J-A07014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                        Appellant               :
                                                :
                                                :
                v.                              :
                                                :
                                                :
    JOHNATHAN JESUS ACEVEDO                     :    No. 425 MDA 2019

                Appeal from the Order Entered February 4, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0004049-2018


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                       FILED: APRIL 14, 2020

       Appellant, the Commonwealth of Pennsylvania (the Commonwealth),

appeals from the order entered on February 4, 2019, granting a motion to

suppress filed by Johnathan Jesus Acevedo (Acevedo). Upon careful review,

we vacate the order and remand for additional proceedings.

       The Commonwealth charged Acevedo with possession with intent to

deliver (PWID) and possession of drug paraphernalia1 when the police

searched his residence, after obtaining a search warrant, and recovered two

digital scales, a spoon, a bottle of Inositol,2 a box of .375 ammunition,

$2,440.00     in     U.S.   currency,   and    six   clear   plastic   bags   containing

approximately 108 grams of cocaine. Relevant to the current appeal, the
____________________________________________


1   35 P.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.

2 Inositol is a substance used to adulterate and add volume and weight to
controlled substances such as cocaine. See Wikipedia.org.
J-A07014-20



search warrant application was supported with facts contained in the affidavit

of probable case, which states:

      The affiant is Police Officer Patrick Gartell of the Northern York
      County Regional Police Department presently assigned to the York
      County Drug Task Force, and [has] been sworn in as a Special
      York County Detective authorized to conduct drug investigations
      in York County, [Pennsylvania]. As such, I am empowered to
      conduct drug investigations in York County.           Through my
      employment, I have opportunities, on a daily basis to interact with
      various persons, including informants and sources of information,
      who are familiar with controlled substance use and distribution
      use in York County, [Pennsylvania]. In the past, I have spoken
      with such persons regarding the manner in which controlled
      substances are sold, their value, how they are packaged and how
      controlled substances are used. Additionally, I have constant
      opportunities to view controlled substances, and how they are
      packaged, when such controlled substances are seized by law
      enforcement.

      Additionally, while working drug investigations in central
      Pennsylvania I have had the opportunity to interview dozens of
      informants and sources of information.        These interviews
      concerned the value of controlled substances, the appearance of
      controlled substances, methods of sale, methods of packaging,
      methods of hiding, secreting and transporting controlled
      substances, as well as identifying persons involved in the
      [distribution of controlled substances].

      Within the past [two] months I spoke with a confidential informant
      (CI) who advised that they could purchase cocaine from a person
      they knew as “Johnny.” Through information from the CI and
      databases available to me I identified “Johnny” as [Acevedo]. I
      then showed the CI a PennDot photo of Acevedo. The CI
      [confirmed] Acevedo was the person they knew as “Johnny,” and
      the person they could purchase cocaine from. A check of PennDot
      records lists Acevedo’s address as 752 Colony Drive, York City,
      York Co., [Pennsylvania].

      Within the past two months I directed the CI to make
      arrangements to purchase cocaine from Acevedo.         Acevedo
      agreed to sell the CI cocaine and a pre-determined location was
      agreed upon. I then searched the CI and found [him/her] to be


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     free of drugs, money, or any other contraband. I then provided
     the CI with a quantity of cash which the serial numbers were
     previously recorded.        The CI was kept under continual
     surveillance. Officers then watched as the CI met with Acevedo
     at the predetermined location. The CI then turned over a quantity
     of cocaine [he/she] advised was purchased from Acevedo using
     the official funds provided. The CI was again searched and [found
     to be] free of drugs, money, or any other contraband. After
     meeting with the CI[,] assisting police officers followed Acevedo
     to the area of his residence and observed him entering the front
     door of 752 Colony Drive[.]

     On a second occasion, and within the past week, I directed the
     same CI to contact Acevedo and make arrangements to purchase
     cocaine from him.       The CI and Acevedo agreed upon a
     pre-determined location. I then searched and found [the CI] to
     be free of drugs, money, or any other contraband. I then provided
     the CI with a quantity of cash of which I previously recorded the
     serial numbers. I then kept the CI under continual surveillance
     and followed him/her to the pre-determined location.              I
     maintained continual visual surveillance of the CI for the duration
     of this incident. A short time later I watched as the CI met with
     Acevedo. The CI then returned to me a[nd] turned over a quantity
     of cocaine. The CI advised that [he/she] purchased the cocaine
     from Acevedo using the official funds provided when officers saw
     them meet. I again searched the CI and found [him/her] to be
     free of drugs, money, or any other contraband.

