J-S96005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellant

                    v.

TROY DEVON MARTIN

                                                    No. 1855 WDA 2015


             Appeal from the Order Entered November 3, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012366-2013


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 31, 2017

      The Commonwealth appeals from the order granting Troy Devon

Martin’s motion to suppress. We reverse and remand.

      This matter arose after Pittsburgh City police officers received

information that illegal narcotics were being sold from a particular location

on Mercer Street in Pittsburgh, Allegheny County.        After conducting an

investigation, the police sought and obtained a search warrant for the

residence in question.      The affidavit of probable cause in support of the

search warrant, attested to by Officers Michael Lafferty and Michael Slatcoff,

indicated the following:

            Within the past several weeks, Officers received
      information from a confidential source [(“CI”)], who stated that
      large amounts of heroin are being stored inside the residence of
      714 Mercer Street Pittsburgh, PA 15219 [(“714 Mercer Street”)].
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     The [CI] stated that the males operating this drug organization
     out of 714 Mercer Street are only known to him/her as “Ryder”
     and “Troy”. The [CI] stated that they drive around in a newer
     rental van model Chrysler Mini Van, and the van has dark tinted
     windows. The [CI] stated that “Ryder” always sits in the back of
     the mini van to avoid being seen by police. The [CI] stated that
     “Ryder” occasionally has other people drive the van and make
     deliveries also, during which time the narcotics are transported
     in the male[’]s groin areas to avoid detection.        The [CI]
     described 714 Mercer Street as a nice red brick house, with a
     large rear deck. The [CI] stated that this house was the first
     house on your left when turning off Bedford Avenue, onto Mercer
     Street. The [CI] stated that older relatives of “Troy” own the
     house and allow the young males to use the house to hide their
     narcotics.

           The [CI] stated that “Ryder” and “Troy” also use the house
     at 714 Mercer Street to smoke marijuana, party, and have sex
     with woman [sic]. The [CI] stated that “Ryder” is a black male
     with tattoo’s on his face and all over his body.

            Officers know the nick name “Ryder” as a male named
     Chauncey Howard . . . who frequents the Hill District area.
     Officers showed the [CI] a picture of Howard and he/she
     positively identified Howard as the male he/she knows as
     “Ryder”.

            Officers searched 714 Mercer Street on the Allegheny
     County Assessment website. Officers found that the residence is
     owned by Albert Martin[.] Officer Slatcoff then recalled an arrest
     made by Lt Lando where a Troy Martin was arrested for
     possession of a small amount of marijuana. Officer Slatcoff then
     researched Lt Lando’s arrests in the Quick Arrest System where
     he found a Troy Martin . . . was arrested by Lt. Lando on
     05/06/2013 CCR # 13-86792, in the Oak Hill area of the City of
     Pittsburgh. The arrest paperwork showed that Troy Martin used
     the address 714 Mercer Street as the place he receives mail.
     Officer Slatcoff contacted Lt. Lando via phone and confirmed that
     he arrested a Troy Martin who used the address 714 Mercer
     Street, as reflected in the arrest paperwork. Officer Slatcoff
     showed the CI a picture of Troy Martin, who he/she positively
     identified as the male he/she knows as “Troy”.



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           A JNet search of Chauncey Howard[‘s] . . . criminal history
     was conducted. Howard was charged with 13a30 Possession
     with intent to deliver charge on 04/08/2010. Martin was also
     recently charged for 13a31 Possession of small amount of
     marijuana.

           With[in] the past several weeks, Officer Slatcoff was
     leaving court, heading back to Zone 2 Station. While on Bedford
     Avenue, Officer Slatcoff observed a new, black, Chrysler Town
     and Country van parking directly in front of 714 Mercer Street.
     Officer Slatcoff passed the vehicle and he observed an unknown,
     young black male exiting the driver seat. Officer Slatcoff was
     able to obtain the registration plate of the vehicle and it is HZR-
     7279. Officer Slatcoff ran the vehicles registration through index
     and it came back to the rental company Ean Holdings LLC.
     Officers found that this van was consistent with the information
     received from the [CI].

            Within the past several weeks, Officers formulated plans to
     conduct surveillance on 714 Mercer Street. Officers were located
     in a fixed position, with a clear unobstructed view of 714 Mercer
     Street. Within an hour of beginning surveillance of the house, I
     observed a new, black Chrysler Town and Country van pull up
     directly outside of 714 Mercer Street. I observed an unknown,
     young black male driving the vehicle. I observed Troy Martin
     exit the front passenger seat of the vehicle, and enter 714
     Mercer Street. Several minutes later, I observed Martin quickly
     exit 714 Mercer Street and enter the van. The van then drove
     away from the residence. The van that came to 714 Mercer
     Street was the same black Chrysler van that Officer Slatcoff
     observed on a previous date, with the same registration
     information (HZR-7279). The information received from the [CI]
     corroborated with what Officers observed while conducting
     surveillance of the residence.

