Com. v. Camacho, J. ( 2022 )

J-S23043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN ANTONIO CAMACHO : No. 100 MDA 2022
Appeal from the Order Entered December 15, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003420-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHARAYA NICOLE JONES : No. 101 MDA 2022
Appeal from the Order Entered December 15, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003911-2021
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 18, 2022
In this consolidated case, the Commonwealth appeals from the orders
that granted the suppression motions of both Jonathan Antonio Camacho and
Sharaya Nicole Jones. On appeal, the Commonwealth chiefly contends that
the lower court erred in granting the appellees’ suppression motions because
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 Retired Senior Judge assigned to the Superior Court.
J-S23043-22
the affidavit of probable cause utilized in obtaining the search warrant
contained legally sufficient personal observations of contraband. Specifically,
the affidavit incorporated information from a police officer who, based on his
training and experience, saw Camacho possess and smoke marijuana and then
go into the residence that was the subject of the search warrant. We reverse
the at-issue orders and remand for further proceedings.
Following the execution of the search warrant at 520 South Queen
Street in York, Pennsylvania, Camacho was charged with possession with
intent to deliver cocaine, possession of a small amount of marijuana, and
conspiracy to commit possession with intent to deliver cocaine. 1 Similarly,
Jones’s charges included possession with intent to deliver cocaine and
conspiracy to commit possession with intent to deliver cocaine.2
After both appellees filed their suppression motions, contending that the
affidavit supporting the search warrant lacked probable cause, the court held
a suppression hearing. Ultimately, the court granted both motions to suppress
because, in conducting an inquiry limited to the four-corners of the affidavit
of probable cause, it determined, inter alia, there to be no sufficient nexus
between the allegations asserted in the affidavit and the residence that was
thereafter searched. See Order, dated 12/15/21.
The affiant’s name is Detective Vincent Monte, who, according to the
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1See 35 P.S. § 780-113(a)(30); 35 P.S. 780-113(a)(31), and 18 Pa.C.S.A. §
903(a)(1), respectively.
2 See 35 P.S. § 780-113(a)(30); and 18 Pa.C.S.A. § 903(a)(1), respectively.
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affidavit, had been employed by the York City Police Department for ten years,
performing hundreds of drug investigations in that span of time. The affidavit
of probable cause states:
Within the last month this officer received neighborhood
complaints of a light skinned heavy set [male] suspected of selling
drugs from 520 South Queen Street in York City. The complaints
referenced various people meeting the male after he exited 520
South Queen Street. The male suspect would do a hand-to-hand
transaction with the people he met then he would return to 520
South Queen Street. The male suspect was observed
holding/count[ing] money after doing a hand-to-hand with the
people that approached him.
From surveillance on 520 South Queen Street over the last month
I identified the male subject as Jonathan Camacho . . . . Camacho
is known to me through multiple prior felony and misdemeanor
drug investigations. Camacho is currently on York County
Probation for a drug violation.
I also discovered through Pennsylvania JNET that Sharaya Jones
… has a listed address of 520 South Queen Street in York City. I
know from prior investigations involving Camacho that Jones and
Camacho are in a relationship together and have children
together.
While I conducted surveillance on 520 South Queen Street, and
within the last 72 hours, I observed Camacho exit the rear of the
residence and have in his possession a clear plastic sandwich bag
containing a green leafy substance that I know based on my
training and experience to be marijuana ([S]chedule I).
Pennsylvania Medical Marijuana (MMJ) has rules for the original
packaging of medical marijuana to include that it must be kept in
the original package in which it is dispensed. The bag I observed
in Camacho’s possession did not have any labels/markings on it
to indicate that it was medical marijuana.
I watched Camacho take marijuana from the clear plastic bag and
roll it into a cigar wrapper. Camacho placed the clear bag that still
contained marijuana into his pocket, and then began to smoke the
marijuana cigar. Medical [m]arijuana is not permitted to be
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smoked/consumed in cigar/cigarette form in Pennsylvania. After
lighting and smoking the marijuana cigar Camacho went back
inside 520 South Queen Street with the bag of marijuana still in
his pocket.
Camacho was convicted/plead[ed] guilty to felony drug offenses
in York County in 2011, 2018, and 2019 all for crack cocaine
([S]chedule II).
Based on the information above I respectively request a search
warrant be issued for 520 South Queen Street York City
Pennsylvania to search for additional quantities of illegal
marijuana and illegal narcotics as well as materials and items used
to package, sell and possess illegal narcotics, such as plastic bags
and scales; records or other documentation of past narcotics
transactions, and cell phones utilized to facilitate narcotics
transactions. I am also requesting that all persons present during
the service of the warrant be searched. I am requesting all
persons to be searched based on this officer’s ten years of
experience that narcotics can be easily concealed on a person and
later destroyed.
