J-S52033-15 & J-S52034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

MICHELLE LYNN CORATTO

                      Appellee                 No. 275 WDA 2015


          Appeal from the Order Entered on January 15, 2015
            In the Court of Common Pleas of Beaver County
           Criminal Division at No.: CP-04-CR-0000103-2014


COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

DAVID R. PUGH, JR.

                      Appellee                 No. 276 WDA 2015


          Appeal from the Order Entered on January 15, 2015
            In the Court of Common Pleas of Beaver County
           Criminal Division at No.: CP-04-CR-0002175-2013


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                    FILED OCTOBER 22, 2015
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        In this consolidated case,1 the Commonwealth appeals the January 15,

2015 order granting Michelle Coratto and David Pugh’s (collectively,

“Appellees”) motions to suppress physical evidence. After careful review, we

reverse.

        On August 17, 2013, the occupant of a duplex located at 26 West

Midland Avenue, in Beaver County, Pennsylvania called the police to report a

strong odor of marijuana in his home, which he believed to be emanating

from the other unit in the duplex (28 West Midland Avenue). Kathleen Kelly,

an officer with the Midland Borough Police Department, responded to the

occupant’s call, entered the residence, and confirmed that the entire first

floor “smelled of fresh marijuana.” Notes of Testimony (“N.T.”), 9/25/2014,

at 6.    Officer Kelly walked outside and saw Coratto leaving the 28 West

Midland Avenue residence, which she shared with her boyfriend, Pugh.

When Officer Kelly told Coratto that her neighbor had reported a strong odor

of marijuana, Coratto admitted that she had “just smoked a joint like an

hour ago.” Id. at 7-8.

        Captain Douglas Edgell of the Ohioville Borough Police Department

subsequently arrived at the scene. He too could smell a strong odor of fresh

marijuana coming from Coratto’s residence.       Officer Ronald Lutton of the


____________________________________________


1
     Because the above-captioned cases arose out of the same incident,
and because the Commonwealth raises the same issue in each, we sua
sponte consolidated these cases for unitary review.



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Midland Borough Police Department also responded to the West Midland

Avenue duplex, where he detected a strong odor of fresh marijuana

radiating from Coratto’s residence.            Officer Lutton then applied for, and

successfully obtained, a warrant to search 28 West Midland Avenue.             The

affidavit of probable cause attached to that search warrant provided as

follows:

       On or about August 17, 2013, Officer Kate Kelly of the Midland
       Borough Police Department received a radio dispatch call from
       the Beaver County Emergency Services Center, that the
       residence of 26 West Midland Ave. reporting [sic] a heavy smell
       of marijuana coming from the residence of 28 West Midland Ave.
       Midland, PA 15059.

       Upon Officers [sic] Kelly’s arrival, she was brought into the
       residence of 26 West Midland Ave. Officer Kelly smelled what
       she determined to be a smell of fresh marijuana. Officer Lutton
       of the Midland Borough Police Department and [Captain] Edgell
       of the Ohioville Borough Police Department also arrived on scene
       and smelled from the outside of the residence what they
       believed to be fresh marijuana. Upon interviewing the residents
       [sic] of 28 West Midland Avenue., (Amy Coratto) she admitted
       that there was marijuana in the residence, but would not give
       the police consent to search the residence. It should be noted
       that this department has received previous calls about the smell
       of marijuana coming from 28 West Midland Ave.

       Assistant Chief Mark Smilek of the Ohioville Borough Police
       Department and Trooper Pat Thomas of the Pennsylvania State
       Police arrived and could also smell what they believed to be
       fresh marijuana.

Affidavit of Probable Cause, 8/17/2013, at 1.2

____________________________________________


2
      Officer Lutton testified that he made a typographical error when he
referred to Michelle Coratto as “Amy Coratto” in the affidavit. N.T. at 41.



