J-E01004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

BRUCE M. REESE

                        Appellant                    No. 52 EDA 2013


       Appeal from the Judgment of Sentence of November 20, 2012
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-0013539-2011


BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
        OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

CONCURRING AND DISSENTING MEMORANDUM BY WECHT, J.:FILED JUNE 23, 2015

     Among the claims raised by Bruce Reese in this case is his contention

that the search warrant that was executed on his residence was not

supported by probable cause because the information contained within the

four corners of the affidavit did not establish a factual nexus between the

crime committed on the street and his residence. Today’s learned Majority

concludes that Reese has waived this claim because, inter alia, he

abandoned that claim in his brief to the initial three-judge panel of this

Court. See Maj. Mem. at 6-9. I have reviewed that brief, and I agree with

the Majority that Reese has waived this claim.

     That determination should end our review of that claim. The Majority

nonetheless elects to address the merits of the claim, even though it

concluded that Reese had not preserved that issue for our review.
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Ultimately, the Majority concludes that, had the issue been preserved, Reese

still would not have been entitled to relief.    The Majority’s insistence on

reviewing the waived claim compels me to dissent from, and to reject on the

merits, that alternative discussion.

      The relevant facts of this case are relatively few in number. Reese and

another man robbed four men at gunpoint on a West Philadelphia Street.

Reese wielded the gun during the robbery. Reese was identified by at least

one person on the scene.     The three other victims identified Reese as the

perpetrator from a photo array. Two days after the robbery occurred, police

obtained and executed a search warrant on Reese’s residence, which was

not the location where the robbery had occurred. During the search, police

found, inter alia, a black handgun, which turned out not to be a real firearm.

      In a pretrial suppression motion, Reese sought to suppress the

evidence recovered during the execution of the search warrant.           At the

hearing on the motion, Reese argued that the warrant was not supported by

adequate probable cause because the police did not establish a factual nexus

between the crime committed on the street and his residence.           The trial

court denied the motion. On direct appeal, a panel of this Court reversed

the trial court’s suppression order. We granted en banc review. As noted

earlier, the present Majority, after finding the issue waived, explains that the

warrant in fact was supported by probable cause. I disagree with that latter

conclusion.




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     The legal standards governing our review of this issue are well-

established:

     Our standard of review in addressing a challenge to the denial of
     a suppression motion is limited to determining whether the
     suppression court’s factual findings are supported by the record
     and whether the legal conclusions drawn from those facts are
     correct.    Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth 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 suppression court’s factual findings are
     supported by the record, we are bound by these findings and
     may reverse only if the court’s legal conclusions are erroneous.
     Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).
     Where . . . the appeal of the determination of the suppression
     court turns on allegations of legal error, the suppression court’s
     legal conclusions are not binding on an appellate court, “whose
     duty it is to determine if the suppression court properly applied
     the law to the facts.” Commonwealth v. Mistler, 912 A.2d
     1265, 1269 (Pa. 2006) (quoting Commonwealth v. Nester,
     709 A.2d 879, 881 (Pa. 1998)). Thus, the conclusions of law of
     the courts below are subject to our plenary review.


                               *     *     *

     Article I, Section 8 [of the Pennsylvania Constitution] and the
     Fourth Amendment [to the United States Constitution] each
     require that search warrants be supported by probable cause.
     “The linch-pin that has been developed to determine whether it
     is appropriate to issue a search warrant is the test of probable
     cause.” Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.
     1991) (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191
     (Pa. 1986)).     “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.”         Commonwealth v.
     Thomas, 292 A.2d 352, 357 (Pa. 1972).

     In Illinois v. Gates, 462 U.S. 213 (1983), the United States
     Supreme Court established the “totality of the circumstances”

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      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), [the
      Pennsylvania Supreme 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
         who supply 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 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.

                                *     *     *

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

Commonwealth v. Jones, 988 A.2d 649, 654-55 (Pa. 2010) (internal

citations modified).

      Our precedents require the Commonwealth to establish probable cause

not only for the person suspected of criminal activity, but also for the

premises to be searched:

      Probable 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. . . . [A]n allegation based on an assumption or

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     supposition not supported by the facts is insufficient to support
     (an inference of) criminal activity in a premises, in spite of the
     fact that there are plenty of allegations alleged to relate to
     criminal activity of the individual who is alleged to have lived in
     the premises.

Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975); see

Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 1985) (“[T]he

lack of a substantial nexus between the street crime and the premises to

be searched renders the warrant facially invalid.” (emphasis added)).

Additionally, a magistrate’s determination of probable cause “must be based

[up]on facts described within the four corners of the supporting affidavit.”

Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing

Commonwealth v. Smith, 784 A.2d 182, 184 (Pa. Super. 2001)).

     The November 14, 2011 affidavit of probable cause in this case

primarily recites the events of the robbery and describes the complainants’

respective identifications of Reese. There is only one paragraph discussing

the premises to be searched, which reads as follows:

     [Reese] has [eight] prior arrest[s] in Philadelphia and list[s] 413
     N Edgewood for [six] of the arrest[s]. While being interviewed .
     . . [Harrison] informed [Detective] Mullen that during the
     afternoon hours of 11/13/11 he encountered the cousin of
     [Reese], a male he knows as Kyle Bentley, outside of 5700
     Belmar. [Harrison] stated [that Bentley] informed him that
     [Reese] is residing in West Philly.       The address of 413 N
     Edgewood is in the West Philadelphia area. On 4/27/11[, Reese]
     was released from prison. The prison release information list[s
     Reese’s] address as 1413 N Edgewood. This address listing
     appears to be a typographical error. There are no connections
     for [Reese] to 1413 N Edgewood at all.




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Continuation of Probable Cause for Search Warrant #161856, 11/14/2011,

at 1. Stated simply, there is no information within the “four corners” of the

affidavit of probable cause establishing any “nexus” between Reese’s

address and the instant robbery. Way, surpa. There are ample facts in the

affidavit to establish both Reese’s identity and that Reese resides at 413

North Edgewood Street.           However, the affidavit offers no factual basis for

concluding that Reese’s putative residence was connected to this robbery in

any way.       Although the affidavit offered significant factual bases for

concluding that Reese was a perpetrator, “[p]robable cause to believe that a

man has committed a crime does not necessarily give rise to probable cause

to search his home.” Way, 492 A.2d at 1154.

       This Court’s reasoning in both Kline and Way is highly instructive.1 In

Kline, the police obtained a search warrant for an apartment after

____________________________________________


1
      Subsequent decisions have distinguished somewhat our holding in
Kline and, by extension, Way. Specifically, this Court has enumerated
several types of evidence that are sufficient to establish the “substantial
nexus” between the place to be searched and the evidence to be seized.
See Commonwealth v. Davis, 595 A.2d 1216, 1220-22 (Pa. Super. 1991)
(holding that confidential informant’s observation of a defendant coming and
going from a specific house between three different narcotics’ sales
established “probable cause to believe that the objects sought . . . would be
found in [the defendant’s] home.”); Commonwealth v. Macolino, 485
A.2d 1134, 1136-38 (Pa. Super. 1984) (holding that police established
probable cause to search a home, when the affidavit of probable cause
contained information from wiretapped conversations emanating from the
house discussing narcotics trafficking, and police surveillance of the
property, wherein the defendant was observed coming and going from that
house while meeting with a known narcotics supplier); Commonwealth v.
(Footnote Continued Next Page)


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eyewitness complainants identified the defendant as a drug dealer and

indicated that the defendant lived in that particular apartment. Specifically,

three different informants stated that they had purchased drugs from the

defendant in the preceding week. Although the complainants stated that the

defendant kept the drugs that he sold in his apartment, there was no factual

basis in the affidavit to support that claim:

      [The suppression court] suppressed the evidence seized
      pursuant to the warrant because [the suppression court]
      concluded that although the affidavit contained facts sufficient to
      establish that [the defendant] was indeed dealing in drugs and
      lived in the apartment described, it did not contain facts
      sufficient to establish the basis [up]on which the several
      informants . . . had concluded that [the defendant] had gone to
      his apartment to get the drugs.

Kline, 335 A.2d at 362-63. On appeal, this Court upheld the suppression

court’s ruling, stating that assumptions regarding the premises to be

searched are insufficient to establish probable cause:


                       _______________________
(Footnote Continued)

Frye, 363 A.2d 1201, 1204 (Pa. Super. 1976) (holding that a defendant’s
admission may form the basis for establishing probable cause to search a
specific locale, stating that “the nexus between the evidence to be seized
and the place to be searched was provided by Frye’s admission that he was
conducting at least part of his unlawful operations from his home.”).

