Com. v. Price, N.

J-S30025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NATHANIAL RAY PRICE : No. 1734 WDA 2019
Appeal from the Order Entered October 15, 2019
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0001267-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 27, 2023
This case returns to us following remand from the Pennsylvania
Supreme Court. Our Supreme Court vacated our decision that reversed the
order granting in part Nathanial Ray Price’s motion to suppress and remanded
for us to consider the Commonwealth’s claim that the affidavit accompanying
the warrant application established probable cause. See Commonwealth v.
Price, 284 A.3d 165, 174 (Pa. 2022). We affirm.
Price was arrested and charged in October 2016 in connection with a
double homicide. State police applied for a warrant for “[a]ny and all phone
records for phone number/s 724-762-3803[.]” Application for Search Warrant
and Authorization, dated 10/28/16. The affidavit of probable cause for the
search warrant stated in its entirety:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Your affiant is Cpl John FISANICH. I am currently employed
by the PA State Police as Supervisor in the Troop “A”
Criminal Investigations Unit. I was so employed when this
investigation was conducted.
On 10/27/16 at approximately 0040 hours, the PA State
Police Patrol Unit was dispatched to a reported disturbance
at 903 Hillside Drive in Cherry Hill Twp., Indiana County.
Upon arrival, Patrol Troopers immediately saw a male lying
in the downstairs area. He was clearly deceased. Upon
clearing the residence for any further threats or suspect/s,
Troopers found a female lying in an upstairs bedroom. She
was also clearly deceased. The scene was secured and a
supervisor and Criminal Investigators were called to the
scene, as per PSP regulations.
As the investigation progressed through the day, several
suspects were identified. One suspect is identified as
Nathanial Ray PRICE w/n/m DOB 06/21/98. Investigators
learned his phone number, and he was later taken into
custody. The phone number listed on this Search Warrant
Application is 724-762-3803 and is the number that is
associated to Nathanial PRICE.
Based on my training and experience, I believe that there is
valuable information regarding the act of Criminal Homicide
to be gleaned from the cellular phone records associated
with the aforementioned number. I ask that this search be
granted to further this investigation.
Id. at 2 (Affidavit of Probable Cause). The court granted the warrant.
Price filed a motion to suppress various items of evidence, which the
trial court granted in part and denied in part. Relevant here, Price moved to
suppress evidence obtained from the above warrant. Price argued that “[t]he
affidavit fails to state probable cause.” Omnibus Pretrial Motion for Relief, filed
9/1/17, at ¶ 34.
The court granted Price’s motion. It stated that the phrases
“investigators learned his phone number” and “724-762-3803 . . . is the
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number that is associated with Nathanial PRICE” did not explain how the
investigators determined that the phone number was associated with Price’s
cell phone. The court found that the affidavit “‘did not provide the issuing
authority with a substantial basis to conclude that probable cause existed’” to
search the phone records of the listed number. Opinion and Order of Court,
filed 10/15/19, at 29-30 (quoting Commonwealth v. Torres, 764 A.2d 532(Pa. 2001)). The court noted that while it was the same court that had initially
granted the search warrant, it concluded that “it is appropriate to review its
prior decision in light of the Suppression Motion filed, and render the decision
required by Pennsylvania jurisprudence.” Id. at 29 n.5.
The Commonwealth appealed and this Court reversed. Our Supreme
Court allowed an appeal and vacated our order and remanded for this Court
to address the Commonwealth’s claim that probable cause existed. The Court
also concluded that the Commonwealth waived its inevitable discovery issue
by failing to include it in its Rule 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii).
The Commonwealth maintains that the affidavit of probable cause
explained that two people were murdered, and during the investigation of
these murders, police identified Price as a suspect and “learned his [cellular]
phone number.” Commonwealth’s Br. at 15 (alteration in original). It argues
that “[t]o the extent it was not implicit that they learned his number simply
by asking him or his accomplices, the far more significant inference was that,
because [Price] acted with other suspects, he could have used the phone to
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communicate with them, possibly to plan the crime.” Id. at 15-16. This
inference, “was sufficient, under the liberal standard governing warranted
searches, for probable cause.” Id. at 16.
On appeal from an order granting a motion to suppress, our review is
“limited to determining whether the record supported that court’s factual
findings and whether the legal conclusions that the suppression court drew
from those facts were correct.” Torres, 764 A.2d at 536-37. We consider only
“the evidence presented by the defense and so much of the evidence for the
prosecution which remained uncontradicted when read in the context of the
record as a whole.” Id. at 537.
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protects against unreasonable
searches and seizures. A search warrant must be supported by probable
cause. Commonwealth v. Caple, 121 A.3d 511, 520 (Pa.Super. 2015).
“Probable cause exists where the facts and circumstances within the affiant’s
knowledge and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief
that a search should be conducted.” Commonwealth v. Jones, 988 A.2d
649, 655 (Pa. 2010) (citation omitted). When considering whether probable
cause exists, we consider the totality of the circumstances. Commonwealth
v. Johnson, 240 A.3d 575, 585 (Pa. 2020).
Here, the trial court determined that the warrant was not backed by
probable cause. It agreed with Price that the warrant application failed to link
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the phone found on Price’s person with the phone number listed. Opinion and
Order of Court at 29. It further stated that the warrant was “completely devoid
of any foundation or explanation” of how investigators determined that the
listed phone number matched that of Price’s cell phone. Id. We discern no
error by the trial court.
The affidavit of probable cause provides no information to warrant a
person of reasonable caution in the belief that a search should be conducted.
Jones, 988 A.2d at 655. Nothing within the four corners of the warrant
application offers any reason to believe that the records related to the phone
number would contain evidence related to the crimes under investigation. The
affidavit does not allege that Price had his phone before, during, or after the
commission of the murders. There is also no indication from the affidavit that
Price provided his cell phone number to the investigators or any other way in
which investigators allegedly learned his cell number. The affidavit essentially
provides the conclusory assertions that Price is a suspect and his phone
number is 724-762-3803. The warrant application was insufficient to establish
probable cause. See Johnson, 240 A.3d at 587-88 (concluding lack of
probable cause for a search warrant of defendant’s phone where the defendant
was accused of possessing drugs and guns where the affidavit of probable
cause failed to establish a nexus between the crime committed and the item
to be searched).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2023
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