Probable Cause and Reverse Keyword Warrants: Chief Justice Todd’s Concurrence in Commonwealth v. Kurtz

I. Introduction

This commentary examines the concurring opinion of Chief Justice Debra Todd in Commonwealth v. Kurtz, a 2025 decision of the Supreme Court of Pennsylvania. The case arises from a brutal abduction and rape of a woman, K.M., who lived in a remote rural development in Northumberland County. With no identified suspect, the Pennsylvania State Police (PSP) sought a “reverse” or “keyword” warrant from Google, compelling the company to disclose IP addresses that had searched K.M.’s name or address in the week preceding the crime.

On appeal, the Court granted review of two significant questions:

Whether, under Article I, Section 8 of the Pennsylvania Constitution, individuals have a reasonable expectation of privacy in their private internet search queries and IP addresses, such that police must obtain a warrant before obtaining that information.
Whether there was probable cause to support issuance of the Google warrant where no suspect was identified and no direct evidence showed that Google searches were used in planning or committing the crime.

The Opinion Announcing the Judgment of the Court (OAJC), authored by Justice Wecht, addressed the first, novel constitutional question about online privacy. Chief Justice Todd, however, concurred only in the result, deliberately declining to reach that constitutional issue. Instead, she would affirm solely on the narrower ground that:

A statutory framework already effectively required a warrant for this type of electronic information, and
The affidavit in support of the Google warrant established probable cause under traditional search-and-seizure principles.

Her concurrence therefore becomes an important statement about how Pennsylvania courts should evaluate probable cause for reverse keyword warrants in the digital age, and about judicial restraint in avoiding unnecessary constitutional rulings.

II. Summary of the Concurrence

Chief Justice Todd’s concurring opinion can be distilled into three core propositions:

No need to resolve the constitutional expectation-of-privacy issue. She notes that the General Assembly appears to have already imposed a statutory warrant requirement for access to certain electronic information (via 18 Pa.C.S. § 5743), and it is undisputed that the PSP obtained a warrant here. Because the police complied with that requirement, she finds it unnecessary to decide the broader, novel question under Article I, Section 8 regarding privacy in search queries and IP addresses.
The Google keyword warrant was supported by probable cause. Applying the “totality of the circumstances” test and emphasizing a common-sense, nontechnical reading of the affidavit, she concludes that there was a fair probability that the unknown assailant had researched K.M. and her address online, and that evidence of this would be found in Google’s records. Thus, the warrant met the constitutional and rule-based requirements for issuance.
Reverse keyword warrants can be permissible investigative tools. She rejects the defense and amici arguments that this warrant was an impermissible dragnet or “general warrant.” In her view, the warrant was sufficiently focused: limited to a one-week window, and to searches of K.M.’s name and address, and was supported by inferences rooted in the nature and circumstances of the crime and in police experience.

On that basis, Chief Justice Todd concurs in affirming the denial of suppression and the resulting judgment of sentence, but expressly disassociates herself from the OAJC’s constitutional reasoning. Justices Mundy and McCaffery join her concurrence, indicating a three-justice bloc endorsing this narrower probable-cause approach.

III. Procedural and Factual Background (as Revealed in the Concurrence)

A. The Crime

From the concurrence’s description, the victim, K.M., lived in:

A “very small rural development” outside Milton, Pennsylvania, in a location “likely unknown by most.”
She was attacked in her home while her husband was on an overnight shift.
She was abducted, transported by vehicle, raped, and then left in another secluded area 0.7 miles from her residence.

These features suggested to investigators that the assailant:

Was familiar with K.M.,
Was familiar with the remote location of her home, and
Knew when her husband would be gone, indicating planning rather than a random or purely opportunistic attack.

B. The Google Keyword Warrant

With no named suspect and no direct evidence of internet usage, PSP Trooper Follmer drafted an affidavit for a warrant to Google, seeking:

Search queries and image search queries for K.M.’s name or image, and
Searches relating to K.M.’s home address,
Together with associated IP addresses,

limited to the period from July 13 to July 20, 2016 (the week before the attack).

