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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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,
                Court of Common Pleas, Montgomery County,
             Criminal Division at No(s): CP-46-CR-0008154-2012
                        and CP-46-CR-0008377-2012

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED DECEMBER 29, 2015

      The Commonwealth of Pennsylvania appeals from the trial court’s

order dated May 13, 2014, granting the Omnibus Motion to Suppress filed by

Appellee, Jurell Smalls (“Smalls”). The trial court ruled that the information

in the affidavit of probable cause relating to events from July 2009 through

April 2012 was stale and thus could not support a finding of probable cause.

The trial court further ruled that because Smalls played no role in the events

described in the affidavit of probable cause in the two months immediately

preceding the issuance of the warrant, this information likewise failed to

provide the requisite probable cause. For the reasons set forth herein, we

conclude that the warrant at issue here was constitutionally overbroad and

thus affirm the trial court’s order.




*Former Justice specially assigned to the Superior Court.
J-A25020-15


      In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the trial court provided the following summary

of the relevant factual and procedural history of this case:

            Beginning in March of 2009, the Lansdale Police
            Department, in conjunction with the Montgomery
            County District Attorney’s Municipal Drug Task Force,
            conducted an investigation into [Smalls], leading to a
            September 21, 2012 application for a search
            warrant. The investigation centered on [Smalls], his
            twin, younger brothers, and their residence at 116
            East Third Street, Lansdale Borough, Montgomery
            County, Pennsylvania.     Along with [Smalls], Lisa
            Washington owns the home.

            The affidavit of probable cause supporting the
            application for the search warrant establishes
            evidence in two phases. First, between March 6,
            2009 and March 9, 2012, various “concerned
            citizens” contacted the police with numerous reports
            of suspected drug activity in the area of 116 East
            Third Street. Additionally, upon the development of
            a confidential informant in March of 2012, the police
            department began a concerted investigation into
            [Smalls] and the alleged activities around his
            residence. Then, in August of 2012, after a roughly
            five month hiatus, surveillance resumed with
            additional reports from a concerned citizen. The
            second phase of the investigation culminated in the
            application for and execution of the search warrant.

            On March 6, 2009, a neighbor of [Smalls]
            anonymously reported two suspected drug deals
            within fifteen minutes on the corner of East Third
            Street and North Chestnut Street, about a half-block
            from [Smalls’] residence. The report claimed that a
            black male on foot approached two separate vehicles
            and passed unidentified objects to the occupants in
            each vehicle.    The black male then entered the
            residence at 116 East Third Street. Another citizen,
            “Concerned Citizen Number Three,” contacted the



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          police on three occasions, July 4, 2009, November
          17, 2010, and November 20, 2010, to report
          suspected drug activities.       These statements
          identified [Smalls] and reported his involvement in
          hand-to-hand transactions with unidentified visitors
          at and around 116 East Third Street. In response to
          the November 20, 2010 report, police officers
          conducted covert surveillance of the residence and
          witnessed a person known to be a drug dealer meet
          with [Smalls] in the alley behind 116 East Third
          Street.

          On February 2, March 7, and March 9, 2012,
          “Concerned Citizen Number Two” reported suspected
          drug activity at 116 East Third Street. This person
          informed police about drug transactions with brief
          visitors inside [Smalls’] residence. The report also
          indicated drug activities involving individuals on foot
          in front of and behind the residence, along the alley,
          and in the apartment building on the corner of East
          Third Street and North Chestnut Street. Concerned
          Citizen Number Two further witnessed the exchange
          of cash for an unknown substance in a small baggie.

          In March of 2012, the police developed a confidential
          informant with ostensible knowledge of [Smalls].
          This source alleged to police that [Smalls] was
          selling marijuana and Oxycodone out of 116 East
          Third Street.    The informant also alleged that
          [Smalls] supplied “street level” drug dealers with
          these substances.      In April 2012, the police
          conducted a controlled purchase of Oxycodone in
          conjunction with the confidential informant. In the
          course of the exchange, the police provided a set
          amount of currency to purchase a prearranged
          quantity of Oxycodone. Then, the informant met
          with an “unwitting subject” who entered 116 East
          Third Street and exited four minutes later. Upon
          return to the police, the informant stated that the
          “unwitting subject” passed the expected amount of
          Oxycodone to the informant after exiting the
          residence.     The informant turned over the
          Oxycodone to the police. Subsequently, on April 14,



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          2012, the police initiated surveillance of 116 East
          Third Street. On that day, surveillance revealed
          numerous young adults interacting on the property
          as well as in and around vehicles parked along the
          street.

