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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: CP-36-CR-0005746-2015


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 12, 2017

      The Commonwealth appeals the order of the Court of Common Pleas of

Lancaster County entered on June 16, 2016, granting Appellee Syeen Hill’s

motion to suppress evidence obtained from the search of his residence. The

Commonwealth argues the suppression court erred in finding the search

warrant failed to set forth probable cause to search Appellee’s residence.

We agree. Accordingly, we reverse and remand.

      The underlying facts are not at issue here.    See Suppression Court

Opinion, 6/16/16, at 1-5.    Briefly, “based on the information supplied by

[two] informants and the information gather[ed] through the officers’

surveillance of [Appellee], there was a fair probability that [Appellee] was a

drug dealer who sold his drugs on the streets of Lancaster City, that he used

his vehicle, a 2003 Chevrolet Impala, to facilitate some of his drug sales,
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and that he continued to engage in criminal activity up to the time that

warrant was issued.” Id. at 9. Accordingly, the suppression court denied

Appellee’s motion to suppress to the extent it sought to suppress the

evidence recovered from the search of Appellee’s person and vehicle.

However, the suppression court granted Appellee’s motion to suppress to the

extent it challenged the search of his residence. The suppression court, as

noted, found the Commonwealth failed to present evidence sufficient to

support issuance of a warrant to search Appellee’s residence. This appeal

followed.

     On appeal, the only issue is whether the Commonwealth presented

sufficient evidence to justify issuance of a search warrant of Appellee’s

residence. Commonwealth’s Brief at 4.

     When reviewing an [o]rder granting a motion to suppress we are
     required to determine whether the record supports the
     suppression court's factual findings and whether the legal
     conclusions drawn by the suppression court from those findings
     are accurate. In conducting our review, we may only examine
     the evidence introduced by appellee along with any evidence
     introduced by the Commonwealth which remains uncontradicted.
     Our scope of review over the suppression court's factual findings
     is limited in that if these findings are supported by the record we
     are bound by them. Our scope of review over the suppression
     court's legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).

     The suppression court stated that

     a finding of a confidential informant’s reliability does not end
     [the suppression court]’s analysis of whether the search warrant

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     was adequately supported by probable cause. Instead, the four
     corners of the affidavit must contain sufficient facts to permit an
     issuing authority to reasonably conclude that there was
     contraband in the locations that were the subject of the search
     warrant.
Suppression Court Opinion, 6/16/16, at 9.

     The above-quoted language is indicative of the multiple errors

committed by the suppression court in addressing the matter.          First, it

shows that the suppression court applied an incorrect standard for reviewing

the issuing authority’s probable cause determination.

     According to our Supreme Court, when deciding whether to issue
     a search warrant, “the task of the issuing authority is simply to
     make a practical, common-sense decision whether, given all of
     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.”
     Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 925
     (1986), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct.
     2317, 76 L.Ed.2d 527 (1983). However, as our Supreme Court
     held, with respect to a court that is reviewing an issuing
     authority’s probable cause determination:

           [the] reviewing court is not to conduct a de novo
           review of the issuing authority’s probable cause
           determination, but is simply to determine whether or
           not there is substantial evidence in the record
           supporting the decision to issue a warrant . . .. In so
           doing, the reviewing court must accord deference to
           the issuing authority’s probable cause determination,
           and must view the information offered to establish
           probable cause in a common-sense, non-technical
           manner.

     Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 655 (2010)
     (internal citations, quotations, and corrections omitted).




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Commonwealth v. Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015)

(footnote omitted).

      From the above-quoted language of the suppression court’s opinion, it

seems clear that the suppression court erroneously conducted a de novo

review of the magistrate’s determination, as opposed to determining

whether there was substantial evidence in the record to support the decision

to issue a warrant. Id.

      The suppression court not only erroneously engaged in a de novo

review of the issuing authority’s probable cause determination, it also failed

to give deference to the issuing authority’s probable cause determination,

failed to view the totality of circumstances in a practical, common-sense

manner, and possibly held the Commonwealth to a higher burden than

probable cause.    Indeed, the suppression court acknowledged that “during

one of the controlled purchases[, Appellee] was observed leaving his home

to sell drugs and then observed returning to his home immediately

thereafter.”   Suppression Court Opinion, 6/16/16, at 12.    However, it also

noted that “this fact, when viewed under the totality [of the circumstances],

does not support with any reasonable amount of certainty that any criminal

behavior was going on inside [Appellee]’s home.” Id.

