Com. v. Stevenson, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TYMIR STEVENSON : No. 1455 EDA 2022
Appeal from the Order Entered May 18, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007779-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 15, 2023
The Commonwealth of Pennsylvania appeals from the order granting
Tymir Stevenson’s motion to suppress the results of the search of his car
based on the validity of the search warrant. We affirm in part, reverse in part,
and remand.
On November 4, 2020, a detective from the Philadelphia Police
Department applied for a warrant to search Stevenson’s car. The affidavit
supporting the application, in its entirety, consisted of the following statement.
On 10-28-20 at approximately 4:55pm, 15th District Officers
responded to the area of 1900 Ruan St. to a radio call for
gunshots. Upon arrival, sixteen 9mm FCC’s were located at 1900
Ruan St. and a vehicle with multiple bullet holes was unattended
outside 1930 Ruan St. Neighbors reported an unknown B/M ran
from the vehicle eastbound on Ruan St. towards Torresdale Ave.
It was later found the complainant is the owner of the vehicle, a
2019 Chevy Impala with Pa tag: LHG9496, and he was
transported to Temple Hospital by an unknown person in a private
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vehicle. He was shot one time in the right shoulder and was in
stable condition. The vehicle was towed to 4298 Macalester St.
Trial Court Opinion, 9/28/22, at 1 (quoting Application for Search Warrant and
Affidavit, 11/4/20, at 2).1 The items to be searched for and seized included,
“any and all firearms or ballistic evidence. Any photographs or proof of
ownership. And anything of an evidentiary value.” Id. at 2 (quoting
Application for Search Warrant and Affidavit at 1).
The warrant was issued and executed. During the search, the police
seized bullet fragments, Stevenson’s driver’s license, a firearm, and a
backpack containing marijuana. See Complaint, Affidavit of Probable Cause,
4/1/21, at 2. The Commonwealth charged Stevenson with drugs and firearms
violations.2 On his trial date, Stevenson made an oral motion to suppress the
results of the search, arguing that the warrant was not supported by probable
cause. N.T., 5/18/22, at 3-4.
After argument, the court granted the motion. It found the affidavit for
the warrant was “extraordinarily sparse,” and lacking not only information
about the affiant, such as his “assignment to the case, how long he was a
detective, what his duties were, or his experience as a police officer,” but also
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1 The Application for Search Warrant and Affidavit is not otherwise included in
the certified record, although it was marked as an exhibit at the suppression
hearing.
2 The Commonwealth charged Stevenson with possession of a controlled
substance with intent to deliver, possession of a controlled substance,
possession of drug paraphernalia, carrying firearms in public in Philadelphia,
and possession of an instrument of crime. See 35 P.S. §§ 780-113(a)(30),
(a)(16), (a)(32); 18 Pa.C.S.A. §§ 6108, 907(a), respectively.
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the identity of the neighbors who had relayed information about the shooting
or how they obtained it. Trial Court Opinion, 9/28/22, at 7 (emphasis in
original). It thus concluded the affidavit lacked “veracity and basis of
knowledge” for probable cause to believe the car held evidence of criminal
activity. Id. at 8 (quoting Commonwealth v. David M. Torres, 764 A.2d
532, 537 (Pa. 2001)).
The court further found that even if the affidavit contained enough
information to render the hearsay statements reliable, it would only give rise
to probable cause to search the vehicle for bullet fragments. Id. The court
observed that the affidavit contained nothing to suggest Stevenson had had a
firearm, or that there were firearms in the vehicle, as the unidentified
neighbors did not report that Stevenson had interacted with the shooter,
possessed a firearm, or fired any shots. Id. at 7. Moreover, the court
observed, the unidentified neighbors had never even stated that the bullet
holes in the car were from the shooting that had been reported, and, while
the shell casings were located at 1900 Ruan St., the car was found at 1930
Ruan St. Id. The court also noted that the affidavit did not include any
information regarding the police investigation that took place in the seven
days between the shooting and the warrant application. Id. at 9 n.6. The court
summarized, “All told, we have shots fired, 16 shell casings, and a car down
the street with some number of bullet holes located somewhere on the vehicle,
from which an unknown black male allegedly ran.” Id. at 7-8.
