          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                  :
                                              :
               v.                             :     No. 366 C.D. 2017
                                              :     Submitted: April 12, 2018
Dennis Love,                                  :
                                Appellant     :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY JUDGE BROBSON                            FILED: May 10, 2018


               Dennis Love (Love) appeals from the judgment of sentence imposed by
the Court of Common Pleas of the 41st Judicial District, Juniata County Branch (trial
court), dated February 23, 2017, which sentenced Love to pay fines, costs, and
restitution stemming from violations of Section 2307 of the Game and Wildlife Code
(Code).1 For the reasons set forth below, we now reverse an earlier order of the trial
court, dated November 2, 2016, denying a motion to suppress; vacate the trial court’s
judgment of sentence; and remand the matter to the trial court for further
proceedings.
               On     November       16,    2015,    Pennsylvania   Game    Commission
(Commission) Wildlife Conservation Officer Stephen S. Hower (Hower) submitted
an application for a search warrant to a Magisterial District Judge (MDJ). The
warrant application sought authorization to search Love’s property for “[p]arts of
unlawfully taken or possessed game or wildlife.”                    (Reproduced Record

      1
          34 Pa. C.S. § 2307.
(R.R.) at 38a.) In support of the application, Hower submitted an affidavit of
probable cause which provided:
                On 11/11/[20]15 at approximately 0100 hours,
                Pennsylvania Wildlife Conservation Officers were
                patrolling by aircraft over Juniata County when they
                observed a spotlight being operated from a vehicle in a
                field near East Waterford. Since it is unlawful to use an
                artificial light to search for game or wildlife after 11 PM,
                the officers watched the vehicle and reported the activity
                to officers on the ground. Deputy Wildlife Conservation
                Officer [(DWCO)] Terry Clevenger along with two other
                officers responded to 9853 Route 75 S, East Waterford
                where the officers in the aircraft had reported seeing the
                vehicle stop.
                Upon their arrival DWCO Clevenger found the vehicle, a
                white Dodge truck, license number YHM3257, with what
                appeared to be blood in the bed and on the tail gate. He
                spoke to the home owner, Dennis R. Love, who explained
                that the blood was from a deer that he had killed on the
                evening of Thursday, November 12 “for crop damage[.]”[]
                When asked by Clevenger whether he had reported killing
                this deer to the Game Commission, Love annswered [sic]
                “No[.]”[] Clevenger asked for the head and hide of the
                deer and was told by Love that it had been disposed of.
                Love told the officers that the meat from this deer was
                “Wrapped and in the freezer[.]”[]
                Since the killing of this deer had not been reported to the
                Commission as required, the possession of its parts would
                be in violation of the Game and Wildlife Code.[2]

(Id. at 39a.)
                On November 16, 2015, an MDJ authorized the warrant, and the
Commission executed the search. The search revealed not only the deer hide and
meat but also a myriad of other assorted game carcasses and meat. (Id. at 32a-33a.)
As a result of this search, the Commission filed twenty-four summary citations

       2
           34 Pa. C.S. §§ 101-2965.

                                             2
against Love, which were comprised of twenty-two counts of Unlawful Taking or
Possession of Game or Wildlife in violation of 34 Pa. C.S. § 2307(a) and two counts
of   Unlawful     Acts    Concerning      Taking     of   Furbearers     in   violation    of
34 Pa. C.S. § 2361(a)(2). (Id. at 24a-29a.) Love pleaded not guilty to all counts.
Following a consolidated summary trial held on March 8, 2016, the MDJ found Love
guilty of all counts.3
              On April 7, 2016, Love filed a notice of appeal from his twenty-four
summary offenses, and the trial court scheduled a de novo hearing. (Id. at 23a-29a.)
Prior to the hearing date, Love filed a motion seeking to suppress the evidence
obtained during the search. (Id. at 32a-39a.) In so doing, Love argued that he had a
reasonable expectation of privacy at all places from which the evidence was seized.
(Id.) Further, Love challenged the warrant as overbroad and lacking specificity.
(Id.) Following a motion hearing, the trial court denied Love’s suppression motion
by order dated November 2, 2016. (Id. at 70a.)
              The trial court conducted a de novo summary appeal hearing and found
Love guilty of all counts. (Id. at 306a.) By order dated February 23, 2017, the trial
court sentenced Love to fines, costs, and restitution on the twenty-four summary
offenses. (Id. at 124a-25a.) Love then filed the instant appeal.
              On appeal,4 Love argues that the trial court erred in denying his motion
to suppress. Love challenges the search warrant as unconstitutionally overbroad and