     After meeting with the CI, assisting police officers followed
     Acevedo from the pre-determined location keeping him under
     continual surveillance. Acevedo did not stop or meet with anyone
     else after meeting with the CI. Police [o]fficers followed Acevedo
     to the area of his residence and then observed Acevedo enter the
     front door of 752 Colony Drive[.]

     On [June 12, 2018,] officers were conducting surveillance of
     Acevedo’s residence located at 752 Colony Drive[.]           They
     observed Acevedo arrive and enter the residence. A short time
     later[,] officers watched Acevedo exit the residence and leave the
     area in a red Lexus. Officers followed Acevedo and kept him under
     continual surveillance. In the area of North Sherman St. and
     Hudson St.[,] Acevedo was stopped and taken into custody on the
     prior [two] deliveries. Once in custody Acevedo was searched.
     Officers found a plastic baggie containing cocaine in his pants


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     pocket. Acevedo acknowledged the substance found in his pocket
     was cocaine.

     The cocaine found on Acevedo was packaged the same way he
     had it packaged during the prior deliveries.

     Based upon Department policy and the York County District
     Attorneys[’] Office recommendations, which arise out of concerns
     for the safety and well-being of investigators, the substance
     seized was not field tested[.] However, based upon my training
     and experience, including my experience with drug investigations
     in the past where I have had the opportunity to seize and view
     cocaine, as well as the manner in which it [is] commonly packaged
     in York County, I believe[d] the substance to be cocaine[.]
     Additionally, as described above, arrangements were made in my
     presence by the CI to purchase a quantity of [cocaine.] The CI
     was provided an amount of cash which was consistent with the
     amount of cocaine to be purchased[.] The CI met with the
     supplier as described above and purchased what the CI, who is a
     cocaine user, believed to be cocaine[.] The amount of cocaine
     purchased by the CI was consistent with the amount of money
     provided. []Taken in their totality, I believe that all of these
     factors demonstrate that the substance purchased and seized was
     cocaine[.]

     A check of Acevedo’s criminal history shows he pleaded guilty to
     conspiracy to manufacture a controlled substance for an offense
     that occurred in York County on [October 11, 2016].

     Through my training and experience, including the observations
     made during this investigation which are presented above, I
     believe that a cocaine vending operation is being conducted by
     Johnathan Acevedo inside the residence at 752 Colony Drive,
     within York City, York County, [Pennsylvania]. I believe that
     evidence of that offense, including additional amounts of cocaine;
     cash previously used to purchase cocaine; materials and items
     commonly used to package cocaine, such as plastic bags and
     electronic scales; records or documentation of past cocaine
     transactions; and property or other assets acquired through illegal
     drug trafficking will be present at 752 Colony Drive [w]ithin York
     City, York County, [Pennsylvania].

Affidavit of Probable Cause, 6/12/2018, at 2-5.



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       Based upon the information set forth in the affidavit of probable cause,

the police applied for a search warrant to search the residence on Colony

Drive.   A magisterial district judge authorized the search warrant.           Upon

execution of the search warrant, police recovered the items described above.

As mentioned in the affidavit of probable cause, in a search incident to arrest,

police also recovered cocaine from Acevedo’s person that was packaged

similarly to the cocaine previously purchased by the CI. The Commonwealth

charged Acevedo with the aforementioned crimes on July 31, 2018.                On

August 30, 2018, Acevedo filed an omnibus pre-trial motion seeking

suppression. The trial court held a hearing on October 5, 2018 and the court

held its decision in abeyance pending the filing of briefs.

       On February 4, 2019, the trial court granted Acevedo suppression by

order and opinion. The trial court determined that the affidavit of probable

cause did not indicate that Acevedo was selling cocaine from his residence and

“any connection to [Acevedo’s] residence [was] too tenuous[.]” Trial Court

Opinion, 2/4/2019, at 6. More specifically, the trial court offered the following

rationale for granting suppression:

       The CI provided good information[3] that tipped off [police] officers
       and led to two [controlled narcotics transactions] that provided
____________________________________________


3 The trial court noted it “was not truly assessing the reliability of the CI; but
rather, [was] assessing any evidence supplied to the magistrate, by the
officers, about the residence in question.” Trial Court Opinion, 2/4/2019, at
7. “[A] determination of probable cause based upon information received from
a confidential informant depends upon the informant's reliability and basis of



