Com. v. Thomas, C.

J-S11003-26 2026 PA Super 209 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLINTON M. THOMAS : : Appellant : No. 429 WDA 2025 Appeal from the Judgment of Sentence Entered March 12, 2025 In the Court of Common Pleas of Fayette County Criminal Division at No: CP-26-CR-0001597-2023 BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J. OPINION BY STABILE, J.: FILED: September 21, 2026 Appellant, Clinton M. Thomas, appeals from the judgment of sentence entered on March 12, 2025, by the Court of Common Pleas of Fayette County under which he was sentenced to an aggregate six to 12 years imprisonment for his convictions on the possession and dissemination of child sexual abuse material (“CSAM”) and use of a communication facility to do so. He challenges the denial of his suppression motion and the admissibility and sufficiency of evidence. Upon review, we affirm Appellant’s convictions for sexual abuse of children (possession),1 and criminal use of a communication facility2 but reverse his conviction for sexual abuse of children (dissemination)3. We therefore vacate the judgment of sentence, remand for resentencing on Counts 1-20, and 22, and grant a new trial on Count 21. ____________________________________________ 1 18 Pa.C.S.A. § 6312(d). 2 18 Pa.C.S.A. § 7512(a). 3 18 Pa.C.S.A. § 6312(c). J-S11003-26 On August 18, 2023, Appellant was charged with 20 counts of sexual abuse of children (possession) and one count each of sexual abuse of children (dissemination) and criminal use of a communication facility. This matter originated when Google and Facebook reported CSAM to the National Center for Missing and Exploited Children4 (“NCMEC”) through NCMEC’s CyberTipline5. The CyberTipline reports were sent from NCMEC to the Pennsylvania State Police (“PSP”) via the Internet Crimes Against Children (“ICAC”) network.6 Upon receipt of this information, PSP Corporal Nathan Brown, the Coordinator of the Southwestern Pennsylvania Computer Crimes Unit, began an investigation. The information in the CyberTipline reports contains, inter alia, usernames, e-mail addresses, telephone numbers, IP addresses, and identification of CSAM. N.T. Trial, 12/3/24, at 36. Based on this information, ____________________________________________ 4 As more fully discussed, infra, “[t]he National Center for Missing & Exploited Children is a private, non-profit 501(c)(3) corporation whose mission is to help find missing children, reduce child sexual exploitation, and prevent child victimization.” See https://www.missingkids.org/footer/about. 5 “NCMEC’s CyberTipline is the nation’s centralized reporting system for the online exploitation of children. The public and electronic service providers can make reports of suspected online enticement of children for sexual acts, child sexual molestation, child sexual abuse material, child sex tourism, child sex trafficking, unsolicited obscene materials sent to a child, misleading domain names, and misleading words or digital images on the internet.” See https://www.missingkids.org/gethelpnow/cybertipline#whathappenstoinform ationinacybertip. 6 NCMEC collects and analyzes digital reports of child exploitation, then routes those leads to regional ICAC task forces for local law enforcement investigation and arrests. -2- J-S11003-26 Corporal Brown issued an administrative subpoena to Verizon, the internet service provider in this case, to identify who owned the IP address on the dates and times contained within the CyberTipline reports. Id. at 37. Upon return of information under this subpoena, the physical address for Appellant was identified. Id. Corporal Brown used this information to apply for a search warrant for the property identified as Appellant’s location. Id. at 38. The warrant allowed for the search and seizure of all electronically stored media or information, including all cell phone devices and computers. N.T. Suppression, 10/17/24, Commonwealth Exhibit 2. Upon execution of the warrant, Appellant was found in the home. Several electronic devices were found and seized, including a white cell phone case, tablet, black and red cell phone case, a gray TCL Cricket phone, and a Samsung Android phone. N.T. Trial, 12/3/24, Commonwealth Exhibit 1. After the items were seized, Corporal Brown examined the devices for CSAM. He testified that CSAM was found on the Samsung and TCL cell phones. This evidence formed the basis for the criminal complaint and information filed against Appellant. Appellant filed a motion to suppress all evidence seized as a result of what he maintained were unconstitutional warrantless searches by Facebook, Google, and NCMEC acting as government agents in violation of the