Com. v. Noel, M. ( 2020 )

J-S74039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 2047 EDA 2019
MARQUISE NOEL
Appeal from the Order Entered June 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002562-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARQUISE NOEL : No. 2048 EDA 2019
Appeal from the Order Entered June 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002563-2018
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: February 7, 2020
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S74039-19
In these consolidated matters,1 the Commonwealth appeals2 from the
Order entered in the Court of Common Pleas of Philadelphia County on June
18, 2019, granting the motion to suppress cell phone site location information
filed by defendant Marquise Noel (hereinafter “Noel”).3 Following a careful
review, we reverse the suppression court’s Order and remand for further
proceedings consistent with this Memorandum.
The suppression court filed its Findings of fact and Conclusions of Law
on June 21, 2019, and on June 24, 2019, the court filed an Amended
____________________________________________
1 In accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
the Commonwealth filed a timely and separate notice of appeal for each docket
number. On July 22, 2019, the Commonwealth filed a notice of appeal in No.
2047 EDA 2019, in connection with Docket No. CP-51-CR-0002562-2018,
wherein Noel was charged with the murder of Tafari Lawrence, conspiracy,
violations of the Uniform Firearms Act, and possessing an instrument of crime
(PIC). The Commonwealth also filed a notice of appeal on July 22, 2019, in
No. 2048 EDA 2019 pertaining to Docket No. CP-51-CR-0002563-2018,
wherein Noel was charged with the attempted murder and aggravated assault
of Marcus Alexander. On October 28, 2019, the Commonwealth filed an
Application for Consolidation of the matters asserting that the issues on both
appeals are identical. In a Per Curiam Order entered on November 21, 2019,
this Court granted the Commonwealth’s Application and consolidated the
matters on appeal.
2 The notices of appeal filed at both docket numbers contain the requisite
statement certifying that the suppression court’s June 18, 2019, Order
terminates or substantially handicaps the prosecution. See Pa.R.A.P. 311(d)
(permitting Commonwealth appeal from an interlocutory order if it certifies
that the order will terminate or substantially handicap the prosecution);
therefore, the Commonwealth has perfected its appeals and invoked this
Court’s jurisdiction. See Commonwealth v. Chism, 216 A.3d 1133, 1136
(Pa.Super. 2019).
3 The suppression court granted a separate suppression motion on February
14, 2019, barring the introduction into evidence of the cell phone itself along
with incriminating text messages found thereon and clothing taken from Noel
at the hospital. That Order is not at issue herein, see infra.
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Statement of Findings of Fact and Conclusions of Law wherein it slightly
revised its June 21st filing and set forth the relevant Factual and Procedural
history herein as follows:
Relevant Background and Procedural History
On February 11, 2018, shortly before 1:58 PM, the decedent
Tafari Lawrence was shot near 7500 Elmwood Avenue in the City
of Philadelphia. Lawrence was pronounced dead at 2:18 PM, after
he was transferred to Presbyterian Hospital.
At approximately 2:20 PM on February 11, 2019[sic], the
[Noel] arrived at the same hospital after suffering a gunshot
wound to his leg.1 While at the hospital, [Noel] spoke to
Philadelphia Homicide Detectives and informed them that he was
shot during a robbery at the intersection of 59th Street and
Baltimore Avenue. Police search of that area determined that no
robbery had taken place earlier in the day.
At 3:28 PM, video surveillance from Presbyterian Hospital
recorded Homicide Detectives Freddy Mole, Joseph Murray, and a
third male search [Noel’s] cell phone. The recording captured
Detective Mole visibly pushing buttons on the phone causing a
light to emit from the screen. The video further revealed that
Detectives Mole and Murray examined the phone from 3:28:10 PM
to approximately 3:32:14 PM, a period of approximately four
minutes.
After searching the phone, Detective Murray composed an
affidavit for a warrant to search [Noel’s] phone, wherein he cited
[Noel’s] account of the nonexistent robbery at 59th Street and
Baltimore Avenue as probable cause. The police determined that
there were no reports of a shooting or disturbance at that location,
and found [Appellant’s] story to be suspect. The search warrant
was approved on February 11, 7:19 PM and signed by the
magistrate at 8:00 PM, less than an hour later. The search
pursuant to the warrant was executed twenty minutes later, at
8:20 PM.
At a preliminary hearing held on April 3, 2018, Detective
Mole testified that he had seized [Noel’s] phone at the hospital,
but refrained from searching the phone until after he had secured
a warrant.
On October 12, 2018, [Noel] filed a Motion to Suppress. On
or before December 19, 2018, [Noel’s] counsel obtained and
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examined surveillance video from the hospital depicting
Detectives Mole and Murray conducting the above unwarranted
search of [Noel’s] phone.
On December 20, 2019 [sic], the Commonwealth filed a
Motion to Disqualify Counsel and Law Firm From Representing
[Noel] and a Motion for Continuance, alleging that defense counsel
violated his duty to [Noel] with respect to the discovered
surveillance video.2 On December 21, 2018, [Noel] filed a Writ of
Habeas Corpus, requesting immediate bail. On January 18, 2019,
after two hearings, this [c]ourt denied the Commonwealth's
Motion to Disqualify.3 On January 22, 2019, this [c]ourt denied
[Noel’s] Writ of Habeas Corpus.
On February 14, 2019, during a suppression hearing before
this [c]ourt, the Commonwealth declined to put on evidence. At
that hearing, the Commonwealth averred that it reviewed the
surveillance video, interviewed Detectives Murray and Mole, and
found their accounts to be incredible. Accordingly, based on their
understanding of the Pennsylvania Supreme Court's holding in
Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018), the
Commonwealth informed this [c]ourt that it had no choice but to
concede [Noel’s] Motion to Suppress the contents of [Noel’s] cell
phone and clothing recovered on February 11, 2018.
Consequently, this [c]ourt granted the defendant's Motion to
Suppress with respect to both the cell phone and the clothing.
