Com. v. Carter, D.

J-S20007-25

                                

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 DOMINEEK QUANTAL CARTER                  :   No. 1646 MDA 2024

             Appeal from the Order Entered November 5, 2024
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001550-2023


BEFORE: OLSON, J., LANE, J., and BENDER, P.J.E.

OPINION BY OLSON, J.:                           FILED: AUGUST 29, 2025

      The Commonwealth of Pennsylvania appeals from an order entered on

November 5, 2024 which granted, in part, and denied, in part, a motion to

suppress filed by Appellee, Domineek Quantal Carter.        Specifically, the

Commonwealth contends that the trial court abused its discretion or

committed an error of law in finding that Appellee’s cellular telephone was

subjected to an unlawful search on November 20, 2023 and, further, in

excluding evidence obtained from the device as fruit of the poisonous tree.

After careful review, we affirm.

      The following facts were established during the May 14, 2024

suppression hearing.      In July 2023, the Lycoming County Narcotics

Enforcement Unit (“LCNEU”) undertook an investigation which involved three

controlled purchases of crack cocaine. The controlled purchases took place on

June 26, 2023, June 28, 2023, and July 13, 2023. During each transaction,
J-S20007-25



LCNEU observed a confidential informant (“CI”) purchase crack cocaine from

Appellee at his residence along Green Street in Williamsport, Pennsylvania.

Ultimately, on July 14, 2023, LCNEU executed a search warrant for the

residence along Green Street.       Thereafter, Appellee was arrested and

remained in custody until August 24, 2023, when he was released back into

the community.

      “On or about October 1, 2023, [LCNEU] received intel regarding [a male]

selling [crack] cocaine [at a residence along Green Street and] going by the

name ‘Andy.’” Trial Court Opinion, 11/5/24, at 7 (citation omitted). A CI from

an earlier surveillance operation subsequently informed LCNEU that “‘Andy’

was in fact [Appellee] who was just released on bail from Lycoming County

Prison.” 

 LCNEU, therefore, used a different CI to conduct two additional

controlled purchases on November 3, 2023 and November 20, 2023.

      The process for each controlled purchase was as follows.         The CI

contacted an individual named Shana Hill to arrange the purchase of crack

cocaine. Initially, Shana Hill met with the CI and, after doing so, proceeded

to meet with Appellee. Shana Hill supplied the CI with the requested crack

cocaine only after she met with Appellee. Based upon the foregoing, LCNEU

applied for a sealed search warrant for Appellee’s residence along Green Street

on November 20, 2023 (hereinafter, the “First Search Warrant”). The affidavit

of probable cause included the facts used to obtain the July 14, 2023, search

warrant for the same property, as well as the details of the subsequent

controlled purchases that occurred on November 3, 2023 and November 20,

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2023. In the application for the search warrant, LCNEU specified that it sought

the prerecorded police funds used for the November 20, 2023 controlled

purchase.

      LCNEU executed the First Search Warrant on November 21, 2023. That

same day, LCNEU applied for a second, sealed search warrant for the

residence along Green Street (hereinafter, the “Second Search Warrant”).

The affidavit of probable cause for the Second Search Warrant also included

the “facts used to obtain the July 14, 2023, search warrant for the same

property,” as well as the details of the controlled purchases that occurred on

November 3, 2023 and November 20, 2023. Id. at 2. In addition, the affidavit

included the following averments prepared by an investigating LCNEU agent:

       On [November 20, 2023, LCNEU] obtained a sealed search
       warrant[i.e., the First Search Warrant,] for [the residence
       along] Green St[reet, in the] City of Williamsport for the
       prerecorded police funds utilized [in earlier investigative
       operations] on the same day. On [November 21, 2023, LCNEU]
       executed the search warrant on the above address. The
       following events occurred.

       Entry was made into [the residence along] Green St[reet.
       Appellee] was hailed to police from his bedroom. [Appellee]
       exited his bedroom and was removed from the residence
       pending the search warrant. [Appellee] asked for shoes and a
       coat to wear and told officers they were in his bedroom.
       Members of the LCNEU entered [Appellee’s] bedroom and
       immediately observed, in plain view, approximately [50] ripped
       corner plastic bags (indicative [of] the packaging of crack
       cocaine and the same type of packaging [as the transaction with
       the CI on November 20, 2023]) and a tied off bag with
       marijuana inside located on his dresser.

       Inside [Appellee’s] bedroom there was an open close[t] type
       space[ w]ith clothes hanging from a shelf along the west wall
       of the bedroom. No door separated this space from the sleeping

                                     -3-
J-S20007-25


      area of the bedroom. The shelf [with hanging clothes] was . . .
      attached to the west wall of the bedroom. On top of the shelf
      in plain view was a safe. Safes are commonly used to store and
      secure money. Directly next to the safe, on top of the shelf[,]
      was a ceramic plate containing suspected cocaine powder and
      a razor blade. This is indicative of cocaine packaging. Drug
      dealers often use a plate and razor blade to cut and divide the
      cooked crack cocaine and make it ready for weighing and
      packaging. I personally have observed this same type of
      system in hundreds of houses w[h]ere crack cocaine dealers
      were operating their illegal enterprise from.