          After almost five months had passed, on August 28,
          2012, police reinitiated surveillance of 116 East Third
          Street. That day, the police witnessed [Smalls’]
          twin, younger brothers with two other individuals
          apparently smoking marijuana on the front porch.
          Later that evening, an unidentified visitor passed
          money to one of [Smalls’] younger brothers in front
          of the house.

          Additionally, in August 2012, Concerned Citizen
          Number Four met with police to report the existence
          of marijuana plants in the back yard of 116 East
          Third Street, tended by twin teenage males. This
          person reported witnessing one of the twins plant
          something in that location the month prior.
          Consequently, police again conducted surveillance on
          the residence on August 31, September 1, and
          September 2, and they witnessed [Smalls’] younger
          brothers tending apparent marijuana plants along
          with an unidentified black male. The four small
          plants were located along the border between 116
          and 118 East Third Street, a few feet into the
          neighboring property. Finally, on September 19,
          2012, a police officer noticed that one of the four
          suspected marijuana plants remained at the location.
          There is no evidence of what happened to the other
          three plants.

          On September 21, 2012, the Lansdale Police
          department applied for a search warrant for
          [Smalls’] residence at 116 East Third Street, and
          Magisterial District Justice Borek approved it on the
          same day.        The Lansdale Police Department
          executed the warrant on September 22, 2012, seized
          evidence, and arrested [Smalls] as a result of that
          evidence.    On July 26, 2013, [Smalls] filed an




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           Omnibus Pretrial Motion including the motion to
           suppress the fruits of the search warrant.

           The May 13, 2014 order presented on appeal
           granted [Smalls’] Omnibus Motion to Suppress the
           evidence obtained through the execution of the
           September 21, 2012 search and seizure warrant. On
           June 11, 2014, [the Commonwealth] filed a Notice of
           Appeal to the Superior Court and requested review of
           the May 13, 2014 order. Accordingly, on June 18,
           2014, [the trial court] ordered [the Commonwealth]
           to file a Concise Statement of Matters Complained of
           on Appeal within 21 days. [The Commonwealth]
           filed the Concise Statement with [the trial court] on
           July 9, 2014, in compliance with the order.

Trial Court Opinion, 8/1/2014, at 1-4 (footnotes omitted).

     On appeal, the Commonwealth presents the following issue for our

consideration and determination:

           Whether the lower court erred by holding that there
           was not a substantial basis for the magistrate’s
           finding of probable cause to issue a search warrant,
           where it failed to consider the totality of the
           circumstances in making such a determination, but
           instead, viewed each individual source of probable
           cause in a vacuum and ignored its corroborative
           value, discounted information that [Appellee’s]
           brothers were drug-dealing from the house, and
           failed to consider the suspected criminal activity in
           August and September 2012 when assessing
           staleness?

Commonwealth’s Brief at 8.

     Our standard of review in this case is as follows:

           When     the   Commonwealth      appeals    from   a
           suppression order, this Court may consider only the
           evidence from the defendant’s witnesses together
           with the evidence of the prosecution that, when read



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            in the context of the record as a whole, remains
            uncontradicted. In our review, we are not bound by
            the suppression court’s conclusions of law, and we
            must determine if the suppression court properly
            applied the law to the facts.      We defer to the
            suppression court’s findings of fact because, as the
            finder of fact, it is the suppression court’s
            prerogative to pass on the credibility of the
            witnesses and the weight to be given to their
            testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(internal quotation marks and citations omitted), appeal denied, 106 A.3d

724 (Pa. 2014).

      In its written opinion, the trial court indicated that it granted Smalls’

motion to suppress for two reasons. First, the trial court ruled that all of the

information obtained during the first stage of the investigation (from 2009

through April 2012) was stale and thus could not be used to support a

finding of probable cause. Trial Court Opinion, 8/1/2014, at 6-10. Second,

the trial court concluded that the information obtained in the second stage of

the   investigation   (August-September     2012)   failed   to   “identify   any

involvement by the defendant, [Smalls], in any activities involving the use,

sale, or cultivation of drugs.”   Id. at 11.   The Commonwealth challenges

both of these determinations by the trial court, and thus we will review both

herein.