On February 25, 2019, after this [c]ourt permitted [Noel] to
supplement the testimony presented at the preliminary hearing,
this [c]ourt removed the lead charge of Murder generally and held
the matter for court on Third-Degree Murder. On February 27,
2018, this [c]ourt granted [Noel’s] Writ of Habeas Corpus
pursuant to Pa.R.Crim.P. 600(B) and granted bail.4 This [c]ourt
also continued the matter for the Commonwealth to conduct
additional investigation for the purpose of reestablishing probable
cause to search [Noel’s] cell phone via an independent source.
In the months after the February 14, 2019 listing, Detective
Laura Hammond oversaw the investigation of the instant matter.
On April 18, 2019, Detective Hammond obtained two search
warrants for cell phone records identified pursuant to a
investigation. On May 20, 2019, [Noel] filed a Motion to Preclude
Cell Phone GPS or Location Data Evidence. On June 5, 2019,
[Noel] submitted a Letter Brief Regarding [his] Pretrial Motions.
On June 13, 2019, this [c]ourt received the Commonwealth's
Response to the Defense Motion for Preclusion of Cell Site
Analysis.
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On June 17, 2019, this [c]ourt presided over a hearing to
address [Noel’s] Motion to Preclude Cell Phone GPS or Location
Data Evidence. At the conclusion of that hearing, this [c]ourt
continued the matter to the next day for the Commonwealth to
provide this [c]ourt with case law to support the proposition that
a Defendant's dishonesty alone is sufficient to warrant a finding of
probable cause pursuant to a "four-corners" challenge to a search
warrant.
On June 18, 2019, in lieu of submitting the requested
information, the Commonwealth presented case law to support an
additional argument that [Noel] lacked standing to challenge the
April 18, 2019 warrant on the grounds that he did not have an
ownership or privacy interest in the attendant cell phone records
for the [(215) 873-]1723 device. On that same date, after hearing
argument on all presented issues, this [c]ourt granted [Noel’s]
Motion to Preclude Cell Phone GPS or Location Data Evidence.
Facts Contained within the April 18, 2019 Search Warrants
On April 18, 2019, Detective Hammond submitted search
warrants for the cell phone tower records associated with the 267-
576-8390 and 215-873-1723 phone numbers, containing the
following averments:
On February 11, 2018, police officers responded to a
shooting and hospital case at the location of 75th and Elmwood
Streets, and transferred two victims, Marcus Alexander and the
decedent Tafari Lawrence to Presbyterian Hospital. Doctors
pronounced Lawrence dead at 2:18 PM, while Alexander was
treated and released. Police further discovered sixteen 9mm fired
cartridge casings ("FCCs"), and nine .45 cal. FCCs. Pursuant to an
autopsy, Dr. Albert Chu determined that the cause of death was
multiple gunshot wounds and the manner of death was homicide.
At an unidentified date and time,[4] [Noel] arrived at
Presbyterian Hospital suffering from two gunshot wounds to the
____________________________________________
4 It is discernable from a plain reading of the Affidavit of Probable Cause that
Noel was brought to Presbyterian Hospital in or around the time Alexander
and Lawrence arrived there on Sunday February 11, 2018, for he is specifically
referred as a third shooting victim on that day:
On Sunday, February 11, 2018, 12th District police responded to
a radio call of a shooting and a hospital case at 75th and Elmwood.
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right leg. [Noel] reported to police that he was shot during a
robbery at the intersection of 59th Street and Baltimore Avenue.
A subsequent investigation found that there was not a single
report of a robbery, gunshots, hospital case, or even a disturbance
at that location during the time alleged. Officers found [Noel’s]
explanation suspect on the basis that the shooting would have had
to occur on a Sunday afternoon in a residential area.
On February 13, 2018, detectives interviewed [Noel], who
stated that on the day of the shooting, he purchased food at a
Checkers restaurant at 58th Street and Baltimore Avenue, and
drove away from that location. [Noel] described how, as he was
driving, he hit a pothole and got out of the vehicle at 59th Street
____________________________________________
Upon their arrival, officers located two male shooting victims.
Victim #1, later identified as Tafari Lawrence 23BM, was lying on
the highway unresponsive and suffering from multiple gunshot
wounds Victim #2, identified as Marcus Alexander 24BM, was
suffering from a gunshot wound to the buttocks. Both victims
were transported to Presbyterian Hospital by police. Victim #1,
succumbed to his injuries shortly after arrival and was pronounced
dead at 2:18 pm by Dr. Simms. Victim #2 was treated and
released. The crime scene consisted of sixteen (16) 9mm fired
cartridge casings and nine (9) 45 caliber cartridge casing[s]
indicating that at least two different guns were fired.
On Monday, February 12, 2018, Dr. Albert Chu performed a post
mortem examination on the remains of Talfari Lawrence. Through
his examination, Dr. Chu was able to ascertain that the cause of
death was multiple gunshot wounds and ruled the manner of
death homicide.
A third shooting victim, identified as Marquis Noel 21BM, arrived
at Presbyterian Hospital suffering from two gunshot wounds to the
right leg. Mr. Noel reported to police that he was just shot during
a robbery at 59th and Baltimore. Detectives investigated this
information and found that there was not a single report of a
robbery, gunshots, hospital case, or even a disturbance near 59th
and Baltimore around the time that Mr. Noel alleged that this
happened. The fact this was a Sunday afternoon in a residential
area, makes Mr. Noel’s story extremely suspect.
See Application for Search Warrant and Affidavit, April 18 2019, at 2 ¶¶ 1-3.
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and Baltimore Avenue to check for damage, whereupon a man
attempted to rob him at gunpoint. [Noel], a former boxer,
resolved to fight the assailing [sic], resulting in him sustaining two
gunshot wounds. After seeing this incident, and [sic] unidentified
bystander used [Noel’s] vehicle to drive him to Presbyterian
Hospital. [Noel] did not know the whereabouts of that individual
or the vehicle.