           On 06/11/2013 at approximately 0300 hours, I Officer
     Lafferty, formulated plans to conduct a trash pull of the
     residence of 714 Mercer Street.

            At approximately 0310 hours, I drove by the above
     location at which time I observed (2) large black trash bags with
     yellow handles, laying curbside, on Bedford Avenue, directly on
     the side of 714 Mercer Street. The bags were placed right

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     outside the back gate of 714 Mercer Street. I parked a short
     distance from his location and retrieved these bags. I then
     returned to Zone 2 Station to sort through the contents of the
     bags.

           While at Zone 2 Station, I opened the first black garbage
     bag, with yellow handles, and began sorting through the
     contents of the bag. I recovered 1 baggie diaper (a sandwich
     bag with the corners torn off to resemble a diaper), 1 baggie
     corner, 1 piece of indicia for Albert Martin at 714 Mercer Street,
     and several small pieces of suspected marijuana strewn
     throughout the bag. I tested the suspected marijuana with a
     Scotts Field Test Kit and it came back positive for marijuana.

          I then opened the second black garbage bag, with yellow
     handles, and began sorting through the contents of the bag. I
     recovered 3 empty prescription bottles for an Albert Martin.

            I know from my training and experience that package
     narcotics are commonly stored in sandwich bag corners. I also
     know that drug dealers and users commonly rip the corners off
     of sandwich bags, making the bag resemble a diaper, to store
     illegal narcotics.    The items found in the garbage bags I
     retrieved from 714 Mercer Street are consistent with packaging
     and storing illegal narcotics.

           While searching through the garbage, I also recovered
     small pieces of marijuana, which tested positive. Finding the
     marijuana in the garbage is consistent with information that the
     [CI] provided. The [CI] stated that 714 Mercer Street is not only
     used by Troy Martin and Chauncey Howard to store heroin, but
     they also use the residence to smoke marijuana and party.

            Due to the totality of the circumstances, the information
     provided by the [CI], Officers surveillance of the residence
     corroborating the [CI’s] information, and the trash pull reveilling
     [sic] illegal narcotics and drug parapherlilia [sic], I believe that
     the occupants of 714 Mercer Street are selling heroin and using
     marijuana in this address.

Affidavit of Probable Cause, 6/12/13, at 1-4.      Additionally, both officers

attested that, through their training and experience, they were familiar with

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the consistency, packaging, and methods of transaction employed in the sale

and distribution of marijuana and heroin.

        On June 6, 2013, the magistrate issued a search warrant for 714

Mercer Street, and a Pittsburgh Police SWAT unit executed it that same day.

Appellee and Albert Martin were present at the time of the search, and police

recovered numerous indicia that both men resided at the house. The search

also yielded a total of twenty-three bricks and four bundles of heroin, two

bags and two knotted-bags of cocaine, cocaine cutting agents, a digital

scale, narcotic packaging material, $4,220 U.S. currency, two firearms, and

an Apple iPhone.        After being read his Miranda rights,1 Appellee made

incriminating statements to police.

        Based on the foregoing, Appellee was charged with one count of

possession with intent to deliver, two counts of person not to possess a

firearm, one count of possession of a controlled substance, and one count of

possession of drug paraphernalia.              Appellee filed a pre-trial motion to

suppress. The court ordered the parties to file briefs on the matter wherein

Appellee contended that the items seized by police and his subsequent

statements should be suppressed since the affidavit of probable cause in

support of the search warrant failed to provide a sufficient basis to find

probable cause.       The trial court agreed with Appellee’s assessment, and
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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suppressed both the items seized from 714 Mercer Street, and Appellee’s

incriminating statements to police. The Commonwealth filed a timely notice

of appeal and complied with the court’s directive to file a Rule 1925(b)

statement of matters complained of on appeal. The court authored its Rule

1925(a) opinion.

      The Commonwealth presents one issue for our review: “Whether the

trial court erred in ruling that the information contained within the affidavit

of probable cause was not sufficient to support the issuance of the search

warrant for the at-issue premises?” Commonwealth’s brief at 4.

      We review the grant of a suppression motion under well-established

principles.   We consider the evidence of the defendant, as the prevailing

party below, and any evidence of the prosecution that is uncontradicted in

the context of the suppression record.     Commonwealth v. Carter, 105

A.3d 765, 768 (Pa.Super. 2014). We are bound by the factual findings of

the suppression court where the record supports those findings and may

only reverse when the legal conclusions drawn from those facts are in error.

Id. We are not bound by the legal conclusions of the suppression court. Id.