The affidavit expressed belief that:

“the Actor may have spent some time stalking the VICTIM and her husband's schedule as well as their whereabouts,”

that the offender was “very familiar” with K.M. and her residence,

that the crime was “predominately fantasy driven,” and

that the actor “researched the VICTIM’S address and/or VICTIM utilizing the internet or search engine similar to the searches provided by Google Inc.”

The magistrate issued the warrant. Google produced responsive data, which led investigators to an IP address and, ultimately, to the appellant, John Edward Kurtz. He was charged, tried, convicted, and sentenced.

C. The Appeal and Allocatur Questions

On appeal, Kurtz challenged the validity of the Google warrant. He argued:

There was no probable cause to believe that Google was used in planning or committing the crime; the warrant was a “shot in the dark.”
The warrant was functionally a dragnet or general warrant, targeting all users who searched certain terms rather than a particular suspect.
All evidence obtained should be suppressed as the “fruit of the poisonous tree.”

The Pennsylvania Supreme Court granted allocatur on:

The Article I, Section 8 reasonable-expectation-of-privacy question regarding search queries and IP addresses; and
The adequacy of probable cause for the keyword warrant in the absence of a named suspect or direct evidence of Google use.

Chief Justice Todd focuses exclusively on the second issue, while explaining why, in her view, the first need not be reached.

IV. Precedents and Authorities Cited

A. Constitutional and Rule-Based Framework

1. Fourth Amendment and Article I, Section 8

The concurrence begins by restating the constitutional texts:

Fourth Amendment, U.S. Constitution: protects the right of the people to be secure against unreasonable searches and seizures, and requires that warrants issue only upon probable cause and that they particularly describe the place to be searched and the persons or things to be seized.
Article I, Section 8, Pennsylvania Constitution: similarly secures people against unreasonable searches and seizures, and requires warrants to describe “as nearly as may be” the place and items to be searched or seized, supported by probable cause under oath.

Chief Justice Todd notes that both provisions anchor the warrant requirement and the need for probable cause, with Pennsylvania’s provision historically construed at least as protective—if not more so—than the federal counterpart.

2. Pennsylvania Rules of Criminal Procedure

She then links this constitutional foundation to the state’s procedural rules:

Pa.R.Crim.P. 201 sets out what may be searched for and seized via warrant: contraband, fruits of crime, instrumentalities, evidence of a criminal offense, or a person named in a bench or arrest warrant.
Pa.R.Crim.P. 203(B) codifies that no search warrant shall issue absent probable cause established in one or more sworn affidavits; importantly, the issuing authority:
- May consider only the information within the “four corners” of the affidavit(s), and
- May not rely on information outside those affidavits.

That “four corners” rule plays a key role in her analysis: appellate courts reviewing a probable cause determination look only at the contents of the affidavit, not extrinsic evidence.

B. Statutory Framework: 18 Pa.C.S. § 5743

Although the parties did not argue it, amici for the Commonwealth (the Attorney General’s Office and the Pennsylvania District Attorneys Association) flagged 18 Pa.C.S. § 5743 of the Wiretapping and Electronic Surveillance Control Act.

Section 5743(a)(1) provides, in relevant part, that:

Investigative or law enforcement officers may require disclosure by a provider of communication service of the contents of a communication in electronic storage for 180 days or less “only pursuant to a warrant” issued under the Pennsylvania Rules of Criminal Procedure.

Chief Justice Todd does not definitively resolve how broadly this provision applies to Google search data in this case. But she acknowledges:

The statute “appears” to impose a warrant requirement in circumstances like these, and
It is undisputed that PSP in fact sought and obtained a warrant.

This statutory context bolsters her view that the central legal dispute is not the existence of a warrant requirement but whether the particular warrant here was supported by probable cause.