Fourth Amendment and Article I, Section 8 of our Pennsylvania Constitution. The motion also sought to suppress any evidence obtained from Appellant’s residence under the search warrant issued that was premised upon what -3- J-S11003-26 Appellant claimed was illegally seized evidence by Google, Facebook and NCMEC, as fruit of the poisonous tree. The motion was denied. A jury trial was held on December 3, 2024, whereupon Appellant was convicted on all counts. Sentencing was deferred pending the assessment by the Sexual Offenders Assessment Board (“SOAB”) to determine whether Appellant should be classified as a sexually violent predator (“SVP”). On March 12, 2025, Appellant was sentenced to an aggregate six to 12 years imprisonment. He was not classified as an SVP. Appellant filed a timely notice of appeal. Both the trial court and Appellant have complied with Pa.R.A.P. 1925. Appellant raises the following issues for our review: 1. Whether the suppression court committed reversible error by failing to suppress evidence that police obtained based on CyberTipline Reports by [NCMEC] where such evidence was obtained by means of a warrantless search of Appellant’s electronic files maintained by Google and Facebook[.] 2. Whether the trial court committed reversible error by admitting testimony and evidence regarding the contents of the CyberTipline Reports into evidence over Appellant’s objections based on hearsay and lack of foundation[.] 3. Whether the Commonwealth failed to present sufficient evidence to prove beyond a reasonable doubt that Appellant intentionally possessed child [sexual abuse material] or disseminated child [sexual abuse material] through a communication facility[.] Appellant’s Brief, at 3-4. As Appellant's third issue challenging the sufficiency of the evidence, if meritorious, would result in discharge, we address that issue first. Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011); see also -4- J-S11003-26 Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (“[t]he Double Jeopardy Clause bars retrial after a defendant's conviction has been overturned because of insufficient evidence.”). 1. Sufficiency Upon review of a sufficiency challenge, our standard of review 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 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 finder 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. Smith, 206 A.3d 551, 557 (Pa. Super. 2019) (citation omitted). In conducting a sufficiency review, we consider all evidence actually admitted at trial and do not review a diminished record. Id. Consequently, our sufficiency examination is unaffected by the subsequent resolution of any evidentiary issues raised by Appellant. The entirety of Appellant’s sufficiency arguments across all three offenses for which he was convicted is as follows: -5- J-S11003-26 In this case, [Appellant] respectfully submits that [the] Commonwealth failed to present sufficient evidence that he violated [Child sexual abuse material], 18 Pa. C.S. § 6312(d) (20 counts); [Dissemination of photographs, videotapes, computer depictions and films] 18 Pa. C.S. § 6312(c) (one count); or Criminal Use of Communication Facility, 18 Pa. C.S. § 7512(a). In order to establish that [Appellant] was in possession of [CSAM] in violation of Section 6312(d), the Commonwealth must prove three elements beyond a reasonable doubt: 1) there must be a depiction of an actual child engaged in a prohibited sexual act or simulated sexual act; 2) the child depicted must be under the age of 18; and 3) defendant must have knowingly controlled and possessed the depiction. Commonwealth v. Colon-Plaza, 136 A.3d 521, 52[6] (Pa. Super. 2016); Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. 2006). Similarly, to prove violations of Sections 6312(c) and Criminal Use of Communication Facility, the Commonwealth must prove beyond a reasonable doubt that [Appellant] knowingly and intentionally distributed, delivered, disseminated, transferred or displayed [CSAM] or that he used a communication for such purpose. 18 Pa. C.S. § 6312(c); Commonwealth v. Sauers, 159 A. 3d 1 (Pa. Super. 