Because it is a concurring opinion, Chief Justice Todd’s analysis does not constitute the binding rationale of the Court. However, it carries substantial persuasive weight, especially given that two other justices (Mundy and McCaffery) joined it. Her opinion is likely to be cited and relied upon by litigants and lower courts in future cases involving reverse keyword and other “reverse” digital warrants.

VI. Precedents and Authorities Cited

A. The Constitutional and Rule-Based Framework for Warrants

Chief Justice Todd grounds her approach firmly in the text of both the federal and state charters and the Pennsylvania Rules of Criminal Procedure.

• Fourth Amendment, U.S. Constitution
  She quotes the familiar clause protecting people from unreasonable searches and seizures and requiring that warrants issue only upon probable cause, “particularly describing the place to be searched, and the persons or things to be seized.”
• Article I, Section 8, Pennsylvania Constitution
  Pennsylvania’s analog likewise guarantees security in “persons, houses, papers and possessions” from unreasonable searches and seizures and imposes an explicit probable cause and particular-description requirement.
• Pa.R.Crim.P. 201
  Codifies what may be seized with a search warrant, including:
  • Contraband or fruits of a crime;
  • Property used to commit an offense;
  • Property that constitutes evidence of the commission of an offense; and
  • Persons subject to arrest warrants.
• Pa.R.Crim.P. 203(B)
  Provides that no warrant shall issue except upon probable cause “supported by one or more affidavits” and mandates a “four corners” review: the issuing authority may not consider evidence outside the affidavits in determining probable cause.

These provisions establish the baseline: searches of private data must generally be authorized by a judicially issued warrant supported by probable cause and sufficiently particular in scope.

B. Statutory Warrant Requirement for Electronic Information

A central feature of the concurrence is Chief Justice Todd’s reliance—at least for purposes of this case—on the statutory warrant requirement in the Wiretapping and Electronic Surveillance Control Act, specifically 18 Pa.C.S. § 5743.

Section 5743(a)(1), titled “Requirements for governmental access,” states in relevant part:

Investigative or law enforcement officers may require the disclosure by a provider of communication service of the contents of a communication which is in electronic storage in a communication system for […] [o]ne hundred eighty days or less only pursuant to a warrant issued under the Pennsylvania Rules of Criminal Procedure.

Although neither Kurtz nor the Commonwealth briefed this statute, amici for the Commonwealth (the Office of Attorney General and the Pennsylvania District Attorneys Association) highlighted it. Chief Justice Todd notes that while it may not be “necessary to definitively resolve the applicability” of the Wiretap Act in this appeal, it is “undisputed that the PSP sought and obtained a warrant.”

This observation underpins her decision not to tackle the state-constitutional question: if a statute already requires a warrant, and that requirement was met, the constitutional question becomes academic for the disposition of this case. This is a classic application of judicial restraint.

C. Probable Cause as a “Fluid,” “Plastic” Concept

Chief Justice Todd repeatedly cites cases emphasizing that probable cause is not a technical formula but a flexible, context-dependent standard.

• Illinois v. Gates, 462 U.S. 213 (1983)
  The U.S. Supreme Court’s landmark decision adopted the “totality of the circumstances” test for probable cause and warned against “hyper-technical” review of affidavits. Gates emphasized that probable cause is a “fluid concept” not reducible to rigid legal rules, and that courts should accord “great deference” to magistrates’ determinations.
• Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985)
  Pennsylvania adopted Gates’ totality-of-the-circumstances standard in Gray. Chief Justice Todd expressly notes that this remains the governing test in Pennsylvania.
• United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972)
  Quoted for the proposition that probable cause is a “plastic concept” and that it is the totality of facts—viewed in unison—that matters. The case underscores that individual factors may not be dispositive alone, but together can establish probable cause.
• Commonwealth v. Davis, 351 A.2d 642 (Pa. 1976)
  Cited for the rule that the Commonwealth must furnish the issuing authority with enough information to persuade a reasonable person that probable cause exists to conduct a search.
• Commonwealth v. Rodriguez, 585 A.2d 988 (Pa. 1991)
  Provides the canonical Pennsylvania definition: probable cause exists where the facts and circumstances known to the affiant, and reasonably trustworthy information, are sufficient “to warrant a person of reasonable caution to believe that a search should be conducted.”
• Commonwealth v. Baker, 518 A.2d 802 (Pa. 1986); Commonwealth v. Baker, 615 A.2d 23 (Pa. 1992)
  Quoted for the “fair probability” standard and the important clarification that probable cause involves probability, not a prima facie case of criminal activity.
• Commonwealth v. Edwards, 426 A.2d 550 (Pa. 1981)
  Emphasizes that information in an affidavit should be viewed in a “common sense, nontechnical, ungrudging and positive manner.”
• Commonwealth v. Green, 265 A.3d 541 (Pa. 2021)
  Reinforces that probable cause is based on probability, not proof beyond a reasonable doubt or even a prima facie case.