C. General Probable Cause Doctrine

Chief Justice Todd situates her analysis within a well-established line of probable cause jurisprudence:

Illinois v. Gates, 462 U.S. 213 (1983):
The U.S. Supreme Court adopted the “totality of the circumstances” approach to probable cause, rejecting rigid tests. Probable cause is a “fluid concept” based on practical, common-sense judgments about probabilities, not certainties.
Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985):
Pennsylvania adopted Gates’ totality-of-the-circumstances standard.
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), quoting Commonwealth v. Miller, 518 A.2d 1187 (Pa. 1986):
Reaffirms that the “linchpin” for issuing a warrant is probable cause.
Commonwealth v. Rodriguez, 585 A.2d 988 (Pa. 1991), and Commonwealth v. Baker, 518 A.2d 802 (Pa. 1986):
Probable cause exists when, based on facts in the affidavit, there is a “fair probability” that evidence of a crime or contraband will be found in the place to be searched.
Commonwealth v. Edwards, 426 A.2d 550 (Pa. 1981):
Affidavits of probable cause are to be interpreted in a common-sense, nontechnical, and “ungrudging and positive manner.”
Commonwealth v. Baker, 615 A.2d 23 (Pa. 1992), and Commonwealth v. Green, 265 A.3d 541 (Pa. 2021):
Probable cause requires a probability of criminal activity, not a prima facie case; it does not demand certainty.
Commonwealth v. Pacheco, 263 A.3d 626 (Pa. 2021), and Commonwealth v. Torres, 764 A.2d 532 (Pa. 2001):
Reinforce deference to the issuing authority: reviewing courts ask only whether there was a “substantial basis” for concluding that probable cause existed, and they avoid “hyper-technical” scrutiny.
United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972):
Describes probable cause as a “plastic” concept dependent on specific factual contexts. Individual factors may be inconclusive alone but sufficient in combination.

Chief Justice Todd deploys these authorities to emphasize that:

Probable cause is about reasonable probabilities, not proof beyond a reasonable doubt.
Courts must avoid demanding direct evidence of each link in the chain; reasonable inferences from circumstances and experience suffice.

D. Warrants as Investigative Tools

The concurrence also invokes precedents on whether warrants may be used to develop leads in an investigation rather than only to search the known premises of a known suspect:

Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967):
The U.S. Supreme Court approved using otherwise valid searches to obtain evidence that would help apprehend and convict criminals, rejecting rigid limitations on searching only for fruits or instrumentalities of crime.
Commonwealth v. Butler, 291 A.2d 89 (Pa. 1972):
Confirms that Pennsylvania cannot tolerate “general warrants,” but accepts probable cause where warrants target specific individuals or specific items connected to a crime.
Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010):
Recognizes that warrants can be used as investigative tools to search for “mere evidence” of a crime, even when the identity of the perpetrator or victim is unknown.

By citing Jones and Hayden, Chief Justice Todd underscores that:

A search warrant is not limited to situations where the suspect is already identified.
Warrants can permissibly be used to locate suspects, as long as traditional probable-cause and particularity standards are met.

E. Other Significant Authorities

McDonald v. United States, 335 U.S. 451 (1948), and Riley v. California, 573 U.S. 373 (2014):
These cases emphasize the role of the warrant requirement in placing a neutral magistrate between citizens and law enforcement, particularly in contexts involving privacy in personal effects and digital information.
Commonwealth v. Jacoby, 170 A.3d 1065 (Pa. 2017):
Cited by the appellant for the idea that probable cause must connect a particular person, a particular crime, and a particular place. Chief Justice Todd distinguishes this by emphasizing that, in investigative contexts, a warrant may still be valid even without a named suspect if the place to be searched is reasonably connected to the crime.
Commonwealth v. Johnson, 42 A.3d 1017 (Pa. 2012) (citation given as 2021):
Invoked by the appellant for the “person of reasonable caution” standard; Chief Justice Todd accepts that standard but concludes it is met here.

V. Legal Reasoning in the Concurrence

A. Avoiding the Constitutional Question

Chief Justice Todd begins by explaining why she would not address the first allocatur issue: whether Article I, Section 8 recognizes a reasonable expectation of privacy in search queries and IP addresses.

Her reasoning rests implicitly on a principle of constitutional avoidance: courts should avoid deciding constitutional questions if the case can be resolved on narrower, non-constitutional grounds.