      I believe that a further search of [Appellee’s] residence will
      produce crack cocaine that [Appellee] is stashing at his
      residence in furtherance of his illegal cocaine enterprise. I know
      that it is common for drug dealers to keep their product and
      proceeds from their sales within their base of operations. I have
      personally seized and been a part of hundreds of search
      warrants where illegal proceeds w[ere] located with the product
      being sold, i.e.[,] crack cocaine, powder cocaine, heroin,
      fentanyl, methamphetamine and numerous opiate pills both
      prescription and counterfeit.

      Hanging on the door of [Appellee’s] bedroom was a green []
      jacket. This is the same jacket [Appellee] was wearing on
      [November 20, 2023,] when he met Shana Hill[, the individual
      that delivered the crack cocaine to the CI during the November
      controlled purchases]. Also in [Appellee’s] room was a cell[ular
      tele]phone with a [textual message (commonly referred to as a
      “text message”)] openly visibl[e] [(i.e., illuminated)] on the
      front screen that read,
           “Shana .6h
           Alright they bouta [sic] be here. They dr. . . .”

      The phone was not manipulated in anyway and that partial
      [text] message was just observed by looking at the [cellular
      tele]phone where it lay. I know that Shana is Shana Hill[,] the
      same unwitting informant used [during the November
      controlled purchases]. (See attached picture).

N.T. Suppression Hearing, 5/14/24, at 3 (Commonwealth’s Exhibit 2)

(unnecessary capitalization omitted) (paragraph break inserted).      Like the


                                    -4-
J-S20007-25



First Search Warrant, the Second Search Warrant also targeted the residence

along Green Street and sought recovery of the following: cocaine and cocaine

paraphernalia; illegal cocaine proceeds including United States Currency;

Appellee’s green jacket; and Appellee’s cellular telephone.     See id.    The

Second Search Warrant was executed sometime before November 23, 2023.1

       Following execution of the Second Search Warrant and the seizure of

various contraband, together with Appellee’s cellular telephone, Appellee was

charged with one count of manufacture, delivery, or possession with intent to

deliver a controlled substance.2 On March 12, 2024 Appellee filed an omnibus

pre-trial motion seeking, inter alia, to suppress evidence recovered by LCNEU.

In his motion, Appellee first pointed out that the affidavits of probable cause

supporting both the First and Second Search Warrants included information

from the controlled purchases that occurred on June 26, 2023, June 28, 2023,

and July 13, 2023. In Appellee’s view, the June and July controlled purchases

constituted “stale information” and, as such, “should not have been used to

support the application[s for either the First Search Warrant or the Second

Search Warrant].” Appellee’s Omnibus Pre-Trial Motion, 3/12/24 at 5 and 6.

Appellee, therefore, asked the trial court to suppress “evidence found within

the residence [along] Green Street due to [the] invalid search warrant[s].”

____________________________________________


1 It is unclear when the Second Search Warrant was executed but, by its
terms, it needed to be served no later than November 23, 2023. See N.T.
Suppression Hearing, 5/14/24, at 3 (Commonwealth’s Exhibit 2).

2 35 P.S. § 780-113(a)(30).


                                           -5-
J-S20007-25



Id. at 7. In addition, Appellee claimed that neither the First Search Warrant

nor the Second Search Warrant were supported by probable cause. See id.

at 10 (claiming that the warrants “lacked a description of the property and

where the door on the property was located.”).

       Finally, Appellee took issue with LCNEU’s seizure of his cellular

telephone during the execution of the Second Search Warrant. In developing

this claim, Appellee cited the affidavit of probable cause supporting the Second

Search Warrant, in which LCNEU averred that, during the execution of the

First Search Warrant, LCNEU investigators saw Appellee’s cellular telephone

“openly visibl[e] on the front screen” with a text message from Shana Hill, the

same unwitting informant used during the control purchases on November 3,

2023 and November 20, 2023.              N.T. Suppression Hearing, 5/14/24, at 3

(Commonwealth’s Exhibit 2). Appellee claimed that, by viewing his cellular

telephone, LCNEU conducted an unlawful search of its contents in violation of

his constitutional rights.3 Therefore, Appellee asked the trial court to suppress

evidence obtained from LCNEU’s warrantless search and subsequent seizure

of his cellular telephone, as well as any evidence derived from Appellee’s

cellular telephone, as fruit of the poisonous tree.

       A suppression hearing was held on May 14, 2024. The Commonwealth

did not present any testimony. Instead, the Commonwealth introduced into
____________________________________________


3 As will be discussed infra, Appellee’s counsel also suggested at the
suppression hearing that LCNEU manipulated Appellee’s cellular telephone as
the incriminating text message from Shana Hill was not readily apparent to
LCNEU. See N.T. Suppression Hearing, 5/14/24, at 21-22.

                                           -6-
J-S20007-25



evidence the First Search Warrant, the Second Search Warrant, as well as the

picture LCNEU took of Appellee’s cellular telephone during the execution of

the First Search Warrant. See id. at 2-3 and 19. Per the Commonwealth, the

picture depicted “exactly what [LCNEU] saw,” which included “the portion of

the text” when the “[cellular tele]phone [was] locked.”4 Id. at 18.

       At the hearing, the trial court requested argument on Appellee’s claim

that LCNEU’s inspection of his cellular telephone, as averred in the affidavit of

probable cause supporting the Second Search Warrant, was illegal and,

therefore, evidence of his cellular telephone and its contents were subject to

suppression. Appellee’s counsel stated:

        So, based on the search of the home, after the November 20[th]
        search warrant was executed, [LCNEU] found a cell[ular
        tele]phone that they read, openly visible on the front screen, a
        text message from Shana [Hill], six hours ago, [“]all right, they
        bouta [sic] be here, dot, dot, dot. You can [not] read the rest.

