J-S27036-16


                                   2016 PA Super 94

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

PAUL EDWARD RAPAK,

                            Appellee                    No. 1942 MDA 2015


                Appeal from the Order Entered October 9, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001564-2015

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                              FILED APRIL 29, 2016

        The Commonwealth appeals from the order entered in the Court of

Common Pleas of Berks County granting the pre-trial suppression motion

filed by Appellee, Paul Edward Rapak.          We reverse the suppression court’s

order and remand for further proceedings.

        The relevant facts and procedural history are as follows: Appellee was

arrested and, in a criminal complaint, he was charged with one count of

manufacturing of a controlled substance, one count of possession of a

controlled substance, and one count of possession of drug paraphernalia.1

On March 24, 2015, a preliminary hearing was held, at which the



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1
    35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), respectively.



*Former Justice specially assigned to the Superior Court.
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Commonwealth added a charge of possession of a small amount of

marijuana,2 and all charges were bound over to the trial court.

        On May 21, 2015, Appellee filed a counseled, pre-trial motion seeking

to suppress the physical evidence seized from his property and residence

located at 1045 Schuylkill Road upon the police’s execution of a search

warrant.     On August 14, 2015, the matter proceeded to a suppression

hearing, at which both parties appeared.          During the hearing, the

suppression court concluded Appellee’s issue challenged whether the search

warrant was supported by probable cause, and thus, the suppression court

ruled the court’s inquiry was limited to the four-corners of the affidavit of

probable cause.3

        Accordingly, the Commonwealth entered into evidence the search

warrant4 and accompanying affidavit of probable cause for which the affiants

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2
    35 P.S. § 780-113(a)(31).
3
 Defense counsel agreed Appellee was challenging solely whether there was
probable cause for the search warrant. N.T., 8/14/15, at 5.
4
  The search warrant, which was issued by the magistrate on August 26,
2014, listed the description of the property to be searched as follows:
     The property, residence and outbuilding(s) located [at] 1045
     Schuylkill Road, Robeson Township, and the property
     immediately to the west of 1045 Schuylkill Road.               Both
     properties are located on Rt. 724 and are bordered by the
     Schuylkill River. The residence at 1045 Schuylkill Road is a
     single family modular style residence, light in color.         1045
     Schuylkill Road is owned ny [sic] Paul Edward Rapak and the
     property to the west is owned by Sensient Technologies Corp.
(Footnote Continued Next Page)


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were Pennsylvania State Police Trooper Anthony C. Garipoli, Jr., who was

assigned to the narcotics unit, and Robeson Township Police Officer Matthew

J. Smith, who was assigned to the patrol/criminal investigations unit. The

affidavit of probable cause provided, in relevant part, the following:

             [Appellee] is believed to reside at 1045 Schuylkill Road,
      Robeson Township, Berks County, Pennsylvania.
             The property located at 1045 Schuylkill Road,. . .is the
      principal location of this investigation. The subject property is
      bordered by Schuylkill Road, RT 724 and property belonging to
      Sensient Colors.
                                         ***
             On August 25, 2014[,] Officer Smith, Robeson Twp., PD
      received information from a confidential source that marijuana
      plants were being grown in the area of 1045 Schuylkill Road. At
      approximately 1200 hours Ofc. Smith went to the area of 1045
      Schuylkill Road. At this time he observed approximately twelve
      (12) marijuana plants growing on the edge of the property
      belonging to 1045 Schuylkill Road and the property belonging to
      Sensient Colors. The plants were observed to be regularly
      tended to and had animal traps set up around the plot of plants.
      There was also a decoy coyote set to the side of the plants.
             There is a dirt road approximately fifteen (15) yards from
      the plants that lead [sic] from the rear of 1045 Schuylkill Road.
      The only access to the dirt road is from 1045 Schuylkill Road.
      Approximately thirty (30) yards from the plants was a large pile
      of tree stumps and shrubs which have been dumped from the
      dirt road which leads from 1045 Schuylkill Road. There was a
      large piece of outdoor equipment parked in the area of the
      dumping pile.
                       _______________________
(Footnote Continued)

Suppression Motion, Commonwealth’s Exhibit No. 1. The Commonwealth
alleged in the criminal complaint that, upon execution of the search warrant,
the police seized 123 marijuana plants, which were growing on the property
located at 1045 Schuylkill Road, as well as various items of contraband from
the house, including a small bag of marijuana, two marijuana buds, three
glass pipes, and three containers of marijuana seeds. Criminal Complaint,
filed 4/24/15.




