J-S18020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD LEE ARNDT                           :
                                               :
                       Appellant               :   No. 1704 MDA 2018

      Appeal from the Judgment of Sentence Entered September 14, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003980-2017

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 24, 2019

        Appellant Ronald Lee Arndt appeals from the judgment of sentence

following a bench trial and convictions for possession with intent to deliver

and possession of drug paraphernalia.1 On appeal, Appellant contends the

trial court erred by denying his motion to suppress because the information in

the search warrant was stale, uncorroborated, unreliable, and hearsay within

hearsay. We affirm.

        We set forth the following background, as taken from the suppression

record.2 On June 11, 2017, Detective Joseph Grego applied for a warrant to

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*   Former Justice specially assigned to the Superior Court.
1   35 P.S. § 780-113(a)(30), (32).
2 We recognize that our scope of review is limited to the record available to
the suppression court. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). In this
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search Appellant’s home for “any assets, paraphernalia, or other materials

related to the use or sales of” methamphetamine. Appl. for Search Warrant

and Authorization, 6/11/17 (emphasis added) (unpaginated). In support of

the application, Detective Grego averred the following in his affidavit of

probable cause:

       3. That on June 29th, 2015, the Elizabethtown Police Department
       forwarded a Drug Task Force information form from a named
       citizen (complainant #1) stating that “Phillip Bennett” who lives at
       303 N Hanover Street[,] Elizabethtown[,] PA is dealing heroin and
       meth. The complainant stated he/she “watches a lot of in and out
       traffic and has witnessed drug deals in front of his/her building”.
       The complainant labels “[Appellant]” as a suspect and the
       “landlord” of 303 N Hanover Street[,] Elizabethtown[,] PA.
       Detective Kelly of the Lancaster County Drug Task force was
       initially assigned this complaint and is familiar with Phillip Bennett
       from an ongoing methamphetamine investigation including Jere
       Kenneth Gilgore[,] Jr.

       4. That on July 28th, 2015, the Elizabethtown Police Department
       forwarded a Drug Task Force information form from a named
       citizen (complainant #1) stating that “Phillip Bennett” who lives at
       303 North Hanover Street[,] Elizabethtown[,] PA, is always going
       to the apartment building across the street and people from the
       apartment building are always going to his residence and “seeing
       drugs a lot”.

       5. That on August 25th, 2015, the Elizabethtown Police
       Department forwarded a Drug Task Force information form from
       a named citizen (complainant #1) stating that “[Appellant]” who
       lives at 303 North Hanover Street[,] Elizabethtown[,] PA has drug
       transactions taking place at all times.


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case, however, the trial court held an abbreviated suppression hearing at
which only the warrant was admitted into evidence and the parties requested
time to brief the issues. We have therefore included some excerpts from the
trial for background purposes.


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     6. That during the week of March 30th, 2017, Your Affiant spoke
     with a Confidential Informant (CI#1). CI#1 related that he/she
     has personal knowledge of an individual who is in the business of
     selling methamphetamine in Elizabethtown, PA. CI#1 advised
     that he/she could controlled [sic] purchases of methamphetamine
     from this individual. CI#1 has demonstrated his/her knowledge
     of     Controlled    Substances       to    specifically  include
     Methamphetamine, its packaging, pricing, and terminology.

     7. That during the week of March 30th, 2017, CI#1 made a
     controlled purchase of a quantity of Methamphetamine from an
     unknown individual in Elizabethtown[,] PA. This purchase was
     made under the direction and control of your Affiant using DTF/DA
     Funds. Your Affiant along with Detectives Lombardo, Vance and
     Ziegler of the Lancaster County Drug Task Force conducted
     surveillance of CI#1 meeting with the unnamed subject, the
     unnamed subject then went to the 300 block of North Hanover
     Street[,] Elizabethtown[,] PA, the unnamed subject then left the
     area of 300 block of North Hanover Street and returned to CI#1.
     CI#1 was searched before the controlled purchase with negative
     results for contraband. After completing the controlled purchase,
     CI#1 met with your Affiant and turned over a quantity of
     Methamphetamine. CI#1 was then searched again with negative
     results for contraband. Your Affiant performed a field test on a
     portion of the methamphetamine and a positive result was
     obtained. During the controlled purchase, the unnamed subject
     told CI#1 that the methamphetamine was purchased from
     “Ronnie”.

     8. That on May 30th, 2017, your Affiant conducted surveillance of
     303 N Hanover Street[,] Elizabethtown[,] PA. At approximately
     1900 hours, your Affiant observed [Appellant] standing on the
     porch of 303 N Hanover Street[,] Elizabethtown[,] PA speaking
     with an unknown male.

     9. That on May 31st, 2017, at 1549 hours, your Affiant observed
     [Appellant] leave 303 N Hanover Street[,] Elizabethtown[,] PA[,]
     with another male who I recognized to be Jere Kenneth Gilgore[,]
     Jr.[,] and get into a silver Dodge Dakota bearing PA registration
     ZBS9552 registered to Jere Kenneth Gilgore[,] Jr[.,] and then
     leave the area. Gilgore had been a subject of investigation for
     methamphetamine sales in the past by Detectives Kelly and
     Parduski of the Lancaster County Drug Task Force. Detectives
     Kelly and Parduski had obtained two controlled buys for

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     methamphetamine from Gilgore’s residence, 45 N Cherry Alley[,]
     Elizabethtown[,] PA in October and November of 2015. During
     their investigation, they also observed his silver Dodge Dakota
     bearing PA registration ZBS9552 parked outside.

