Com. v. Arndt, R. ( 2019 )

J-S18020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD LEE ARNDT :
:
Appellant : No. 1704 MDA 2018
Appeal from the Judgment of Sentence Entered September 14, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003980-2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 24, 2019
Appellant Ronald Lee Arndt appeals from the judgment of sentence
following a bench trial and convictions for possession with intent to deliver
and possession of drug paraphernalia.1 On appeal, Appellant contends the
trial court erred by denying his motion to suppress because the information in
the search warrant was stale, uncorroborated, unreliable, and hearsay within
hearsay. We affirm.
We set forth the following background, as taken from the suppression
record.2 On June 11, 2017, Detective Joseph Grego applied for a warrant to
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), (32).
2 We recognize that our scope of review is limited to the record available to
the suppression court. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). In this
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search Appellant’s home for “any assets, paraphernalia, or other materials
related to the use or sales of” methamphetamine. Appl. for Search Warrant
and Authorization, 6/11/17 (emphasis added) (unpaginated). In support of
the application, Detective Grego averred the following in his affidavit of
probable cause:
3. That on June 29th, 2015, the Elizabethtown Police Department
forwarded a Drug Task Force information form from a named
citizen (complainant #1) stating that “Phillip Bennett” who lives at
303 N Hanover Street[,] Elizabethtown[,] PA is dealing heroin and
meth. The complainant stated he/she “watches a lot of in and out
traffic and has witnessed drug deals in front of his/her building”.
The complainant labels “[Appellant]” as a suspect and the
“landlord” of 303 N Hanover Street[,] Elizabethtown[,] PA.
Detective Kelly of the Lancaster County Drug Task force was
initially assigned this complaint and is familiar with Phillip Bennett
from an ongoing methamphetamine investigation including Jere
Kenneth Gilgore[,] Jr.
4. That on July 28th, 2015, the Elizabethtown Police Department
forwarded a Drug Task Force information form from a named
citizen (complainant #1) stating that “Phillip Bennett” who lives at
303 North Hanover Street[,] Elizabethtown[,] PA, is always going
to the apartment building across the street and people from the
apartment building are always going to his residence and “seeing
drugs a lot”.
5. That on August 25th, 2015, the Elizabethtown Police
Department forwarded a Drug Task Force information form from
a named citizen (complainant #1) stating that “[Appellant]” who
lives at 303 North Hanover Street[,] Elizabethtown[,] PA has drug
transactions taking place at all times.
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case, however, the trial court held an abbreviated suppression hearing at
which only the warrant was admitted into evidence and the parties requested
time to brief the issues. We have therefore included some excerpts from the
trial for background purposes.
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6. That during the week of March 30th, 2017, Your Affiant spoke
with a Confidential Informant (CI#1). CI#1 related that he/she
has personal knowledge of an individual who is in the business of
selling methamphetamine in Elizabethtown, PA. CI#1 advised
that he/she could controlled [sic] purchases of methamphetamine
from this individual. CI#1 has demonstrated his/her knowledge
of Controlled Substances to specifically include
Methamphetamine, its packaging, pricing, and terminology.
7. That during the week of March 30th, 2017, CI#1 made a
controlled purchase of a quantity of Methamphetamine from an
unknown individual in Elizabethtown[,] PA. This purchase was
made under the direction and control of your Affiant using DTF/DA
Funds. Your Affiant along with Detectives Lombardo, Vance and
Ziegler of the Lancaster County Drug Task Force conducted
surveillance of CI#1 meeting with the unnamed subject, the
unnamed subject then went to the 300 block of North Hanover
Street[,] Elizabethtown[,] PA, the unnamed subject then left the
area of 300 block of North Hanover Street and returned to CI#1.
CI#1 was searched before the controlled purchase with negative
results for contraband. After completing the controlled purchase,
CI#1 met with your Affiant and turned over a quantity of
Methamphetamine. CI#1 was then searched again with negative
results for contraband. Your Affiant performed a field test on a
portion of the methamphetamine and a positive result was
obtained. During the controlled purchase, the unnamed subject
told CI#1 that the methamphetamine was purchased from
“Ronnie”.
8. That on May 30th, 2017, your Affiant conducted surveillance of
303 N Hanover Street[,] Elizabethtown[,] PA. At approximately
1900 hours, your Affiant observed [Appellant] standing on the
porch of 303 N Hanover Street[,] Elizabethtown[,] PA speaking
with an unknown male.
9. That on May 31st, 2017, at 1549 hours, your Affiant observed
[Appellant] leave 303 N Hanover Street[,] Elizabethtown[,] PA[,]
with another male who I recognized to be Jere Kenneth Gilgore[,]
Jr.[,] and get into a silver Dodge Dakota bearing PA registration
ZBS9552 registered to Jere Kenneth Gilgore[,] Jr[.,] and then
leave the area. Gilgore had been a subject of investigation for
methamphetamine sales in the past by Detectives Kelly and
Parduski of the Lancaster County Drug Task Force. Detectives
Kelly and Parduski had obtained two controlled buys for
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methamphetamine from Gilgore’s residence, 45 N Cherry Alley[,]
Elizabethtown[,] PA in October and November of 2015. During
their investigation, they also observed his silver Dodge Dakota
bearing PA registration ZBS9552 parked outside.
