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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.R.M., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




                                                     No. 1145 MDA 2914


            Appeal from the Dispositional Order of May 28, 2014
               In the Court of Common Pleas of York County
             Juvenile Division at No: CP-67-JV-0000150-2014


BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.:       FILED JULY 06, 2015

      N.R.M., a minor, appeals the dispositional order of May 28, 2014,

adjudicating N.R.M. delinquent of the acts of possession of a firearm by a

minor, receiving stolen property, and possession with intent to deliver a

controlled substance.1 We affirm.

      On March 20, 2014, Officer Pat Gartrell, a police officer of the Northern

York County Regional Police Department’s drug task force, filed an

application for a search warrant to search “[t]he residence and curtilage on

the property of 633 North George Street, North York Boro, PA.”          Officer

Gartrell had received reports of neighbors’ complaints of “an excessive

number of persons visiting 633 N. George St. . . . for short periods of time,

then leav[ing] the area,” and believed that a drug distribution scheme was

occurring there. In his affidavit of probable cause, Officer Gartrell described

his extensive experience with the drug task force, and explained that he


1
     See 18 Pa.C.S.A. §§ 6110.1(a), 3925(a), and 35 Pa.C.S.A. § 780-
113(a)(30), respectively.
J-S26021-15


determined 633 N. George St. to be occupied by Mark Woods and Cheirha

Rankin, who both had prior felony convictions for drug distribution offenses.

On March 19, 2014, Officer Gartrell conducted a trash pull. In the trash bag

that he removed from the can behind the house, Officer Gartrell found mail

addressed to both Mark Woods and Cheirha Rankin at 633 N. George St., as

well as a clear plastic baggie with a green leafy substance that tested

positive for marijuana. See Affidavit of Probable Cause, 3/20/2014, at 1-2.

On March 20, 2014, the search warrant was issued on the basis of this

affidavit.

      On March 21, 2014, at 6:38 a.m., officers served the warrant by

knocking and announcing their presence at 633 N. George St.          No one

responded, and the officers made a forced entry into the house. Inside, they

found four adults and two children, including Woods and Rankin. Corporal

Joseph Jeffrey Sierotowicz, who was waiting outside the back door, saw

N.R.M. throw a gun out the window of a second-floor room on the north side

of the house.   In N.R.M.’s room, officers found twenty-one small bags of

heroin, a bag of crack cocaine, and fifty dollars in cash.

      The officers read N.R.M. his Miranda2 warnings and offered N.R.M.

time to confer with his mother, which he declined. Thereafter, N.R.M. stated

that he was the only person who slept in the room, admitted to throwing the

gun out the window, and claimed that a friend had left the drugs in his

room. In a written statement, N.R.M. further stated that he was fourteen

years old, that he had found the gun in an alleyway in York City two days

before the warrant was executed, and that he does not use drugs.


2
      See Miranda v. Arizona, 384 U.S. 436 (1966).


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     A juvenile petition was filed with the York County Juvenile Probation

Department charging N.R.M. with possession of a firearm by a minor,

receiving stolen property, and possession with intent to deliver a controlled

substance. On April 15, 2014, N.R.M. filed a motion to suppress the search

warrant and all evidence derived therefrom.       On April 16, 2014, after a

hearing, the juvenile court denied the suppression motion.       On May 28,

2014, after a case assessment and a psychological evaluation, the court

adjudicated N.R.M. delinquent.        The same day, the court entered a

dispositional order placing N.R.M. on formal probation and committing

N.R.M. to Youth for Christ’s Juvenile Justice program at Allegheny Cottage.

     N.R.M. filed a post-dispositional motion on June 3, 2014. On June 13,

2014, the juvenile court denied the post-dispositional motion. N.R.M. timely

appealed on July 11, 2014.       On July 14, 2014, the juvenile court ordered

N.R.M. to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).      N.R.M. timely complied on July 30, 2014.

On July 31, 2014, the juvenile court issued a Pa.R.A.P. 1925(a) opinion.

     N.R.M. presents one question for our review: “Whether the [juvenile]

court erred in denying [N.R.M.’s] motion for suppression by finding that

sufficient probable cause existed to justify the authorization of a search

warrant?” N.R.M.’s Brief at 4.

     N.R.M. argues that the search warrant was not supported by probable

cause because “the facts provided . . . consisted of only an anonymous

statement, stale information, and evidence that did not allude to a drug

vending operation.”   Id. at 8.      Therefore, he contends that the search




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warrant was defective and all evidence derived therefrom should be

suppressed as fruits of the poisonous tree. Id. We disagree.

      Our standard of review when reviewing a challenge to the denial of a

suppression issue is well-settled:


      [We are] limited to determining whether the factual findings [of
      the suppression court] are supported by the record and whether
      the legal conclusions drawn from those facts are correct.
      [Because] the prosecution prevailed in the suppression court, we
      may consider 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. Where the record
      supports the factual findings of the [juvenile] court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error.


Commonwealth v. Martinez, 69 A.3d 618, 622 (Pa. Super. 2013) (citation

omitted).


      In Illinois v. Gates, 462 U.S. 213 (1983), the United States
      Supreme Court established the “totality of the circumstances”
      test for determining whether a request for a search warrant
      under the Fourth Amendment is supported by probable cause.
      In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986), this
      Court adopted the totality of the circumstances test for purposes
      of making and reviewing probable cause determinations under
      Article I, Section 8. In describing this test, we stated:

         Pursuant to the “totality of the circumstances” test set
         forth by the United States Supreme Court in Gates, the
         task of an 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. . . . It is the duty of a court reviewing an
         issuing authority’s probable cause determination to ensure


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           that the magistrate had a substantial basis for concluding
           that probable cause existed. 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.