        It [is] settled law in Pennsylvania that there [is] no difference
        between viewing the internal and external screens of a cell[ular
        tele]phone compared to a call log. A search of a cell[ular
        tele]phone, even if minimally [intrusive], requires a warrant if
        you get any information from a cell[ular tele]phone. Even if it
____________________________________________


4 The Commonwealth did not include its exhibit depicting the photograph of

Appellee’s cellular telephone in the certified record on appeal. “It is black
letter law in this jurisdiction that an appellate court cannot consider anything
which is not part of the [certified appellate] record in [the] case.” Eichman
v. McKeon, 

 (Pa. Super. 2003) (citation omitted). Indeed,
it is equally settled that it “is the responsibility of the appellant to provide a
complete record to the appellate court on appeal” and that any “document
which is not part of the official certified record is considered to be
non-existent.” 

 (citation omitted). Due to the Commonwealth’s failure, we
are precluded from reviewing the picture ourselves and are bound by the
suppression court’s description thereof.


                                           -7-
J-S20007-25


      [is] lit up, looking at it, . . . reading the front screen . . . and a
      text message would be considered a search [which requires a
      warrant].

      There is a categorical rule prohibiting police from looking for
      any information on a cell[ular tele]phone without a warrant. A
      search occurs when police intrude upon a constitutionally
      protected area without the individual’s explicit or implicit
      permission. A cell[ular tele]phone is inherently personal, it [is]
      protected by Commonwealth v. Fulton[,

      (Pa. 2018)]. And . . . to constitute an intrusion, it does [not]
      have to be some great, big act or [obtain] personal information
      of great value. Even a small, seemingly insignificant . . . act .
      . . can constitute a search [which requires authorization
      pursuant to a warrant].

      So we would argue that the search of the [cellular tele]phone
      and the use of that information . . . to get the [Second Search
      Warrant] . . . to look into the [cellular tele]phone further and
      any information found in the [cellular tele]phone should be
      suppressed as fruit of the poisonous tree.

Id. at 14-15 (emphasis added).

     Thereafter, the Commonwealth made the following argument:

      First of all, [because LCNEU was in Appellee’s residence
      pursuant to the First Search Warrant], they were justified in
      being where they were at the time when they saw the screen
      light up. There was no manipulation of this [cellular tele]phone.
      What happened in actuality is this is plain view for the instance
      of them physically seeing with their eyes that the [cellular
      tele]phone lit up and that there was a partial message on the
      screen. The [cellular tele]phone was never touched. Once they
      saw that, obviously they could see . . . they [are] not required
      to close their eyes because a [cellular tele]phone lights up and
      they can see that a text [message] came in from the person
      they just watched do a drug deal with [Appellee].

                                      …

      So, number one, [LCNEU did not search Appellee’s cellular
      telephone]. There was no intrusion on any privacy interest
      because this was something they viewed in plain view and in
      order to [later] search [Appellee’s cellular telephone, LCNEU]

                                      -8-
J-S20007-25


       obtained the [Second Search Warrant]. No search was done.
       They were already in a place they were lawfully allowed to be.
       … [Again, n]obody touched this [cellular tele]phone. They saw
       it light up and got a search warrant for it based on what they
       saw on the screen when it lit up by itself, which as we all
       [know,] that [is] what happens when a [cellular tele]phone gets
       a notification, it lights up.

                                      …

       So[,] the fact that the [cellular tele]phone went off in front of
       [LCNEU] was not search, it was not an intrusion of any privacy
       interest . . . and it was a basis for getting the [Second Search
       Warrant].

Id. at 16-21. Hence, the Commonwealth claimed that, even though LCNEU

did not seize Appellee’s cellular telephone during the execution of the First

Search Warrant, the observations of LCNEU investigators were constitutionally

permissible under the plain view exception and furnished probable cause to

support Second Search Warrant.

     Finally, Appellee’s counsel offered a brief response, stating:

       I would like to touch base on a couple of things. First, while it
       may seem unreasonable, I believe that the way the case law
       says, that monitoring the . . . external screen, you would need
       to look away from the screen. I think reading the text message
       is a search and that going a [step] further[, LCNEU] took a
       photo[graph].

       Additionally, we do [not] have testimony from the officer who
       took the photo[graph] but, as Commonwealth stated, a phone
       lights up when it gets a notification. The notifications on the
       screen [of Appellee’s cellular telephone were from] six hours
       [before LCNEU executed the First Search Warrant] and then
       there [is] another mobile services notification from 15 hours
       [before]. So [cellular tele]phones do [not] usually just light up.
       Usually waving your hand or lifting it to your face [makes a
       cellular telephone] light [] up. I doubt that the screen would
       be lit all the time. So something must have happened for the


                                     -9-
J-S20007-25


       phone to light up if there [is] no other notifications on the
       screen.

Id. at 21-22.

      Ultimately, on June 24, 2022, the trial court denied Appellee’s motion,

in part, and granted Appellee’s motion, in part. Trial Court Opinion and Order,

11/5/24, at 18. More specifically, the trial court concluded that, contrary to

Appellee’s claims, the affidavits in support of the First Search Warrant and the

Second Search Warrant did not contain stale information.             Rather, “a fair

reading of the affidavit[s] convey[ed] that the information from the June and

July [] 2023 controlled buys was used to corroborate the information from the

November [] 2023 controlled buys.”         Id. at 10.        Because the affidavits

included   information    explaining    that     LCNEU    “conduct[ed]    additional

surveillance and controlled buy procedures,” the trial court denied Appellee’s

claim for suppression on this basis. Id. The trial court further concluded that

the First Search Warrant was supported by probable cause. Id. at 12 and 18.

