J-A03027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellant

                    v.

SYEEN HILL

                          Appellee                      No. 1080 MDA 2016


                 Appeal from the Order Entered June 16, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005746-2015


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

DISSENTING MEMORANDUM BY LAZARUS, J.:                        FILED JUNE 12, 2017

       I depart from the Majority on one issue in this case, namely whether

the information contained in the affidavit of probable cause demonstrated a

fair probability that there was contraband in the residence in question. In

my view, the Majority incorrectly concludes that the information contained

within the four corners of the affidavit established a nexus between various

drug transactions conducted by Hill and his residence. Hence, I respectfully

dissent.

       Unlike in Clark and Davis, the investigation of Hill’s residence (the

genesis of which was not a reliable confidential informant tip) was not based

upon    a   substantial    nexus      with   his   cocaine    business.   But   cf.

Commonwealth v. Davis, 595 A.2d 1216 (Pa. Super. 1991) (informant

identified defendant’s residential address, observed defendant conduct
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multiple drug transactions near residence and was told defendant recently

acquired approximately two ounces of cocaine); Commonwealth v. Clark,

595   A.2d   1216   (Pa.   Super.   2011)   (informant   identified   defendant’s

residential address as place where cocaine was packaged and distributed

and participated in controlled buy with defendant). Detective Weber did not

receive intel from an informant that Hill kept drugs and/or contraband in his

residence.    Rather, Detective Weber initiated an investigation into Hill’s

residence only after ascertaining his address from the Lancaster County

Probation Office.

      While the majority does not rely on a comparison of Commonwealth

v. Gagliardi, 128 A.3d 790 (Pa. Super. 2015), with the instant case, I

nevertheless find it instructive.   There, an informant stated to police that

Gagliardi was in the business of selling cocaine from his residence. During a

subsequent investigation, the police twice observed Gagliardi provide

cocaine to an informant during controlled buys. Additionally, police observed

Gagliardi conduct a third private cocaine transaction.     Each time, Gagliardi

exited his residence, provided cocaine, and then immediately returned.

Furthermore, the police in Gagliardi received an informant tip that Gagliardi

operated his cocaine business from his residence, and the police observed

multiple drug transactions at that location. Each time, Gagliardi immediately

exited and reentered his residence.

      The critical issue is whether an observation of a single drug transaction

related to an individual’s residence is sufficient to establish probable cause,

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absent a corroborative informant tip or other similar information/evidence,

that the residence may contain contraband. In concluding that it does, the

majority notes that “[Hill] was seen on multiple occasions on foot, around

his residence, meeting with unknown individuals for short period[s] of time,

an activity consistent with the sale of contraband,” and that “the

[affiant] stated that drug dealers often keep contraband in their

residences.”    Majority Opinion, 4/27/17, at 6 (emphasis added); see

Commonwealth v. Randolph, 151 A.3d 170 (Pa. Super. 2016) (police

officer experience may fairly be regarded as relevant factor in determining

probable cause to support issuance of search warrant; officer, however,

cannot simply reference training and experience abstract from explanation of

specific application to circumstances at hand).

      I do not agree that the mere inclusion of the phrases “an activity

consistent with the sale of contraband” and “drug dealers often keep

contraband in their residences” is sufficient to establish a nexus between

Hill’s cocaine business and his residence and therefore probable cause to

approve the search warrant. Although the affidavit included information that

Hill was once seen “exiting [his residence], meeting with [an informant], and

then going back to [his residence],” several key facts were omitted. Among

them were: (1) where the transaction took place, (2) how long the

transaction took, and (3) how long before Hill returned to his residence.

See Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975)

(affidavit insufficient where no indication where transaction took place, how

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long it took, or how long seller was gone).         Moreover, while Detective

Weber’s informants clearly corroborated the conclusion that Hill was in the

business of selling cocaine from his vehicle, they did not corroborate the

conclusion that Hill kept drugs and/or contraband in his residence. See id.

at 364 (affidavit insufficient where regular confidential informant did not

corroborate conclusion of purchasers that seller kept drugs in his apartment,

even though affidavit did tend to establish that seller was drug dealer).

      In distinguishing the instant case from Kline, the majority cites

Gagliardi, stating:

      In support of its rul[ing], the suppression court relied on Kline
      and Way. In Gagliardi, the Court distinguished Kline and
      Way[:]

            Certainly, in Kline, this Court held that the affidavit
            of probable cause failed to establish a nexus
            between the drug dealer’s apartment and the
            contraband because the affidavit omitted certain
            facts concerning the single, private transaction
            between the drug dealer and two girls. We held that
            these omitted facts included: “where the transaction
            [between the dealer and the two girls] took place,
            how long it took, how long [the dealer] was gone,
            [and] what led the girls to conclude that he had gone
            to his apartment [to retrieve the drugs].” In the
            case at bar, however, we are dealing with
            [one] controlled transaction[] – that [was]
            witnessed by the police and recounted, in
            detail, in the affidavit of probable cause.
            Further, the affidavit in the case at bar clearly recites
            “where the [controlled] transaction[] took place” and
            “what led [the police] to conclude’ that appellant left
            his home prior to the drug sales and then return to
            his home after the drug sales.           Kline is thus
            inapposite to the facts of this case.


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J-A03027-17



Majority Opinion, 4/27/17, at 8-9 (citing Gagliardi, 128 A.3d at 798)

(emphasis added).1

         In offering a comparison of Kline and Gagliardi, the majority does

not provide proper context. Rather, the majority frames the comparison in a

vacuum, and in doing so, it misrepresents the fact that police observed

Gagliardi selling cocaine on three occasions, which I believe dilutes the

distinction between Kline and Gagliardi.             Certainly, the defendant in

Gagliardi was a drug dealer – an informant corroborated as much, and

Gagliardi took part in a controlled buy.         However, there, the investigating

officers did not rest on these facts in establishing probable cause; they

proceeded to conduct a second controlled buy in an effort to establish a

nexus between Gagliardi’s residence and his cocaine business.

         Here, the investigating officers, after corroborating that Hill was in the

business of selling cocaine, ascertained his address from his probation office,

observed him interacting with “unknown subjects,” and then conducted a

single     controlled   buy,   which    they   inadequately   documented     in   the

subsequent affidavit. See Weber Aff. ¶ 12. Accordingly,          I   would    affirm

the suppression court’s order.



____________________________________________


1
  In Gagliardi, this Court originally stated the following: “In the case at
bar, however, we are dealing with two controlled transactions – that
were witnessed by the police and recounted, in detail, in the affidavit of
probable cause.” 128 A.3d at 798 (emphasis added).



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