      The Fourth Amendment of the United States Constitution and Article I,

§ 8 of the Pennsylvania Constitution guarantee the right of the citizenry to




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be free from unreasonable searches and seizures. To obtain a valid search

warrant, the affidavit of probable cause must demonstrate that probable

cause exists to believe that execution of the warrant will lead to the recovery

of contraband or evidence of a crime. Commonwealth v. Caple, 121 A.3d

511, 520 (Pa. Super. 2015). We review the issuing authority's decision in

light of the totality of the circumstances:

             Pursuant to the “totality of the circumstances” test
             set forth by the United States Supreme Court in
             [Illinois v. Gates, 462 U.S. 213 (1983)], the task of
             an issuing authority is simply to make a practical,
             commonsense 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 probable
             cause determination, and must view the information
             offered    to   establish   probable     cause     in   a
             commonsense, non-technical manner.

Commonwealth v. Jones, 988 A.2d 649, 655 (Pa.), cert. denied, 562 U.S.

832 (2010).

      With regard to the trial court’s determination that the information

obtained in the first stage of the investigation was stale, the affidavit of

probable cause provides the following information relevant to this inquiry:

            Beginning in July 2009, a concerned citizen made
             reports to Lansdale police that he/she had observed



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              Smalls engage in a variety of suspicious behavior,
              including what appeared to be hand-to-hand drug
              transactions with various individuals on the front
              porch and in the rear alley of his family’s residence.
              Beginning in February 2011, a second concerned
              citizen also reported that Smalls was engaging in a
              substantial number of drug transactions in and
              around the family residence. Surveillance by the
              Lansdale police on April 14, 2012 resulted in
              observations consistent with those received from the
              two concerned citizens.

             In March 2012, a confidential source provided the
              Lansdale police with additional information regarding
              Smalls’ apparent drug sales. In the first week of
              April 2012, this confidential source assisted the
              Lansdale police in conducting a controlled purchase
              of a prescription narcotic (Oxycodone) from Smalls.

             In August 2012, a third concerned citizen advised
              the Lansdale police that he/she had observed Smalls’
              younger twin brothers, Marcus and Mason Smalls,
              plant, and then tend and water, marijuana plants
              hidden in a weed bed in the rear of a neighboring
              property. On five occasions between August 28,
              2012 and September 19, 2012, the Lansdale police
              surveilled the Smalls’ residence and observed Marcus
              and Mason Smalls tending to and watering four
              marijuana plants. On one occasion, the brothers
              (and others) smoked marijuana on the front porch of
              the Smalls’ residence. On September 19, 2012,
              three of the four plants had been removed.

Affidavit of Probable Cause, 9/21/2012, at 8-20.

        Pennsylvania has long held that probable cause must be based upon

facts closely related to the time of the issuance of the warrant.      In

Commonwealth v. Shaw, 281 A.2d 897 (Pa. 1971), our Supreme Court

held:




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J-A25020-15


             If the issuing officer is presented with evidence of
             criminal activity at some prior time, this will not
             support a finding of probable cause as of the date
             the warrant issues, unless it is also shown that the
             criminal activity continued up to or about that time.

Id. at 899; Commonwealth v. Jackson, 461 632, 638-39, 337 A.2d 582,

584-85 (Pa. 1975). More recently, in Commonwealth v. Gomolekoff, 910

A.2d 710 (Pa. Super. 2006), this Court set forth the test for determining

staleness:

             [A]ge of the information supporting a warrant
             application is a factor in determining probable cause.
             If too old, the information is stale, and probable
             cause may no longer exist. Age alone, however,
             does not determine staleness. The determination of
             probable cause is not merely an exercise in counting
             the days or even months between the facts relied on
             and the issuance of the warrant. Rather, we must
             also examine the nature of the crime and the type of
             evidence.

Id. at 713 (quoting United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir.

1993)).

