J-S95023-16

                                  2017 PA Super 408



 COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

 ERIC TORRES

                             Appellant                  No. 2241 EDA 2015


               Appeal from the Judgment of Sentence July 8, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011169-2013
                                          CP-51-CR-0011170-2013
                                          CP-51-CR-0011171-2013
                                          CP-51-CR-0011172-2013
                                          CP-51-CR-0011173-2013


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

CONCURRING OPINION BY MOULTON, J.:                FILED DECEMBER 22, 2017

       I agree with the majority that the Commonwealth’s affidavit of probable

cause failed to establish a sufficient nexus between the crimes under

investigation and the search proposed in the warrant.1 I write separately,

however, to note my concern about the broad application of two of this Court’s

decisions from over 30 years ago -- Commonwealth v. Kline, 335 A.2d 361

(Pa.Super. 1975) (en banc), and Commonwealth v. Way, 492 A.2d 1151

(Pa.Super. 1985).

____________________________________________


       I agree with the majority that the trial court properly denied Torres’
       1

motion to sever and that we need not reach the sentencing issues because
the judgment of sentence is vacated.
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      Kline and Way both addressed warrants to search the homes of

suspected drug dealers. In each case, we found insufficient evidence of a

connection between the illegal activity – selling drugs outside of the home –

and the home itself to provide probable cause to search the defendant’s home

for drugs.   In Kline, this Court affirmed a trial court’s conclusion that the

affidavit did not contain probable cause to search the appellee’s home. 335

A.2d at 364.    We noted that the affidavit merely stated the informants’

unsupported conclusion that drugs were in the appellee’s apartment and did

not “set forth how information leading to such a conclusion was obtained.”

Id. Further, “[t]here [wa]s no indication of where the transaction took place,

how long it took, how long [appellee] was gone, or what led the girls to

conclude that he had gone to his apartment.”          Id.   We concluded that,

although the information tended to establish the appellee was a drug dealer,

it did not support a conclusion that the appellee “kept drugs in his apartment.”

Kline, 335 A.2d at 364.

      Similarly, in Way, this Court found the affidavit did not contain sufficient

facts to believe drugs would be found at a particular location when: the

informant arranged the drug transaction by phone; the transaction occurred

in a blue van along a country road; the police followed the blue van to a

driveway of a property at the corner of Douglas Drive and Glendale Road; the

informant identified appellant as the driver of the blue van; and a police source

told the affiant that appellant lived at the intersection of Douglas Drive and

Glendale Road. Way, 492 A.2d at 1154.

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      Kline and Way offer two important lessons relevant to this matter.

First, “[p]robable cause to believe that a man has committed a crime on the

street does not necessarily give rise to probable cause to search his home.”

Kline, 335 A.2d at 364. In other words, the affidavit must support the finding

of a nexus between the criminal activity and the home. Second, evidence of

drug dealing unconnected to a home does not, without more, give probable

cause to believe that additional contraband will be found in the home. Cf.

Commonwealth v. Gagliardi, 128 A.3d 790, 798 (Pa.Super. 2015)

(distinguishing Kline and Way where affidavit contained information

regarding where the transactions took place and what led police to conclude

defendant left his home prior to, and returned home after, drug sale). The

latter point is based in part on the common sense notion, reinforced by

experience, that drug dealers often take pains to store their drugs away from

their homes.    Cf. Wayne R. LaFave, Search and Seizure, § 3.7(d), text

accompanying footnote 210 (October 2016 update) (noting that drugs are

“inherently incriminating” and “readily concealable in other possible hiding

places” and therefore less likely than stolen property to be found in a suspect’s

home). “Indeed, in Way, the totality of the circumstances demonstrated that

the defendant’s base of operations for his drug dealing was his blue van,” not

his home. Gagliardi, 128 A.3d at 798.

      In contrast to the drugs sought in Kline and Way, here the affidavit

claimed probable cause to believe that ammunition, gun boxes/containers, or

ballistics evidence consistent with the gun found at the scene would be found

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at Torres’ home. Unlike drugs, guns are not inherently incriminating, see,

e.g., Staples v. United States, 511 U.S. 600, 610 (1994) (noting “long

tradition of widespread lawful gun ownership by private individuals in this

country”), and neither experience nor common sense suggests that we should

presume gun owners will take pains to keep evidence of such ownership out

of their homes.         Cf. LaFave, Search and Seizure, § 3.7(d), at text

accompanying note 214 (“Where the object of the search is a weapon used in

the crime or clothing worn at the time of the crime, the inference that the

items are at the offender’s residence is especially compelling . . . .”). Indeed,

this Court has stated that guns are the type of evidence “reasonably likely to

be found in the perpetrator’s home.” Commonwealth v. Hutchinson, 434

A.2d 740, 743 (Pa.Super. 1981).

