J-S57044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TROY M. THOMAS

                            Appellant                   No. 2902 EDA 2014


         Appeal from the Judgment of Sentence September 25, 2014
               In the Court of Common Pleas of Bucks County
             Criminal Division at No: CP-09-CR-0002034-2014


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                          FILED DECEMBER 10, 2015

       Appellant, Troy M. Thomas, appeals from the judgment of sentence

entered in the Court of Common Pleas of Bucks County (trial court) on

September 25, 2014. Upon review, we affirm.

       On February 26, 2014, Appellant was charged with possession with

intent to deliver heroin, possession with intent to deliver cocaine, persons

not to possess firearms, use/possession of drug paraphernalia, possession of

a controlled substance, possession of a small amount of marijuana, and

receiving stolen property.1       On June 2, 2014, trial counsel filed a pretrial

____________________________________________


1
  35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A.
§ 6105(a), 35 P.S. § 780-113(a)(32), 35 P.S. § 780-113(a)(16), 35 P.S.
§ 780-113(a)(31)(i), and 18 Pa.C.S.A. § 3925(a), respectively.
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omnibus motion seeking suppression of evidence.             The trial court held a

suppression hearing on June 16, 2014.

       At the hearing, Appellant’s counsel asked the trial court to conduct

only a four corners analysis of the search warrants,2 explaining that all other

claims in the omnibus pre-trial motion were withdrawn. Counsel presented

argument against a finding of probable cause for issuance of the warrant and

offered case law in support of that position.              In particular, counsel

challenged, inter alia, the initial source of information, i.e., an unnamed

individual known to the affiants. Notes of Testimony (N.T.), 6/16/14, at 5-

10.    Counsel argued that the investigating officers should have set up

surveillance rather than take “unreliable” evidence to a magistrate. Id. at 9.

The Commonwealth countered Appellant’s arguments, explaining that while

the initial contact with police was made by an unnamed individual, the

officers’ investigation led to evidence corroborating the information provided

by that individual.        Id. at 10-12.         The trial court agreed with the

Commonwealth’s position, announcing:

       I find there is probable cause. I agree that a person who is not
       named as a person who provides an [anonymous] tip is not
       sufficient probable cause. I also find that this individual who was
       identified was known to the police, is not technically anonymous
       and is more in the nature of a confidential informant. The
____________________________________________


2
  Although Appellant refers to the instant search warrants and affidavits of
probable cause in the singular, we acknowledge that there were separate
affidavits of probable cause and search warrants issued for the vehicle
Appellant was driving and for room 14 of the Radford Motel.



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         identity has not been revealed although the police certainly know
         who that person is.

         The confidential informant and the individual that calls into a
         police department who is known to the police department has to
         be established to be reliable if the person is not identified, and in
         this particular case you can do that a number of different ways.
         You can do it through . . . corroboration, and I find there is more
         than sufficient corroboration with the initial information provided
         by that informant including a number of buyers who corroborate
         the location, the room, [Appellant as seller], that they were
         there to purchase drugs. They are independent of each other.
         [Appellant] was, in fact, present.       [Appellant] was, in fact
         connected through physical evidence to [the motel room], and
         he had drugs on him.

Id. at 13-14.

         Following the suppression hearing, Appellant waived his right to a jury

trial.    A waiver trial was held during which the Commonwealth offered,

without objection, an exhibit that included a lab report identifying the drugs

and the weapon discovered in the safe in a Bensalem motel room as well as

the record of an interview in which Appellant admitted he planned to sell the

drugs located in the safe and that he owned the gun found there. Id. at 20-

24. Appellant did not present any evidence.

         The trial court found Appellant guilty of all charges. On September 25,

2014, Appellant was sentenced to consecutive terms of incarceration of two

to four years on each count of possession with intent to deliver and five to

ten years for persons not to possess firearms for an aggregate sentence of

nine to eighteen years.          Trial Court Opinion (T.C.O.), 2/18/15, at 1.