Officers arrested [Noel] on February 11, 2018, where he
remained in custody. At an unascertained time,[5] homicide
detectives obtained a list of phone numbers [Noel] communicated
with while incarcerated, and identified 267-325-7876, 267-266-
6053, 267-902-4644 as commonly called numbers. After listening
to recorded phone conversations, police determined that the
individual associated with the numbers were either [Noel’s]
family, a paramour, or his associates. Police officers further
obtained call detail records for each phone.
In April 2019, Homicide Detective John Verrecchio analyzed
the call detail records for the three aforementioned numbers.
Through that analysis, Detective Verrecchio identified four
numbers that appeared on all three sets of call detail records, but
ceased contact after 2:00 PM on February 11, 2018: 267-576-
8390, 215-873-1723, 267-388-1637, and 800-483-8314.
Detectives eliminated the 800-483-8314 number after
determining that it was associated with an automated payment
service, and eliminated the 267-388-1637 number after
discovering activity on that phone after [Noel’s] number was
seized on February 11, 2018.
For the 267-576-8390 number, investigators identified one
connection with the 267-266- 6053 number, an outgoing call to
the 8390 number, at 7:30 PM. Investigator[s] further identified
an outgoing call from the 267-325-7876 number to the 8390
____________________________________________
5The Affidavit of Probable Cause does include a timeframe during which these
phone numbers were obtained pursuant to search warrants:
Marquis Noel was arrested on 2/11/2018 and has been in custody
ever since. In an attempt to identify a cellular phone number that
Marquis Noel may have had prior to his arrest, Homicide
Detectives obtained a list of phone numbers with whom he is
communicating with [sic] while incarcerated. . . .
See Application for Search Warrant and Affidavit, dated April 18 2019, at 3 ¶
1.
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number at 6:30 PM. Investigators discovered no connections
between the 267-902-4644 number and the 8390 number.
Police were unable to discover any connections between the
targeted 215-873-1723 number and the 267-325-7876 and the
267-266-6053 numbers. Investigators were able to identified [sic]
four outgoing calls from the 267-902-4644 number and the 1723
number, made at 2:32 PM, 3:00 PM, 6:14 PM, and 6:15 PM. Each
call indicated an attempt with no connections.
At the end of each warrant, the affiant described how
cellular devices facilitate communication by connecting with cell
towers using unique identification numbers, which are in turn
documented and recorded with the date, time, duration, direction,
type of connection, and cell tower the connection was facilitated
to, permitting investigators to geo-locate the cellular handset
during each connection. The affiant contends that this information
can be used to identify the user of the device.
The affiant concludes each warrant with her attestation of
her belief that sufficient probable cause exists to recover all
records relating to target number: 267-576-8390. The
Commonwealth alleges that the target phone is, in fact, the device
associated with the 215-873-1723 number. [(emphasis in
original)].
Additional Facts Stipulated by the Parties at the June 17
and June 18, 2019 Hearings
The cell phone records for the device associated with the
215-873-1723 number, as provided by AT&T Wireless, listed
Locus Communication as the owner of record. Locus
Communications is a wireless communications company that
provides discounted, pre–paid access to a third party cellular
network in exchange for a user's payment of a finite amount of
network time. Locus Communications itself purchases access to
the AT&T network, which it in turn resells to its consumer base.
The Commonwealth did not discover any information concerning
Locus Communications until after it had already secured the
records associated with the 1723 device.
On February 13, 2018, homicide detectives interviewed
[Noel] concerning the instant shooting. Defense counsel stipulated
that, during that interview, [Noel] told police that he did not
possess a phone at the time of the shooting, but that he had
previously used a device belonging to his mother, associated with
a 267-325-8100.5
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The Commonwealth stipulated that, if called to the stand at
the instant hearing, [Noel] would have testified that he was the
exclusive user of the device associated with the 215-873-1723.
[Noel] would further [sic] testified that he obtained the device two
to three months prior to the instant shooting and solely purchased
minutes to operate the device.
This [c]ourt determines that [Noel] lied when he initially
spoke to detectives on February 11 and February 13, 2018 and,
at the time of the incident, he was the sole owner and exclusive
user of the device associated with the 215-873-1723 number.
______
1This fact was stipulated by the parties at the June 17, 2019,
suppression hearing.
2 Upon discovery of the video, defense counsel contacted the
District Attorney's Office, informed them of said video, and
requested to negotiate a non-trial disposition in the instant
matter. The Commonwealth responded by filing the motion to
disqualify counsel based on a conflict of interest between himself,
his firm, and [Noel], resulting in dereliction of his duties under the
Rules of Professional Conduct.
3 After appointing separate counsel for [Noel], this [c]ourt
determined that defense counsel was not derelict of duty, no
conflict of interest existed, and defense counsel was qualified to
continue his representation in the above-captioned matter.
4[Noel] currently remains in custody pursuant to a pending,
unrelated matter.
5No additional information about the 267-325-8100 device was
presented at the hearing.
Suppression Court’s Amended Statement of Findings of Fact and Conclusions
of Law, filed 6/24/19, at 1-7.
The suppression court did not enter an order directing the
Commonwealth to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and the Commonwealth did not file a concise
statement. In its brief, the Commonwealth presents the following Statement
of the Question Involved:
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Did the lower court err by suppressing data relating to the
whereabouts of a cell phone where [Noel] abandoned any
reasonable expectation of privacy in that data and, in any event,
it was seized pursuant to a valid search warrant.
Commonwealth’s Brief at 3. In considering this issue, we follow a clearly
defined standard of review:
When the Commonwealth appeals from a suppression order,
we follow a clearly defined standard of review and 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. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression court’s
legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016) (internal
citations and quotation marks omitted).