10. That on June 7th, 2017[,] at approximately 0305 hours, your
Affiant, along with Detective Cavanaugh of the Lancaster County
Drug Task Force, travelled to 303 N Hanover Street[,]
Elizabethtown[,] PA[,] with the intent of conducting a trash pull.
This would be in an attempt to corroborate the information that
your Affiant has compiled on [Appellant] (DOB: 01/05/1969) and
his residence of 303 N Hanover Street[,] Elizabethtown[,] PA.
Upon my arrival, I observed a black in color garbage can with
several black bags of garbage inside or it. This trash can was on
the edge of the sidewalk closest to the road, in front of 303 N
Hanover Street[,] Elizabethtown[,] PA[,] and clearly placed for
pick-up. Your Affiant then conducted a trash pull and seized three
garbage bags filled with trash. Your Affiant then conducted a
search of the garbage and located the following items: (1) small
empty clear sandwich bag containing residue that tested positive
for methamphetamine on 06/07/20 at 1249 hours, (1) small clear
zip-loc bag containing residue that [tested] positive for
methamphetamine on 06/07/2017 at 1310 hours, (1) clear zip-
loc baggie missing the entire bottom half on the bag, (1) piece of
PPL [power utility] documentation with the name “[Appellant]”
and the address of “303 N. Hanover St.”, and methamphetamine
pipe with residue. Additionally, while conducting the trash pull,
your Affiant observed a silver motorcycle bearing PA registration
Y2274 parked in front of the trash can, on the street, in front of
303 N Hanover Street[,] Elizabethtown[,] PA. This motorcycle and
registration is in the name of “[Appellant]”. Your Affiant took
pictures of said items of evidence and are hereby attached to this
application.
11. That based on your Affiant’s training and experience utilizing
clear plastic bags is a common tactic that drug dealers use to
package and distribute narcotics (including but not limited to
methamphetamine). This is corroborated by the (1) sandwich
baggie containing methamphetamine residue and the (1) small
clear plastic bag containing methamphetamine residue located in
the trash pull.
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12. That within the last 48 hours, your Affiant received information
from CI#1 that [Appellant] had additional quan[t]ities or
methamphetamine for sale.
Aff. of Probable Cause, 6/11/17, at ¶¶ 3-12.
Based on the affidavit, the magisterial district judge authorized the
search warrant of Appellant’s home, which occurred on June 12, 2017. The
police seized, among other items, 46 grams of methamphetamine, a blue
notebook listing Appellant’s drug sales, drug paraphernalia, digital scale, small
plastic baggies, and $1,280. Compl., 6/12/17. The police arrested and
charged Appellant.
On September 12, 2017, Appellant filed a motion to suppress the
evidence recovered from Appellant’s home. The trial court held a brief hearing
on February 2, 2018, at the conclusion of which the trial court ordered the
parties to file memoranda of law addressing the suppression motion. On
February 23, 2018, Appellant filed a memorandum of law contending that the
information in the affidavit of probable cause “was stale, nonspecific, lacked
independent police corroboration of information given by unreliable and
unproven informants, and failed to provide a valid and substantiated nexus to
believe there would be” drugs in Appellant’s home. Appellant’s Mem. in Supp.
of Suppression, 2/23/18, at 7. According to the docket, the trial court denied
the suppression motion on April 17, 2018, but the order was not included in
the certified record transmitted to this Court.
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The parties proceeded to a bench trial, at which the parties agreed to
stipulate to certain facts:
[Commonwealth]: The first witness would be Detective Joseph
Grego from DTF. All the detectives are from the Lancaster County
Drug Task Force. Detective Grego would testify the search
warrant was approved and signed by MDJ Hartman on June 11th
of 2017. There was a briefing at the office of DTF on June 12,
2017, approximately 9 a.m. The search warrant was executed on
June 12 of 2017. They knocked and announced. They breached
the door. There were four people inside. The service portion of
the search warrant was read, and the Miranda rights were read
off of the little card that they carry with them. The search began.
The role of Detective Grego was to collect and log the evidence
that the other detectives found. That evidence was put in the
evidence locker and, in fact, it’s my understanding that defense is
stipulating to chain of custody for all the exhibits.
[Appellant’s trial counsel agreed to stipulate].
[Commonwealth]: Detective Grego and Detective [Anthony]
Lombardo read the Miranda warnings off of the long form, the
eight-and-a-half-by-11 sheet, to [Appellant] once he was taken
back to the station. [Appellant] made statements of, it’s my
stuff.[3] He was selling to make money. He was having trouble
with employment. He buys the methamphetamine out of state
and he gets more or less two ounces of meth and sells it about an
ounce a month. Most of the money in the safe is from the drug
sales.
