J-S27045-16


                                  2016 PA Super 109

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JORDAN ELIAS KORN,

                            Appellee                   No. 1528 MDA 2015


                Appeal from the Order Entered August 18, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000427-2015

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED MAY 25, 2016

        The Commonwealth appeals from the order entered in the Court of

Common Pleas of Centre County granting the suppression motion filed by

Appellee, Jordan Elias Korn.        After careful review, we reverse and remand

for further proceedings.

        On February 26, 2015, Appellee was arrested and charged with simple

possession and possession with intent to deliver a controlled substance. 1 On

May 22, 2015, Appellee filed a motion to suppress physical evidence

obtained from the search of his bedroom in Apartment 201, located at The

Phoenix Apartment Complex, in State College Boro, Centre County.

____________________________________________


1
    35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113(a)(16), respectively.




*Former Justice specially assigned to the Superior Court.
J-S27045-16


      A suppression hearing commenced on July 13, 2015, at which the

Commonwealth presented the sole witness, Trooper Eric Guido of the

Pennsylvania State Police.     Trooper Guido testified that toward the end of

February of 2015, he was conducting an investigation regarding the sale of

controlled substances out of an apartment at 501 East Beaver Avenue in

State College.     N.T., 7/13/15, at 6.        According to the trooper, the

investigation began after a Confidential Informant advised him that he had

purchased Xanax pills from Aaron Murray. Id. at 7. Subsequently, Trooper

Guido and the Confidential Informant made two controlled buys of Xanax

from Mr. Murray, the first of which occurred in Mr. Murray’s bedroom in

Apartment 201. Id. at 8-12.

      Based on evidence seized during these drug buys, Trooper Guido

applied for a search warrant for the entire apartment. When asked why he

would seek to search the entire apartment, when the first drug buy occurred

only in a bedroom, Trooper Guido replied:

             A. Because you never know where things could be
                hidden or secreted. Sometimes people - - many
                times we do a search warrant, people will say well,
                I’ll just take you to where things are and, you know,
                [they are] willing to give up a little bit to save a lot.
                So, you always have to make sure you thoroughly
                check for everything.

Id. at 14.

      The description of the property to be searched by the warrant was

listed as “The Phoenix Apartment Complex, 501 East Beaver Ave, Apt#201



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located in State College Boro, Centre County.”   See id.; Com. Exhibit 1.

According to Trooper Guido, the owner, occupant or possessor of this

apartment was listed as “Aaron Murray,” because the Confidential Informant

told him that Mr. Murray “was the only one that was supposed to be living

there.” Id. at 16.

     Trooper Guido further testified that the search warrant was executed

shortly after it was obtained at approximately 10:55 a.m. on February 26,

2015. N.T., 7/13/15, at 15. The trooper stated that prior to the search, he

contacted the building manager who informed him that if no one answered

the apartment door, he would send a maintenance person so that the police

would not have to break down the door.     Id. at 17.   Trooper Guido then

stated they entered a side door which led to Apartment 201, and Mr. Murray

answered their knock on the door. Id.

     Upon entering the apartment, Trooper Guido stayed with Mr. Murray,

while two other troopers checked the apartment for other occupants. At that

time, Trooper Guido could hear knocking on a door at the end of a hallway

and repeated saying, “Come out of the room, state police, we have a search

warrant, get out of the room.” Id. at 18. According to the trooper, after

about five minutes, Appellee opened the bedroom door, and “wanted to

know what was going on.”     Id. at 19.   When he was advised about the

reasons for the troopers’ presence, Appellee asked to see a copy of the

search warrant, and the troopers complied.     Id.   At that time, another


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trooper searched Appellee’s person and found several Xanax pills. Id. at 19-

20. Ultimately, both Mr. Murray and Appellee were placed in the living room

of the apartment.

       Trooper Guido testified that the search of the apartment began in the

bedroom that had been occupied by Appellee.       According to the trooper,

Appellee’s bedroom door was not marked in any way to distinguish it from

the other bedroom. Id. at 21. Trooper Guido did not recall a dead bolt or

key lock on the door but testified the door was locked when first approached

by the other troopers. N.T., 7/13/15, at 21. Upon searching the bedroom,

Trooper Guido noticed a “safety deposit-type box on a desk.”     Id.   at 22.