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           The plot of marijuana plants is approximately one hundred
     (100) yards from the house located at 1045 Schuylkill Road.
     The house is visible from the plot of plants.
           The owner of 1045 Schuylkill Road, [Appellee], has a prior
     criminal history stating that in 1984 [Appellee] was arrested for
     drug     possession      and    possession      with    intent    to
     manufacture/deliver.
           It is the belief of your affiants that the owner of 1045
     Schuylkill Road, [Appellee], is aware of the plants and is the
     owner of the marijuana plants due [to] the fact that the only
     access to the plants is form [sic] a dirt road which leads from the
     rear of his property.
           Through the affiants’ training and experience it is known
     that individuals that grow marijuana often have processed
     marijuana from the harvested plants. Individuals who grow
     marijuana also commonly possess books and other sources of
     information on how to grow and process information as well as
     tools and equipment for growing marijuana including but not
     limited to chemicals and potting soil.
           Based upon the aforementioned facts contained herein,
     your affiants believe that [Appellee], the owner of 1045
     Schuylkill Road. . . is engaged in the illegal manufacturing of
     marijuana. Specifically, your affiants believe that the property
     and buildings located [at] 1045 Schuylkill R[oa]d. . . are utilized
     for the storage, planting, propagating, cultivating, growing,
     harvesting,      manufacturing,      compounding,        converting,
     processing, producing, preparing, testing, analyzing, packing,
     and trafficking of narcotics and/or U.S. currency.
           Based upon the foregoing, [the affiants] respectfully
     request that a Search Warrant be issued for the property and
     residence at 1045 Schuylkill Road, and the adjoining lot to the
     North, Robson Township[.]

Affidavit of Probable Cause, Commonwealth’s Exhibit No. 1, at 5.

     Following the suppression hearing, the parties filed their respective

legal memorandums, and by order and opinion entered on October 9, 2015,

the suppression court granted Appellee’s motion to suppress the physical

evidence. Specifically, the suppression court concluded the following:




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             In the instant case, an examination of the totality of the
      circumstances contained within the four-corners of the affidavit
      of probable cause reveals that the issuing magistrate did not
      have a substantial basis for concluding that probable cause
      existed.
             There are no facts contained in the warrant linking
      [Appellee] to the marijuana plants other than the fact that his
      residence was located within one hundred yards of the plants,
      and the fact that he had been arrested for a drug offense thirty
      years before.
             These observations constitute mere speculation that
      [Appellee] may have been tending to the plants. The information
      is not sufficient to establish probable cause.
             Accordingly, [Appellee’s] Motion to Suppress must be
      granted.

Suppression Court Opinion, filed 10/9/15, at 4-5.

      The Commonwealth filed a timely appeal, and within its notice of

appeal, the Commonwealth certified the suppression court’s order would

terminate or substantially handicap the prosecution of Appellee.          See

Pa.R.A.P. 311(d) (permitting the Commonwealth to           appeal from an

interlocutory order if it certifies the order will terminate or substantially

handicap the prosecution). The lower court ordered the Commonwealth to

file a Pa.R.A.P. 1925(b) statement, and the Commonwealth timely complied,

contending the suppression court erred in finding the search warrant was not

supported by probable cause. The lower court filed a Pa.R.A.P. 1925(a)

opinion explaining, in relevant part, the following:

            In addition to the authority set forth in [the October 9,
      2015, opinion] we also note that the Commonwealth’s
      contention that this court “ignored the importance of the facts
      underlying the probable cause determination including that the
      marijuana plants were located next to a private road that only
      leads to [Appellee’s] property” is belied by the record. This

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     court specifically found that there was “a dirt road located
     approximately fifteen yards from the plants that leads to the rear
     of 1045 Schuylkill Road,” which is [Appellee’s] property. The
     plants were also growing on the property of the business,
     Sensient Colors. It is just as likely that someone associated with
     the business was tending to the plants as it was that [Appellee]
     was tending to the plants. That hardly amounts to probable
     cause. The police could have conducted surveillance to learn
     who was caring for the plants, but chose not to do so.
            In addition, relying on a thirty-year-old arrest to attempt
     to establish probable cause to search [Appellee’s] residence was
     disingenuous at best. [Appellee] is presumed innocent, and
     there is nothing in the affidavit of probable cause to indicate that
     he was ever convicted of the drug offense. Moreover, as stated,
     the arrest occurred thirty years ago. The affiants’ belief that
     “the owner of 1045 Schuylkill Avenue, [Appellee], is aware of the
     plants and is the owner of the marijuana plants” was based upon
     nothing but speculation and conjecture. The Commonwealth
     failed to establish probable cause, and accordingly, this court did
     not err in granting [Appellee’s] Motion to Suppress Physical
     Evidence.

