Com. v. Hill, S.

J-A03027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SYEEN HILL
Appellee No. 1080 MDA 2016
Appeal from the Order Entered June 16, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0005746-2015
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 12, 2017
The Commonwealth appeals the order of the Court of Common Pleas of
Lancaster County entered on June 16, 2016, granting Appellee Syeen Hill’s
motion to suppress evidence obtained from the search of his residence. The
Commonwealth argues the suppression court erred in finding the search
warrant failed to set forth probable cause to search Appellee’s residence.
We agree. Accordingly, we reverse and remand.
The underlying facts are not at issue here. See Suppression Court
Opinion, 6/16/16, at 1-5. Briefly, “based on the information supplied by
[two] informants and the information gather[ed] through the officers’
surveillance of [Appellee], there was a fair probability that [Appellee] was a
drug dealer who sold his drugs on the streets of Lancaster City, that he used
his vehicle, a 2003 Chevrolet Impala, to facilitate some of his drug sales,
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and that he continued to engage in criminal activity up to the time that
warrant was issued.” Id. at 9. Accordingly, the suppression court denied
Appellee’s motion to suppress to the extent it sought to suppress the
evidence recovered from the search of Appellee’s person and vehicle.
However, the suppression court granted Appellee’s motion to suppress to the
extent it challenged the search of his residence. The suppression court, as
noted, found the Commonwealth failed to present evidence sufficient to
support issuance of a warrant to search Appellee’s residence. This appeal
followed.
On appeal, the only issue is whether the Commonwealth presented
sufficient evidence to justify issuance of a search warrant of Appellee’s
residence. Commonwealth’s Brief at 4.
When reviewing an [o]rder granting a motion to suppress we are
required to determine whether the record supports the
suppression court's factual findings and whether the legal
conclusions drawn by the suppression court from those findings
are accurate. In conducting our review, we may only examine
the evidence introduced by appellee along with any evidence
introduced by the Commonwealth which remains uncontradicted.
Our scope of review over the suppression court's factual findings
is limited in that if these findings are supported by the record we
are bound by them. Our scope of review over the suppression
court's legal conclusions, however, is plenary.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).
The suppression court stated that
a finding of a confidential informant’s reliability does not end
[the suppression court]’s analysis of whether the search warrant
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was adequately supported by probable cause. Instead, the four
corners of the affidavit must contain sufficient facts to permit an
issuing authority to reasonably conclude that there was
contraband in the locations that were the subject of the search
warrant.
Suppression Court Opinion, 6/16/16, at 9.
The above-quoted language is indicative of the multiple errors
committed by the suppression court in addressing the matter. First, it
shows that the suppression court applied an incorrect standard for reviewing
the issuing authority’s probable cause determination.
According to our Supreme Court, when deciding whether to issue
a search warrant, “the task of the issuing authority is simply to
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.”
Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 925
(1986), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983). However, as our Supreme Court
held, with respect to a court that is reviewing an issuing
authority’s probable cause determination:
[the] reviewing court is not to conduct a de novo
review of the issuing authority’s probable cause
determination, but is simply to determine whether or
not there is substantial evidence in the record
supporting the decision to issue a warrant . . .. In so
doing, 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.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 655 (2010)
(internal citations, quotations, and corrections omitted).
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Commonwealth v. Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015)
(footnote omitted).
From the above-quoted language of the suppression court’s opinion, it
seems clear that the suppression court erroneously conducted a de novo
review of the magistrate’s determination, as opposed to determining
whether there was substantial evidence in the record to support the decision
to issue a warrant. Id.
The suppression court not only erroneously engaged in a de novo
review of the issuing authority’s probable cause determination, it also failed
to give deference to the issuing authority’s probable cause determination,
failed to view the totality of circumstances in a practical, common-sense
manner, and possibly held the Commonwealth to a higher burden than
probable cause. Indeed, the suppression court acknowledged that “during
one of the controlled purchases[, Appellee] was observed leaving his home
to sell drugs and then observed returning to his home immediately
thereafter.” Suppression Court Opinion, 6/16/16, at 12. However, it also
noted that “this fact, when viewed under the totality [of the circumstances],
does not support with any reasonable amount of certainty that any criminal
behavior was going on inside [Appellee]’s home.” Id.
The paragraph of the affidavit of probable cause describing the
controlled purchase mentioned by the suppression court reads as follows:
[D]uring the week of 18 October 2015, CI #1 made a controlled
purchase of a quantity of cocaine from [Appellee], from 47
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Caroline St. #2 Lancaster, PA.[1] This purchase was made under
the direction and control of your [a]ffiant using DFT/DA funds.
