Com. v. Smalls, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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