detective regarding his password was not an unprovoked utterance, but rather a response to the Detective’s direct question. Thus, in the context of suppression under Miranda, the argument of the Commonwealth is not substantiated.

Waiver of Miranda is not at issue, because the facts clearly reveal that no Miranda warnings were ever administered on Defendant. In this case, Defendant’s right to cut off questioning until he can confer with his attorney was not scrupulously honored in violation of the fundamental principles of Miranda. Stipulated Facts indicate no reference that Miranda warnings were given to Mr. Jovch. In fact, the record reveals that at the time of questioning in custody Mr. Jovich was represented by an attorney. Further Mr. Jovich unequivocally refused to talk to the officer and indicated that he wanted to immediately consult with his attorney. The record further reveals that no Miranda warnings were given prior to Mr. Jovich stating his password in response to the verbal request of the Detective. Thus, the statement Mr. Jovich made to Detective is the evidence obtained in violation of Miranda and must be suppressed.

Inevitable discovery doctrine.

The Commonwealth in its Brief alleges that upon review of Defendant’s phone calls and visitations made at the Lebanon County Correctional Facility, on January 10, 2019, Defendant provided the same exact passwords to his father “as it related to his Verizon account.”

Our Pennsylvania Courts have recognized the inevitable discovery doctrine. To satisfy the burden under the inevitable discovery doctrine, it must be shown by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002). The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct. Commonwealth  v  Bailey, 986 A.2d 860, 862 (Pa.  Super.  2009). The burden of proving such inevitable discovery rests with the prosecution. Commonwealth v. Garvin, 293 A.2d 33 (Pa. 1972). “The preponderance of the evidence standard is defined as the greater weight of the evidence, i.e. to tip the scale slightly is the criteria or requirement for preponderance of the evidence.” Ferri v. Fern, 854 A.2d. 600, 603 (Pa. Super. 2004). See also Commonwealth v. Brown, 786 A.2d 961, 968 (Pa. 2001).

The Commonwealth argues that it also learned of Defendant’s authentic password through Defendant’s communication with his father about his Verizon account. Upon review of the record, specifically the search warrant, there is no mention that the Verizon account is connected or related to the cellphones seized. Without more evidence of sufficient relationship between the Samsung phones and the Verizon account, the Court is unable to discern whether the password for the Verizon account carries sufficient relevance to the matter at issue. Even if the Court will view this fact as a part of the record, and will assume the causation, the argument of the Commonwealth still fails on the following grounds. Even if the Commonwealth obtained knowledge of the fact that Mr. Jovich possessed an authentic password to his phone by analogizing the similarities in the password combination of the Verizon account and the Samsung cellphone, this falls short of the required evidentiary standard of preponderance on the following grounds. Commonwealth’s reliance on Comonwealth v. Ingram is misplaced and unwarranted. In Ingram, defendant was arrested after the Officer located marijuana in his pocket after asking about the object. Although the Officer was not justified to interrogate without first giving Appellant Miranda warnings, a search of defendant’s person would have been conducted after Officer located the gun in Appellant’s waistband. The current case is substantially different. At the time of the questioning, Mr. Jovich was detained at Lebanon County Correctional Facility with no indication that he carried any physical evidence on his person that would have caused Detective Hirsch to conduct an investigation nor does the record otherwise present that conduct of Mr. Jovich gave the officer grounds to conduct a search of his person. In other words, there is insufficient evidence on the record to conclude that the search incident to a lawful arrest was a foreseeable consequence upon conclusion of the communication between Detective Hirsch and Mr. Jovich on January 02, 2019. Even if the Court assumes such a scenario, the Commonwealth still would have been unable to show that such search would have revealed the password to Mr. Jovich’s cellphones, since as the record indicates, he kept the passcode in his memory rather than in his pants.

In their argument, the Commonwealth requests that the “contents of forensic evaluations of the cellphones” be suppressed. However, no evidence is presented to show that the forensic examination would have revealed the contents of the cellphones even without the passwords, the very essence of the inevitable discovery doctrine. In other words, there must have been evidence that the Commonwealth through its forensic tools or other assistance would have discovered the identifiable and specific contents of the phone rather than the password to the phone. To sustain its burden, the Commonwealth could have presented the evidence that it would have obtained the information contained on the legally seized the Samsung phones through forensic utilities, manufacturer or cell phone provider assistance without the password. The Commonwealth could have presented statistical reports of successful extractions of data through UFED Premium subscription to Cellebrite to show that it would have obtained the data from those particular models of phones anyways even without the password provided by Mr. Jovich. However, the record presents no such evidence. Therefore, the Commonwealth failed to present sufficient evidence on the scales of preponderance to show that it would have obtained evidence from Mr. Jovich’s cellphone that it was actually seeking, and that such evidence would have been inevitably or imminently discovered even without passwords to Mr. Jovich’s cellphones.

 

 

 

 

[1] 186 A.3d 448, 451 (Pa. Super 2018)

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