       Based in part on this gun / drug distinction, the Commonwealth argues

that the issuing authority properly concluded that, because Torres was found

in possession of a gun just a few blocks from his home, it was reasonable to

infer that some evidence of his connection to the gun, be it ammunition,

containers, or otherwise, would be located at his home.2 I agree with the
____________________________________________


       2Several courts have confronted the question whether probable cause
exists under similar facts and said yes. See, e.g., United States v.
Williams, 544 F.3d 683, 688 (6th Cir. 2008) (holding issuing authority could
infer defendant kept handgun at residence where affidavit had evidence that
defendant possessed multiple guns and recently had used them to further
criminal activity); United States v. Jones, 994 F.2d 1051, 1056-57 (3d Cir.
1993) (noting that cash, clothing and firearms are type of evidence likely to
be stored at suspect’s residence); Iowa v. Gathercole, 553 N.W.2d 569, 574



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Commonwealth that the logic of Kline and Way3 -- that drug dealers should

not be presumed to store drugs at their homes – does not apply with equal
____________________________________________


(Iowa 1996) (finding probable cause to search home and noting it was
“reasonable to infer that stolen property would be found at a defendant’s
residence” and “reasonable to believe that guns will be kept on the subject’s
person or in his residence”); Maryland v. Ward, 712 A.2d 534, 537 (Md.
1998) (probable cause to find nexus between evidence of murder and noting
prior case “uph[eld a] warrant based on police allegation of a crime,
knowledge of the suspect's address, detailed description of the weapon and
absence of weapon on suspect at time of arrest” (quoting Maryland v. Mills,
363 A.2d 491 (Md. 1976))).

       3 I note that Kline and Way were both decided over 30 years ago. While
they have not been overruled and remain good law, I also note that many
more recent cases in other jurisdictions have been less rigid in requiring an
express evidentiary nexus between drug dealing outside the home and the
home itself, particularly when the affiant draws the connection based on
experience. See, e.g., United States v. Cardoza, 713 F.3d 656, 660-61
(D.C. Cir. 2013) (finding that because there was probable cause to believe
defendant was involved in drug trafficking, there was probable cause to search
home, noting affiant stated that in his experience traffickers often keep
additional supplies of drugs, weapons, and cash at their residences, and
concluding that “[w]hen there is probable cause that a defendant is dealing
drugs, there often tends to be probable cause that evidence of that drug
dealing will be found in the defendant’s residence”); United States v.
Biglow, 562 F.3d 1272, 1280, 1283 (10th Cir. 2009) (noting that magistrate
judges “may ‘rely on the opinion’ of law enforcement officers” as to where
evidence linking defendant to criminal activity may be located, may rely on
“additional evidence” linking criminal activity to residence, and may rely on
“normal inferences” about location of evidence, and concluding that affiant’s
statement in affidavit that “drug dealers often keep evidence related to their
illegal activities at their homes” provided “additional evidence necessary to
establish a nexus between” suspected drug trafficking activities and
defendant’s residence); United States v. Keele, 589 F.3d 940, 944 (8th Cir.
2009) (finding probable cause to search home where evidence of drugs found
in car and experienced opinion of agent stated drug manufacturers often keep
contraband and proceeds at home); Minnesota v. Yarbrough, 841 N.W.2d
619, 623-24 (Minn. 2014) (noting “it may be reasonable to infer that drug
wholesalers keep drugs at their residence,” and finding sufficient nexus where



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force to the storage of firearms and ammunition related to criminal activity.

Nevertheless, the failure of the affidavit in this case to make any connection

between gun use for criminal purposes and the possession of related evidence

in the gun user’s home is a fatal flaw.4 Accordingly, I agree with the majority

that we must vacate Torres’ judgment of sentence.




____________________________________________


affidavit stated reliable informant informed police that defendant was cocaine
dealer, defendant brandished handgun because someone had stolen large
amount of cocaine from him, and defendant had been previously arrested for
PWID); see also LaFave, Search and Seizure, § 3.7(d).

       4The affidavit in this case contains no statement from the affiant about
his (or any other officer’s) experience in investigating gun possession cases
that would draw the issuing authority’s attention to the likelihood of finding
gun evidence in Torres’ home. Had such information been included, as it often
is, see, e.g., Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013)
(finding probable cause to search apartment where affidavit averred deceased
was in contact with defendant prior to murder, that they had been in an
extramarital affair, and defendant “went on the run,” and that in officer’s
experience defendant’s home likely would reveal trace evidence of crime);
LaFave § 3.7(d), at text accompanying note 198, Torres’ argument would have
been much weaker.


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