      The trial court found that the affidavit failed to establish probable

cause for a variety of reasons. It reviewed the affidavit and concluded that

it did not include any information concerning the reliability of the CI, or the

basis for the CI’s assertion that “large amounts of heroin [were] being stored

inside the residence at 714 Mercer Street.” Trial Court Opinion, 6/20/16, at

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10. The court largely discredited the information provided by the CI since it

could be supplied by “any casual observer,” and it did not implicate drug

activity. Id.

      Insofar as the police attempted to corroborate the CI’s statements, the

court found that such “confirmation [added] nothing to aid in the

determination that the residence [was] being used to store large amounts of

heroin.”    Id.    Similarly, the court observed that Appellee’s past criminal

history did not provide a connection to drug activity at 714 Mercer Street.

Finally,   the    court   discounted   the   retrieval   of   marijuana   and   drug

paraphernalia from Appellee’s garbage, opining that those items do not

support probable cause that there was “large amounts of heroin, or any

heroin” within the house. Id. at 11. Thus, the court maintained that the

totality of the circumstances did not establish probable cause to search the

residence located at 714 Mercer Street.

      Preliminarily, we observe that the suppression court’s legal conclusions

were drawn from an erroneous standard of review.               Our Court previously

reiterated the Supreme Court’s exposition on the matter in Commonwealth

v. Gagliardi, 128 A.3d 790 (Pa.Super. 2015).             In Gagliardi, we stated,

“[a]ccording to our Supreme Court, when deciding whether to issue a search

warrant, ‘the task of the 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

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persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’” Id.

at 794, quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). As it pertains

to a court reviewing an issuing authority’s probable cause determination:

      [the] reviewing court is not to conduct a de novo review of the
      issuing authority’s probable cause determination, but is simply to
      determine whether or not there is substantial evidence in the
      record supporting the decision to issue a warrant[.] 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.

Id. Notwithstanding that “[r]easonable minds frequently may differ on the

question whether a particular affidavit establishes probable cause,” this

deference ensures that, “[i]f 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.”   Id.   794-795, citing United States v.

Leon, 468 U.S. 897, 914 (1984).

      Instantly, the trial court’s resolution of the motion to suppress

suggests that it did not accord the magistrate’s decision deference, but

rather, engaged in its own de novo review of the evidence proffered within

the four corners of the affidavit of probable cause. The affidavit established

that a CI provided information regarding the occupants of 714 Mercer Street,

their alleged means of distributing narcotics, and that narcotics were stored



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at that location. The police investigated the matter and were able to verify

many of the details supplied by the CI.

      Beyond applying an inappropriate standard of review, the trial court

compounded this error by requiring the police to corroborate that a “large

amount of heroin” was stored at the house in order to find the CI’s

information sufficiently reliable to support probable cause.      We have long

held that “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[.]” Commonwealth v. Davis, 595 A.2d 1216 1222

(Pa.Super. 1991); Commonwealth v. Forster, 385 A.2d 416, 437-438

(Pa.Super. 1978).

      Based on the relevant case law, the officers herein were not required

to substantiate that “large amounts of heroin” were onsite at 714 Mercer

Street in order to find the CI otherwise reliable. Undeniably, much of the

information provided by the CI could have been obtained by a casual

passerby. Nevertheless, the CI averred that Appellee’s older relative owned

the house, and that the criminal organization employed a rented van to

distribute the narcotics.   A casual observer could not have discerned this

information.   Yet this information was confirmed when police investigated

further. Indeed, the police’s investigative activities verified the vast majority

of the information provided by the CI, and disproved none of it.




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        Moreover, and more importantly, the police investigation actually

uncovered evidence of a crime being committed at 714 Mercer Street when

it recovered marijuana, a Schedule I controlled substance, during the trash

pull.   Contrary to the trial court’s evaluation, this alone demonstrates the

CI’s reliability and establishes a fair probability that a crime was being

committed at 714 Mercer Street since the CI supplied information of this

precise crime occurring within the confines of the house.

        Also   contained   within   Appellee’s   trash   were   sandwich   bags

manipulated in a manner that Officer Lafferty, based on his training and

experience, recognized as facilitating the distribution of heroin.    Common

sense dictates that the presence of marijuana and drug paraphernalia

indicates that behavior of a criminal nature was occurring at 714 Mercer

Street. Although the items recovered from the trash may not confirm with

absolute certainty that “large” amounts of heroin or marijuana were being

stored at that location, they created a fair probability that evidence of a

crime would be discovered upon a search of the residence.

        Hence, when viewing the affidavit from a common-sense, non-

technical perspective, the magistrate had substantial evidence to issue a

search warrant, and the suppression court erred in granting Appellee’s

motion to suppress. We vacate the trial court’s order and remand.

        Order vacated. Case remanded. Jurisdiction relinquished.

        Judge Solano joins the Memorandum

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     President Judge Emeritus Bender files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2017




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