Collectively, these cases support Chief Justice Todd’s view that:

• Direct evidence that a particular tool (e.g., Google) was used is not required;
• Reasonable inferences about how modern offenders plan crimes, including the likely use of widely adopted technologies, can contribute to probable cause; and
• Courts should defer to reasonable determinations by issuing authorities when those determinations are grounded in a coherent factual narrative.

D. Role of the Issuing Authority and Standard of Review

Chief Justice Todd also underscores the standard of review applicable to a magistrate’s probable-cause determination:

• Commonwealth v. Torres, 764 A.2d 532 (Pa. 2001) and Commonwealth v. Pacheco, 263 A.3d 626 (Pa. 2021)
  Both cases reiterate that courts must not conduct a de novo reassessment of probable cause. Instead, they ask only whether the issuing authority had a “substantial basis” for concluding that probable cause existed. Gates, likewise, admonishes against invalidating warrants via hyper-technical readings of affidavits.

This deferential standard plays a significant role in how the concurrence ultimately evaluates Trooper Follmer’s affidavit. Even if alternative innocent explanations for the observed facts are possible, the question is whether, under the totality of circumstances, it was reasonable for the issuing authority to find a fair probability that evidence of the crime would be found in Google’s data.

E. Warrants as Investigative Tools and “General Warrant” Concerns

Appellant and his amici argued that the Google keyword warrant functioned like a prohibited “general warrant” because it required Google to search the data of all users who might have searched for the victim’s name or address, without individualized probable cause for each user.

Chief Justice Todd acknowledges the constitutional prohibition on general warrants, citing:

• Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967)
  Recognized that warrants may be used to seize “mere evidence” (not just contraband or instrumentalities) and upheld searches for evidence that aids in apprehending and convicting criminals.
• Commonwealth v. Butler, 291 A.2d 89 (Pa. 1972)
  Emphasized that probable cause typically requires a connection between particular individuals or items and the crime under investigation.
• Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010)
  Explicitly held that a search warrant may be used as an investigative tool and may seek “mere evidence” even when the identities of the murderer or victim are unknown. This case is particularly important support for the idea that warrants can appropriately be used even when no suspect is yet identified.

Against this background, the concurrence draws a line: while general warrants that allow unfettered rummaging are prohibited, a warrant may still be valid as an investigative tool where:

• It is grounded in probable cause that evidence of a particular crime will be found in particular data repositories; and
• It is constrained by time, subject matter, and target parameters (e.g., limiting the terms to the victim’s name and address over a narrowly defined timeframe).

F. Other Authorities: McDonald, Riley, and Historical Justification for the Warrant Requirement

Chief Justice Todd also invokes:

• McDonald v. United States, 335 U.S. 451 (1948) and Riley v. California, 573 U.S. 373 (2014)
  These cases frame the warrant requirement as designed not to shield criminals but to interpose a neutral magistrate between law enforcement and citizens, ensuring that intrusions on privacy are justified by objective determinations rather than raw police discretion. Riley is especially significant in the digital context because it recognized the extraordinary privacy interests implicated by modern cell phones and required warrants to search them.

By referencing these cases, the concurrence underscores that the warrant actually obtained here served precisely this mediating function: the trooper’s inferences and experience were placed before a neutral issuing authority, who evaluated whether they established a fair probability that Google’s records contained evidence of the K.M. assault.

VII. The Court’s Legal Reasoning in the Concurrence

A. Constitutional Avoidance and Reliance on Statutory Warrant Protection

Chief Justice Todd’s first key move is doctrinal: she refuses to answer the broad constitutional question of whether Article I, Section 8 requires a warrant to obtain search queries and IP addresses. Instead, she notes:

• Section 5743 of the Wiretapping and Electronic Surveillance Control Act appears to mandate a warrant for governmental access to certain electronic communications in storage; and
• In this case, the PSP complied with that requirement by obtaining a warrant.

Because the statutory requirement was both in place and honored, she regards it as unnecessary and unwise to resolve the “novel constitutional question” addressed by the OAJC. This reflects a traditional principle of judicial restraint: courts avoid reaching constitutional questions when a case can be resolved on non-constitutional grounds.