      The trial court next considered Appellee’s claim that LCNEU’s inspection

of his cellular telephone during the execution of the First Search Warrant was

impermissible and, as such, LCNEU’s seizure of the device pursuant to the

Second Search Warrant was improper.             Initially, the trial court recognized

that, “in recent opinions, the [United States] Supreme Court has expanded its

definition of ‘constitutionally protected areas’ to include cell[ular tele]phones.”

Id. at 13, citing Riley v. California and United States v. Wurie, 

 (2014) (hereinafter, “Riley/Wurie”). More specifically, the High Court



                                       - 10 -
J-S20007-25



in Riley/Wurie determined that individuals have a subjective expectation of

privacy in their cellular telephones and that such an expectation is reasonable.

See Riley/Wurie, supra at 403 (“Modern cell phones are not just another

technological convenience. With all they contain and all they may reveal, they

hold for many Americans ‘the privacies of life[.]’”) (citation omitted). Thus,

the trial court herein determined that “even a small, seemingly insignificant

act of information gathering by police is a search” and, as such, unlawful

unless made pursuant to a warrant or an exception to the Fourth Amendment’s

warrant requirement. Trial Court Opinion and Order, 11/5/23, at 13, citing

     Accordingly, the trial court held that LCNEU conducted a

warrantless search of Appellee’s cellular telephone when agents viewed the

text message from Shana Hill and photographed the screen of Appellee’s

mobile device while executing the First Search Warrant.

      The trial court then went on to address the Commonwealth’s claim that

LCNEU’s inspection and subsequent seizure of Appellee’s cellular telephone

was nonetheless constitutionally permissible because the text message that

appeared spontaneously on Appellee’s cellular telephone was in plain view and

immediately understood to be incriminating, as alleged in in the affidavit of

probable cause attached to the Second Search Warrant. Ultimately, the trial

court rejected the Commonwealth’s claim that the agents’ “plain view”

observations established probable cause to support the Second Search

Warrant. Trial Court Opinion and Order, 11/5/23, at 15-16. More specifically,

the trial court stated:

                                     - 11 -
J-S20007-25


        [Appellee] avers that[,] while the cell[ular tele]phone was in
        plain view, the likelihood that the [cellular tele]phone’s screen
        spontaneously [self-]activated is slim. [Appellee] argue[d] that
        a spontaneous activation of the cell[ular tele]phone [was]
        suspect considering the most recent notification preced[ed] the
        search by approximately six [] hours.

       Based upon all of the foregoing, the trial court held that LCNEU’s

inspection of Appellee’s cellular telephone during the execution of the First

Search Warrant constituted an unlawful search.             Moreover, the trial court

determined that the averments on which the Commonwealth relied to

establish that LCNEU investigators observed incriminating messages in plain

view on Appellee’s mobile device were unworthy of belief.            The trial court

therefore suppressed “the evidence obtained from [Appellee’s] cell[ular

tele]phone as fruit of the poisonous tree.” Id. at 16.

       On November 6, 2024, the Commonwealth filed a timely notice of appeal

from the trial court's November 5, 2024, interlocutory order that suppressed

the cellular telephone’s contents.             Within its appeal, the Commonwealth

properly certified that the order “terminates or substantially handicaps the

prosecution.”     Commonwealth's Notice of Appeal, 11/6/24, at 1; see also

Pa.R.A.P. 311(d).5 On November 15, 2024, the trial court ordered the

____________________________________________


5 “Certification of pretrial appeals by the Commonwealth [under Pennsylvania

Rule of Appellate Procedure 311(d)] is an exception to the requirement that
appeals may be taken only from final orders.” Commonwealth v. Cosnek,

 (Pa. 2003). As our Supreme Court has explained, “[w]hen
a pretrial motion removes evidence from the Commonwealth's case, only the
(Footnote Continued Next Page)


                                          - 12 -
J-S20007-25



Commonwealth to file a concise statement of errors complained of appeal

pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely complied.

       The Commonwealth raises the following issues on appeal:

        1. Whether the trial court abused its discretion in determining
           that an unlawful search was conducted upon [Appellee’s]
           cell[ular tele]phone?

        2. Whether the trial court abused its discretion when it
           suppressed evidence related to [Appellee’s] cell[ular
           tele]phone as fruit of the poisonous tree?

Commonwealth’s Brief at 9.

       On appeal, the Commonwealth challenges the trial court’s suppression

ruling. When reviewing a challenge to a suppression ruling, our standard of

review is

        limited to determining whether the suppression court's factual
        findings are supported by the record and whether the legal
        conclusions drawn from those facts are correct. Because the
        [defense] prevailed before the suppression court, we may
        consider only the evidence of the [defense] and so much of the
        evidence for the [Commonwealth] as remains uncontradicted
        when read in the context of the record as a whole. Where the
        suppression court's factual findings are supported by the
        record, the appellate court is bound by those findings and may
        reverse only if the court's legal conclusions are erroneous.
        Where the appeal of the determination of the suppression court
        turns on allegations of legal error, the suppression court's legal
        conclusions are not binding on an appellate court, whose duty
____________________________________________


prosecutor can judge whether that evidence substantially handicaps his ability
to prove every essential element of his case. Additionally, only the prosecutor
can judge whether he can meet his constitutional burden of proving his case
without that evidence.” 