Here:

A statute (18 Pa.C.S. § 5743) “appears” to require a warrant for this kind of electronic information.
The PSP complied by obtaining a warrant.
The only remaining live dispute, then, is whether that warrant was supported by probable cause.

In her view, because the case can be decided by applying established probable-cause principles to a warrant that clearly exists, it is unnecessary—and therefore improper—to resolve the thorny, emerging constitutional questions surrounding online privacy.

B. Framing the Probable Cause Question

Chief Justice Todd accepts that:

A warrant cannot be a mere “shot in the dark”; there must be articulable grounds, within the four corners of the affidavit, to support a fair probability that evidence of a crime will be found in the place searched.
Probable cause cannot be based solely on speculation or unsupported beliefs.

However, she stresses that:

Probable cause is not a high bar; it is about probabilities, not certainty or direct proof of every link (for example, direct evidence that the assailant used Google).
Courts must view the affidavit in a “common sense, nontechnical, ungrudging” manner, giving due weight to reasonable inferences and police experience.

C. Applying the Totality-of-the-Circumstances Test

Chief Justice Todd identifies several key factual components in Trooper Follmer’s affidavit:

The remoteness of the victim’s home.
K.M. lived in a “very small rural development” outside Milton, with a location “likely unknown by most.” This suggests the residence was not randomly discovered by a stranger passing by.
The timing and nature of the attack.
The assailant attacked at night when K.M. was home alone, while her husband worked an overnight shift. This supports the inference that the attacker knew her schedule or had observed her and her husband over time.
The manner of the crime.
K.M. was abducted, transported, raped, and then left in another isolated area close to her home. The choice of both the pick-up and drop-off locations indicates familiarity with the geography and suggests planning.
Police experience with sexual offenders.
Trooper Follmer drew on investigative experience that “such sexual offenders are predominantly fantasy driven,” often engaging in stalking, planning, and research over time before acting.
The ubiquity of internet search engines—especially Google.
It is common knowledge, and supported by amici for the Commonwealth, that Google dominates the search-engine market. In modern society, people routinely use Google to look up names, addresses, and information about others.

From these elements, Chief Justice Todd finds it “reasonable to conclude” that:

The crime was not random or impulsive, but planned in advance.
The planning likely included locating and researching K.M. and her home.
Given the pervasiveness of internet searches and Google’s dominance, it was highly probable that the assailant would have used Google (or a similar search engine) to research K.M. and her address.

Therefore, she concludes there was a fair probability that:

“Google searches were conducted in the planning or committing of the rape of K.M. and that Google search information would provide evidence of the crime.”

That “fair probability” satisfies the probable cause requirement.

D. Warrants Without a Named Suspect

A central defense critique was that PSP sought information about an unknown suspect, with no prior link to Google. Chief Justice Todd acknowledges that:

Often, probable cause is established by showing that a “specific individual” or “specific items” have a connection to the offense.

But she reiterates, relying on Hayden and Jones, that:

Warrants may validly be used to seek “mere evidence” or to identify a yet-unknown offender.
The absence of a named suspect does not automatically render a warrant invalid if the place to be searched (here, Google’s database for very specific queries in a narrow timeframe) is reasonably connected to the crime.

Thus, in her view, the Google keyword warrant was a permissible investigative tool rather than an impermissible fishing expedition.

E. Rejecting the “Dragnet” and General Warrant Arguments

Amici for the defense (including the Electronic Frontier Foundation, NACDL, and ACLU-related organizations) argued that keyword or reverse search warrants resemble the general warrants that the Framers sought to forbid—broad, non-particularized searches of many people’s private information based on mere suspicion that some evidence might be found somewhere.

Chief Justice Todd acknowledges the concern but finds that, under the totality of circumstances:

The warrant was narrowly tailored:
- It covered only a one-week period immediately before the crime.
- It was limited to searches of K.M.’s name, image, or address—not all searches or broad categories of data.
The warrant rested on specific factual inferences about:
- the nature and location of the crime, and
- the expected behavior of a sexual offender engaged in fantasy-driven planning.
The inference that the assailant had used Google was not a bare “hunch” but a reasonable and “highly probable” conclusion given modern search practices.