2017) A review of the evidence and testimony submitted at trial demonstrates that the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] knowingly possessed and controlled [CSAM]. Indeed, the Commonwealth did not produce any direct evidence that [Appellant] downloaded any of the [CSAM] images that the Commonwealth displayed to the jury at trial. Moreover, the Commonwealth failed to present sufficient evidence that [he] transmitted any of the images through a communication facility such as e-mail or social media. Appellant’s Brief, at 21-22. The analysis provided under Appellant’s sufficiency challenge, which he neatly compacts into a single paragraph, does not separately discuss the elements of each offense, but rather summarily argues that the evidence was -6- J-S11003-26 insufficient to establish that Appellant knowingly possessed CSAM, that he downloaded any CSAM images, and that he transmitted any images through a communication facility.7 Absent from this analysis is discussion of any record evidence, and in particular, in a light most favorable to the Commonwealth as the verdict winner. Smith, supra. The trial court, nonetheless, discussed the record evidence on these sufficiency claims which we quote verbatim: The testimony of Corporal Brown alone satisfies all three [] elements. Corporal Brown found images of exposed children under the age of 18, and some engaged in sexual acts. These images were published to the members of the jury during the Commonwealth's case-in-chief. Corporal Brown found these images on the two cell phones found within Appellant's control. Further, the phones were examined for dissemination, discussed further below, wherein the [CSAM] were found to have been sent using Facebook and Google, solidifying that the Appellant had knowledge of the possession of these depictions. For these reasons, the Commonwealth has provided sufficient evidence to prove beyond a reasonable doubt that Appellant possessed [CSAM]. Under 18 Pa.C.S.A. § 6312(c), a person is guilty of disseminating photo/films of child sex acts when he “[K]nowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, dissemination, transfer, display or exhibition to others, ____________________________________________ 7 We note that we could find waiver of the sufficiency claim because Appellant failed to specify the element or elements challenged in his Rule 1925(b) statement. See Commonwealth v. McFarland, 278 A.3d 369, 381 (Pa. Super. 2022) (citation omitted). Because Appellant specified the element challenged in his brief and the trial court addressed his sufficiency claims, we will decline to find waiver. See Commonwealth v. Martz, 2022 WL 1698148 at *2 n.5 (Pa. Super. filed May 27, 2022) (unpublished memorandum). -7- J-S11003-26 any child sexual abuse material or artificially generated child sexual abuse material.” Here, Appellant was found with numerous photographs and depictions of [CSAM]. Corporal Brown testified that images were sent from Appellant's electronic device to an email out of the country. The image was distributed through Appellant's Facebook and corroborated as Appellant's account through his email address. This is sufficient to show that the Appellant knowingly disseminated [CSAM] to others. Under 18 Pa.C.S.A. § 7512(a), a person is guilty of criminal use of communication facility if “[T]hat person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title.” The term “communication facility”' means a public or private instrumentality used or useful in the transmission of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part, including, but not limited to, telephone ... or ... mail. 18 Pa.C.S.A. § 7512(c). To support a conviction for criminal use of a communication facility under Section 7512, “the Commonwealth must prove beyond a reasonable doubt that: (1) [Appellant] knowingly and intentionally used a communication facility; (2) [Appellant] knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony occurred.” Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004). “Facilitation” is “any use of a communication facility that makes easier the commission of the underlying felony.” Id. Here, Appellant knowingly and intentionally used his electronic device, the Samsung and/or TCL phone, to disseminate the images of [CSAM] through Facebook. The intentional use of Facebook through the use of a cellphone to disseminate images constitutes the facilitation of the felony. Lastly, the dissemination of [CSAM] is the underlying felony. Trial Court Opinion, 6/11/25, at 7-9. We find the trial court’s analysis and discussion of record evidence to dispose adequately of Appellant’s sufficiency claims. We add that the record also was sufficient to convict under section -8- J-S11003-26 7512(a), in that Appellant used a communication device to facilitate the commission of a felony. By either uploading and/or downloading CSAM onto his cell phone(s), Appellant facilitated the commission of his felony possession convictions through a communication device. See Commonwealth v. Colon-Plaza, 136 A.3d 521, 527-29 (Pa. Super. 2016) (evidence clearly sufficed to find Appellant guilty of all elements of section 7512(a) offense beyond a reasonable doubt where CSAM was downloaded and viewed on a laptop); Commonwealth v. Diodoro, 970 A.2d 1100, 1103 n.3 (Pa. 2009) (accessing and viewing CSAM over the internet constitutes an offense under section 7512(a)). Appellant is not entitled to relief on this issue. 