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The court also explained that the warrant’s provision allowing the police
to search for “anything of evidentiary value” amounted to “carte blanche
authorization to recover literally ‘anything.’” Id. at 9 (emphasis in original)
(citing Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989), and
Commonwealth v. Santner, 454 A.2d 24, 28-29 (Pa.Super. 1982)). In this
aspect, the court found the warrant to be vague and overly broad. Id. The
court also noted, as to a search for ballistics evidence, the warrant failed to
specify the exact place to be searched, i.e., the location of the bullet holes in
the car. Id. at 8 n.3. The court acknowledged that some of the items the
police seized may have been in plain view from a lawful vantage point but
found the record on that issue was incomplete. Id. at 8 n.4.
The Commonwealth appealed,3 and presents the following issue: “Did
the suppression court err in determining that there was no probable cause to
support a warrant that authorized police to search for ballistics evidence in a
car that had been struck by gunfire during a shoot-out?” Commonwealth’s Br.
at 4.
The Commonwealth argues the suppression court erred in conducting a
de novo review of the issuing authority’s probable cause determination, rather
than giving deference to that authority when determining, in a common-sense
and non-technical manner, whether there is substantial evidence in the record
supporting the decision to issue the warrant. Id. at 8-9 (citing, inter alia,
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3 The Commonwealth certified in its notice of appeal that the suppression order
terminates or substantially handicaps the prosecution. See Pa.R.A.P. 311(d).
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Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010)). The
Commonwealth posits there was substantial evidence in the record to support
the finding of probable cause, as “[i]t is a common-sense inference that a
search of a car riddled with bullet holes at the scene of a shooting would
produce proof of ownership of the car and ballistics evidence of the shooting
under investigation.” Id. at 10. The Commonwealth thus contends the court
erred in concluding the warrant failed because the affidavit did not include the
number of bullet holes in the “bullet-riddled” car; the background of the police
officer; or any additional information the police learned in the seven days
between the shooting and the warrant application.
The Commonwealth also argues that the search for the non-ballistics
items was supported by probable cause, as there was common-sense reason
to believe guns, proof of ownership, and other evidence would be found in a
bullet-riddled car found at the scene of a shooting. Id. at 14. In the
alternative, the Commonwealth argues the court erred in invalidating the
entire warrant, as those portions of the warrant relating to non-ballistics
evidence were severable. Finally, the Commonwealth complains that the court
erred in faulting the Commonwealth for failing to establish where in the vehicle
the police recovered the backpack — i.e., whether it was in plain view — when
Stevenson had only challenged the four corners of the warrant.
We begin with the applicable standards. When deciding whether to issue
a search warrant, the issuing authority must apply a “totality of the
circumstances test” to determine whether probable cause exists. David M.
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Torres, 764 A.2d at 537. That is, it must “make a practical, common-sense
decision whether, given all of the circumstances set forth in the affidavit before
him, including the veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Id. (quotation marks and citations
omitted). The issuing authority is limited to reviewing the information within
the four corners of the affidavit. Pa.R.Crim.P. 203(B).
A court reviewing the probable cause determination must not conduct a
de novo review, but “ensure that the magistrate had a substantial basis for
concluding that probable cause existed.” David M. Torres, 764 A.2d at 537-
38, 540. “[T]he reviewing court must accord deference to the issuing
authority’s probable cause determination, and must view the information
offered to establish probable cause in a common-sense, non-technical
manner.” Id. at 538. At the same time, the reviewing court must balance “the
relative weights of the indicia of reliability (and unreliability) attending [the]
information [included in the affidavit]” when considering whether there was a
substantial basis to support the magistrate’s probable cause determination.
