Com. v. Nicholson, A. ( 2021 )

J-S19011-21
2021 PA Super 193COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANTOIN TYRELL NICHOLSON : No. 66 WDA 2021
Appeal from the Suppression Order Entered December 15, 2020
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0002507-2019
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: SEPTEMBER 27, 2021
The Commonwealth of Pennsylvania appeals from an order of the Court
of Common Pleas of Beaver County (suppression court) granting Antoin Tyrell
Nicholson’s (Nicholson) dispositive motion to suppress evidence obtained from
a search of his home. Following a hearing on the motion, the suppression
court ruled that the evidence was obtained pursuant to an invalid warrant
which had been erroneously granted by the Magisterial District Judge. The
Commonwealth argues in its appeal that the suppression court erred in finding
that the warrant was not supported by probable cause. Finding no merit in
these appellate claims, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
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I.
This appeal concerns whether a search warrant issued for Nicholson’s
home was supported by probable cause. The affidavit of probable cause used
to obtain this warrant was authored by Stephen Kelch, a New Brighton Area
Police Officer and part of the Pennsylvania Attorney General’s Drug Task
Force.
Officer Kelch wrote in his affidavit that the New Brighton Police
Department’s investigation began with a tip from a confidential informant (CI).
The CI reported that Nicholson was selling controlled substances, driving a
blue Dodge Caliber, and residing at 1235 6th Avenue, New Brighton,
Pennsylvania. Officer Kelch verified the CI’s information and worked with the
CI to set up two controlled purchases of crack cocaine from Nicholson using
marked bills.
Officer Kelch’s descriptions of the controlled buys were summarized by
the suppression court as follows:
The first controlled buy occurred during the week of November 10,
2019. The [CI] contacted “Wes” and requested to purchase crack
cocaine. “Wes” instructed the confidential informant to find a blue
Dodge Caliber at the 500 block of 5th Avenue and open the door,
exchange money for crack cocaine, and leave. The [CI] performed
as directed while Corporeal Kelch and Task Force Officer Conley
observed from a distance. Shortly after the confidential informant
completed the transaction, the officers saw “Wes” exit a nearby
Dollar Store and enter the car. “Wes” then drove directly to 1235
6th Avenue. Task Force Officer Conley followed “Wes” and saw
him enter the rear of the residence at 1235 6th Avenue.
****
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The second controlled buy occurred within forty-eight hours
before December 11, 2019. The [CI] contacted [Nicholson] and
requested to purchase crack cocaine. [Nicholson] arranged for
the [CI] to meet at the 600 block of 7th Avenue. Task Force
Officers then observed [Nicholson] leave his residence at 1235 6th
Avenue. [Nicholson] made two stops before arriving at the
designated meeting location. First, he stopped at the post office.
Second, Corporeal Kelch testified that [Nicholson] stopped at a
second location, but he could not identify where [Nicholson] had
stopped. [Nicholson] then arrived at the 600 block of 7th Avenue.
The controlled buy was completed just like the first controlled buy
using an unlocked vehicle. [Nicholson] then drove directly back
to 1235 6th Avenue.
Suppression Court Opinion and Order, 12/15/2020, at 2-3; see also Probable
Cause Affidavit of Officer Stephen Kelch, 12/11/2019, at Paragraphs 7-9.
Officer Kelch’s affidavit concluded with a description of his general
knowledge of drug dealer behavior, including that a drug dealer typically
stores drugs, weapons and other contraband in his home, among many other
places. See Probable Cause Affidavit of Officer Stephen Kelch, 12/11/2019,
at Paragraphs 11-19.
Based on this information, the Magisterial District Judge granted the
search warrant of Nicholson’s home. During the resulting search, the police
found cocaine, paraphernalia, weapons and cash. The Commonwealth then
charged Nicholson with several drug and firearms offenses.
In an omnibus pretrial motion, Nicholson moved to suppress the
evidence obtained from his home. He argued that the affidavit supporting the
search warrant did not contain sufficient facts to give the police probable cause
to believe that evidence of criminal activity would be found in the residence.
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Relying heavily on our decision in Commonwealth v. Way, 492 A.2d 1151(Pa. Super. 1985), the suppression court granted the motion, precluding the
seized evidence from being admitted at trial. See Suppression Court Opinion
and Order, 12/15/2020, at 6-7.1
The Commonwealth now appeals,2 contending that the suppression
court erred in finding that the police lacked probable cause to justify the
search. According to the Commonwealth, the police had sufficient facts to
believe that illegal drugs would be found at Nicholson’s residence under the
totality of the circumstances. The Commonwealth stresses that the police
observed Nicholson going home after each of the two controlled buys, and
that by nonetheless ruling there was no connection between the drug sales
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1 When presented with a suppression motion, the court does not “conduct a
de novo review of the issuing authority’s probable cause determination, but
. . . simply . . . determine[s] whether or not there is substantial evidence in
the record supporting the decision to issue a warrant.” Commonwealth. v.
Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015) (quoting Commonwealth
v. Jones, 988 A.2d 649, 655 (Pa. 2010)). If “a substantial basis exists to
support the magistrate’s probable cause finding,” the suppression court must
uphold the judgment of the Magisterial District Judge. Gagliardi, 128 A.3d
at 795 (quoting U.S. v. Leon, 468 U.S. 897, 914 (1984)). Thus, “the
reviewing court must accord deference to the issuing authority’s probable
cause determination, and must view the information offered to establish
probable cause in a common-sense, non-technical manner.” Jones, 988 A.2d
at 655.
2 In reviewing a suppression court’s determination, this Court is bound by the
factual findings of the suppression court to the extent they are supported by
the record. See Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013).
We review the suppression court’s legal conclusions de novo. Id.-4-
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and the residence, the suppression court failed to evaluate “the facts in a
common-sense, non-technical fashion[.]” Appellant’s Brief, at pp. 20-21.
II.
A.
The issuance of a constitutionally valid search warrant requires that
police provide the issuing authority with sufficient information to persuade a
reasonable person that there is probable cause to conduct a search based
upon information that is viewed in a commonsense manner. See
Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009). The issuing
authority must determine whether, given the totality of the circumstances
presented, there is a fair probability that evidence of a crime or contraband
will be found in a particular location. Id.However, “probable cause to believe that a man has committed a crime
on the street does not necessarily give rise to probable cause to search his
home.” Commonwealth v. Wallace, 42 A.3d 1040, 1049–50 (Pa. 2012)
(citing Commonwealth v. Heyward, 375 A.2d 191, 192 (Pa. Super. 1977))
(emphasis added); see also Commonwealth v. Kline, 335 A.2d 361, 364
(Pa. Super. 1975). The affidavit of probable cause must establish a
“substantial nexus” between the suspect’s home and the criminal activity or
contraband sought to permit the search of the home. Id. The task of the
reviewing court is to ensure that the issuing authority had a substantial basis
to conclude that probable cause existed. Id.-5-
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These principles were applied in Way, a factually analogous case
discussed by the suppression court in the present matter. See Suppression
Court Opinion and Order, 12/15/2020, at 6-7.
In Way, an undercover police officer asked two suspects to procure
methamphetamine for him. See Way, 492 A.2d at 1152. The two suspects
met with the defendant, who provided the drugs. After the transaction, a
surveillance officer followed the defendant’s vehicle to another location, which
turned out to be the defendant’s home. The affidavit in support of the warrant
stated that police followed the defendant to his home after the transaction.
On these facts, the affidavit was held to be insufficient to support a
probable cause determination. We explained that
[p]robable cause to believe that a man has committed a crime
does not necessarily give rise to probable cause to search his
home . . . [A]n allegation based on an assumption or supposition
not supported by the facts is insufficient to support (an inference
of) criminal activity in the premises, in spite of the fact that there
are plenty of allegations alleged to relate to criminal activity of the
individual who is alleged to have lived in the premises.
Id. at 1154 (quoting Commonwealth v. Kline, 335 A.2d 361, 363 (Pa.
Super. 1975)). Rather, the totality of the circumstances demonstrated that
the defendant’s base of operations for his drug dealing was his vehicle and
not his home. Id.; see also Commonwealth v. Gagliardi, 128 A.3d 790,
798 (Pa. Super. 2015).
In this case, while Nicholson returned to his residence after each drug
sale, that does not alone support a probable cause determination justifying a
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search of his home. As to the first controlled buy, the police did not observe
where Nicholson came from on his way to the location of that transaction.
This made it just as likely that he picked up the contraband from somewhere
other than his own residence. It was also equally possible that Nicholson kept
the drugs in his vehicle, where the sale took place.
Similarly, just prior to the second transaction, police observed Nicholson
leaving his home and making two stops – one at the post office and one at
another identified location - before he arrived at the location of that second
drug buy. This again supports the notion that Nicholson retrieved the drugs
from a location other than his home on his way to the sale. It does not logically
follow that Nicholson had the drugs stashed at his home just because he went
there after each sale was completed. As in Way, the police, at most, had
probable cause to believe the drugs were kept in Nicholson’s car, which he
used as his main base of operations.
The Commonwealth has argued that a finding of probable cause was
supported by the totality of the circumstances because the police observed
facts creating a substantial nexus between the drug buys and Nicholson’s
home. It attempts to analogize the present case to the scenarios in
Commonwealth v. Gray, 503 A.2d 921 (Pa. Super. 1985), and
Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011), where it was held that
under the totality of the circumstances, police had probable cause to search a
drug dealer’s home.