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       probable cause to arrest [Acevedo] for selling cocaine. Yet,
       crucially, the officers did not follow [Acevedo] from his supposed
       residence to the [controlled drug buys]; but, rather, followed
       [Acevedo] to his residence after each of the [transactions]. Thus,
       the officers established that [Acevedo] twice returned to his
       domicile after selling drugs and nothing more. There was no
       useful information garnered vis-à-vis the residence as the source
       of drugs or a stash location when the affidavit does not indicate
       whether [Acevedo] left for the [controlled drug buys] from the
       home. As [Acevedo] was not followed from his residence to the
       [controlled drug buys] – despite the officers knowing the location
       at which [Acevedo] resided – it is impossible to infer – certainly
       not the degree necessary for probable cause – that [Acevedo]
       obtained drugs to sell from his residence. The Commonwealth
       cannot say from whence the drugs utilized in the [controlled drug
       buys] were obtained. This leads to the day of arrest – and the
       final opportunity, along with the rest of the totality of the
       evidence, for the affidavit to have provided sufficient probable
       cause.

       The officers staked out [Acevedo’s] residence. The officers saw
       [Acevedo] arrive at and enter his home. Shortly thereafter, the
       officers observed [Acevedo] leave the residence, enter a red
       Lexus, and depart the area of the home. Thereafter, [Acevedo’s]
       vehicle was stopped and he was arrested for the previous
       [controlled drug buys]. Incident to arrest, [] cocaine was seized
       from his person. The Commonwealth [] infer[s] that because
       [Acevedo] entered his residence and left shortly thereafter and
       was seized with cocaine on his person that matched the packaging
       from the [controlled drug buys] then the residence had to be the
       source of the drugs and thus probable cause to search was
____________________________________________


knowledge viewed in a common sense, non-technical manner. Thus, 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.” Commonwealth v. Gagliardi, 128 A.3d 790, 795-796
(Pa. Super. 2015) (citation omitted). As discussed below, our Supreme Court
previously rejected the grant of suppression based upon lack of probable
cause merely “because the CI had not stated that he had previously been
inside th[e] residence” where alleged narcotics were said to be sold.
Commonwealth v. Clark, 28 A.3d 1284, 1289 (Pa. 2011). Here, police
independently verified the CI’s tips when they surveilled the two prior
controlled drug buys.

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       established. [The trial court] believe[d] this [was] too attenuated
       and weak. On the day of the arrest, the officers had staked out
       the residence. If the officers had set up a third [controlled drug
       buy] then they might well have observed the same thing
       ([Acevedo] entering his residence and leaving shortly thereafter),
       which, in combination with an established [controlled drug buy],
       would have established that the home was the likely source of the
       drugs. Instead, the information in the affidavit merely indicates
       that [Acevedo] arrived at and left his home before being arrested.
       The presence of cocaine on [Acevedo’s] person at the time of
       arrest would only allow the magistrate to infer that [Acevedo] had
       cocaine on his person and not the source of the cocaine.
       Cocaine on [Acevedo’s] person was not a substantial basis from
       which the magistrate could conclude that the residence was the
       source of the cocaine. For the foregoing reasons, [the trial court
       granted Acevedo’s] motion to suppress evidence gathered from
       the search of his residence[.]

Id. at 7-8 (emphasis in original). This timely appeal resulted.4

       In its Rule 1925(b) statement, the Commonwealth averred that the trial

court failed to consider the nexus between the money used by the CI in the

two controlled drug buys and Acevedo’s residence.        More specifically, the

Commonwealth argued that the police recorded the serial numbers from the

money used in the two prior CI transactions and that they witnessed Acevedo

enter his residence immediately thereafter on both occasions. As such, the

Commonwealth argued there was a reasonable probability that evidence of

crime would be located in Acevedo’s residence.        The Commonwealth also

____________________________________________


4  The Commonwealth filed a notice of appeal on March 6, 2019. The notice
of appeal contained the requisite certification, pursuant to Pa.R.A.P. 311(d),
stating that the suppression order would terminate or substantially handicap
the prosecution. On March 27, 2018, the Commonwealth filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On August 9, 2019, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) which relied, in part, upon its previous February 4, 2019 opinion.

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J-A07014-20



argued that police seized cocaine from Acevedo’s person after he was seen

leaving his residence and while he was en route to a third controlled drug buy.

Thus, the Commonwealth averred that, in considering the totality of the

circumstances, there was probable cause to issue a search warrant for

Acevedo’s residence and suppression was unwarranted.