Id. at 540.
The basis of knowledge and veracity of anonymous sources are
particularly important “where the affidavit of probable cause is almost entirely
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based on information gleaned from anonymous sources.” Id.4 Even when an
affidavit indicates the police know the identity of an anonymous source, an
issuing authority must consider the person to be anonymous if the affidavit
does not give the person’s name or indicate that they previously provided
confidential information to the police. Id. at 537 n.3. Therefore, a suppression
court does not err in invalidating a warrant where the affidavit contains “no
way for the issuing authority to tell how the anonymous sources obtained their
information,” or otherwise assess their reliability. Id. at 538; see id. at 539
(finding affidavit for warrant to search defendant’s residence lacked probable
cause where the affidavit did not set forth the anonymous sources’ bases of
knowledge that the defendant had been involved in a drug deal with the
decedent, and there was minimal independent police investigation to
corroborate the allegations).
A warrant must describe with particularity the things which are to be
seized and the place to be searched. Pa.R.Crim.P. 205(A)(2), (A)(3).5 “A
warrant unconstitutional for its lack of particularity 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.” Santner, 454
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4 An identified source is inherently more reliable than an anonymous source
because the person has placed himself/herself/themself at risk for prosecution
for giving false information to the police. Commonwealth v. Butler, 194
A.3d 145, 148-49 (Pa.Super. 2018).
5 The protections of the Pennsylvania Constitution are more stringent in this
regard than the federal Constitution. Commonwealth v. Dougalewicz, 113
A.3d 817, 827 (Pa.Super. 2015).
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A.2d at 25 n.2. In the same vein, the warrant must not be overly broad by
authorizing the seizure of “an entire set of items . . . many of which will prove
unrelated to the crime under investigation.” Id.
Accordingly, the affidavit must indicate a nexus between the specific and
limited items to be seized, the place to be searched, and the alleged criminal
behavior. Id. at 29 (citation omitted); see also Commonwealth v. Wallace,
42 A.3d 1040, 1049-50 (Pa. 2012) (“[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”) (citation omitted). A person’s mere proximity to
illegal activity does not give rise to probable cause to search their property.
See Commonwealth v. Lavelle Johnson, 240 A.3d 575, 588-89 (Pa. 2020)
(OAJC) (finding an affidavit asserting the defendant was found in an
apartment with illegal contraband did not provide probable cause to search
his cell phone because it did not allege he “was personally in possession of (or
even aware of) the drugs, guns, or anything else related to criminal activity
found in the apartment”).
For example, in Commonwealth v. Eric Torres, 177 A.3d 263(Pa.Super. 2017), this Court held there was an insufficient nexus between the
crimes under investigation, the items to be seized, and the place to be
searched. Id. at 272. The affidavit asserted that the defendant fled from a
traffic stop, and, during his arrest, shot a police officer in the stomach. Id. at
270-71. The warrant allowed a search of the defendant’s residence for “all
ammunition or ballistics evidence . . . as well as any and all handguns, rifles,
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shotguns, ammunition, gun storage boxes/containers, proof of identification,
and any other items of evidentiary value.” Id. at 272. We observed that the
defendant’s identification was not in doubt, and the search of the residence
would not have uncovered the firearm used in the shooting, which was already
in the possession of the police. Id. at 273.
However, in Commonwealth v. Jones — invoked here by the
Commonwealth — the Pennsylvania Supreme Court held that a warrant may
be used as a general investigative tool where the police have more than “mere
suspicion” that a crime occurred and are able to describe the items to be
searched for “as is reasonably possible.” 988 A.2d at 657. In that case, the
affidavit asserted the police responded to a call of shots fired and found the
victim dead at the scene with a gunshot wound to his head. Id. at 651-52.
