Com. v. Thomas, T. ( 2015 )

J-S57044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY M. THOMAS
Appellant No. 2902 EDA 2014
Appeal from the Judgment of Sentence September 25, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0002034-2014
BEFORE: MUNDY, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J. FILED DECEMBER 10, 2015
Appellant, Troy M. Thomas, appeals from the judgment of sentence
entered in the Court of Common Pleas of Bucks County (trial court) on
September 25, 2014. Upon review, we affirm.
On February 26, 2014, Appellant was charged with possession with
intent to deliver heroin, possession with intent to deliver cocaine, persons
not to possess firearms, use/possession of drug paraphernalia, possession of
a controlled substance, possession of a small amount of marijuana, and
receiving stolen property.1 On June 2, 2014, trial counsel filed a pretrial
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1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A.
§ 6105(a), 35 P.S. § 780-113(a)(32), 35 P.S. § 780-113(a)(16), 35 P.S.
§ 780-113(a)(31)(i), and 18 Pa.C.S.A. § 3925(a), respectively.
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omnibus motion seeking suppression of evidence. The trial court held a
suppression hearing on June 16, 2014.
At the hearing, Appellant’s counsel asked the trial court to conduct
only a four corners analysis of the search warrants,2 explaining that all other
claims in the omnibus pre-trial motion were withdrawn. Counsel presented
argument against a finding of probable cause for issuance of the warrant and
offered case law in support of that position. In particular, counsel
challenged, inter alia, the initial source of information, i.e., an unnamed
individual known to the affiants. Notes of Testimony (N.T.), 6/16/14, at 5-
10. Counsel argued that the investigating officers should have set up
surveillance rather than take “unreliable” evidence to a magistrate. Id. at 9.
The Commonwealth countered Appellant’s arguments, explaining that while
the initial contact with police was made by an unnamed individual, the
officers’ investigation led to evidence corroborating the information provided
by that individual. Id. at 10-12. The trial court agreed with the
Commonwealth’s position, announcing:
I find there is probable cause. I agree that a person who is not
named as a person who provides an [anonymous] tip is not
sufficient probable cause. I also find that this individual who was
identified was known to the police, is not technically anonymous
and is more in the nature of a confidential informant. The
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2
Although Appellant refers to the instant search warrants and affidavits of
probable cause in the singular, we acknowledge that there were separate
affidavits of probable cause and search warrants issued for the vehicle
Appellant was driving and for room 14 of the Radford Motel.
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identity has not been revealed although the police certainly know
who that person is.
The confidential informant and the individual that calls into a
police department who is known to the police department has to
be established to be reliable if the person is not identified, and in
this particular case you can do that a number of different ways.
You can do it through . . . corroboration, and I find there is more
than sufficient corroboration with the initial information provided
by that informant including a number of buyers who corroborate
the location, the room, [Appellant as seller], that they were
there to purchase drugs. They are independent of each other.
[Appellant] was, in fact, present. [Appellant] was, in fact
connected through physical evidence to [the motel room], and
he had drugs on him.
Id. at 13-14.
Following the suppression hearing, Appellant waived his right to a jury
trial. A waiver trial was held during which the Commonwealth offered,
without objection, an exhibit that included a lab report identifying the drugs
and the weapon discovered in the safe in a Bensalem motel room as well as
the record of an interview in which Appellant admitted he planned to sell the
drugs located in the safe and that he owned the gun found there. Id. at 20-
24. Appellant did not present any evidence.
The trial court found Appellant guilty of all charges. On September 25,
2014, Appellant was sentenced to consecutive terms of incarceration of two
to four years on each count of possession with intent to deliver and five to
ten years for persons not to possess firearms for an aggregate sentence of
nine to eighteen years. Trial Court Opinion (T.C.O.), 2/18/15, at 1.
Appellant timely appealed.
On appeal, Appellant raises one issue for our review:
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Did the trial court err in failing to suppress the “fruits” of a
search warrant which was conducted without consent, without
probable cause, and in violation of the rights secured to him by
the fourth and fourteenth amendments of the United States
Constitution and the enhanced protections under article I, § 8 of
the Pennsylvania Constitution?
Appellant’s Brief at 4.
Initially we note “[o]ur review of a suppression court’s ruling is limited.
Where the record supports the suppression court’s factual findings, we will
reverse only if the court’s legal conclusions based upon these facts are in
error.” Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)
(citations omitted).
The role of both the reviewing court and the appellate court is
confined to determining whether there is substantial evidence in
the record supporting the decision to issue the warrant. We
must limit our inquiry to the information within the four corners
of the affidavit submitted in support of probable cause when
determining whether the warrant was issued upon probable
cause.
Commonwealth v. Burgos, 64 A.3d 641, 656 (Pa. Super. 2013) (citations
and internal quotations omitted). “[S]ince no factual question is involved in
a four corners analysis of the sufficiency of a warrant affidavit, the issue is
one of law as to which our review is plenary.” Coleman, 830 A.2d at 560.
