Com. v. Norris, J., Com. v. Norris, J. No. 713 MDA 2016

In 2009 police obtained a search warrant for Norris’s home seeking, among other items, a telephone answering machine and tapes during an investigation of alleged sexual offenses.
Executing the warrant, officers seized microcassette tapes from a bookshelf near a telephone/answering machine; Corporal Filarsky listened to portions of three tapes and heard apparent recorded conversations.
The tapes did not contain messages from the alleged victim but instead contained Norris’s recorded conversations with school officials; Norris was charged with three counts of interception of oral communication and convicted by a jury in 2012.
Norris’s trial counsel moved to suppress the tapes but did not argue the specific claim that police lacked probable cause or a new warrant to play the tapes once their contents suggested crimes other than the original investigation.
Norris pursued post-conviction relief (PCRA), arguing trial counsel was ineffective for failing to preserve that warrant/probable-cause argument; the PCRA court dismissed his petition and this appeal followed.

Issue	Plaintiff's Argument (Norris)	Defendant's Argument (Commonwealth)	Held
Whether police needed a new warrant to listen to seized audiotapes when, after hearing part of them, they suspected a different crime	Once officers realized tapes contained other crimes, they should have gotten a new warrant before playing them further	Original warrant for ‘‘telephone answering machine and tapes’’ authorized seizure and listening because tapes could contain evidence of the original investigation	Court held original warrant sufficed; listening to tapes was permissible because contents could not be known without playing them in full
Whether the plain view doctrine justified playing/listening without a new warrant	Plain view/likelihood of other crimes required new authorization; Carey supports limitation when file contents clearly indicate different crime	Tapes are not like computer files visible in a directory; unlike Carey, contents of tapes are unknown without listening	Court distinguished Carey and rejected a plain-view limitation here
Whether trial counsel was ineffective for failing to raise/preserve the warrant/probable-cause argument on appeal	Counsel’s failure to raise the specific warrant-play claim was deficient and prejudicial	Counsel cannot be ineffective for not pursuing a meritless claim; the underlying warrant claim lacked arguable merit	Court found no arguable merit to the suppressed-warrant claim, so counsel was not ineffective; PCRA denial affirmed

United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (opening files after seeing initial file may require a new warrant when contents clearly indicate a different crime)
Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007) (officers may inspect documents seized under a warrant when only inspection can determine relevance to the authorized search)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)