Lower Court Opinion, filed 11/25/15, at 2-3 (citation to 10/9/15 opinion

omitted).

     On appeal, the Commonwealth argues the suppression court erred in

ruling the issuing magistrate did not have a substantial basis for concluding

that probable cause existed to search Appellee’s property and house.

     When the Commonwealth appeals from an adverse suppression ruling,

a reviewing court “must 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.” Commonwealth

v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011) (quotation omitted).

Moreover, our scope of review from a suppression ruling is limited to the


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evidentiary record that was created at the suppression hearing. In re L.J.,

622 Pa. 126, 79 A.3d 1073, 1087 (2013). Instantly, no evidence was

presented to the suppression court other than a copy of the search warrant

and accompanying affidavit of probable cause.

      In reviewing the suppression court’s conclusions of law, we note they

are “not binding on an appellate court, whose duty is to determine if the

suppression court properly applied the law to the facts.” Id. (quotation and

quotation marks omitted).

            The legal principles applicable to a review of the sufficiency
     of probable cause affidavits are well settled. Before an issuing
     authority may issue a constitutionally valid search warrant, he or
     she must be furnished with information sufficient to persuade a
     reasonable person that probable cause exists to conduct a
     search. The standard for evaluating a search warrant is a
     ‘totality of the circumstances’ test as set forth in Illinois v.
     Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983),
     and adopted in Commonwealth v. Gray, 509 Pa. 476, 503
     A.2d 921 (1985). A magistrate is 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.’ The information offered to establish
     probable cause must be viewed in a common sense, non-
     technical manner. Probable cause is based on a finding of the
     probability, not a prima facie showing of criminal activity, and
     deference is to be accorded a magistrate's finding of probable
     cause.

Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa.Super. 2003)

(quotation omitted).   Moreover, “[i]n determining whether the warrant is

supported by probable cause, the magistrate may not consider any evidence




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outside the four-corners of the affidavit.” Id. at 513 (quotation and

quotation marks omitted).

            [Thus,] [u]nder our law, the focus is on the information
     provided to the issuing authority and its response to that
     information. Probable cause is a practical and fluid concept that
     turns on the assessment of probabilities in particular factual
     contexts, which cannot readily be reduced to a neat set of legal
     rules. The role of the magistrate, [as indicated supra], is to
     make a “practical, common sense decision” of whether, “given
     all of the circumstances set forth in the affidavit,”. . . there is a
     “fair probability” that contraband or evidence of a crime will be
     found in a particular place. The role of the reviewing court and
     the appellate court is to ascertain whether the issuing magistrate
     appropriately determined that probable cause existed for the
     issuance of the warrant. . . .Both the reviewing court and this
     Court must accord deference to a magistrate’s finding of
     probable cause.

Commonwealth v. Huntington, 924 A.2d 1252, 1256 (Pa.Super. 2007)

(emphasis and citations omitted). See Commonwealth v. Jones, 605 Pa.

188, 988 A.2d 649 (2010) (indicating a reviewing court must determine

whether the issuing magistrate had a substantial basis for concluding

probable cause existed and is not to conduct a de novo review of the issuing

authority’s probable cause determination).

     In the case sub judice, we agree with the Commonwealth that the

suppression court erred in ruling the magistrate did not have a substantial

basis for concluding probable cause existed to issue a search warrant for the

property and residence located at 1045 Schuylkill Road, which was owned by

Appellee.   The suppression court’s asserted reasons for its determination

included: (1) there were no facts in the affidavit of probable cause linking


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Appellee to the marijuana plants other than the fact his residence was

located within one hundred yards of the plants and the fact he had been

arrested for a drug offense thirty years before; (2) the affiants’ observations

constitute mere speculation that Appellee was the person tending to the

marijuana plants; (3) since marijuana plants observed by the affiants were

growing on the edge of Appellee’s property and the adjoining property held

by Sensient Colors, “it is just as likely” that someone from Sensient Colors

was   tending   to   the   plants;   (4)   the   police   should   have   conducted

surveillance; (5) while Appellee was arrested for drug offenses, he was

never convicted; (6) Appellee’s arrest for drug offenses was more than thirty

years ago; and (7) the affiants’ belief that Appellee was aware of the plants

and owned the plants was based upon speculation and conjecture.