     In examining the “the nature of the crime and the type of evidence,”

this Court has consistently held that information about drug sales becomes

stale rapidly because drugs “are of such a nature that they would likely be

disposed of quickly,” in substantial part because of a compelling desire to

sell them as swiftly as possible for profit. Commonwealth v. Novak, 335

A.2d 773, 776 (Pa. Super. 1975). In Novak, we held that a seven-week old

observation of drugs was stale and thus did not provide probable cause for a




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search warrant. Id. Similarly, in Commonwealth v. Hagen, 368 A.2d 318

(Pa. Super. 1976), we found that information about drugs “more than a

month old” was stale, citing to the rationale in Novak. Id. at 322; but see

Commonwealth v. Toner, 433 A.2d 25, 26 (Pa. Super. 1981) (holding that

information about the location of drugs just five days later was not stale);

see generally Commonwealth v. David, 445 A.2d 757, 758 (Pa. Super.

1982) (citing to Novak, 21-day old information about illegal gambling was

stale because gambling evidence is “transient in nature”).

      By comparison, in cases involving types of evidence other than drugs,

we have ruled that information is not stale if the items in question, unlike

drugs, are of a nature not subject to quick disposition.           See, e.g.,

Commonwealth v. Janda, 14 A.3d 147, 159 (Pa. Super. 2011) (“[S]hoes,

unlike drugs, are not an item commonly disposed of soon after they come

into the owner’s possession.”); Commonwealth v. Hoppert, 39 A.3d 358,

363 (Pa. Super. 2012) (providing that images of child pornography are

difficult to obtain and thus pedophiles rarely dispose of them).

      The Commonwealth argues that the information obtained in the first

stage of the investigation, although nearly five months old at the time of the

issuance of the warrant, was not stale because the totality of the averments

in the affidavit of probable cause reflected the “protracted and continuous

nature of the illegal narcotics activities” occurring at Smalls’ residence.




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Commonwealth’s Brief at 67.1 Where there is “continuing activity” up until

or near the date of the warrant, otherwise stale information may be used to

establish probable cause. See, e.g., Commonwealth v. Marzel, 436 A.2d

639, 641 (Pa. Super. 1981).

      The affidavit of probable cause, however, does not establish any

connection between the information obtained in the two stages of the

investigation.   All of the information obtained in the first stage (2009

through April 2012), including from the first two concerned citizens, the

confidential source, police surveillance, and the controlled purchase, all

related to Smalls’ drug sales, principally prescription medications. In fact, in

summarizing all of the evidence in the affidavit of probable cause, the affiant

(Investigator Chad Bruckner) concluded that it established that Smalls sold

prescription painkillers, without any mention of marijuana sales:




1
    The Commonwealth also contends that the trial court’s division of the
evidence into two stages was itself error, since this Court has rejected a
“divide and conquer” approach in which piecemeal analysis of specific pieces
of evidence results in a failure to consider the totality of the evidence.
Commonwealth’s Brief at 42-57 (citing Commonwealth v. Carter, 105
A.3d 765, 772 (Pa. Super. 2014) (en banc)).           We disagree with the
contention that Carter’s general admonition against a “divide and conquer”
approach precludes a staleness analysis, which by its very nature requires
some division of the evidence. A staleness analysis necessitates that the
trial court evaluate the continuing vitality of older evidence, and, when
appropriate, determine whether the older evidence and more recent
evidence are sufficiently connected to provide the “continuing activity”
necessary to avoid rejection of the older evidence as stale.


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                                Conclusion

            I believe, through the investigation detailed herein
            and my training and experience, that the principal
            subject of this investigation, Jurell Smalls, is
            involved in selling prescription painkillers.
            Furthermore, I also believe that he stores said
            substances and the proceeds of those sales in his
            place of residence, 116 East Third Street, Lansdale,
            Pennsylvania.

Affidavit of Probable Cause, 9/21/2012, at 20 (emphasis added).

      In significant contrast, all of the information obtained in the second

stage (August-September 2012) involved Smalls’ younger twin brothers

growing marijuana plants on a neighboring property and smoking marijuana

on the front porch of the Smalls’ residence.        Until August 2012, when

Concerned Citizen Number Four came forward with his/her observations of

this activity, the investigation had not uncovered any information from any

source regarding the cultivation of marijuana plants in or around the

residence, either for personal consumption or sale.