 (citations omitted). In following, the
Supreme Court has held that the Commonwealth may utilize Rule 311(d) to
immediately appeal “a pretrial ruling [that] results in the suppression,
preclusion or exclusion of Commonwealth evidence.” 

.

                                          - 13 -
J-S20007-25


       it is to determine if the suppression court properly applied the
       law to the facts. Thus, the conclusions of law of the courts
       below are subject to plenary review.

Commonwealth v. Smith, 

 (Pa. Super. 2017) (citation

omitted and formatting altered).

      Initially, the Commonwealth claims that the trial court erred in

determining that the act of viewing Appellee’s cellular telephone during the

execution of the First Search Warrant constituted a search. More specifically,

the Commonwealth “adamantly avers that the subject cell[ular tele]phone has

never been searched. In regard to what took place on November 21, 2023,

surrounding the subject cell[ular tele]phone, the Commonwealth avers, and

the law supports, that [LCNEU’s action did not rise to the level of] a search at

all.” Commonwealth’s Brief at 19. Based upon our review of relevant case

law promulgated by the United States Supreme Court, as well as our Supreme

Court, we disagree.

      In 2014, the United States Supreme Court addressed whether, without

a warrant, law enforcement could search digital information contained on a

cellular telephone incident to a lawful arrest.     See Riley/Wurie, supra.

Initially, the High Court recognized that cellular telephones are, in essence,

“minicomputers” that “place vast quantities of personal information literally in

the hands of individuals” and that, if it permitted law enforcement to conduct

a search of its contents following an arrest, it would essentially provide “police

officers unbridled discretion to rummage at will among a person’s private

effects.”   Id. at 393 and 399 (citation omitted); see also id. at 396


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(explaining that the search of a cellular telephone “would typically expose to

the government far more than the most exhaustive search of a house[.]”)

(emphasis omitted). Thus, Riley/Wurie provided the following “answer” to

“the question of what police must do before searching a cell[ular tele]phone

seized incident to an arrest[:] get a warrant.” Id. at 403.

      Four years later, our Supreme Court interpreted Riley/Wurie in

     In so doing, the Fulton Court initially recognized that,

pursuant to Riley/Wurie, “an individual [maintains an] expectation of privacy

[] in [his or her] cell[ular tele]phone . . . not in each and every piece of

information stored therein.” Fulton, 

. Hence, “in the absence

of an applicable exception, any search of a cell[ular tele]phone requires a

warrant.” 

 (emphasis in original). The Fulton Court further noted that “a

search occurs when police intrude upon a constitutionally protected area [(i.e.,

a cellular telephone)] without the individual’s explicit or implicit permission.”

.       Importantly, the Fulton Court cautioned that the

governmental intrusion “need not uncover something ‘of great personal

value’” because “even a small, seemingly insignificant act of information

gathering by police in a constitutionally protected area is a search.” 

 citing

Arizona v. Hicks, 

 (1987) (“A search is a search, even if it

happens to disclose nothing but the bottom of a turntable.”). Based upon the

foregoing, the Fulton Court determined that the following police conduct

constituted a search: (1) powering on a cellular telephone; (2) navigating

“through the menus of [a cellular telephone] to obtain its number;” and

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(3) monitoring a cellular telephone’s “incoming calls and text messages.”

Fulton, 

.               The Fulton Court, like Riley/Wurie,

concluded its review by instructing law enforcement that, if they “wish[] to

obtain information from a cell[ular tele]phone, get a warrant.” 

.

       Upon     review    of     the   foregoing,   we   cannot   agree   with   the

Commonwealth’s assertion that LCNEU did not search Appellee’s cellular

telephone during the execution of the First Search Warrant. To the contrary,

LCNEU admitted in the affidavit of probable cause supporting the Second

Search Warrant that they viewed Appellee’s cellular telephone, read a

message from Shana Hill, and then took a photograph of Appellee’s mobile

device. The Fulton Court explicitly noted that these types of actions, while

arguably minimally invasive, constitute intrusions upon constitutionally

protected spaces. See Fulton, 

 (explaining that “monitoring

a [cellular tele]phone’s incoming text messages allows the viewer to see the

content of a text message, which indisputably constitutes private data. This

is all information that, pursuant to Riley/Wurie, cannot be accessed by police

without a warrant.”).6
____________________________________________


I In Riley/Wurie, the United States Supreme Court broadly directed law
enforcement to obtain a warrant in order to access information on a cellular
telephone. This sentiment was echoed strongly in Fulton. In both cases,
however, the Courts “left open the possibility that ‘case-specific exceptions’
(e.g. consent or exigent circumstances) could justify the search of a particular
[cellular tele]phone.” Fulton, 179 A.3d at n.18, citing Riley/Wurie, 573 U.S.
at 402-403. In light of the aforementioned language, subsequent courts have
upheld warrantless searches of cellular telephones when conducted pursuant
(Footnote Continued Next Page)


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       We now turn to the Commonwealth’s claim that, even if the act of

viewing Appellee’s cellular telephone constituted a search, LCNEU’s actions

were constitutionally permissible under the plain view doctrine. To support its

argument, the Commonwealth maintains that LCNEU did not manipulate

Appellee’s cellular telephone. Instead, as averred in the affidavit of probable

cause supporting the Second Search Warrant, LCNEU entered Appellee’s

bedroom pursuant to a search warrant and saw the cellular telephone “openly

visibl[e]” to the lock screen displaying an incriminating text message from

Shana Hill. N.T. Suppression Hearing, 5/14/24, at 3 (Commonwealth’s Exhibit

2). The Commonwealth, therefore, argues that the trial court erred in holding

that LCNEU unlawfully searched Appellee’s cellular telephone. We disagree.