Practically, this maneuver channels the analytical energy into whether the warrant that was actually obtained was adequately supported by probable cause.

B. Reaffirmation of the Probable Cause Standard

The concurrence then carefully restates the governing law of probable cause:

• Probable cause is a “fluid concept” and a “plastic concept” that depends heavily on context.
• It is measured by a “totality of the circumstances” approach (from Gates and Gray).
• It requires only a “fair probability” that evidence of a crime will be found in the place to be searched—not certainty, direct evidence, or elimination of all innocent explanations.
• Judicial review of an issuing authority’s probable-cause determination is deferential—courts ask only whether a “substantial basis” existed for the conclusion, applying a common-sense, nontechnical reading of the affidavit.
• Under the four-corners rule, only the information in the affidavit may be considered.

This framing is crucial for how she evaluates the reverse keyword warrant: it shifts the inquiry away from whether the police had direct proof that the assailant used Google and toward whether, in light of the known facts and reasonable inferences, it was probable enough that Google’s records would contain relevant evidence.

C. Applying Probable Cause to the Google Keyword Warrant

Chief Justice Todd then applies the established standard to the affidavit in this case. Key points in her analysis include:

1. Nature and Location of the Crime
   The victim’s residence was in a “very small rural development” and “secluded,” suggesting it was “likely unknown by most.” The victim was also dropped off in an isolated area close to her home. These facts strongly imply that the assailant knew the area and specifically targeted the victim and her residence, rather than acting randomly.
2. Timing and Planning
   The attack occurred while the victim’s husband was working overnight. This supports the inference that the assailant knew or learned the husband’s work schedule and purposely chose a time when the victim would be alone and vulnerable.
3. Offender Behavior and Police Experience
   Trooper Follmer averred, based on his experience, that serious sexual offenders are “predominately fantasy driven” and often stalk or research their victims. This bolsters the inference that the assault was the culmination of deliberate planning rather than a spur-of-the-moment act.
4. Modern Reality of Internet Use
   The concurrence—echoing arguments by the Commonwealth and its amici—notes the ubiquity of internet searching and Google’s dominance as a search engine. Given these realities, it is not speculative but “highly probable” that an offender engaged in advance research would use an internet search engine, and very likely Google, to obtain or confirm information about the victim’s identity and address.
5. Temporal and Subject-Matter Narrowness of the Warrant
   The warrant was limited to a one-week period before the attack and to searches related to K.M.’s name, image, and address. This temporal and substantive narrowing counters the assertion that the warrant authorized generalized rummaging in Google’s databases.

Synthesizing these factors, Chief Justice Todd concludes that, under the totality of the circumstances, there was a fair probability that:

• The assailant used Google (or a similar search engine) to research the victim; and
• Google’s records would contain search queries and associated IP address information constituting evidence related to the crime.

On that basis, she holds that the issuing authority had a substantial basis to find probable cause and issue the warrant.

D. Rejecting a Direct-Evidence Requirement for the Use of Particular Technology

Kurtz argued that Trooper Follmer’s affidavit was “speculative” because it offered no direct evidence that Google was used in committing the crime. Chief Justice Todd rejects any notion that probable cause requires direct proof of the use of a particular digital service.

She emphasizes that Pennsylvania precedent has “never suggested” that probable cause requires direct evidence supporting each inferential step in the chain of reasoning. Instead, courts routinely accept reasonable inferences grounded in:

• The nature of the crime;
• The behavior patterns of offenders; and
• Common-sense understandings of how people live and act in the modern world.

She quotes Commonwealth v. Jacoby, 170 A.3d 1065 (Pa. 2017), to reinforce that probable cause deals with “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

Thus, while it might be “equally or more likely,” as some amici argued, that the perpetrator knew the victim personally and did not need to use Google, the presence of alternative innocent or non-digital explanations does not negate probable cause. The relevant question is whether one reasonable and probable scenario is that the attacker used Google; the concurrence answers that question in the affirmative.

E. Addressing the “Dragnet” and “General Warrant” Objections

Kurtz and supporting civil liberties amici argued that keyword warrants are effectively “dragnet” operations incompatible with constitutional norms. They analogized this warrant to:

• A warrant authorizing police to search “every house in an area of a town” for any materials connected to a crime; or
• The reviled British “general warrants” that the Framers designed the Fourth Amendment (and its state analogues) to prohibit.