Appellant timely appealed.

         On appeal, Appellant raises one issue for our review:


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      Did the trial court err in failing to suppress the “fruits” of a
      search warrant which was conducted without consent, without
      probable cause, and in violation of the rights secured to him by
      the fourth and fourteenth amendments of the United States
      Constitution and the enhanced protections under article I, § 8 of
      the Pennsylvania Constitution?

Appellant’s Brief at 4.

      Initially we note “[o]ur review of a suppression court’s ruling is limited.

Where the record supports the suppression court’s factual findings, we will

reverse only if the court’s legal conclusions based upon these facts are in

error.”   Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)

(citations omitted).

      The role of both the reviewing court and the appellate court is
      confined to determining whether there is substantial evidence in
      the record supporting the decision to issue the warrant. We
      must limit our inquiry to the information within the four corners
      of the affidavit submitted in support of probable cause when
      determining whether the warrant was issued upon probable
      cause.

Commonwealth v. Burgos, 64 A.3d 641, 656 (Pa. Super. 2013) (citations

and internal quotations omitted). “[S]ince no factual question is involved in

a four corners analysis of the sufficiency of a warrant affidavit, the issue is

one of law as to which our review is plenary.” Coleman, 830 A.2d at 560.

      In its Pa.R.A.P. 1925(a) opinion, the trial court aptly summarized

information contained in the affidavits of probable cause as follows:

      On February 26, 2014, Bensalem Township Police filed
      application[s] for search warrants for room 14 of the Radford
      Motel and the 1998 Buick bearing stolen license plate PA/ELA-
      5190 seized by police at the Radford Motel for evidence related

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     to the sale and distribution of controlled substances. After
     outlining the extensive training, background and experience of
     the affiants in conducting narcotics investigations, the probable
     cause affidavit set forth the following facts. The Radford Motel is
     located at 4000 Bristol Pike in Bensalem, Bucks County. On
     February 24, 2014, Sergeant Robert Bugsch of the Bensalem
     Police received a telephone call from an individual (“the caller”)
     who was known to the Sergeant and who lives in the area of the
     Radford Motel. The caller advised the Sergeant that a black
     male staying in room 14 of the motel is selling drugs and has
     been doing so for weeks. The caller reported that there is
     constant traffic in and out of room 14 and that the caller found
     small glassine baggies containing residue in the street near room
     14. The affiants asserted that the bags found are consistent
     with bags used to package cocaine and/or crack cocaine and that
     the activity described is consistent with drug traffic.        On
     February 26, 2014, the affiants proceeded to the Radford Motel
     where they observed a vehicle parked near room 14. The
     vehicle was occupied by a male (“buyer number one”) and a
     female (“buyer number two”) who were identified by valid
     driver’s licenses. Both buyers admitted that they were there to
     buy crack cocaine. Buyer number one told police that “Black”
     was staying in room 14 and that he had purchased crack cocaine
     from “Black” inside room 14 several times in the last week. He
     reported that [“Black”] was not in the room at that time but that
     “Black” had told him he was only five minutes away and would
     be there shortly. Buyer number one stated that “Black” drove a
     silver sedan. While the police were still on scene, [Appellant]
     arrived driving a silver sedan bearing a stolen license plate,
     placed in NCIC by Bristol Township Police that same date. Buyer
     number one and buyer number two identified [Appellant] as the
     person they were meeting to buy crack cocaine [from] and as
     the person from whom they had previously purchased drugs.
     During his encounter with police, [Appellant] received a text
     message on his smartphone from “Michelle Amy’s homie”
     (“buyer number three”) asking if she could “stop by.” Shortly
     thereafter a third vehicle, containing two occupants, arrived.
     When the occupants observed police, they backed up and began
     to leave. When the vehicle stopped, police determined that
     buyer number three was one of the occupants. Buyer number
     three told police that she was going to room 14 to buy crack
     cocaine from “Black” and that she had been buying crack cocaine
     from “Black” for a few weeks. Buyer number three was found to
     be in possession of a tube that, in the expert opinion of the

