Com. v. Reese, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRUCE M. REESE
Appellant No. 52 EDA 2013
Appeal from the Judgment of Sentence of November 20, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0013539-2011
BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.
CONCURRING AND DISSENTING MEMORANDUM BY WECHT, J.:FILED JUNE 23, 2015
Among the claims raised by Bruce Reese in this case is his contention
that the search warrant that was executed on his residence was not
supported by probable cause because the information contained within the
four corners of the affidavit did not establish a factual nexus between the
crime committed on the street and his residence. Today’s learned Majority
concludes that Reese has waived this claim because, inter alia, he
abandoned that claim in his brief to the initial three-judge panel of this
Court. See Maj. Mem. at 6-9. I have reviewed that brief, and I agree with
the Majority that Reese has waived this claim.
That determination should end our review of that claim. The Majority
nonetheless elects to address the merits of the claim, even though it
concluded that Reese had not preserved that issue for our review.
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Ultimately, the Majority concludes that, had the issue been preserved, Reese
still would not have been entitled to relief. The Majority’s insistence on
reviewing the waived claim compels me to dissent from, and to reject on the
merits, that alternative discussion.
The relevant facts of this case are relatively few in number. Reese and
another man robbed four men at gunpoint on a West Philadelphia Street.
Reese wielded the gun during the robbery. Reese was identified by at least
one person on the scene. The three other victims identified Reese as the
perpetrator from a photo array. Two days after the robbery occurred, police
obtained and executed a search warrant on Reese’s residence, which was
not the location where the robbery had occurred. During the search, police
found, inter alia, a black handgun, which turned out not to be a real firearm.
In a pretrial suppression motion, Reese sought to suppress the
evidence recovered during the execution of the search warrant. At the
hearing on the motion, Reese argued that the warrant was not supported by
adequate probable cause because the police did not establish a factual nexus
between the crime committed on the street and his residence. The trial
court denied the motion. On direct appeal, a panel of this Court reversed
the trial court’s suppression order. We granted en banc review. As noted
earlier, the present Majority, after finding the issue waived, explains that the
warrant in fact was supported by probable cause. I disagree with that latter
conclusion.
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The legal standards governing our review of this issue are well-
established:
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.
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).
Where . . . the appeal of the determination of the suppression
court turns on allegations of legal error, 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.” Commonwealth v. Mistler, 912 A.2d
1265, 1269 (Pa. 2006) (quoting Commonwealth v. Nester,
709 A.2d 879, 881 (Pa. 1998)). Thus, the conclusions of law of
the courts below are subject to our plenary review.
* * *
Article I, Section 8 [of the Pennsylvania Constitution] and the
Fourth Amendment [to the United States Constitution] 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.” Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.
1991) (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191
(Pa. 1986)). “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.
Thomas, 292 A.2d 352, 357 (Pa. 1972).
In Illinois v. Gates, 462 U.S. 213 (1983), the United States
Supreme Court established the “totality of the circumstances”
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test for determining whether a request for a search warrant
under the Fourth Amendment is supported by probable cause.
In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986), [the
Pennsylvania Supreme 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
who supply 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 common-sense, non-
technical manner.
* * *
Commonwealth v. Torres, 764 A.2d 532, 537-38 (Pa. 2001)
(emphasis added).
Commonwealth v. Jones, 988 A.2d 649, 654-55 (Pa. 2010) (internal
citations modified).
Our precedents require the Commonwealth to establish probable cause
not only for the person suspected of criminal activity, but also for the
premises to be searched:
Probable cause to believe that a man has committed a crime on
the street does not necessarily give rise to probable cause to
search his home. . . . [A]n allegation based on an assumption or
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supposition not supported by the facts is insufficient to support
(an inference of) criminal activity in a premises, in spite of the
fact that there are plenty of allegations alleged to relate to
criminal activity of the individual who is alleged to have lived in
the premises.
Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975); see
Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 1985) (“[T]he
lack of a substantial nexus between the street crime and the premises to
be searched renders the warrant facially invalid.” (emphasis added)).
Additionally, a magistrate’s determination of probable cause “must be based
[up]on facts described within the four corners of the supporting affidavit.”
Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing
Commonwealth v. Smith, 784 A.2d 182, 184 (Pa. Super. 2001)).
The November 14, 2011 affidavit of probable cause in this case
primarily recites the events of the robbery and describes the complainants’
respective identifications of Reese. There is only one paragraph discussing
the premises to be searched, which reads as follows:
[Reese] has [eight] prior arrest[s] in Philadelphia and list[s] 413
N Edgewood for [six] of the arrest[s]. While being interviewed .
. . [Harrison] informed [Detective] Mullen that during the
afternoon hours of 11/13/11 he encountered the cousin of
[Reese], a male he knows as Kyle Bentley, outside of 5700
Belmar. [Harrison] stated [that Bentley] informed him that
[Reese] is residing in West Philly. The address of 413 N
Edgewood is in the West Philadelphia area. On 4/27/11[, Reese]
was released from prison. The prison release information list[s
Reese’s] address as 1413 N Edgewood. This address listing
appears to be a typographical error. There are no connections
for [Reese] to 1413 N Edgewood at all.
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Continuation of Probable Cause for Search Warrant #161856, 11/14/2011,
at 1. Stated simply, there is no information within the “four corners” of the
affidavit of probable cause establishing any “nexus” between Reese’s
address and the instant robbery. Way, surpa. There are ample facts in the
affidavit to establish both Reese’s identity and that Reese resides at 413
North Edgewood Street. However, the affidavit offers no factual basis for
concluding that Reese’s putative residence was connected to this robbery in
any way. Although the affidavit offered significant factual bases for
concluding that Reese was a perpetrator, “[p]robable cause to believe that a
man has committed a crime does not necessarily give rise to probable cause
to search his home.” Way, 492 A.2d at 1154.
This Court’s reasoning in both Kline and Way is highly instructive.1 In
Kline, the police obtained a search warrant for an apartment after
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1
Subsequent decisions have distinguished somewhat our holding in
Kline and, by extension, Way. Specifically, this Court has enumerated
several types of evidence that are sufficient to establish the “substantial
nexus” between the place to be searched and the evidence to be seized.
See Commonwealth v. Davis, 595 A.2d 1216, 1220-22 (Pa. Super. 1991)
(holding that confidential informant’s observation of a defendant coming and
going from a specific house between three different narcotics’ sales
established “probable cause to believe that the objects sought . . . would be
found in [the defendant’s] home.”); Commonwealth v. Macolino, 485
A.2d 1134, 1136-38 (Pa. Super. 1984) (holding that police established
probable cause to search a home, when the affidavit of probable cause
contained information from wiretapped conversations emanating from the
house discussing narcotics trafficking, and police surveillance of the
property, wherein the defendant was observed coming and going from that
house while meeting with a known narcotics supplier); Commonwealth v.
(Footnote Continued Next Page)
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eyewitness complainants identified the defendant as a drug dealer and
indicated that the defendant lived in that particular apartment. Specifically,
three different informants stated that they had purchased drugs from the
defendant in the preceding week. Although the complainants stated that the
defendant kept the drugs that he sold in his apartment, there was no factual
basis in the affidavit to support that claim:
[The suppression court] suppressed the evidence seized
pursuant to the warrant because [the suppression court]
concluded that although the affidavit contained facts sufficient to
establish that [the defendant] was indeed dealing in drugs and
lived in the apartment described, it did not contain facts
sufficient to establish the basis [up]on which the several
informants . . . had concluded that [the defendant] had gone to
his apartment to get the drugs.
Kline, 335 A.2d at 362-63. On appeal, this Court upheld the suppression
court’s ruling, stating that assumptions regarding the premises to be
searched are insufficient to establish probable cause:
_______________________
(Footnote Continued)
Frye, 363 A.2d 1201, 1204 (Pa. Super. 1976) (holding that a defendant’s
admission may form the basis for establishing probable cause to search a
specific locale, stating that “the nexus between the evidence to be seized
and the place to be searched was provided by Frye’s admission that he was
conducting at least part of his unlawful operations from his home.”).