2. Suppression; The Private Actor Doctrine Appellant argues that the trial court committed reversible error by failing to suppress any evidence received as the result of the warrantless searches conducted by Google, Facebook and/or NCMEC, who he contends were acting as agents of law enforcement and/or at the behest of law enforcement. Omnibus Pretrial Motion, 8/25/24, ¶¶ 21, 22. Appellant contends that the warrantless searches violated his rights under both the Fourth Amendment and Article I, Section 8 of our Pennsylvania Constitution.8 Id. He also argues that any evidence obtained from his residence under the search warrant ____________________________________________ 8 Since Pennsylvania case law follows federal precedent on this issue of “private actors”, see Commonwealth v. Shaffer, 209 A. 3d 957 (Pa. 2019), for convenience, our discussion when referencing the Fourth Amendment also subsumes application of this doctrine under Article 1, Section 8 of our Pennsylvania Constitution. -9- J-S11003-26 should have been suppressed as fruit of the poisonous tree because the warrant was premised upon the illegally seized evidence by Google, Facebook and NCMEC. Id. at ¶ 23. Our standard of review when addressing a challenge to the denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted. Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (internal citations omitted). Moreover, our scope of review is limited to the record created during the suppression hearing. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). The trial court made the following findings of fact following the suppression hearing: Corporal Nathan Brown, who has worked in the southwestern Pennsylvania computer crimes unit of the Pennsylvania State Police since 2008, reviewed three CyberTipline Reports dated May 18, 2023, May 20, 2023, and May 21, 2023. The reports had been sent to him by [NCMEC]. According to the Reports, NCMEC is a private, non-profit 501(c)(3) organization that serves as a national clearinghouse and resource center for families, victims, private organizations, law enforcement, and the public on missing and sexually exploited child issues. NCMEC had received information from Facebook (May 18, 2023 report) and Google (May 20, 2023 and May 21, 2023 reports) alerting it to possible [CSAM]. - 10 - J-S11003-26 The Reports may be summarized as follows: (1) May 18, 2023 Report: based on information received from Facebook, there was an “incident” on May 15, 2023. The incident involved the chat service/IM client Messenger and occurred between [Appellant] and recipient Xavier Campeau in a chat room with the name “Xavier Campeau.” The report indicated that a total of eleven (11) files were uploaded. The Report states on page 15 that NCMEC did not view the files. (2) May 20, 2023 Report: based on information received from Google, there was an “incident” on May 19, 2023, which the report indicates is the approximate date that Google became aware of the reported material. On page 31 of the report, it is stated that “Google became aware of the reported content which was stored in Google Photos infrastructure.” The report indicated that fifty (50) files were uploaded. The Report states on page 63 that NCMEC viewed four (4) files. (3) May 21, 2023 Report: based on information received from Google, there was an “incident” on May 20, 2023, which the report indicates is the approximate date that Google became aware of the reported material. On page 31 of the report, it is stated that “Google became aware of the reported content which was stored in Google Photos infrastructure.” The report indicated that two (2) files were uploaded. The Report states on page 46 that NCMEC did not view the files. After receiving the CyberTipline reports, Corporal Brown viewed the images that had been forwarded to him. In his opinion, they met the definition of child [sexual abuse material], and he obtained administrative subpoenas for business records from Verizon and Google. Based on the information he received, he determined a relevant residential address and obtained a search - 11 - J-S11003-26 warrant for various devices, hardware, and software applications at [Appellant’s] residence and surrounding buildings or vehicles. Trial Court Opinion, 11/6/24, at 1-3. The Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution protect citizens against unreasonable searches and seizures by law enforcement. See U.S. Const. amend. IV; Pa. Const. Art. I, § 8. “The proscriptions of the Fourth Amendment and Article I, § 8, do not apply to searches and seizures conducted by private individuals.” Commonwealth v. Harris, 817 A.2d 1033, 1047 (Pa. 2002). However, the Fourth Amendment does protect against searches or seizures conducted by a private party acting as an agent or instrument of the government. Commonwealth v. Yim, 195 A.3d 922, 927 (Pa. Super. 