      For these reasons, no basis exists upon which to conclude that the

information obtained in the second stage of the investigation demonstrates

any link to Smalls’ prior sales of prescription painkillers (during the first

stage). The descriptions of Smalls’ activities during the first stage reflects a

robust drug-selling operation, plainly noticeable to the two concerned

citizens, the confidential source, and the police during their surveillance on

April 14, 2012.   All described continual and persistent activity at Smalls’




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J-A25020-15


residence, with numerous unidentified individuals engaging with Smalls in

hand-to-hand exchanges of small objects for currency, either from their

vehicles, on the porch, in the alley, or inside the residence.   Id. at 8-18.

During the second stage of the investigation, however, the third concerned

citizen did not report any such activity in or around the Smalls’ residence,

including no observances of any hand-to-hand transactions (either by Smalls

or his brothers). Likewise, even though the police conducted surveillance on

five separate occasions from August 28 through September 19, 2012, they

reported no such activities at the Smalls’ residence during this time period.

Id. at 18-20.

      Accordingly, no information from the second stage supports a finding

that Smalls’ sales of prescription painkillers during the first stage remained

an ongoing criminal operation at the time of the issuance of the warrant on

September 21, 2012. The information from the second stage demonstrates

only that Smalls’ younger twin brothers cultivated up to four marijuana

plants and smoked marijuana on the porch, and provides no basis for a

finding of probable cause that drugs (either prescription painkillers or

marijuana) were being sold by anyone at or around the Smalls’ residence in

the August-September 2012 time period.2



2
   In the affidavit of probable cause, Investigator Bruckner concluded that
Marcus and Mason Smalls were growing marijuana plants “at least for
personal consumption,” and that they “could also be cultivating marijuana
plants for the purpose of selling the buds for profit.” Affidavit of Probable


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     If the Lansdale police had sought a search warrant for the Smalls’

residence in April 2012, it would presumably have been granted and none of

the questions presently before this Court would now be at issue. Because no

application for a search warrant was filed until September 21, 2012,

however, the information obtained from 2009 through April 2012 was stale

and could not provide probable cause for the issuance of a search warrant.

The affidavit of probable cause provides no link between the two stages of

the investigation that would have permitted the magisterial district judge to

determine that Smalls’ drug activities continued up until or near the date of

the issuance of the search warrant.

     The trial court also determined that the information obtained in the

second stage of the investigation did not, by itself, support a finding of

probable cause for the issuance of the search warrant.      The trial court’s

asserted reason for this determination was that no information obtained in

the second stage showed any involvement by Smalls in any drug activities

during this time, and that instead all of the information related to his

younger brothers. Trial Court Opinion, 8/1/2014, at 11. In this regard, the



Cause, 9/21/2012, at 21.        Other than referring to his “training and
experience,” however, Investigator Bruckner cited to no evidence in support
of his speculation regarding possible marijuana sales. As noted herein,
during the August-September 2012 time period, no information supports a
finding of drug sales in or around the Smalls’ residence, and neither the
concerned citizen nor police surveilling the property on multiple dates
reported the observation of any hand-to-hand items for cash drug
transactions by Smalls or his brothers.


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trial court erred, as the critical element in a probable cause inquiry is

whether specific things may be present on the property, rather than on the

activities of the property owner.     Commonwealth v. Gannon, 454 A.2d

561, 565 (Pa. Super. 1982). Observation of the brothers’ activities during

the latter time period likely did provide probable cause to believe that some

marijuana was in the residence on the date of the issuance of the search

warrant, at least in amounts consistent with the brothers’ observed personal

use.

       This Court may affirm the trial court’s decision on any basis.         See,

e.g., In re Jacobs, 15 A.3d 509, 509 (Pa. 2011).             While probable cause

likely existed for a search for marijuana, the warrant issued in this case

authorized the seizure of a far longer list of items, including prescription pills

and 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. Application

for Search Warrant, 9/21/2012, Exhibit A.         As explained hereinabove, no

probable cause existed to conclude that any such operation remained

actively in place in August-September 2012.

       A warrant is constitutionally overbroad “if it is broader than can be

justified   by   the   probable   cause   on   which   the   warrant   is   based.”

