Com. v. Sperber, T., 707 WDA 2016

Background

Sperber, a registered sex offender on parole for 2002 sexual offenses, was supervised by Agent Wolfe and subject to parole conditions permitting warrantless searches of person, property, and multimedia devices and prohibiting possession of internet-capable cell phones.
In August 2014 parole office received an anonymous tip (and prior reports from other parolees) that Sperber had a smartphone and accessed social media; Agent Wolfe confronted Sperber during a scheduled visit.
Sperber emptied his pockets, produced a non-smart phone, denied hiding anything in his car, and consented to a vehicle search; agents found an Android smartphone in his car.
Sperber provided the phone’s password; Wolfe unlocked it and discovered images of minor females, leading to criminal charges for possession of child pornography and criminal use of a communication facility.
Sperber filed a motion to suppress arguing detention and searches lacked reasonable suspicion and that any consent was invalid; the suppression court denied relief and Sperber was convicted after a non-jury trial and sentenced to an aggregate 25–50 years.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether parole agents had reasonable suspicion to detain/search Sperber	Commonwealth: anonymous tip corroborated by other parolees and agent’s experience provided reasonable suspicion	Sperber: detention and subsequent searches lacked reasonable suspicion; consent involuntary	Court: Totality of circumstances (tip + multiple informants + prior history + parole conditions) established reasonable suspicion; denial of suppression affirmed
Whether consent to search car/phone was voluntary and valid	Commonwealth: Sperber expressly consented and provided password; search within parole conditions	Sperber: any consent was product of unlawful investigatory detention/coercion	Court: No evidence of coercion; consent valid and within parole supervision scope
Scope of parole search authority over electronic devices	Commonwealth: parole condition expressly allowed access to computers/multimedia devices	Sperber: condition (and its enforcement) improperly restricted rights, especially internet access	Court: Condition valid for purposes of parole search here; broader First Amendment challenges must be raised in prior case via PCRA and were waived here
Applicability of Packingham and retroactivity to parole condition	Sperber: modern internet restrictions may implicate Packingham	Commonwealth: Packingham not raised earlier and does not automatically apply to parole condition here	Court: Packingham noted but not dispositive; challenge to parole condition belongs in PCRA of prior sentence and was waived on direct appeal

Key Cases Cited

Commonwealth v. Griffin, 24 A.3d 1037 (Pa. Super. 2011) (standard of review for suppression appeals)
Commonwealth v. Chambers, 55 A.3d 1208 (Pa. Super. 2012) (parolees have diminished Fourth Amendment protections)
Commonwealth v. Edwards, 874 A.2d 1192 (Pa. Super. 2005) (parolees cede certain constitutional protections in exchange for early release)
Commonwealth v. Colon, 31 A.3d 309 (Pa. Super. 2011) (warrantless parole searches permitted on reasonable suspicion)
Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011) (reasonable suspicion assessed under totality of the circumstances)
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) (limits on punitive aspects of Megan’s Law provisions)
Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2014) (distinguishing custodial interrogation from routine parole encounters; Miranda implications)
Packingham v. North Carolina, 137 S. Ct. 1730 (U.S. 2017) (First Amendment considerations for broad prohibitions on sex offenders’ access to social media)
Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011) (retroactivity and preservation rules for new-law claims on direct appeal)
Commonwealth v. Yockey, 158 A.3d 1246 (Pa. Super. 2017) (challenge to internet-access sentencing condition waived if not preserved at sentencing)