Herein, after acknowledging, “an appellate court may disagree with me,”
N.T. Hearing, 6/18/19 at 46, the suppression court determined that Noel had
a legitimate expectation of privacy in the cell tower records associated with
number (215) 873-1723 at the time of the homicide and that, therefore, the
April 18, 2019, search warrant for the cellular phone records related to that
phone number had not been supported by probable cause. Id. at 45-46. The
court explained its reasoning behind its decision as follows:
Based on the totality of the circumstances presented within
the April 18, 2019 Affidavit, this [c]ourt determines that the
Commonwealth did not establish sufficient probable case to justify
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its search of the cellular phone records associated with the 215-
873-1723 number. The facts presented by the Commonwealth
fail to rise above the realm of mere suspicion, and cannot be used
to justify its seizure of the attendant records.
Here, the affidavit describes facts and circumstances
showing that, two victims, Marcus Alexander and the decedent
Tafari Lawrence, arrived at Presbyterian Hospital on Sunday,
February 11, 2018, whereupon Lawrence succumbed to his
injuries at 2:18 OM, shortly after his arrival. The affidavit further
describes how [Noel] arrived at the same hospital suffering from
two gunshot wounds. The affidavit fails to indicate the date and
time [Noel] arrived at the hospital.6
While the affidavit indicates that police officer [sic] spoke to
[Noel] after his arrival at the hospital, and conducted an
investigation after hearing his account of an unrelated robbery
occurring at 59th Street and Baltimore Avenue, the affidavit does
not indicate when the discussion between officers took place,
when officers investigated the area of 59th Street and Baltimore
Avenue, or what methods the investigators used to confirm their
suspicion that [Noel’s] account was untruthful. The affidavit
further fails to indicate the time of [Noel’s] arrest.
Detectives secured cell phone records from three devices
[Noel] called during his incarceration, associating the numbers
with [Noel’s] family, associates, and a paramour. After examining
those records, [detectives] identified four numbers that ceased
contact after the time of the February 11, 2018, shooting. By
employing a process of elimination, the Commonwealth
determined that two of the phone numbers, 267-576-8390 and
215-873-1723, could be linked to [Noel’s] device. Detectives used
this information, coupled with their own experience of that CSLI
date[sic] could reveal pursuant to an investigation, in order to
secure warrants for each set of records.
The above averments, limited to four-corers analysis of the
affidavit, are insufficient to demonstrate anything beyond a mere
suspicion that [Noel] was involved in a criminal offense. While the
affidavit establishes that [Noel] connected with three numbers at
the time of his incarceration belonging to family, associates, and
a paramour, it fails to identify which individual possessed which
device, or how contact with these individuals was relevant to the
instant homicide. Though the investigators had access to certain
recordings of prison telephone conversations between [Noel] and
the users of these numbers, there is no indication that any
discussion concerning the instant offense occurred.
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The detectives’ investigation of the three identified numbers
further fails to establish the likelihood of discovering relevant CSLI
evidence in the targeted cell phones. As a preliminary matter, the
averments in the affidavit were insufficient to identify a single
number, instead the Commonwealth requests two [sic] search
two unrelated cellular device records on the belief that one relates
to the phone possessed by [Noel]. As the affidavit indicates, for
the 8390 device, only two contacts with the investigated phone
numbers were identified: one outgoing call from the 6053 device
at 7:30 PM on February 11, 2018 and an outgoing call from the
7876 number on February 12, 2018 at 6:21 PM, both well after
the time of the instant shooting and when the Commonwealth
alleges that [Noel] was either hospitalized or in custody. The
evidence relating to the targeted 1723 records is similarly lacking:
the Commonwealth identifies four attempted connections on
February 11, 2018 at 2:32 PM, 3:00 PM, 6:14 PM, and 6:15 PM,
in the form of outgoing calls from the 4644 device. The
Commonwealth further concedes that the record of each of these
outgoing calls indicates an attempt without a connection. Not only
does the Commonwealth again present evidence for cell phone
connections occurring after the time [Noel] was identified as
having been in custody, but fails to demonstrate that the evidence
used to identify this particular device would even appear on that
device’s records. This [c]ourt further notes that the affidavit for
the 1723 device records concludes by requesting to recover
records pertaining to the 8390 number, not the targeted number
on the affidavit.
The above evidence fails to establish probable cause as the
methodology used was insufficient to identify [Noel] as the user
of the device connected to the attended CSLI records, or how the
CSLI records from the targeted devices would be relevant after
conducting a cell site analysis of the records. Accordingly, based
on the information contained within the April 18, 2019 warrants,
the Commonwealth fails to carry its burden and the records are
suppressed.
___
6The affidavit does indicate that investigators disbelieved [Noel’s]
account of a robbery occurring before his arrival due to the
unlikelihood that such an event would go unreported on a Sunday
afternoon, implying that he entered the hospital near that time.
Amended Statement of Findings of Fact and Conclusions of Law, filed 6/24/19,
at 13-15.
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The Commonwealth asserts the suppression court erred as a matter of
law for two reasons: “First, [Noel] affirmatively abandoned ay privacy interest
that he may have enjoyed in the records in question. Second, those records
were secured by means of a search warrant that was properly approved by
the issuing authority.” Commonwealth’s Brief at 10.
In analyzing these claims, we are guided by our recent pronouncement
pertaining to searches and seizures as follows:
Once a defendant files a motion to suppress evidence, it is
the Commonwealth's burden to prove, by a preponderance of the
evidence, that the challenged evidence was not obtained in
violation of the defendant's rights. Commonwealth v. Wallace,
615 Pa. 395, 42 A.3d 1040, 1047–48 (2012) (citing Pa.R.Crim.P.
581(H)). When this Court reviews a ruling on a motion to
suppress, our standard of review is well settled: we are bound by
the suppression court's factual findings that are supported by the
record but we review its legal conclusions de novo.
Commonwealth v. Cooley, 632 Pa. 119, 118 A.3d 370, 373
(2015). “Our scope of review is limited to the record developed at
the suppression hearing, considering the evidence presented by
the Commonwealth as the prevailing party and any uncontradicted
evidence presented by [the defendant].” Commonwealth v.