I read these cases as standing for the general proposition that, while the
Commonwealth must establish a nexus between the place to be searched
and the items to be seized, that burden is not meant to be harshly
interpreted. However, the central holding of Kline and Way – that mere
evidence of a suspect’s criminal activity and the location of his residence
does not establish probable cause to search that residence – remains in
force.
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Here, as far as appears from the affidavit, none of the
informants said where the [drugs were.] The [informants]
apparently concluded that [the drugs were] in [the defendant’s]
apartment. However, an affidavit must set forth how
information leading to such a conclusion was obtained.
Commonwealth v. Ambers, 310 A.2d 347, 350 (Pa. Super.
1973); Commonwealth v. Soychak, 289 A.2d 119, 124 (Pa.
Super. 1972). There is no indication of where the transaction
took place, how long it took, how long [the defendant] was
gone, or what led the [informants] to conclude that [the
defendant] had gone to his apartment. The information from the
confidential informants does not corroborate their conclusion
that [the defendant] kept drugs in his apartment, even though it
does tend to establish that [the defendant] was a drug dealer.
Id. at 364 (internal citations modified). Thus, the mere fact that an affidavit
of probable cause tends to establish the criminal activity of a defendant, and
the location of his home, does not provide probable cause to support the
issuance of a search warrant for that home.
In Way, this Court relied upon Kline to suppress evidence seized
pursuant to a search warrant in another narcotics case:
The facts fairly summarized are that the informant arranged a
drug transaction by phone. The alleged transaction occurred in a
blue van along a country road. After the alleged transaction,
police followed the blue van to a driveway of a property at the
corner of Douglas Dr. and Glendale Rd. The informant identified
appellant as the driver of the blue van. A police source told the
affiant that appellant lived at the intersection of Douglas Dr. and
Glendale Rd.
Way, 492 A.2d at 1154. The trial court concluded that the search warrant
was supported by probable cause. On appeal, this Court reversed,
concluding that, “within the four corners of the affidavit, we fail to find
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sufficient facts to permit an issuing authority reasonably to conclude that
there was contraband in the premises to be searched.” Id.
Turning to the instant case, examining the totality of the
circumstances, and considering only the evidence adduced by the
Commonwealth and the uncontradicted evidence of the defense, there are
no factual averments in the affidavit that establish any “nexus” between
Reese’s home and the instant crime. Within its four corners, the affidavit
establishes only probable cause to believe that Reese committed the robbery
and lived at the subject residence. Consequently, Kline and Way are
analogous to the present case: “[T]he lack of a substantial nexus between
the street crime and the premises to be searched renders the warrant
facially invalid.” Way, 492 A.2d at 1154; see Kline, 335 A.2d at 364.
Other than a lone citation to Kline for establishing a general principle
of law, the Majority pays no attention to the details of Kline or Way, or to
the principle that emerges from those binding cases: that identity of the
perpetrator and knowledge of his residence does not amount to probable
cause to support a warrant to search a suspect’s residence. The police must
set forth facts in the affidavit to establish a nexus between the crime and the
residence. Here, as in those cases, the information contained in the affidavit
of probable cause establishes only identity and the location of Reese’s
purported residence. Per Kline and Way, this is simply insufficient to
establish probable cause.
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The Majority pays lip service to the nexus requirement, but then skims
through that essential inquiry by relying upon the fact that the police
requested permission to search for, among other things, a gun, and upon
the speculative assumption that guns are items that typically are kept in
one’s home. See Maj. Mem. at 14. The Majority rests its conclusion on a
single case: Commonwealth v. Hutchinson, 434 A.2d 740 (Pa. Super.
1981). However, Hutchinson is too imprecise to be considered controlling
in this case.
On July 30, 1976, Hutchinson robbed four people in front of a medical
center. Id. at 742. At the time of the robbery, Hutchinson was wearing a
blue checked shirt and wielded a firearm. Two of the victims identified
Hutchinson from a photograph. At an unknown time, police obtained and
executed a search warrant on Hutchinson’s home, which resulted in the
recovery of a blue checked shirt and a .22 caliber pellet gun. Id.
