J-S41029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ADALBERTO BENIQUEZ-RODRIGUEZ

                            Appellant                No. 2056 MDA 2014


            Appeal from the Judgment of Sentence October 29, 2014
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000104-2014


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 19, 2015

        Adalberto Beniquez-Rodriguez appeals from the judgment of sentence

entered in the Court of Common Pleas of Lebanon County after a non-jury

trial in which he was found guilty of possession with intent to deliver heroin,1

possession of heroin, cocaine, and alprazolam,2 and possession of drug

paraphernalia.3 Beniquez-Rodriguez challenges the trial court’s denial of his

suppression motion. After careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
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        The relevant facts and procedural history of this matter are as follows.

Police obtained a warrant to search the house at 244 East Weidman Street,

Lebanon, Pennsylvania, based upon information provided by a reliable

confidential informant indicating that Beniquez-Rodriguez possessed large

quantities of heroin and was selling it out of the house.     Police executed the

search warrant, which yielded numerous items that violate the Controlled

Substance, Drug, Device and Cosmetic Act,4 including, but not limited to,

more than 56 grams of powdered heroin.

        Beniquez-Rodriguez filed an omnibus pre-trial motion to suppress,

challenging whether the search warrant sufficiently established probable

cause to search his residence. Beniquez-Rodriguez asserted that police did

not substantiate the tip provided by the confidential informant indicating he

had substantial amounts of controlled substances in his home. No testimony

was presented at the suppression hearing, as both parties agreed that the

court’s decision should rest upon the contents of the four corners of the

affidavit of probable cause completed to obtain the search warrant.

        The relevant portion of the affidavit includes the following:

        Probable cause belief is based upon the following facts and
        circumstances:

                                           ...

        That within the last eight months Reliable Confidential Informant
        #1 (RCI-1) provided information to Lebanon County Drug Task
____________________________________________


4
    35 P.S. §§ 780-101 – 780-140.



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       Force members including your affiant regarding individuals
       dealing or using controlled substances. That RCI-1 provided
       information about a person known to them as “Menor” is selling
       heroin at 244 E. Weidman Street.        That RCI-1 also states
       “Menor” uses cellular telephone number 610-451-0689 to
       arrange drug transactions.     That RCI-1 identified Adalberto
       Beniquez-Rodriguez as the person he or she knows as “Menor”
       from a Pennsylvania Driver License photograph provided by your
       affiants. That RCI-1 has made two controlled buys and provided
       information for the Drug Task Force in the past. That these
       controlled buys and information provided have led to the
       execution of two search warrants within Lebanon City that
       resulted in five subjects being charged criminally. That these
       drug related charges are pending in the Lebanon County Court of
       Common Pleas.

       That within the five months5 RCI-1 and Sgt. Brett Hopkins,
       working in an undercover capacity, traveled to the area [of] 244
       E. Weidman Street in a civilian style Drug Task Force vehicle to
       make a controlled buy of heroin. That during the controlled buy
       RCI-1 remained seated in the civilian style Drug Task Force
       vehicle and made contact with Beniquez-Rodriguez. During this
       controlled buy, RCI-1 gave the money directly to Beniquez-
       Rodriguez and Beniquez-Rodriguez gave the heroin directly to
       RCI-1.

       That within the last 48 hours, RCI-1 reported to Lebanon County
       Drug Task Force members that an ind[i]vidual known to them as
       “Menor” was in possession of a large quantity of controlled
       substances at 244 E. Weidman Street.

Application for Search Warrant, 11/21/13, at 4-5. The trial court considered

this   language,    determined      that   probable   cause   existed,   and   denied

Beniquez-Rodriguez’s suppression motion.


____________________________________________


5
  It appears that a word was omitted and the phrase was intended to mean
“within the last five months.” Both parties have used this interpretation in
arguing this matter.



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      Subsequently, the trial court held a non-jury trial in which the parties

agreed to submit documentation to the court rather than present live

testimony.   The trial court found Beniquez-Rodriguez guilty of all charges

against him on September 10, 2014, and sentenced him to two to five years’

incarceration on October 29, 2014. Beniquez-Rodriguez filed a timely notice

of appeal on November 28, 2014.