      In response to these arguments, the trial court concluded:

      Turning to the buy-money, [the trial court did] not deny that the
      buy money would have been evidence of the two [controlled drug
      buys]; however, based upon the [criminal i]nformation [filed by
      the Commonwealth], [Acevedo] does not appear to have been
      charged with [crimes pertaining to] the [controlled drug buys].
      Rather, the true target of the search appears to have been
      evidence of a drug-vending operation at the location in question.
      For all the reasons stated in [the February 4, 2019 opinion], the
      buy-money would be irrelevant to the crimes charged. The
      buy-money would have been relevant to charging [Acevedo] for
      the two [controlled drug buys] known to have occurred. Now, the
      affidavit of probable cause does state in its closing paragraphs
      that the officer believes that monies from previous drug-dealing
      will be found at the residence. The Superior Court might conclude
      this is enough, especially in light of such cases as
      Commonwealth v. Clark, [28 A.3d 1284, 1291 (Pa. 2011)]
      which calls upon courts to weigh the totality of the circumstances
      and to not evaluate pieces [of evidence] in isolation. [The trial
      court] was swayed by York County’s recent experience with
      Commonwealth v. Manuel, 194 A.3d 1076, 1081 (Pa. Super.
      2018). It seemingly calls upon [courts] to hold officers to a more
      stringent standard than what has previously sufficed in York
      County, Pennsylvania. Despite Manuel, [the trial court] has
      denied suppression in numerous recent cases, including:
      Commonwealth v. Inkroe, Commonwealth v. Lawrence,
      Commonwealth v. Madera-Guilbe, [and] Commonwealth v.
      Ferguson.      In all of these cases, the officers performed
      independent police work that tied the residence to be searched to
      the defendant. [The trial court] believe[s it] did balance the
      totality of the circumstances in this case and, even with the
      addition of the buy-money, [did] not believe that the balance tips
      in the Commonwealth’s favor. Though there was theoretically

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       some possibility of locating buy-money at the location in question
       as [Acevedo] was observed to return there, [the trial court]
       believe[d] it [was] too tenuous.          [The trial court] readily
       acknowledge[d] that this [was] a close call.                 If the
       Commonwealth’s assertion that a third [controlled drug buy] was,
       in fact, evident in the affidavit of probable cause, then [the trial
       court] would agree that a sufficient nexus had been established.
       If the [trial court] erred, [it] know[s] that the Superior Court will
       set it right.

Rule 1925(a) Opinion, 8/9/2019, at 4-5 (superfluous capitalization and trial

court citations omitted; emphasis in original).

       On appeal, the Commonwealth presents the following issue for our

review:

       I.     Whether [t]he [s]uppression [c]ourt erred in suppressing
              the fruits of the search warrant as the four corners of the
              search warrant contained probable cause to search
              [Acevedo’s] residence under the totality of the
              circumstances[?]

Commonwealth’s Brief at 4.5

       This Court has stated:

       When the Commonwealth appeals from a suppression order, we
       follow a clearly defined standard of review and 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. The suppression court's
       findings of fact bind an appellate court if the record supports those
       findings. 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.

       Our standard of review is restricted to establishing whether the
       record supports the suppression court's factual findings; however,

____________________________________________


5  The Commonwealth makes the same arguments to this Court that it
presented to the trial court. We need not recite them again here.

                                           -9-
J-A07014-20


       we maintain de novo review over the suppression court's legal
       conclusions.

       With regard to search warrants, we have explained the following.

          It is well-established that for a search warrant to be
          constitutionally valid, the issuing authority must decide that
          probable cause exists at the time of its issuance, and make
          this determination on facts described within the four corners
          of the supporting affidavit, and closely related in time to the
          date of issuance of the warrant.           It is equally well
          established that a reviewing court [must] pay great
          deference to an issuing authority's determination of
          probable cause for the issuance of a search warrant.[6]
          Moreover, our Supreme Court has recognized that affidavits
          supporting search warrants normally are prepared by
          nonlawyers in the midst and haste of a criminal
          investigation, and, accordingly, said affidavits, should be
          interpreted in a common sense and realistic fashion rather
          than in a hypertechnical manner.

Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super. 2016) (internal

citations, ellipsis, and quotations omitted).

       Our Supreme Court has concluded:

       The task of the issuing magistrate is simply to make a practical,
       common-sense decision whether, given all 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. And the duty of a reviewing
       court is simply to ensure that the magistrate had a substantial
       basis for concluding that probable cause existed.


____________________________________________


6 “Although reasonable minds frequently may differ on the question of 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.” Gagliardi, 128 A.3d at 795.

                                          - 10 -
J-A07014-20



Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (emphasis in

original). “Probable cause 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.” Id.

