Received 9/28/2020 11:37:59 AM Supreme Court Middle District
Filed 9/28/2020 11:37:00 AM Supreme Court Middle District
45 MAP 2020


IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

No. 45 MAP 2020

Commonwealth of Pennsylvania,
Appellee,
versus
Alkiohn Dunkins,
Appellant.

Brief for Appellant
Appeal from the February 12, 2020, Order of the Superior
Court, at 1003 EDA 2019, Affirming the January 4, 2019
judgment of sentence entered by the Northampton County
Court of Common Pleas (Paula A. Roscioli, J.) at CP-48-CR0001577-2017.

Michael J. Diamondstein
Stephanie R. Esrig
Counsel for Alkiohn Dunkins
Counsel for Alkiohn Dunkins
I.D. 78973
I.D. 324675
Two Penn Center, Suite 900 Two Penn Center, Suite 900
1500 John F. Kennedy
1500 John F. Kennedy
Boulevard
Boulevard
Philadelphia, PA 19102
Philadelphia, PA 19102
(215) 940-2700
(215) 940-2700

i

 TABLE OF CONTENTS
1.

Table of Authorities ................................................v

2.

Statement of Jurisdiction ....................................... 1

3.

Order in Question ................................................. 1

4.

Statement of Scope and Standard of Review ............. 2

5.

Statement of Questions Involved............................. 4

6.

Statement of the Case ........................................... 4

7.

Summary of the Argument .................................... 10

8.

Argument ........................................................... 12
I.

The Court erred by denying Mr. Dunkins’
Motion to Suppress the cell site location
information and/or his Motion for
Extraordinary Relief requesting the
same.......................................................... 12
a. Individuals have a reasonable
expectation of privacy in their physical
movements ........................................... 16
i. The government conducts a search
when it obtains cell phone location
records from a Wi-Fi provider ............... 20
b. Law enforcement access to geolocation information interferes with a
person’s right to privacy in their
physical movements ............................... 22
i. The government should not avoid the
warrant requirement by narrowing
ii

 the duration of the geo-tracking of a
person’s historical movements.............. 34
c. Wi-Fi networking provides unique
infringements on people’s right to
privacy ................................................... 44
i. Cell phones utilize Wi-Fi network
connections in lieu of cellular
connections ....................................... 44
ii. Wi-Fi geo-location records eliminate
the anonymity safeguard provided by
a cellular tower dump ......................... 47
d. The third party doctrine does not
negate Mr. Dunkins’ reasonable
expectation of privacy in his physical
movements ............................................ 51
i. The unique information provided by
Wi-Fi geo-tracking is so unlike any
other type of data that law
enforcement must be required to
obtain a warrant supported by
probable cause................................... 54
9.

Conclusion .......................................................... 58

10. Certifications ....................................................... 61
11. Appendix A: 1925(b) Statement ............................. 62
12. Appendix B: Trial Court 1925(a) Opinion ................. 68
13. Appendix C: Trial Court Pre-Trial Motion Opinion....... 72

iii

 14. Appendix D: Trial Court Motion for Extraordinary Relief
Opinion .............................................................. 77
15. Appendix E: Superior Court Opinion ........................ 84
16. Appendix F: Order of Allowance of Appeal .............. 105

iv

 TABLE OF AUTHORITIES
CASES
Bond v. United States, 529 U.S. 334 (2000) ................... 18
Carpenter v. United States, 138 S. Ct. 2206 (2018) ... passim
Commonwealth v. Augustine,
4 N.E. 3d 846 (Mass. 2014) ............................. 20, 24
Commonwealth v. Blood, 507 N.E.2d 1029 (1987) ........... 39
Commonwealth v. Bomar, 826 A.2d 831 (2003) ............... 3
Commonwealth v. Dunkins, 229 A.3d 622 ................ passim
Commonwealth v. Gibson, 638 A.2d 203 (Pa., 1994) ... 55-56
Commonwealth v. Jones, 121 A.3d 524 (2015) ..............2-3
Commonwealth v. Sodomsky,
939 A.2d 363 (Pa.Super. 2007).............................. 55
Commonwealth v. Cundriff, 382 Mass. 137 (1980) ...... 39-40
Illinois v. Caballes, 543 U.S. 405 (2005) ........................ 23
Katz v. United States, 389 U. S. 347 (1967) ................... 17
Kaupp v. Texas, 538 U.S. 626 (2003) ............................ 55
Kyllo v. United States, 533 U.S. 27 (2001) ............... passim
Payton v. New York, 445 U.S. 573, 583 (1980) ............... 17
Riley v. California, 573 U.S. 373 (2014) ................... passim
v

 Smith v. Maryland, 442 U.S. 735 (1979) ........................ 17
State v. Muhammad, 194 Wn.2d 577 (2019)................... 43
Tracey v. State, 152 So.3d 504 (2014) ..................... 37-41
United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) .... 20
United States v. Diggs,
385 F. Supp. 3d 648 (N.D. Ill. 2019)....................... 27
United States v. Graham,
846 F. Supp. 2d 384 (D. Md. 2012) ........................ 39
United States v. Jones, 565 U.S. 400 (2012) ............. passim
United States v. Karo, 468 U.S. 705, 707 (1984) ............. 21
United States v. New York Tel. Co.,
434 U.S. 159 (1977) ............................................ 48

STATUTES
U.S. Const. amend. IV ........................................... passim
U.S. Const. amend. IVX ......................................... passim
18 U.S.C. § 2703 .................................................. passim
42 Pa.C.S.A. § 742....................................................... 1

vi

 STATEMENT OF JURISDICTION
This Court's jurisdiction to grant an allowance of appeal from
a final order of the Superior Court is established by 42 Pa.C.S. §
724(a). which provides:
Except as provided by section 9781(f) (relating to
limitation on additional appellate review), final
orders of the Superior Court and final orders of the
Commonwealth Court not appealable under section
723 (relating to appeals from Commonwealth
Court) may be reviewed by the Supreme Court
upon allowance of appeal by any two justices of the
Supreme Court upon petition of any party to the
matter. If the petition shall be granted, the
Supreme Court shall have jurisdiction to review the
order in the manner provided by section 5105(d)(1)
(relating to scope of appeal).
The Honorable Paula A. Roscioli denied Mr. Dunkins’ post-sentence
motion on March 1, 2019.

The Superior Court then affirmed the

judgment of sentence on February 12, 2020. This constitutes a
“final order” within the meaning of this rule.
ORDER IN QUESTION
The Order in Question is the February 12, 2020 Superior Court
Order affirming the January 4, 2019 judgment of sentence as made
final by the denial of the Post Sentence Motion on March 1, 2019.

1

 STATEMENT OF THE SCOPE AND STANDARD OF REVIEW
The applicable standards of review are as follows:
1.

The following standard of review applies when this Court

reviews a trial court’s ruling on a Motion to Suppress:
This Court's well-settled standard of review of a
denial of a motion to suppress evidence is as
follows:
[An appellate court's] standard of review in
addressing a challenge to the denial of a
suppression motion 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 Commonwealth prevailed before the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense 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 *527 legal
error, the suppression court's legal conclusions are
not binding on an appellate court, whose duty 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. Jones, 605 Pa. 188, 988
2

 A.2d 649, 654 (2010) (internal citations and
quotation marks omitted).
Com. v. Jones, 2015 PA Super 160, 121 A.3d 524, 526–27 (2015).
2.

The Court applies the following standard in deciding if a

motion for extraordinary relief may be considered:
[A] significant number of the state and federal
courts that have adopted a general rule prohibiting
review of ineffectiveness claims on direct appeal
recognize an exception to the general rule where
the claims were presented to the trial
court. See United States v. McIntosh, 280 F.3d
479, 481 (5th Cir.2002) (claim of ineffective
assistance of counsel may be reviewed on direct
appeal if presented to trial court); Dodson v.
State, 326 Ark. 637, 934 S.W.2d 198, 201 (1996)
(same); Jackson v. State, 534 So.2d 689, 692
(Ala.Crim.App.1988)
(same); State
v.
Van
Cleave, 239 Kan. 117, 716 P.2d 580, 582 (1986)
(same); Accord United States v. Kincaide, 145 F.3d
771, 785 (6th Cir.1998) (claim of ineffective
assistance of counsel may be reviewed on direct
appeal if record is adequate *466 to assess merits
of claim); United States v. Cocivera, 104 F.3d 566,
570 (3rd Cir.1996) (same); **855 United States v.
Eltayib, 88 F.3d 157, 170 (2d Cir.1996)
(same); People v. Mendoza Tello, 15 Cal.4th 264,
62 Cal.Rptr.2d 437, 933 P.2d 1134, 1135 (1997)
(same); State v. Henry, 271 Mont. 491, 898 P.2d
1195,
1197–98
(1995)
(same); State
v.
Barrett, 577 A.2d 1167, 1172 (Me. 1990)
(same); State v. Seiss, 428 So.2d 444, 449
(La.1983) (same); State v. Lucas, 323 N.W.2d
228, 232 (Iowa 1982)(same).
3

 Com. v. Bomar, 573 Pa. 426, 465–66, 826 A.2d 831, 854–55
(2003).
STATEMENT OF QUESTIONS INVOLVED
Whether the trial court erred by denying Mr. Dunkins’ Motion to
Suppress the cell site location information and/or his Motion for
Extraordinary Relief requesting the same under the Fourth
Amendment to the United States Constitution?
(answered in the negative by the court below)
STATEMENT OF THE CASE
Mr. Dunkins was convicted on September 5th, 2018 of
Robbery, Conspiracy to Commit Robbery, Receiving Stolen
Property, and Simple Assault. On January 4th, 2019, Mr. Dunkins
was sentenced to an aggregate of 60-120 months incarceration.
(R. 610a)
The testimony at trial, in light most favorable to the
Commonwealth, was as follows:
Mr. Dunkins attended Moravian College in 2017. (R. 221a)
On the night of February 2nd, 2017, Mr. Reilly, a student at
Moravian College and a known drug dealer, was robbed in his dorm
4

 room. (R. 211-212a) In the early morning hours, two individuals
knocked on Mr. Reilly’s dorm room door, claiming to be campus
safety officers. Id. Once Mr. Farina, Mr. Reilly’s roommate, opened
the door, the two men entered the room wearing masks. The men
took marijuana and money. One man struck Mr. Farina in the face,
while the other had a firearm pointed at Mr. Reilly. (R. 346a) The
man with the firearm asked for the keys to the footlocker under
Mr. Reilly’s bed. (R. 226a) Once opened, the man without the
firearm removed $1,000 from the footlocker and removed a jar of
marijuana from Mr. Reilly’s desk drawer and handed it to the man
with the firearm. (R. 216a) The man holding the firearm hit Mr.
Reilly in the head and the two masked men exited the room. (R.
212- 219a, 344- 349a)
During trial Colin Zarzecki testified that Mr. Dunkins visited
his dorm room in the early hours of February 2nd, 2017. (R. 293a)
Mr. Zarzecki stated that Mr. Dunkins was bragging that he and
another individual had just robbed a student in another dorm. (R.
294- 298a) Mr. Zarzecki had a history of perjury stemming from

5

 false testimony made in the present case against Mr. Dunkins. (R.
319a)
During trial, Christopher Laird, the Director of Systems
Engineering at Moravian College testified that between 1:30 a.m.
and 2:30 a.m. on February 2nd, 2017, during the time the reported
robbery took place in Hassler dormitory, three Moravian Wi-Fi
accounts were connected to Wi-Fi access points in the Hassler
dormitory from students who did not reside within that dormitory.
Of those three users, the only account belonging to a male was
that of Mr. Dunkins. (R. 399- 411a)
On February 3rd, Mr. Reilly reported the robbery to campus
police and an investigation began. (R. 221a) During that
investigation, police obtained Wi-Fi geo-locating information for
Mr. Dunkins’ cell phone from Moravian College IT department
without a warrant. (R. 86-87a) Based on the geo-location
information Mr. Dunkins became the main suspect and charges
quickly followed.
Prior to trial, Mr. Dunkins filed a Motion to Suppress the data
on Fourth Amendment grounds. (R. 8a) A hearing was held on the
6

 Suppression

Motion,

during

which

several

witnesses

were

presented.1 The testimony established that during all Moravian
College students’ tenure, the students are granted access to the
wireless network on campus. (R. 51a) The network is comprised of
over 1,100 access points throughout the campus. (R. 51a) Upon
matriculating, the students are advised, via the Student Handbook,
of the network and the information the college obtains when
students access the network. (R. 36a)
Following the report of a robbery in Hassler dormitory the
night of February 2nd, 2017, Officer Appleman instructed Moravian
College’s Information Technology Department (herein after “IT”)
to conduct a total of four (4) searches to aid in the investigation.
The initial search resulted in a large list of all devices that were
connected to any of the antennas in Hassler dormitory on the night
of the robbery. (R. 64a) The second search narrowed the initial
results by removing all duplicate entries. (R. 65a) The third search
narrowed the list to accounts associated with people who are not

All witnesses were presented by the defense. The Commonwealth did not
call any witnesses. (R. 100a)
1

7

 registered as a resident of Hassler dormitory. (R. 410a) Finally, IT
was instructed to track the connections ― and thereby the
movements ― of Alkiohn Dunkins’ cell phone. (R. 64a) Officer
Appleman’s requests were not pursuant to a warrant nor a
subpoena. (R. 87a)
Following a hearing, the Trial Court denied the motion, finding
that Mr. Dunkins lacked a reasonable expectation of privacy and
therefore standing to challenge the warrantless search. The geolocation evidence was presented at Mr. Dunkins’ trial. See supra.
On September 5th, 2018, following the two-day trial, the Jury
returned a verdict of guilty on all charges. (R. 530a)
Mr. Dunkins filed a written Motion for Extraordinary Relief and
raised the same orally on November 30th, 2018. In his Motion, Mr.
Dunkins sought a new trial, arguing that the Trial Court erred in
denying his Motion to Suppress the geo-tracking information. More
specifically, he argued that the United States Supreme Court’s
decision in Carpenter v. United States, 138 S.Ct. 2206, 2221
(2018) on June 22nd, 2018, holding that police “must generally
obtain a warrant supported by probable cause before acquiring
8

 such records” was in direct conflict with the Trial Court’s ruling on
Mr. Dunkins’ Motion to Suppress and admission of the geo-location
evidence during his trial.
On December 7th, 2018, the Trial Court denied Mr. Dunkins’
Motion for Extraordinary Relief by written order. The Trial Court
concluded that “a user of the Wi-Fi network at Moravian College .
. . assume[s that] risk, and [] that his usage of said network is
materially different from ordinary cell phone usage.” As such, the
Trial Court denied Mr. Dunkins’ Motion and Sentenced him on
January 4th, 2019.
On January 10th, 2019, Mr. Dunkins filed a timely PostSentence Motion raising inter alia the Trial Court’s ruling as to the
Motion to Suppress and/or Motion for Extraordinary Relief. The
Trial Court denied Mr. Dunkins’ Post-Sentence Motion by written
Order on March 1st, 2019. (R. 19-20a) On March 19th, 2019, Mr.
Dunkins’ filed a timely notice of appeal followed by a Concise
Statement of Errors. On April 9th, 2019, Judge Roscioli issued a
1925(a) Opinion, which incorporated the Trial Court’s Order and
Statement of Reasons for denial of Mr. Dunkins’ Post-Sentence
9

 Motion filed on March 1st, 2019. (The 1925(a) Opinion and Court’s
Order dated March 1st, 2019 are collectively attached as Appendix
“D”). The Superior Court affirmed the Trial Court on all grounds in
an Opinion filed February 12th, 2020. (attached as Appendix “E”).
This Court Granted Mr. Dunkins’ timely Petition for Allowance of
Appeal.

