J-A25020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JURELL SMALLS

                            Appellee                  No. 1723 EDA 2014


                      Appeal from the Order May 13, 2014
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0008154-2012
                                           CP-46-CR-0008377-2012

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

DISSENTING MEMORANDUM BY MUNDY, J.:               FILED DECEMBER 29, 2015

        I respectfully dissent. Even if I agreed with the Majority’s conclusion

that the evidence of Appellee’s personal drug trafficking of prescription pills

was stale,1 I do not agree that this renders the warrant wholly invalid.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  I disagree that the evidence was stale. Instead, the affidavit of probable
cause supported the magistrate court’s conclusion that the totality of the
evidence was sufficient to warrant a belief that there was an on-going drug
trafficking enterprise being operated out of the residence from 2009 through
2012. See Commonwealth v. Janda, 14 A.3d 147, 158-159 (Pa. Super.
2011) (noting that evidence of ongoing course of conduct can supply
probable cause, even if it is otherwise stale). Even though the August and
September 2012 investigation did not relate to Appellee’s personal
involvement in the drug trafficking activity conducted out of the house, the
evidence demonstrated probable cause that a drug trafficking enterprise in
the house was continuous from 2009 to 2012. See Commonwealth v.
Gannon, 454 A.2d 561, 565 (Pa. Super. 1982) (explaining “[t]he critical
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Accordingly, I disagree that all of the evidence seized in the execution of the

search warrant for the residence located at 116 East Third Street, Lansdale,

Pennsylvania must be suppressed.                 Therefore, I would reverse the trial

court’s order granting Appellee’s motion to suppress the evidence.

      I agree with the Majority’s suggestion that the police presented

probable cause to search the residence for marijuana.                   See Majority

Memorandum at 15 (recognizing “probable cause likely existed for a search

of marijuana…[]”). Specifically, I would conclude there was probable cause

of cultivating, harvesting, and processing marijuana plants along with

evidence of marijuana possession and use.2               Because there was probable

cause to search for and seize marijuana, I would sever the authorization to

search for any items for which probable cause did not exist, including

prescription pills, from the warrant.            Further, I would conclude that in the
                       _______________________
(Footnote Continued)

element in a reasonable search is not that the owner of the property is
suspected of crime but that the specific ‘things’ to be searched for and
seized are located on the property to which entry is sought[]”), quoting
Zurcher v. Stanford Daily, 436 U.S. 547, 557 (1978)). The evidence of
the cultivation and harvesting of marijuana plants at the residence
demonstrated that the enterprise was ongoing and expanding.
2
  In its analysis, the Majority ignores that police surveillance conducted in
August and September 2012 revealed that Appellee’s two younger brothers
cultivated four to five marijuana plants in the backyard of the residence and
had harvested some of those plants days before police obtained the search
warrant for the premises. This information was contained in the affidavit of
probable cause. In addition to the brothers’ personal use of marijuana,
there was ample probable cause to authorize a search of the residence for
evidence of the cultivation, harvest, and processing of marijuana.




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lawful search for marijuana, the plain view doctrine applies and, additionally,

that the police would have inevitably discovered evidence of prescription

pills. Accordingly, I would conclude that the evidence obtained through the

warrant should not have been suppressed.

      This Court has explained that when probable cause supports certain

items in a search warrant but not others, the items that are not supported

by probable cause may be severed from the warrant.

            The doctrine of severance mandates that invalid
            portions of a search warrant may be stricken and the
            remaining portions held valid, as long as the
            remaining portions of the warrant describe with
            particularity the evidence to be seized. Where a
            search warrant authorizes seizure of some items for
            which there is probable cause and other items for
            which there is no probable cause, the warrant is not
            wholly invalid. In such cases, suppression will be
            required only of the evidence which was seized
            without probable cause.

Commonwealth v. Anderson, 40 A.3d 1245 (Pa. Super. 2012), appeal

denied, 51 A.3d 837, quoting Commonwealth v. Bagley, 596 A.2d 811,

824 (Pa. Super. 1991), appeal denied, 611 A.2d 710 (Pa. 1992), cert.

denied, Bagley v. Pennsylvania, 506 U.S. 1002 (1992).

      In Anderson, police obtained a search warrant for the appellant’s

apartment based on probable cause for marijuana.        Anderson, supra at

1245. However, the search warrant also contained authorization to search

for and seize cocaine, heroin, and any other controlled substances, for which

there was no probable cause.      Id.   In executing the warrant, the police


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seized marijuana, cocaine, and drug paraphernalia. Id. Because there was

no probable cause to support the issuance of a warrant for any drug other

than marijuana, the suppression court severed the portions of the search

warrant that referred to other controlled substances and suppressed all of

the evidence that was not related to marijuana. Id. This Court reversed the

suppression court, concluding that the evidence of cocaine and drug

paraphernalia, for which there was no probable cause in the search warrant,

should not have been suppressed. We explained that the entire warrant was

not invalid because there was probable cause to search the apartment for

marijuana.     Id. at 1249.     Instead, we concluded that any evidence

discovered in plain view during the lawful search for marijuana was

admissible and, further, that evidence of the other contraband would have

been inevitably discovered during the lawful search for marijuana. Id.

