Com. v. Adorno, I. ( 2023 )


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  • J-A27017-22
    2023 PA SUPER 34
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant               :
    :
    :
    v.                             :
    :
    :
    ISAIAH CHRISTIAN ADORNO                    :   No. 57 MDA 2022
    Appeal from the Order Entered December 16, 2021
    In the Court of Common Pleas of Lackawanna County Criminal Division at
    No(s): CP-35-CR-0000044-2021
    BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
    OPINION BY McLAUGHLIN, J.:                             FILED: MARCH 3, 2023
    The Commonwealth appeals from the order granting Isaiah Christian
    Adorno’s motion to suppress. It maintains that probable cause existed to
    search Adorno’s home. We reverse and remand for further proceedings.
    This appeal stems from the grant of a motion to suppress evidence – a
    gun – following the execution of a search warrant at Adorno’s residence. At a
    hearing on the motion, Adorno argued that police searched his home without
    probable cause, that the search was based on false information, and that it
    exceeded the parameters set forth in the search warrant.
    At a suppression hearing, the Commonwealth presented the testimony
    of an affiant for the application for the warrant, Officer Peter Petrucci of the
    Blakely Borough Police Department. He testified that an officer from the
    Scranton Police Department had contacted him about Adorno. N.T., Omnibus
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A27017-22
    Hearing, 10/27/21, at 6, 7. The Scranton officer told Officer Petrucci that he
    had observed a Facebook Live video by a user named “Zay-Yaho,” whom he
    later identified as Adorno. Id. at 7. In the video, Adorno was dancing while
    holding a firearm. Id. He could also be seen loading and unloading the
    firearm.1 Id. at 11-12. Officer Petrucci testified that he could see from the
    video that Adorno was in an apartment. Id. at 7. Officer Petrucci learned that
    Adorno lived at 309 Laurel Street in Archbald in Lackawanna County. Id.
    Officer Petrucci testified that another officer, Officer Matthew Carter,
    contacted the owner of 309 Laurel Street, Thomas Pratico.2 Id. at 8. Officer
    Carter showed Pratico the Facebook video, and Pratico told Officer Carter that
    Adorno lived at the property and “that residence in the video was 309 Laurel
    Street[.]” Id. at 9. Pratico also informed officers that Adorno was still residing
    at the location. Id. at 15.
    Officer Petrucci testified that he conducted a background check on
    Adorno and discovered that he was ineligible to possess a firearm. Id. at 11.
    Officer Petrucci then completed an application for a search warrant for
    Adorno’s apartment at 309 Laurel Street. Id. at 13. The Commonwealth
    admitted the application into evidence. Id. at 14.
    ____________________________________________
    1The video is not included in the certified record. Any information about the
    contents of the video is based on the notes of testimony from the suppression
    hearing.
    2 Pratico’s name is spelled “Pratyko” in the notes of testimony but “Pratico” in
    the affidavit of probable cause. As the parties’ briefs spell it “Pratico,” we have
    used that spelling.
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    J-A27017-22
    In the affidavit of probable cause supporting the application, Officer
    Petrucci stated that the Scranton police officer had informed him of the
    Facebook Live video and had given him a copy of a recording of part of the
    video, which depicted Adorno possessing a firearm inside his “home at 309
    Laurel St [sic] Archbald, PA 18403.” Application for Search Warrant and
    Authorization, dated 12/22/20, at 3. He averred that the Scranton officer had
    also showed him other images and videos from Snapchat that showed Adorno
    “possessing two other firearms and illegal narcotics inside his home.” Id. A
    criminal check revealed that Adorno was ineligible to possess a firearm
    because of a Florida conviction. Id.
    Officer Petrucci explained in the affidavit that he had identified the
    owner and landlord of 309 Laurel Street as Thomas Pratico. Id. at 4. A second
    affiant on the application, Officer Carter, had shown Pratico the Facebook Live
    video and “Mr. Pratico positively identified the room in the video as the kitchen
    of his home at 309 Laurel St [sic] Archbald.” Id. at 4. The affidavit concludes,
    “Based on the video evidence and other social media posts as well as the
    statement from Mr. Pratico it is probable that Mr. Adorno is in possession of a
    firearm where he is not authorized by law to do so.” Id.
    Officer Petrucci testified that the warrant was granted. He said that
    when police executed it, they recovered the gun depicted in the video, as well
    as two other firearms and a large amount of prescription medication. See N.T.
    at 15.
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    On cross-examination, defense counsel questioned Officer Petrucci
    about differences between the kitchen in the video and photos of what the
    officer agreed was the apartment. The examination highlighted a table seen
    in the video but not in the photos, and differences in the colors of the walls,
    window trim, and cabinets. See id. 25-26, 27, 31. On redirect, Officer Petrucci
    said the room in the video was in Adorno’s apartment, “right outside of the
    kitchen.” Id. at 28.
    A friend of Adorno’s, Savannah Albakri, testified for the defense. Id. at
    34. She said that the Facebook video was taken in the kitchen of her
    apartment but that she was not present at the time. Id. at 37, 39, 40. She
    also testified that she had been to Adorno’s apartment on numerous occasions
    and that there was no room off the kitchen. Id. at 36. Defense counsel
    presented her with pictures of her apartment as well as Adorno’s apartment.
    Albakri testified that the photos, which showed white walls with brown trim,
    light brown cabinets, a countertop with no streaks, and a table in the kitchen,
    were of her apartment. Id. at 37-39.
    The trial court granted the suppression motion. It pointed out that the
    police had limited their investigation of the setting of the Facebook video to
    an interview of Adorno’s landlord and stated that “[t]here is nothing more to
    determine that the alleged crimes took place” at Adorno’s apartment. See
    Opinion, filed 12/15/21, at 8. It found that “testimony was presented that
    negates that” Adorno recorded the video inside his apartment. Id. It likened
    the instant case to Commonwealth v. Way, 
    492 A.2d 1151
     (Pa.Super.
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    1985), and Commonwealth v. Nicholson, 
    262 A.3d 1276
     (Pa.Super. 2021).
    It concluded that “although probable cause may exist for the crime that took
    place” in the Facebook Live video, “there is no substantial nexus to that crime
    taking place at the premise [sic] to be searched, i.e. [Adorno’s] residence[.]”
    