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However, both of those cases are distinguishable because in each, a
reliable confidential informant had specifically told police that drugs would be
found in the defendant’s home. See Gray, 28 A.3d at 1285 (CI informed
police that defendant “packages and distributes cocaine” from his residence);
Clark, 28 A.3d at 922 (several reliable CIs told police that defendant and his
girlfriend “had approximately twenty pounds of marijuana at their
residence.”). Police were also able to corroborate the tips in both cases
because the defendant drove directly from his home to the location of the
controlled buy.
Conversely, in the present case, the CI never reported to police that
Nicholson was selling drugs from his home. In Officer Kelch’s affidavit, he
recounted being told by the CI only that Nicholson “is selling crack cocaine in
various areas throughout New Brighton.” See Probable Cause Affidavit of
Officer Stephen Kelch, 12/11/2019, at Paragraph 4.
The police later observed that both controlled drug buys took place in
Nicholson’s car. Unlike in Gray and Clark, the police did not corroborate a
tip as to where a stash was being kept because no such tip was ever given.
Additionally, as already noted, the police here did not observe Nicholson
proceeding directly from his residence to the locations of the drug buys. The
suppression court correctly applied Way in ruling that the facts presented to
the Magisterial District Judge were insufficient to justify a probable cause
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determination, as a substantial nexus between the drug buys and Nicholson’s
residence was never established.
B.
The affidavit of probable cause also contained Officer Kelch’s assertion
that drugs would be found in Nicholson’s home based on his “professional
experience” that drug dealers typically store drugs, weapons and other
contraband in their homes. While such experience can be a relevant factor
for probable cause under the totality of the circumstances, it is only properly
considered where the officer can “demonstrate a nexus between his
experience and the search, arrest, or seizure of evidence.” Commonwealth
v. Thompson, 985 A.2d 928, 935 (Pa. 2009).
In other words, there must be something in the affidavit that links the
place to be searched directly to the criminal activity. Merely referring to
“professional experience” does not alone justify the issuance of a search
warrant. Otherwise, a police officer’s “professional experience” could be used
to justify a search of any place where drugs could possibly be kept. With
respect to Nicholson’s residence, no such nexus was shown here to make the
police officer’s professional experience probative.
Moreover, Officer Kelch’s allegation that drug dealers often keep drugs
in their homes is one of many boilerplate comments setting forth his training
experience, most of which had no relevance to the probable cause
determination in this case. In paragraph 12 of the affidavit, Officer Kelch
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states that traffickers may keep their drugs in just about any place they have
“dominion” or have access, including numerous locations other than their own
residences:
Your Affiant further knows the following from his training and
experience, that it is common for drug traffickers to maintain
books, records, receipts, notes, ledgers, receipts and the like
relating to the purchase of financial instruments and/or the
transfer of funds, and other papers relating to the transportation,
ordering, sale, and distribution of Controlled Substances where
they have ready access to them, for instance in their residences
and businesses, the residences of relatives and associates, safe
deposit boxes, strong boxes, computers, and/or other locations
over which they (drug traffickers) maintain dominion. It is also
common for drug trafficking records, including paper records and
records maintained on computers, being illicit business records, to
be kept for much longer periods of time than the drugs to which
they relate and that such records are often kept in the same places
that drugs are kept. And, it is common for drug traffickers to keep
photographs or other images of assets, conspirators and drugs
within their residences and businesses, within the residences of
relatives and associates, in safe deposit boxes, in strong boxes
and/or other remote locations over which they (drug traffickers)
maintain dominion and control as well as on devices (computers,
cameras and video-cameras) which they (drug traffickers) own or
to which they have access.
Probable Cause Affidavit of Officer Stephen Kelch, 12/11/2019, at Paragraph
12. Corporal Kelch’s professional knowledge as expressed in Paragraph 12 is
so expansive as to where drug dealers keep drugs that it is pretty much pure
speculation and conjecture and cannot serve, even if not foreclosed for other
reasons mentioned, as any basis for which a search warrant can be issued.
Finally, it has been noted drug dealers often store drugs in places other
than their homes. In Judge Moulton’s concurring opinion in Commonwealth
v. Torres, 177 A.3d 263, 278–79 (Pa. Super. 2017), he stressed that
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“evidence of drug dealing unconnected to a home does not, without more,
give probable cause to believe that additional contraband will be found in the
home is based on the common sense notion, reinforced by experience, that
drug dealers often take pains to store their drugs away from their homes.”
See also Wayne R. LaFave, Search and Seizure, § 3.7(d), text accompanying
footnote 210 (October 2016 update) (noting that drugs are “inherently
incriminating” and “readily concealable in other possible hiding places” and,
therefore, less likely than stolen property to be found in a suspect’s home.).
Accordingly, for the foregoing reasons, the suppression court’s finding
that there was no probable cause made out to search Nicholson’s residence is
affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2021
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