She therefore rejects analogies equating the warrant to:

“a warrant that authorizes police to search every house in an area of a town, on the chance that they might find written material connected to a crime.”

Instead, she views this warrant as sufficiently particularized and backed by probable cause, even though it captured data associated with multiple users, many of whom were likely innocent.

F. No Requirement of Direct Evidence of Google Use

Finally, Chief Justice Todd addresses the defense argument that the affidavit lacked direct evidence that Google—or any search engine—was actually used, and that this deficiency invalidated probable cause.

She responds that:

Pennsylvania law has never required direct evidence of every step in the chain to establish probable cause.
Reasonable inferences from circumstantial facts—combined with experience and common sense— are sufficient.

Invoking Jacoby and Green, she reiterates that probable cause deals with “probabilities,” not prima facie proof of criminal activity. The inference that the attacker used Google, given:

the remote location,
the timing of the attack,
the offender’s apparent knowledge of the husband’s schedule, and
modern reliance on Google for such research,

is, in her words, “a reasonable one, and, in my view, a highly probable one.”

VI. Complex Concepts Simplified

A. Probable Cause

What it is: Probable cause is the level of suspicion required for a judge to issue a search warrant. It exists when the known facts, viewed together and interpreted with common sense, would lead a reasonable person to believe that:

A crime has been committed, and
Evidence of that crime is likely to be found in the place to be searched.

It is less than the proof needed to convict at trial and does not require certainty or direct evidence of every link in the chain.

B. “Totality of the Circumstances” Test

Rather than applying rigid checklists, courts look at all the facts together—the “totality of the circumstances.” A fact that seems weak in isolation can contribute significantly when combined with other circumstances. Police experience and reasonable inferences also count.

C. The “Four Corners” Rule

When a judge reviews whether a warrant was supported by probable cause, the court looks only at what was written in the affidavit(s) submitted to the issuing magistrate. No new evidence may be added after the fact to bolster the warrant. This is called the “four corners” rule: the affidavit must stand or fall on its own text.

D. Keyword or Reverse Search Warrants

A keyword warrant (also called a reverse search warrant) is one where law enforcement:

Does not start with a known suspect or device, but instead
Compels a technology company (such as Google) to search its entire database for instances of certain keywords or interactions (such as search terms or location histories) related to the crime,
And then provides to law enforcement information about the users whose data matches those criteria.

In this case, the keyword warrant sought IP addresses for searches of K.M.’s name and address in the week leading up to her assault.

E. General Warrants vs. Particularity Requirement

General warrants were broad, non-specific warrants used by British authorities to search homes and papers without particularized suspicion. The Framers of both the U.S. Constitution and the Pennsylvania Constitution rejected this practice.

Modern warrants must:

Be supported by probable cause, and
“Particularly describe” the place to be searched and the items or persons to be seized.

The dispute in Kurtz is whether a keyword warrant directed at an entire company database but limited to narrow, crime-related search terms and dates is more like a constitutionally valid, particularized warrant or more like a forbidden general warrant. Chief Justice Todd sides with the former characterization in this specific, fact-bound context.

F. Fruit of the Poisonous Tree

This doctrine holds that if the initial search or seizure is illegal (for example, if a warrant lacked probable cause or was constitutionally invalid), then evidence obtained directly from that search, and evidence derived from it, must be excluded from trial. Here,

Kurtz argued that all evidence arising from the Google warrant should be suppressed as fruit of the poisonous tree.
Chief Justice Todd rejects this premise because she finds the warrant itself valid.