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       After obtaining the search warrant, a group of officers, assisted by a

canine, entered into Appellees’ residence. In the attic of the home, officers

found a nylon duffel bag, which contained six large Ziploc freezer bags filled

with marijuana. A second nylon duffel bag contained three handguns. The

serial number on one of those firearms had been obliterated. The officers

also found $609.00 and several pieces of equipment used for cultivating

marijuana.

       Officer Lutton arrested Coratto and Pugh and charged each of them

with one count of possession of a controlled substance with intent to deliver,

five counts of possession of drug paraphernalia, three counts of persons not

to possess firearms, one count of possession of a firearm with an altered

manufacturer’s number, and one count of altering or obliterating marks of

identification.3

       On August 12, 2014, Coratto filed a motion to suppress the statement

that she made to Officer Kelly on August 17, 2013—i.e., her admission that

she had “just smoked a joint like an hour ago.” N.T. at 7-8. Coratto argued

that her statement was obtained in violation of Miranda v. Arizona, 384

U.S. 436 (1966).       On September 25, 2014, the suppression court held a

hearing on Coratto’s suppression motion. Officer Kelly, Captain Edgell, and

Officer Lutton testified for the Commonwealth at that hearing.        After the

____________________________________________


3
     35 P.S. §§ 780-113(a)(30), and 780-113(a)(32);              18    Pa.C.S.
§§ 6105(a)(1), 6110.2, and 6117, respectively.



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parties presented argument on Coratto’s motion, the suppression court, sua

sponte, raised the following issue:

      I know these [questions] weren’t necessarily raised in the
      [suppression] motion, but they’re plaguing in my mind. . . . All
      of the three officers testified to a tee today that [Coratto]
      admitted to smoking marijuana in the house one hour before
      [the police arrived]. The affidavit of probable cause says that
      [Coratto] admitted that there was . . . marijuana in the
      residence.       There is a distinct difference between the
      allegations . . . that were brought up in the testimony and what
      was actually contained in the warrant, and if that is [the] case,
      do we have a Franks [v.] Delaware[, 438 U.S. 154 (1978)]
      issue here?

                                      ****

      I’m interested in finding out [the Commonwealth’s] position on
      the statement in the warrant, as opposed to what was actually
      said by [Coratto,] and what effect that has on the probable
      cause issue under the warrant. In other words, if that is a
      misstatement and [Coratto] said, ‘I smoked marijuana in the
      house an hour ago,’ but there’s nothing further [to suggest] that
      there’s still marijuana in the house, and you take [the
      misstatement] out of the equation, you’re left with the odor in
      the house alone, and I’m interested in finding out the
      Commonwealth’s position on [whether that constitutes sufficient
      probable cause].

N.T. at 54-56 (minor modifications for clarity; emphasis added).

      Because Coratto’s suppression motion did not include a challenge to

the veracity of the allegations in the affidavit of probable cause, the

suppression court granted Coratto leave to supplement her motion.         On

October 3, 2014, Coratto filed an amended motion to suppress, wherein she

argued that Officer Lutton “knowingly and intentionally or with reckless

disregard [for] the truth” included a false statement in his affidavit of


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probable    cause.       See    Coratto’s      Supplemental   Motion   to   Suppress,

10/3/2014, at 4 (unnumbered).               Coratto also maintained that, without

Officer Lutton’s misstatement, the affidavit’s remaining content is insufficient

to establish probable cause. Id. (citing Franks, 438 U.S. 154).

       On October 3, 2014, Pugh also filed a motion to suppress the physical

evidence obtained pursuant to the search warrant.             Substantively, Pugh’s

motion was identical to Coratto’s amended motion to suppress.                     On

December 2, 2014, the suppression court held a joint hearing to address

Appellees’ suppression motions.           On January 15, 2015, the suppression

court granted Appellees’ motions, and suppressed all of the physical

evidence that police seized during the execution of the search warrant on

August 17, 2013.