                                    *    *      *

           [Further,] a 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 the warrant.

      Commonwealth v. Torres, 764 A.2d 532, 537-38, 540 (Pa.
      2001).


Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (citations

formatted).    Finally, a showing of probable cause requires more evidence

“than would constitute mere suspicions and conjecture,” yet it is still “only

the   probability   and   not   a   prima    facie   showing    that   is   required.”

Commonwealth v. Minton, 432 A.2d 212, 214 (Pa. Super. 1981).

      Here, the juvenile court concluded “the magistrate did have a

substantial basis for concluding that probable cause existed” to issue the

warrant.    Juvenile Court Order, 4/16/2014, at 17.            Based upon our own

independent review of the warrant application, we are compelled to agree.

      In his affidavit, Officer Gartrell averred, in relevant part, as follows:


      Within the past week I received information from a complainant
      who was concerned about an excessive number of persons
      visiting 633 N. George St., North York Boro, York County, PA.
      The complainant stated that the visitors arrive in vehicles and on
      foot, go into the residence at 633 N. George St. . . . for short
      periods of time, then leave the area.


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     Through my training and experience I know that this type of
     visitor activity can be consistent with a drug vending operation.

     Through investigation I was able to determine that Mark Woods
     with a date of birth of 02-09-1968, and Cheirha Ranking with a
     date of birth of 05-23-1981 reside at 633 N. George St. . . .

     A check of Pennsylvania Criminal history records indicates that
     Mark Woods (02-09-1968) was convicted in York County Court in
     August 2009 for . . . a felony drug distribution offense. Cheirha
     Rankin (05-23-1981) was convicted of the same offense in York
     County Court in June of 2006.        Additionally Northern York
     County Regional Police have had contact with Woods and Rankin
     several times within the past 3 months at 633 N. George St. . . .
     Penn Dot records also indicate they both reside at 633 N. George
     St. . . .

     I determined residential trash pick up in the area of 633 N.
     George St. . . . is on Thursday mornings. During the late night
     hours of Wednesday 03-19-14 I went into the area of 633 N.
     George St. . . . , and noted that many residents had placed trash
     bags and receptacles on the alley behind the 600 block of N.
     George St. for pick up. Directly behind 633 N. George St. I
     observed a green can with a white plastic bag inside.

     I removed the bag from behind 633 N. George St. . . . and took
     it with me to another location. At the other location I examined
     the contents of the bag. Inside the bag I found two pieces of
     mail. One was addressed to Cheirha Rankin, and the other one
     was addressed to Mark Woods. Both pieces of mail had the
     address of 633 N. George St., York PA 17404 printed on them.
     In the same bag I found a small clear plastic baggie with a green
     leafy substance inside. The leafy substance looked and smelled
     like marijuana. I field tested the green leafy substance from the
     baggie, and a positive reaction for marijuana was obtained.

     Based upon my training and experience I know that persons
     involved in marijuana distribution commonly package marijuana
     in small plastic baggies.

     On numerous occasions in the past while working in an
     undercover capacity or through an informant, I have purchased



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      controlled substances which were packaged in small plastic
      baggies.

      Through the above information I believe that probable cause has
      been established to support the belief that a drug vending
      operation is taking place at 633 N. George St., North York Boro.,
      York Co. PA 17404. I believe that evidence of that offense,
      including quantities of marijuana or other controlled substances;
      cash previously used to purchase marijuana or other controlled
      substances; materials and items commonly used to package
      marijuana or other controlled substances, such as plastic bags
      and electronic scales; records or other documentation of past
      marijuana or other controlled substance transactions; and
      property or other assets acquired through illegal drug trafficking
      will be present at 633 N. George St. . . .


Affidavit of Probable Cause, 3/20/2014, at 1-2.

      Thus, Officer Gartrell supported his application for a search warrant

with not only hearsay information of behavior consistent with a drug

distribution scheme, but also information that the residents of 633 N.

George   St.   had   prior   convictions   consistent   with   such   a   scheme.

Furthermore, the affidavit describes a trash pull which confirmed that the

residents received mail at that address, and which contained marijuana

packaged in a fashion consisted with distribution of controlled substances.

This is consistent with our case law, which has shown that evidence

corroborated by trash pulls linked to the suspected individual provides a

substantial basis to issue a search warrant for further investigation.       See,

e.g., Commonwealth v. Washington, 858 A.2d 1255, 1256 (Pa. Super.

2004) (holding that affidavit supported by informant’s tip, corroborating

trash pull, and two controlled buys of crack cocaine, was sufficient to obtain

a search warrant for the residence); Commonwealth v. Hetzel, 822 A.2d

747, 760 (Pa. Super. 2003) (concluding that evidence retrieved from several


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trash pulls of bandages consistent with a bite inflicted by the victim was

sufficient probable cause to issue warrant).

      Accordingly, under the totality of the circumstances, we agree with the

juvenile court that the search warrant was supported by probable cause.

See Torres, 764 A.2d at 537-38. Therefore, the juvenile court did not err

in denying N.R.M.’s motion to suppress the search warrant and evidence

derived therefrom as fruits of the poisonous tree. See Martinez, 69 A.3d at

622. N.R.M.’s issue does not merit relief.

      Dispositional order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2015




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