Hutchinson challenged the constitutionality of the search warrant,
alleging that the warrant was not supported by adequate probable cause due
to the police’s failure to aver any facts to establish that evidence of the
robbery in front of the medical center would be found inside his home. Id.
at 742-43. This Court disagreed, noting that “the items seized, a shirt and a
gun, were each of a type reasonably likely to be found in the perpetrator’s
home, especially given the short period of time between the
commission of the crimes and the application for the search
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warrant.” Id. at 743 (citing United States v. Richard, 535 F.2d 246 (3d
Cir. 1976)) (emphasis added). Conspicuously absent from the Hutchinson
opinion is any indication as how much time had passed between the crime
and the application for the warrant, aside from the vague declaration that a
“short period of time” had elapsed.
The Majority readily acknowledges that Hutchinson does not
elaborate in any way on how much time had elapsed, or what constitutes a
short period of time. See Maj. Mem. at 13. Nonetheless, the Majority
concludes that the two days that elapsed between the robbery and the
execution of the warrant in the case sub judice falls within the “short period
of time” window. In other words, despite not knowing what constitutes a
short period, the Majority determines that what happened in this case falls
within that window, a curious conclusion to say the least. Hutchinson does
not define the parameters of the inquiry, yet the Majority finds that this case
falls within those parameters. It is for this reason that I would not apply
Hutchinson to this case. It simply is too imprecise in its reasoning to
provide useful guidance to other cases, including this one.
Moreover, Hutchinson and the Majority’s application of Hutchinson
raise more questions than are answered. What if the time period between
the crime and the warrant in Hutchinson was only eight hours? If the
Hutchinson Court believed that eight hours was a “short period of time,”
would it feel the same about two days? Where lies the outer boundary of a
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“short period of time?” Three days? A week? Hutchinson is too vague to
allow its application to this case with any degree of reliability or certainty,
and certainly too vague to hold that it absolutely controls this case. I would
rely upon the more precedentially sound and secure footing of Kline and
Way, and would hold that identification of a suspect and location of
residence is an insufficient nexus to establish probable cause to search a
home at which the crime was not committed. And, even if Hutchinson
were controlling, I would not find two days to be a “short period of time.”
I also reject the general proposition that police can establish the
relevant nexus based only upon the type of item involved. That one person
typically stores a gun in his home is not probable cause that someone else
will do so. Probable cause is based upon facts and assertions, not upon
surmise and unjustified assumptions. Hutchinson does not require me, or
this Court, to make that assumption. Although Hutchinson noted that a
gun is an item typically stored in a person’s home, that assumption did not
alone establish probable cause in the Court’s view. That assumption was
tethered to the fact that only a “short period of time” had elapsed since the
commission of the crime. However, as I noted above, without discernible
boundaries for what constitutes a “short period of time,” I would not apply
Hutchinson strictly and would not hold that two days is in fact a “short
period of time.” Absent such a holding, Hutchinson does not require that
we find probable cause merely because of the unsupported assumption that
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people typically store guns in their homes, particularly guns that have been
used during the commission of a crime.
To hold otherwise would eliminate the nexus requirement set forth in
Kline and Way. Most people store items of importance to them in their
homes. Thus, police would never have to demonstrate that a person
actually has stored the item used in the crime in their home. In other
words, no longer would the police have to establish a factual nexus between
the crime and the residence. Law enforcement officers only would have to
aver that the item for which they are searching for is one of the thousands
upon thousands of items that people normally store in their homes. Notably,
even if this were all that were required, the police in the instant case did not
even offer this minimal averment. Instead, the Majority makes this
assertion for them.
In sum, I agree with the Majority that Reese has waived the relevant
claim implicated in this appeal. If I were the author of the majority
memorandum, I would go no further. However, today’s Majority discusses,
erroneously, the merits of the claim. Because the Majority does so, I am
compelled to respond. I would hold that the police failed to establish
probable cause to search Reese’s home because they did not aver, let alone
establish, a factual nexus between the crime on the street and Reese’s
home. Hence, I concur with the Majority’s waiver discussion, but I dissent
from its discussion of the merits.
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