In its Pa.R.A.P. 1925(a) opinion, the trial court aptly summarized
information contained in the affidavits of probable cause as follows:
On February 26, 2014, Bensalem Township Police filed
application[s] for search warrants for room 14 of the Radford
Motel and the 1998 Buick bearing stolen license plate PA/ELA-
5190 seized by police at the Radford Motel for evidence related
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to the sale and distribution of controlled substances. After
outlining the extensive training, background and experience of
the affiants in conducting narcotics investigations, the probable
cause affidavit set forth the following facts. The Radford Motel is
located at 4000 Bristol Pike in Bensalem, Bucks County. On
February 24, 2014, Sergeant Robert Bugsch of the Bensalem
Police received a telephone call from an individual (“the caller”)
who was known to the Sergeant and who lives in the area of the
Radford Motel. The caller advised the Sergeant that a black
male staying in room 14 of the motel is selling drugs and has
been doing so for weeks. The caller reported that there is
constant traffic in and out of room 14 and that the caller found
small glassine baggies containing residue in the street near room
14. The affiants asserted that the bags found are consistent
with bags used to package cocaine and/or crack cocaine and that
the activity described is consistent with drug traffic. On
February 26, 2014, the affiants proceeded to the Radford Motel
where they observed a vehicle parked near room 14. The
vehicle was occupied by a male (“buyer number one”) and a
female (“buyer number two”) who were identified by valid
driver’s licenses. Both buyers admitted that they were there to
buy crack cocaine. Buyer number one told police that “Black”
was staying in room 14 and that he had purchased crack cocaine
from “Black” inside room 14 several times in the last week. He
reported that [“Black”] was not in the room at that time but that
“Black” had told him he was only five minutes away and would
be there shortly. Buyer number one stated that “Black” drove a
silver sedan. While the police were still on scene, [Appellant]
arrived driving a silver sedan bearing a stolen license plate,
placed in NCIC by Bristol Township Police that same date. Buyer
number one and buyer number two identified [Appellant] as the
person they were meeting to buy crack cocaine [from] and as
the person from whom they had previously purchased drugs.
During his encounter with police, [Appellant] received a text
message on his smartphone from “Michelle Amy’s homie”
(“buyer number three”) asking if she could “stop by.” Shortly
thereafter a third vehicle, containing two occupants, arrived.
When the occupants observed police, they backed up and began
to leave. When the vehicle stopped, police determined that
buyer number three was one of the occupants. Buyer number
three told police that she was going to room 14 to buy crack
cocaine from “Black” and that she had been buying crack cocaine
from “Black” for a few weeks. Buyer number three was found to
be in possession of a tube that, in the expert opinion of the
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affiants, is commonly used to smoke crack cocaine. [Appellant]
was found to be in physical possession of six bags of heroin, two
bags of marijuana, a key to room 14, $462.00 in cash bound in
small black rubber bands commonly used, in the expert opinion
of the affiants, to package heroin, a cell phone, and two keys for
a safe commonly used by drug dealers, in the expert opinion of
the affiants, to protect/conceal product and money. Once police
determined that no one was inside room 14, the room was
secured. The affidavits of probable cause utilized to support
both warrants concluded that, in the expert opinion of the
affiants, individuals involved in the sale of drugs to multiple
buyers maintain possession of records, product, proceeds and
other materials relating to the purchase and distribution of
controlled substances.
T.C.O., 2/18/15, at 2-3.
Appellant argues that the search warrants issued for room 14 of the
Radford Motel and for the vehicle that Appellant was driving were not based
on probable cause and, therefore, the trial court should have suppressed the
evidence found pursuant to those search warrants. Specifically, Appellant
claims probable cause did not exist because:
(1) [there was] no corroboration of the ongoing drug trafficking
by an unknown source; (2) [there was] no confirmation or even
attempted corroboration whether or not the alleged
paraphernalia existed in the streets; (3) the targeted room was
registered to a black woman (not a man); (4) [police] relied on
unsubstantiated “phantom” stolen car/registration; (5) [the
warrants] contained inconsistencies in the targeted room
between room 14 and 214; (6) the information occur[red] two
days earlier; (7) [the affidavits of probable cause] lacked facts
showing the timing of the initiation of the observations on
February 26th; and (8) [police] omitted potential bias and
favoritism of the unknown witnesses allegedly engaging in their
own criminal activity.
Appellant’s Brief at 15.
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In its brief, the Commonwealth refutes these claims. The
Commonwealth recounts that the police observations on February 26 – the
date the search warrants were applied for and issued – corroborate the
information that came from the confidential informant on February 24.
Additionally, “police found at least three people, possibly four, who were at
the Radford Motel to buy drugs at room 14. These individuals were all
identified in the search warrants.” Commonwealth Brief at 14. Further, two
of these individuals identified Appellant as the person they had purchased
drugs from earlier that day. Finally, the affidavits of probable cause
acknowledged that at least one of the individuals had prior crimen falsi
arrests. Id.