     10. That on June 7th, 2017[,] at approximately 0305 hours, your
     Affiant, along with Detective Cavanaugh of the Lancaster County
     Drug Task Force, travelled to 303 N Hanover Street[,]
     Elizabethtown[,] PA[,] with the intent of conducting a trash pull.
     This would be in an attempt to corroborate the information that
     your Affiant has compiled on [Appellant] (DOB: 01/05/1969) and
     his residence of 303 N Hanover Street[,] Elizabethtown[,] PA.
     Upon my arrival, I observed a black in color garbage can with
     several black bags of garbage inside or it. This trash can was on
     the edge of the sidewalk closest to the road, in front of 303 N
     Hanover Street[,] Elizabethtown[,] PA[,] and clearly placed for
     pick-up. Your Affiant then conducted a trash pull and seized three
     garbage bags filled with trash. Your Affiant then conducted a
     search of the garbage and located the following items: (1) small
     empty clear sandwich bag containing residue that tested positive
     for methamphetamine on 06/07/20 at 1249 hours, (1) small clear
     zip-loc bag containing residue that [tested] positive for
     methamphetamine on 06/07/2017 at 1310 hours, (1) clear zip-
     loc baggie missing the entire bottom half on the bag, (1) piece of
     PPL [power utility] documentation with the name “[Appellant]”
     and the address of “303 N. Hanover St.”, and methamphetamine
     pipe with residue. Additionally, while conducting the trash pull,
     your Affiant observed a silver motorcycle bearing PA registration
     Y2274 parked in front of the trash can, on the street, in front of
     303 N Hanover Street[,] Elizabethtown[,] PA. This motorcycle and
     registration is in the name of “[Appellant]”. Your Affiant took
     pictures of said items of evidence and are hereby attached to this
     application.

     11. That based on your Affiant’s training and experience utilizing
     clear plastic bags is a common tactic that drug dealers use to
     package and distribute narcotics (including but not limited to
     methamphetamine). This is corroborated by the (1) sandwich
     baggie containing methamphetamine residue and the (1) small
     clear plastic bag containing methamphetamine residue located in
     the trash pull.




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      12. That within the last 48 hours, your Affiant received information
      from CI#1 that [Appellant] had additional quan[t]ities or
      methamphetamine for sale.

Aff. of Probable Cause, 6/11/17, at ¶¶ 3-12.

      Based on the affidavit, the magisterial district judge authorized the

search warrant of Appellant’s home, which occurred on June 12, 2017. The

police seized, among other items, 46 grams of methamphetamine, a blue

notebook listing Appellant’s drug sales, drug paraphernalia, digital scale, small

plastic baggies, and $1,280.     Compl., 6/12/17.     The police arrested and

charged Appellant.

      On September 12, 2017, Appellant filed a motion to suppress the

evidence recovered from Appellant’s home. The trial court held a brief hearing

on February 2, 2018, at the conclusion of which the trial court ordered the

parties to file memoranda of law addressing the suppression motion.           On

February 23, 2018, Appellant filed a memorandum of law contending that the

information in the affidavit of probable cause “was stale, nonspecific, lacked

independent police corroboration of information given by unreliable and

unproven informants, and failed to provide a valid and substantiated nexus to

believe there would be” drugs in Appellant’s home. Appellant’s Mem. in Supp.

of Suppression, 2/23/18, at 7. According to the docket, the trial court denied

the suppression motion on April 17, 2018, but the order was not included in

the certified record transmitted to this Court.




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       The parties proceeded to a bench trial, at which the parties agreed to

stipulate to certain facts:

       [Commonwealth]: The first witness would be Detective Joseph
       Grego from DTF. All the detectives are from the Lancaster County
       Drug Task Force. Detective Grego would testify the search
       warrant was approved and signed by MDJ Hartman on June 11th
       of 2017. There was a briefing at the office of DTF on June 12,
       2017, approximately 9 a.m. The search warrant was executed on
       June 12 of 2017. They knocked and announced. They breached
       the door. There were four people inside. The service portion of
       the search warrant was read, and the Miranda rights were read
       off of the little card that they carry with them. The search began.
       The role of Detective Grego was to collect and log the evidence
       that the other detectives found. That evidence was put in the
       evidence locker and, in fact, it’s my understanding that defense is
       stipulating to chain of custody for all the exhibits.

       [Appellant’s trial counsel agreed to stipulate].

       [Commonwealth]: Detective Grego and Detective [Anthony]
       Lombardo read the Miranda warnings off of the long form, the
       eight-and-a-half-by-11 sheet, to [Appellant] once he was taken
       back to the station. [Appellant] made statements of, it’s my
       stuff.[3] He was selling to make money. He was having trouble
       with employment. He buys the methamphetamine out of state
       and he gets more or less two ounces of meth and sells it about an
       ounce a month. Most of the money in the safe is from the drug
       sales.