After finding a key in a backpack in the room, another officer unlocked the

box.   Id. at 23.    Inside the box, the troopers found three vacuum-sealed

bags containing approximately 7000-8000 white pills, and approximately

$5,000 in cash. Id. at 25. Various drug packaging and a scale, as well as a

safety deposit key, were also found inside the bedroom.       A subsequent

search warrant was issued for the corresponding safety deposit box, which

was rented by Appellee, and approximately $12,000 in cash was found

inside. Id. at 28.

       Describing the bedroom further, Trooper Guido repeated that he did

not recall a dead bolt or key lock, and the bedroom did not have a separate

apartment number, mailbox, or entrance.       Id. at 26.   According to the

trooper, “[it] was a typical college apartment that [he was] used to


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executing search warrants on, common area, two bedrooms, bathroom,

kitchen.” Id.

      Upon cross-examination, Trooper Guido conceded that, when speaking

with the building manager, he did not ask who resided in Apartment 201.

Id. at 30. He also testified that, upon entering the apartment to conduct

the first controlled buy, he noticed a door at the end of the hallway, but only

learned it was a second bedroom that was shared by Appellee and a second

roommate when subsequently executing the search warrant.           Id. at 31.

Trooper Guido further acknowledged that he did not know where the

mailboxes for any unit within the apartment complex were located. N.T.,

7/13/15, at 34. Finally, Trooper Guido testified that prior to the execution of

the search warrant he was unaware that Appellee resided in Apartment 201.

Id.

      Based on Trooper Guido’s suppression hearing testimony, the trial

court granted Appellee’s suppression motion:

            This Court finds that Apartment 201 of the Phoenix
         building contains more than one living unit, as it contains
         separate living quarters for each of the individuals who
         reside there. The search warrant in the instant case was
         obtained in order to investigate Aaron Murray’s illegal
         activities. In fact, the warrant specifically states “The
         Phoenix Apartment Complex, 501 East Beaver Ave,
         Apt#201 located in State College Boro, Centre County,”
         with the name of the owner/occupant listed as Aaron
         Murray.” Despite the fact that Apartment 201 contains
         multiple living units, the warrant fails to describe the
         particular living unit that was to be searched so as to
         ensure the other living units, for which no probable cause
         existed, were not searched. The Court finds that the

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         language of the warrant is sufficient to permit a search of
         Murray’s room and any common areas. Magisterial District
         Justice [sic] [Carmine W.] Prestia had a substantial basis
         from the warrant application to believe that probable cause
         existed as it relates to Murray and his activities. However,
         the search of [Appellee’s] room was improper and outside
         the scope of the probable cause used to obtain the search
         warrant. The officers had no knowledge of [Appellee’s]
         existence and obtained the warrant solely on the basis of
         the interactions with Murray in his own room and in a
         vehicle outside the apartment. Furthermore, at the time
         the warrant was executed, the door to [Appellee’s] room
         was locked, indicating that Murray could not have
         exercised dominion or control over the items in
         [Appellee’s] room. As such, [Appellee’s] Motion to Quash
         Search Warrant and Suppress Evidence is GRANTED, and
         all evidence obtained from [Appellee’s] bedroom must be
         suppressed.

Opinion and Order, 8/18/15, at 4.

      The Commonwealth filed a timely appeal. Within its notice of appeal,

the Commonwealth certified that the suppression court’s order would

terminate or substantially handicap the prosecution of Appellee.            See

Pa.R.A.P. 311(d) (permitting Commonwealth appeal from an interlocutory

order if it certifies that the order will terminate or substantially handicap the

prosecution).    On September 30, 2015, the Commonwealth filed its

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On October

1, 2015, the trial court filed an opinion in response, in which the court

“respectively maintains that its Opinion and Order of August 18, 2015 was

correctly entered, the reasons for which were adequately addressed

therein.” Opinion, 10/1/15, at 1.




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      On appeal, the Commonwealth presents the following issue for our

review:

          1. Did the [trial] court err as a matter of law in granting
             [Appellee’s] Motion to Suppress when the search of
             [Appellee’s] room was constitutionally valid as part of
             the single-unit residence identified on the search
             warrant?

Commonwealth’s Brief at 4.         In support of its claim of error, the

Commonwealth further asserts:

             In this incident, Trooper Guido had probable cause to
          search Aaron Murray’s bedroom which was developed
          through two controlled buys.        Based on this probable
          cause, he obtained a search warrant which sufficiently
          identified the area to be searched. Because [Appellee’s]
          bedroom was part of the single-unit apartment, Trooper
          Guido was not obligated to obtain a separate warrant or
          develop probable cause independent of that already
          established in order to justify searching it.