      The paragraph of the affidavit of probable cause describing the

controlled purchase mentioned by the suppression court reads as follows:

      [D]uring the week of 18 October 2015, CI #1 made a controlled
      purchase of a quantity of cocaine from [Appellee], from 47

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        Caroline St. #2 Lancaster, PA.[1] This purchase was made under
        the direction and control of your [a]ffiant using DFT/DA funds.
        Your [a]ffiant and Detectives Kunkle and Vance of the Lancaster
        County Drug Task Force conducted surveillance of [Appellee]
        exiting 47 Caroline St. #2 Lancaster PA, meeting with CI #1 and
        then going back to 47 Caroline St. #2 Lancaster PA. CI#1 was
        searched before the controlled purchase with negative results for
        contraband. After completing the controlled buy, CI #1 met with
        your [a]ffiant and turned over a quantity of cocaine. CI #1 was
        then searched again with negative results for contraband. Your
        [a]ffiant conducted a field test on a quantity of the cocaine and a
        positive result was obtained.

N.T. Suppression Hearing, 4/6/16, at Commonwealth’s Ex. 1 (“Affidavit”) at

¶ 12.

        In the paragraph immediately preceding the one just quoted, the

affiant also stated:

        [D]uring the months of September and October 2015 your
        affiant conducted surveillances at 47 Caroline St. #2, Lancaster
        County, PA. During these surveillances your affiant observed a
        silver 2003 Chevrolet Impala sedan, assigned Pennsylvania
        registration JYG-5505, parked in the parking lot next to 47
        Caroline St. #2, Lancaster County, PA. [Appellee] was observed
        exiting 47 Caroline St. #2, Lancaster County, PA, and getting
        into and operating the [vehicle]. Your [a]ffiant also observed
        [Appellee] meeting with unknown subjects on foot and in his
        vehicle in areas around 47 Caroline St., Lancaster PA for short
        periods of time. Your [a]ffiant observed this short term traffic
        on multiple occasions and this activity is consistent with drug
        sales.

Id. at ¶ 11.



____________________________________________


1
  Appellee does not argue that he did not reside at that address.             See
generally Appellee’s Brief.



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      As noted above, the suppression court concluded that the affidavit of

probable cause did not establish a nexus between Appellee’s residence and

the sale of contraband. We disagree. Viewing the totality of circumstances

in a practical, common-sense manner, we conclude that substantial evidence

supports the magistrate’s probable cause determination.

      It is undisputed that Appellee resided at 47 Caroline Street, Apt #2,

Lancaster, and that there was a fair probability that he was a drug dealer

selling drugs in Lancaster city. See Suppression Court Opinion, 6/16/16, at

9. The affidavit also states that Appellee was seen on multiple occasions on

foot, around his residence, meeting with unknown individuals for short

period of times, an activity consistent with the sale of contraband.     See

generally Affidavit. On one occasion, the controlled purchase mentioned by

the suppression court above, Appellee was seen exiting his residence,

meeting and providing the confidential informant cocaine, and then returning

to his residence. Affidavit at ¶ 12. Finally, it appears the suppression court

did not consider affiant’s training and experience in dealing with illegal

drugs.   Indeed, in the affidavit, the officer stated that drug dealers often

keep contraband in their residences. Affidavit at ¶ 2. Viewing these facts in

a practical, common-sense manner, we conclude that these facts constitute

sufficient evidence that Appellee was using his residence as the base for his

illicit operations.




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     In a similar case, Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011),

our Supreme Court noted:

     The “trial court [] discounted the common sense import of the
     fact that after the controlled buy was arranged, the police
     observed Appellee leave his residence in his vehicle, [] drive to a
     location, conduct the transaction, and immediately return to his
     residence. This fact certainly connected the illegal transaction to
     Appellee’s residence, in a common sense, non-technical way,
     and permitted the issuing authority to conclude that drugs would
     likely be found in the residence.

Id. at 1291.

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

similarly found informant’s observations of defendant making three drug

sales in the street and entering a particular residence after concluding each

sale, and, also defendant’s claim that he had just received a shipment of

drugs,   furnished   adequate   probable   cause   for   a   search   warrant   of

defendant’s home.

     In light of the foregoing, therefore, we find that the suppression

court’s reasoning that perceived no connection between the transaction and

Appellee’s residence was flawed.    Therefore, we conclude that the issuing

authority had a substantial basis for determining that there was a fair

probability that contraband would be found at Appellee’s residence, and, that

the suppression court, by discounting portions of the affidavit of probable

cause and conducting its own review of the evidence proffered by the

Commonwealth, failed to give deference to the issuing authority’s probable

cause determination.