2018) (citing Coolidge v. New Hampshire, 403 U.S. 443 (1971)). In Shaffer, our Supreme Court examined the “private actor doctrine” as illustrated in the Supreme Court of the United States’ seminal decision in United States v. Jacobsen, 466 U.S. 109 (1984): [In Jacobsen], employees of a private freight carrier opened a cardboard package that had been damaged by a forklift and found a closed ten-inch tube wrapped in newspaper. Consistent with company policy regarding insurance claims, the employees cut open the tube to examine its contents and found several plastic bags containing a white powder. By the time a Drug Enforcement Administration ("DEA") agent was summoned, the employees had returned the plastic bags to the tube and replaced the tube in the box. Upon arrival, the DEA agent removed the tube from the box, removed the plastic bags from the tube, field tested the powder to determine if it was cocaine, and concluded that it was. Additional agents subsequently arrived, conducted a second field test, and obtained a warrant to search the mailing address listed on the package. - 12 - J-S11003-26 After being indicted on drug charges, the defendants filed a motion to suppress the evidence recovered from the package, contending that the warrant was the product of an illegal search and seizure. The district court denied suppression. The Court of Appeals reversed, holding that a warrant was required because the testing of the powder constituted a significant expansion of the earlier private search. The High Court reversed, holding that “the federal agents did not infringe any constitutionally protected privacy interest that had not already been frustrated as a result of private conduct.” Jacobsen, 466 U.S. at 126, 104 S.Ct. 165. The Court explained that “[t]o the extent that a protected possessory interest was infringed, the infringement was de minimis and constitutionally reasonable.” Id. Acknowledging that the Fourth Amendment protects against both unreasonable searches and seizures, the Court defined a “search” as occurring “when an expectation of privacy that society is prepared to consider reasonable is infringed.” Id. at 113, 104 S.Ct. 1652. It defined a “seizure” of property as occurring “when there is some meaningful interference with an individual’s possessory interests in that property.” Id. The Court proceeded to explain that this constitutional protection proscribed only governmental action and was wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.” Id. (citation omitted). Categorizing the package as an “effect” in which an individual has a reasonable expectation of privacy, the Court observed that a warrantless search of the package would be presumptively unreasonable. Id. at 114, 104 S.Ct. 1652. However, the Court opined, “the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent cannot render otherwise reasonable official conduct unreasonable.” Id. at 114- 15, 104 S.Ct. 1652. Accordingly, because the initial invasion of the package was accomplished by private action, the Court held that the Fourth Amendment was not violated, regardless of whether the private action was accidental, deliberate, reasonable, or unreasonable. Id. at 115, 104 S.Ct. 1652. - 13 - J-S11003-26 Significantly, the High Court explained that the additional invasions of privacy by the government agent “must be tested by the degree to which they exceeded the scope of the private search.” Id. (citing Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)). The Court observed that “[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” Id. at 117, 104 S.Ct. 1652. The High Court construed the governmental actions as twofold, first removing the contraband from its packaging and viewing it, and, second, conducting a chemical test of the powder. Id. at 118, 104 S.Ct. 1652. Regarding the government agent's reopening of the package after having been told by the employees that it contained a white powder, the Court emphasized that “there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told.” Id. at 119, 104 S.Ct. 1652. As the government could use the employees' testimony regarding the contents of the package, the Court found that “it hardly infringed [the defendants'] privacy for the agents to re-examine the contents of the open package by brushing aside a crumpled newspaper and picking up the tube.” Id. The