Commonwealth’s Brief at 10. We agree.

      Our standard of review in addressing a challenge to the suppression

court’s granting of a suppression motion is well settled.

            When     the   Commonwealth       appeals   from     a
            suppression order, we follow a clearly defined
            standard of review and consider only the evidence
            from the defendant’s witnesses together with the
            evidence of the prosecution that, when read in the
            context of the entire record, remains uncontradicted.
            The suppression court’s findings of fact bind an
            appellate court if the record supports those findings.
            The suppression court’s conclusions of law, however,
            are not binding on an appellate court, whose duty is
            to determine if the suppression court properly
            applied the law to the facts.




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Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa.Super. 2012)

(citations omitted).   “Our standard of review is restricted to establishing

whether the record supports the suppression court’s factual findings;

however, we maintain de novo review over the suppression court’s legal

conclusions.”   Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473,

476 (2010) (citation omitted).

      With regard to search warrants, we have explained the following.

                   It is well-established that for a search warrant
            to be constitutionally valid, the issuing authority
            must decide that probable cause exists at the time of
            its issuance, and make this determination on facts
            described within the four corners of the supporting
            affidavit, and closely related in time to the date of
            issuance of the warrant. It is equally well established
            that a reviewing court [must] pay great deference to
            an issuing authority’s determination of probable
            cause for the issuance of a search warrant.
            Moreover, our Supreme Court has recognized that
            affidavits supporting search warrants normally are
            prepared ..., ‘by nonlawyers in the midst and haste
            of a criminal investigation,’ and, accordingly, said
            affidavits, should be interpreted in a ‘common sense
            and realistic’ fashion rather than in a hypertechnical
            manner.

Commonwealth v. Griffin, 24           A.3d 1037, 1043       (Pa.Super. 2011)

(brackets, some quotation marks, and citations omitted).

      With regard to the particularity requirements of a search warrant

application, this Court recently has summarized:

            The Rules of Criminal Procedure include a particularity
         requirement: “Each search warrant shall be signed by the
         issuing authority and shall” . . . (c) name or describe with
         particularity the person or place to be searched.”


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       Pa.R.CrimP. [205]. The Comment to Rule [205] explains:
       “Paragraphs (b) and (c) are intended to proscribe general
       or exploratory searches by requiring that searches be
       directed only towards the specific items, persons, or places
       set forth in the warrant. Such warrants should, however,
       be read in a common sense fashion and should not be
       invalidated by hypertechnical interpretations.” Similarly,
       the Supreme Court has held a “practical, common-sense”
       approach should be taken in determining whether the
       place to be searched is specified with sufficient
       particularity. Commonwealth v. Carlisle, 517 Pa. 36,
       534 A.2d 469, 472 (1987).

          The Pennsylvania Supreme has concluded Article 1,
       Section 8 of the Pennsylvania Constitution affords greater
       protection than the Fourth Amendment, [Commonwealth
       v.] Edmunds, [][526 Pa. 374, 586 A.2d 887 (1991)],
       including a more demanding particularity requirement; the
       description must be as particular as reasonably possible.
       Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d
       896, 899 (1989). “The twin aims of Article 1, Section 8
       are the safeguarding of privacy and the fundamental
       requirement that warrants shall only be issued upon
       probable cause. Commonwealth v. Waltson, 555 Pa.
       223, 724 A.2d 289, 292 (1998).

                In order to protect these twin aims, a warrant
          must describe the place to be searched and the
          items to be seized with specificity, and the warrant
          must be supported by probable cause. The place to
          be searched must be described “precise enough to
          enable the executing officer to ascertain and identify,
          with reasonable effort the place intended, and where
          probable cause exists to support the search of area
          so designated a warrant will not fail for lack of
          particularity.”

       Id., at 292 (quoting In re Search Warrant B-21778,
       341 Pa.Super. 350, 491 A.2d 851, 856 (1985) aff’d, 513
       Pa. 429, 521 A.2d 422 (1987)).

Commonwealth v. Irvin, 2016 Pa.Super. Lexis 77, ___ A.3d ___

(Pa.Super. filed Feb. 8, 2016) (quoting Commonwealth v. Belenky, 777



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A.2d 483, 485-86 (Pa.Super. 2001)). In short, probable cause exists when,

based upon a totality of the circumstances set forth in the affidavit of

probable cause, there is a fair probability that evidence of a crime will be

found in a particular place. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d

1053 (2013).

