J-S96005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                          Appellant

                    v.

TROY DEVON MARTIN,

                          Appellee                           No. 1855 WDA 2015


             Appeal from the Order Entered November 3, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012366-2013


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.:                    FILED MARCH 31, 2017

      Contrary to the Majority memorandum in this matter, I would instead

affirm on the basis of the trial court’s June 20, 2016 Pa.R.A.P. 1925(a)

opinion, by the learned Judge Randal B. Todd, as I believe that opinion ably

and comprehensively disposes of the Commonwealth’s issue on appeal, and

does so based upon facts supported by the record and without legal error.

Accordingly, I respectfully dissent.

      The   Majority     characterizes    the    trial    court’s   decision   to   grant

suppression of the fruits of the search as mere second-guessing of the

magistrate’s   decision    to   grant    the    search     warrant.      See    Majority

Memorandum at 8 (noting that “reasonable minds frequently may differ on

whether a particular affidavit establishes probably cause,” but that a trial

court “must uphold that finding even if a different magistrate” would have
J-S96005-16



reached a different conclusion) (quoting United States v. Leon, 468 U.S.

897, 914 (1984)).            I disagree.    I do not believe that any reasonable

magistrate would have found that the affidavit of probable cause in this case

supported the specific search warrant issued.                The warrant in this case was

issued primarily on the basis of: 1) the statements of the informant; and 2)

the discovery of paraphernalia and a trivial amount of marijuana in the trash

pulled from the searched residence. I would defer to the judgment of the

trial   court   that   the    informant’s      reliability   had   not   been   sufficiently

established in the context of this case, as no information was offered as to

why and/or how the informant formed his allegation that Troy Devon Martin

and Martin’s codefendant were running a major heroin distribution ring from

the searched residence, and the portions of the informant’s statements

which were corroborated only involved observations of legal, innocuous

conduct.     Moreover, the presence of less than a single plastic baggie (a

baggie diaper plus one baggie corner), in addition to marijuana remnants in

the residence’s trash, did not remotely corroborate the claim that a large

scale heroin distribution was ongoing, which was the impetus for the warrant

actually issued.1

        Accordingly, I respectfully dissent.


____________________________________________


1
  The warrant was not issued solely to permit the police to search for
evidence of marijuana consumption, which, at best, was what the trash pull
corroborated from the informant’s statements.



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