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 and DUBOW, JJ., and STEVENS, P.J.E.*

DISSENTING OPINION BY SHOGAN, J.:                       FILED MAY 25, 2016

       Because I conclude that the search in the case was overbroad, I am

constrained to respectfully dissent.

       My review reflects the following facts in this case.    On February 22,

2015, Trooper Eric Guido, of the Pennsylvania State Police, accompanied a

confidential informant (“the CI”) to Apartment 201 at 501 East Beaver

Avenue, in State College. The trooper and the CI conducted a controlled buy

of Xanax pills from Aaron Murray, which took place inside of Mr. Murray’s

bedroom in a multiple bedroom apartment in this college town. At the time

of the controlled buy, Trooper Guido observed the door of Appellee’s


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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bedroom, which was located at the end of the hallway from Mr. Murray’s

bedroom.

       On February 25, 2015, Trooper Guido and the CI conducted a second

controlled buy of Xanax pills from Mr. Murray. The second transaction took

place in the back seat of Trooper Guido’s vehicle.               The next day,

February 26, 2015, Trooper Guido sought a search warrant from Magisterial

District Judge Carmine W. Pristia, Jr., and the warrant was issued on that

day. The warrant listed the “specific description of premises and/or person

to be searched” as follows:

       The Phoenix Apartment Complex, 501 East Beaver Ave., Apt
       #201 located in State College Boro, Centre County.

Commonwealth’s Exhibit 1 at 1.         In addition, the warrant specified the

“name of owner, occupant or possessor of said premises to be searched” as

“Aaron MURRAY.” Id.

       Prior to executing the warrant, Trooper Guido contacted employees of

the Phoenix apartment complex for assistance in entry into the apartment.

However, at no time did Trooper Guido inquire about the number of

occupants of the apartment or the number of rooms in the apartment.

       At the time of the execution of the search warrant, Jordan Elias Korn

(“Appellee”) was located in his back bedroom of the apartment, with the

bedroom door locked. After requests from the executing officers that lasted

at least five minutes, Appellee eventually opened his bedroom door. Officers

then   searched   Appellee    and   discovered   Xanax   pills   on   his   person.

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Officers also searched Appellee’s bedroom and recovered additional Xanax

pills and cash. Appellee was arrested that day. He was charged with simple

possession, possession with intent to deliver, and possession of drug

paraphernalia.

     On May 22, 2015, Appellee filed an omnibus motion to suppress all the

physical evidence found as a result of the search.   The suppression court

held a hearing on July 13, 2015, at which only Trooper Guido testified.

Thereafter, both Appellee and the Commonwealth filed briefs with the

suppression court.   On August 19, 2015, the suppression court filed an

opinion and order that granted Appellee’s motion to suppress and dismissed

the charges brought against Appellee.   The Commonwealth then filed this

timely appeal.

     The sole issue, as framed by the Commonwealth, is as follows:

     Did the lower 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.

     The standard of review an appellate court applies when considering an

order granting a suppression motion is well established and has been

summarized as follows:

           We begin by noting that where a motion to suppress
           has been filed, the burden is on the Commonwealth
           to establish by a preponderance of the evidence that
           the challenged evidence is admissible. In reviewing
           the ruling of a suppression court, our task is to

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              determine whether the factual findings are supported
              by the record.   If so, we are bound by those
              findings. . . .

       Moreover, if the evidence when so viewed supports the factual
       findings of the suppression court, this Court will reverse only if
       there is an error in the legal conclusions drawn from those
       findings.