       This Court previously stated:

        [t]he plain view doctrine applies if 1) police did not violate the
        Fourth Amendment during the course of their arrival at the
        location where they viewed the item in question; 2) the item
        was not obscured and could be seen plainly from that location;
        3) the incriminating nature of the item was readily apparent;
        and 4) police had the lawful right to access the item.




____________________________________________


to a valid exception to the Fourth Amendment warrant requirement. See
Alasaad v. Mayorkas, 

 (1st Cir. 2021) (holding that the “border
search” exception allowed a basic, routine search of a cellular telephone at
the United States’ border); United States v. Cano, 

 (9th Cir. 2019) (accord); see also Sinclair v. State, 

 (Md. App. Ct. 2015) (holding that law enforcement’s inspection and
photograph of the “screen saver image” on the defendant’s cellular telephone
was permissible under the plain view doctrine).


                                          - 17 -
J-S20007-25



Commonwealth v. Anderson, 

 (Pa. Super. 2012)

(citation omitted).7

       Herein, the trial court held that the plain view doctrine was inapplicable.

More specifically, the trial court recognized that, generally speaking, a cellular

telephone does not “spontaneously activate” and, instead, illuminates when a

notification is published. Trial Court Opinion, 11/5/24, at 15. The trial court

also recognized that the “most recent notification” on Appellee’s cellular

telephone “preceded the search by approximately six [] hours.” 

 On this

basis, the trial court flatly rejected the Commonwealth’s contention that the

incriminating nature of Appellee’s cellular telephone, i.e., the text message

from Shana Hill, was readily apparent and in plain view without manipulation.

Instead, the trial court ostensibly concluded that LCNEU, in some way,

manipulated Appellee’s cellular telephone to reveal the text message from

Shana Hill and, as such, the plain view doctrine did not operate to justify the

warrantless search of Appellee’s cellular telephone. See Commonwealth v.

Wright,     

       (Pa.   Super.   2014)   (holding:   “the

Commonwealth failed to establish that the incriminating nature of [the
____________________________________________


7 Ordinarily, the plain view doctrine is cited to support the immediate seizure

of contraband observed by law enforcement personnel from a lawful vantage
point. See Commonwealth v. Hall, 

, 1035 (Pa. Super. 2023)
(holding that law enforcement entered the abandon vehicle to assist
potentially injured occupants and, as such, validly observed a firearm,
marijuana and a cellular telephone in plain view. Thus, law enforcement were
able to seize the aforementioned evidence under the plain view doctrine).
Here, however, LCNEU did not immediately seize Appellee’s mobile device but,
instead, incorporated their “plain view” observations into the affidavit of
probable cause attached to the Second Search Warrant.

                                          - 18 -
J-S20007-25



a]ppellee’s cell[ular tele]phone was immediately apparent” and that “the plain

view doctrine [did not] justif[y] the warrantless seizure of [the a]ppellee’s

cell[ular tele]phone.”) As will be discussed infra, there is nothing within the

certified record that enables this Court to determine that, in so doing, the trial

court abused its discretion.

      On appeal, the Commonwealth challenges the trial court’s authority to

question the veracity of an averment in the affidavit supporting the Second

Search Warrant, i.e., the affiant’s statement that LCNEU did not manipulate

Appellee’s cellular telephone to reveal the text message from Shana Hill. In

support, the Commonwealth claims that Appellee’s suppression motion only

challenged the “four corners” of the affidavit in support of the Second Search

Warrant. Citing Pa.R.Crim.P. 203(D), the Commonwealth maintains that it

could only present, and the trial court could only consider, the affidavit of

probable cause supporting the Second Search Warrant to determine whether

there was sufficient probable cause to secure a search warrant for Appellee’s

cellular telephone.   Contrary to the procedural rules, the Commonwealth

contends that the trial court conducted an improper de novo review and made

an impermissible credibility determination regarding the accuracy of the

affiant’s averment that Appellee’s cellular telephone illuminated without any

handling to reveal the partial message from Shana Hill which, in turn, nullified

the applicability of the plain view doctrine.     Because the Commonwealth

mischaracterizes Appellee’s suppression claim, we disagree.




                                     - 19 -
J-S20007-25



      Rule 203 of the Pennsylvania Rules of Criminal Procedure states, in

relevant part, as follows.

       (B) No search warrant shall issue but upon probable cause
       supported by one or more affidavits sworn to before the issuing
       authority in person or using advanced communication
       technology. The issuing authority, in determining whether
       probable cause has been established, may not consider any
       evidence outside the affidavits.

                                     …

       (D) At any hearing on a motion for the return or suppression of
       evidence, or for suppression of the fruits of evidence, obtained
       pursuant to a search warrant, no evidence shall be admissible
       to establish probable cause other than the affidavits provided
       for in paragraph (B).