       On February 13, 2015, the Commonwealth filed notices of appeal. 4 On

February 17, 2015, the trial issued orders directing the Commonwealth to

file concise statements of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The Commonwealth timely complied. On February 26,

2015, the suppression court filed a unitary Pa.R.A.P. 1925(a) opinion.

       The Commonwealth raises one issue for our review:

       After finding a deliberate material misstatement in the affidavit
       of probable cause relating to an admission of marijuana inside
____________________________________________


4
      Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth has certified that the suppression court’s order will terminate
or substantially handicap the prosecution of this case. Pa.R.A.P. 311(d).



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        the residence, did the suppression court err in its Franks v.
        Delaware analysis by finding that the odor of fresh marijuana
        emanating from the residence, as testified to by four different
        police officers, did not provide sufficient evidence to support
        probable cause for the issuance of the search warrant?

Brief for Commonwealth at 4 (275 WDA 2015 and 276 WDA 2015).

        When a defendant files a motion to suppress evidence, the burden is

on the Commonwealth to establish by a preponderance of the evidence that

the challenged evidence is admissible.     Commonwealth v. Powell, 994

A.2d 1096, 1101 (Pa. Super. 2010) (citing Pa.R.Crim.P. 323(h)).           When

reviewing a suppression court’s ruling, our responsibility is: (1) to determine

whether the record supports the factual findings of the court; and (2) to

evaluate the legitimacy of the inferences and legal conclusions drawn from

those findings. Commonwealth v. Bull, 555 A.2d 1341, 1343 (Pa. Super.

1989).     Where, as here, the Commonwealth appeals the decision of the

suppression court, we must consider only the evidence of the defendant and

so much of the evidence for the prosecution, which when read in the context

of the record as a whole, remains uncontradicted.        Commonwealth v.

Hamlin, 469 A.2d 137, 139 (Pa. 1983).

        If the record supports the factual findings below, we are bound by

them.      Commonwealth v. James, 486 A.2d 376, 379 (Pa. 1985).

However, we are not bound by the legal conclusions that the suppression

court drew from those facts. Commonwealth v. Lagana, 537 A.2d 1351,

1353 (Pa. 1988).      Thus, the suppression court’s conclusions of law are

subject to our plenary review. Commonwealth v. Mistler, 912 A.2d 1265,

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1269 (Pa. 2006); Commonwealth v. Morley, 681 A.2d 1254, 1256 n.2

(Pa. 1996).

       In Franks v. Delaware, 438 U.S. 154 (1978), the United States

Supreme Court recognized that a criminal defendant has a right, under the

Fourth and Fourteenth Amendments to the United States Constitution, to

challenge the veracity of the factual averments within an affidavit of

probable cause.       The Court held that, whenever a defendant makes a

substantial preliminary showing that the affiant knowingly and intentionally,

or with reckless disregard for the truth, included a false material statement

in the affidavit, the suppression court must hold a hearing on the issue. 5 Id.

at 155-56.      If the defendant makes such a showing, but the remaining

content in the affidavit is still sufficient to establish probable cause, his claim

fails. Id. at 171-72. If, on the other hand, the affidavit’s remaining content

would be insufficient to establish probable cause, the suppression court must

hold a hearing in order to allow the defendant to demonstrate perjury or

reckless disregard by a preponderance of the evidence. Id. at 156.

       Consistent with Franks, this Court has held that “[m]isstatements of

fact in a search warrant affidavit will invalidate a search and require
____________________________________________


5
      In Commonwealth v. Hall, 302 A.2d 342 (Pa. 1973), the
Pennsylvania Supreme Court held, as a matter of state law, that a
defendant’s right to challenge the veracity of the statements included in an
affidavit of probable cause is not contingent upon a “substantial preliminary
showing” of the potential falsity of those facts. See Commonwealth v.
Miller, 518 A.2d 1187, 1194-95 (Pa. 1986).



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suppression only if they are deliberate and material.” Commonwealth v.