SUMMARY OF THE ARGUMENT
Under the Supreme Court of the United States’ recent Fourth
Amendment cases, the government conducted a search when it
obtained Mr. Dunkins’ cell phone location records from the Wi-Fi
network service provider.
At trial, the Commonwealth presented evidence in violation
of Mr. Dunkins’ constitutional rights such that the reliability of the
verdict in this case is called into question. The Trial Court erred in
allowing the jury to hear evidence of geo-locating data of Mr.
Dunkins’ cell phone obtained without a warrant. The Trial Court
denied Mr. Dunkins’ Pretrial Motion to Suppress the unlawfully

10

 obtained data then denied his Motion for Extraordinary Relief
regarding the same.
Law enforcement not only conducted several warrantless
searches to determine that Mr. Dunkins’ phone was located in the
building but also conducted a geo-tracking search of his phone’s
particular movements for several hours. The search of Mr. Dunkins’
phone’s specific movements was unlike a “phone dump” and far
more precise than the type of search held unlawful in Carpenter v.
United States, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018).
The police in Mr. Dunkins’ case did not obtain a search warrant
nor court order for the Wi-Fi location information records. Mr.
Dunkins’ phone location records were used for the investigation
and subsequent trial without judicial review. Instead, the police
were given insight into Mr. Dunkins’ exact movements on the night
of the burglary without any showing of probable cause, suspicion
or articulable facts of the records relevance. 2 Notwithstanding that
the Wi-Fi location information obtained here provided law

It is clear from the notes of testimony of the motion to suppress hearing and
the trial that no exception to the warrant requirement existed in this case.
2

11

 enforcement with geo-tracking information exponentially more
precise and accurate than that in Carpenter,3 in the most basic of
terms Carpenter v. United States, 138 S. Ct. 2206, 201 L. Ed. 2d
507 (2018) is on all fours with facts of this case. Therefore, the
Wi-Fi geo-tracking information should have been suppressed and
a new trial ordered.4
ARGUMENT
I.

The Court erred by denying Mr. Dunkins’ Motion
to Suppress the cell site location information
and/or his Motion for Extraordinary Relief
requesting the same

In an example of George Orwell’s art becoming reality,
without judicial oversight or review, law enforcement acquired
historical geo-tracking information and thus used a cell phone to
track a human being. The within petition prays that this Honorable

CSLI merely provides an approximate – which can be as imprecise as a radius
of 20 miles – location. Wi-Fi geo-location information narrows a person’s
location within a few feet.
3

Law enforcement in Carpenter acquired the cell-site records pursuant to a
court order issued under the Stored Communications Act, which required the
Government to show “reasonable grounds” for believing that the records were
“relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d).
Carpenter, 138 S. Ct. at 2221. Here, law enforcement made no such attempt
to comport with any safeguards in obtaining Mr. Dunkins’ records.
4

12

 Court will strike down such a constitutionally impermissible
intrusion and demand that before the Government is able to track
the movements of a person in the birthplace of freedom – the great
Commonwealth of Pennsylvania – they shall be required to present
probable cause to the appropriate judicial authority.
It is axiomatic that “the Government must generally obtain a
warrant supported by probable cause before acquiring [] records”
protected by the Fourth Amendment’s expectation of privacy.
Carpenter v. United States, 138 S. Ct. 2206, 2221, 201 L.Ed.2d
507, 525 (2018). “Given the unique nature of cell phone location
information,
records

[is]

[] [t]he
a

Government’s

search

within

the

acquisition of [] cell-site
meaning

of

the Fourth

Amendment.” Id.
Here, the Commonwealth presented evidence of historical
geo-tracking of Mr. Dunkins’ cell phone to establish his location at
and around the time of the crime. Christopher H. Laird 5 testified
Mr. Laird provided the information at the request of Moravian Police Officer
Appleman. It is undisputed that Officer Appleman was a state actor subject to
the Fourth Amendment as he acted as an agent of the state in accessing the
wireless data information. See Commonwealth v. Yim, 195 A.3d 922, 927 (Pa.
Super. 2018), (quoting Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct.
574, 65 L.Ed. 1048 (1921)) (emphasizing that “[t]he Fourth Amendment’s
5

13

 that he was asked by police officers to compile a list of all devices
connected to the network in the building where and when the
Robbery occurred. (R. 407a) Seemingly overwhelmed by the
amount of data returned from the general inquiry, the officers
requested that Mr. Laird remove all duplicate names. Upon
request, Mr. Laird then cross-referenced the list with the college
housing assignments and narrowed the list down to only students
signed into that building who did not live in that dormitory. (R.
410a) After cross referencing the list of accounts connected to the
dormitory with those registered as residence, Mr. Laird provided
law enforcement with three (3) students’ names. The witness then
testified that of the three (3) students signed into the building, who
did not live in that building, the only male was Mr. Dunkins. (R.
411a) Finally, law enforcement had Moravian IT conduct a search
to track all of the connections made by Mr. Dunkins’ phone between
the hours of 12:00 a.m. and 5:00 a.m. on the date of February 2nd,
2017. (R. 62, 407a)

protection against unlawful searches and seizures applies only to actions by
the government.”).
14

 The Trial Court found that CLSI6 addressed in Carpenter was
of a materially different character than the geo-tracking of Mr.
Dunkins’ phone through Moravian College’s Wi-Fi network. The
Superior Court affirmed the Trial Court by erroneously finding that
“[t]he campus police did not target a specific individual or attempt
to track an individual’s movement”. Commonwealth v. Dunkins,
2020 PA Super 38, 229 A.3d 622, 629.
However, as will be argued in more detail infra, the search in
the instant case was not CSLI.

CSLI merely provides an

approximate – which can be as imprecise as a radius of 20 miles –
location. What was recovered by law enforcement here was far
more detailed than any CSLI record could reveal.

Without a

warrant or any judicial oversight, law enforcement recovered a

6

The Carpenter Court explained CSLI as follows:
Cell phones continuously scan their environment looking for the
best signal, which generally comes from the closest cell site. Most
modern devices, such as smartphones, tap into the wireless
network several times a minute whenever their signal is on, even
if the owner is not using one of the phone’s features. Each time
the phone connects to a cell site, it generates a time-stamped
record known as cell-site location information (CSLI).

Carpenter, 138 S. Ct. at 2211.
15

 step by step road map of Mr. Dunkins’ specific locations over the
requested period of time. The tracking was so specific that the
information could place Mr. Dunkins within 10-15 feet of a location.
Thus, not only did law enforcement conduct several warrantless
searches to determine that Mr. Dunkins’ phone was located
specifically inside the building where the crime occurred, but in fact
they conducted a geo-tracking search of his phone’s particular
movements for several hours in violation of his Fourth and
Fourteenth Amendment rights.
a. Individuals have a reasonable expectation of
privacy in their physical movements
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
amend. IV. “It is familiar history that indiscriminate searches and
seizures conducted under the authority of ‘general warrants’ were
the immediate evils that motivated the framing and adoption of the
16

 Fourth Amendment.” Payton v. New York, 445 U.S. 573, 583, 100
S. Ct. 1371, 1378, 63 L. Ed. 2d 639 (1980); see also Boyd v. United
States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed.2d 746
(1886).
“In Katz v. United States, 389 U. S. 347, 351, 88 S. Ct. 507,
19 L. Ed. 2d 576 (1967), [the United States Supreme Court]
established that ‘the Fourth Amendment protects people, not
places,’ and expanded [the] conception of the Amendment to
protect certain expectations of privacy as well.” Carpenter, 138 S.
Ct. at 2213.
The “Fourth Amendment analysis embraces two questions.
First, we ask whether the individual, by his conduct, has exhibited
an actual expectation of privacy; that is, whether he has shown
that

‘he

[sought]

to

preserve

[something]

as

private.’ Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220,
99 S. Ct. 2577 (1979) (internal quotation marks omitted) . . .
Second, we inquire whether the individual's expectation of privacy
is ‘one that society is prepared to recognize as reasonable.’ Ibid.”

17

 Bond v. United States, 529 U.S. 334, 338, 120 S. Ct. 1462, 1465
(2000); see also Kyllo v. United States, 533 U.S. 27, 33 (2001).
As technology has advanced courts have had to reevaluate
the limitations of the Constitution and established exceptions time
and again. As new technology has dramatically lowered the cost of
government surveillance and increased the government’s access to
private information, the Supreme Court has stressed that the
reasonable

expectation

of

privacy

inquiry

must

“assur[e]

preservation of that degree of privacy against government that
existed” prior to the advent of the new technology in question.
United States v. Jones, 565 U.S. 400, 406, 132 S. Ct. 945 (2012)
(Scalia, J.)(alteration in original) (ruling that GPS tracking of all of
the movements of a car over an extended time was a “search”
under the Fourth Amendment); id. at 420 (Alito, J., concurring in
the judgment); see also Riley v. California, 134 S. Ct. 2473
(2014)(ruling that the search-incident-to-arrest doctrine does not
permit warrantless searches for data on cell phones); Kyllo v.
United States, 533 U.S. 27 (2001)(ruling that the use of a “thermal
imager” to detect heat loss from the roof of a house was a search).
18

 A majority of the Supreme Court has long recognized that
individuals have a reasonable expectation of privacy in the whole
of their physical movements. United States v. Jones, 565 U.S. 400,
430, 132 S. Ct. 945 (2012), 181 L. Ed. 2d 911 (Alito, J., concurring
in judgment); id., at 415, 132 S. Ct. 945, 181 L. Ed. 2d
911 (Sotomayor, J., concurring); see also Carpenter v. United
States, 138 S. Ct. 2206, 2217 (2018).
Applying this framework in United States v. Carpenter, five
Justices agreed that “[w]hether the Government employs its own
surveillance technology as in Jones or leverages the technology of
a

wireless

carrier,

[]

an

individual maintains

a

legitimate

expectation of privacy in the record of his physical movements [].”
Carpenter, 138 S. Ct. at 2217. “In the past, attempts to reconstruct
a person’s movements were limited by a dearth of records and the
frailties of recollection. With access to CSLI, the Government can
now travel back in time to retrace a person’s whereabouts, subject
only to the retention polices of the wireless carriers[.]” Carpenter,
138 S. Ct. at 2218.

19

 i. The government conducts a search when it
obtains cell phone location records from a Wi-Fi
provider
For the same reason that five Justices concluded that there is
a reasonable expectation of privacy in cell phone location records
held by a wireless carrier, there is a reasonable expectation of
privacy in cell phone location records held by a Wi-Fi provider. Any
other conclusion would allow the government to circumvent the
principle accepted by the Supreme Court in Carpenter: tracking a
person’s cell phone is near perfect tracking of the user.
Historical CSLI “can reveal not just where people go—which
doctors, religious services, and stores they visit—but also the
people and groups they choose to affiliate with and when they
actually do so.” Commonwealth v. Augustine, 4 N.E. 3d 846, 861
(Mass. 2014) (quoting Earls, 70 A.3d at 642); see also Carpenter,
138 S. Ct. at 2217. And to state the obvious, when people make a
“visit to a gynecologist, a psychiatrist, a bookie, or a priest,” they
typically “assume that the visit is private.” United States v. Davis,
754 F.3d 1205, 1216 (11th Cir. 2014) (Sentelle, J.), rev’d en banc,
785 F.3d 498 (11th Cir. 2015).
20

 Historical Wi-Fi location information and the associated geotracking of human beings can also reveal that people are present
in their own homes or the homes of their closest friends or lovers,
even when that fact is otherwise undiscoverable. Wi-Fi location
information can reveal where a person is located within their home
or office building. Unlike CSLI, which places the phone in a general
location, Wi-Fi location information can narrow a phone’s location
down to a few feet. Wi-Fi location information - depending on the
location of the Wi-Fi router – can reveal whether a person was in
their bedroom or basement. In an office building, college campus,
or busy city environment, Wi-Fi location information can pin-point
a person’s specific location. Such information gathering “falls within
the ambit of the Fourth Amendment when it reveals information
that could not have been obtained through visual surveillance”
from a public place, such as whether “a particular article is actually
located at a particular time in the private residence,” or to later
confirm that the article remains on the premises. United States v.
Karo, 468 U.S. 705, 707, 715 (1984).