Commonwealth v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004)

(citations omitted). Moreover, I must note that our scope of review from a

suppression ruling is limited to the evidentiary record that was created at

the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).1

             With respect to factual findings, we are mindful that it is
       the sole province of the suppression court to weigh the credibility
       of the witnesses. Further, the suppression court judge is entitled
       to believe all, part or none of the evidence presented. However,
       where the factual determinations made by the suppression court
       are not supported by the evidence, we may reject those findings.
____________________________________________


1
    On October 30, 2013, our Supreme Court decided In re L.J., in which the
Court held that our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. L.J., 79
A.3d at 1087. Prior to L.J., this Court routinely held that, when reviewing a
suppression court’s ruling, our scope of review included “the evidence
presented both at the suppression hearing and at trial.” Commonwealth v.
Charleston, 16 A.3d 505, 516 (Pa. Super. 2011) (quoting Commonwealth
v. Chacko, 459 A.2d 311 (Pa. 1983)). L.J. thus narrowed our scope of
review of suppression court rulings to the evidence presented at the
suppression hearing. In this case, Appellee’s suppression hearing was held
after L.J. was decided. Therefore, the rule announced in L.J. is applicable to
the case at bar. See L.J., 79 A.3d at 1089 (stating holding applies to “all
litigation commenced Commonwealth-wide after the filing of this decision”).
I must note that the evidentiary record in this matter does not include any
evidence or evidentiary items subsequent to Appellee’s suppression hearing.
Accordingly, there is no concern that we preclude subsequent evidence of
record from appellate review as required under L.J.



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      Only factual findings which are supported by the record are
      binding upon this court.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted). In addition, questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion.        Commonwealth v.

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

      Further, Pennsylvania Rule of Criminal Procedure 581, which addresses

the suppression of evidence provides, in relevant part, as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

      Both the United States and Pennsylvania Constitutions prohibit

“unreasonable searches and seizures.”          U.S. Const. Amendment IV;

Pennsylvania Const. Art. 1, § 8.

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      individuals from unreasonable searches and seizures, thereby
      ensuring the “right of each individual to be let alone.”
      Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
      854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
      Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

      Also, under both state and federal constitutions, search warrants must

be supported by probable cause.      Commonwealth v. Hoppert, 39 A.3d

358, 361-362 (Pa. Super. 2012). Pennsylvania Rule of Criminal Procedure


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203 addresses the requirements for the issuance of a search warrant and

provides, in pertinent part, as follows:

      Rule 203. Requirements for Issuance

            (B) No search warrant shall issue but upon probable cause
      supported by one or more affidavits sworn to before the issuing
      authority in person or using advanced communication
      technology.   The issuing authority, in determining whether
      probable cause has been established, may not consider any
      evidence outside the affidavits.

                                 * * *

            (D) At any hearing on a motion for the return or
      suppression of evidence, or for suppression of the fruits of
      evidence, obtained pursuant to a search warrant, no evidence
      shall be admissible to establish probable cause other than the
      affidavits provided for in paragraph (B).

Pa.R.Crim.P. 203(B), (D).

      In addition, Pa.R.Crim.P. 205 sets forth the requirements for the

contents of search warrants, and provides the following, in relevant part:

      Rule 205. Contents of Search Warrant

           Each search warrant shall be signed by the issuing
      authority and shall:

                                     * * *

            (2) identify specifically the property to be seized;

           (3) name or describe with particularity the person or
      place to be searched[.]

Pa.R.Crim.P. 205(2), (3) (emphasis added). Furthermore, the comment to

Pa.R.Crim.P. 205 includes the following explanation:




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      Comment: Paragraphs (2) and (3) 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. This may mean, for instance,
      that when an exact description of a particular item is not
      possible, a generic description may suffice. See Commonwealth
      v. Matthews, 446 Pa. 65, 69-74, 285 A.2d 510, 513-14 (1971).

Pa.R.Crim.P. 205 cmt. As our Supreme Court explained in Commonwealth

v. Carlisle, 534 A.2d 469, 472 (Pa. 1987), the determination of whether an

application for a search warrant identified the place to be searched with

sufficient particularity requires a practical, common-sense approach.