N.T. Trial, 6/7/18, at 4-5.       Appellant testified that the drugs were for his

personal use. Id. at 12.




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3 Appellant had initially moved to suppress the statements, but withdrew the
claim at the suppression hearing. N.T. Suppression, 2/2/18, at 2.


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      Appellant was convicted, and on September 14, 2018, the trial court

sentenced Appellant to fifteen months to four years’ imprisonment. Appellant

timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issue:

      Did the trial court err in refusing to suppress evidence where the
      warrant issued was based on information which was stale,
      nonspecific, lacked independent corroboration of an unreliable
      third-party informant, and failed to provide a nexus to believe
      there would be drugs found at [Appellant’s] home when the
      warrant was executed?

Appellant’s Brief at 5.

      Appellant raises several challenges to the search warrant.         First, he

contends that the information set forth in the third, fourth, and fifth

paragraphs of the affidavit of probable cause is stale. Id. at 14. Second,

Appellant argues the police failed to corroborate the stale information and

establish the reliability of the named person and confidential informant. Id.

at 15. Appellant emphasizes that the confidential information did not identify

the seller of the drugs or any details of the alleged sale. Id. at 16. Moreover,

Appellant claims, the information was double hearsay. Id.

      Appellant also asserts that the information in the eighth and ninth

paragraphs of the affidavit, in which a police officer observed Appellant with a

person of interest eighteen months earlier, was also invalid.          Id. at 17.

Specifically, he alleges that the police officer failed to substantiate Appellant’s

identification and that being seen with a person of interest eighteen months

ago did not establish criminal behavior. Id.

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       Appellant contends the evidence seized from the trash pull was

insufficient to establish probable cause. Id. at 17-18. In particular, Appellant

concedes that drug paraphernalia, as well as evidence linking Appellant to the

address in question, was in the trash. Id. Appellant, however, suggests that

the evidence only establishes that he lived at the address and that “someone

at the residence may have smoked methamphetamine.” Id. at 18. Appellant

insists, nonetheless, that the affidavit did not establish probable cause that

methamphetamine would be found.4 Id. at 18.

       We state the standard of review:

       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. 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. Thus, the conclusions
       of law of the courts below are subject to our plenary review.


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4 We note that Appellant is not challenging the constitutionality of the trash
pull itself, but whether the evidence retrieved from Appellant’s trash
established probable cause. See generally Commonwealth v. James, 69
A.3d 180, 182 (Pa. 2013) (citing California v. Greenwood, 486 U.S. 35, 37
(1988), for proposition that the “Fourth Amendment does not prohibit
warrantless search and seizure of garbage left for collection outside curtilage
of home”).


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      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (citation

omitted).

      In evaluating an affidavit of probable cause,

      [t]he 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.

Commonwealth v. Manuel, 194 A.3d 1076, 1083 (Pa. Super. 2018) (en

banc) (citation, ellipses, brackets, and quotation marks omitted). “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. Leed, 186 A.3d 405, 413 (Pa.

2018) (citations and quotation marks omitted).

      In Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010), the

Pennsylvania Supreme Court explained that a “grudging or negative attitude

by reviewing courts towards warrants is inconsistent with the Fourth

Amendment’s strong preference for searches conducted pursuant to a

warrant; courts should not invalidate warrants by interpreting affidavits in a

hypertechnical, rather than a commonsense, manner.” Jones, 988 A.2d at

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655-56 (quotation marks and citation omitted).         “Reasonable minds,” the

Jones Court observed, “frequently may differ on the question [of] whether a

particular affidavit establishes probable cause, and we have thus concluded

that the preference for warrants is most appropriately effectuated by

according ‘great deference’ to a magistrate’s determination.”         Id. at 656

(quotation marks, citation, and footnote omitted).

       Instantly, the evidence retrieved from the garbage outside of Appellant’s

residence included plastic bags containing methamphetamine residue,

methamphetamine pipe, and mail from a utility company identifying Appellant

as a resident. See Aff. of Probable Cause at ¶ 10. We agree with the trial

court that such evidence tended to establish probable cause that Appellant

was using methamphetamine. See generally Leed, 186 A.3d at 413; Jones,

988 A.2d at 655-56; Manuel, 194 A.3d at 1083. Because the search warrant

for use or sale of methamphetamine was based on evidence retrieved from a

trash pull, the legality of which Appellant did not challenge, the trial court did

not err in deferring to the magistrate district judge’s determination and

denying Appellant’s suppression motion. See Shreffler, 201 A.3d at 763.

We therefore need not address Appellant’s other arguments attacking the

validity of the other information in the affidavit of probable cause.5 For these


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5 We agree with the trial court, however, that much of the information in the
affidavit of probable cause was stale. Cf. Commonwealth v. Jacoby, 170



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reasons, because the trial court did not err in denying Appellant’s motion to

suppress, we affirm the judgment of sentence

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/24/2019




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A.3d 1065, 1085 (Pa. 2017) (holding that although the search warrant was
flawed, ultimately, the error was harmless).


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