Pa.R.Crim.P. 203(B), (D).     Undoubtedly, the rule “plainly states” that the

suppression court, in reviewing a magistrate’s probable cause determination,

“may only consider the affidavit.” Commonwealth v. James, 

 (Pa. 2013).    “The rule does not speak, however, to the evidence the

suppression court may consider when a defendant challenges veracity or

omissions of facts in the affidavit,” which a defendant has the right to do. Id.;

see also Commonwealth v. Hall, 

 (Pa. 1973) (holding

that a defendant at a suppression hearing may “test the truthfulness of the

recitals in the warrant” and that, to “rule otherwise[] would permit police in

every case to exaggerate or expand on the facts given to the magistrate

merely for the purpose of meeting the probable cause requirement”). If a

defendant lodges such a challenge, our case law demands that it “must be




                                     - 20 -
J-S20007-25



resolved with evidence beyond the affidavit’s four corners.” James, 

.

       In contrast to the Commonwealth’s claims, Appellee herein did not

merely challenge the sufficiency of the affidavits of probable cause supporting

the First and Second Search Warrants in his suppression motion. Instead,

Appellee lodged a specific challenge against the veracity of the affiant’s

statement that Appellee’s cellular telephone was “lit” with “a ‘[text message]

openly visibl[e] on the front screen’” displaying a message from Shana Hill.

Appellee’s Omnibus Pre-Trial Motion, 3/12,24 at 7. This specific challenge was

reiterated at the May 14, 2024 suppression hearing wherein Appellee’s counsel

claimed that “something must have happened for the [cellular tele]phone to

light up” given the fact that the text message from Shana Hill was received

approximately six hours before LCNEU executed the First Search Warrant and

viewed Appellee’s cellular telephone. N.T. Suppression Hearing, 5/14/24, at

22. As indicated supra, Appellee’s challenge was legally permissible.8 See

James, 

 (“This Court has held a defendant at a suppression

hearing has the right to test the veracity of the facts recited in the affidavit in

support of probable cause.”). We therefore disagree with the contention that

Rule 203 prohibited the Commonwealth and, in turn, the trial court, from


____________________________________________


8 Appellee’s challenge was made pursuant to Franks v. Delaware, 

 (1978). In contrast to the Commonwealth’s claims on appeal, Appellee’s
challenge, as lodged within his motion to suppress and expressed during the
suppression hearing, was sufficiently specific.

                                          - 21 -
J-S20007-25



resolving Appellee’s challenge with evidence beyond the four corners of the

affidavit in support of the Second Search Warrant.

        Our view of Appellee’s suppression challenge, as well as the trial

court’s review thereof, finds support in our Supreme Court’s decision in

 the facts of which are as follows. On April 11, 2007, police

received information regarding a possible drug transaction at Darrell James’s

residence. On April 13, 2007, police “search[ed] the garbage at [James’s]

residence and discovered drug paraphernalia, as well as marijuana and

cocaine residue.” James, 

. Then, on April 19, 2007, “police

conducted a second trash pull of [James’s] garbage and discovered more drug

paraphernalia and residue.” 

 Based upon the foregoing, as well as other

evidence obtained through a CI, the police applied for a warrant to search

James’s residence.   The affidavit of probable cause supporting the search

warrant stated as follows:

       On [April 13, 2007, members of the police ] . . . conducted a
       trash pull of [James’s residence]. Upon searching the garbage
       taken from the residence[, the police] did recover “diapers”
       which are sandwich baggies with the corners torn off of them.
       [Approximately] 20 of the baggie “diapers” were found inside
       an empty plastic sandwich baggie box. Also found was one
       plastic baggie with marijuana stems and seeds inside of it,
       [approximately three] plastic baggie “knots[,]” 10 plastic
       baggie “corners” and [one] plastic baggie with cocaine residue
       inside it. The plastic baggie residue was field tested using the
       Narcopouch 904B which tested positive for the presence of
       cocaine.

                                    …

       On [April 19, 2007, members of the police ] . . . conducted a
       final trash pull of [James’s residence]. Upon searching the

                                    - 22 -
J-S20007-25


       garbage taken from the residence[, the police] did recover
       [approximately 10] “diapers” which are plastic baggies with the
       corners torn off, [two] plastic baggies with marijuana residue,
       one plastic baggie knot and a plastic corner of a baggie with
       cocaine residue. The plastic baggie corner was field tested
       using a NarcoPouch 904B which tested positive for the presence
       of cocaine. Indicia of residency was located in said trash[.]

 at 181–182 (emphasis in original).

      Thereafter, James filed a motion to suppress, seeking to suppress, inter

alia, evidence seized from his residence following the execution of the

aforementioned search warrant. In so doing, James claimed that the affidavit

in support of the search warrant failed to establish probable cause. James

specifically argued that, because the affidavit “did not specify where the trash

was actually located when police seized it,” there was a distinct possibility that

the police searched the trash on his porch, thereby violating his Fourth

Amendment rights. 

. After initially granting James’s motion, the

trial court granted the Commonwealth’s motion for reconsideration because

       it determined there were two constitutional issues: one involved
       the search warrant itself, and the other involved the trash pull.
       Because there was no way to tell from the affidavit of probable
       cause and the prior proceedings whether the trash pull violated
       [James’s] Fourth Amendment rights, the trial court allowed the
       Commonwealth to present evidence pertaining to the trash pull
       that was not within the four corners of the affidavit.