Affidavit of Probable Cause, dated 6/27/21.
The text of the search warrant identified that it primarily sought seizure
of marijuana “along with any other drugs or paraphernalia, packaging
materials, scales, business records, official funds, firearms, ammunition,
identification and other documentary and physical items relating to the
possession, distribution and sale of narcotic and dangerous drugs.” Application
for Search Warrant and Authorization, dated 6/27/21.
In reaching its conclusion that suppression was warranted, the lower
court found that
[b]ased on the totality of the circumstances, there were not
enough facts to support probable cause to search the Queen
Street house. There was no police corroboration of the
neighborhood complaints regarding confirmation of identify or
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hand-to-hand transactions by [Camacho] The [a]ffidavit did not
contain any information regarding length of stay by [Camacho] at
the Queen Street house. The amount of marijuana, only seen
stored on [Camacho’s] person, was not enough to show more
would be present within the Queen Street house. Therefore, [the
lower] court granted [appellees’ motions], finding there was not
probable cause within the four concerns of the [a]ffidavit for the
search and seizure inside the Queen Street house.
Suppression Court Opinion, dated 3/25/22, at 8-9 (citations omitted).
Correspondingly, the Commonwealth filed a timely notice of appeal,
inclusive of a certification pursuant to Pennsylvania Rule of Appellate
Procedure 311(d) stating that the lower court’s determination would terminate
or substantially handicap the prosecution of the appellees. Thereafter, the
relevant parties complied with their obligations under Pennsylvania Rule of
Appellate Procedure 1925. As such, this matter is ripe for review.
On appeal, the Commonwealth asks:
1. Did the suppression court err in finding that the application for
a search warrant lacked probable cause within its four corners
where the officer directly observed Camacho visibly enter into
the location to be searched while in possession of marijuana
and marijuana paraphernalia, and, in addition to the officer’s
own observations, the officer had received numerous reports
of Camacho engaging in hand-to-hand transactions outside the
residence to be searched?
Commonwealth’s Brief, at 4.
As this is a Commonwealth appeal from a suppression order, we apply
the corresponding standard of review:
[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. As long
as there is some evidence to support them, we are bound by the
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suppression court's findings of fact. Most importantly, we are not
at liberty to reject a finding of fact which is based on credibility.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa. Super. 2011)
(citation omitted) (bracket in original). However, the lower court’s conclusions
of law are not binding on this Court, as it is this Court’s duty to ascertain
whether the lower court correctly applied the law to the facts. See
Commonwealth v. Keller, 823 A.2d 1004, 1008 (Pa. Super. 2003) (citation
omitted). While our review is limited to the evidentiary record that was created
at the suppression hearing, see In re L.J., 79 A.3d 1073, 1087 (Pa. 2013), it
does not appear that anything evidentiary other than the affidavit of probable
cause and search warrant were provided to the suppression court in the
present matter.
The burden is on the affiant to demonstrate that the warrant’s execution
will likely lead to the recovery of contraband or evidence of a crime. See
Commonwealth v. Janda, 14 A.3d 147, 157 (Pa. Super. 2011) (citation
omitted). Relatedly, in making its probable cause determination for the
issuance of a warrant, a magistrate may not consider any evidence outside
the four-corners of the affidavit. See Commonwealth v. Sharp, 683 A.2d
1219, 1223 (Pa. Super. 1996) (citations omitted). As to what constitutes
probable cause:
The legal principles applicable to a review of the sufficiency of
probable cause affidavits are well settled. Before an issuing
authority may issue a constitutionally valid search warrant, he or
she must be furnished with information sufficient to persuade a
reasonable person that probable cause exists to conduct a search.
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The standard for evaluating a search warrant is a ‘totality of the
circumstances' test as set forth in Illinois v. Gates, 462 U.S. 213,
… (1983), and adopted in Commonwealth v. Gray, 503 A.2d
921 ([Pa.] 1985). A magistrate is 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.' The information offered to establish
probable cause must be viewed in a common sense, non-technical
manner. Probable cause is based on a finding of the probability,
not a prima facie showing of criminal activity, and deference is to
be accorded a magistrate's finding of probable cause.
Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa. Super. 2003)
(citation and internal parallel citations omitted). “The duty of a court reviewing
[a magistrate’s decision] is to ensure that the magistrate had a substantial
basis for concluding that probable cause existed.” Commonwealth v.
Gindlesperger, 706 A.2d 1216, 1219 (Pa. Super. 1997); see also
Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018) (requiring deference
from reviewing courts when analyzing a magistrate’s probable cause
determination).
Here, the Commonwealth concedes that “the seemingly anonymous
reports of drug sales out of the residence [described in the affidavit] would
not have provided the requisite probable cause by themselves[.]”