Although the affidavit gave the victim’s identity and did not mention drugs,
the warrant sought to search the victim’s nearby dormitory room for “[a]ny
evidence that provides Identification/Cellular Phones, Pagers, Drugs, Drug
Paraph[er]nalia, handguns, [and] bullets.” Id. at 652.
In finding there was probable cause to search the residence for these
items, the Court noted that the affidavit identified the last residence of the
victim, “within which there was a fair probability that the police would find
evidence of the murder that had occurred nearby,” and sought specific items
“which, if found, could provide leads with regard to any individuals who had
spoken with or contacted the victim on the night of his murder.” Id. at 656-
57. It also stated that the police required conclusive evidence of the victim’s
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identification to “conduct an investigation intelligently,” provide proof that a
specific individual had been murdered, and “have all reasonable certainty
before contacting family members to inform them that their loved one has
been murdered.” Id. At 657.6
Similarly, in Commonwealth v. Harve Lamar Johnson, 42 A.3d 1017(Pa. 2012), the police knew a two-year old child had been assaulted inside a
residence but did not know the details of the assault. Id. at 1030.7 The child’s
mother and her boyfriend gave the police conflicting accounts, and the child’s
mother told the police that her boyfriend had beaten the child, potentially with
a game controller and cord. Id. A warrant was issued to search the residence
for
Items relating to assault of [victim] including but not limited to
belts, cords, game controllers, sticks, bedding material, blood,
hairs, fibers, fingerprints, clothing and any and all other items
associated with this assault. Also photographs, and
measurements of residence including exterior, and any other
items or contraband found while conducting above search.
Id. at 1129-30. Although the warrant allowed a broad search for “any and all
other items associated with [the] assault,” the Supreme Court held the
warrant was not vague or overly broad, given the affidavit established the
police knew the extent of the victim’s injuries and the location of the assault,
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6 The Jones Court was unanimous in the result but divided on the issue of
standard of review. See Eric Torres, 177 A.3d at 270 n.3.
7 The child died from her injuries after the affidavit was sworn.
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and the mother and her boyfriend gave conflicting accounts of how the assault
occurred. Id. at 1031-32.
Here, the affidavit of probable cause asserted that the police responded
to a radio call for gunshots, where they found fired shell casings, and, at a
nearby residence, a car with multiple bullet holes. Although the initial radio
call must be considered anonymous,8 the police independently corroborated
the information by locating the shell casings and car. The common-sense
conclusion to be drawn from this information is that the car was illegally shot
while parked on the street, and that the shell casings were discarded at that
time.
Next, the affidavit asserts that “neighbors” reported an unknown black
man ran from the vehicle. The reasonable assumption here is that the man
was inside the vehicle when it was illegally shot. However, as the affidavit
does not identify the neighbors, this information is, on its own, of limited
reliability. See David M. Torres, 764 A.2d at 537 n.3.
The affidavit then asserts “[i]t was later found” that Stevenson owned
the vehicle, and, at some point, was shot, transported to the hospital, and in
stable condition. The affidavit does not state whether the affiant came upon
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8 See David M. Torres, 764 A.2d at 538. But see Navarette v. California,
134 S. Ct. 1683 (2014) (holding anonymous 911 call that suspect ran
reporting party off roadway was sufficiently reliable to support traffic stop
where tip indicated the caller had eyewitness knowledge of the dangerous
driving, was making a near-contemporaneous statement, and the 911 system
records the informants voice and traces calls).
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this information through an anonymous source, or through independent police
investigation.
Nonetheless, considering that the police can determine the owner of a
vehicle through its make, model, and registration number—information which
the affiant included—and that the affidavit included the name of the hospital
where Stevenson was convalescing, a common-sense conclusion is that this
information was corroborated by the police, and reliable enough to support
probable cause to believe that Stevenson is the person the neighbors reported
ran from the shooting, that he owns the vehicle, and that he was shot at the
same time his car was shot and the bullet fragments were discharged. Cf.