       3
         At the time of the summary trial, the Commonwealth amended the two counts of Unlawful
Acts Concerning Taking of Furbearers to two counts of Unlawful Taking or Possession of Game
or Wildlife. (R.R. at 52a.) As a result, the MDJ found Love guilty of twenty-four counts of
Unlawful Taking or Possession of Game or Wildlife instead of the originally charged twenty-two
counts. (Id. at 3a-6a.)
       4
         Our review of a trial court’s determination on appeal from a summary conviction is
limited to determining whether the trial court’s findings of fact are supported by competent


                                              3
lacking the requisite degree of specificity. Love argues that probable cause only
existed to perform a search for parts of a deer, whereas the search warrant authorized
a search for parts of any game or wildlife, thus resulting in a fishing expedition.
                A search warrant cannot be used as a general investigatory tool to
uncover evidence of a crime. In re Casale, 517 A.2d 1260, 1263 (Pa. 1986). Nor
may a warrant be so ambiguous as to allow the executing officers to pick and choose
among an individual’s possessions to find which items to seize, which would result
in the general “rummaging” banned by the Fourth Amendment. See Cmwlth. v.
Santner, 454 A.2d 24, 25 n.2 (Pa. Super. 1982), cert. denied, 468 U.S. 1217 (1984)
(citing Marron v. United States, 275 U.S. 192, 195 (1927)). The language of the
Pennsylvania Constitution requires that a warrant describe the items to be seized “as
nearly as may be.” Pa. Const. art 1, § 8. The clear meaning of the language is that
a warrant must describe the items as specifically as is reasonably possible. See
Cmwlth. v. Reese, 549 A.2d 909, 910 (Pa. 1988). This requirement is more stringent
than that of the Fourth Amendment, which merely requires particularity in the
description.5
                A warrant is defective when its explanatory narrative does not describe
as clearly as possible those items for which probable cause exists to search. Cmwlth.


evidence or whether the trial court erred as a matter of law. Cmwlth. v. Whiteford,
884 A.2d 364, 366 n.2 (Pa. Cmwlth. 2005), appeal denied, 902 A.2d 1243 (Pa. 2006).
       5
           The Fourth Amendment provides:
       The right of the people to be secure in their persons, houses, papers, and effects,
       against unreasonable searches and seizures, shall not be violated, and no Warrants
       shall issue, but upon probable cause, supported by Oath or affirmation, and
       particularly describing the place to be searched, and the persons or things to be
       seized.
U.S. Const. amend. IV.

                                               4
v. Grossman, 555 A.2d 896, 899-900 (Pa. 1989). Warrants should be read “in a
common sense fashion and should not be invalidated by hypertechnical
interpretations. This may mean, for instance, that when an exact description of a
particular   item   is   not   possible,   a   generic    description   will   suffice.”
Pa. R. Crim. P. 205 (cmt.). In determining whether a warrant is defective on such
grounds, our Supreme Court has opined:
             Consequently, in any assessment of the validity of the
             description contained in a warrant, a court must initially
             determine for what items probable cause existed. The
             sufficiency of the description must then be measured
             against those items for which there was probable cause.
             Any unreasonable discrepancy between the items for
             which there was probable cause and the description in
             the warrant requires suppression.        An unreasonable
             discrepancy reveals that the description was not as specific
             as was reasonably possible.
Grossman, 555 A.2d at 900.
             In reviewing whether probable cause existed to support a search
warrant, the court’s determination must be based on the facts described within the
four corners of the supporting affidavit.                See Cmwlth. v. Housman,
986 A.2d 822, 843 (Pa. 2009). As stated by our Supreme Court:
             The task of the issuing magistrate is simply to make a
             practical, common-sense decision whether, given all the
             circumstances set forth in the affidavit before him,
             including the “veracity” and “basis of knowledge” of
             persons supplying hearsay information, there is a fair
             probability that contraband or evidence of a crime will be
             found in a particular place. And the duty of a reviewing
             court is simply to ensure that the magistrate had a
             “substantial basis for . . . conclud[ing] that probable cause
             existed.”
Cmwlth. v. Gray, 503 A.2d 921, 925 (Pa. 1985) (internal citations omitted).