Court observed that this governmental action did not further infringe upon the defendants' privacy, but rather merely avoided the risk of a flaw in the employees' recollection. Id. The High Court held that the defendants “could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents.” Id. It concluded that the DEA agent's observation of what a private party had voluntarily made available for his inspection did not violate the Fourth Amendment. Id. In the same vein, the Court ruled that the removal of the plastic bags from the tube and the visual inspection of the contents provided the agent with no more information than what had been discovered during the private search. Thus, the High Court opined, the agent's actions “infringed no legitimate expectation of privacy and hence was not a ‘search’ within the meaning of the Fourth Amendment.” Id. at 120, 104 S.Ct. 1652. Notably, the Court explained that while the agent's assertion of dominion and - 14 - J-S11003-26 control over the package and its contents constituted a “seizure,” the seizure was not unreasonable because the privacy interest in the package had already been compromised, as it had been opened and remained unsealed and because the agent had been specifically invited to examine the package's contents. Id. at 120-21, 104 S.Ct. 1652. The Court ruled that “since it was apparent that the tube and plastic bags contained contraband and little else, this warrantless seizure was reasonable, for it is well settled that it is constitutionally reasonable for law enforcement officials to seize ‘effects’ that cannot support a justifiable expectation of privacy without a warrant, based on probable cause to believe they contain contraband.” Id. at 121-22, 104 S.Ct. 1652. The High Court proceeded to examine whether the agent's additional intrusion, occasioned by the field test of the white powder, exceeded the scope of the private search. The Court answered this inquiry in the negative, finding that the chemical test that merely disclosed whether a substance is cocaine did not compromise any legitimate interest in privacy as one cannot legitimately have a privacy interest in cocaine, an illegal substance. Id. at 123, 104 S.Ct. 1652. The Court concluded that because only a trace amount of the material was involved and because the property had been lawfully detained, “the ‘seizure’ could, at most, have only a de minimis impact on any protected property interest.” Id. at 125, 104 S.Ct. 1652. Because the safeguards of a warrant would only minimally advance Fourth Amendment interests, the court concluded that the warrantless “seizure” was reasonable. Id. Shaffer, 209 A.3d at 969-971. Rejecting the appellant’s suggestion otherwise, the Court iterated that there is ample support for the private search doctrine in Pennsylvania jurisprudence and that "[t]he proscriptions of the Fourth Amendment and Article I, § 8, do not apply to searches and seizures conducted by private individuals." Id. (citing Commonwealth v. Harris, 817 A.2d 1033, 1047 (Pa. 2002)). The Court then held that “[p]ursuant to Jacobsen, our inquiry is two-fold: (1) whether the facts presented - 15 - J-S11003-26 establish that a private search was conducted; and, if so, (2) whether the police actions exceeded the scope of the private search.” Id. at 972. There are however two circumstances where the private actor doctrine does not apply. “First, the doctrine does not apply if the ‘private actor’ who conducted the search was actually an agent or instrument of the government when the search was conducted.” United States v. Meals, 21 F.4th 903, 906 (5th Cir. 2021). Second, if without a warrant, the government “exceeds the scope of the private actor’s original search and discovers new evidence that it was not substantially certain to discover, the private search doctrine does not apply, and the new evidence may be suppressed.”9 Id. at 906. Therefore, unless one of the above-mentioned circumstances is present, “if a non-government entity violates a person’s privacy . . . and turns over the evidence to the government, the evidence can be used to obtain warrants or to prosecute.” Id. This is because the Fourth Amendment restrains the government, not private citizens. Id. “Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party’s activities, a question that can only be resolved ‘in light of all the circumstances.’” Skinner v. Railway Labor Executives' Ass’n, 489 U.S. 602, 614 (1989) ____________________________________________ 9 Appellant does not assert that either NCMEC or the PSP exceeded the scope of the searches performed by Google and/or Facebook. - 16 - J-S11003-26 (citations omitted). The principles that guide us in this