J-S32007-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

PHILLIPS PITTS,

                        Appellee                    No. 2360 EDA 2015


                   Appeal from the Order July 15, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005714-2011


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 22, 2016

      The Commonwealth appeals from the July 15, 2015 order finding that

a search warrant utilized to search the residence of Appellee, Phillips Pitts,

was not supported by probable cause and suppressing the fruits of that

search. We reverse.

      We first set forth the principles that inform our review.    When the

Commonwealth appeals from an order granting suppression, we consider the

defense evidence and the evidence from the prosecution that, in the context

of the entire record, remains uncontradicted. Commonwealth v. Carter,

105 A.3d 765 (Pa.Super. 2014). If supported by the record, the suppression

court's factual findings bind us, but this Court is not obliged to accept the

suppression court’s conclusions of law.


* Retired Senior Judge assigned to the Superior Court.
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      In this case, we are examining a suppression court's holding that the

facts contained in a search warrant's affidavit did not justify its issuance. A

search warrant is valid when the facts in the affidavit establish the existence

of probable cause. Commonwealth v. Leed, 2016 WL 3135662 (Pa.Super.

2016). "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" to

believe that a search should be conducted. Id. at *5 (citation omitted).

Probable cause is determined by the magisterial district judge who issued

the warrant, and must be ascertained based upon a practical approach and

pursuant to a common sense, non-technical analysis. Id. at *7.               The

magisterial body decides, based upon the facts in the affidavit itself, if "there

is a fair probability that contraband or evidence of a crime will be found in a

particular case."    Id.    (citation omitted).     Probable cause must be

established based solely upon "the information within the four corners of the

affidavit submitted in support" of issuance of the warrant. Commonwealth

v. Burgos, 64 A.3d 641, 656 (Pa.Super. 2013) (citation omitted).           Once

that determination is rendered by the magisterial district judge, the warrant

may be issued.

      The suppression court, as a reviewing court of the magisterial decision,

"is simply to ensure that the magistrate had a substantial basis for

concluding that probable cause existed." Leed, supra at *7 (citation

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omitted).   Thus, the court of common pleas does not engage in de novo

review and must grant great deference to the magisterial district judge's

finding that an affidavit sets forth facts establishing probable cause. Id. The

suppression court cannot invalidate a warrant through a hyper-technical

interpretation of the facts. Id. When this Court examines the contents of

the affidavit supporting the warrant, we utilize the same standard of review

as the court of common pleas and accord great deference to the magisterial

body that issued the warrant.       It is a question of law as to whether an

affidavit supports the magisterial determination that there is probable cause,

i.e., a fair probability that contraband or evidence of a crime would be found

at the described location. Commonwealth v. Coleman, 830 A.2d 554 (Pa.

2003). Thus, in this case, we owe no deference to the suppression court's

legal determination that the affidavit herein was insufficient to establish

probable cause to search Appellee’s residence.

      In accordance with the foregoing precepts, we now review the facts

contained in the four corners of the affidavit utilized to obtain the search

warrant herein. On January 25, 2011, two Philadelphia Police Officers

received information that drugs were being sold in the vicinity of Ella and

Mayfield Streets, Philadelphia, and conducted surveillance there.           They

observed    the   following.   An   unidentified   male   ("unidentified   male")

continually entered and exited 243 East Mayfield Street, and handed small

items from a black plastic bag in exchange for cash to numerous people who

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approached him briefly. Police then utilized a confidential informant ("CI")

and observed the CI purchase PCP from the unidentified male on Mayfield

Street.

      Officers continued their surveillance.   At approximately 6:30 a.m. on

February 1, 2011, a tan Suburban parked on Ella Street near Mayfield

Street. The unidentified male approached that vehicle, received a black bag

from the driver, Curtis Coates, and placed the bag on the steps of 243 East

Mayfield Street. From 6:45 to 7:15 a.m., the unidentified male engaged in

numerous hand-to-hand transactions of small items for cash with various

people. Then, the unidentified male returned to the Suburban, took a small

item from Coates, went to 243 East Mayfield Street, and placed that item in

the black bag. He then sold something to another pedestrian.

      On February 2, 2011, police began surveillance of the Suburban, which

was located in the rear alley of property at 345 Roosevelt Boulevard.     At

7:00 a.m., police followed that vehicle to the area of Ella and Mayfield

Streets.   The unidentified male again received a back bag from the

Suburban's driver, and resumed making what police concluded were

narcotics sales with numerous pedestrians on Mayfield Street. At 7:30 a.m.,

the Suburban returned to the alley behind 345 East Roosevelt Boulevard.

Later in the afternoon of February 2, 2011, the CI purchased heroin from the

unidentified male on East Mayfield Street.




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      Police remained in their lookout positions on East Mayfield Street. At

about 3:30 p.m. on February 2, 2011, Appellee, who is referred to as

unidentified male number two in the affidavit, arrived at 243 East Mayfield

Street in a black Ford F-150 pickup truck, met with the unidentified male,

handed him a large black bag, and then re-entered his pickup truck. The

unidentified male took the bag into 243 East Mayfield Street.

      At around 7:00 a.m. on the following day, February 3, 2011, Coates

again traveled to 243 East Mayfield Street. The unidentified male entered

Coates' Suburban, and, after a few minutes, the unidentified male returned

to 243 East Mayfield Street and began to sell small items for cash on the

street to various pedestrians.