                                           5
             With the foregoing in mind, the issue before this Court is whether there
is an unreasonable discrepancy between the items for which probable cause existed
and the description in the warrant.
             In Grossman, an affidavit for a search warrant provided that Grossman,
the owner of a local insurance agency, fraudulently executed documents in an
attempt to defraud three insurance applicants. Grossman, 555 A.2d at 897, 900. The
search warrant, however, authorized the search and seizure of “[a]ll insurance files,
payment records, receipt records, copies of insurance applications and policies, [and]
cancelled checks.”     Id. at 897.     This led to police confiscating every file in
Grossman’s place of business. Id. at 898. Grossman challenged the specificity of
the warrant. Our Supreme Court, in concluding that an unreasonable discrepancy
existed between the affidavit and search warrant, opined:
             It is clear that the warrant here at issue cannot survive
             constitutional scrutiny. Notwithstanding the contrary
             conclusion reached by the Superior Court, the affidavit
             was limited to the files of only three of [Grossman]’s
             clients . . . . After detailing the irregularities in these files,
             the affidavit concludes: “[w]herefore, affiant believes
             there is sufficient probable cause to believe
             [Grossman] . . . fraudulently executed various documents
             in connection with an ongoing scheme to defraud
             insurance applicants.” This language must be read in the
             context of the entire affidavit. The “wherefore” clause
             refers back to the three client files discussed in the body of
             the affidavit. Although the Superior Court may have been
             correct to observe that the police may have suspected that
             other clients were being defrauded, the affidavit that was
             placed before the issuing judge did not include any such
             additional information, and “[t]he issuing authority, in
             determining whether probable cause has been established,
             may not consider any evidence outside the affidavits.”
             We conclude that while probable cause existed for the
             three named files there was not probable cause as to the
             other files in [Grossman]’s offices. [Grossman] had over
                                             6
             2,000 clients. That three clients, 0.15% of [Grossman]’s
             clients, had filed complaints with the Pennsylvania
             Insurance Commission cannot be said to lead a reasonable
             person to conclude that probable cause existed to seize,
             and subsequently to search, the files of all 2,000 of
             [Grossman]’s clients. In short, there was probable cause
             to search only for those three files described in the
             affidavit.

Id. at 900 (emphasis added) (internal citations omitted).
             Here, just as in Grossman, the mere suspicion that Love harvested other
game or wildlife beyond the deer in question does not negate the fact that the
affidavit submitted to the MDJ offered no facts to establish probable cause of such
activity. The affidavit clearly established probable cause to search for the deer.
Love does not dispute this fact. The affidavit, however, makes no assertions
whatsoever as to Love harvesting any other game, merely that “the killing of this
deer had not been reported to the Commission as required, [and] the possession of
its parts would be in violation of the [Code].” (R.R. at 39a (emphasis added).)
             The Commonwealth argues that, at the time of the affidavit’s
submission, the Commission could only know that Love harvested something, but
could not identify precisely what. (Appellee’s Br. at 15.) In support of this assertion,
the Commonwealth notes that (1) the investigating officer had no way of developing
a forensic certainty that the blood in Love’s truck bed belonged to a deer, and (2) it
is not uncommon for suspects to be untruthful to law enforcement. We decline to
entertain either notion.    If the investigating officer suspected that Love was
harvesting other wildlife or being untruthful, then the investigating officer should
have included facts to support such an assertion in the affidavit. See Grossman,
555 A.2d at 900. Given the facts averred in the affidavit, we conclude that there is



                                           7
an unreasonable discrepancy between the items for which probable cause existed
and the description in the warrant, rendering the search warrant invalid.
              Accordingly, we reverse the trial court’s November 2, 2016 order
denying Love’s motion to suppress, vacate the trial court’s judgment of sentence,
and remand the matter to the trial court for further proceedings.6




                                              P. KEVIN BROBSON, Judge




       6
         The record does not make clear how many of Love’s twenty-four summary offenses are
affected because of this ruling. Love appears to acknowledge that the charge stemming from his
admission to the unreported harvesting of one deer may still be valid, whereas the Commonwealth
has advanced no argument on this matter. On the record before us, we are unable to determine
which offenses were the product of the invalid warrant, and which offenses would be unaffected
notwithstanding the warrant’s invalidation. On remand, the trial court will have to make these
determinations.

                                              8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania             :
                                         :
            v.                           :   No. 366 C.D. 2017
                                         :
Dennis Love,                             :
                         Appellant       :



                                     ORDER


            AND NOW, this 10th day of May, 2018, the Court of Common Pleas of
the 41st Judicial District, Juniata County Branch’s (trial court), November 2, 2016
order, denying Dennis Love’s motion to suppress, is REVERSED; the trial court’s
February 23, 2017 judgment of sentence is VACATED; and this matter is
REMANDED for further proceedings.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