    Id.
     This timely appeal followed.
    The Commonwealth raises the following issues:
    1. Whether the issuing authority had a substantial basis for
    concluding that probable cause existed based on the
    information available to the police officers at the time the
    warrant was issued.
    2. Whether the factual mistake on the face of the warrant
    amounted to a deliberate and material misrepresentation
    by the affiants that operated to invalidate the otherwise
    valid warrant?
    3. Whether the probable cause in the four corners of the
    search warrant affidavit substantiated a legal valid
    search of the residence that was listed on the warrant.
    Commonwealth’s Br. at 4.
    When reviewing the grant of a motion to suppress, we “consider only
    the evidence from the defendant’s witnesses together with the evidence of the
    prosecution that, when read in the context of the entire record, remains
    uncontradicted.” Commonwealth v. Korn, 
    139 A.3d 249
    , 252 (Pa.Super.
    2016) (citation omitted). We are bound by the factual findings of the
    suppression court that are supported by the record. 
    Id.
     We review the legal
    conclusions de novo. See 
    id. at 252-53
    . Here, the factual findings of the court
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    are not contested. However, the Commonwealth challenges the court’s legal
    conclusions.
    The Fourth Amendment of the United States Constitution and Article 1,
    Section 8 of the Pennsylvania Constitution protect against unreasonable
    searches and seizures. “In order to secure a valid search warrant, an affiant
    must provide a magistrate with information sufficient to persuade a
    reasonable     person   that   there   is   probable   cause   for   a   search.”
    Commonwealth v. Baker, 
    24 A.3d 1006
    , 1017 (Pa.Super. 2011) (citation
    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. Jones, 
    988 A.2d 649
    , 655 (Pa. 2010) (citation omitted). When considering whether
    probable cause exists, we consider the totality of the circumstances. See
    Commonwealth v. Clark, 
    602 A.2d 1323
    , 1325 (Pa.Super. 1992).
    The Commonwealth argues that the trial court erred in granting
    suppression. In its first and third issues, it maintains that the warrant
    application demonstrated probable cause to search Adorno’s home. In its
    second issue, it contends that since the factual mistake of the location seen in
    the video was not deliberate and knowing, the warrant was still valid. We
    address the Commonwealth’s claims regarding probable cause first.
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    Probable Cause
    In its first and third issues, the Commonwealth maintains that probable
    cause existed to search Adorno’s apartment. It points out that the owner of
    the building, Pratico, identified the apartment in the Facebook Live video as
    Adorno’s apartment at 309 Laurel Street. It also argues that “officers had no
    reason to question the information given to them by the owner/landlord[.]”
    Commonwealth’s Br. at 17. The Commonwealth maintains that the averments
    within the four corners of the warrant application established probable cause.
    In granting suppression, the lower court relied on this Court’s decisions
    in Way and Nicholson. In Way, an informant arranged a drug sale by phone.
    The informant drove to a location and Way arrived in a van. After completing
    the transaction, officers followed Way back to a particular intersection. The
    informant told police that Way lived in a building at the intersection. Officers
    obtained a warrant to search Way’s home and when they conducted the
    search, they found incriminating evidence. On appeal, we found merit in Way’s
    claim that counsel had been ineffective for failing to file a motion to suppress.
    We concluded that the search warrant was invalid because there was a “lack
    of substantial nexus between the street crime and the premises to be
    searched.” Way, 
    492 A.2d at 1154
    . We explained that the search warrant “did
    not contain sufficient facts to believe that drugs would be found on the
    premises to be searched.” 
    Id.
    Nicholson also involved a drug sale involving an informant. The
    informant told police that Nicholson was selling drugs and drove a blue Dodge
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    Caliber, and the informant gave police Nicholson’s address. Officers had the
    informant conduct a controlled buy with Nicholson, and they observed
    Nicholson leave his home and make two stops en route to the location for the
    buy. Afterward, Nicholson drove back to his residence. Officers obtained a
    search warrant for Nicholson’s home and executed it. The Court of Common
    Pleas suppressed evidence seized from Nicholson’s home, and we affirmed.
    We concluded that the warrant was not supported by probable cause. We
    noted that the informant never stated that Nicholson was selling drugs from
    his home, and the police did not observe Nicholson leaving his home and going
    directly to the buy location. We explained that “there must be something in