Fulton, 179 A.3d 475, 487 (Pa. 2018) (citation omitted).
***
Both the Fourth Amendment of the United States
Constitution and Article 1, Section 8 of the Pennsylvania
Constitution “guarantee individuals freedom from unreasonable
searches and seizures.” Commonwealth v. Bostick, 958 A.2d
543, 550 (Pa. Super. 2008) (citation omitted). In Pennsylvania,
a defendant charged with a possessory offense has “automatic
standing” to pursue a suppression motion under Rule 581.
Commonwealth v. Enimpah, 630 Pa. 357, 106 A.3d 695, 698
(2014). However, in addition to standing, “a defendant must show
that he had a privacy interest in the place invaded or thing seized
that society is prepared to recognize as reasonable.” Id. “The
expectation of privacy is an inquiry into the validity of the search
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or seizure itself; if the defendant has no protected privacy
interest, neither the Fourth Amendment nor Article I, § 8 is
implicated.” Id. at 699.
This Court has found that an expectation of privacy will exist
when the individual exhibits an actual or subjective expectation of
privacy and that expectation is one that society is prepared to
recognize as reasonable. Commonwealth v. Jones, 874 A.2d
108, 118 (Pa. Super. 2005). In determining whether a person's
expectation of privacy is legitimate or reasonable, we must
consider the totality of the circumstances and the determination
“ultimately rests upon a balancing of the societal interests
involved.” Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d
615, 619 (1993) (citations omitted). “The constitutional
legitimacy of an expectation of privacy is not dependent on the
subjective intent of the individual asserting the right but on
whether the expectation is reasonable in light of all the
surrounding circumstances.” Commonwealth v. Viall, 890 A.2d
419, 422 (Pa. Super. 2005) (citation omitted).
Generally, the Fourth Amendment requires that law officers
obtain a warrant before they intrude into a place of privacy;
however, an exception to the warrant requirement exists when
the property seized has been abandoned. Commonwealth v.
Clark, 746 A.2d 1128, 1133 (Pa. Super. 2000). “[T]o prevail on a
suppression motion, a defendant must demonstrate a legitimate
expectation of privacy in the area searched or effects seized, and
such expectation cannot be established where a defendant has
meaningfully abdicated his control, ownership or possessory
interest.” Commonwealth v. Dowds, 563 Pa. 377, 761 A.2d
1125, 1131 (2000). Simply put, “no one has standing to complain
of a search or seizure of property that he has voluntarily
abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d
1216, 1220 (1976).
Our Supreme Court has explained, “abandonment of a
privacy interest is primarily a question of intent and may be
inferred from words spoken, acts done, and other objective
facts.” Dowds, 761 A.2d at 1131. “All relevant circumstances
existing at the time of the alleged abandonment should be
considered.” Shoatz, 366 A.2d at 1220. “The issue is not
abandonment in the strict property-right sense, but whether the
person prejudiced by the search had voluntarily discarded, left
behind, or otherwise relinquished his interest in the property in
question so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search.”
Id.
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Commonwealth v. Kane, 210 A.3d 324, 329–31 (Pa.Super. 2019)
(emphasis added), appeal denied, 218 A.3d 856 (Pa. 2019).
With regard to the device associated with the 215-873-1723 number, in
its Amended Statement of Findings of Fact and Conclusions of Law, the
suppression court “determine[d] that [Noel] lied when he initially spoke to
detectives on February 11 and February 13, 2018.” Amended Statement of
Findings of Fact and Conclusions of Law, 6/24/19, at 8. In fact, the record
reflects that when being questioned at the Homicide Division on February 13,
2018, Noel specifically had denied ownership of any cell phone at the time of
the homicide, and, instead, acknowledged only that he paid a bill for a cell
phone in his mother’s name with the number (267) 325-8100. N.T., 6/18/19,
at 18.
Yet, in granting Noel’s motion to suppress, the suppression court focuses
on the Commonwealth’s argument that Noel lacked a privacy interest in the
records because Locus Communications, a prepaid telecommunications
provider, was listed as the subscriber instead of Noel. The Commonwealth
posits that even assuming arguendo that the suppression court had been
correct to reject its line of reasoning at the suppression hearing that Noel
lacked a reasonable expectation of privacy in the 1723 phone from the outset
because its owner was a prepaid telecommunications provider Lotus
Communications, that conclusion does not foreclose the prosecutor’s
additional point that Noel could claim no reasonable expectation of privacy in
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the phone records retrieved from it after Noel had denied any association with
the 1723 phone in question. Commonwealth’s Brief at 14 (citing N.T.,
6/18/19, at 22).6 The Commonwealth contends this is “particularly true given
that the new request for records-unlike the initial search-did not involve a
physical intrusion into his personal effects and was performed by a detective
who had nothing to do with any prior misconduct.” Commonwealth’s Brief at
15. We agree.
“[T]o prevail on a suppression motion, a defendant must
demonstrate a legitimate expectation of privacy in the area
searched or effects seized, and such expectation cannot be
established where a defendant has meaningfully abdicated his
control, ownership or possessory interest.” Commonwealth
v. Dowds, 563 Pa. 377, 761 A.2d 1125, 1131 (2000). Simply put,
“no one has standing to complain of a search or seizure of property
that he has voluntarily abandoned.” Commonwealth v. Shoatz,
469 Pa. 545, 366 A.2d 1216, 1220 (1976).
____________________________________________
6 The Commonwealth stresses that it:
[d]id not oppose [Noel’s] motion to suppress text messages
retrieved from the 1723 phone after determining that Detective
Mole had seized a bag containing [Noel’s] personal effects,
retrieved the phone from inside it, illegally searched the phone,
and testified falsely about doing so [at] a preliminary hearing. But
the Commonwealth did not take a position with respect to the
discrete issue of whether [Noel] had a protected privacy interest
in cell site location data. Nor should the Commonwealth be
condemned for seeking to ensure that a murder may be
successfully prosecuted. Rather, the Commonwealth has done its
best to uphold its obligations to the criminal justice system under
unfortunate circumstances.