I read these cases as standing for the general proposition that, while the
Commonwealth must establish a nexus between the place to be searched
and the items to be seized, that burden is not meant to be harshly
interpreted. However, the central holding of Kline and Way – that mere
evidence of a suspect’s criminal activity and the location of his residence
does not establish probable cause to search that residence – remains in
force.



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      Here, as far as appears from the affidavit, none of the
      informants said where the [drugs were.]        The [informants]
      apparently concluded that [the drugs were] in [the defendant’s]
      apartment.      However, an affidavit must set forth how
      information leading to such a conclusion was obtained.
      Commonwealth v. Ambers, 310 A.2d 347, 350 (Pa. Super.
      1973); Commonwealth v. Soychak, 289 A.2d 119, 124 (Pa.
      Super. 1972). There is no indication of where the transaction
      took place, how long it took, how long [the defendant] was
      gone, or what led the [informants] to conclude that [the
      defendant] had gone to his apartment. The information from the
      confidential informants does not corroborate their conclusion
      that [the defendant] kept drugs in his apartment, even though it
      does tend to establish that [the defendant] was a drug dealer.

Id. at 364 (internal citations modified). Thus, the mere fact that an affidavit

of probable cause tends to establish the criminal activity of a defendant, and

the location of his home, does not provide probable cause to support the

issuance of a search warrant for that home.

      In Way, this Court relied upon Kline to suppress evidence seized

pursuant to a search warrant in another narcotics case:

      The facts fairly summarized are that the informant arranged a
      drug transaction by phone. The alleged transaction occurred in a
      blue van along a country road. After the alleged transaction,
      police followed the blue van to a driveway of a property at the
      corner of Douglas Dr. and Glendale Rd. The informant identified
      appellant as the driver of the blue van. A police source told the
      affiant that appellant lived at the intersection of Douglas Dr. and
      Glendale Rd.

Way, 492 A.2d at 1154. The trial court concluded that the search warrant

was supported by probable cause.           On appeal, this Court reversed,

concluding that, “within the four corners of the affidavit, we fail to find




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sufficient facts to permit an issuing authority reasonably to conclude that

there was contraband in the premises to be searched.” Id.

      Turning    to   the    instant   case,     examining    the    totality   of   the

circumstances,    and   considering     only     the   evidence     adduced     by   the

Commonwealth and the uncontradicted evidence of the defense, there are

no factual averments in the affidavit that establish any “nexus” between

Reese’s home and the instant crime.            Within its four corners, the affidavit

establishes only probable cause to believe that Reese committed the robbery

and lived at the subject residence.            Consequently, Kline and Way are

analogous to the present case: “[T]he lack of a substantial nexus between

the street crime and the premises to be searched renders the warrant

facially invalid.” Way, 492 A.2d at 1154; see Kline, 335 A.2d at 364.

      Other than a lone citation to Kline for establishing a general principle

of law, the Majority pays no attention to the details of Kline or Way, or to

the principle that emerges from those binding cases: that identity of the

perpetrator and knowledge of his residence does not amount to probable

cause to support a warrant to search a suspect’s residence. The police must

set forth facts in the affidavit to establish a nexus between the crime and the

residence. Here, as in those cases, the information contained in the affidavit

of probable cause establishes only identity and the location of Reese’s

purported residence.        Per Kline and Way, this is simply insufficient to

establish probable cause.


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      The Majority pays lip service to the nexus requirement, but then skims

through that essential inquiry by relying upon the fact that the police

requested permission to search for, among other things, a gun, and upon

the speculative assumption that guns are items that typically are kept in

one’s home. See Maj. Mem. at 14. The Majority rests its conclusion on a

single case:    Commonwealth v. Hutchinson, 434 A.2d 740 (Pa. Super.

1981). However, Hutchinson is too imprecise to be considered controlling

in this case.

      On July 30, 1976, Hutchinson robbed four people in front of a medical

center. Id. at 742. At the time of the robbery, Hutchinson was wearing a

blue checked shirt and wielded a firearm.      Two of the victims identified

Hutchinson from a photograph.     At an unknown time, police obtained and

executed a search warrant on Hutchinson’s home, which resulted in the

recovery of a blue checked shirt and a .22 caliber pellet gun. Id.