Your [a]ffiant and Detectives Kunkle and Vance of the Lancaster
County Drug Task Force conducted surveillance of [Appellee]
exiting 47 Caroline St. #2 Lancaster PA, meeting with CI #1 and
then going back to 47 Caroline St. #2 Lancaster PA. CI#1 was
searched before the controlled purchase with negative results for
contraband. After completing the controlled buy, CI #1 met with
your [a]ffiant and turned over a quantity of cocaine. CI #1 was
then searched again with negative results for contraband. Your
[a]ffiant conducted a field test on a quantity of the cocaine and a
positive result was obtained.
N.T. Suppression Hearing, 4/6/16, at Commonwealth’s Ex. 1 (“Affidavit”) at
¶ 12.
In the paragraph immediately preceding the one just quoted, the
affiant also stated:
[D]uring the months of September and October 2015 your
affiant conducted surveillances at 47 Caroline St. #2, Lancaster
County, PA. During these surveillances your affiant observed a
silver 2003 Chevrolet Impala sedan, assigned Pennsylvania
registration JYG-5505, parked in the parking lot next to 47
Caroline St. #2, Lancaster County, PA. [Appellee] was observed
exiting 47 Caroline St. #2, Lancaster County, PA, and getting
into and operating the [vehicle]. Your [a]ffiant also observed
[Appellee] meeting with unknown subjects on foot and in his
vehicle in areas around 47 Caroline St., Lancaster PA for short
periods of time. Your [a]ffiant observed this short term traffic
on multiple occasions and this activity is consistent with drug
sales.
Id. at ¶ 11.
____________________________________________
1
Appellee does not argue that he did not reside at that address. See
generally Appellee’s Brief.
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As noted above, the suppression court concluded that the affidavit of
probable cause did not establish a nexus between Appellee’s residence and
the sale of contraband. We disagree. Viewing the totality of circumstances
in a practical, common-sense manner, we conclude that substantial evidence
supports the magistrate’s probable cause determination.
It is undisputed that Appellee resided at 47 Caroline Street, Apt #2,
Lancaster, and that there was a fair probability that he was a drug dealer
selling drugs in Lancaster city. See Suppression Court Opinion, 6/16/16, at
9. The affidavit also states that Appellee was seen on multiple occasions on
foot, around his residence, meeting with unknown individuals for short
period of times, an activity consistent with the sale of contraband. See
generally Affidavit. On one occasion, the controlled purchase mentioned by
the suppression court above, Appellee was seen exiting his residence,
meeting and providing the confidential informant cocaine, and then returning
to his residence. Affidavit at ¶ 12. Finally, it appears the suppression court
did not consider affiant’s training and experience in dealing with illegal
drugs. Indeed, in the affidavit, the officer stated that drug dealers often
keep contraband in their residences. Affidavit at ¶ 2. Viewing these facts in
a practical, common-sense manner, we conclude that these facts constitute
sufficient evidence that Appellee was using his residence as the base for his
illicit operations.
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In a similar case, Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011),
our Supreme Court noted:
The “trial court [] discounted the common sense import of the
fact that after the controlled buy was arranged, the police
observed Appellee leave his residence in his vehicle, [] drive to a
location, conduct the transaction, and immediately return to his
residence. This fact certainly connected the illegal transaction to
Appellee’s residence, in a common sense, non-technical way,
and permitted the issuing authority to conclude that drugs would
likely be found in the residence.
Id. at 1291.
In Commonwealth v. Davis, 595 A.2d 1216 (Pa. Super. 1991), we
similarly found informant’s observations of defendant making three drug
sales in the street and entering a particular residence after concluding each
sale, and, also defendant’s claim that he had just received a shipment of
drugs, furnished adequate probable cause for a search warrant of
defendant’s home.
In light of the foregoing, therefore, we find that the suppression
court’s reasoning that perceived no connection between the transaction and
Appellee’s residence was flawed. Therefore, we conclude that the issuing
authority had a substantial basis for determining that there was a fair
probability that contraband would be found at Appellee’s residence, and, that
the suppression court, by discounting portions of the affidavit of probable
cause and conducting its own review of the evidence proffered by the
Commonwealth, failed to give deference to the issuing authority’s probable
cause determination.
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The suppression court also stated that the Commonwealth’s evidence
failed to show “with any reasonable amount of certainty that any criminal
behavior was going on inside [Appellee’s residence].” Suppression Court
Opinion, 6/16/16, at 12. We note the Commonwealth must show and prove
that “there is a fair probability that contraband or evidence of a crime will be
found in a particular case,” not that there was a “reasonable amount of
certainty” that criminal behavior was going on inside Appellee’s residence.
