J-S69007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

STAN RYALS

                         Appellee                   No. 2355 EDA 2013


                Appeal from the Order Entered July 10, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014654-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED JANUARY 16, 2015

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted

Appellee, Stan Ryal’s, motion to suppress.      We reverse and remand for

further proceedings.

      The trial court opinion sets forth the relevant facts and procedural

history of this case as follows:

         On July 10 2013, [Appellee’s] counsel presented a Motion
         to Suppress Physical Evidence which was filed on June 14,
         2013[,] related to a search warrant issued upon
         information allegedly derived from anonymous [citizens’]
         complaints, in conjunction with information obtained from
         a confidential informant as well as police observation of an
         alleged street drug transaction.

         The Affidavit of Probable Cause is silent as to when the
         alleged complaints were received from the citizens or when
         information received from an informant was obtained prior
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       to the application for issuance of the warrant. …

       [The suppression] [c]ourt found that under the U.S.
       Supreme Court’s “totality of the circumstances” test set
       forth in Illinois v. Gates, 462 U.S. 213, 238-239 (1983),
       probable cause did not exist in order to issue a search
       warrant. Based upon the information contained in the
       warrant, [the suppression] [c]ourt determined that the
       affidavit failed to establish any nexus between the
       observed drug transaction and the residence.

       Accordingly, [the suppression] [c]ourt granted [Appellee’s]
       motion and suppressed all evidence obtained against
       [Appellee] stemming from the unlawful search. …

       The Affidavit of Probable Cause prepared by Police Officer
       Galazka stated:

          I, P/O Galazka #7481, your affiant, am presently
          assigned to Narcotic Field Unit South. I have been a
          sworn Police Officer since Jan. of 1995. In my
          capacity as a Police Officer, I have been assigned to
          the Narcotics Bureau since 1999. In my course of
          assignment as a Police Officer, I have been involved
          in an excess of 2000 narcotic arrests. Since being
          assigned to the Narcotic Bureau, I have worked
          numerous investigations for violations of the
          Pennsylvania Controlled Substance Act of 1972. My
          involvement in these investigations has entailed
          surveillances, undercover purchases, and the
          preparation of search and seizure warrants by
          myself. I have received specialized narcotics-related
          training given by the Philadelphia Police Department.
          I have also been trained in courses given by the
          DEA. My training and experience have made me
          familiar with the ways in which narcotics are
          packaged for sales on the street and from houses for
          illegal sales and distribution.     I have received
          training in the handling of confidential informants
          being utilized for the purpose of undercover
          investigations.

          On 10-19-12[,] your affiant interviewed P/O O’Neill
          #5786 and P/O Gorman #3778 of the 3rd district,

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          who stated the following:

          P/O O’Neill #5786 and P/O Gorman #3778 received
          information from numerous citizen complaints that
          heroin and crack cocaine is being distributed from
          532 Mifflin St. by a [black male] name[d] [Appellee].

          On 10-19-12[,] at approx. 9:17am, while working
          the 8am x 4pm tour of duty and on patrol in the area
          of the 500 block of Mifflin St., they observed a white
          female (later [identified] as Samantha Kerns), who
          was riding her bicycle and stopped at 532 Mifflin St.,
          where she met with a heavyset [black male] known
          as [Appellee]. Kerns and [Appellee] had a brief
          conversation and Kerns handed [Appellee] [United
          States Currency;] [Appellee] then handed a small
          object to Kerns. Kerns noticed the Police and began
          to ride her bicycle [westbound] on Mifflin St. Police
          stopped Kerns in the 1900 block of S. 7th Street and
          she handed the officers (1) one small clear plastic
          baggie containing a blue glassine packet with the
          word “Bugatti” stamped on it in red ink, containing a
          white powdery substance, alleged heroin, which she
          had in her right hand. Det. Farrell #9243 conducted
          a field sobriety test with positive results for heroin.
          The narcotics were placed on PR#3059924.

          Your Affiant, P/O Brown #2962 and P/O Rich #9843
          also received information from a reliable confidential
          informant 01101 that [Appellee is] distributing and
          storing heroin inside of 532 Mifflin St.

          On 10-19-12[,] P/O Brown conducted a check of the
          Philadelphia Police arrest photo database, which
          revealed a photo of [Appellee] with a PPN 651845.
          P/O O’Neill positively [identified] this photo as the
          person who sold the heroin to Samantha Kerns.