      Hutchinson challenged the constitutionality of the search warrant,

alleging that the warrant was not supported by adequate probable cause due

to the police’s failure to aver any facts to establish that evidence of the

robbery in front of the medical center would be found inside his home. Id.

at 742-43. This Court disagreed, noting that “the items seized, a shirt and a

gun, were each of a type reasonably likely to be found in the perpetrator’s

home, especially given the short period of time between the

commission of the crimes and the application for the search


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warrant.” Id. at 743 (citing United States v. Richard, 535 F.2d 246 (3d

Cir. 1976)) (emphasis added). Conspicuously absent from the Hutchinson

opinion is any indication as how much time had passed between the crime

and the application for the warrant, aside from the vague declaration that a

“short period of time” had elapsed.

      The   Majority   readily    acknowledges   that    Hutchinson    does   not

elaborate in any way on how much time had elapsed, or what constitutes a

short period of time.    See Maj. Mem. at 13.           Nonetheless, the Majority

concludes that the two days that elapsed between the robbery and the

execution of the warrant in the case sub judice falls within the “short period

of time” window.   In other words, despite not knowing what constitutes a

short period, the Majority determines that what happened in this case falls

within that window, a curious conclusion to say the least. Hutchinson does

not define the parameters of the inquiry, yet the Majority finds that this case

falls within those parameters.      It is for this reason that I would not apply

Hutchinson to this case.         It simply is too imprecise in its reasoning to

provide useful guidance to other cases, including this one.

      Moreover, Hutchinson and the Majority’s application of Hutchinson

raise more questions than are answered. What if the time period between

the crime and the warrant in Hutchinson was only eight hours?              If the

Hutchinson Court believed that eight hours was a “short period of time,”

would it feel the same about two days? Where lies the outer boundary of a


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“short period of time?” Three days? A week? Hutchinson is too vague to

allow its application to this case with any degree of reliability or certainty,

and certainly too vague to hold that it absolutely controls this case. I would

rely upon the more precedentially sound and secure footing of Kline and

Way, and would hold that identification of a suspect and location of

residence is an insufficient nexus to establish probable cause to search a

home at which the crime was not committed.         And, even if Hutchinson

were controlling, I would not find two days to be a “short period of time.”

      I also reject the general proposition that police can establish the

relevant nexus based only upon the type of item involved. That one person

typically stores a gun in his home is not probable cause that someone else

will do so.   Probable cause is based upon facts and assertions, not upon

surmise and unjustified assumptions. Hutchinson does not require me, or

this Court, to make that assumption.     Although Hutchinson noted that a

gun is an item typically stored in a person’s home, that assumption did not

alone establish probable cause in the Court’s view.     That assumption was

tethered to the fact that only a “short period of time” had elapsed since the

commission of the crime.    However, as I noted above, without discernible

boundaries for what constitutes a “short period of time,” I would not apply

Hutchinson strictly and would not hold that two days is in fact a “short

period of time.” Absent such a holding, Hutchinson does not require that

we find probable cause merely because of the unsupported assumption that


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people typically store guns in their homes, particularly guns that have been

used during the commission of a crime.

      To hold otherwise would eliminate the nexus requirement set forth in

Kline and Way.        Most people store items of importance to them in their

homes.    Thus, police would never have to demonstrate that a person

actually has stored the item used in the crime in their home.          In other

words, no longer would the police have to establish a factual nexus between

the crime and the residence. Law enforcement officers only would have to

aver that the item for which they are searching for is one of the thousands

upon thousands of items that people normally store in their homes. Notably,

even if this were all that were required, the police in the instant case did not

even offer this minimal averment.         Instead, the Majority makes this

assertion for them.

      In sum, I agree with the Majority that Reese has waived the relevant

claim implicated in this appeal.      If I were the author of the majority

memorandum, I would go no further. However, today’s Majority discusses,

erroneously, the merits of the claim.    Because the Majority does so, I am

compelled to respond.       I would hold that the police failed to establish

probable cause to search Reese’s home because they did not aver, let alone

establish, a factual nexus between the crime on the street and Reese’s

home. Hence, I concur with the Majority’s waiver discussion, but I dissent

from its discussion of the merits.


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