      In the meantime, police began surveillance of Appellee.        At around

11:30 a.m., on February 3, 2011, Appellee exited 4166 Paul Street, drove to

the 200 block of East Mayfield Street, and handed a large black bag to the

unidentified male, who took it inside 243 East Mayfield Street. Appellee then

returned to 4166 Paul Street and entered that location.         Later that day,

Appellee went back to 243 East Mayfield Street, and entered it.            The

unidentified male was on the porch when Appellee arrived.              The CI

approached and spoke with him. The unidentified male went inside 243 East

Mayfield Street, and Appellee then exited 243 East Mayfield Street. Appellee

sold PCP, which he retrieved from a black bag, to the CI.        Appellee then

returned to 4166 Paul Street, where police observed a white garage that

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appeared to be storage container attached to that house.           Since PCP is

caustic, police suspected that it was being mixed and stored in the garage.

Based on this information, the magisterial district judge issued a search

warrant for 4166 Paul Street, and, during its execution, police discovered

seventy grams of PCP and drug packaging material.

      In concluding that the warrant failed to set forth probable cause to

search 4166 Paul Street, the suppression court opined that there was no

nexus between 4166 Paul Street and the drugs being sold by the

unidentified male and Appellee on East Mayfield Street.        The suppression

court ruled that police had no reason to conclude that drugs would be found

in 4166 Paul Street. This appeal followed the court’s suppression of the PCP

and packaging material found at that location.

      The Commonwealth assails the suppression court’s conclusion that the

affidavit failed to set forth facts supporting the police’s belief that there was

a fair probability that drugs would be located at 4166 Paul Street. As noted,

we accord no deference to the suppression court's legal determination that

the affidavit did not support the existence of probable cause to search 4166

Paul Street.    Instead, we, as the suppression court should have, accord

great deference to the magisterial determination that the affidavit did, in

fact, establish that there was a fair probability that drugs would be found at

4166 Paul Street.    We also view the facts set forth in the affidavit in a

common sense and practical fashion.

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      We first note the following. On three separate days, police observed

the unidentified male engage in numerous drug transactions on East

Mayfield Street.   The behavior of Appellee and Coates, viewed in a logical

manner, establishes that they were supplying the unidentified man with

those drugs.   While the fact that Appellee was a drug supplier does not

necessarily mean that he was storing those drugs at 4166 Paul Street, we

conclude that the following event is critical in the probable cause equation.

On February 3, 2011, Appellee left 4166 Paul Street, traveled to 243 East

Mayfield Street, and handed a black bag to the unidentified male.        The

unidentified man, as established through sales to the CI, was selling PCP and

heroin from black bags.    That same day, Appellee sold PCP to the CI and

took it from a black bag. The previous day, Appellee also delivered a black

bag to the unidentified man. While there was no indication where Appellee

stored his drugs based upon what police saw on February 2, 2011, this

missing information was supplied by police surveillance conducted on

February 3, 2011. On that day, Appellee left 4166 Paul Street to make his

conveyance of the contraband to the unidentified man.      Additionally, 4166

Paul Street had a structure suitable for mixing and storing PCP.

      In Commonwealth v. Clark, 28 A.3d 1282 (Pa. 2011), the defendant

left his residence, traveled to another location, made a drug sale, and then

returned to his residence.   Our Supreme Court held that this sequence of

events "connected the illegal transaction to [the defendant's] residence,"

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supporting the magisterial determination "that drugs would likely be found in

the residence." Id. at 1291.       Appellee performed precisely these same

actions on February 3, 2011. He left 4166 Paul Street, gave a black bag to

the unidentified man, and that man took it inside 243 East Mayfield Street.

The affidavit established that the unidentified man was a street-level drug

dealer, that he procured and sold those drugs from black bags delivered by

his suppliers, and that he stored his drugs at 243 East Mayfield Street.

Thus, when all of the facts set forth in the affidavit are viewed in their

totality and with common sense, it is evident that Appellee delivered drugs

on February 3, 2011, and that he traveled from 4166 Paul Street to perform

that action. Under Clark’s rationale, there was a sufficient nexus between

Appellee's drug activity and 4166 Paul Street. The magisterial district judge

properly found that there was a fair probability drugs would be therein.

      We   conclude   that   the    suppression   court   erred   in     applying

Commonwealth v. Davis, 310 A.2d 334 (Pa.Super. 1973).                  Therein, a

warrant was issued based solely upon the fact that the defendant was a

reputed drug dealer who was visited by other supposed drug dealers, and

police never even saw any drug sales. There were no events supporting a

belief that any drugs would be at Davis’ residence.       In this case, police

observed, on three different days, the unidentified male make a plethora of

street sales of drugs, and the CI purchased narcotics from both Appellee and

that unidentified male.   Additionally, police observed Appellee leave 4166

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Paul Street and deliver PCP to the street dealer.         The Davis decision is

inapposite herein.

     We    also   conclude   that    the   suppression    court’s   application    of

Commonwealth         v.   Kline,    335    A.2d   361    (Pa.Super.    1975)      and

Commonwealth v. Way, 492 A.2d 1151 (Pa.Super. 1985), was misguided.

In those two cases, we held that there was not a sufficient basis to search

each defendant's home in that police did not view the defendant travel from

his residence to the location of the drug sales that the defendants

conducted. We noted in those cases that the fact that a defendant is a

criminal does not mean that contraband will be found in his residence.

Herein, the totality of the circumstances, and, most crucially, the police's

observation of Appellee leaving 4166 Paul Street immediately before he

proceeded to deliver narcotics, compels affirmance of               the magisterial

determination that there was a fair probability that drugs would be located

in 4166 Paul Street.

     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016

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