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     affiants, is commonly used to smoke crack cocaine. [Appellant]
     was found to be in physical possession of six bags of heroin, two
     bags of marijuana, a key to room 14, $462.00 in cash bound in
     small black rubber bands commonly used, in the expert opinion
     of the affiants, to package heroin, a cell phone, and two keys for
     a safe commonly used by drug dealers, in the expert opinion of
     the affiants, to protect/conceal product and money. Once police
     determined that no one was inside room 14, the room was
     secured. The affidavits of probable cause utilized to support
     both warrants concluded that, in the expert opinion of the
     affiants, individuals involved in the sale of drugs to multiple
     buyers maintain possession of records, product, proceeds and
     other materials relating to the purchase and distribution of
     controlled substances.

T.C.O., 2/18/15, at 2-3.

     Appellant argues that the search warrants issued for room 14 of the

Radford Motel and for the vehicle that Appellant was driving were not based

on probable cause and, therefore, the trial court should have suppressed the

evidence found pursuant to those search warrants.     Specifically, Appellant

claims probable cause did not exist because:

     (1) [there was] no corroboration of the ongoing drug trafficking
     by an unknown source; (2) [there was] no confirmation or even
     attempted     corroboration   whether    or   not   the   alleged
     paraphernalia existed in the streets; (3) the targeted room was
     registered to a black woman (not a man); (4) [police] relied on
     unsubstantiated “phantom” stolen car/registration; (5) [the
     warrants] contained inconsistencies in the targeted room
     between room 14 and 214; (6) the information occur[red] two
     days earlier; (7) [the affidavits of probable cause] lacked facts
     showing the timing of the initiation of the observations on
     February 26th; and (8) [police] omitted potential bias and
     favoritism of the unknown witnesses allegedly engaging in their
     own criminal activity.

Appellant’s Brief at 15.




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      In   its   brief,   the   Commonwealth   refutes   these   claims.   The

Commonwealth recounts that the police observations on February 26 – the

date the search warrants were applied for and issued – corroborate the

information that came from the confidential informant on February 24.

Additionally, “police found at least three people, possibly four, who were at

the Radford Motel to buy drugs at room 14.         These individuals were all

identified in the search warrants.” Commonwealth Brief at 14. Further, two

of these individuals identified Appellant as the person they had purchased

drugs from earlier that day.        Finally, the affidavits of probable cause

acknowledged that at least one of the individuals had prior crimen falsi

arrests. Id.

      The Commonwealth acknowledges that the affidavits of probable cause

reflect that room 14 at the Radford Motel was rented not to Appellant, but

rather to a woman whose existence could not be confirmed.             However,

despite any alleged inconsistencies in the room numbers mentioned in the

affidavits or the identity of the person associated with room 14, the

confidential informant and the three identified individuals consistently

referred to room 14, there were no other occupants in room 14, and

Appellant was found in possession of the key to room 14. Id. at 14-15.

      As noted above, if the record supports the court’s factual findings, we

will reverse its ruling only if the court’s legal conclusions based on those

facts are in error. Our review of the affidavits of probable cause leads us to

conclude that the trial court’s factual findings are supported by the record.

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Therefore, we must consider whether the court committed an error of law in

reaching legal conclusions based on those facts.        Absent error, we must

affirm.

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

Court explained:

      Article I, Section 8 and the Fourth Amendment each require that
      search warrants be supported by probable cause. The linch-pin
      that has been developed to determine whether it is appropriate
      to issue a search warrant is the test of probable cause. 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.