Brief for Appellant at 14-15, n. 5.
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Commonwealth v. Kane, 210 A.3d 324, 330 (Pa.Super. 2019) (emphasis
added), appeal denied, 218 A.3d 856 (2019).
In Commonwealth v. Fulton, 645 Pa. 296, 179 A.3d 475 (2018), the
Pennsylvania Supreme Court held that a warrantless search of any information
from a cell phone violates the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution, because
one’s expectation of privacy is in the cell phone itself, not in each individual
piece of information stored therein. Id at 319, 179 A.3d at 489, see also
Commonwealth v. Bowens, 2020 WL 255335 (Pa.Super. Jan 17, 2020).
Notwithstanding, “[w]hile the Pennsylvania Constitution affords greater
protection against unreasonable search and seizure than the Federal
Constitution…, it does not afford an individual a legitimate expectation of
privacy in the telephone bills of a third party. . . .” Commonwealth v.
Benson, 10 A.3d 1268, 1273 (Pa.Super. 2010), appeal denied, 611 Pa. 645,
24 A.3d 863 (2011).
Because Noel claimed he did not own a telephone at the time of the
homicide, he abandoned any legitimate expectation of privacy he may have
had in the location data associated with the phone numbers at issue as he
could have had no connection to them. Only following their independent
investigation and after securing a search warrant did police obtain the cell-
site location information from a telephone network and analyze phone records
of phone numbers assigned to third parties who Noel regularly called while he
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was in prison, each of which had the phone number ending in 1723 in
common. Notwithstanding, the suppression court reasons that:
the Commonwealth is requesting that both sides of the same coin
appear face up when analyzing [Noel’s] privacy interest in the
instant phone records. On one hand, [Noel’s] possession, use,
and ownership interest of a telecommunications device informs
the relevance of the records in the instant matter. On the other
hand, the lack of that exact same ownership interest should be
interpreted to prevent [Noel] from defending on any constitutional
privacy grounds. Clearly, these mutually exclusive positions
cannot be permitted to co-exist with respect to the same
evidence. Either the Commonwealth contends that [Noel] does
not have an ownership interest, and concedes the records’
irrelevance, or the records’ relevance with respect to [Noel]
derives from his ownership interest in that information. A hybrid
combination of two juxtaposed premises and conclusion veers into
the realm of intellectual dishonesty and convoluted legal
precedent.
Amended Statement of Findings of Fact and Conclusions of Law, 6/24/19, at
11-12.
To the contrary, the issue of Noel’s ownership interest, or lack thereof,
in a telecommunications device is distinct from the cell-site location
information obtained from a search of three other devices with which Noel had
contact while incarcerated. Certainly, Noel cannot claim he had an
expectation of privacy in the calls he made from prison, nor has he proven he
has a reasonable expectation of privacy in the phone records of telephones
owned by third parties; it is they who would receive and have the obligation
to pay the telephone bills containing the records of telephone numbers dialed,
including the numbers ending in 1723 and 8390. see Benson, supra at 1273
(finding that where a third party owned the phone and bore the responsibility
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of paying the bills containing the call records in question, the appellant did not
have an expectation of privacy in those records, nor did he have a legal right
to control access to information from the telephone company).
Moreover, the potential relevance of these phone records at the time of
trial is not foreclosed by the Commonwealth’s earlier concession that
Detectives Mole and Murray performed an illegal search of a cell phone in
Noel’s possession at the hospital, as the suppression court acknowledges:
While the Commonwealth failed to demonstrate probable cause in
this matter, this [c]ourt agrees in principal that a novel search of
[Noel’s] prison phone calls could, in theory, be used to identify
relevant evidence wholly independent from any other method,
illegal or otherwise, to secure CSLI data. Here, the
Commonwealth employed two separate detectives who were
previously uninvolved in the instant investigation to secure
evidence without using any data or information obtained from the
suppressed cell phone. This type of investigation is sufficiently
separate and attenuated to invoke the independent source
doctrine.
[Noel] further alleges that by virtue of the suppression of
the recovered cell phone, any CSLI derived from the attendant
phone records must similarly be excluded, as the suppression of
the phone precludes any and all data relating to that phone.
[Noel’s] own legally sound averment contained in his suppression
motion precludes this [c]ourt from reaching such a conclusion. As
[Noel] correctly states, the Supreme Court of the United States’
holding in Carpenter [v. United States, 138 S. Ct. 2206 (2018)]
requires that government investigators obtain a warrant
supported by probable cause before securing CSLI records.
Carpenter, 138 S. Ct. at 2221.[7] This requirement is distinctive
____________________________________________
7 As this Court recently stressed, “the High Court in Carpenter emphasized
that its decision was a narrow one and did not extend to matters not before
it.” Commonwealth v. Pacheo, 2020 WL 400243, at *7 (Pa.Super. Jan. 24,
2020) (applying the analysis in Carpenter which dealt with historical cell site
location information to real-time CSLI tracking and holding an individual
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from an investigator’s obligation to secure a warrant to search a
physical phone, a clear and obvious requirement. By virtue of this
distinction, this [c]ourt concludes that cell phone records and
attendant CSLI searches can, theoretically, be supported by a
wholly separate finding of probable cause unrelated to the
evidence supporting the search of a physical phone. Accordingly,
the suppression of a mobile device cannot automatically preclude
the discovery of the related phone records.
Amended Statement of Findings of Fact and Conclusions of Law, filed 6/24/19,
at 16-17.
Even were we to have found Noel has demonstrated a legitimate
expectation of privacy in the cell-site location data at issue, his claim would
fail, for Detective Hammond protected such interest by securing a search
warrant before obtaining that information.