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      The suppression court also stated that the Commonwealth’s evidence

failed to show “with any reasonable amount of certainty that any criminal

behavior was going on inside [Appellee’s residence].”       Suppression Court

Opinion, 6/16/16, at 12. We note the Commonwealth must show and prove

that “there is a fair probability that contraband or evidence of a crime will be

found in a particular case,” not that there was a “reasonable amount of

certainty” that criminal behavior was going on inside Appellee’s residence.

See Gray, 503 A.2d at 925. To the extent the suppression court held the

Commonwealth to a burden higher than “probable cause” the suppression

court erred.

      Finally, in support of its ruling, the suppression court relied on

Commonwealth v. Kline, 335 A.2d 361 (Pa. Super 1975) (en banc) and

Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985). In Gagliardi,

this Court distinguished Kline and Way.

      However, neither opinion controls the resolution in the case at
      bar. 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].” Kline,
      335 A.2d at 364. In the case at bar, however, we are dealing
      with [one] controlled transaction[]—that w[as] 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

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      and then returned to his home after the drug sales. See id.
      Kline is thus inapposite to the facts of this case.

      Moreover, Way is of even less persuasive value than Kline. In
      Way, the affidavit of probable cause merely declared that: the
      defendant was a drug dealer; an “alleged [drug] transaction
      occurred in [the defendant’s] blue van along a country road[;
      and, a]fter the alleged [drug] transaction, police followed the
      blue van to a driveway of a property” that was owned by the
      defendant. Way, 492 A.2d at 1152–54. Confronted with this
      affidavit, the Way Court held that there were “[insufficient] facts
      to believe that drugs would be found” in the defendant's house
      and that the search warrant for the defendant's house was thus
      defective. Id. at 347. Way is inapplicable to the case at bar.
      Indeed, in Way, the totality of the circumstances demonstrated
      that the defendant’s base of operations for his drug dealing was
      his blue van—while in the case at bar, the facts establish that
      the [Appellee]’s base of operations for his drug dealing was his
      [residence].

Gagliardi, 128 A.3d at 798.      Accordingly, for the same reasons stated in

Gagliardi, we also conclude that the suppression court’s reliance on Kline

and Way was misplaced.

      The suppression court also found the Commonwealth’s reliance on

Davis was misplaced because here, as opposed to Davis, there was not

sufficient evidence to link Appellee’s residence with the sale or storage of

drugs.   In particular, the suppression court noted that neither informant

alleged that Appellee was selling drugs from his home or that he was using

his home to store drugs, that neither informant indicated being inside

Appellee’s residence or even knew Appellee’s address, and that the

information provided in the affidavit would instead indicate that Appellee was

selling drugs out of his vehicle. Suppression Court Opinion, 6/16/16, at 12.


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Finally, the suppression court noted that the instant case was also

distinguishable because the quantity of cocaine involved in Davis was

substantial, which led to the inference that defendant in Davis was keeping

the drugs at his place.   Here, however, the suppression court reasoned,

there is no indication of quantity “to support the inference that [Appellee]

was necessarily storing the drugs in his home.” Id. at 13.

     The determination whether there was probable cause to believe

Appellant sold drugs out of his residence or used his residence as a storage

location must be made by the issuing authority in light of the information

available, not in light of the information not present.         The missing

information, while useful, is not determinative of the existence of probable

cause.   Here, as noted above, looking at the information available in a

common sense, non-technical way, there was enough information to permit

the issuing authority to conclude that drugs would likely be found in

Appellee’s residence.

     Regarding the suppression court’s observation that the information

available would suggest that Appellee was running his business out of his

car, rather than out of his residence, we note that, although the

circumstances of some transactions potentially pointed to Appellee’s vehicle

as a storage location for the drugs, “the law does not require that the

information in a warrant affidavit establish with absolute certainty that the

object of the search will be found at the stated location, nor does it demand


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that the affidavit information preclude all possibility that the sought after

article is not secreted in another location.” Davis, 595 A.2d at 1222.

      In light of the foregoing, we conclude that the issuing authority had a

substantial basis for determining that there was a fair probability contraband

would be found at Appellee’s residence.      Thus, we vacate the suppression

court’s order at issue here and remand.

      Order vacated. Case remanded. Jurisdiction relinquished.

      Judge Dubow joins this memorandum.

      Judge Lazarus files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




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