Mickell, 598 A.2d 1003, 1010 (Pa. Super. 1991) (emphasis added) (citing

Commonwealth v. Bonasorte, 486 A.2d 1361, 1369 (Pa. Super. 1984));

see also Commonwealth v. Zimmerman, 422 A.2d 1119, 1124 (Pa.

Super. 1980) (“[An] appellant must establish that the police (1) made a

misstatement, which is both (2) deliberate and (3) material.”).        Thus, in

evaluating Appellees’ suppression motions, the court was presented with two

threshold questions.    First, did Officer Lutton deliberately include a false

statement in his affidavit of probable cause? Second, was the misstatement

essential to the magistrate’s finding of probable cause (i.e., was it material)?

See Commonwealth v. Jones, 323 A.2d 879, 881 (Pa. Super. 1974) (“A

material fact is defined as ‘one without which probable cause to search

would not exist.’”); see also Commonwealth v. Yucknevage, 390 A.2d

225, 227 (Pa. Super. 1978) (holding that a misstatement in an affidavit is

material if it is essential to the search warrant application).

      Before the suppression court, the Commonwealth maintained that the

statement “[Coratto] admitted that there was marijuana in the residence”

simply was a typographical error, and not a deliberate misrepresentation.

See Affidavit of Probable Cause, 8/17/2013, at 1. Officer Lutton testified at

the suppression hearing that he accidently omitted the word “smoked” when

drafting the affidavit. According to Officer Lutton, the affidavit should have

read, “[Coratto] admitted that there was marijuana smoked in the

residence.” The suppression court rejected this argument for two reasons.

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First, the suppression court noted that Officer Lutton also included the

misstatement in his incident report and in the Appellees’ criminal complaints.

Suppression Court Opinion (“S.C.O.”), 2/26/2015, at 13.          Second, the

suppression court concluded that “if the word ‘smoked’ was inserted into the

statement, it would make no sense because there is no reference as to when

[t]he marijuana was allegedly smoked.” Id. at 14.

      Once the suppression court determined that Officer Lutton had

included a false statement in his affidavit deliberately, or with reckless

disregard for the truth, the court then had to determine whether that

statement was material. It is at this juncture that the suppression court’s

analysis goes awry.   Ignoring the false assertion that “[Coratto] admitted

that there was marijuana in the residence,” the affidavit contained three

other pertinent allegations: (1) a neighbor had called 911 to report “a heavy

smell of marijuana” coming from Appellees’ residence; (2) Officer Kelly could

smell fresh marijuana from inside the neighbor’s home; and (3) four other

police officers smelled what they too believed to be fresh marijuana outside

of Appellees’ residence. See Affidavit of Probable Cause, 8/17/2013, at 1.

      Rather than discussing whether these additional assertions provided

the issuing magistrate with a substantial basis for concluding that probable

cause existed, the suppression court simply found them to be incredible.

      In this case, the probable cause determination must rise or fall
      based upon the statement that the officers could smell fresh
      marijuana emanating from the residence while outside. The only
      marijuana found in the four-story house was four pounds of
      marijuana contained in [Ziploc] baggies in a duffle bag in the

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       attic. The [c]ourt questions how marijuana in this state and
       under the evidence presented, could be smelled from
       outside. . . . Therefore, the [c]ourt does not find credible
       evidence to support probable cause.

S.C.O. at 16-17 (citations to notes of testimony omitted).

       It was not within the province of the suppression court to make such a

post-hoc credibility assessment.6 See Commonwealth v. Baker, 615 A.2d

23, 25 (Pa. 1992) (“[T]he duty of the reviewing court is simply to ensure

that the magistrate had a substantial basis for . . . concluding that probable

cause existed.”).      The suppression court incorrectly believed that its duty

was to render a de novo probable cause determination based upon the

testimony presented at the suppression hearing. Id. at 17. In this regard,

the court noted that the Commonwealth failed to present evidence “on

whether the windows of the residence were open or closed, or whether the

attic was a sealed attic or had windows or ventilation.”      Id. at 16.   But,

those facts are immaterial.         The question for the suppression court was

whether the affidavit, after excluding the false statement that “[Coratto]

admitted that there was marijuana in the residence,” provided the issuing

magistrate with facts sufficient to conclude that probable cause existed. See

Mickell, 598 A.2d at 1010. We are confident that it did.