      When police search a multi-unit building, this Court has held the

following:

      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. Where the description provided is precise
      enough to enable the officer to ascertain and identify, with
      reasonable effort, the place intended, and where probable cause
      exists to support the search of the area so designated, a warrant
      will not fail for lack of particularity. Moreover, a warrant
      directing a search of more than one living unit is valid
      only if there is probable cause that all are being used for
      the unlawful purposes involved. Finally, the reviewing court
      must make a practical, commonsense decision whether the place
      to be searched has been specified with sufficient particularity.

In the Interest of Wilks, 613 A.2d 577, 579 (Pa. Super. 1992) (citations

omitted) (emphases added). See also Commonwealth v. Copertino, 224

A.2d 228, 230 (Pa. Super. 1966) (stating that “[n]ormally, separate living




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units of a multiple tenant building must be treated as if they were separate

dwelling houses and probable cause must be shown to search each one”).

     Upon review of the certified record it appears to me that this matter is

squarely on point with our decision in Wilks because (a) the affidavit of

probable cause reflects that the         drug transaction that occurred on

February 22, 2015, took place in a bedroom into which Aaron Murray

specifically escorted the CI and Trooper Guido, (b) Trooper Guido testified

that the apartment “was a typical college apartment that I’m used to

executing warrants on, common area, two bedrooms, bathroom, kitchen,”

N.T., 7/13/15, at 26, (c) the search warrant for the apartment specifically

listed “Aaron Murray” as the owner, occupant or possessor of the premises

to be searched, and (d) the police were specifically put on notice during the

execution of the search warrant that the apartment actually contained

multiple bedrooms which were capable of being secured from the common

area and that there was another occupant, i.e., Appellee, locked within a

separate living area of the apartment. Thus, it cannot be said that this was

a single unit household occupied or controlled by a single person, i.e.,

Aaron Murray.

     In an effort to overturn the decision of the suppression court, the

Majority   relies   upon   the   Pennsylvania   Supreme   Court’s   decision   in

Commonwealth v. Waltson, 724 A.2d 289 (Pa. 1998), which I conclude is

not on point. In Waltson, the police responded to a domestic dispute and


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were met by a woman they did not know, and who had never given them

information regarding drugs or drug trafficking. The woman informed them

that Waltson, her boyfriend, was growing marijuana in the basement of their

house.   A search warrant was then issued based upon the girlfriend’s

statement.   The police searched the entire residence and found marijuana

growing in the basement and additional drugs and paraphernalia in other

portions of the house.

     Upon review, the issue in Waltson was specifically framed by our

Supreme Court as follows:

     “whether the search of an entire residence is barred as
     overbroad pursuant to Article 1, Section 8 where the affidavit
     of probable cause for the warrant references only a
     particular room within the residence.”

Waltson, 724 A.2d at 290 (emphases added).         In reaching its ultimate

ruling in Waltson, that the search of the entire single family house was

permissible, our Supreme Court stated, “we conclude that . . . in the

search of a single unit house, these [constitutional privacy] rights are

satisfied where the specificity requirement is met.” Waltson, 724 A.2d at

293 (emphasis added).

     Instantly, upon review of the record I am left to conclude that, unlike

Waltson, the place specified in the search warrant was not a single unit

house, nor was there any evidence that the entire apartment was under the

control of Aaron Murray. Rather, as previously mentioned, the facts show

that the place searched was more akin to a multiple unit dwelling and, as

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evidenced by Appellee being locked in a separate living area, certain

portions of the premises were not under the control of Aaron Murray.

Indeed, the trial court in this case made specific findings that the apartment

at issue was a multi-occupancy apartment. Trial Court Opinion, 8/19/15, at

1, 4.

        Many college students live in multi-occupancy units and have

individualized privacy interests.   Because the affidavit in this case only

established probable cause as to the areas accessed and controlled by

Mr. Murray, and because the police were put on notice that there was

another bedroom occupied by at least one other person, I am of the opinion

that the search was overbroad. Therefore, I respectfully dissent.




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