21

 b. Law enforcement access to geo-location
information interferes with a person’s right to
privacy in their physical movements
Allowing law enforcement to obtain Wi-Fi location records free
and clear of any Fourth Amendment restriction would dramatically
shrink the amount of privacy that people enjoyed from the time of
the Framing through the dawn of the digital age. Prior to the
widespread adoption of cell phones, the government simply could
not have obtained a comprehensive historical record of a person’s
locations and movements inside the most sacred of locations:
homes, churches, and/or medical facilities. CSLI cannot pin point a
person’s location with such specificity. At best CSLI could narrow a
phone’s location within a few city blocks. See Carpenter, 138 S. Ct.
at 2225 (Kennedy, J., dissenting) (“in urban areas cell-site records
often would reveal the location of a cell phone user within an area
covering between around a dozen and several hundred city blocks.
In rural areas cell-site records can be up to 40 times more
imprecise.”).
In Kyllo v. United States, the Supreme Court recognized the
need to protect the sanctity of the activity inside people’s homes.
22

 533 U.S. 27, 121 S. Ct. 2038, 150 L.Ed.2d 94 (2001). The Kyllo
Court held the “use of a thermal-imaging device to detect the
growth

of

marijuana

in

a

home

constituted

an

unlawful

search.” Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121
S. Ct. 2038 (2001). Critical to that decision was the fact that the
device was capable of detecting lawful activity--in that case,
intimate details in a home, such as "at what hour each night the
lady of the house takes her daily sauna and bath7." Id., at 38, 150
L. Ed. 2d 94, 121 S. Ct. 2038.” Illinois v. Caballes, 543 U.S. 405,
409-10, 125 S. Ct. 834, 838, 160 L.Ed.2d 842, 848 (2005).
Accordingly, the power to “reconstruct someone’s specific
movements down to the minute, not only around town but also
within a particular building,” Riley, 134 S. Ct. at 2490 (citing Jones,
565 U.S. at 415 (Sotomayor, J., concurring)), gives police access

“[A] much more sophisticated system might detect nothing more intimate
than the fact that someone left a closet light on.” Id. The Court noted that in
order to allow the use of technology to peer into the intimacies of a private
home, it “would have to develop a jurisprudence specifying which home
activities are ‘intimate’ and which are not. And even when (if ever) that
jurisprudence were fully developed, no police officer would be able to know in
advance whether his [search] picks up ‘intimate’ details -- and thus would be
unable to know in advance whether it is constitutional.” Kyllo v. United States,
533 U.S. 27, 38-39, 121 S. Ct. 2038, 2045-46, 150 L.Ed.2d 94, 105 (2001).
7

23

 to “a category of information that never would be available through
the use of traditional law enforcement tools of investigation.”
Augustine, 4 N.E.3d at 865; see also Jones, 565 U.S. at 415
(Sotomayor, J., concurring) (location information obtained through
modern technologies triggers the Fourth Amendment because it
offers a never-before-available “precise, comprehensive record of
a person’s public movements that reflects a wealth of detail about
her

familial,

political,

professional,

religious,

and

sexual

associations”).
In United States v. Jones, FBI agents installed a GPS tracking
device on the vehicle registered to Jones’ wife and remotely
monitored the vehicle’s movements. The Court decided the case
based on the Government’s physical trespass of the vehicle. 565
U. S., at 404-405, 132 S. Ct. 945, 181 L. Ed. 2d 911. At the same
time, five Justices agreed that related privacy concerns would be
raised by, for example, “surreptitiously activating a stolen vehicle
detection system” in Jones’s car to track Jones himself, or
conducting GPS tracking of his cell phone. Id., at 426, 428, 132 S.
Ct. 945, 181 L. Ed. 2d 911 (Alito, J., concurring in judgment); id.,
24

 at 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (Sotomayor, J.,
concurring).
More recently, in Carpenter, the U.S. Supreme Court was
“confront[ed] [with the question:] [] how to apply the Fourth
Amendment to a new phenomenon: the ability to chronicle a
person’s past movements through the record of his cell phone
signals.” 138 S. Ct. at 2216. The Court unequivocally explained
that cell phones have become such an integral part of people’s lives
that to track the movements of a person’s cell phone invades the
most fundamental protection afforded by the Fourth Amendment,
the right to be secure in their persons. Carpenter, 138 S. Ct. at
2217.
While individuals regularly leave their vehicles, they
compulsively carry cell phones with them all the
time. A cell phone faithfully follows its owner
beyond public thoroughfares and into private
residences, doctor’s offices, political headquarters,
and other potentially revealing locales. See id., at
___, 134 S. Ct. 2473, 189 L. Ed. 2d 430,
447 (noting that “nearly three-quarters of smart
phone users report being within five feet of their
phones most of the time, with 12% admitting that
they even use their phones in the shower”);
contrast Cardwell v. Lewis, 417 U. S. 583, 590, 94
S. Ct. 2464, 41 L. Ed. 2d 325 (1974) (plurality
25

 opinion) (“A car has little capacity for escaping
public scrutiny.”).
Carpenter, 138 S. Ct. at 2218.
In Carpenter, during a trial for multiple robberies, evidence of
historical CSLI was presented. The cell-site records placed
Carpenter’s phone near four of the robberies at nearly the exact
time they occurred. Id. at 2213. The Government obtained court
orders for the records under the Stored Communications Act, which
“permits the Government to compel the disclosure of certain
telecommunications records when it ‘offers specific and articulable
facts showing that there are reasonable grounds to believe’ that
the records sought ‘are relevant and material to an ongoing
criminal investigation.’” Id. (quoting 18 U.S.C. § 2703(d)).
The Supreme Court recognized that “the accuracy of CSLI is
rapidly approaching GPS-level precision.” Id. at 2210. The
Carpenter Court held that the tracking of a person through cell site
location information constitutes a search under the Fourth
Amendment and – like all other searches – generally requires
probable cause and a valid warrant.

26

 “Carpenter understood CSLI to present ‘many of the qualities
of the GPS monitoring ... considered in Jones’—both are ‘detailed,
encyclopedic, and effortlessly compiled’; both ‘provide[] an
intimate window into a person's life’; and, in the context of
historical information, both provide a ‘tracking capacity [that] runs
against everyone’ without any need for the police to ‘know in
advance whether they want to follow a particular individual, or
when.’ Id. at 2216-18.” United States v. Diggs, 385 F. Supp. 3d
648, 653-54 (N.D. Ill. 2019).
To be sure, the Wi-Fi tracking at issue here is typically limited
to smaller area rather than global connections that CSLI records as
in Carpenter. 8 But this only strengthens the claim for Fourth
Amendment protection. Wireless cell phone towers provide
coverage for miles until the phone finds a closer or less congested
tower. Contrarily, Wi-Fi network emitters or routers can only cover
a span of feet not miles. 9 Therefore, a Wi-Fi network typically
8

See expansive use of Wi-Fi networking discussed infra.

The average Wi-Fi router can reach up to 150 feet indoors and 300 feet
outdoors. What Is the Range of a Typical Wi-Fi Network?, Lifewire, Bradley
Mitchell, available at https://www.lifewire.com/range-of-typical-wifi-network816564 (last accessed September 16, 2020).
9

27

 requires several routers within a few feet of one another allowing
a phone to seamlessly connect from one router to another. The
small coverage provided by each router or emitter of signal allows
the network to track a cell phone ―and therefore the person― with
far more accuracy and detail than CSLI ever could.
Absent constitutional oversight, the availability of Wi-Fi
tracking would make it “relatively easy and cheap,” Jones, 565 U.S.
at 429 (Alito, J., concurring in the judgment), for the government
to pervasively track virtually any Pennsylvanian down to ten to
fifteen (10-15) feet as they move incredibly short distances. 10

While the records taken by law enforcement without a warrant in the instant
matter came from a cell phone, the holding of this Honorable Court will most
certainly not be limited to such. Technology is already advancing far more
quickly than does the law. ”The rule [this Honorable] Court adopts ‘must take
account of more sophisticated systems that are already in use or in
development.’” Carpenter, 138 S. Ct. at 2219-19 (quoting Kyllo, 533 U. S., at
36, 121 S. Ct. 2038, 150 L. Ed. 2d 94.
10

Currently, other smart devices that are worn on the body are becoming a
regular part of everyday wear. While presently not quite as ubiquitous as cell
phones, the use and reliance on wearable smart devices makes evident that
these devices are the next progression in wireless technology. These readily
used devices use the internet and Wi-Fi and can be tracked in the same
manner as cell phones. See generally The Apple Watch at
https://www.apple.com/watch/?afid=p238%7Cs2KzugfIKdc_mtid_20925qtb42335_pcrid_466241765755_pgrid_112701926601_&cid
=wwa-us-kwgo-watch-slid---Brand-AppleWatch-Avail-; see also Smart
glasses
at
https://www.wareable.com/ar/the-best-smartglasses-googleglass-and-the-rest.
28

 Those with multi-story or larger homes typically require more than
one router to cover the entire house. Therefore, the geo-location
records would reveal when a resident was in their basement or
moved to their bedroom or snuck a cigarette on their balcony.11
With uninhibited access to Wi-Fi location data the government
would be able to see the most private of movements even within a
person’s own home.
The Wi-Fi network connection here is more intrusive and
tracks a user’s movements far beyond that of the GPS monitoring
in Jones or the CSLI addressed in Carpenter. Thus, the instant
search is more detailed and intrusive than the search in Carpenter.
Yet here, law enforcement did not even seek judicial review at the
standard that the Supreme Court found to be inadequate.

While the within prayer for relief will not delve into the prurient, the
information gleaned from historical geo-tracking also gives the government a
front row seat into any and all private moments and legal but secretive actions
that people desire to keep private. See Jones, 565 U.S. at 415 (Sotomayor,
J., concurring) (quoting People v. Weaver, 12 N.Y.3d 433, 441-42, 909 N.E.2d
1195, 882 N.Y.S.2d 357 (2009) (Our cell phones accompany us on trips taken
to places we would rather keep private, such as “‘the psychiatrist, the plastic
surgeon, the abortion clinic, the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour motel, the union meeting, the
mosque, synagogue or church, the gay bar and on and on.’”)); see also
Carpenter, 138 S. Ct. at 2217 (Historical cellphone tracking lays bare
“familial, political, professional, religious, and sexual associations.”).
11

29

 The GPS monitoring in Jones provided law enforcement only
with the whereabouts of a vehicle, not of Jones’ person. The
tracking was confined to the movements of the vehicle regardless
of who was driving or who its occupants were. Law enforcement
remained blind to Jones’ movements unless he was inside the
vehicle. Vehicles are typically shared amongst members of a
household and treated as a communal asset. It is not uncommon
for an owner of a vehicle to lend the vehicle to others or leave it
parked at a location while the owner is elsewhere. Contrarily, cell
phones, are generally used exclusively by one individual who is
typically never more than a couple feet from the device. See Riley,
134 S. Ct. at 2490 (“nearly three-quarters of smart phone users
report being within five feet of their phones most of the time, with
12% admitting that they even use their phones in the shower.”).
A cell phone can no longer be thought of as a novelty or as
simply a phone.

A cell phone is, for many Americans, an

indispensable part of their lives. The devices are the first thing
that they check in the morning and the last thing they see before
they close their eyes. The devices are used for: texting, taking
30

 photographs, banking, listening to music, making purchases, social
media, reading the “newspaper” and receiving news, viewing
television and movies, digesting books, video chatting, exercise,
playing games, ordering food, finding places of interest, maps and
much, much more. 12

Cell phones go with us everywhere.

For

most, phones and their internet connection have become nothing
short of an appendage and an irreplaceable part of our lives. See
Carpenter, 138 S. Ct. at 2218 (quoting Riley, 573 U. S., at ___,
134 S. Ct. 2473, 189 L. Ed. 2d 430, 441 (“a cell phone—almost a
‘feature of human anatomy’”). While a GPS tracker can more
specifically track a car, CSLI is more precise for tracking the
whereabouts of a person. While cell phones are always on hand,
CSLI can only narrow down a user’s location to a general area.
Depending on the density of population in an area and the locations
of the towers, a person could connect to a cell phone tower twenty
(20) miles away from their location. CSLI only works to track a

https://www.gadget-cover.com/blog/what-are-the-most-popular-reasonswhy-people-use-their-smartphones-every-day;
https://www.ranker.com/list/what-you-can-do-with-a-smartphone/laurenslocum
12

31

 phone when the phone is being utilized. The phone/user must
make a conscious decision to use the phone in such a way that
requires a connection. Only once that connection is made by virtue
of placing a call, sending a text message, or utilizing data, does the
wireless company have data on the approximate location of a
device.
Contrarily, Moravian College’s Wi-Fi network has over a
thousand connection points on campus. Once a device is connected
to the Moravian network – unlike cell towers – the device maintains
a connection to the network, and therefore is tracked, regardless
of the phone being utilized. The phone is automatically tracked
merely by being powered on. According to trial testimony this can
narrow a device’s location down to ten to fifteen (10-15) feet and
track a person as they walk incredibly short distances without
utilizing the device. The warrantless Wi-Fi geo-tracking records of
Mr. Dunkins revealed 56 connection points between 12:07 a.m.
and 2:27 a.m., equating to about 24 location points per hour. (R.
62a, Pre-trial Motion Exhibit 2) Comparatively, in Carpenter, there
were an average of 101 location points per day, 138 S. Ct. at 2212,
32

 which converts to approximately 4 location points per hour. Thus
the Wi-Fi geo-tracking records of Mr. Dunkins revealed six (6)
times more location points per hour than that requiring a warrant
in Carpenter. Therefore, this type of geo-tracking is far more
intrusive than narrowing a location to within 1-20 miles only when
the operator chooses to utilize the device.
The tracking evidence used here – more so than the facts of
Carpenter – provides nearly infallible evidence unmatched by even
the best eye witness. Id. at 2219. While the Supreme Court
explained that there may be limited circumstances where both
probable cause and exigency allow for CSLI without a warrant; law
enforcement cannot be given unconstrained access into the realtime movements of every citizen simply because they reasonably
believe that it could help their case.
The Commonwealth’s position seeks to have this Court put its
imprimatur on what will become for every Pennsylvanian an
Orwellian nightmare: omnipresent government surveillance with
no judicial oversight. Mr. Dunkins most respectfully submits that
Pennsylvanians have a reasonable expectation of privacy in their
33

 movements to which the government should not have unfettered
access.
The rationale of Carpenter is analogous to the instant facts
and

as

such,

the

geo-tracking

information seized

by

the

Commonwealth without a warrant should have been suppressed.
i. The government should not avoid the warrant
requirement by narrowing the duration of the
geo-tracking of a person’s historical movements
After

cross-referencing

the

user

connected

to

Hassler

dormitory, law enforcement had Moravian IT conduct a search to
track the connections made by Mr. Dunkins’ phone between the
hours of 12:00 a.m. and 5:00 a.m. on the date of February 2nd,
2017. (R. 62, 407a) The information passed to law enforcement
showed the movements of Mr. Dunkins’ cell phone nearly every
minute during the five (5) hour period. (R. 414-17a)
In Carpenter, the Supreme Court held that held that accessing
seven days of CSLI constituted a Fourth Amendment search but
declined to “decide whether there is a limited period for which the
Government may obtain an individual’s historical CSLI free from
Fourth Amendment Scrutiny and if so, how long that period might
34

 be.” Carpenter, 138 S. Ct. 2206, 2217 n.3 (2018). The tracking
data obtained in Carpenter consisted of two separate searches. The
second, and narrower, search was the government’s request for
seven days of CSLI, which produced only two days of records
covering the period when Carpenter’s phone was roaming13 on the
Sprint network. See Carpenter, 138 S. Ct. at 2212.
The Carpenter Court decided only the time frame necessary
for the case before it was sufficient to require a warrant. To read
the Carpenter holding so narrow as to establish a seven-day line in
the sand would fail to acknowledge the true meaning of the Court’s
ruling. The Court emphasized that law enforcement should not
have an ability to track a person’s historical physical movement
simply because advancements in technology make it possible. To
read Carpenter as a bright line rule would force courts to grapple
in the future with the effect of rapidly changing phone technology,
like the increasing "proliferation of smaller and smaller [cell sites]
such as microcells, picocells, and femtocells—which cover a very

Roaming is when another carrier routes data through their cell sites.
Carpenter, 138 S. Ct. at 2212.
13