N.T. Trial, 6/7/18, at 4-5. Appellant testified that the drugs were for his
personal use. Id. at 12.
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3 Appellant had initially moved to suppress the statements, but withdrew the
claim at the suppression hearing. N.T. Suppression, 2/2/18, at 2.
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Appellant was convicted, and on September 14, 2018, the trial court
sentenced Appellant to fifteen months to four years’ imprisonment. Appellant
timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issue:
Did the trial court err in refusing to suppress evidence where the
warrant issued was based on information which was stale,
nonspecific, lacked independent corroboration of an unreliable
third-party informant, and failed to provide a nexus to believe
there would be drugs found at [Appellant’s] home when the
warrant was executed?
Appellant’s Brief at 5.
Appellant raises several challenges to the search warrant. First, he
contends that the information set forth in the third, fourth, and fifth
paragraphs of the affidavit of probable cause is stale. Id. at 14. Second,
Appellant argues the police failed to corroborate the stale information and
establish the reliability of the named person and confidential informant. Id.
at 15. Appellant emphasizes that the confidential information did not identify
the seller of the drugs or any details of the alleged sale. Id. at 16. Moreover,
Appellant claims, the information was double hearsay. Id.
Appellant also asserts that the information in the eighth and ninth
paragraphs of the affidavit, in which a police officer observed Appellant with a
person of interest eighteen months earlier, was also invalid. Id. at 17.
Specifically, he alleges that the police officer failed to substantiate Appellant’s
identification and that being seen with a person of interest eighteen months
ago did not establish criminal behavior. Id.
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Appellant contends the evidence seized from the trash pull was
insufficient to establish probable cause. Id. at 17-18. In particular, Appellant
concedes that drug paraphernalia, as well as evidence linking Appellant to the
address in question, was in the trash. Id. Appellant, however, suggests that
the evidence only establishes that he lived at the address and that “someone
at the residence may have smoked methamphetamine.” Id. at 18. Appellant
insists, nonetheless, that the affidavit did not establish probable cause that
methamphetamine would be found.4 Id. at 18.
We state the standard of review:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court's legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
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4 We note that Appellant is not challenging the constitutionality of the trash
pull itself, but whether the evidence retrieved from Appellant’s trash
established probable cause. See generally Commonwealth v. James, 69
A.3d 180, 182 (Pa. 2013) (citing California v. Greenwood, 486 U.S. 35, 37
(1988), for proposition that the “Fourth Amendment does not prohibit
warrantless search and seizure of garbage left for collection outside curtilage
of home”).
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Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (citation
omitted).
In evaluating an affidavit of probable cause,
[t]he task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all 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. And the duty of a reviewing court is
simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed.
Commonwealth v. Manuel, 194 A.3d 1076, 1083 (Pa. Super. 2018) (en
banc) (citation, ellipses, brackets, and quotation marks omitted). “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.” Commonwealth v. Leed, 186 A.3d 405, 413 (Pa.
2018) (citations and quotation marks omitted).
In Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010), the
Pennsylvania Supreme Court explained that a “grudging or negative attitude
by reviewing courts towards warrants is inconsistent with the Fourth
Amendment’s strong preference for searches conducted pursuant to a
warrant; courts should not invalidate warrants by interpreting affidavits in a
hypertechnical, rather than a commonsense, manner.” Jones, 988 A.2d at
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655-56 (quotation marks and citation omitted). “Reasonable minds,” the
Jones Court observed, “frequently may differ on the question [of] whether a
particular affidavit establishes probable cause, and we have thus concluded
that the preference for warrants is most appropriately effectuated by
according ‘great deference’ to a magistrate’s determination.” Id. at 656
(quotation marks, citation, and footnote omitted).
Instantly, the evidence retrieved from the garbage outside of Appellant’s
residence included plastic bags containing methamphetamine residue,
methamphetamine pipe, and mail from a utility company identifying Appellant
as a resident. See Aff. of Probable Cause at ¶ 10. We agree with the trial
court that such evidence tended to establish probable cause that Appellant
was using methamphetamine. See generally Leed, 186 A.3d at 413; Jones,
988 A.2d at 655-56; Manuel, 194 A.3d at 1083. Because the search warrant
for use or sale of methamphetamine was based on evidence retrieved from a
trash pull, the legality of which Appellant did not challenge, the trial court did
not err in deferring to the magistrate district judge’s determination and
denying Appellant’s suppression motion. See Shreffler, 201 A.3d at 763.
We therefore need not address Appellant’s other arguments attacking the
validity of the other information in the affidavit of probable cause.5 For these
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5 We agree with the trial court, however, that much of the information in the
affidavit of probable cause was stale. Cf. Commonwealth v. Jacoby, 170
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reasons, because the trial court did not err in denying Appellant’s motion to
suppress, we affirm the judgment of sentence
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/24/2019
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A.3d 1065, 1085 (Pa. 2017) (holding that although the search warrant was
flawed, ultimately, the error was harmless).
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