      Applying Anderson to this case, I would conclude that if the evidence

of prescription pill trafficking was stale, it should have been severed from

the warrant.    This does not, however, render the entire search warrant

invalid because there was still probable cause to search for marijuana.

Specifically, the search warrant authorized the search for, and seizure of, the

following marijuana-related items, among others.

             1. Marijuana, Prescription Pills and any other controlled
                substances;

             2. Cutting agents, bagging materials, scales, other drug
                paraphernalia;


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              3. Items used to grow Marijuana indoors/outdoors,
                 Marijuana seeds, PVC piping, grow lights, ballasts,
                 circulating[] fans, exhaust fans, light canopies,
                 electrical timers, light rails, circular light movers,
                 hydroponic containers, grow mediums, CO2 injection
                 systems, fertilizers, potting soil, containers for planting,
                 chemicals and fertilizers, pruning and gardening tools,
                 buyers lists, seller lists and other miscellaneous items
                 used to grow Marijuana.

              4. Marijuana or any parts thereof (such as living plants
                 and dried processed matter) and paraphernalia
                 commonly associated with the cultivation, storage and
                 sales and use of Marijuana (such as baggies, scales,
                 drying items and other weighing devices), lights, hoses,
                 and other paraphernalia used for growing marijuana,
                 books and pamphlets containing instructions on
                 cultivation, paper[] recording devices, pay-owe sheets,
                 buyers lists, ledgers, and other items that can be used
                 to record sale transactions.

                                                 …

Application for Search Warrant and Authorization, 9/21/12, at Exhibit A,

Property to be Searched for and Seized, at ¶¶ 1-4.

       Accordingly, the police in executing the warrant could lawfully search

any area of the residence where the above evidence of marijuana

possession,     consumption,      and    cultivation   could   have   been   located.3

____________________________________________


3
  The Majority concludes that there was no probable cause to search for “the
full panoply of chemicals, objects (scales, baggies, etc), records (receipts,
bank statements, ledgers, etc.), weapons and currency associated with a
full-scale drug-manufacturing and drug selling-operation” because “no
probable cause existed to conclude that any such operation remained
actively in place in August-September 2012.” Majority Memorandum at 15.
To the contrary, I would conclude that the activity of cultivating and
harvesting marijuana plants alone gives rise to a fair probability that the
(Footnote Continued Next Page)


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Therefore,    the      evidence    of   possession      of   marijuana   and   of   drug

paraphernalia to use marijuana was lawfully obtained through a search

warrant supported by probable cause and should not be suppressed.4

Further, even if I severed as stale the authorization to search for

prescription pills from the search warrant, I would conclude that in searching

for marijuana, the police would have discovered the prescription pills in plain

view.    See Anderson, supra.                    Alternatively, I would conclude the

prescription pills would have been inevitably discovered. See id. Therefore,

I would reverse the trial court’s order granting suppression and remand for a

trial. I respectfully dissent.
                       _______________________
(Footnote Continued)

residents of the house were involved in marijuana trafficking.               See
Commonwealth v. Luton, 672 A.2d 819, 821-822 (Pa. Super. 1996)
(explaining that “[t]he information offered to establish probable cause must
be viewed in a common sense, non-technical manner and deference must be
given to the issuing magistrate. It must be remembered that probable
cause is based on a finding of the probability of criminal activity, not a prima
facie showing of criminal activity[]”). Viewing the information in the totality
of the circumstances, the cultivation and harvest of marijuana is drug-
manufacturing, which gives rise to a fair probability that the marijuana was
harvested to be processed and sold. Accordingly, I would conclude that
there was probable cause for items associated with the manufacture and
sale of marijuana.
4
  Appellee was charged with these two marijuana-related offenses, based on
the evidence recovered in the search. See Police Criminal Complaint,
9/23/12, at 10-12 (charging Appellee under subsections 780-113(a)(31)-
(32) of the Controlled Substances Act for possession of a small amount of
marijuana for personal use and for drug paraphernalia). Appellee was also
charged with possession with the intent to deliver oxycodone and possession
of oxycodone; additionally, the paraphernalia charge included oxycodone-
related paraphernalia. See id. (asserting violations of subsections 780-
113(a)(16), (30) of the Controlled Substances Act).



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