       This Court has explained:

____________________________________________


6
      Appellees did not contend, and the suppression court did not hold, that
the statement in the affidavit of probable cause that four police officers could
smell marijuana outside of Appellees’ home was a deliberate misstatement.



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       “[P]robable cause does not involve certainties, but rather ‘the
       factual and practical considerations of everyday life on which
       reasonable and prudent men act.’” Commonwealth v. Wright,
       867    A.2d     1265,   1268    (Pa.   Super.    2005)    (quoting
       Commonwealth v. Romero, 673 A.2d 374, 376 (Pa. Super.
       1996)). “It is only the probability and not a prima facie showing
       of criminal activity that is a standard of probable cause.”
       Commonwealth v. Monaghan, 441 A.2d 1318 (Pa. Super.
       1982) (citation omitted); see also Illinois v. Gates, 462 U.S.
       213, 238 (1983) (holding that probable cause means “a fair
       probability that contraband or evidence of a crime will be
       found.”); Commonwealth v. Lindblom, 854 A.2d 604, 607
       (Pa. Super. 2004) (reciting that probable cause exists when
       criminality is one reasonable inference, not necessarily even the
       most likely inference). To this point on the quanta of evidence
       necessary to establish probable cause, the United States
       Supreme Court recently noted that “[f]inely tuned standards
       such as proof beyond a reasonable doubt or by a preponderance
       of the evidence, useful in formal trials, have no place in the
       [probable-cause] decision.” Maryland v. Pringle, 540 U.S.
       366, 371 (2003) (citations omitted).

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)

(citations modified).

       Here, five police officers and a neighbor detected a strong odor of

marijuana coming from Appellees’ residence. The officers all recognized the

scent to be fresh, rather than burned, marijuana.          These facts amply

provided the issuing magistrate with a substantial basis to conclude that

there was a fair probability that contraband would be found inside Appellees’

residence.7    Indeed, this Court has held that, where an officer is lawfully
____________________________________________


7
       See Johnson v. United States, 333 U.S. 10, 13 (1948) (“If the
presence of odors is testified to before a magistrate and he finds the affiant
qualified to know the odor, and it is one sufficiently distinctive to identify a
forbidden substance, this Court has never held such a basis insufficient to
(Footnote Continued Next Page)


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present at a particular location, his or her detection of an odor of marijuana

constitutes sufficient probable cause to obtain a search warrant.         See

Commonwealth v. Johnson, 68 A.3d 930, 936 (Pa. Super. 2013);

Commonwealth v. Waddell, 61 A.3d 198, 215 (Pa. Super. 2012) (“Once

the odor of marijuana was detected emanating from the residence, the

threshold necessary to establish probable cause to obtain a search warrant

was met[.]”).8

      Because the false statement of fact included in the affidavit of

probable cause was not essential to the magistrate’s probable cause

determination, the trial court erred in granting Appellees’ motions to

suppress.

      Order reversed. Case remanded. Jurisdiction relinquished.




                       _______________________
(Footnote Continued)

justify issuance of a search warrant. Indeed it might very well be found to
be evidence of most persuasive character.”).
8
      The suppression court found Waddell to be distinguishable because it
involved exigent circumstances. S.C.O. at 15. This is true. However, unlike
in Waddell, the police obtained a search warrant in the case sub judice.
Although the warrantless entry into a home requires probable cause and
exigent circumstances, no exigency is required when the police obtain a
valid search warrant. Thus, the holding in Waddell applies equally to the
facts of this case.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2015




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