      Upon careful scrutiny of the uncontradicted facts of record, as well as

pertinent legal authority in conducting our de novo review, we conclude that

the trial court’s finding that Appellee’s bedroom was a “separate living unit”

is supported by neither the evidence presented at the suppression hearing

nor applicable case law. Trooper Guido testified without contradiction that

Apartment 201 consisted of a regular, two-bedroom college apartment; he

could not recall a dead bolt or a key entry to Appellee’s bedroom.       N.T.,

7/13/15, at 26.   Further, there was no indication that Appellee’s bedroom

had a separate mailbox, address, or any private entrance. Id. In concluding

that the bedroom was a separate living unit, the trial court did not apply “a

practical, common-sense” approach when determining whether the place to

be searched was specified with sufficient particularity in the search warrant.

Irvin, supra.

      The case relied upon by the trial court to support its conclusion, In

the Interest of Wilks, 613 A.2d 577 (Pa.Super. 1992), is inapposite. In

Wilks, police observed the defendant engage in an alleged drug transaction

on the street and then enter a residence on the second floor of a nearby


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apartment building. Based on this observation, the police secured a search

warrant which listed the area to be searched as the second floor of the

building.   Importantly, the search warrant did not specify a particular

apartment number.     When the police went to execute the warrant, they

discovered two different apartments on the second floor.        The door to

Apartment C was open, so some of the police officers entered to “see if they

could identify the person they wanted in the warrant.” Wilks, 613 A.2d at

579 (citation omitted).   A different officer knocked on the closed door of

Apartment B and announced, “Police, open the door. We have a warrant.”

Id.   Moments later, after hearing a commotion inside Apartment B, the

police found the door unlocked and entered the premises. The police then

observed the defendant sitting on a couch inside.      When the defendant’s

mother arrived, she informed the police that one of the locked bedrooms

inside Apartment B belonged to the defendant.     A search of the defendant’s

bedroom revealed large amounts of drugs and a handgun. Wilks, supra.

      The trial court granted the defendant’s suppression motion in Wilks,

and the Commonwealth filed a timely appeal to this Court. According to the

Commonwealth, the warrant at issue met the particularity requirements,

because, although an apartment number was not listed, “the warrant

adequately identified the location by address, physical description, floor and

name of occupant, and the targeted apparent was the only place searched

and the only place from which evidence was seized.”      Wilks, 613 A.2d at


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579 (capitalization omitted).    We disagreed, holding that the warrant at

issue “did not clearly describe the premises to be searched, but in essence,

without probable cause, authorized the search of both apartments B and C

which were located on the second floor.” Id. at 580.

      When discussing relevant case law in Wilks, this Court cited to our

Supreme Court’s previous decision in Commonwealth v. Carlisle, 517 Pa.

36, 40, 534 A.2d 469, 471 (1987), for the proposition that “[a] search

warrant directed against an apartment house, or other multiple-occupancy

structure will be held invalid for lack of specificity if it fails to describe the

particular room or subunit to be searched with sufficient definiteness to

preclude a search of other units.”       Wilks, 613 A.2d at 579 (emphasis

added).    This reference to a particular room must, however, be read in

context.   In Carlisle, our Supreme Court cited with approval this Court’s

quoting the general requirement of particularity found in 68 Am.Jur.2d

Searches and Seizures § 77 (1973). Carlisle, 534 A.2d at 471. Despite

the mention of “room” in that treatise, our Supreme Court in Carlisle held

the search warrant at issue described the premises to be searched with

sufficient particularity even though the affidavit that accompanied the

warrant designated only the specific apartment to be searched.               See

Carlisle, 534 A.2d at 471-72 (citing) (explaining that that the “evil to be




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prevented is the search of other apartments where there is no legal basis for

police intrusion.”)2

       Thus, Wilks cannot be read to preclude the search of both bedrooms

inside a single apartment.        Interestingly, as noted above, while the police

searched a locked bedroom within Apartment B, it was the lack of an

apartment number, rather the identification of an interior room, upon which

this Court affirmed the trial court’s order suppressing the evidence. Wilks,

supra.