Although Chief Justice Todd does not comprehensively engage the historical general-warrant analogy, her reasoning implicitly responds in several ways:

• The affidavit did not seek unbounded access to all Google users; it sought only:
  • Searches tied to very specific terms (the victim’s name, image, and address);
  • Within a narrow seven-day period before the crime; and
  • Related to a particular crime already known to law enforcement.
• The warrant’s objective was not general intelligence-gathering but the identification of the person who planned and committed a specific crime—functionally akin to warrants that authorize seizure of records to identify unknown suspects (as in Jones).
• The realities of digital data storage mean that a single warrant directed to a provider inevitably implicates many users’ data, but that does not, in itself, render the warrant “general” if it is focused on a defined subset of users’ activities tied to a specific investigative theory.

In effect, the concurrence signals that reverse keyword warrants are not per se invalid general warrants under Pennsylvania law but must be scrutinized case-by-case for:

• Reasonable linkage between the targeted terms and the crime;
• Narrow temporal and subject-matter scope; and
• A factually grounded probability that evidence of the crime will be found in the provider’s data relating to those terms.

F. The Limited Demands of the “Fair Probability” Standard

Chief Justice Todd concludes by stressing that probable cause “is grounded in the finding of the probability, not a prima facie showing, of criminal activity.” Thus:

• The affidavit need not exclude non-criminal possibilities (e.g., that the assailant learned the address by personal observation alone).
• It need only justify, in a common-sense way, the inference that there is a fair chance relevant evidence will be discovered through the search.

She finds that the secluded location of the victim’s residence, the nature and timing of the attack, and the investigative experience regarding sexual predators “formed a sufficient basis for the issuing authority” to conclude that evidence regarding the rape would likely be found in Google’s database. In her view, the inference that the attacker used Google was not a mere “guess” but a “highly probable one.”

VIII. Impact and Future Implications

A. Legitimizing Reverse Keyword Warrants under a Traditional Probable-Cause Framework

Although the OAJC addresses broader privacy questions, Chief Justice Todd’s concurrence is doctrinally significant in its own right. It does three important things:

1. It validates the concept of reverse keyword warrants—at least in principle—as compatible with the traditional probable-cause framework, provided that they:
   • Are based on a factually grounded investigative theory;
   • Target specific terms connected to a known crime; and
   • Are suitably limited in time and scope.
2. It rejects a requirement of direct proof that a specific digital platform was used in committing the crime as a precondition to obtaining a warrant directed to that platform.
3. It embraces the role of technological ubiquity as a legitimate factor in probable-cause analysis: the near-universal use of search engines like Google makes it reasonable to infer that an offender who researched a victim likely used such tools.

Going forward, prosecutors and police in Pennsylvania will likely rely on this reasoning when seeking reverse keyword or other “reverse” digital warrants (such as geofence warrants, which seek device location data around a crime scene). They will be encouraged to:

• Articulate clearly why the crime suggests advance research or planning;
• Explain how offenders in similar crimes typically use digital tools; and
• Craft warrants with narrow temporal windows and carefully selected search terms.

B. Constraints: Totality of Circumstances and Particularity Still Matter

At the same time, the concurrence does not give carte blanche to broad digital dragnets. Its logic depends on:

• The particular facts suggesting that the victim was specifically and carefully targeted;
• Evidence of advance planning (timing, location, knowledge of the husband’s schedule); and
• A clear nexus between the terms targeted in the Google warrant and the crime under investigation.

In less tailored situations—e.g., where the crime appears random, where the targeted keywords are extremely broad or generic, or where the time window is expansive—courts may distinguish Kurtz and refuse to find probable cause. The concurrence’s emphasis on “fair probability” and totality-of-circumstances leaves plenty of space for future courts to invalidate overbroad or weakly justified reverse warrants.

C. Interaction with State Constitutional Privacy and Statutory Law

Another significant implication is methodological: Chief Justice Todd’s reliance on Section 5743 as a statutory warrant requirement signals that, at least for now, some justices may prefer to regulate law-enforcement access to digital records primarily through statute and traditional probable-cause doctrine, rather than through expansive state-constitutional holdings.

If the General Assembly amends the Wiretap Act or enacts more specific statutes governing search-engine data, this concurrence’s framework suggests that statutory protections will be critical to how courts approach future cases. It also suggests that when statutory warrant requirements exist and are followed, some justices may be less inclined to recognize additional, freestanding privacy protections under Article I, Section 8.

D. National Resonance

Although this is a state-court decision applying both federal and Pennsylvania law, its reasoning will likely be cited in other jurisdictions wrestling with the legality of reverse keyword and geofence warrants. The opinion illustrates one doctrinal path: treating these new investigative techniques as subject to the same probable-cause and particularity principles that have long governed warrants, while allowing reasonable inferences based on the ubiquity of digital technologies.

