The Pennsylvania Superior Court has upheld the warrantless search of a cellphone belonging to a man who left it to surreptitiously record people in a dormitory bathroom at Villanova University.
A three-judge panel consisting of Judges Alice Dubow, Paula Francisco Ott and Correale Stevens affirmed a Delaware County judge’s denial of defendant Vincent Kane’s motion to suppress evidence derived from the warrantless search of his abandoned cellphone and the search of the external hard drive of his computer pursuant to a search warrant.
Kane was sentenced to 20-to-60 months’ incarceration for invasion of privacy, possession of child pornography, and criminal use of communication facilities.
According to Dubow’s opinion, Kane hid the phone in a “wet floor” sign in a Villanova University dorm bathroom to record men and women in the toilet area. A female student discovered the phone and turned it over to police.
A forensic investigator consulted with the Delaware County District Attorney’s Office about obtaining a warrant, but ultimately declined because prosecutors considered the phone abandoned.
The investigator “recovered videos of Villanova students in the bathroom, ‘upskirt’ videos taken at a CVS store where appellant worked, and videos of students secretly recorded at Cardinal O’Hara School, where appellant had attended high school the year before,” Dubow said.
Police later obtained a search warrant for Kane’s computer and external hard drive where they found child pornography, according to Dubow. Kane was subsequently charged with 25 counts of invasion of privacy, 20 counts of possession of child pornography, and four counts of criminal use of a communication facility.
Kane moved to suppress the cellphone evidence, alleging illegal search and seizure. He also sought to suppress the hard drive evidence, claiming the search warrant was flawed. The trial judge disagreed, finding that Kane abandoned his phone, and the Superior Court upheld that finding.
“In light of the trial court’s findings of fact, which the record supports, we discern no error of law in the trial court’s conclusion that when appellant intentionally and voluntarily left his cellphone in a public bathroom he did not have a reasonable expectation of privacy in his cellphone,” Dubow said. “Once appellant voluntarily abandoned his cellphone in a public bathroom, he abandoned any legitimate expectation of privacy in its contents. Likewise, he abandoned standing to complain of a search or seizure of that cellphone.”
The Delaware County District Attorney’s Office did not return a call seeking comment.
Kane is represented by Cheryl Sturm of Chadds Ford, who did not return a call seeking comment.
(Copies of the 14-page opinion in Commonwealth v. Kane, PICS No. 19-0594, are available at http://at.law.com/PICS.)