Commonwealth’s Brief, at 12-13. Despite that concession, “Detective Monte
saw … Camacho exit the residence, roll and smoke a marijuana cigar, return
a portion of marijuana still in the bag to his pocket, and reenter the residence.”
Id., at 11; see also 35 P.S. § 10231.304(b)(1) (establishing that it is unlawful
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to smoke medical marijuana); Commonwealth v. Barr, 266 A.3d 25, 41 (Pa.
2021) (stating that the Controlled Substance, Drug, Device and Cosmetic Act,
see 35 P.S. §§ 780-101-133, “still renders possession of marijuana illegal for
those not qualified under the [Medical Marijuana Act, see 35 P.S. §§
10231.101-10231.2110]”).
When distilled down, the question before this Court is whether an
affiant’s personal observation of a specific illicit act, i.e., the unlawful
possession and attendant consumption of marijuana, can provide probable
cause in support of a search warrant, when juxtaposed against these particular
facts. As noted, supra, the Detective described Camacho’s movements as
having exited the at-issue residence and then, after smoking marijuana in
short proximity, returning to the inside of the same residence with some
amount of contraband still on him. Moreover, this observation occurred within
seventy-two hours of when the search warrant was sought.
We agree with the premise that “[p]robable 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.” Commonwealth v. Kline, 335 A.2d 361, 364 (Pa.
Super. 1975) (emphasis added). In addition, the affidavit of probable cause
must establish a “substantial nexus” between the criminal activity or
contraband sought and the place to be searched. Id.However, as evidenced by the text of the affidavit of probable cause,
Detective Monte, through knowledge obtained in his prior investigations,
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asserted that Camacho had more than a fleeting or temporary connection with
the 520 South Queen Street property. Specifically, the Detective wrote that
Camacho and Jones, the individual whose name was attributable to the
property, were in a relationship together and had children together, implying,
at a minimum, continual contacts with the location.
The lower court, in its opinion, emphasizes that after the execution of
the search warrant, Camacho was only found possessing a small amount of
marijuana. See Suppression Court Opinion, dated 3/25/22, at 8. It then states
that the marijuana was always on Camacho’s person and “is never attributed
to the house.” Id. (citation to suppression hearing omitted). The court
concludes: “[b]ecause the small amount of marijuana was in [Camacho’s]
pocket, the belief more would be in the place to be searched, the Queen Street
house, is not reasonable.” Id. (citation omitted). Stated differently, “[t]he
amount of marijuana, only seen stored on [Camacho’s] person, was not
enough to show more would be present within the Queen Street house.” Id.,
at 9.
We disagree with the lower court’s analysis of the reasonability
underpinning the magistrate’s probable cause determination. “The totality of
the circumstances test is satisfied where the police officers have a reasonable
belief that the items to be seized are related to criminal conduct and that those
items are presently located in the place to be searched.” Commonwealth v.
Waltson, 724 A..2d 289, 292 (Pa. 1998) (citation omitted). Furthermore, in
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defining what can be searched, “the scope of a search warrant is limited by
the items to be seized and where they may be found and not to a particular
location within those premises.” Id. (citation omitted).
Here, Detective Monte saw Camacho exit the South Queen Street
residence, noted that he possessed and consumed a leafy green substance
known to the Detective as marijuana that, in its observed form, is illegal, and
then watched Camacho proceed back into the same residence with the
contraband. Based on these events, it was reasonable for the Detective to
believe that, at a minimum, marijuana and related materials would be found
inside of the South Queen Street property given the high likelihood that the
marijuana baggie would not remain in Camacho’s pocket in perpetuity. In
other words, because the Detective emphasized Camacho’s connection to the
South Queen Street location and sought the search warrant within seventy-
two hours of observing him smoking the marijuana, it was reasonable to think
that, based on the unbroken chain of Camacho reentering the house with
contraband on him, some amount of marijuana would be found there.
While the lower court correctly states that the unverified and
unsubstantiated community complaints against the South Queen Street house
that were described in the affidavit of probable cause would not have been
sufficient, Detective Monte’s personal observation of criminal activity in the
form of Camacho possessing an illegal substance, when considered in tandem
with his movements directly back into the residence, meant that there was a
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nexus between the illegal activity witnessed outside and the place that was
requested to be searched as well as a corresponding high probability criminal
activity, in the form of contraband, would be discovered via the execution of
that search warrant. Governed by our standard of review, which requires both
deference towards the magistrate as well as consideration of the affidavit of
probable cause in a common sense and nontechnical manner, the magistrate’s
finding of probable cause was supported by the affidavit’s contents, and it was
not in error for the search warrant to be issued.
Accordingly, we determine that the lower court erred in granting the
appellees’ motions to suppress. As such, the orders of the lower court that
suppressed the evidence uncovered from the search are reversed, and the
matter is remanded for further proceedings.
Orders reversed. Cases remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2022
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