35

 specific area, such as one floor of a building, the waiting room of
an office, or a single home," In re Application for Tel. Info. Needed
for a Criminal Investigation, 119 F. Supp. 3d 1011, 1023 (N.D. Cal.
2015).
However, in failing to set a bright line rule the Court left
uncertain when law enforcement requires a warrant and when it is
free to peer into the most private movements of people’s lives. To
be sure, Carpenter made clear that people have a reasonable right
to privacy in their historical physical movements as tracked by their
cell phones. To allow law enforcement to look back in time and see
a person’s private movements without any judicial oversight simply
because they can narrow the time frame fails to protect the private,
intimate, legal activities of people.
More importantly, Mr. Dunkins respectfully submits that, as
geo-tracking

provides

such

specific

and

sensitive

location

information, a bright line rule must be imposed. Without the same,
unbridled discretion will be placed in the hands of law enforcement.
Without a bright line rule demanding that law enforcement seek
judicial review before seeking to geo-track a human being,
36

 investigators

will

have

the

unchecked

ability

to

make

determinations of when they can peek into a person’s private life
and they will do so with no oversight. 14 Furthermore, not only will
privacy interests continue to be at risk but the courts will be
inundated with litigation over how many hours of government
spying into a person’s private movements is too much.
Basing the determination as to whether warrantless Wi-Fi
geo-location tracking violates the Fourth Amendment on the length
of the time the cell phone is monitored is not a workable analysis.
Prior to Carpenter, the Florida Supreme Court addressed the issue
of basing the requirement of a warrant on the duration of the
tracking in Tracey v. State, 152 So. 3d 504, 39 Fla. L. Weekly 617
(2014). In doing so, the Tracey Court aptly stated:
It requires case-by-case, after-the-fact, ad hoc
determinations whether the length of the
monitoring crossed the threshold of the Fourth
Amendment in each case challenged. The Supreme
Court has warned against such an ad hoc analysis
on
a
case-by-case
basis,
stating,
"Nor [**39] would a case-by-case approach
Mr. Dunkins respectfully submits that it doesn’t take a huge imagination to
foresee the potential for abuse if this Honorable Court does not provide a
bright line rule that demands that law enforcement seek a warrant or court
order providing the probable cause for the request.
14

37

 provide a workable accommodation between the
needs of law enforcement and the interests
protected by the Fourth Amendment." Oliver v.
United States, 466 U.S. 170, 181, 104 S. Ct. 1735,
80 L. Ed. 2d 214 (1984). The Court in Oliver listed
substantial precedent in which the Supreme Court
"repeatedly has acknowledged the difficulties
created for courts, police, and citizens by an ad hoc,
case-by-case
definition
of
the Fourth
Amendment [*521] standards to be applied in
differing factual circumstances," with a primary
difficulty being "a danger that constitutional rights
will be arbitrarily and inequitably enforced." Id. at
181-82.
Tracey v. State, 152 So. 3d 504, 520-21, 39 Fla. L. Weekly 617
(2014). "[T]he Fourth Amendment's warrant requirement cannot
protect citizens' privacy if a court determines whether a warrant is
required only after the search has occurred, and the incursion into
a citizen's private affairs has already taken place." Id. at 519
(quoting Commonwealth v. Pitt, 2012 Mass. Super. LEXIS 39, 2012
WL 927095 (Mass. Super. Ct. Feb. 23, 2012)); see also
Commonwealth v. Pitt, 2012 Mass. Super. LEXIS 39, 2012 WL
927095 (Mass. Super. Ct. Feb. 23, 2012) (it would be "incongruous
to decide the constitutionality of a search post hoc based on the
information it produced.").

38

 Furthermore, to set an arbitrary duration of geo-tracking as
permissible without a warrant eviscerates any protection the
Framers intended in drafting the Fourth Amendment ― “discrete
acts of law enforcement are either constitutional or they are not.”
United States v. Graham, 846 F. Supp. 2d 384, 401 (D. Md. 2012).
"British search policies generally are acknowledged to have spurred
on revolutionary sentiment in [the] coloni[es]. Opposition to the
search policies centered upon the use by British customs house
officers of the writs of assistance, general warrants which allowed
officers of the crown to search, at their will, wherever they
suspected untaxed goods to be . . ." (emphasis supplied)
(footnotes omitted). Commonwealth v. Cundriff, 382 Mass. 137,
143 (1980), cert. denied, 451 U.S. 973 (1981). "[T]he colonists'
memory of the use and abuse of the writs was one of the reasons
for the adoption, by several colonies, of constitutional safeguards
regulating searches.” Commonwealth v. Blood, 400 Mass. 61, 7172, 507 N.E.2d 1029, 1035 (1987). “The antipathy of [] colonists
to the writs of assistance was forcefully expressed by James Otis
in the Massachusetts Superior Court in 1761. . . . Otis is said to
39

 have stated in his argument that the writ of assistance was 'the
worst instrument of arbitrary power, the most destructive of
English liberty, and the fundamental principles of the constitution,
that ever was found in an English lawbook. . . . It is a power that
places the liberty of every man in the hands of every petty officer.'"
Id. (quoting Cundriff, 382 Mass. At 144). According to spectator,
John Adams, “Otis’s speech was “the first scene of the first act of
opposition to the arbitrary claims of Great Britain. Then and there
the child Independence was born.”” Riley v. California, 573 U.S.
373, 403, 134 S. Ct. 2473, 2494, 189 L.Ed.2d 430, 452 (2014)
(quoting 10 Works of John Adams 247-248 (C. Adams ed. 1856)
(quoted in Boyd v. United States, 116 U. S. 616, 625, 6 S. Ct. 524,
29 L. Ed. 746 (1886))).
In like manner, Wi-Fi geo-tracking puts the personal liberty
of every person’s precise historical location in the hands of
any officer, requiring nothing more than mere curiosity. The fact
that technology now requires an individual to carry a device which
inadvertently tracks the user’s location does not make the
information of a person’s secret movements any less worthy of the
40

 protection for which the Founders fought. See Riley v. California,
573 U.S. 373, 134 S. Ct. 2473, 189 L.Ed.2d 430 (2014). What was
intolerable in 1780 remains so today.
The federal district court in Maryland expressed concern over
the very real risk that, because cell phone users tend to take their
phones with them everywhere, officers could not know in advance
whether the tracking would follow the suspect into clearly
protected areas. See In re Application of the United States, etc.,
849 F. Supp. 2d at 540; see also State v. Earls, 214 N.J. 564, 70
A.3d 630, 642 (N.J. 2013) ("[C]ell phones . . . blur the historical
distinction [**12] between public and private areas because [they]
emit signals from both places."). When this occurs, there is a
"clear[] . . . Fourth Amendment violation." Tracey, 152 So. 3d at
524; see also Jones v. United States, 168 A.3d 703, 712 (D.C.
2017). Neither law enforcement officers seeking historical geotracking location information nor a court issuing an order for access
to such information can know at the time whether the cell phone
and the person using it will be tracked into places that would,
without doubt, be protected under the Fourth Amendment. Thus,
41

 a warrant supported by probable cause must stand as the
safeguard protecting the privacies of life regardless of the duration
of the intrusion.15 Wi-Fi geo-tracking a person’s cell phone, even
for a moment, without a warrant is unconstitutional because the
detailed location of a phone as provided by Wi-Fi geo-tracking
records reveals information held private and secure. As technology
quickly moves forward, it rapidly advances the ability of law
enforcement to encroach on the privacies of individual’s lives. The
detailed tracking of Mr. Dunkins’ cell phone was exponentially more
detailed than that in Carpenter. The detailed nature of Wi-Fi
tracking allows law enforcement to require merely a short window
in order to see the movements of a person.
CSLI, however, requires a longer window of time in order to
ascertain a cell phone’s movements. Because CSLI can only place
a phone within a few miles in a general direction it is necessary for
law enforcement to obtain a CSLI records over a long period. CSLI

While not presently at issue before the Court, law enforcement’s ability to
acquire even a single point of geo-tracking without the oversight of a warrant
runs afoul of the very foundation of ideals for which this nation fought to
protect.
15

42

 cannot show if a cell phone travels 30 or 300 feet because a single
tower is providing coverage to a phone while it moves within a
short distance. It is only when a cell phone’s travel is more
significant that it connects to multiple towers and provides law
enforcement with the necessary puzzle pieces to estimate the
user’s location. Conversely, Wi-Fi “towers” have a much shorter
range of coverage and requires far more connection points to cover
the same amount of area as one cellular tower. As Wi-Fi tracking
can narrow a cell phone’s location down to only a few feet, even a
short timeframe can give law enforcement a retroactive bird’s eye
view

into

a

person’s

private

life.

“This

location

tracking

technique does substantially more than binoculars or flashlights;
it enables officers to see farther than even the walls of a home—it
pierces through space and time to pinpoint a cell phone’s location
and, with it, the phone’s owner.” State v. Muhammad, 194 Wn.2d
577, 588, 451 P.3d 1060, 1069-70 (2019). It is akin to placing a
tracking chip inside of every human being and allowing law
enforcement to tap into those records based upon nothing more
than curiosity.
43

 To allow such private information to be so easily accessible
by law enforcement without any oversight whatsoever – as it was
in the present matter – is an affront to the Fourth Amendment and
the Supreme Court’s decision in Carpenter. Mr. Dunkins prays that
this Honorable Court will set a bright line rule demanding that
before law enforcement uses historical Wi-Fi geo-tracking to peer
into a person’s movements, they must produce the requisite level
of probable cause to be reviewed by a neutral and detached judicial
magistrate.
c. Wi-Fi networking provides unique
infringements on people’s right to privacy
i. Cell phones utilize Wi-Fi network connections in
lieu of cellular connections
Contrary to the Superior Court’s reasoning, Wi-Fi wireless
networks function like a far more detailed cellular network rather
than a security camera. Wi-Fi networks provide a better alternative
to cellular networks. Wi-Fi network connection provides a stronger

44

 signal than cellular connections and is a cost-effective measure
utilized by phone users16 and network providers alike.
Many cell phone network providers prioritize the connection
to a Wi-Fi network when available rather than a cellular tower.
Xfinity Mobile 17 service, a leading cellular provider, “is designed to
automatically connect to Xfinity Wi[-]Fi hotspots when a hotspot is
available unless the customer changes device settings to inhibit
such functionality.” Xfinity Mobile Broadband Disclosures, available
at https://www.xfinity.com/mobile/policies/broadband-disclosures
(last visited 9/17/2020). Xfinity Mobile has over 18 million Wi-Fi
hotspots in the United States available to Comcast’s over 26 million
customers with many available to non-customers as well. See
https://wifi.xfinity.com/faq.php (last visited 9/17/20).
Many cell phone users connect to Wi-Fi networks whenever possible (usually
the phone does so automatically) so as to use less cellular data. Cell phone
plans are priced based mostly on the amount of data used each month. When
a cell phone is connected to Wi-Fi the data used is not deducted by the monthly
allowance, and therefore the user can opt for a less expensive plan.
16

This is common practice among people with lower incomes as a way to save
money. As a result, if the government was able to uninhibitedly obtain Wi-Fi
geo-location information it would disparately impact low income individuals.
“Xfinity WiFi is a network of hotspots that allows you to connect to the
Internet at fast WiFi speeds around town all while saving on your wireless data
plan.
17

45

 Xfinity’s vast wireless network is just one example of how WiFi networks provide the same geo-tracking capabilities and
concerns

as

CSLI

addressed

in

Carpenter.

Cell

phones

automatically connect to the Wi-Fi network when available just by
the nature of being powered on. If law enforcement is allowed to
freely obtain Wi-Fi geo-location information those 26 million
Comcast users and countless others are being denied the
protections afforded to them by the Fourth Amendment as
explained by the Supreme Court in Carpenter. Whether a cell
phone receives service through a cellular tower, Wi-Fi, LTE, 3G,
4G, 5G, or any other new and improved connection, the fact
remains that a cell phone ― not how it receives signal ― has
become an integral part of people’s lives as to require a warrant to
track

its

movements

because

doing

so

tracks

the

user’s

movements.18

It bears repeating: it is not suggested that the government should not
have the ability to access the location information created by the use and
possession of a cell phone. Mr. Dunkins prays only that this Honorable Court
will demand that before the government is given such information that they
must produce the requisite probable cause before a neutral and detached
judicial magistrate.
18

46

 ii. Wi-Fi geo-location records eliminate the
anonymity safeguard provided by a cellular
tower dump 19
Cellular tower dumps provide the government with only phone
numbers of the phones connected during a certain time. In a busy
city this could result in thousands of phone numbers. In order for
law enforcement to reveal the identity of the person associated
with a phone number in a tower dump they must identify the
number of investigation and provide a valid legal demand on the
network provider.
Conversely, when law enforcement obtains all connections
made to a Wi-Fi router it reveals identifying information. Law
enforcement currently has unimpeded access to the identities of all
the people in a certain area at any given time. Moreover, due to
the limited coverage area provided by each Wi-Fi router, law
enforcement has the ability to easily reveal exactly who was within
several feet of a certain location. Such access eliminates the

In a "tower dump," cell service companies provide data identifying all the
cell phone numbers that used particular cell phone antennas at a specific
location during a specific window of time. See Carpenter, 138 S. Ct. at 2220.
19

47

 anonymity that courts relied upon to allow the warrantless search
of a pen registry.20
This type of unfettered access to people’s movement as
tracked by Wi-Fi networking is apparent in the matter presently
before the Court. Law enforcement uninhibitedly conducted several
searches of information on the Wi-Fi network. The results of these
searches not only exposed the locations and movements of Mr.
Dunkins’ phone but the first three searches – which the lower
courts mistakenly compared to a tower dump – revealed far more
private information. The un-redacted user names produced by the
search allowed law enforcement to see the late night locations of
38 students and the identity of each by name. Moreover, it
revealed who was not sleeping in their dorm rooms and also the
names of two female students who were sleeping/present in the
rooms of other students.