    the affidavit that links the place to be searched directly to the criminal
    activity,” and that in this case “no such nexus was shown here[.]” Nicholson,
    262 A.3d at 1282.
    We conclude that the court here erred in its reliance on Way and
    Nicholson. Here, the warrant application on its face set forth sufficient
    information to establish probable cause to search Adorno’s apartment at 309
    Laurel Street. According to the affidavit of probable cause, Adorno’s landlord,
    Pratico, told police that Adorno currently resided in the apartment and
    identified the kitchen in the video as being in Adorno’s apartment. The affidavit
    also noted that the social media posts showed Adorno with firearms and illegal
    narcotics inside his home. Thus, unlike Way and Nicholson, the warrant
    application showed that police had sufficient facts to believe that there was
    evidence of crimes in what Pratico told them was Adorno’s home. Pratico’s
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    statement was sufficiently reliable for officers to rely on it. The fact that he
    owned the building and was Adorno’s landlord was enough for them to credit
    his identification of the apartment in the video.
    Factual Mistake
    The suppression court apparently credited the evidence suggesting that
    the apartment in the Facebook video was not Adorno’s apartment, but rather
    Albakri’s apartment. The Commonwealth concedes the mistake. It states that
    during the suppression hearing, “[i]t came to light . . . that the place described
    in the search warrant, and searched, was not the same place that was depicted
    in the background of” the Facebook Live video. Commonwealth’s Br. at 17. It
    claims that officers “reasonably believed” that the residence searched was the
    same as the residence in the video. The Commonwealth argues that, despite
    the error, the search warrant was still valid because this mistake was not
    knowing or deliberate. It states that officers did not become aware of the error
    until Albakri’s testimony.
    “If a search warrant is based upon an affidavit containing deliberate or
    knowing misstatements of material fact, the search warrant is invalid, unless
    probable   cause    exists   notwithstanding   any    deliberate   omissions   or
    misrepresentations of fact.” Commonwealth v. Burno, 
    154 A.3d 764
    , 782
    (Pa. 2017). See also Clark, 
    602 A.2d at 1325
    .
    In Franks v. Delaware, 
    438 U.S. 154
    , 171 (1978), the United States
    Supreme Court held that a defendant may attack the validity of a warrant on
    the basis that it contained untruthful information. A defendant attacking a
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    warrant on this basis must allege that the warrant contained statements “of
    deliberate falsehood or of reckless disregard for the truth, and those
    allegations must be accompanied by an offer of proof.” 
    Id.
    We applied Franks in Commonwealth v. Gomolekoff, 
    910 A.2d 710
    ,
    715 (Pa.Super. 2006). There, police obtained a search warrant for the
    defendant’s home, based on two emails. When officers executed the search,
    they seized four computer towers. However, the two emails were not found
    on the towers. The defendant insisted the warrant was therefore invalid and
    he was entitled to suppression. We cited the Franks rule regarding challenges
    to warrants based on the inclusion of false information. We concluded the
    defendant’s argument lacked merit because he had failed to proffer any
    evidence that the affiant of the warrant had “made deliberately false
    statements, or made statements with a reckless disregard for the truth.” 
    Id.
    We reached a similar result more recently in Commonwealth v.
    Andrews, 
    213 A.3d 1004
    , 1014-15 (Pa.Super. 2019). There, the trial court
    had denied the defendant’s motion to suppress based on the inclusion in the
    warrant application of a material misstatement of fact. We affirmed because
    the defendant had failed to make an offer of proof that the police “made
    deliberately false statements or made statements with a reckless disregard
    for the truth.” 
    Id.
    Here, in his pretrial motion, Adorno claimed that the search of his
    apartment “was based upon materially false information that was contained
    in the Affidavit of Probable Cause.” Omnibus Pretrial Motion, at ¶ 5. However,
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    he did not claim that Officer Petrucci made deliberately false statements or
    made statements with a reckless disregard for the truth. Furthermore, Adorno
    did not make an offer of proof of such. Therefore, the court erred in granting
    Adorno’s suppression motion. See Gomolekoff, 
    910 A.2d at 715
    ; Andrews;
    213 A.3d at 1015. We therefore reverse the order granting Adorno’s
    suppression motion.
    Order reversed. Case remanded for further proceedings. Jurisdiction
    relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 03/03/2023
    - 11 -
    

Document Info

Docket Number: 57 MDA 2022

Judges: McLaughlin, J.

Filed Date: 3/3/2023

Precedential Status: Precedential

Modified Date: 3/3/2023