Commonwealth v. Santner, 454 A.2d 24, 26 (Pa. Super. 1982) (quoting

LaFave, 2 Search and Seizure 97 (1978)).           As our Supreme Court has



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instructed, in determining whether a warrant is overbroad, a court must

“initially determine for what items probable cause existed,” and then the

description of the items to be seized must be “measured against those items

for which there was probable cause.” Commonwealth v. Grossman, 555

A.2d 896, 900 (Pa. 1989).      “Any unreasonable discrepancy between the

items for which there was probable cause and the description in the warrant

requires suppression” because it “reveals that the description was not as

specific as was reasonably possible.”    Id.   The Pennsylvania Constitution

expressly requires that a warrant describe the items to be seized “as nearly

as may be....”   Id. (“The clear meaning of the language is that a warrant

must describe the items as specifically as is reasonably possible.”).

      An “unreasonable discrepancy” clearly exists between the items for

which probable cause arguably existed (marijuana) and the extensive list of

items to be seized set forth in the warrant.       As such, the warrant was

constitutionally overbroad and thus the trial court did not err in granting

Small’s suppression motion.

      The learned Dissent posits that we should apply the doctrine of

severance, pursuant to which those portions of a warrant for which no

probable cause exists may be stricken, with the portions supported by

probable cause upheld as valid. Commonwealth v. Begley, 596 A.2d 811,

824 (Pa. Super. 1991). It appears that this Court has applied the doctrine of

severance on three occasions, starting in Commonwealth v. Casuccio, 454



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A.2d 621 (Pa. Super. 1982); see also Begley, 596 A.2d at 824;

Commonwealth v. Anderson, 40 A.3d 1245, 1248-49 (Pa. Super. 2012).

In recognizing the doctrine in Casuccio, this Court relied exclusively on a

California case, Aday v. Supreme Court, 55 Cal.2d 789, 13 Cal.Rptr. 415,

362 P.2d 47 (1961). In neither Casuccio, Begley, nor Anderson did this

Court address the constitutionality of the severance doctrine, particularly

given the strong right of privacy that inheres in Article 1, Section 8 of the

Pennsylvania Constitution. See Commonwealth v. Johnson, 86 A.3d 182,

188-89 (Pa. 2014); Commonwealth v. Edmunds, 586 A.2d 887, 899, 905-

06   (1991)    (“[O]ur   Constitution    has     historically   been   interpreted   to

incorporate a strong right of privacy, and an equally strong adherence to the

requirement of probable cause under Article 1, Section 8.”). Our Supreme

Court has never addressed the constitutionality of the severance doctrine.

      The severance doctrine, even if constitutional, has no application in

this case.    As recognized in Casuccio, the doctrine should not be used in

circumstances where probable cause exists as to only a few of a much larger

set of items listed for seizure. Quoting from Aday, in Casuccio this Court

emphasized:

              We recognize the danger that warrants might be
              obtained which are essentially general in character
              but as to minor items meet the requirements of
              particularity, and that wholesale seizures might be
              made under them, in the expectation that the
              seizure would in any event be upheld as to the




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            property specified. Such an abuse of the warrant
            procedure, of course, could not be tolerated.

Casuccio, 454 A.2d at 630 (quoting Aday, 55 Cal.2d at 797, 13 Cal.Rptr. at

420, 362 P.2d at 52).

      The warrant in the present case was undoubtedly general in character,

permitting the police to rummage through 116 East Third Street in a broad

search for a lengthy list of items associated with a full-scale drug-

manufacturing and drug-selling operation, when in fact probable cause

existed, at most, for marijuana in an amount consistent with personal use.

Even with respect to marijuana, the warrant lacks particularity, as it

permitted the seizure of (among many other things) any items used to grow

marijuana indoors, including “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, [and] seller lists.” Application for

Search Warrant, 9/21/2012, Exhibit A ¶ 3.        No probable cause existed for

any such items, as citizen reports and police surveillance revealed only that

Marcus and Mason Smalls had tended to four plants outdoors, and the only

tools they used were a shovel (stored in the detached garage) and a bottle

of water. Affidavit of Probable Cause, 9/21/2012, at 19. No evidence from




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any source provided probable cause to support a finding that marijuana was

being cultivated inside 116 East Third Street, either for personal use or sale.

      Order affirmed.

      Fitzgerald, J. joins the Memorandum.

      Mundy, J. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2015




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