J-S71035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                              Appellant

                      v.

NATEN UNG
                                                        No. 2319 EDA 2015


                   Appeal from the Order Entered July 9, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0001220-2015

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED FEBRUARY 06, 2017

        The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas, which granted Appellee Naten Ung’s 1 motion

to suppress. The Commonwealth claims that the suppression court erred in

concluding a warrant to search Appellee’s residence was not supported by

probable cause. We reverse and remand for further proceeding.

        The factual background at issue was set forth in the affidavit of

probable cause prepared by Philadelphia Police Officer Charles Kapusniak as

follows:

           On 12/2/14, P/O Kapusniak#3465 and P/O Rich#9843 met
           with Confidential Informant#1493[(“C/I”)], this informant
           has been used in prior narcotics investigations leading to
           arrests and confiscations of narcotics, weapons and USC.

*
    Former Justice specially assigned to the Superior Court.
1
    We note that Appellee did not file an appellate brief.
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       The C/I stated to police that an asian male known to the
       C/I as “SP” (short thin approximately 5’4 120 lbs, with a
       tatoo under his left eye and on his neck)who lives at 517
       Porter St. sells marijuana & cocaine in that immediate area
       utilizing the cell phone numbers of #267-546-6610 and
       215-300-8337.

       On 12/2/14, between the times of (1:00 and 4:00 pm
       exact time excluded to protect the C/I) C/I#1493 was
       searched in accordance with Phila. Police Dept. policy and
       procedure for narcotics or contraband with negative
       results. The C/I was given $20 pre-recorded buy money
       and in the presence of police dialed the #215-300-8337
       and had a drug related conversation with a male voice in
       reference to purchasing marijuana. The male voice
       instructed the C/I to the area of 400 block of Tree St. The
       C/I was taken to that location. P/O Kapusniak#3465
       observed the C/I approach an Asian male fitting the
       description of “SP” and handing the male the pre-recorded
       buy money in exchange for small items.             The C/I
       immediately returned to P/O Rich#9843 and turned over
       (4) clear packets each containing a green weedy substance
       of alleged marijuana. Those items were turned over to
       P/O Kapusniak#3465 and were placed on PR#3184704.

       On 12/9/14, between the times of (5:00 pm and 7:00 pm
       exact time excluded to protect the C/I) C/I#1493 was
       searched in accordance with Phila. Police Dept. policy and
       procedure for narcotics or contraband with negative
       results. The C/I was given $40 pre-recorded buy money
       and in the presence of police dialed the #267-546-6610
       and had a drug related conversation with a male voice in
       reference to purchasing cocaine.          The male voice
       instructed the C/I to go to the area of the 2300 block of S.
       6th St. The C/I was observed by P/O Kapusniak#3465
       meeting up with “SP” and handing him the pre-recorded
       buy money in exchange for small items. The C/I returned
       immediately back to P/O Rich#9843 and handed over (2)
       green tinted packets each containing a white powder
       substance of alleged cocaine. Those items were turned
       over to P/O Kapusniak#3465 and were placed on PR
       #3184727.




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       On 12/16/14, between the times of (2:00pm and 4:00 pm
       exact time excluded to protect the C/I) C/I#1493 was
       searched in accordance with Phila. Police Dept policy and
       procedure for narcotics or contraband with negative
       results. The C/I was given $40 pre-recorded buy money
       and in the presence of police dialed the #267-546-6610
       and had a drug related conversation with a male voice in
       reference to purchasing cocaine. The male voice instructed
       the C/I to go to the area of 2400 S.Fairhill St. The C/I was
       sent to that location, a short time later P/O Rich#9843
       observed “SP” exit 517 Porter St and followed him on foot
       to 2400 S. Fairhill St. P/O Rich#9843 observed the C/I
       approach “SP” and hand him the pre-recorded buy money
       in exchange for small items. After the above transaction
       P/O Rich#9843 followed “SP” back to 517 Porter St., The
       C/I returned back to P/O Kapusniak#3465 and handed
       over (2) green tinted packets each containing a white
       powder substance of alleged cocaine. Those items were
       placed on PR#3184759.