The Commonwealth acknowledges that the affidavits of probable cause
reflect that room 14 at the Radford Motel was rented not to Appellant, but
rather to a woman whose existence could not be confirmed. However,
despite any alleged inconsistencies in the room numbers mentioned in the
affidavits or the identity of the person associated with room 14, the
confidential informant and the three identified individuals consistently
referred to room 14, there were no other occupants in room 14, and
Appellant was found in possession of the key to room 14. Id. at 14-15.
As noted above, if the record supports the court’s factual findings, we
will reverse its ruling only if the court’s legal conclusions based on those
facts are in error. Our review of the affidavits of probable cause leads us to
conclude that the trial court’s factual findings are supported by the record.
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Therefore, we must consider whether the court committed an error of law in
reaching legal conclusions based on those facts. Absent error, we must
affirm.
In Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010), our Supreme
Court explained:
Article I, Section 8 and the Fourth Amendment each require that
search warrants be supported by probable cause. The linch-pin
that has been developed to determine whether it is appropriate
to issue a search warrant is the test of probable cause. Probable
cause exists where the facts and circumstances within the
affiant’s knowledge and of which he has reasonably trustworthy
information are sufficient in themselves to warrant a man of
reasonable caution in the belief that a search should be
conducted.
In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d
527 (1983), the United States Supreme Court established the
“totality of the circumstances” test for determining whether a
request for a search warrant under the Fourth Amendment is
supported by probable cause. In Commonwealth v. Gray, 509
Pa. 476, 503 A.2d 921 (1986), this Court adopted the totality of
the circumstances test for purposes of making and reviewing
probable cause determinations under Article I, Section 8. In
describing this test, we stated:
Pursuant to the “totality of the circumstances” test set
forth by the United States Supreme Court in Gates, the
task of an issuing authority is simply to make a practical,
common-sense decision whether, given all of the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. . . . It is the duty of a court reviewing an
issuing authority’s probable cause determination to ensure
that the magistrate had a substantial basis for concluding
that probable cause existed. In so doing, the reviewing
court must accord deference to the issuing authority’s
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probable cause determination, and must view the
information offered to establish probable cause in a
common-sense, non-technical manner.
***
[Further,] a reviewing court [is] not to conduct a de novo
review of the issuing authority's probable cause
determination, but [is] simply to determine whether or not
there is substantial evidence in the record supporting the
decision to issue the warrant.
Id. at 655-56 (some citations and quotations omitted). Additionally,
[I]nformation received from confidential informants may
properly form the basis of a probable cause determination. A
determination of probable cause based upon information
received from a confidential informant depends upon the
informant’s reliability and basis of knowledge viewed in a
common sense, non-technical manner. An informant’s tip may
constitute probable cause where police independently
corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where the
informant himself participated in the criminal activity.
Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (internal citations
omitted).
Based on its review of the affidavits of probable cause, the trial court
concluded:
Contrary to [Appellant’s] assertion, there was clearly probable
cause to support the issuance of the search warrants for room
14 of the Radford Motel and for the vehicle that Appellant was
driving. The information regarding traffic to and from room 14
was observed by police when they arrived at the motel. Three
buyers who arrived at room 14 on that date confirmed all the
details provided by the caller who initially reported drug activity,
i.e. that a black male was dealing drugs for an extended period
of time in room 14 of the Radford Motel. Buyers number one
and three, who arrived separately, corroborated each other
concerning the identity of the dealer and the controlled
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substances being sold. Both indicated that they had made
purchases of crack cocaine from “Black.” [Appellant’s] arrival
and the items found on his person corroborated all of the
information provided by the caller and the three buyers who
spoke to the affiants at the scene. Buyer number one’s
statement that “Black” was expected and that he would be
driving a silver sedan was confirmed by the arrival of [Appellant]
in a silver Buick. Buyer number three texted her drug dealer,
“Black.” That text was received on [Appellant’s] cell phone while
he was speaking to police outside room 14. Buyers number one
and two identified [Appellant] as “Black,” the individual from
whom they had been buying and planned to buy drugs from that
day. When he arrived at the Radford Motel, [Appellant] had six
bags of heroin, two bags of marijuana, $462.00 in cash bound in
small black rubber bands commonly used, in the expert opinion
of the affiants, to package heroin, a cell phone, a key to room
14, and two keys for a safe commonly used by drug dealers, in
the expert opinion of the affiants, to protect/conceal product and
money. This information clearly sets forth probable cause to
believe that motel room 14 and [Appellant’s] vehicle were
actively being used to facilit[ate] drug transactions and that
evidence of that activity would be found in those locations.
Therefore, all of [the] items seized pursuant to those search
warrants and all evidence obtained as a result of the seizure of
those items were admissible at trial.
T.C.O., 2/18/15, at 4-5.
We find no error of law in the trial court’s denial of Appellant’s
suppression motion. We agree with the trial court that, based on the four
corners of the affidavits, there was probable cause to issue the warrants for
room 14 of the Radford Motel and for the vehicle Appellant was driving.
Finding no error of law in the trial court’s conclusion, we affirm Appellant’s
judgment of sentence.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2015
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