      On appeal, Beniquez-Rodriguez raises one issue for our review:

      Whether the [trial c]ourt erred in denying Beniquez-Rodriguez’s
      omnibus pretrial motion to suppress, where the information
      relied upon in the search warrant was legally stale and where the
      recent information allegedly provided by a confidential informant
      was vague, unclear and provided without corroboration or factual
      support[.]

Brief of Appellant, at 4.

      When reviewing a challenge to the denial of a suppression motion, our

standard of review is as follows:

      The standard and scope of review for a challenge to the denial of
      a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. When reviewing the rulings
      of a suppression court, this Court considers only the evidence of
      the prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. When the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citations

omitted).




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     Generally, police are prohibited from searching a person or his or her

property   and   seizing   personal   items   without   a   search     warrant.

Commonwealth v. Petroll, 738 A.2d 993, 998 (Pa. 1999).               Whether a

search warrant should be issued is based upon probable cause, which “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 man of reasonable caution in the belief that a search should be

conducted.”   Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011).

“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.” Commonwealth v. Huntington, 924 A.2d 1252,

1255 (Pa. Super. 2007).

     Beniquez-Rodriguez asserts that probable cause to obtain the search

warrant did not exist because the information provided by the confidential

informant was unsubstantiated.     Beniquez-Rodriguez also argues that the

affidavit of probable cause indicates that the controlled drug buy occurred

within “the [last] five months,” and that this is stale information that does

not support a search warrant.

     In cases involving a tip from a confidential informant, “a totality-of-

the-circumstances analysis permits a balanced assessment of the relative

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weights of all the various indicia of reliability and unreliability attending [the]

tip.” Clark, supra, at 1288. “The uncorroborated hearsay of an unidentified

informant may be accepted as a credible basis for issuing a search warrant if

the affidavit of probable cause avers circumstances that support the

conclusion that the informant was credible.” Huntington, supra, at 1255.

Further, “an 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.”        Clark, supra, at 1288

(emphasis in original).

      Pennsylvania law establishes, however, that stale information cannot

provide probable cause in support of a warrant.             Commonwealth v.

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

      [The age] of the information supporting a warrant application is
      a factor in determining probable cause.         If too old, the
      information is stale, and probable cause may no longer exist.
      Age alone, however, does not determine staleness. The
      determination of probable cause is not merely an exercise in
      counting the days or even months between the facts relied on
      and the issuance of the warrant. Rather, we must also examine
      the nature of the crime and the type of evidence.

Id. (citation omitted).   Additionally, corroborative information need not be

current for it to be properly considered by the magistrate so long as it

relates to prior conduct sufficiently similar to the acts in question.

Commonwealth v. Weidenmoyer, 539 A.2d 1291, 1295 (Pa. Super.

1988).   Evidence of criminal activity at some prior time may support a


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finding of probable cause as of the date of the warrant if it is shown that the

criminal activity continued up to or about that time. Id.

      Here, Beniquez-Rodriguez correctly notes that the vague, five-month

timeframe during which the controlled drug buy occurred would not, by

itself, sufficiently support a warrant to search his residence. However, the

controlled drug buy is corroborating conduct related to the informant’s tip

that Beniquez-Rodriguez possessed and was dealing heroin. Drug dealing is

a type of activity that is frequently ongoing in nature, and the prior drug buy

combined with the confidential informant’s tip suggests a course of illegal

conduct that continued through the time the police searched Beniquez-

Rodriguez’s home. Weidenmoyer, supra.

      Moreover, the confidential informant in this matter was known to the

officer to be reliable; the informant’s tips had led to multiple arrests prior to

police obtaining the search warrant for Beniquez-Rodriguez’s home.            The

informant also included Beniquez-Rodriguez’s mobile phone number used to

complete drug deals, which is a specific detail indicating reliability, as well as

the information that within 48 hours Beniquez-Rodriguez was known to be in

possession of a large quantity of controlled substances.        Based upon the

totality of the circumstances, the information provided by the informant

constituted probable cause when combined with the informant’s reliability

and the corroborating controlled drug buy. Clark, supra.

      Because the information in the affidavit was sufficient to establish

probable cause, we conclude that the trial court did not err in denying

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Beniquez-Rodriguez’s motion to suppress the evidence obtained from the

search of his home.

     Judgment of sentence affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




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