       In fact, Article 1, Section 8 of the Pennsylvania Constitution has been

held not to preclude a search of the entire residence where there is probable

cause to believe that contraband is located within any particular room of a

single living unit. In Commonwealth v. Waltson, 555 Pa. 223, 724 A.2d

289 (1998), the Pennsylvania State Police responded to a domestic dispute

and were informed by the defendant’s alleged girlfriend that the defendant

was growing marijuana in the basement. Thereafter, a search warrant was

issued, which described the premises to be searched by house number.

Upon searching the entire residence, the police found not only ten marijuana

plants growing in one room of the basement, but also found other drugs and

drug paraphernalia throughout the rest of the house.
____________________________________________


2
  Moreover, as discussed below, our Supreme Court has not differentiated
between the probable cause necessary with regard to a particular room in a
single living unit vis-à-vis the entire residence.




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      Following his conviction on various drug charges, the defendant filed a

timely appeal to this Court, in which he challenged the trial court’s denial of

his suppression motion.     We rejected his challenge to the trial court’s

suppression ruling and affirmed the defendant’s judgment of sentence. See

Commonwealth v. Waltson, 703 A.2d 518, 521 (Pa.Super. 1997)

(concluding that “when there is probable cause to believe criminal activity is

afoot in one room of a single unit household, a warrant to search the entire

unit is not overbroad.”) Our Supreme Court granted the defendant’s petition

for allowance of appeal “in order to address whether a search warrant is

overbroad where it authorizes a search of an entire residence, where

probable cause underlying the warrant relates to only a particular room of

the house.” Waltson, 724 A.2d at 290-91.

      The high court held that, “where there is probable cause to believe

that contraband is located within a particular room of a single unit house,

Article 1, Section 8 does not preclude a search of the entire residence.” Id.

at 290. In doing so, our Supreme Court rejected the defendant’s contention

that the “Pennsylvania Constitution’s enhanced privacy rights limit the scope

of a lawful search of a single unit residence more than the Fourth

Amendment.” Id. at 291. The Waltson court then concluded the following:

       [W]here a search warrant adequately describes the place to be
      searched and the items to be seized the scope of the search
      “extends to the entire area in which the object of the search may
      be found and properly includes the opening and inspection of
      containers and other receptacles where the object may be
      secreted.”

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Id. at 292 (quoting Commonwealth v. Reese, 520 Pa. 29, 549 A.2d 909,

911 (1988)) (footnote omitted). See also Irvin, supra (explaining that a

second search warrant to search entire residence for heroin and funds

derived from its sale was properly based on lawful observations during

execution of initial search warrant).

       In the case sub judice, the trial court did not recognize our Supreme

Court’s holding in Waltson and, nevertheless, concluded Appellee’s locked

bedroom door demonstrated that Mr. Murray could not have exercised

dominion or control over the items in Appellee’s room.       Once again, the trial

court’s conclusion is not supported by the uncontradicted evidence presented

at the suppression hearing. Officer Guido could not recall a dead bolt or key

entry to Appellee’s bedroom.3          The fact that Appellee locked the bedroom

door from the inside establishes nothing more than the fact that Mr. Murray

could not enter the bedroom at the time of the search.            Finally, we are

unpersuaded by Appellee’s attempt to avoid application of Waltson because

the decision refers to a “single family residence.”       Waltson, 724 A.2d at

293. The fact that the suppression hearing transcript does not establish a

familial relationship between Appellee and one or more of his roommates

does not alter the fact that the entire apartment was the subject of the
____________________________________________


3
  We reject Appellee’s speculation that Trooper Guido’s inability to recall a
dead bolt or key entry to the bedroom door somehow established the
presence of either mechanism. See Appellee’s Brief at 7-8.




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search. See Irvin, at *16 (upholding search of entire residence that was

occupied by two male roommates).

       In sum, we conclude that the suppression court erred in suppressing

the evidence found in Appellee’s bedroom within Apartment 201, when

precedent establishes that there was probable cause to search the entire

apartment.      Accordingly, we reverse the order granting suppression and

remand this case for further proceedings, consistent with this Opinion.4

       Order reversed. Case remanded. Jurisdiction relinquished.

       Judge Dubow joins the Opinion.

       Judge Shogan files a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2016




____________________________________________


4
   Given our disposition, we need not address the Commonwealth’s
alternative argument that probable cause arose regarding Appellee once he
was searched and a quantity of Xanax was found on his person. See
Commonwealth’s Brief at 16-17.



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