     In Clark, our Supreme Court recounted:

     The affiant in [Clark] was Philadelphia Police Officer James Kidd,
     a fourteen-year narcotics bureau veteran who had been involved
     in over 3000 narcotics arrests by the time of the instant
     investigation. The affidavit of probable cause stated that on
     September 8, 2004, a “reliable confidential informant” had
     informed Officer Kidd that a white male, approximately 6′–6′2″ in
     height, weighing approximately 170–195 lbs., known as “Steve,”
     packages and distributes cocaine from 4242 Salmon Street in
     Philadelphia, and makes deliveries of cocaine in a white Pontiac
     Grand Am with a black roof, Pennsylvania license number
     FRG-5450. The affidavit further stated that the police conducted
     a controlled drug buy on September 9, 2004, as follows: The
     police observed a white male matching the description of “Steve”
     depart 4242 Salmon Street, directly enter a white Pontiac Grand
     Am with a black roof and license number FRG–5450, and drive to
     the site of a pre-arranged controlled buy. The police observed as
     the CI purchased cocaine in two green plastic baggies from the
     white male with $40[.00] pre-recorded buy money. After the
     transaction, the police followed the white male back to 4242
     Salmon Street, where they saw him exit the Pontiac and directly
     enter the residence. The police verified that the Pontiac was
     registered to “Steve Clark” with an address of 4242 Salmon
     Street.

     Based on the above recitation, a Municipal Court Judge issued a
     search warrant for 4242 Salmon Street and the police executed a
     search of the residence on September 10, 2004. The police seized
     $1775[.00] in United States currency, cocaine, cocaine “cutting”
     agents, packaging paraphernalia, a loaded .25 caliber handgun,
     and mail addressed to “Steve Clark.” They arrested Appellee,
     Steven Clark, who subsequently filed a motion to suppress the
     evidence seized from the residence.

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Id. at 1285–1286.

      Ultimately, the Clark Court found:

      The totality of the circumstances here included the fact that the
      police corroborated significant details of the informant's tip by
      conducting and observing, the day before they applied for the
      search warrant, a controlled buy of narcotics that dovetailed
      precisely with the information the CI had provided. Indeed, the
      only portion of the CI's information that the police had not verified
      was where the cocaine was stashed. Although the observed facts
      pointed to 4242 Salmon Street as the stash house, the lower
      courts here erroneously determined that probable cause to search
      that residence was lacking, in part, because the CI had not stated
      that he had previously been inside that residence.

Id. at 1289. The Clark Court concluded, “there was a sufficient connection

between the residence and the transaction to corroborate the CI's information

that drugs were stored in the residence, and to support a determination of

probable cause to search the residence.” Id. at 1291.

      In this case, we note initially that we give great deference to the

magistrate in finding probable cause to support the issuance of a search

warrant.   Here, the application for the search warrant, and the attached

affidavit of probable cause, included a verified factual recitation of two prior

controlled drug buys of cocaine from Acevedo. Thus, similar to the facts in

Clark, the CI herein was reliable. Moreover, based upon all of the information

provided, the affidavit of probable cause demonstrated a fair probability that

the proceeds of crime would be found in the location for which the warrant

was sought.    The affidavit specifically stated that police twice witnessed

Acevedo enter his residence immediately after receiving previously recorded


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J-A07014-20



buy money in exchange for cocaine. These funds constituted the proceeds of

criminal activity, were specifically identified in the affidavit of probable cause,

and there was a fair probability that they would be found inside the residence.

See Commonwealth v. Coleman, 830 A.2d 554, 564 (Pa. 2003) (“there was

an overwhelming probability that, at the time police would actually enter the

residence under authority of [a search] warrant, evidence of a crime -

specifically, the marked buy money - would be found there.”). In addition,

the affidavit of probable cause detailed that, shortly after the controlled drug

buys, police surveilled Acevedo leave his residence and when they initiated a

traffic stop and arrested Acevedo, they recovered cocaine from his person

packaged identically to the two prior controlled buys.7 Hence, the officer’s

affidavit also demonstrated a reasonable probability that police would find

cocaine, together with other identified items relating to criminal activity, in

the residence. Based upon a totality of the circumstances, the affidavit of

probable cause established a fair probability that controlled substances or

other evidence of illicit activity would be located at Acevedo’s residence. Since

all of the aforementioned information was set forth in the affidavit of probable
____________________________________________


7  In his motion to suppress, Acevedo did not challenge the traffic stop or the
seizure of the cocaine from his person incident to his arrest. Nor does he
suggest that the cocaine was stored in his vehicle. Regardless, as our
Supreme Court noted in Clark, “[a]lthough the circumstances of the observed
transaction also potentially pointed to [Clark’s] vehicle as a storage location
for the drugs, 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.” Clark, 28 A.3d at 1291 (citation omitted).

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cause, we hold that the magistrate had a substantial basis for concluding that

probable cause existed.     Accordingly, it was trial court error to grant

suppression.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/14/2020




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