regard were first established by the Supreme Court of the United States in Lugar v. Edmondson Oil Co., Inc, 457 U.S. 922 (1982), wherein the Supreme Court “held that the conduct allegedly causing the deprivation must be fairly attributable to the state.” Yim, 195 A.3d at 927 (citing Commonwealth v. Price, 672 A.2d 280, 283-84 (Pa. 1996)). “[T]he critical factor is whether the private individual, considering all the circumstances of the case, must be regarded as having acted as an instrument or agent of the state[.]” Commonwealth v. Cieri, 499 A.2d 317 (Pa. 1985) (cleaned up; citations omitted). Mere cooperation with police, however, does not transform private action into state action. Price, 672 A.2d at 283-284. Likewise, “the mere fact that police and prosecutors use the results of an individual’s actions does not, alone, elevate those actions to state action.” Id. “Where, however, the relationship between the person committing wrongful acts and the State is such that those acts can be viewed as emanating from the authority of the State, a finding of state action is warranted.” Id. Appellant’s challenge to the items seized by Google and Facebook and subsequently received by NCMEC, requires that we first determine whether, under the circumstances in this case, any of these entities were operating as “private actors” or instead, as “agents” or “instruments” of the government for Fourth Amendment purposes. - 17 - J-S11003-26 Appellant sought suppression of all evidence obtained by Corporal Brown based on the CyberTipline reports that were the product of the warrantless searches of Appellant’s files by Google and Facebook and sent to NCMEC, as well as all evidence obtained under the search warrant issued to Corporal Brown under which Appellant claims his electronic devices were seized as fruit of the poisonous tree. See Appellant’s Brief, at 13. Appellant argues that Corporal Brown acknowledged in his search warrant application that he received and reviewed information from NCMEC which NCMEC in turn received from Facebook and from Appellant’s Internet service provider. See id. Appellant points to Corporal Brown’s testimony wherein he stated that Google and Facebook identify and report child sexual abuse imagery in accordance with the federal statutory definition of CSAM as referenced in 18 U.S.C.A. § 2256, and that when possible danger is observed, a summary is sent to NCMEC CyberTipline. See id. at 14. Appellant sets forth that electronic service providers (ESPs) such as Google and Facebook must report any known CSAM violations to NCMEC, and that the failure to do so can be met with substantial criminal penalties. See id. at 17. The suppression record confirms that Corporal Brown identified Appellant through the reports received from NCMEC based on information provided by Google and Facebook. Appellant admits there is no dispute that NCMEC provided inculpatory images/videos purportedly depicting unlawful - 18 - J-S11003-26 CSAM to law enforcement through four CyberTipline reports. Appellant points out that it was only after Corporeal Brown viewed images that were provided to him by NCMEC that he then requested search warrants. While acknowledging that neither the Fourth Amendment nor Article I, § 8 apply to actions by private actors, Appellant argues, relying for the most part upon our unpublished decision in Commonwealth v. Baez, 2021 WL 5626366, (Pa. Super. filed Dec. 1, 2021) (unpublished memorandum), that we must find that Google, Facebook and NCMEC were acting as agents of law enforcement in this case. In addition, Appellant cites federal statutory law to establish that Google, Facebook and NCMEC are government actors. Appellant cites to 18 U.S.C.A. § 2258A,10 without identifying the portion(s) of the statutory text relied upon, to establish that Google, Facebook and NCMEC must be deemed government actors. He broadly contends that Facebook and Google must be deemed government actors because by law they are mandated reporters and can face criminal penalties for failing to comply with their reporting obligations. Appellant is less specific as to NCMEC, but it is clear that his contention is that NCMEC also is a government actor as it too is bound by ____________________________________________ 10 Section 2258A is a part of Chapter 110 of Part I of Title 18 of the United States Code (18 U.S.C. §§ 2251–2260A), titled “Sexual Exploitation and Other Abuse of Children.” - 19 - J-S11003-26 federal law to report CSAM to law enforcement. We discern the pertinent provisions of § 2258A that underlie Appellant’s argument to be the following: (a) Duty To Report.— (1) In general.— (A) Duty.— In order to reduce the proliferation of online chil