          On 10-16-12[,] the 3rd district responded to        an
          attempted fire bombing at 532 Mifflin St. While     at
          532 Mifflin St. police could smell a strong odor    of
          gasoline and a window was broken, where             an
          unknown person attempted to throw a fire bomb.


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              Based on the above facts and circumstances your
              Affiant respectfully requests a daytime search and
              seizure warrant for 532 Mifflin St.

(Trial Court Opinion, filed February 4, 2014, at 1-4) (some citations and

quotation marks omitted).         Appellee based his suppression motion on the

claim that the search warrant failed to establish probable cause. On July 10,

2013, the suppression court granted the motion and suppressed all physical

evidence obtained as a result of the search warrant. On August 8, 2013, the

Commonwealth timely filed a notice of appeal1 and a voluntary concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       The Commonwealth raises the following question for our review:

          DID THE [SUPPRESSION] COURT ERR BY SUPPRESSING
          EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT
          FROM 532 MIFFLIN STREET WHERE THE POLICE
          CORROBORATED REPORTS OF DRUG DEALING FROM
          BOTH NUMEROUS CONCERNED CITIZENS AND A
          CONFIDENTIAL INFORMANT BY OBSERVING [APPELLEE]
          SELLING HEROIN AT THAT LOCATION?

(Commonwealth’s Brief at 3).

       When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

____________________________________________


1
  The Commonwealth’s notice of appeal certifies that the court’s order
granting Appellee’s motion to suppress terminates or substantially handicaps
the prosecution. See Pa.R.A.P. 311(d); Commonwealth v. Huntington,
924 A.2d 1252, 1254 n.1 (Pa.Super 2007) (stating: “The Commonwealth
may take an appeal as of right from an order that does not end the entire
case if the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution”).



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         [We] consider only the evidence from the defendant’s
         witnesses together with the evidence of the prosecution
         that, when read in the context of the entire record,
         remains uncontradicted.       As long as there is some
         evidence to support them, we are bound by the
         suppression court’s findings of fact. Most importantly, we
         are not at liberty to reject a finding of fact which is based
         on credibility.

         The suppression court’s conclusions of law, however, are
         not binding on an appellate court, whose duty is to
         determine if the suppression court properly applied the law
         to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

      The Commonwealth argues Appellee’s motion to suppress should have

been denied.      The Commonwealth contends numerous citizens, who

identified Appellee by name, complained Appellee was selling heroin out of

532 Mifflin Street.   The Commonwealth alleges a confidential informant

(“CI”), who was identified in the affidavit of probable cause by registration

number, corroborated these reports when the CI told police Appellee was

distributing and storing heroin inside 532 Mifflin Street. The Commonwealth

also asserts police surveillance of 532 Mifflin Street further corroborated the

citizens’ and CI’s reports, when police observed a woman on bicycle stop at

532 Mifflin Street and purchase heroin from Appellee, who was later

identified from a police photo database. The Commonwealth claims, under

the totality of the circumstances, that it was reasonably probable Appellee


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was storing narcotics and/or the proceeds from drug sales at 532 Mifflin

Street, and there was a substantial basis upon which the magistrate could

reach this conclusion and issue the warrant. The Commonwealth maintains

the suppression court improperly viewed each piece of evidence in isolation.

The Commonwealth concludes we should reverse the suppression court’s

order. We agree.

      “The linch-pin that has been developed to determine whether it is

appropriate to issue a search warrant is the test of probable cause.”

Commonwealth v. Clark, 611 Pa. 601, ___, 28 A.3d 1284, 1288 (2011).

“In determining whether the warrant is supported by probable cause, the

magistrate may not consider any evidence outside the four-corners of the

affidavit.”   Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa.Super.

2003) (quoting Commonwealth v. Sharp, 683 A.2d 1219, 1223 (Pa.Super.

1996)). “Probable cause exists where the facts and circumstances within the

affiant’s knowledge and of which he has reasonably trustworthy information

are sufficient in themselves to warrant a [person] of reasonable caution [to

believe] that a search should be conducted.” Clark, supra at ___, 28 A.3d

at 1288 (citation omitted). Additionally,

          the question of whether probable cause exists for the
          issuance of a search warrant must be answered according
          to the “totality of the circumstances” test articulated in
          Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921
          (1985), and its Pennsylvania progeny, which incorporates
          the reasoning of the United States Supreme Court in
          Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
          L.Ed.2d 527 (1983). The task of the magistrate acting as

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         the issuing authority is to make a practical, common sense
         assessment of whether, given all the circumstances set
         forth in the affidavit, a fair probability exists that
         contraband or evidence of a crime will be found in a
         particular place.   A search warrant is defective if the
         issuing authority has not been supplied with the necessary
         information. The chronology established by the affidavit of
         probable cause must be evaluated according to a common
         sense determination.