Thus, the worst case scenario of a

"Indeed, a law enforcement official could not even determine from the use
of a pen register whether a communication existed. These devices do not hear
sound. They disclose only the telephone numbers that have been dialed – a
means of establishing communication. Neither the purport of any
communication between the caller and the recipient of the call, their identities,
nor whether the call was even completed is disclosed by pen registers." United
States v. New York Tel. Co., 434 U.S. 159, 167 (1977).
20

48

 person’s private and intimate life choices becoming open to
governmental review – with no prior judicial scrutiny – actually
occurred here. Searches like those conducted in the case sub judice
are more invasive than the search conducted in Carpenter and yet
unlike in Carpenter, here there was no judicial oversight at all. 21
Had law enforcement conducted a cellular tower dump as
opposed to a Wi-Fi network “tower dump” it would have revealed
hundreds, if not thousands, of anonymous phone numbers.
Whichever tower law enforcement sought records from would have
encompassed the entire college campus and beyond. The Wi-Fi
network, on the other hand, allowed law enforcement to isolate
and reveal the identities of the people inside a specific building.
The Fourth Amendment to the United States Constitution
embodies the colonial revulsion against searches by executive
officers without a warrant or under broad administrative warrants,
or general warrants, that had been used in England and the writs

The Carpenter Court held the search violated the Fourth Amendment despite
the Government obtaining court orders pursuant to the Stored
Communications Act, requiring a showing that there were reasonable grounds
to believe that the records sought were relevant and material to an ongoing
criminal investigation. Carpenter, 138 S. Ct. at 2213.
21

49

 of assistance used in the Colonies. 22 If the Court’s ruling is upheld
it would eliminate the protections of the Fourth Amendment this
nation was founded on. The government will have a green light to
access any digital footprint it desires or the historical movement of
anyone whether there is reason to suspect their involvement in
criminal activity or a mere hunch. The Court’s decision here is the
digital equivalent of the invasive tyranny our founding fathers
fought so hard to be free from – the unrestricted oversight and
prying eye of the crown into citizens lives, homes, and most private
affairs. If allowed to stand, this ruling would eviscerate the
protections of the Fourth Amendment, leaving it only as a relic and
sad reminder of a day – before the digital age – when the
government was restrained from complete unregulated access to
the inner most privacies of its citizens’ lives. Given a Wi-Fi
connection’s unique ability to identify and track a person’s
movements and location, the government must be required to seek
a warrant supported by probable cause and reviewed by a neutral

See, e.g., Stanford v. Texas, 379 U.S. 476, 482-85 (1965); Boyd v. United
States, 116 U.S. 616 (1886)(discussion of overbreadth and general warrants).
22

50

 and detached judicial magistrate in order to protect people’s Fourth
Amendment right to be secure in their movements.
d. The third party doctrine does not negate Mr.
Dunkins’ reasonable expectation of privacy in
his physical movements
The Superior Court erroneously stated that Mr. Dunkins was
not subject to a warrantless search because “he specifically
consented to Moravian’s internet use policy”. 23 Commonwealth v.
Dunkins, 2020 PA Super 38. The Superior Court relied on the
language within the student handbook which read as follows:
Logging in to or otherwise connecting to the
campus network implies acceptance of this
Moravian College and Moravian Theological
Seminary policy.
The institution’s computing equipment and network
resources are dedicated to Moravian business to
enhance and support the educational mission of
Moravian College. These resources include all
computers, workstations and multi-user computer
systems along with local area networks and

There is no evidence in the record to support the conclusion that Mr. Dunkins
specifically signed any waiver. The Commonwealth’s only evidence of this
alleged “specific consent” was the testimony of Vice President for Human
Resources, John B. Conrad, responsible for “anything to do with employment
at the college.” (R. 34a) When asked about the college’s requirement of
students to sign the consent, Mr. Conrad stated “To my knowledge, yes. I
don’t complete that – I’m not part of the student affairs group that completes
that consent.” (R. 37a)
23

51

 wireless networks as well as connections to other
computer networks via the Internet.
[A]ny data transmitted over institutional assets or
connections made through institutional assets are
included. The institution has the right to inspect
information stored on its system at any time, for
any reason, and users cannot and should not have
any expectation of privacy with regard to any data,
documents, electronic mail messages, or other
computer files created or stored on computers
within or connected to the institution’s network. All
Internet data composed, transmitted, or received
through the institution’s computer system is
considered part of the institution’s records and, as
such, subject at any time to disclosure to
institutional officials, law enforcement, or third
parties.
Commonwealth v. Dunkins, 2020 PA Super 38 (quoting (R. 3447a)). The Trial Court held that the “Computer Resource” plain
language “informs users of the campus wireless network that any
connections made to that network are subject to inspection by the
College at any time, as well as to disclosure to law enforcement,
and that users have no expectation of privacy in that electronic
information.” The Superior Court asserted that given the “plain
language of the policy . . . [Mr. Dunkins] agreed to surrender some
privacy rights”. Commonwealth v. Dunkins, 2020 PA Super 38
(emphasis added).
52

 The Superior Court’s reasoning – citing only to opinions of
other jurisdictions – is archaic and countermands the clear holding
of the Supreme Court in Carpenter, 138 S. Ct. 2206. In Carpenter,
as with Mr. Dunkins, third-parties were able to collect data simply
by the cell phone’s connection to the third-party’s network. These
connections unintentionally allow the third-party to track the
movements of the cell phone.
The Carpenter Court reasoned that there is a right to privacy
in a person’s physical movements as captured through CSLI,
despite the third-party doctrine, which is “different” than any other
shared information. The Court states:
[The]
rationale
underlying
the
third-party
doctrine—voluntary exposure—[fails to] hold up
when it comes to CSLI. Cell phone location
information is not truly “shared” as one normally
understands the term. In the first place, cell phones
and the services they provide are “such a pervasive
and insistent part of daily life” that carrying one is
indispensable to participation in modern society.
Riley, 573 U.S., at ––––, 134 S.Ct., at 2484.
Second, a cell phone logs a cell-site record by dint
of its operation, without any affirmative act on the
part of the user beyond powering up. Virtually any
activity on the phone generates CSLI, including
incoming calls, texts, or e-mails and countless
other data connections that a phone automatically
makes when checking for news, weather, or social
53

 media updates. Apart from disconnecting the phone
from the network, there is no way to avoid leaving
behind a trail of location data. As a result, in no
meaningful sense does the user voluntarily
“assume[ ] the risk” of turning over a
comprehensive dossier of his physical movements.
Smith, 442 U.S., at 745, 99 S.Ct. 2577.
We therefore decline to extend Smith and Miller to
the collection of CSLI. Given the unique nature of
cell phone location information, the fact that the
Government obtained the information from a third
party does not overcome [defendant]'s claim to
Fourth Amendment protection. The Government's
acquisition of the cell-site records was a search
within the meaning of the Fourth Amendment.
Carpenter, 138 S. Ct. at 2219–20.
The Supreme Court expressly articulated that location
tracking of a person’s cell phone is unlike the sharing of any other
type of data. Therefore, allowing the government to use a cell
phone as a tracking beacon should be shocking to this Court and
would be chilling to the freedoms enjoyed by every Pennsylvanian.
A ruling such as the Superior Court’s ruling in this matter is akin to
the school attaching ankle monitors to each student and turning
the information over to police without a warrant. Id. at 2218.
i.

The unique information provided by Wi-Fi geotracking is so unlike any other type of data that
54

 law enforcement must be required to obtain a
warrant supported by probable cause
The Superior Court erroneously relied on its prior holding that
“[i]f a person is aware of, or freely grants to a third party, potential
access to his computer contents, he has knowingly exposed the
contents of his computer to the public and has lost any reasonable
expectation of privacy in those contents” in analyzing the
applicability

of

the

student

handbook.

Commonwealth

v.

Sodomsky, 939 A.2d 363, 369 (Pa.Super. 2007).
A valid consent search can be conducted without a warrant or
any cause or belief that the individual is involved in criminal
activity. However, where the police rely on consent to justify a
search, they must show a fully voluntary act by the suspect. See
Amos v. United States, 255 U.S. 313 (1921); United States v.
Robertson, 736 F.3d 677 (4th Cir. 2013); Commonwealth v.
Newton, 943 A.2d 278 (Pa.Super. 2007).
Mere acquiescence upon a show of authority is not consent.
Kaupp v. Texas, 538 U.S. 626 (2003); United States v. Robertson,
736 F.3d 677 (4th Cir. 2013); Commonwealth v. Gibson, 638 A.2d
55

 203 (Pa. 1994). Consent is an intentional relinquishment of a
"known right[.]" Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d
203, 207 (Pa. 1994).
The Carpenter Court made clear that a user agreeing to share
information

with

a

third

party

does

not

equate

to

the

relinquishment of tracking the user’s physical movements. The
historical tracking of a person’s movements has been held by the
highest court in the land to be unique and unlike the contents of a
phone or records in the typical sense. The Carpenter Court stated
that by a user consenting to share some data, “in no meaningful
sense does the user voluntarily ‘assume[ ] the risk’ of turning over
a comprehensive dossier of his physical movements.” Carpenter at
2220 (2018) citing Smith, 442 U. S., at 745, 99 S. Ct. 2577, 61 L.
Ed. 2d 220.
The Superior Court’s ruling here would invalidate the
Supreme

Court’s

Carpenter

holding

and

would

give

law

enforcement an end-run around judicial oversight. The Superior
Court’s opinion stands for an “implie[d] acceptance” to “surrender
some privacy right” equating to the consent of the government’s
56

 complete infiltration into a person’s historical movements. Such a
ruling would create omnipresent government surveillance for any
Pennsylvanian who uses a third party to connect to the internet.
The freedoms that we enjoy as Americans and Pennsylvanians
would be obliterated and we would begin the journey to the
nightmare dystopian society of 1984.
Therefore, a notice like the one in the Student Handbook,
cannot be said to encompass notice that by using the Wi-Fi
students are allowing law enforcement access to their every
movement and private and intimate choices on campus. No such
notice should relieve Pennsylvanians of their right to privacy and
the freedom of their personal movements. The Superior Court
relied on the Student Handbook in finding that Mr. Dunkins did not
have a reasonable expectation of privacy. The plain language of
the policy does not inform a reader that he/she is consenting to
unfettered government access to their history of movements. Mr.
Dunkins most respectfully submits that the ruling was plain error
and eviscerates the holding of Carpenter.

57

 The fundamental constitutional right to be secure in one’s
person must ― despite the rapidly evolving world of technology ―
persevere and stand the test of time. Before law enforcement
seeks historical geo-tracking information, they must be required to
produce probable cause to a neutral and detached judicial
magistrate.

CONCLUSION
For the foregoing reasons, the judgement of the Superior
Court should be reversed.

Respectfully submitted,

/s/ Michael J. Diamondstein
MICHAEL J. DIAMONDSTEIN, P.C.
Attorneys for Alkiohn Dunkins
Two Penn Center
Suite 900
1500 John F. Kennedy Boulevard
Philadelphia, Pennsylvania 19102
(215) 940-2700
(215) 940-2701 (fax)
mjd@michaeldiamondstein.com

58

 /s/ Stephanie R. Esrig
Stephanie R. Esrig
MICHAEL J. DIAMONDSTEIN, P.C.
Attorneys for Alkiohn Dunkins
Two Penn Center
Suite 900
1500 John F. Kennedy Boulevard
Philadelphia, Pennsylvania 19102
(215) 940-2700
(215) 940-2701 (fax)
sre@michaeldiamondstein.com

59

 CERTIFICATE OF SERVICE
A true and correct copy of this brief was served upon the
following parties in accordance with law:
Pennsylvania Supreme Court
Office of the Prothonotary
Pennsylvania Judicial Center
601 Commonwealth Ave.
P.O. Box 62575
Harrisburg, PA 17106
Rebecca Kulik, Assistant District Attorney
Office of the District Attorney
Northampton County Courthouse
669 Washington Street
Easton, Pennsylvania 18042

/s/ Michael J. Diamondstein
Michael J. Diamondstein

60

 CERTIFICATIONS
I certify that this brief contains 12,375 words total. I further
certify that this filing complies with the provisions of the Public
Access Policy of the Unified Judicial System of Pennsylvania: Case
Records of the Appellate and Trial Courts that require filing
confidential information and documents differently than nonconfidential information and documents.

/s/ Michael J. Diamondstein
Michael J. Diamondstein

61

 Appendix A

62

MICHAEL J. DIAMONDSTEIN, P.C.

Attorney at Law 

ID. No. 78973 Attorneys for
Suite 900 Alkiohn Dunkins
Two Penn Center

1500 John F. Kennedy Blvd.

Philadelphia, 19102

(215) 940?2700

 

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY,


COMMONWEALTH OF 
C.P. DOCKET NO.

v.
ALKIOHN DUNKINS

 

Court:

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

AND NOW, Alkiohn Dunkins, by and through his attorney Michael J.

Diamondstein, assigns the following issues for review by the Superior
- - - :5 g2:53

Lil?

 

no
1. Whether the evidence at trial was insufficient to sustain"?

L.

   

the Commonwealth?s burden with respect to all charges as there was .
*Insuf?oient ev1dence to indicate that Mr. With

another to commit the instant offense.

 

63

 

 

2. Additionally, Mr. Dunkins ehallenges whether there was
suf?cient evidence as to his identity as one of the perpetrators and/or

conspirators.

3. Whether the verdict was against the weight of the evidence
as while there was evidence that the Mr. Dunkins? cellphone was in the
vicinity of the Robbery, there was no evidence that Mr. Dunkins had
the phone at the time of the Robbery nor was there any evidence that
Mr. Dunkins was present at the scene and the witness who proffered

that Mr. Dunkins admitted to a Robbery was unworthy of belief.

4. Whether the Court erred by denying Mr. Dunkins? Motion
to Suppress the cell site location information purportedly tracking his
cellphone and/or his Motion for Extraordinary Relief requesting the

same.

5. Whether the Court erred by denying Mr. Dunkins? request

to interview the juror consistent with the sealed hearing notes.

a. Whether the Court erred by refusing to provide Mr.
Dunkins with a copy of the notes of testimony for said in

camera hearing.i

 

The Court has Ordered and explained that it will provide the record ofthe sealed conference 
and bearing to the Superior Court but not to undersigned counsel or Mr. Dunkins. Mr. Dunkins is
in agreement that the Court providing the notes and record to the Superior Court will be
sufficient. However, Mr. Dunkins will be incapable of meeting his burden ol?ensuring that a full
and complete reproduced record is provided to the Superior Court as he has been denied access
to the complete record. Additionally, the Commonwealth will be forced to write a response

2
e4

 

 

Respectfully submitted,

Michael J. Diamondstez?n
Michael J. Diamondstein
Attorney for Alkiohn Dunkins

 

without the record. Equally, without access to the complete record and transcript ol?the
proceedings, Mr. Dunkins will be required to brie'l?this issue relying only on memory and notes

ofcounsel.

3
65

 

 

CERTIFICATE OF SERVICE

And now on the 27th day of March, 2019 Michael J. Diamondstein,
being duly sworn according to law, deposes and says that a COpy of the

Within document was served upon the following individuals UPON

RECEIPT OF A STAMPED COPY:

Superior Court
Prothonotary

530 Walnut St, Suite 315
Philadelphia, PA 19106

The Honorable Paula A. Roscioli
Northampton County Courthouse
669 Washington Street

Easton, 18042

Rebecca Kulik, Assistant District Attorney
Of?ce of the District Attorney

Northampton County Courthouse

669 Washington Street

Easton, 18042

Clerk of Courts

Northampton County Courthouse
669 Washington Street

Easton, 18042

b/Mjb

 

MICHAEL J. DIAMONDSTEIN

66

 

 

VERIFICATION

The undersigned veri?es that the foregoing matter is true and correct to
the best of his knowledge, information and belief. The undersigned
understands that the statements herein are made subject to the penalties

of 18 4904, relating to unsworn falsi?cation to authorities.