       On 1/6/15, between the times of (1:00 pm and 3:00 pm
       exact time excluded to protect the C/I) C/I#1493 was
       searched in accordance with Phila. Police Dept. policy and
       procedure for narcotics or contraband with negative
       results. The C/I was given $40 pre-recorded buy money
       and in the presence of police dialed the #215-300-8337
       and had a drug related conversation with male voice in
       reference to purchasing cocaine.         The male voice
       instructed the C/I to go to the area of 600 Ritner St. The
       C/I was taken to that location and was observed by P/O
       Kapusniak#3465 approaching “SP” and handing him the
       pre-recorded buy money in exchange for small items. The
       C/I returned back to P/O Rich#9843 and handed over (2)
       red packets each containing a white powder substance of
       alleged cocaine. Those items were turned over to P/O
       Kapusniak#3465 and placed on PR#3184778.               P/O
       Kapusniak#3465 and P/O [R]ich39843 set up a
       plainclothes surveillance of 517 Porter and [ ] at
       approximately 4:45 pm observed “SP” enter that property
       using a key.

       A NIK test “E” & “G” was conducted on samples of the
       items purchased during this investigation which tested



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            positive  for   matijuana      and    cocaine    by    P/O
            Kapusniak#3465.

            A property check revealed that (Huang Li H) is the owner
            of record.

Aff. of Probable Cause, 1/7/15, 1-2.

        Officer Kapusniak applied for a warrant to search 517 Porter Street on

January 7, 2015, attaching the above affidavit.      In addition to the factual

averments set forth above, Officer Kapusniak also stated:

            I your affiant, P/O Kapusniak#3465 have been a
            Philadelphia police officer for 22 years and have been
            involved in over 5000 narcotics investigations and believe
            that based on the information given, and the controlled C/I
            buys that the property of 517 Porter St. is being used to
            store and deliver illegal narcotics along with the proceeds
            of those sales. I am respectfully requesting a search &
            seizure warrant for that property at this time.

Id. at 2.

        A search warrant for 517 Porter Street was issued and executed on

January 8, 2015.      Inside Appellee’s residence, the police found, inter alia,

nine packets of cocaine, forty-three packets of marijuana, several containers

of Xanax pills, $1,087 dollars in cash, and a loaded handgun. Appellee was

arrested and charged with possession with intent to deliver a controlled

substance,2 criminal use of communication facility,3 intentional possession of



2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 7512(a).




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a controlled substance,4 possession of drug paraphernalia,5 and possession

of an instrument of crime.6

        On June 26, 2015, Appellee filed a motion to suppress the physical

evidence recovered from his residence, claiming that probable cause was

lacking. The suppression court agreed and granted Appellee’s suppression

motion on July 9, 2015.       The court determined that the facts set forth in

Officer Kapusniak’s affidavit did not establish probable cause. Suppression

Court Opinion, 1/19/16, at 5-6.         The court specifically found that the

information was stale and vague:

            The affidavit questioned here presents evidence of criminal
            activity at 517 Porter Street at some date prior to January
            8th, some 23 days earlier. With no direct observations that
            criminal activity was afoot at the aforementioned property,
            the information was stale and vague.           There is no
            corroborated indication that [Appellee] engaged in criminal
            activity at 517 Porter Street. No facts are averred which
            tend to show that 517 Porter was placed under
            observation; no personal observation is averred which
            would tend to indicate that the contraband was known to
            have been moved; no additional indication of ongoing or
            continuing activity is averred.        Therefore it is not
            substantiated that contraband was to be found at 517
            Porter Street.

Id. at 5.



4
    35 P.S. § 780-113(a)(16).
5
    35 P.S. § 780-113(a)(32).
6
    18 Pa.C.S. § 907(a).




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      The     Commonwealth        filed   a     timely   notice     of   appeal7   and

contemporaneously submitted a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. The suppression court filed a responsive Pa.R.A.P.

1925(a) opinion.

      The Commonwealth raises a single issue for our review:

         Did the [suppression] court err by invalidating a search
         warrant for [Appellee’s] residence where police observed
         him leave the premises, sell drugs, and then return to the
         premises, and later confirmed that he was continuing to
         sell drugs on the street before returning home?

Commonwealth’s Brief at 3.

      The Commonwealth contends that the suppression court erred by

finding that the evidence Officer Kapusniak supplied in his affidavit did not

establish probable cause for the issuance of a search warrant for Appellee’s

residence located at 517 Porter Street.          To that end, the Commonwealth

emphasizes that a reliable C/I reported that Appellee was selling drugs in

the immediate vicinity of his home and the police corroborated this

information   by   setting   up    four   controlled     drug     transactions.    The

Commonwealth points out that in one such transaction, police observed

Appellee leave 517 Porter Street, engage in a drug transaction, and then


7
  While we note that the order at issue is interlocutory, it is well settled that
pursuant to Pa.R.A.P. 311(d), the Commonwealth may pursue this appeal if
it certifies “that the order will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 311(d); Commonwealth v. Whitlock, 69 A.3d
635, 636 n.2 (Pa. Super. 2013). In this case, the Commonwealth provided
the requisite certification within its notice of appeal filed on July 29, 2015.