 The Commonwealth, therefore, called the officer who conducted the trash

pull to testify. He specified that the “trash had been set out on the sidewalk

adjoining the steps leading to [James’s] residence on trash collection day.”

 Based upon the foregoing, the trial court determined that the trash was



                                     - 23 -
J-S20007-25



abandoned and the trash pull was lawful.        James appealed, arguing that,

pursuant to Pa.R.Crim.P. 203(D), the “‘four corners rule’” prohibited the trial

court from considering “evidence outside the four corners of the affidavit in

determining the constitutional validity of the trash pull.” 

      The Supreme Court disagreed. First, the James Court determined that

James’s suppression claim, which included a “specific challenge . . .

concern[ing] the legality of the trash pulls” was “quite distinct from a challenge

to the existence of probable cause within the four corners of the affidavit.”

.    Hence, despite James’s objection, evidence “beyond the

affidavit’s four corners” was necessary to resolve his challenge to the

constitutionality of the trash pulls. 

. More specifically, the High

Court explained:

       [W]hen a fact in an affidavit is specifically challenged (as
       opposed to a generic, global challenge to the affidavit's
       sufficiency), the Commonwealth must come forward with
       evidence elucidating the validity of the fact in question. The
       affidavit alone is not enough; when its facts are challenged,
       evidence concerning how those facts were ascertained is often
       required. Live witnesses subject to cross-examination—in this
       case, one of the officers who conducted the trash pull—were
       essential for the trial court to determine whether the initial
       warrantless search was lawful and could remain among the
       facts it considered when assessing probable cause.

Id.; see also Commonwealth v. (William) Ryan, 

(Pa. Super. 1973) (“While the court could not venture outside the four corners

of the affidavit in deciding whether probable cause existed, it is still the

Commonwealth's burden to prove the validity of the statements contained in



                                     - 24 -
J-S20007-25



the affidavit and this can only be done by real, live witnesses who are subject

to cross-examination by the defendant.”).      Based upon the foregoing, the

James Court determined that the trial court correctly considered the officer’s

testimony in assessing the constitutionality of the trash pulls, and that, based

upon the officer’s assertions, the trial court correctly determined that the

search warrant was based upon probable cause.

      Like the defendant in James, Appellee claimed that the affiant’s

statement that Appellee’s cellular telephone was illuminated to reveal the text

message from Shana Hill, without manipulation, was unworthy of belief in

assessing probable cause.       In light of Appellee’s specific claim, the

Commonwealth was required to “come forward with evidence elucidating the

validity of the fact in question,” i.e., whether the affiant did, in fact, view

Appellee’s cellular telephone with the message from Shana Hill in plain view

or whether Appellee’s cellular telephone was touched, moved, or otherwise

manipulated to illuminate the message. James, 

.               The

Commonwealth was also entitled to call technical experts familiar with cellular

telephone features and settings.    These individuals could identify features

and/or settings that would have explained the process by which a notification

illuminates on a mobile device and, in turn, provide a technical pathway that

would explain the observation LCNEU claimed to have made to buttress the

veracity of the averments in the affidavit of probable cause supporting the

Second Search Warrant. The Commonwealth failed to do so and, instead, the

Commonwealth simply relied upon the affidavit of probable cause in support

                                     - 25 -
J-S20007-25



of the Second Search Warrant, as well as the picture LCNEU took of Appellee’s

cellular telephone (which was incorporated in the affidavit).      Pursuant to

James and (William) Ryan, the Commonwealth’s failure to set forth

additional evidence – live testimony – was patently insufficient to sustain its

“burden to prove the validity of the statements contained in the affidavit.”

James, 

, citing (William) 

. Thus, in our

view, the Commonwealth cannot, now on appeal, cite its failure as a basis for

precluding the trial court from second-guessing the truthfulness of the

averments set forth in the affidavit of probable cause.       Such a result is

contrary to our case law.

      In view of all of the foregoing, we cannot say that, in suppressing

Appellee’s cellular telephone, as well as any evidence subsequently obtained

from it, the trial court committed an error of law. As discussed supra, the

trial court correctly held that the act of viewing, reading and photographing

Appellee’s cellular telephone constituted a search. See Fulton, 

. The trial court then properly perceived Appellee’s suppression claim to

be a challenge to the veracity of the affiant’s claim that, during the execution

of the First Search Warrant, LCNEU did not manipulate Appellee’s mobile

device to reveal the text message from Shana Hill. Finally, the trial court

considered, based upon the evidence submitted by the Commonwealth,

whether the claim that Appellee’s cellular telephone either spontaneously lit

up or was continuously illuminated to be credible. Having determined that

such an averment was unworthy of credit, the trial court correctly held that

                                     - 26 -
J-S20007-25



the Commonwealth could not use the plain view doctrine – which requires that

the evidence’s incriminating nature be immediately apparent - to justify the

act of viewing and photographing Appellee’s cellular telephone. We therefore

hold that the trial court properly held that evidence of Appellee’s cellular

telephone was subject to suppression and that any evidence subsequently

obtained from a search of its contents constituted fruit of the poisonous tree.

See Commonwealth v. Shabezz, 

 (Pa. 2017) (“Evidence

constitutes fruit of the poisonous tree, and must be suppressed, if it was

obtained by ‘exploitation’ of the illegality[.]”), citing Wong Sun v. United

States, 

 (1963).

      Order affirmed.



Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 8/29/2025




                                    - 27 -