VII. Impact and Significance

A. For Pennsylvania Keyword and Reverse Warrants

While the binding rule of law in Commonwealth v. Kurtz will ultimately depend on the majority’s OAJC (not included in the text here), Chief Justice Todd’s concurrence provides an important guidepost:

Reverse keyword warrants are not per se unconstitutional or invalid. They can be upheld if:
- They are temporally and substantively focused (for example, one-week window, limited to the victim’s name and address).
- The affidavit articulates concrete, case-specific reasons why planning via internet searches is likely.
- The inferences drawn rest on the nature of the crime and on well-grounded police experience.
No requirement of direct proof of online searching. Courts may accept a strong, common-sense inference that a suspect used Google when:
- The crime clearly involved planning, and
- The planning likely included research of locations or persons in a world where online search is ubiquitous.

For law enforcement, this concurrence signals that carefully drafted keyword warrants, grounded in specific case facts and constrained by time and content, are likely to survive probable cause challenges in Pennsylvania, at least under similar circumstances.

B. For Pennsylvania Search-and-Seizure Jurisprudence

Chief Justice Todd’s opinion also reinforces several broader points:

Deference to issuing authorities. Reviewing courts must give significant deference to the magistrate’s initial judgment, asking only whether there was a substantial basis to find probable cause, not re-weighing the affidavit de novo.
Probable cause as a flexible, probability-based concept. Courts should avoid rigid rules that effectively raise probable cause to something close to proof at trial. Her application of Gates, Gray, and related cases underscores this.
Permissible use of warrants as investigative tools. By relying on Jones and Hayden, she affirms that warrants can be used at earlier stages of an investigation to identify suspects through evidence, not just to obtain additional evidence against already-known suspects.

C. The Role of Statutes in the Digital Context

Chief Justice Todd’s brief discussion of 18 Pa.C.S. § 5743 highlights the growing role of legislative regulation of digital privacy:

The General Assembly has already required warrants for certain electronic content in storage.
This statutory framework can sometimes obviate the need for courts to decide broad constitutional questions in specific cases.

Going forward, litigants can be expected to argue more frequently about:

The scope of § 5743 (what counts as “contents” and “electronic storage”), and
How it interacts with Article I, Section 8 and the Fourth Amendment.

D. For Privacy and Civil Liberties Advocacy

Civil liberties groups portrayed keyword warrants as inherently suspect, akin to historical general warrants. Chief Justice Todd’s concurrence shows that at least three justices are prepared to:

Accept such warrants under a standard probable-cause analysis, where they are narrow in scope and supported by detailed factual reasoning.
Reject arguments that warrants are invalid merely because they sweep in data from many unidentified, potentially innocent users.

This suggests that future privacy challenges will likely have to:

Focus on the breadth and tailoring of particular warrants (timeframes, search terms, categories of data), and
Provide concrete examples of overbreadth or lack of any articulable, case-specific link to the crime.

At the same time, the OAJC’s separate engagement with the privacy question (not discussed in the concurrence) indicates that the Court as a whole is deeply attentive to the stakes of digital surveillance under Article I, Section 8.

VIII. Conclusion

Chief Justice Todd’s concurrence in Commonwealth v. Kurtz offers a focused and pragmatic approach to evaluating novel digital search techniques within traditional search-and-seizure doctrine. She would:

Avoid deciding the broad constitutional question of whether there is an Article I, Section 8 privacy interest in Google search queries and IP addresses, given that a warrant was obtained under an apparently applicable statute.
Uphold the Google keyword warrant on the ground that, under the totality of the circumstances, the affidavit established a fair probability that the unknown assailant had researched K.M. and her home via Google and that evidence of this could be found in Google’s archives.
Clarify that reverse keyword warrants can be permissible investigative tools, provided they are sufficiently particularized and grounded in concrete, crime-specific facts and reasonable inferences.

The concurrence thus reinforces:

The flexible, probability-based nature of probable cause,
The centrality of the four corners and totality-of-circumstances tests, and
A willingness to adapt traditional warrant principles to digital investigations involving powerful third-party data holders like Google.

As Pennsylvania courts and practitioners continue to grapple with digital privacy, Kurtz—and particularly Chief Justice Todd’s concurrence—will serve as a significant reference point for how reverse keyword warrants and similar investigative techniques are evaluated under longstanding constitutional and statutory standards.