As this Court recently reiterated,
Both the Constitution of the United States and the
Constitution of the Commonwealth of Pennsylvania safeguard
individuals from unreasonable governmental intrusions into the
privacy of their homes. “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrant shall
issue, but upon probable cause, supported by Oath or affirmation
....” U.S. Const. Amend. IV. Similarly, Article I, § 8 of the
Constitution of the Commonwealth of Pennsylvania provides:
The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches and
seizures, and no warrant to search any place or to seize
any person or things shall issue without describing them
as nearly as may be, nor without probable cause,
supported by oath or affirmation subscribed to by the
affiant.
____________________________________________
retains a legitimate expectation of privacy in the record of his movements
captured through real-time cell-site location information).
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To determine if probable cause exists, courts employ the
“totality-of-the-circumstances approach ....” Gates, 462 U.S. at
230, 103 S. Ct. 2317. Under this test, the Supreme Court of the
United States explained:
the probable cause standard is ... a practical,
nontechnical conception. In dealing with probable cause,
as the very name implies, we deal with probabilities.
These are not technical; they are the factual and
practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.
Our observation in United States v. Cortez, 449 U.S.
411, ... (1981), regarding “particularized suspicion,” is
also applicable to the probable cause standard ...
probable cause is a fluid concept — turning on the
assessment of probabilities in particular factual contexts
— not readily, or even usefully, reduced to a neat set of
legal rules.
*****
The 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.
Id. at 231–32, 238, 103 S. Ct. 2317 (some punctuation and
citations omitted).
Commonwealth v. Batista, 219 A.3d 1199, 1202–03 (Pa.Super. 2019)
(footnote omitted). In addition,
“[i]t is a fundamental rule of law that a warrant must name or
describe with particularity the property to be seized and the
person or place to be searched[;]” this particularity requirement
prohibits both a warrant that is not particular enough and a
warrant that is overbroad. Commonwealth v. Dougalewicz,
113 A.3d 817, 827 (Pa. Super. 2015) (citation omitted). A warrant
that is not particular enough “authorizes a search in terms so
ambiguous as to allow the executing officers to pick and choose
among an individual's possessions to find which items to seize[,]”
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resulting in “the general ‘rummaging’ banned by the Fourth
Amendment.” Id. An overbroad warrant “authorizes in clear or
specific terms the seizure of an entire set of items, or documents,
many of which will prove unrelated to the crime under
investigation[,]” and “is unconstitutional because it authorizes a
general search and seizure.” Id.
However, search warrants should “be read in a common
sense fashion and should not be invalidated by hypertechnical
interpretations. This may mean, for instance, that when an exact
description of a particular item is not possible, a generic
description will suffice.” Commonwealth v. Rega, 593 Pa. 659,
933 A.2d 997, 1012 (2007) (quoting Pa.R.Crim.P. 205 cmt.).
Accordingly, “where the items to be seized are as precisely
identified as the nature of the activity permits ... the searching
officer is only required to describe the general class of the item he
is seeking.” Id. (citation omitted). Importantly, “[b]ecause the
particularity requirement in Article I, Section 8 is more stringent
than in the Fourth Amendment, if the warrant is satisfactory under
the Pennsylvania Constitution it will also be satisfactory under the
federal Constitution.” Commonwealth v. Orie, 88 A.3d 983,
1003 (Pa. Super. 2014).
Kane, supra at 332-33.
Herein, the suppression court held the April 18, 2019, warrant was
issued without the requisite probable cause. The court summarizes the
averments set forth in the affidavit of probable cause underlying the warrant
as follows:
[T]he affidavit describes facts and circumstances showing
that, two victims, Marcus Alexander and the decedent Tafari
Lawrence, arrived at Presbyterian Hospital on Sunday, February
11, 2018, whereupon Lawrence succumbed to his injuries at 2:18
PM, shortly after his arrival. The affidavit further describes how
[Noel] arrived at the same hospital suffering from two gunshot
wounds. The affidavit fails to indicate the date and time [Noel]
arrived at the hospital.6
While the affidavit indicates that police officer [sic] spoke to
[Noel] after his arrival at the hospital, and conducted an
investigation after hearing his account of an unrelated robbery
occurring at 59th Street and Baltimore Avenue, the affidavit does
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not indicate when the discussion between officers took place,
when officers investigated the area of 59th Street and Baltimore
Avenue, or what methods the investigators used to confirm their
suspicion that [Noel’s] account was untruthful. The affidavit
further fails to indicate the time of [Noel’s] arrest.
Detectives secured cell phone records from three devices
[Noel] called during his incarceration, associating the numbers
with [Noel’s] family, associates, and a paramour. After examining
those records, [sic] identified four numbers that ceased contact
after the time of the February 11, 2018, shooting. By employing
a process of elimination, the Commonwealth determined that two
of the phone numbers, 267-576-8390 and 215 873-1723, could
be linked to [Noel’s] device. Detectives used this information,
coupled with their own experience of what CSLI date [sic] could
reveal pursuant to an investigation, in order to secure warrants
for each set of records.
The above averments, limited to four-corners analysis of the
affidavit, are insufficient to demonstrate anything beyond a mere
suspicion that [Noel] was involved in a criminal offense. While the
affidavit establishes that [Noel] connected with three numbers at
the time of his incarceration belonging to family, associates, and
a paramour, it fails to identify which individual possessed which
device, or how contact with these individuals was relevant to the
instant homicide. Though the investigators had access to certain
recordings of prison telephone conversations between [Noel] and
the users of these numbers, there is no indication that any
discussion concerning the instant offense occurred.