I certify that this ?ling complies with the provisions of the Public
Access Policy of the Uni?ed Judicial System of Case
Records of the Appellate and Trial Courts that require ?ling
con?dential information and documents differently than non?

con?dential information and documents

/s/M?Sb

 

MICHAEL J. DIAMONDSTEIN

 

Appendix 

68

ftp-r. 9.20? llirl?AM Judge Rescioli No.6l46 P. 2.54

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COWOMWEALTH OF 
CRIMINAL DIVISION

COMMONWEALTH 


r: 
. est-Te 
$371 5?15: Tr;
VI 35' ?g A
tse- 

9.33." to i
ALICIOHN DUNKINS, $33-33Defendant. e132?
52 2

STATEWNT PURSUANT TO RULE QF
APPELLATE PROCEDURE 1925(a)

AND NOW, this 9th day of April 2019, we hereby issue the following statement
pursuant to 1925(3): 
On March 19, 2019, Defendant ?led timely Notice of Appeal with respect to the
judgment of sentence entered in this matter on January 4, 2019, as made ?nal by our Order of
Court denying his Post?Sentence Motion on March 1, 2019. On March 22, 2019, ?ere entered
an Order directing Defendant to ?le of record and serve upon the undersigned a statement of
the errors complained of on appeal, within 21 days of the date thereof. Defendant timely ?led
such. a statement on April 3, 2019. Therein, Defendant raises sis: assertions of error, ?ve of
which mirror the issues raised by Defendant in his Post-Sentence Motion. Whereas we 
eddressed those issues in. disposing of Defendant?s Post-Sentence Motion on March 1, 2019,
We hereby refer to and fully incorporate that Order and Statement of Reasons in response to

Defendant?s assertions of error in his Statement of Matters Complained of on Appeal. We

69

 

Prior. Judge Rosticii No.6i46 F.

further rely upon the reasoning set forth in suppert of our Orders of April 26, 2018 and
December 7, 2.018 disposing of Defendant?s Motion to Suppress and Motion for Extraordinary

Relief, respectively, to which 114 of Defendant?s Statement is addressed. No further statement

on our part is required with respect to 1?5 of Defendant?s Statement.

However, we ?nd that we must eddress of Defendant?s Statement, which reads
as follows: ?Whether the Court erred by re?tsing to provide Mt. Duukins with a copy of the
notes of testirmny for ssid in camera hearing [of October 19, 2018].? The footnote to this
paragraph further reads:

The Court has [o]rdered and explained that it will provide the record of the
sealed conference and hesrmg to the Superior Court but not to undersigned
counsel. or Mr. Dtmkins. Mr. Dunkins is in agreement that the Court providing
the notes and record to the Superior Court will ?be suf?cient. However, Mr.
Duckies will he incapable of meeting his burden of ensuring that a full and
complete reproduced record is provided to the Superior Court as he has been
denied access to the complete record. AdditiOnally, the Commonwealth Will be
forced to write a response nothout the record. Equally, without access to the
complete record and. transcript of the proceedings, Mr. Dunkins will be required
to brief this issue relying only on memory and notes of cotmsel. 

In addition to be incorrsistent-w insofar as Defendant both claims that the Court erred and claims





I

that he ?is in agreemen'? Defendant?s assertion of error and supporting footnote contain

misstatements of fact to the extent that he contends that we ?refused to provide [him] with a
copy of the?notes Upon receipt of the Defendant?s Motion to Unsesl, the Court
contacted counsel merrier to dctenuine the purpose of the request. When counsel indicated
that the purpose of the motion was to seems that the Superior Court menial have an Opportunity
to ?View the transcript of the in camera conference of October 19, 2018, the of?ce of the
undersigned comnmnicated with the Northampton County Clerk of Court, Criminal Division

Page 2 of 3

7O

 

 9.2039 lOtl?ei?v?l Judge Rearieli l?xlgl?l?r? 4/4

lend the Prethenotery of the Superior Ceurtte ensure that: the sealed record weuld be sent to
the Superior Court as part of the record 011 appeaL and that. the assigned panel would have the
transcript available for review. When this irtfomietien was relayed by the office of the
undersigned to counsel, counsel indicated thet he did not require the transcript fer another
purpose, and that a hearing on the motion would therefore be unnecessary. Same is re?ected
in the text ef our Order of March 20, 2019, whereiri we denied the motion because 'rmsealing
the record was not necessary to ensure appellate review and unsettling was not requested for
any other purpose. Fer Defendant to suggest new that we refused to the record is
disingenuous, as the issue was met reached on the merits as a direct result ?31? eeunsel?s

representations.

BY THE COURT:

    

PAULA A. ROSCIOL, .

Page 3 of 3

71

Appendix 

72

:3 '1 own": I 2? 
v.23l8 R?saioi: No,4968

IN THE COURT COMMON PLEAS 0F NORTHAMPTON COUNTY
WEALTH OF 

CRIMEQAL DIVISION 
E-
OF 
No. 

V. mqwiE
7" 3: '13
3&3; :x
ALKIOHN is; 
U, 
U1
Defendant.
ORDER OF COURT

 

AND NOW, this 26th day of April 2018) upon consideration ofDofendant?s Omnibus
Pretrial Motion, and following a. hearing, it is hereby ORDERED that Defendant?s Motion to
Suppress is DENIED, for The reasons set forth below. It is further ORDERED that
Dofenclant?s Motion to Compel Discovery is by agroomont of the;
Comnoiiwealth,

STATEMENT OF REASONS

In his Motion to Bunions chailenges awssrantless search
and seizure conducted by Moravian College campus police Of?cer Thomas Appleman of
Wireless internet conneotion records maintained by Moravian The records at issue

re?ect the times when and locations where Wireless Intemetaenabled devices comociod to the
Coilogo?s Wireless network. Such connections are only made by wireless 

devices that are. logged in to the College?s wireless network using oi?odontials issued to

 

 

actual search of the electronic records was conducted, at the request of Of?cer Appieman,
by Christopher Laird, Director of Systems Engineering at Moravian Collage-i.

73

 

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323iPitl Jai?ge 5150'48368 ti

students, faculty, and staff of the College? The records of these Wireless connections are
in the ordinary course of business by Moravian College?s information technology
department. More Speci?cally, Defendant seeks to suppress the evidence obtained by Of?cer
indicating that a wireless Internet?enabled device was coonected to certain wireless
network points on the Moravian College campus in the early morning hours of February 2,
2017 utilizing the usemarne and credentials issued to Defendant as a snident at the College.
As a threshold matter, we must ?rst consider whether Defendant herein has standing to
challenge the search at issue. To have standing, Defendant must possess a reasonable
eXpectation of privacy in the area searched.
An expectation of privacy will he found to errist when the individual exhibits an
actual or subjective expectation of privacy and that expectation is one that -
society is prepared to recognize as rcas enable. In determining whether a person's
espectation of privacy is legitimate or reasonable, the totality of the
circumstances must be considered and the detennination will intimately rest
upon a balancing of the societal interests involved.
Commonwealth v. Wall, 890 A.2d 419, 42?. (Pa. Super. 2005). Importantly, When 
a warrantiess search, it is Defendant. who bears the burden of proof to Show that he had a
reasonable expectation of privacy in. the area searched. Commonwealth v. 62 Add.
1028 (Pa. Super. 2013).

At the hearing in this matter, 0111:). Conrad, Vice President of Human Resources for

Moravian College, testified that all students are required, upon matriculation to Moravian

 

3 At a "Liser? discretion, devices can automatically connect to different wireless network connection
points as the user moves throughout the College campus, Without the need to log in repeatediy, in
order to maintain an ongoing Wireless Internet connection.

Page .2 of 4

74

 





"l
N)

College, to sign so acknowledgement of the Student Handbook wherein numerous College
policies, procedures, and regulations are outlined. Students are required to sbide by the rules
outlined. therein. Within the Student Handbook, there is a policy titled ?Computing Resources?
that provides, in pertinent part:

Logging in to or othemdse connecting to the campus network implies
of this Moravian College and Moravian Theological Seminary
policy.

as 2k s: s: :14
The institution?s computing equipment and network; resources are dedicated to
Motaviaa business to enhance and support the educational mission ofMoraViau
College. These resources include all computers, werkstations and tnultiauser
computer systems closer with local area networks and Wireless networks as well
as connections to other computer networks Via the Intemet.

[Alny data transmitted over institutional assets or connections made throtgh
institutional assets are included. The institution has the tight to inspect
information stored on its system at any time, for any reason, and users cannot

and should not have an"? exoectatiou of privacy with tested to as? data

documents, electronic mail messages, or other computer tiles crested or stored

on computers within or cotmected to the institution?s network. All Internet data,

composed, ti'snsnutted, or received through the institution? 3 computer system is

considered part of the institution?s records and, as such, sublect at any time to
disclosute to of?cials, law enforcement, or third parties.
Defendant?s Exhibit 1, 1313.26 (emphasis added).

We believe that a plain reading of this ?Computing Resources? policy in Moravian
College?s Seldom? Handbook informs users of the campus Wireless network that any
connections made to that network ate subject to inspection by the College at anytime, as well
as to disclosure to law enforcement, and that users have no expectation of privacy in that

electronic information. Moreover, Defendaot offered no additional eVidence that would lead

us to conclude that he had an espectation of privacy in the records at issue. Thus, we ?nd dist

Page 3 of 4

75

 

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0.1033} 15sz $3555: hoSr?oii ?1.31133 E, 

the totality of the circumstances leads Us to conclude that Defendant had no reasonable
expectation ofptivecy with respect to the records at issue. ?Smog Commonwealth v. Sarina-2316,19;
939 A.2d 363, 369 (Pa Super. 2007) (?If a person is aware of, or freely grants to at third party,
potential access to his computer contents, he has knowingly exposed the contents: of his
computer to the public and has lost any reasonable expectation of privacy in those contents?)
oiling United States v. Simonn 206 F.3d 392 (4th Cir. 2000) (Where employee was informed
that his intemet activity Would be scrutinized by employer, he had no "legitimate expectation
of privacy in his internet activity); United States v. Kit-2g, 2006 WL 342125 3 2006)
(defendant imowingiy expoeed personal ?les to public by linking to network after being
informed that personal files could and would be searched even though he attempted to protect
?les from search); Lawn v. State, 172 753 (Tex. App. 2005) (defendant did not have
reasonable expectation of privacy in files on work computer which were becke d. up at request
of people in authority at defendant's company). Accordingly, we ?nd that Defcndant?s. Motion

to Suppress must fail.

THE COURT:

PAULA A. ROSCIOLI, J.

Page 4 of 4

76

 

Appendix 

77

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF 
CRIMINAL DIVISION

COMMONWEALTH or 
No. 
V. 7:113:53 :79

DUNKINS,

Defendant.

 

ORDER OF COURT

AND NOW this 7th day December 2018, upon consideration of Defendant?s Motion

for Extraordinary Relief, and following oral argument thereupon, it is hereby ORDERED that
the motion is DENIED, for the reasons discussed below.

STATEMENT OF REASONS

Defendant Alkiohn Dunkins (Defendant) was convicted on September 5, 2018 of

robbery, conspiracy to commit robbery, receiving stolen property, and simple assault in

connection with an armed robbery that took place on February 2, 2017 in the Hassler dormitory

on the campus of Moravian College (Moravian) in Bethlehem, Immediately

prior to his scheduled sentencing on November 30, 2018, Defendant made an oral Motion for

Extraordinary Relief.1 A written version of the motion was filed on November 26, 2018.

 

1 Recognizing that Pa.R.Crim.P. indicates that the Court ?shall not delay the sentencing
proceeding? in order to decide a motion for extraordinary relief, the Court intended to make an
oral ruling on the motion and proceed with sentencing on November 30, 2018. However,
Defendant requested a continuance of the sentencing in order to make an additional investigation
prior thereto. We note that Defendant expressly waived any issue with regard to the timeliness of
his sentencing hearing. We note further that the sentencing was originally scheduled for October

78

In his Motion for Extraordinary Relief, Defendant asks this Court to vacate his
conviction and grant him a new trial. The basis for Defendant?s motion is his contention that
Carpenter v. United States, 585 U.S. (2018), decided June 22, 2018, controls the issue
previously decided by this Court in ruling on his Omnibus Pretrial Motion on April 26, 2018.
The question raised in Defendant?s Omnibus Pretrial Motion more speci?cally in a motion
to dismiss was whether law enforcement officers unlawfully obtained records from Moravian
College regarding connections to its Wi?Fi network in the absence of a warrant. Finding that
Defendant lacked a reasonable expectation of privacy in the records at issue and therefore
lacked standing to challenge the warrantless search thereof, we denied his Omnibus Pretrial
Motion seeking suppression of that evidence.

In Carpenter, the United States Supreme Court considered the question of whether a
warrant is required in order for law enforcement to obtain cell site location information (CSLI)
from wireless carriers. Briefly, CSLI consists of time-stamped records, maintained by wireless
carriers for their business purposes, of a cell phone?s connections to ?cell sites,? which are
antennas to and from which connection signals are transmitted for the communication of voice
calls, text messages, and other data by cell phones. The cell sites are located at known
geographical points, and the locations are recorded in the time?stamped records. When an
individual is in possession of a cell phone that is turned on, by virtue of the workings of the

phone?s constant connection to the nearest cell site and a carrier?s collection of CSLI, ?he has

 

19, 2019, but was continued at Defendant?s request after he obtained new counsel after trial, as
new counsel required time to review the record in preparation for sentencing.

Page 2 of6

79

effectively been tailed every moment of every Id. slip op. at 14. Given the realities of
modern life and the ubiquity of cell phone use, the collection of CSLI is, essentially, a ?detailed
chronicle of a person?s physical presence compiled eveiy day, every moment, over several
years.? Id. at 16?17. Holding that ?an individual maintains a legitimate expectation of privacy
in the record of his physical movements as captured through the Carpenter court
concluded a warrant is required in order for law enforcement to obtain that information. Id. at
11 (emphasis added).

In a similar manner, the Moravian i?Fi network consists of over 1,000 connection
points located at known geographical points on the Moravian campus, to and from which
signals are communicated for the purpose of data transmission, and an analysis of this data
enables one to compile of a log of a Wi?Fi network user?s historical travels around the
Moravian campus as his Wi~Fi enabled device communicated with the various network
connection points. In arguing his Motion for Extraordinary Relief, Defendant contends that we
must extend the reasoning in Carpenter to this case and conclude that, because law
enforcement obtained information about Defendant?s connections to the Moravian Wi~Fi
network without a warrant, the evidence derived therefrom should have suppressed, and that
the information of that evidence at trial was erroneous.

At trial, the Commonwealth presented the testimony of Christopher Laird, Director of
Systems Engineering at Moravian. Mr. Laird testified that between 1:30 am. and 2:30 am. on
February 2, 2017, during which time two males committed the robbery at issue in the Hassler

dorm, devices utilizing three Moravian Wqui accounts were connected to Wi?Fi network

Page 3 of6

8O

access points in the Hassler dorm. Of those three users, one was a male. That male was Alkiohn
Dunkins, Defendant herein. N.T. 9/5/18, pp.218?219. Other data was also obtained ?om the
warrantiess search, demonstrating that a device utilizing Defendant?s Moravian Wi?Fi user
account was connected to various i network access points in and around the Wilhelm and
Hassler dorms during the robbery time frame in such a manner demonstrating travel from the
Wilhelm dorm, where Defendant lived, to the Hassler dorm and then back to Wilhelm. That
evidence was not introduced at trial by the Commonwealth, but was brought out on cross?
examination by Defendant?s attorney, Phil Viglione, Esq. NT. 9/5/18, pp.220~225.