      In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d
      527 (1983), the United States Supreme Court established the
      “totality of the circumstances” test for determining whether a
      request for a search warrant under the Fourth Amendment is
      supported by probable cause. In Commonwealth v. Gray, 509
      Pa. 476, 503 A.2d 921 (1986), this Court adopted the totality of
      the circumstances test for purposes of making and reviewing
      probable cause determinations under Article I, Section 8. In
      describing this test, we stated:

          Pursuant to the “totality of the circumstances” test set
          forth by the United States Supreme Court in Gates, the
          task of an 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 persons
          supplying hearsay information, there is a fair probability
          that contraband or evidence of a crime will be found in a
          particular place. . . . It is the duty of a court reviewing an
          issuing authority’s probable cause determination to ensure
          that the magistrate had a substantial basis for concluding
          that probable cause existed. In so doing, the reviewing
          court must accord deference to the issuing authority’s

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        probable cause determination, and must view the
        information offered to establish probable cause in a
        common-sense, non-technical manner.

        ***

        [Further,] a 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 the warrant.

Id. at 655-56 (some citations and quotations omitted). Additionally,

     [I]nformation received from confidential informants may
     properly form the basis of a probable cause determination. A
     determination of probable cause based upon information
     received from a confidential informant depends upon the
     informant’s reliability and basis of knowledge viewed in a
     common sense, non-technical manner. An informant’s tip may
     constitute   probable    cause    where     police   independently
     corroborate the tip, or where the informant has provided
     accurate information of criminal activity in the past, or where the
     informant himself participated in the criminal activity.

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (internal citations

omitted).

     Based on its review of the affidavits of probable cause, the trial court

concluded:

     Contrary to [Appellant’s] assertion, there was clearly probable
     cause to support the issuance of the search warrants for room
     14 of the Radford Motel and for the vehicle that Appellant was
     driving. The information regarding traffic to and from room 14
     was observed by police when they arrived at the motel. Three
     buyers who arrived at room 14 on that date confirmed all the
     details provided by the caller who initially reported drug activity,
     i.e. that a black male was dealing drugs for an extended period
     of time in room 14 of the Radford Motel. Buyers number one
     and three, who arrived separately, corroborated each other
     concerning the identity of the dealer and the controlled

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      substances being sold. Both indicated that they had made
      purchases of crack cocaine from “Black.” [Appellant’s] arrival
      and the items found on his person corroborated all of the
      information provided by the caller and the three buyers who
      spoke to the affiants at the scene.          Buyer number one’s
      statement that “Black” was expected and that he would be
      driving a silver sedan was confirmed by the arrival of [Appellant]
      in a silver Buick. Buyer number three texted her drug dealer,
      “Black.” That text was received on [Appellant’s] cell phone while
      he was speaking to police outside room 14. Buyers number one
      and two identified [Appellant] as “Black,” the individual from
      whom they had been buying and planned to buy drugs from that
      day. When he arrived at the Radford Motel, [Appellant] had six
      bags of heroin, two bags of marijuana, $462.00 in cash bound in
      small black rubber bands commonly used, in the expert opinion
      of the affiants, to package heroin, a cell phone, a key to room
      14, and two keys for a safe commonly used by drug dealers, in
      the expert opinion of the affiants, to protect/conceal product and
      money. This information clearly sets forth probable cause to
      believe that motel room 14 and [Appellant’s] vehicle were
      actively being used to facilit[ate] drug transactions and that
      evidence of that activity would be found in those locations.
      Therefore, all of [the] items seized pursuant to those search
      warrants and all evidence obtained as a result of the seizure of
      those items were admissible at trial.

T.C.O., 2/18/15, at 4-5.

      We find no error of law in the trial court’s denial of Appellant’s

suppression motion. We agree with the trial court that, based on the four

corners of the affidavits, there was probable cause to issue the warrants for

room 14 of the Radford Motel and for the vehicle Appellant was driving.

Finding no error of law in the trial court’s conclusion, we affirm Appellant’s

judgment of sentence.

      Judgement of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2015




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