IX. Simplifying Key Legal Concepts

1. Reasonable Expectation of Privacy

This concept, drawn from federal and state constitutional law, asks whether:

1. A person actually (subjectively) expects privacy in a certain place or thing, and
2. Society is prepared to recognize that expectation as reasonable.

If both are true, then government intrusion into that area typically constitutes a “search” requiring justification (often a warrant). In Kurtz, the open question (addressed by the OAJC but avoided by the concurrence) is whether people have a reasonable expectation of privacy in their Google search queries and IP addresses.

2. Probable Cause

Probable cause is the threshold required for issuing a warrant. It does not require proof that a crime definitely occurred or that evidence will definitely be found. Instead, it means:

There is a fair probability, based on the totality of the circumstances, that contraband or evidence of a crime will be found in the place to be searched.

“Fair probability” is a practical, common-sense standard. Think of it as a reasonable likelihood, not a mathematical probability or courtroom-level proof.

3. Totality of the Circumstances

Rather than applying rigid rules, courts look at all of the facts together and ask whether, taken as a whole, they support probable cause. Individual facts that appear weak or ambiguous in isolation can add up to something strong when viewed in context.

4. The Four-Corners Rule

When deciding whether a warrant is supported by probable cause, the issuing authority and reviewing courts may consider only the information that appears within the “four corners” of the written affidavit(s) submitted with the warrant application. They cannot rely on unstated assumptions or extrinsic evidence.

5. General Warrants vs. Particularized Warrants

“General warrants” historically allowed government agents to search anywhere and seize anything without specific limitations. They were a major abuse in colonial America and are forbidden by both the Fourth Amendment and Article I, Section 8.

Modern warrants must be “particularized”: they must specify:

• The place to be searched;
• The items or data to be seized; and
• The crime(s) under investigation.

The controversy in Kurtz is whether a reverse keyword warrant that searches across many users’ data is functionally a general warrant. Chief Justice Todd concludes that the warrant here was sufficiently narrow and targeted to be valid.

6. Reverse or Keyword Warrants

A “reverse search” or “keyword warrant” does not identify a suspect in advance. Instead, law enforcement:

• Identifies certain search terms (e.g., a victim’s name or address, or a crime-specific phrase);
• Requests that a company (like Google) search its records for users who entered those terms; and
• Then uses the resulting data (like IP addresses) to generate suspect leads.

This is the opposite of a traditional warrant, which generally starts with a named suspect and seeks their records. The legal challenge is to fit these reverse warrants into the existing probable-cause and particularity framework.

7. Fruit of the Poisonous Tree

This doctrine holds that if the government obtains evidence through an unlawful search or seizure, that evidence—and any additional evidence derived from it—may be suppressed (excluded) in court. Kurtz argued that if the Google warrant was invalid, then all evidence obtained from it and all subsequently derived evidence should be excluded as “fruit of the poisonous tree.”

8. IP Address

An Internet Protocol (IP) address is a series of numbers assigned by an internet service provider to a device or to a location (such as a home internet connection). It functions like a mailing address for data, facilitating the routing of information across the internet. Linking a particular IP address to a physical address or device can connect online activity (such as a Google search) to a real-world person or household.

X. Conclusion

Chief Justice Todd’s concurrence in Commonwealth v. Kurtz offers a careful, traditionalist framework for assessing an innovative and controversial investigative tool. While the OAJC confronts the sweeping question of whether Pennsylvanians have a state-constitutional privacy interest in their search queries and IP addresses, the concurrence takes a narrower route:

• It relies on an existing statutory warrant requirement for electronic information, and
• It upholds the Google keyword warrant under well-established probable-cause principles, without expanding or contracting Article I, Section 8.

In doing so, the concurrence:

• Affirms that reverse keyword warrants are not inherently unconstitutional general warrants, but must be evaluated under a totality-of-circumstances approach;
• Recognizes the ubiquity of internet search engines as a legitimate factor supporting probable cause in appropriate cases;
• Confirms that probable cause does not require direct evidence of a tool’s use, but may rest on reasonable inferences drawn from crime characteristics, offender behavior, and technological realities; and
• Emphasizes the continuing importance of judicial oversight and particularization in the era of mass digital data.

As digital investigations increasingly rely on third-party data—whether search queries, location histories, or cloud-stored communications—the framework articulated in this concurrence will likely shape how Pennsylvania courts balance effective law enforcement against robust privacy protections. Even as the law grapples with new technologies, Kurtz demonstrates that many of the crucial questions can still be answered with the familiar tools of warrants, probable cause, and common-sense judicial review.