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immediately return to his residence. Further, the Commonwealth highlights

that police observed Appellee return to the subject address after a controlled

drug transaction only two days before the issuance of the search warrant.

The Commonwealth avers that this last incident renders the information in

the affidavit far from stale but instead evidence of a continuous drug

operation. We agree.

       When reviewing a Commonwealth appeal from a suppression order

we apply the following standard and scope of review:

        [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, 49 A.3d 442 (Pa. 2012) (citations and quotation marks

omitted).

     It is beyond cavil that under both the state and federal constitutions, a

search warrant must be supported by probable cause. Commonwealth v.

Hoppert, 39 A.3d 358, 362 (Pa. Super. 2012).         In general, “[p]robable

cause exists where the facts and circumstances within the affiant’s



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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) (citation omitted). Indeed, “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.” Id.

      Pennsylvania Courts have adopted a “totality of the circumstances”

approach to the determination of probable cause:

         In [Pennsylvania], 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 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.

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013) (some

citations and quotation marks omitted).




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      Further, “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 that the affidavit

information preclude all possibility that the sought after article is not

secreted in another location.”   Commonwealth v. Davis, 595 A.2d 1216,

1222 (Pa. Super. 1991) (citation omitted).            Indeed, a magistrate’s

determination of probable cause should be afforded substantial deference:

         [A]lthough [r]easonable minds frequently may differ on
         the question whether a particular affidavit establishes
         probable cause, the deference afforded a magistrate judge
         ensures that, [if] a substantial basis exists to support the
         magistrate’s probable cause finding, [the trial court] must
         uphold that finding even if a different magistrate judge
         might have found the affidavit insufficient to support a
         warrant.

Commonwealth v. Gagliardi, 128 A.3d 790, 794-95 (Pa. Super 2015.

      It is well settled that stale information cannot provide probable cause

in support of a warrant. Hoppert, 39 A.3d at 363. However:

         Age alone . . . 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) (emphasis omitted).

      Moreover, “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, 668 A.2d 114, 118 (Pa.



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1995) (holding that affidavit supporting issuance of search warrant did not

contain stale information where confidential informant reported that illegal

drug activity had been ongoing at the subject property for over two months

and had just observed such activity within 24 hours of the warrant

application).

      In the case sub judice, the suppression court concluded that the

search warrant at issue was not supported by probable cause because the

evidence presented in Officer Kapusniak’s affidavit did not establish a

sufficient connection between any illegal drug activity by Appellee and

Appellee’s residence. We disagree. First, the C/I reported that Appellee was

living at the subject address and was dealing drugs in the immediate

vicinity.   The C/I had provided reliable information in the past leading to

arrests.    See Clark, 28 A.3d at 1288.      Further, the police independently

corroborated the C/I’s information by observing Appellee engaged in four

controlled drug transactions in the vicinity. See id. (C/I’s tip regarding the

packaging and distribution of drugs from a residence was sufficient probable

cause to support the issuance of a search warrant when the information was

corroborated by police observation of the defendant leaving the residence,

engaging in a controlled drug buy, and returning to the residence).

      Significantly, the police saw Appellant leave his residence, engage in a

controlled drug buy, and return to the subject property on December 16,

2015. The suppression court discounts this incident as constituting “stale”



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information because it occurred twenty-three days prior to the issuance of

the search warrant.     However, on January 6, 2015, just two days before

the warrant was issued, police observed Appellee engage in yet another

controlled drug transaction and watched him return to 517 Porter Street.

We conclude that the issuing authority was well within its purview to find

that the January 6 incident established that criminal activity was likely to

have continued up to the time of the issuance of the warrant, rendering the

December 16, 2015 incident viable rather than stale. See Jones, 668 A.2d

at 118.

      In light of the substantial uncontested evidence presented in Officer

Kapusniak’s affidavit of probable cause, we conclude that the issuing

authority had ample basis to find probable cause. See Goldsborough, 31

A.3d at 305; Arthur, 62 A.3d at 432. Thus, the suppression court erred by

declining to uphold the decision to issue the instant search warrant. See

Gagliardi, 128 A.3d at 794-95.     Accordingly, we reverse the suppression

court’s order and remand for further proceedings.

      Order reversed.    Case remanded for further proceeding.   Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2017




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