While Defendant asks us to conclude that the Moravian Wi-Pi network connection
information at issue is identical to CSLI and should be afforded the same protections as those
directed in Carpenter, we are of the opinion that the Moravian i information is of a
materially different character. We are not faced with a circumstance in which the Moravian
Wi?Fi network is capable of disclosing the movements of an individual at all hours of the day
regardless of where he travels. Quite to the contrary, the network is, by all accounts, con?ned
to the campus of Moravian College. Unlike CSLI, which can monitor the whereabouts of an
individual anywhere at any time while in possession of a cell phone as are most peeple in
the modern age at all times the Moravian Wi?Fi network is confined to the finite geographic
space of a private college campus, similar to a Wi??Fi network that may be made available to
patrons shopping in a shopping mall, or a security camera network that may exist at such a
mall or at the College. Thus, the historical movements of a Moravian Wi?Fi network user may

be gleaned ?om the network data only insofar as the user was on the campus. We do not

Page 4 of 6

81

believe that the holding of the Carpenter decision was intended to apply to such narrow
circumstances. Notably, the Carpenter court expressly stated in its decision that it did not ?call
into question conventional surveillance techniques and tools, such as security cameras.?
Carpenter, supra, at 18.

Also distinguishing CSLI from the Moravian WinFi network is the voluntariness of
Defendant?s constant connection to the ?vVi?Fi network. Whereas ?a cell phone logs a cell-site
record by dint of its Operation, without any af?rmative act on the part of the user beyond
powering up,? and therefore, ?[a]pa1t from disconnecting the phone from the network, there is
no way to avoid leaving behind a trail of location data,? users of the Moravian i network
must af?rmatively select the option for their i enabled devices to remain connected at all
times to the Wi~Fi network for a seamless connection while on the move. Id. at 17; NT.
4/19/18, pp.29, 34; NT. 9/5/18, p.212. Moreover, as we noted in our April 26, 2018 Order, all
users of the Moravian Wi?Fi network must comply with the College?s network use policy,
which expressly indicates that users cannot and should not have any expectation of privacy
with reSpect to any connections to or data transmitted over the network.

Thus, while the Carpenter court held that an individual has an expectation of privacy
in his physical movements and that a cell phone user does not voluntarily assume, in a
meaningful way, the risk that his physical movements may be discerned by law enforcement
obtaining historical CSLI without a warrant, we conclude that a user of the Wi-Fi network at
Moravian College who chooses to maintain a constant connection to the network does assume

that risk, and, moreover, that his usage of said network is materially different from ordinary

Page 5 of6

82

cell phone usage. For this reason, we conclude that Carpenter is inapposite here, and that

Defendant?s Motion for Extraordinary Relief must be denied.

BY THE COURT:

I,


W7 

PAULA A. ROSCIOLI, J.

Page 6 of 6

83

Appendix 

84

J-A28040-19
2020 PA Super 38
COMMONWEALTH OF PENNSYLVANIA
v.
ALKIOHN DUNKINS
Appellant

:
:
:
:
:
:
:
:
:

IN THE SUPERIOR COURT OF
PENNSYLVANIA

No. 1003 EDA 2019

Appeal from the Judgment of Sentence Entered January 4, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001577-2017
BEFORE:

PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:

FILED FEBRUARY 12, 2020

Appellant Alkiohn Dunkins appeals the judgment of sentence entered by
the Court of Common Pleas of Northampton County after a jury convicted
Appellant of Robbery, Conspiracy to Commit Robbery, Receiving Stolen
Property, and Simple Assault.1

Appellant claims the trial court erred in

refusing to suppress wireless internet connection records that were obtained
by campus police at Moravian College in a warrantless search. Appellant also
challenges the sufficiency and weight of the evidence supporting his
convictions. We affirm.
On February 2, 2017, at approximately 2:00 a.m., on the Moravian
College campus in Bethlehem, Pennsylvania, two men wearing ski masks
pretended to be campus police to gain access to the dorm room shared by
Greg Farina and William Reilley, a Moravian student known to sell marijuana
____________________________________________
*
1

Former Justice specially assigned to the Superior Court.
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3925(a), and 2701(a)(1), respectively.

85

 J-A28040-19

on campus. Notes of Testimony (“N.T.”), Trial, 9/4/18, at 31-38; 9/5/18, at
152-57. When Farina opened the dorm door, one of the masked men punched
Farina, causing him to fall.

Id.

The masked men held the students at

gunpoint and demanded marijuana and the key to Reilley’s footlocker. Id.
The masked men accessed the footlocker and took approximately $1,000 in
cash as well as a jar of marijuana.

Id.

Before leaving the dorm, the

perpetrators hit Reilley and Farina on the sides of their heads. Id.
Several hours later, around 11 a.m., Reilley reported the robbery to
campus officials.

N.T., 9/4/18, at 39-40; 9/5/18, at 159.

Campus Police

Officer Thomas Appleman requested that Moravian’s Director of Systems
Engineering, Christopher Laird, analyze its wireless network (WiFi) data to
compile a list of the students logged on to the network near the wireless access
point in the dormitory building where Reilley and Farina resided.2 N.T., Pretrial motion Hearing, 4/19/18, at 40-43; N.T. Trial, 9/5/18, at 215-19.
Campus officials discovered, at the time of the robbery, there were only three
individuals logged onto the campus WiFi at that location that did not reside in
that building. N.T., 9/5/18, at 218-19. Two of the three WiFi users were
female. The male user was Appellant, who was also a Moravian student. N.T.
Hearing, 4/19/18, at 44, N.T. 9/5/18, at 219.

____________________________________________

Laird indicated that Moravian utilizes approximately 1,100 wireless network
access points placed throughout the campus in order to offer its students and
faculty nearly seamless Internet connection. N.T., 4/19/18, at 27-29.
2

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 J-A28040-19

Thereafter, Officer Appleman provided this data to Detective James
Ruvolo of the Bethlehem Police Department, who took over the investigation.
Reilley told Detective Ruvolo that Appellant previously “robbed” him by taking
marijuana from him without payment in return. N.T., 9/4/18, at 41, 49. When
Appellant was interviewed, he denied being in the Hassler dormitory since
October 2016. Id. at 54.
Colin Zarzecki, who lived in in the dorm room next to Appellant’s, told
police that Appellant came to his room after midnight on February 3, 2017,
“fanned out” a display of cash, and bragged that he obtained this money in a
recent robbery. N.T., 9/5/18, at 102, 107. Appellant boasted that he and
another individual posed as campus police officers to gain access to the
victim’s room and subsequently stole drugs and money from the victim’s
footlocker. Id. at 102-105, 124-25.
After Appellant was arrested and charged with the aforementioned
offenses, Appellant filed a suppression motion, arguing that the campus police
conducted an illegal search in obtaining the campus WiFi log-on data without
first obtaining a warrant. At one of the suppression hearings held by the trial
court, Moravian Systems Engineering Director Laird explained that, in order
to utilize Moravian campus WiFi, each student must log on to the network with
their individual username and password.

However, at their initial log-on,

students may choose to have their devices automatically log on to the campus
WiFi without entering their credentials again. N.T., 4/19/18, at 27.

-387

 J-A28040-19

The parties also noted that Appellant had signed the Moravian Student
Handbook when enrolling at the college, indicating that he accepted and
understood Moravian’s policies, including the following technology rules:
Logging in to or otherwise connecting to the campus network
implies acceptance of this Moravian College … Policy. …
***
The institution’s computing equipment and network resources are
dedicated to Moravian business to enhance and support the
educational mission of Moravian College. These resources include
all computers, workstations, and multi-user computer systems
along with local area networks and wireless networks via the
Internet.
***
[A]ny data transmitted over institutional assets or connections
made through institutional assets are included. The institution
has the right to inspect information stored on its system at any
time, for any reason, and users cannot and should not have any
expectation of privacy with regard to any data, documents,
electronic mail messages, or other computer files created or
stored on computers within or connected to the institution’s
network. All Internet data composed, transmitted, or received
through the Internet’s computer system is considered part of the
institution’s records and, as such, subject at any time to disclosure
to institutional officials, law enforcement, or third parties…
N.T. 4/19/18, at 10-23; Defense Exhibit 1 (emphasis added). On April 26,
2018, the trial court denied Appellant’s suppression motion.
At the conclusion of Appellant’s trial, on September 5, 2018, the jury
convicted Appellant of Robbery, Conspiracy to Commit Robbery, Receiving
Stolen Property, and Simple Assault. On November 21, 2018, Appellant filed
a motion for extraordinary relief, which was subsequently denied. On January
4, 2019, the trial court imposed an aggregate sentence of five to ten years’

-488

 J-A28040-19

imprisonment. On January 10, 2019, Appellant filed a post-sentence motion,
which the trial court denied on March 1, 2019. Appellant filed a timely notice
of appeal on March 19, 2019 and complied with the trial court’s direction to
file a Concise Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
1. Whether the Court erred by denying [Appellant’s] Motion to
Suppress the cell site location information purportedly tracking
his cellphone and/or his Motion for Extraordinary Relief
requesting the same?
2. Whether the evidence at trial was insufficient to sustain the
Commonwealth’s burden with respect to all charges as there
was insufficient evidence to indicate that [Appellant] conspired
with another to commit the instant offense?
a. Whether there was sufficient evidence as to [Appellant’s]
identity as one of the perpetrators and/or conspirators?
3. Whether the verdict was against the weight of the evidence as
while there was evidence that [Appellant’s] cell phone was in
the vicinity of the Robbery, there was no evidence that
[Appellant] had the phone at the time of the Robbery nor was
there any evidence that [Appellant] was present at the scene
and the witness who proffered that [Appellant] admitted to a
Robbery was unworthy of belief?
Appellant’s Brief, at 10.
We first review Appellant’s claim that the trial court erred in denying his
suppression motion. Our standard of review is as follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion 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 Commonwealth prevailed before the
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 J-A28040-19

suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense 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, we are bound by these findings and may
reverse only if the court's legal conclusions are erroneous. Where,
as here, 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 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 our plenary review.
Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations
and quotation marks omitted).

In addition, “our scope of review from a

suppression ruling is limited to the evidentiary record that was created at the
suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670
(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).
Appellant contends the campus police conducted an illegal search by
accessing Moravian’s wireless internet connection records without first
obtaining a warrant. Appellant claims the officers invaded his right to privacy
in his physical movements through cell site location information (CSLI).
The Fourth Amendment of the U.S. Constitution protects “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.3 Our courts
____________________________________________

While not explicitly stated in the record, the parties agree that Moravian
Police Officer Appleman was deemed a state actor subject to the Fourth
Amendment as he acted as an agent of the state in accessing the college’s
wireless information. See Commonwealth v. Yim, 195 A.3d 922, 927
(Pa.Super. 2018), appeal denied, 204 A.3d 919 (Pa. 2019) (quoting Burdeau
v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921))
3

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 J-A28040-19

have recognized that “[t]he protection of the Fourth Amendment does not
depend on a property right in the invaded place but does depend on whether
the person who claims the protection of the Amendment has a legitimate
expectation of privacy in the invaded place. Commonwealth v. Cruz, 166
A.3d 1249, 1254 (Pa.Super. 2017) (quoting Commonwealth v. Brundidge,
533 Pa. 167, 172–73, 620 A.2d 1115, 1118 (1993)).4
Appellant claims this case is controlled by Carpenter v. U.S.,
___U.S.___, 138 S.Ct. 2206 (U.S. June 22, 2018), in which the U.S. Supreme
Court found law enforcement officials improperly acquired Carpenter’s CSLI
without a warrant. In that case, Carpenter was a suspect in a string of armed
robberies. Officers compelled Carpenter’s wireless carriers to provide a record
of Carpenter’s historical CSLI for a four-month period, allowing the officers to
____________________________________________

(emphasizing that “[t]he Fourth Amendment's protection against unlawful
searches and seizures applies only to actions by the government, as “[i]ts
origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority[.]”
At the suppression hearing, Officer Appleman indicated that as a
Moravian College campus police officer, he was responsible for ensuring
campus safety and investigating crimes. N.T., 4/19/18, at 58. Officer
Appleman indicated that all Moravian police officers have Act 120 certification
(or an applicable waiver) and are permitted to carry firearms, make arrests,
and initiate criminal proceedings. Id. at 58-60. Officer Appleman indicated
that campus officers were permitted to take any action “that a police officer
for a municipality or a state policeman could do.” Id. at 59.
4 Appellant has not argued that he is entitled to greater protection under the
Pennsylvania Constitution. See Commonwealth v. Edmunds, 526 Pa. 374,
586 A.2d 887, 895 (1991) (setting forth a four-factor analysis which an
appellant must analyze to present a claim for higher protection under the
Pennsylvania Constitution).

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 J-A28040-19

track Carpenter’s movements during the time when the robberies had
occurred.5 Carpenter, 138 S. Ct. at 2212.
Although the Court recognized an individual has a reduced expectation
of privacy in information knowingly shared with another, the Court found the
“nature of the particular documents sought” must be considered to determine
whether there is a legitimate expectation of privacy.

Id. at 2219.

The

Supreme Court recognized that modern cell phones generate time-stamped
records known as CSLI when the phone continuously scans for the best signal
from the closest cell site and connects to that cell site.

Id. at 2211. Such

information is collected by wireless carriers for business purposes to improve
their network and to bill customers who incur “roaming” charges through
another carrier’s network.

Id. The Supreme Court also noted that an

electronic device will log CSLI simply through the user’s operation of the phone
on the carrier network “without any affirmative act on the part of the user
beyond powering up.” Id. at 2220.
Emphasizing that “cell phones and the services they provide are such a
pervasive and insistent part of daily life that carrying one is indispensable to
participation in modern society,” the Supreme Court concluded that the
officers invaded Carpenter’s reasonable expectation of privacy in his physical
____________________________________________

Law enforcement in Carpenter obtained court orders to access to this CSLI
without a warrant under the Stored Communications Act which allowed the
government to request certain telecommunications records when it “offers
specific and articulable facts showing that there are reasonable grounds to
believe” that the records sought are “relevant and material to an ongoing
investigation.” 18 U.S.C. § 2703(d).
5

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 J-A28040-19

movements by collecting the historical CSLI without a warrant as the search
provided “a comprehensive chronicle” of the appellant’s physical movements
over a four-month period. Id. at 2211, 2219-20.
However, while the Supreme Court held that “an individual maintains a
legitimate expectation of privacy in the record of his physical movements as
captured through CSLI,” the Supreme Court pointed out that the holding in
Carpenter was not simply about “using a phone” or “a person’s movement at
a particular time.”

Id. at 2217, 2220.

