Close up of a Smartphone Camera
Close up of a Smartphone Camera (Anthony Brown)

Analysis

A Lackawanna County trial judge has ruled that search warrants seeking information contained on a homicide suspect’s iPhone and Facebook account were not overbroad.

The decision came just over a week after the Pennsylvania Superior Court ruled on similar search warrants for former state Sen. Jane Orie’s USB flash drive and email account, providing some guidance to law enforcement and prosecutors as to how to properly search for electronic informaton during criminal investigations.

In his March 14 opinion in Commonwealth v. Pal, Lackawanna County Court of Common Pleas Judge Terrence R. Nealon, noting that courts in other jurisdictions have held that search warrants for digital information don’t necessarily need to be restricted to a specific time period, found that law enforcement sufficiently established probable cause to search both the iPhone and the Facebook account and that the records sought were properly limited to information related to the homicide being investigated.

About a week earlier, on March 6, a three-judge Superior Court panel ruled in Commonwealth v. Orie that the initial search warrants for information contained within Orie’s USB flash drive and AOL email account, issued during the investigation of her political corruption case, were overbroad because they were not restricted to information related to the criminal activity being investigated.

But the court in Orie ultimately found that Orie’s constitutional rights were not violated because, while the USB drive and AOL account were both seized pursuant to the initial warrants, they were not searched by law enforcement until after subsequent, more detailed warrants were issued and a special master was able to review the material in order to pull out any privileged information.

Commonwealth v. Pal

Defendant Neil Pal was charged with first-degree murder as an accomplice, third-degree murder as an accomplice, criminal conspiracy to commit first-degree murder and criminal conspiracy to commit third-degree murder in connection with the fatal shooting of Frank Bonacci, according to Nealon.

During the investigation, Nealon said, Detective Michael Schultz of the Scranton Police Department obtained a search warrant to seize Pal’s “‘Facebook profile information along with all personal website content including but not limited to photographs, videos, all comments, all posts, all private messages, all friends, all groups, IP connection log data, emails, complaint history, and any other information found on the Facebook profile in regards to the Frank Bonacci homicide.’”

Nealon said Schultz stated in a supporting affidavit of probable cause that “‘Pal had an active Facebook account’” and “‘often posted comments, posts and photos in regard to Frank Bonacci.’”

Schultz also said in the affidavit that Pal was “friends” with Bonacci, co-defendant Jason Dominick and witnesses Sean Baress and Maribeth Castaldi on Facebook and that it is “‘common for “friends” on Facebook to communicate via Facebook through posts, comments, messaging, photos, videos and emails,’” according to Nealon.

While Pal argued in his motion to suppress the evidence that the Facebook search warrant was overbroad, Nealon said the scope of the warrant “was materially and temporally limited to information ‘in regards to the Frank Bonacci homicide’ in the summer of 2013.”

Nealon added that Schultz’s affidavit established probable cause.

“The publicly viewable portions of Pal’s Facebook account revealed postings concerning Bonacci following the discovery of his body, and Pal was Facebook ‘friends’ with another suspect, Dominick, and several key witnesses,” Nealon said, citing his opinion in Brogan, which collected several Pennsylvania trial court rulings that have held that a party seeking to discover information on a private social media site can make a “threshold showing of relevance” by pointing to facts gleaned from public portions of a user’s profile that suggest more pertinent information may be contained within the private portions.

According to Nealon, Schultz also obtained a warrant to search Pal’s iPhone for “‘all incoming, outgoing, missed phone calls, all call detail logs, all contacts, all text message contents, including deleted text message content, all photo text messages, all video text messages, all photos or videos in cellphone memory or memory card, and any other information pertinent to the homicide of Frank Bonacci stored in the cellphone’s memory or memory card of Neil Pal’s cellphone.’”

As with the Facebook search warrant, Nealon said Schultz established probable cause for the iPhone search warrant and “identified, as clearly as possible, the item to be searched.”

According to Nealon, Schultz explained in a narrative accompanying his application for the warrant that Pal’s cellphone records showed more than 650 text messages and “numerous phone calls” between July 19, 2013, and July 30, 2013, some of which were between Pal and Dominick shortly after Bonacci’s body was found and between Pal and Baress following Baress’ police interview.

Schultz said in the narrative that Pal’s cellphone service provider was unable to provide law enforcement with the actual text messages and other communications. Instead, Schultz explained, that information could only be obtained from the iPhone itself, according to Nealon.