David M. Torres, 764 A.2d at 537 (finding no probable cause where sources
were anonymous with minimal police corroboration). We therefore hold the
trial court erred in finding the affidavit insufficiently reliable to give rise to
probable cause to search the car for ballistics evidence that might help the
police determine the manner of the shooting.
However, we affirm the trial court’s ruling that the affidavit did not give
rise to probable cause to conduct a search for non-ballistics evidence. The
affidavit gives probable cause to believe that a single crime occurred: the
shooting of Stevenson and his car. Any search warrant must therefore have a
nexus between that crime, the items to be seized, and the place to be
searched.
First, there was no indication that Stevenson possessed the firearm used
in the shooting, and common sense does not support the conclusion that the
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perpetrator of a shooting would discard his firearm inside of the car he just
shot. See Eric Torres, 177 A.3d at 272 (finding no probable cause to search
residence for firearms when the search would not produce the firearm used in
the shooting); see also Lavelle Johnson, 240 A.3d at 589 (finding no
probable cause to search a person’s phone where the affidavit did not allege
a connection between that person and the contraband found in another’s
apartment).
Nor was there probable cause to search the car for the identification of
the vehicle’s owner, Stevenson, who was evidently not the perpetrator, and
whose identity was already known to the police. See Eric Torres, 177 A.3d
at 272 (finding no probable cause to search residence for identification of
shooter, when his identification was not in doubt); cf. Jones (finding probable
cause to search victim’s residence for evidence confirming victim’s identity,
necessary for conducting murder investigation intelligently and correctly
informing next of kin).
Nor did the affidavit provide a nexus to allow a search for photographs
or “anything of evidentiary value” in Stevenson’s car. Although a search
warrant may be used as an investigatory tool, and here, the police had
reasonably definitive knowledge that an illegal shooting had occurred, this was
not a particularized description of items that would probably be found in the
car. Nor, as was the case in Harve Lamar Johnson and Jones, is this a case
involving homicide or the assault of an infant, where a broader, more
generalized search of a silenced victim’s property might be warranted.
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Our law demands a showing of probable cause to believe that particular
evidence of the crime that was committed will be found in a particular
place. Categorial assumptions do not suffice. See Commonwealth v.
Jacoby, 170 A.3d 1065, 1085 (Pa. 2017) (rejecting assumption that felons
do not discard firearms, even those used in murders); Commonwealth v.
Ani, 293 A.3d 704, 727 (Pa.Super. 2023) (rejecting assumption that home
invaders are likely to have used their cell phones to aid in the commission of
their crimes); Commonwealth v. Nicholson, 262 A.3d 1276, 1282
(Pa.Super. 2021) (rejecting affiant’s “boilerplate” assertion that his training
and experience gave probable cause to believe that suspected drug dealer
kept drugs, weapons, and other contraband in his home). In short, the instant
affidavit alleged a specific crime, but the warrant’s provisions to search the
entire car for firearms, identification, photographs, or “any” evidence was not
supported by probable cause.
Because we find there was probable cause to support a search of the
car for ballistics evidence, but not the other items, we find the court erred in
failing to sever the warrant. Under the doctrine of severability, a suppression
court might suppress only the seized evidence for which the warrant did not
provide probable cause to search. Commonwealth v. Anderson, 40 A.3d
1245, 1248 (Pa.Super. 2012). Here, the court should have only suppressed
the non-ballistics evidence which lacked a nexus with the crime alleged in the
affidavit. We therefore reverse the court’s grant of Stevenson’s suppression
motion insofar as it pertains to the ballistics evidence.
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As to the Commonwealth’s assertion that some of the evidence may be
admissible under the plain view doctrine or the inevitable discovery doctrine,
we find that argument waived by the Commonwealth’s failure to present it to
the court below. See Pa.R.A.P. 302(a). The trial court did not prevent the
Commonwealth from making this argument in response to the motion to
suppress.
Order affirmed in part and reversed in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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