See Gray, 503 A.2d at 925. To the extent the suppression court held the
Commonwealth to a burden higher than “probable cause” the suppression
court erred.
Finally, in support of its ruling, the suppression court relied on
Commonwealth v. Kline, 335 A.2d 361 (Pa. Super 1975) (en banc) and
Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985). In Gagliardi,
this Court distinguished Kline and Way.
However, neither opinion controls the resolution in the case at
bar. Certainly, in Kline, this Court held that the affidavit of
probable cause failed to establish a nexus between the drug
dealer’s apartment and the contraband because the affidavit
omitted certain facts concerning the single, private transaction
between the drug dealer and two girls. We held that these
omitted facts included: “where the transaction [between the
dealer and the two girls] took place, how long it took, how long
[the dealer] was gone, [and] what led the girls to conclude that
he had gone to his apartment [to retrieve the drugs].” Kline,
335 A.2d at 364. In the case at bar, however, we are dealing
with [one] controlled transaction[]—that w[as] witnessed by the
police and recounted, in detail, in the affidavit of probable cause.
Further, the affidavit in the case at bar clearly recites “where the
[controlled] transaction[] took place” and “what led [the police]
to conclude” that [appellant] left his home prior to the drug sales
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and then returned to his home after the drug sales. See id.
Kline is thus inapposite to the facts of this case.
Moreover, Way is of even less persuasive value than Kline. In
Way, the affidavit of probable cause merely declared that: the
defendant was a drug dealer; an “alleged [drug] transaction
occurred in [the defendant’s] blue van along a country road[;
and, a]fter the alleged [drug] transaction, police followed the
blue van to a driveway of a property” that was owned by the
defendant. Way, 492 A.2d at 1152–54. Confronted with this
affidavit, the Way Court held that there were “[insufficient] facts
to believe that drugs would be found” in the defendant's house
and that the search warrant for the defendant's house was thus
defective. Id. at 347. Way is inapplicable to the case at bar.
Indeed, in Way, the totality of the circumstances demonstrated
that the defendant’s base of operations for his drug dealing was
his blue van—while in the case at bar, the facts establish that
the [Appellee]’s base of operations for his drug dealing was his
[residence].
Gagliardi, 128 A.3d at 798. Accordingly, for the same reasons stated in
Gagliardi, we also conclude that the suppression court’s reliance on Kline
and Way was misplaced.
The suppression court also found the Commonwealth’s reliance on
Davis was misplaced because here, as opposed to Davis, there was not
sufficient evidence to link Appellee’s residence with the sale or storage of
drugs. In particular, the suppression court noted that neither informant
alleged that Appellee was selling drugs from his home or that he was using
his home to store drugs, that neither informant indicated being inside
Appellee’s residence or even knew Appellee’s address, and that the
information provided in the affidavit would instead indicate that Appellee was
selling drugs out of his vehicle. Suppression Court Opinion, 6/16/16, at 12.
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Finally, the suppression court noted that the instant case was also
distinguishable because the quantity of cocaine involved in Davis was
substantial, which led to the inference that defendant in Davis was keeping
the drugs at his place. Here, however, the suppression court reasoned,
there is no indication of quantity “to support the inference that [Appellee]
was necessarily storing the drugs in his home.” Id. at 13.
The determination whether there was probable cause to believe
Appellant sold drugs out of his residence or used his residence as a storage
location must be made by the issuing authority in light of the information
available, not in light of the information not present. The missing
information, while useful, is not determinative of the existence of probable
cause. Here, as noted above, looking at the information available in a
common sense, non-technical way, there was enough information to permit
the issuing authority to conclude that drugs would likely be found in
Appellee’s residence.
Regarding the suppression court’s observation that the information
available would suggest that Appellee was running his business out of his
car, rather than out of his residence, we note that, although the
circumstances of some transactions potentially pointed to Appellee’s vehicle
as a storage location for the drugs, “the law does not require that the
information in a warrant affidavit establish with absolute certainty that the
object of the search will be found at the stated location, nor does it demand
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that the affidavit information preclude all possibility that the sought after
article is not secreted in another location.” Davis, 595 A.2d at 1222.
In light of the foregoing, we conclude that the issuing authority had a
substantial basis for determining that there was a fair probability contraband
would be found at Appellee’s residence. Thus, we vacate the suppression
court’s order at issue here and remand.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Dubow joins this memorandum.
Judge Lazarus files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017
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