Huntington, supra at 1255 (some citations and quotation marks omitted).

      “Probable cause is based on a finding of the probability, not a prima

facie showing of criminal activity, and deference is to be accorded a

magistrate’s finding of probable cause.” Commonwealth v. Ryerson, 817

A.2d 510, 514 (Pa.Super. 2003). “The duty of the reviewing court is simply

to verify that the issuing magistrate had a substantial basis for concluding

that probable cause existed.” Huntington, supra at 1255. Moreover, the

reviewing   court   must   “consider   the   affidavit   in   its   entirety,   giving

significance to each relevant piece of information and balancing the relative

weights of all the various indicia of reliability (and unreliability)” rather than

judge “bits and pieces of information in isolation….” Clark, supra at ___,

28 A.3d at 1289 (holding: “lower courts failed to look at the information as a

whole, but examined and considered individual factors in a mechanical

fashion, effectively nullifying the mandate to assess the totality of the

circumstances”).

      “In assessing an informant’s reliability, a presumption exists that the

information is trustworthy when it has been provided by an identified


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witness.”     Huntington, supra at 1255. “[A] totality-of-the-circumstances

analysis permits a balanced assessment of the relative weights of all the

various indicia of reliability and unreliability attending an informant’s tip.”

Clark, supra at ___, 28 A.3d at 1288 (citing Gates, supra at 234, 103

S.Ct. at 2330, 76 L.Ed.2d at ___). “A [confidential informant’s] veracity and

basis    of   knowledge    are   but   factors     among   the   totality   of   the

circumstances[.]” Clark, supra at ___, 28 A.3d at 1288.

          [A]n informant’s tip may constitute probable cause where
          police independently corroborate the tip, or where the
          informant has provided accurate information of criminal
          activity in the past, or where the informant himself
          participated in the criminal activity. The corroboration by
          police of significant details disclosed by the informant in
          the affidavit of probable cause meets the Gates threshold.

Id. (citations omitted).

        Furthermore, “[a]n affidavit of probable cause must include facts from

which a magistrate can determine the time frame within which the

supporting information was acquired.”            Sharp, supra at 1223 (citation

omitted).     “A search warrant is defective if the issuing authority is not

supplied with a time frame upon which to ascertain when the affiant

obtained the information from the informant and when the informant himself

witnessed the criminal acts detailed in the affidavit of probable cause.” Id.

“[S]tale information cannot provide probable cause in support of a warrant.”

Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa.Super. 2012) (quoting

Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011)) (quotation


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marks omitted). Nevertheless, “[a] showing that criminal activity is likely to

have continued up to the time of the issuance of a warrant renders

otherwise stale information viable.”     Commonwealth v. Jones, 542 Pa.

418, 427, 668 A.2d 114, 118 (1995).

      Instantly, the magistrate had a substantial basis to conclude, under

the totality of the circumstances, there was probable cause to support a

search warrant for 532 Mifflin Street.    See Huntington, supra.      The CI’s

information was presumptively trustworthy because the affidavit of probable

cause identified the CI by registration number, stated the CI was reliable,

and included the date the CI provided information to the police.          See

Huntington, supra.      The police also independently corroborated the CI’s

information, that Appellee was distributing and storing heroin inside 532

Mifflin Street, when the police observed Appellee sell heroin in front of 532

Mifflin Street. See Clark, supra. Moreover, the affidavit’s failure to include

the dates the citizens’ observed Appellee’s illegal activity and relayed that

information to the police did not render the search warrant defective.      An

attempted firebombing at 532 Mifflin Street on October 16, 2012, further

indicated a likelihood that criminal activity continued to occur up to the time

the search warrant was issued on October 19, 2012.        See Jones, supra.

This incident rendered the citizens’ arguably stale information sufficiently

viable to permit the magistrate to determine the time frame within which the

illegal activity occurred or was occurring.        See id.; Sharp, supra.


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Therefore, under the totality of the circumstances, the magistrate properly

determined the affidavit of probable cause contained sufficient information to

support the search warrant. Accordingly, we reverse the suppression court’s

order and remand for further proceedings. See Huntington, supra at 1259

(stating suppression or exclusion of evidence is most extreme remedy that

can be justified only when it is necessary to vindicate fundamental rights or

to correct or deter police abuse).

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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