Further, the Supreme Court

emphasized that its decision was “narrow” and indicated that it was not
expressing a view on real-time CSLI or “tower dumps” (“a download of
information on all the devices that connected to a particular cell site during a
particular interval”). Id. at 2220. The Supreme Court added that its decision
was not calling in to question “conventional surveillance techniques and tools,
such as security cameras … or business records that might incidentally reveal
location information.” Id.
In this case, Appellant fails to acknowledge the Carpenter decision did
not invalidate “tower dump” requests by law enforcement to identify all of the
devices that were connected to one particular cell site during a particular
interval. This action by campus police in this case is akin to a “tower dump”
request as campus security sought general network connection information
from one of Moravian’s wireless access points near the location of the robbery
at the time it occurred.

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 J-A28040-19

The campus police did not target a specific individual or attempt to track
an individual’s movements but instead merely sought to compile a list of all
the devices signed on to the WiFi in the Hassler dorm at the time of the
robbery.

Using the process of elimination, campus officials were able to

determine that, at the time of the robbery, Appellant was the only male
student logged on to campus WiFi at the Hassler dorm who did not reside in
that location.
Appellant also does not appreciate the difference between the CSLI
obtained in Carpenter and the WiFi data obtained in this case. Whereas CSLI
tracks an individual’s movements at all times of the day regardless of where
he travels, the WiFi data in this case is only collected when an individual logs
onto the campus wireless network and is present on the Moravian campus.
We agree with the trial court’s observation that the Moravian WiFi
network is confined to the college campus and offered as an available option
to students and faculty.

When college officials seek to determine which

students are logged on to the network near a particular wireless access point
at a particular time, the private wireless network functions similarly to a
security camera that may exist at the college.

As such, the decision in

Carpenter does not invalidate the warrantless search in this case.6
____________________________________________

In attempting to suppress the limited wireless network information obtained
in this case, Appellant does not recognize the distinction between a specific
request for a compilation of an individual’s historical CSLI and a general
request for “tower dump” information or similar data from a particular cell
6

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Moreover, Appellant cannot reasonably argue that he was subjected to
an illegal warrantless search under the Fourth Amendment when he
specifically consented to Moravian’s internet use policy, which clearly stated
that individuals who choose to utilize the campus computer system and
wireless network provide authorization for the college to collect and disclose
all internet data composed, transmitted, or received through the campus
computer system and its network connections.
This Court has held that “[i]f a person is aware of, or freely grants to a
third party, potential access to his computer contents, he has knowingly
exposed the contents of his computer to the public and has lost any reasonable
expectation of privacy in those contents.” Commonwealth v. Sodomsky,
939 A.2d 363, 369 (Pa.Super. 2007). See also U.S. v. Simons, 206 F.3d
392 (4th Cir. 2000) (finding employee had no legitimate expectation of privacy
in his internet activity when the employer’s policy clearly stated that all
internet activity would be audited, inspected, and monitored by the employer).
Moreover, other jurisdictions have recognized that “[a] defendant can
voluntarily consent in advance to a search as a condition of receiving
____________________________________________

tower or wireless access point for a particular time. Appellant does not
specifically argue that the decision in Carpenter, which the Supreme Court
characterized as “narrow,” should be extended to require law enforcement to
obtain a warrant before seeking “tower dump” information or similar requests.
In the absence of meaningful analysis from Appellant on this issue, we decline
to review this issue further. See Commonwealth v. Roney, 622 Pa. 1, 28,
79 A.3d 595, 610 n. 12 (2013) (finding sub-issue to be waived for lack of
development with argument, citation to authority, or analysis).

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contracted services.” United States v. Adkinson, 916 F.3d 605, 610 (7th
Cir. 2019), cert. denied, 139 S. Ct. 2762, 204 L. Ed. 2d 1146 (2019) (citing
Medlock v. Trustees of Indiana University, 738 F.3d 867 (7th Cir. 2013)).7
In Adkinson, the United States Court of Appeals for the Seventh Circuit
found that the appellant provided voluntary consent to a search of his cell-site
information as a condition of using a phone serviced by T-Mobile, as the
parties’ use agreement authorized T-Mobile to disclose such information
“when reasonably necessary to protect its rights, interests, property, or
safety, or that of others.” Id. As such, the Seventh Circuit found T-Mobile
was permitted to give law enforcement “tower dump” information it obtained
from cell sites near one of its stores that was robbed at gunpoint.8 Id.

____________________________________________

We consider the Simons, Adkinson, and Medlock decisions from federal
circuit courts to be persuasive authority. This Court has provided that:
7

absent a United States Supreme Court pronouncement, the
decisions of federal courts are not binding on Pennsylvania state
courts, even when a federal question is involved.
When
considering a given issue, however, we prefer Third Circuit
decisions to those of other federal circuits, to discourage litigants
from ‘crossing the street’ to obtain a different result in federal
court than they would in Pennsylvania court. If, however, the
Third Circuit has no law on a given question, we may seek
guidance in the courts of appeals and district courts in other
circuits.
Graziani v. Randolph, 856 A.2d 1212, 1218 (Pa.Super. 2004) (quoting
Werner v. Plater–Zyberk, 799 A.2d 776, 782 (Pa.Super. 2002)).
8 The Seventh Circuit also found that T-Mobile’s disclosure of CSLI to law
enforcement was permissible under the private search doctrine and was not
invalidated by the decision in Carpenter, which did not apply warrantless
“tower dump” requests. Adkinson, 916 F.3d at 611.
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Similarly, in Medlock, the Seventh Circuit reasoned that Medlock had
not been subjected to an illegal search of his dorm room by resident leadership
when he had given explicit consent to have his room searched for contraband
and other evidence for any violations of the health and safety codes as a
condition of Medlock being permitted to live in an on-campus dormitory.
Medlock, 738 F.3d at 872 (7th Cir. 2013) (observing that Medlock could have
lived off campus but instead “chose to trade some privacy for a dorm room”).
Likewise, prior to the robbery in this case, Appellant signed a
“Computing Resources” policy indicating that he understood that, in exchange
for the privilege of accessing Moravian’s WiFi network, Moravian had the right
to collect, inspect, and share internet data transmitted over institutional
assets or connections made through institutional assets. N.T. 4/19/18, at 1023; Defense Exhibit 1.

The policy explicitly stated that “logging into or

otherwise connecting to the campus network implies acceptance of this
Moravian … Policy.” Id.
We agree with the trial court’s finding that the plain language of the
policy “informs users of the campus wireless network that any connections
made to that network are subject to inspection by the College at any time, as
well as disclosure to law enforcement, and that users have no expectation of
privacy in that electronic information.” Trial Court Opinion, 4/26/18, at 3.
As such, Appellant agreed to surrender some privacy rights to have his
cell phone access Moravian’s WiFi network to assist him in his pursuit of a
college degree at Moravian. Appellant was not required to log in or to maintain
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a constant connection to the campus WiFi network, but could have chosen to
have his device access the internet through a wireless carrier or simply signed
off the Moravian wireless network temporarily to avoid transmitting location
data. For the foregoing reasons, Appellant was not entitled to suppression of
the wireless network data that was lawfully obtained by campus police.
Appellant also challenges the sufficiency of the evidence supporting his
convictions. Our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence and
substitute our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's
guilt may be resolved by the fact-finder unless the evidence
is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Leaner, 202 A.3d 749, 768, (Pa.Super.
2019) (citation omitted). To reiterate, the jury, as the trier of
fact—while passing on the credibility of the witnesses and the
weight of the evidence—is free to believe all, part, or none of the
evidence. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super.
2014) (citation omitted). In conducting review, the appellate court

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may not weigh the evidence and substitute its judgment for the
fact-finder. Id. at 39-40.
Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa.Super. 2019).
As noted above, Appellant was convicted of robbery, conspiracy to
commit robbery, and related offenses. To sustain a robbery conviction, the
Commonwealth must show that the defendant “in the course of committing a
theft, … threatens another with or intentionally puts him in fear of immediate
serious bodily injury.”

18 Pa.C.S.A. § 3701(a)(1)(ii).

Further, criminal

conspiracy is defined as follows:
A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903.
Appellant specifically claims there was insufficient evidence to show he
was one of the perpetrators who committed the charged crimes, as the
prosecution could not definitively prove Appellant was the individual that was
in possession of his phone near the victim’s dorm at the time of the robbery.
Appellant asserts that the Commonwealth was required to present records of
calls or text messages to prove that Appellant was the individual in possession
of the phone during the relevant time period.

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We acknowledge that “cellular phones are not always exclusively used
by the person to whom the phone number is assigned.” Commonwealth v.
Koch, 39 A.3d 996, 1005 (Pa.Super. 2011). However, as noted above, a
perpetrator’s identity may be established with circumstantial evidence.
Baumgartner, supra.

This Court has recognized that “[e]vidence of

identification need not be positive and certain to sustain a conviction.”
Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa.Super. 2016) (citing
Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa.Super. 2008)).
As noted above, Appellant was considered a suspect in the target
offenses after Moravian network access records revealed that Appellant was
the only male student who did not reside in the Hassler dorm that had a device
signed onto the Moravian WiFi network on that particular network access point
at the time of the robbery.
The prosecution presented additional evidence to corroborate the
identity of the individual in possession of Appellant’s cellphone near the
victim’s dorm room at the time of the robbery. Colin Zarzecki, Appellant’s
neighbor, told police that Appellant came to his room the morning of the
robbery, “fanned out” a display of cash, and bragged that he had just robbed
another student on campus. Appellant told Zarzecki that he and another
individual had posed as campus security officers to gain access to the victim’s
dorm room and had obtained drugs and money out of the victim’s footlocker.
Id. at 102-105, 124-25.

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In addition, when Reilley was interviewed by police, he acknowledged
that he knew Appellant from a previous encounter where Appellant had
“ripped him off” by taking marijuana from him without payment. N.T., 9/5/18,
at 41, 49. We agree with the trial court’s assessment that there was sufficient
evidence to show Appellant was the one of the perpetrators in the robbery.
In the alternative, Appellant also argues that there was insufficient
evidence that he conspired with another individual to commit robbery. We
are guided by the following principles:
To convict a defendant of conspiracy, the trier of fact must find
that: (1) the defendant intended to commit or aid in the
commission of the criminal act; (2) the defendant entered into an
agreement with another (a “co-conspirator”) to engage in the
crime; and (3) the defendant or one or more of the other coconspirators committed an overt act in furtherance of the agreed
upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal
conspiracy, which is what distinguishes this crime from accomplice
liability, is the agreement made between the co-conspirators.
Mere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to establish
that a defendant was part of a conspiratorial agreement to commit
the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his coconspirator. Direct evidence of the defendant's criminal intent or
the conspiratorial agreement, however, is rarely available.
Consequently, the defendant's intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
the relations, conduct or circumstances of the parties or overt acts
on the part of the co-conspirators. Once the trier of fact finds that
there was an agreement and the defendant intentionally entered
into the agreement, that defendant may be liable for the overt
acts committed in furtherance of the conspiracy regardless of
which co-conspirator committed the act.

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Commonwealth v. Golphin, 161 A.3d 1009, 1018–19 (Pa.Super. 2017)
(citations and quotation marks omitted).
The record in this case contains evidence showing that Appellant
planned and executed the robbery with another individual. The conduct of the
perpetrators demonstrated they had devised a scheme to commit the robbery
as both men wore ski masks to disguise their faces and pretended to be
campus police officers to gain access to the dorm room of a student known to
sell marijuana. While one man threatened the victim, Reilley, with a firearm,
the other perpetrator obtained Reilley’s key and stole $1,000 from Reilley’s
footlocker.

The perpetrators also some marijuana from Reilley’s desk and

then hit both men in the head before escaping the scene. As a result, we
agree with the trial court’s assessment that there was sufficient evidence to
support Appellant’s conviction for conspiracy to commit robbery.
Lastly, Appellant contends that his convictions are against the weight of
the evidence. Our standard of review is as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses.
Commonwealth v. Johnson, 542 Pa. 384, 394, 668 A.2d
97, 101 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90,
136 L.Ed.2d 46 (1996). An appellate court cannot substitute
its judgment for that of the finder of fact. Commonwealth
v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206
(1982). Thus, we may only reverse the lower court's verdict
if it is so contrary to the evidence as to shock one's sense
of justice. Commonwealth v. Hawkins, 549 Pa. 352, 368,
701 A.2d 492, 500 (1997), cert. denied, 523 U.S. 1083, 118
S.Ct. 1535, 140 L.Ed.2d 685 (1998).

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Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 672–73
(1999). Moreover, where the trial court has ruled on the weight
claim below, an appellate court's role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on the weight
claim. Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa.2003)
(citations omitted).
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003).
Specifically, Appellant’s weight claim is centered on his assertion that
the testimony of prosecution witness Colin Zarzecki was not credible.
Appellant points out that Zarzecki waited 21 days after the robbery to tell
police that Appellant had confessed to the robbery of Reilley’s dorm room,
only to give conflicting testimony at Appellant’s preliminary hearing that
Appellant had not told Zarzecki anything about the robbery. After Zarzecki
admitted he lied under oath at the preliminary hearing, he was convicted with
lying under oath.
At trial, Zarzecki admitted he delayed reporting Appellant’s confession
as he had reservations about incriminating Appellant, who was his teammate
on the Moravian football team. N.T. Trial, 9/5/18, at 100, 109-110. Zarzecki
admitted that he lied during his testimony at the preliminary hearing because
he was intimidated after seeing other Moravian football teammates had come
to support Appellant at the preliminary hearing. Id. at 112-115. Zarzecki
indicated that he became “panicky,” “upset,” and “extremely nervous” as he

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recalled a similar experience when he was younger during which he was
threatened by another individual at gunpoint. Id. at 115-118.
While Appellant argues that Zarzecki’s testimony was unworthy of belief
due his admission of untruthfulness and subsequent conviction of a crimen
falsi offense for lying under oath at the preliminary hearing, we decline
Appellant’s invitation to reassess the credibility of the prosecution witnesses
and reweigh the evidence at trial.

As it was exclusively within the jury’s

province to weigh these matters, the jury was free to believe Zarzecki’s
testimony. Champney, supra. As such, we conclude that the trial court did
not abuse its discretion in denying Appellant’s weight of the evidence claim.
For the foregoing reasons, we affirm.
Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/20

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 Appendix 

105

M.D. Appeal Dkt.
45 - 2020

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA,
Respondent
v.
ALKIOHN DUNKINS,
Petitioner

: No. 118 MAL 2020
:
:
: Petition for Allowance of Appeal
: from the Order of the Superior Court
:
:
:
:
:
:

ORDER

PER CURIAM
AND NOW, this 4th day of August, 2020, the Petition for Allowance of Appeal is
GRANTED. The issue, rephrased for clarity, is:
Whether the trial court erred by denying Mr. Dunkins’ Motion to Suppress
the cell site location information and/or his Motion for Extraordinary Relief
requesting the same under the Fourth Amendment to the United States
Constitution?

106