The detectives’ investigation of the three identified numbers
further fails to establish the likelihood of discovering relevant CSLI
evidence in the targeted cell phones. As a preliminary matter, the
averments in the affidavit were insufficient to identify a single
number, instead the Commonwealth requests two [sic] search two
unrelated cellular device records on the belief that one relates to
the phone possessed by [Noel]. As the affidavit indicates, for the
8390 device, only two contacts with the investigated phone
numbers were identified: one outgoing call from the 6053 device
at 7:30 PM on February 11, 2018 and an outgoing call from the
7876 number on February 12, 2018 at 6:21 PM, both well after
the time of the instant shooting and when the Commonwealth
alleges that [Noel] was either hospitalized or in custody. The
evidence relating to the targeted 1723 records is similarly lacking:
The Commonwealth identifies four attempted connections on
February 11, 2018 at 2:32 PM, 3:00 PM, 6:14 PM, and 6:15, PM
in the form of outgoing calls from the 4644 device. The
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Commonwealth further concedes that the record of each of these
outgoing calls indicates an attempt without a connection. Not only
does the Commonwealth again present evidence for cell phone
connections occurring after the time [Noel] was identified as
having been in custody, but fails to demonstrate that the evidence
used to identify this particular device would even appear on that
device’s records. This [c]ourt further notes that the affidavit for
the 1723 device records concludes by requesting to recover
records pertaining to the 8390 number, not the targeted number
of the affidavit.
The above evidence fails to establish probable cause as the
methodology used was insufficient to identify [Noel] as the user
of the device connected to the attended CSLI records, or how the
CSLI records from the targeted devices would be relevant after
conducting a cell site analysis of the records. Accordingly, based
on the information contained within the April 18, 2019 warrants,
the Commonwealth fails to carry its burden and the records are
suppressed.
___
6 The affidavit does indicate that investigators disbelieved [Noel’s]
account of a robbery occurring before his arrival due to the
unlikelihood that such an event would go unreported on a Sunday
afternoon, implying that he entered the hospital near that time.
Amended Statement of Findings of Fact and Conclusions of Law, 1/24/20, at
13-15.
Upon careful review of the uncontradicted facts and applicable law, we
conclude the trial court erred by finding a lack of probable cause to support
the search warrant at issue. In doing so, it focused almost exclusively on
what it deemed to be missing from the Affidavit of Probable Cause, instead of
examining the totality of circumstances as set forth therein as required.
For example, the suppression court stressed that Detective Hammond
did not provide a time-frame pertaining to when Noel arrived at Presbyterian
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Hospital, the manner in which officers inquired about the robbery, or when
Noel had been arrested. However, as stated previously, see fn. 4, supra,
the Affidavit of Probable Cause does indicate that “Victim #1” and “Victim #2”
arrived at Presbyterian Hospital on Sunday, February 11, 2018, suffering from
gunshot wounds and that “a third shooting victim,” Noel, also arrived suffering
from multiple gunshot wounds and claiming to have been involved in a robbery
at 59th and Baltimore. Thereafter, the Affidavit states investigating officers
sought and found no report of a “robbery gunshots, hospital care or even a
disturbance at 59th and Baltimore around the time Noel alleged the incident
happened.” Affidavit of Probable Cause, 4/18/19, at 2. The Affidavit adds
that “Noel was arrested on 2/11/2018 and has been in custody ever since.”
Id. at 3 ¶ 1.
While there are no specific times accompanying each of the
aforementioned occurrences, a common sense reading of the narrative
suggests Noel arrived at Presbyterian Hospital shortly after Messrs. Lawrence
and Alexander on Sunday, February 11, 2018, at which time he informed
officers he had been involved in a burglary at 59th and Baltimore, and officers
then made their inquiry into the alleged burglary on that date. As no report
of any disturbance at 59th and Baltimore had been made on that Sunday
afternoon, officers found his story “extremely suspect” and placed him under
arrest on February 11, 2018.
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The suppression court also avers that the Affidavit of Probable Cause is
devoid of allegations that the call detail records for numbers with which Noel
communicated while incarcerated will reveal relevant information. On
February 13, 2018, during an interview with police, Noel supplied additional
details about the alleged robbery, which cast further doubt upon his prior
version the events of February 11, 2018. Noel explained that while he was
being robbed by an unknown male, a second unknown male approached him,
offered him help and drove him to the hospital in Noel’s vehicle. Noel had no
information regarding man’s identity, nor did he know the man’s whereabouts
or that of his vehicle. Id. at 2. Their suspicions about Noel’s involvement in
the shootings heightened, “Homicide Detectives obtained a list of phone
numbers with whom he is communicating with [sic] while incarcerated.” Id.
at 3, ¶ 1. The Affidavit specifies that in light of the call activity observed
while Noel had been incarcerated, the 1723 and 8390 numbers “are possible
phone numbers that may be attributed to [Noel].” Id. at 4. The Affidavit also
states that the “cell tower/sector information” can be used to “provide
information used to identify the number that the device is communicating with
during each connection which can be used to ultimately identify the person(s)
that the user of the target device is communicating with.” Id.
Doubting Noel’s veracity and believing that it was likely he had been
involved in the shootings of Messrs. Lawrence and Alexander, Detective
Hammond, who had numerous years’ experience investigating homicides and
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experience with cellular handsets, requested the call detail records in an effort
to ascertain whether wither the 267-576-8390 or 215-873-1723 phone
numbers could be associated with Noel. Id. at 4. If so, such information
could be utilized to ascertain Noel’s whereabouts at the time of the shootings.
While we agree with the suppression court that page four of the Affidavit
mentions only the 8390 number as the “target number,” pages one and three
thereof list the 1723 number as a second target number. Id. at 1, 3-4. As
such, the suppression court’s focus on the substance of Noel’s conversations
and the identity of the individuals with whom he spoke is inapposite, for
Detective Hammond sought the warrant in an effort to ascertain Noel’s
connection, if any, to the target phone numbers and to discern whether either
number had been in the vicinity of the crime scene on February 11, 2018.
Thus, even had Noel’s privacy rights been implicated, we would conclude
that the trial court erred as a matter of law in suppressing the evidence, as
the search warrant was based on a showing of probable cause and issued in
accordance with the Fourth Amendment.
Order reversed. Case remanded for further proceedings consistent with
this Memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/20
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