      As is evident, in examining the affidavit of probable cause, the

suppression court focused its inquiry on Appellee to determine whether it

was reasonable to conclude that he was the person who tended or owned

the marijuana plants, i.e., whether it was reasonable to conclude Appellee

was “linked” to the marijuana plants. However, in adopting this viewpoint,

the suppression court erred.

      The critical element in a probable cause inquiry is not that the owner

of the property is suspected of crime but that the specific items to be

searched for and seized are located on the property to which entry is

sought.   See Commonwealth v. Gannon, 454 A.2d 561, 565 (Pa.Super.


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1982). In this regard, under the totality of the circumstances and in making

a practical, common sense decision, we agree with the Commonwealth that

the issuing magistrate had a substantial basis to conclude it was probable

that the property and house located at 1045 Schuylkill Road was being used

in the illegal manufacturing of marijuana.

      For instance, the affidavit of probable cause set forth that a

confidential informant told Officer Smith that marijuana plants were being

grown in the area of 1045 Schuylkill Road, and Officer Smith, upon driving

to the area, observed approximately twelve live marijuana plants growing

“on the edge of the property belonging to 1045 Schuylkill Road and the

property belonging to Sensient Colors.” Affidavit of Probable Cause,

Commonwealth’s Exhibit No. 1, at 5.          The affidavit noted the plants

appeared to be “tended to,” with animal traps and a decoy coyote set up

around them.    Id.   The affidavit further indicated Officer Smith observed

that the twelve marijuana plants were fifteen yards from a dirt road

accessing the rear of 1045 Schuylkill Road, the marijuana plants were one

hundred yards from the house located on 1045 Schuylkill Road, and the

house was visible from the marijuana plants. Id. Further, as it specifically

related to the house, the affiants noted that their training and experience

indicated chemicals, potting soil, processed marijuana, and books are

generally discovered in connection with live growing marijuana plants.




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      Based on the aforementioned, the magistrate had a substantial basis

for concluding there was a “fair probability that contraband or evidence of a

crime would be found in a particular place[,]” i.e., the property and house

located at 1045 Schuylkill Road, and the suppression court erred in ruling to

the contrary.   Ryerson, 817 A.2d at 514 (quotation omitted).         As the

Commonwealth cogently argues on appeal, where the police discover twelve

marijuana plants growing near a dirt road accessing the rear of a property,

and in close proximity to the house, common sense dictates that additional

contraband may be located in the areas. See Commonwealth’s Brief at 12-

13. Moreover, as the Commonwealth argues, the suppression court should

have deferred to the issuing magistrate’s decision in this regard. See id. at

13.

      We further note that, to the extent the suppression court suggested

the police should have conducted surveillance to determine who was tending

to the marijuana plants and that “it is just as likely” someone from Sensient

Colors was tending to the plants, we remind the suppression court that, not

only in this case was the focus on the property to be searched and not on

any one individual, but “[t]he requirements of a probable cause finding are

tempered by the courts so as not to impede the goals and obligations of law

enforcement.” Gannon, 454 A.2d at 336. Moreover, affidavits of probable

cause are subject to a much less rigorous standard than those governing

evidence and burdens of proof at trial, and the police need not rule out all


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other possibilities in establishing probable cause for the issuance of a search

warrant. See id.    Finally, “[t]he 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.” Id. at 337 (quotation, quotation marks,

and footnote omitted).

      For all of the aforementioned reasons, we conclude the suppression

court erred in granting Appellee’s pre-trial motion to suppress the physical

evidence seized by the police from the house and property located at 1045

Schuylkill Road upon execution of a search warrant. Accordingly, the order

of the lower court suppressing the evidence seized in execution of the

instant search warrant is reversed and the matter is remanded for

proceedings consistent with this decision.

      Reversed; Remanded; Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016




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