“In short, an unreasonable discrepancy did not exist between the iPhone for which there was probable cause to search and the description in the search warrant,” Nealon said.

Nealon added that state and federal courts both inside and outside of Pennsylvania have adopted a somewhat broader standard for search warrants seeking digital information.

“Other courts have reasoned that the failure of a search warrant for smartphones or computers to be temporally restricted does not render the warrant unconstitutionally broad since such digital information ‘may be created and stored in a number of different formats and with or without dates’ and has ‘capabilities of being remotely accessed’ in order to ‘manipulate data,’” Nealon said, citing language from the U.S. District Court for the Northern District of Ohio’s 2014 decision in United States v. Rarick.

Nealon said the U.S District Court for the Eastern District of Pennsylvania and the Washington County Court of Common Pleas have both issued similar rulings.

Nealon also relied heavily on his May 2013 ruling in Brogan v. Rosenn, Jenkins & Greenwald, in which he held that the traditional rules of civil discovery still apply to digital information and that “a discovery request seeking carte blanche access to private social networking information is overly intrusive.”

Nealon said the law enforcement in Pal described in their warrants the items to be seized from Pal’s iPhone and Facebook account “with the requisite specificity” to meet the particularity requirements of Article 1, Section 7 of the Pennsylvania Constitution and the Fourth Amendment of the U.S. Constitution.

In addition, Nealon pointed to a footnote from the Superior Court’s March 6 Orie decision, in which the court said “the law for search and seizure of digital evidence has yet to develop from the traditional rules that are based upon physical evidence.”

Counsel for Pal, Paul J. Walker of Walker & Comerford in Scranton, could not be reached for comment on Nealon’s ruling.

Eugene M. Talerico Jr. of the Lackawanna County District Attorney’s Office declined to comment on the ruling.

Commonwealth v. Orie

Orie was convicted on political corruption charges in the Allegheny County Court of Common Pleas in 2012 and, in seeking to overturn the trial court’s judgment of sentence, argued that search warrants issued for her USB flash drive and AOL email account were unconstitutionally broad, according to Judge Paula Francisco Ott, who penned the March 6 opinion for the three-judge panel in Orie.

Ott said the initial search warrants issued sought “‘any contents contained’” in Orie’s USB drive “‘including all documents, images, recordings, spreadsheets or any other data stored in digital format’” and “‘all stored communications and other files … between Aug. 1, 2009, and the present, including all documents, images, recordings spreadsheets or any other data stored in digital format’” on Orie’s AOL email account.

Ott said that while both search warrants were supported by probable cause, they were not particular enough because the information sought included noncriminal uses.

However, Ott ultimately found that Orie’s constitutional rights were not violated because law enforcement only seized, but did not search, the USB drive and email accounts pursuant to those warrants.

It wasn’t until after two subsequent, more specific warrants were issued and a special master had the opportunity to review whether any of the information contained within was privileged that the USB drive and AOL account were searched.

“Given the distinctive nature of a USB flash drive, like other types of digital storage systems (e.g., a computer hard drive), it must be seized in its entirety first and then searched at a later time (typically by someone with an expertise in this area),” Ott said, adding that, with regard to the initial search warrant issued for Orie’s AOL account, investigators “only seized the entirety of the evidence for a later search of the contents.”

But Ott cautioned in a footnote that obtaining two search warrants for a single digital storage device is not the court’s “preferred approach” for investigators to take.

“To the contrary, the necessary specificity regarding the items to be seized and the files to be searched should all be set forth in an initial warrant (such that a second warrant is unnecessary),” Ott said. “In other words, in the absence of exigent circumstances, the seizure and search of digital storage devices should be conducted in accordance with the limitations set forth in a single warrant, with those limitations based upon the extent of probable cause established in the accompanying affidavit.”

Counsel for Orie, William Costopoulos of Costopoulos, Foster & Fields in Lemoyne, Pa., said he and his client are planning to petition the state Supreme Court to examine the appropriate scope of warrants seeking digital information.

Michael W. Streily of the Allegheny County District Attorney’s Office called the court’s decision a “very, very crucial opinion” that alerts law enforcement and prosecutors of the importance of appointing a special master to comb through digital information before a search is conducted, particularly in cases, like Orie’s, where the defendant asserts a privilege.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 46-page opinion in Commonwealth v. Pal, PICS No. 14-0450, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

(Copies of the 76-page opinion in Commonwealth v. Orie, PICS No. 14-0451, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •