Commonwealth v. Korn

J-S27045-16
2016 Pa. Super. 109
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JORDAN ELIAS KORN,
Appellee No. 1528 MDA 2015
Appeal from the Order Entered August 18, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000427-2015
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 25, 2016
The Commonwealth appeals from the order entered in the Court of
Common Pleas of Centre County granting the suppression motion filed by
Appellee, Jordan Elias Korn. After careful review, we reverse and remand
for further proceedings.
On February 26, 2015, Appellee was arrested and charged with simple
possession and possession with intent to deliver a controlled substance. 1 On
May 22, 2015, Appellee filed a motion to suppress physical evidence
obtained from the search of his bedroom in Apartment 201, located at The
Phoenix Apartment Complex, in State College Boro, Centre County.
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1
35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113(a)(16), respectively.
*Former Justice specially assigned to the Superior Court.
J-S27045-16
A suppression hearing commenced on July 13, 2015, at which the
Commonwealth presented the sole witness, Trooper Eric Guido of the
Pennsylvania State Police. Trooper Guido testified that toward the end of
February of 2015, he was conducting an investigation regarding the sale of
controlled substances out of an apartment at 501 East Beaver Avenue in
State College. N.T., 7/13/15, at 6. According to the trooper, the
investigation began after a Confidential Informant advised him that he had
purchased Xanax pills from Aaron Murray. Id. at 7. Subsequently, Trooper
Guido and the Confidential Informant made two controlled buys of Xanax
from Mr. Murray, the first of which occurred in Mr. Murray’s bedroom in
Apartment 201. Id. at 8-12.
Based on evidence seized during these drug buys, Trooper Guido
applied for a search warrant for the entire apartment. When asked why he
would seek to search the entire apartment, when the first drug buy occurred
only in a bedroom, Trooper Guido replied:
A. Because you never know where things could be
hidden or secreted. Sometimes people - - many
times we do a search warrant, people will say well,
I’ll just take you to where things are and, you know,
[they are] willing to give up a little bit to save a lot.
So, you always have to make sure you thoroughly
check for everything.
Id. at 14.
The description of the property to be searched by the warrant was
listed as “The Phoenix Apartment Complex, 501 East Beaver Ave, Apt#201
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located in State College Boro, Centre County.” See id.; Com. Exhibit 1.
According to Trooper Guido, the owner, occupant or possessor of this
apartment was listed as “Aaron Murray,” because the Confidential Informant
told him that Mr. Murray “was the only one that was supposed to be living
there.” Id. at 16.
Trooper Guido further testified that the search warrant was executed
shortly after it was obtained at approximately 10:55 a.m. on February 26,
2015. N.T., 7/13/15, at 15. The trooper stated that prior to the search, he
contacted the building manager who informed him that if no one answered
the apartment door, he would send a maintenance person so that the police
would not have to break down the door. Id. at 17. Trooper Guido then
stated they entered a side door which led to Apartment 201, and Mr. Murray
answered their knock on the door. Id.
Upon entering the apartment, Trooper Guido stayed with Mr. Murray,
while two other troopers checked the apartment for other occupants. At that
time, Trooper Guido could hear knocking on a door at the end of a hallway
and repeated saying, “Come out of the room, state police, we have a search
warrant, get out of the room.” Id. at 18. According to the trooper, after
about five minutes, Appellee opened the bedroom door, and “wanted to
know what was going on.” Id. at 19. When he was advised about the
reasons for the troopers’ presence, Appellee asked to see a copy of the
search warrant, and the troopers complied. Id. At that time, another
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trooper searched Appellee’s person and found several Xanax pills. Id. at 19-
20. Ultimately, both Mr. Murray and Appellee were placed in the living room
of the apartment.
Trooper Guido testified that the search of the apartment began in the
bedroom that had been occupied by Appellee. According to the trooper,
Appellee’s bedroom door was not marked in any way to distinguish it from
the other bedroom. Id. at 21. Trooper Guido did not recall a dead bolt or
key lock on the door but testified the door was locked when first approached
by the other troopers. N.T., 7/13/15, at 21. Upon searching the bedroom,
Trooper Guido noticed a “safety deposit-type box on a desk.” Id. at 22.
After finding a key in a backpack in the room, another officer unlocked the
box. Id. at 23. Inside the box, the troopers found three vacuum-sealed
bags containing approximately 7000-8000 white pills, and approximately
$5,000 in cash. Id. at 25. Various drug packaging and a scale, as well as a
safety deposit key, were also found inside the bedroom. A subsequent
search warrant was issued for the corresponding safety deposit box, which
was rented by Appellee, and approximately $12,000 in cash was found
inside. Id. at 28.
Describing the bedroom further, Trooper Guido repeated that he did
not recall a dead bolt or key lock, and the bedroom did not have a separate
apartment number, mailbox, or entrance. Id. at 26. According to the
trooper, “[it] was a typical college apartment that [he was] used to
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executing search warrants on, common area, two bedrooms, bathroom,
kitchen.” Id.
Upon cross-examination, Trooper Guido conceded that, when speaking
with the building manager, he did not ask who resided in Apartment 201.
Id. at 30. He also testified that, upon entering the apartment to conduct
the first controlled buy, he noticed a door at the end of the hallway, but only
learned it was a second bedroom that was shared by Appellee and a second
roommate when subsequently executing the search warrant. Id. at 31.
Trooper Guido further acknowledged that he did not know where the
mailboxes for any unit within the apartment complex were located. N.T.,
7/13/15, at 34. Finally, Trooper Guido testified that prior to the execution of
the search warrant he was unaware that Appellee resided in Apartment 201.
Id.
Based on Trooper Guido’s suppression hearing testimony, the trial
court granted Appellee’s suppression motion:
This Court finds that Apartment 201 of the Phoenix
building contains more than one living unit, as it contains
separate living quarters for each of the individuals who
reside there. The search warrant in the instant case was
obtained in order to investigate Aaron Murray’s illegal
activities. In fact, the warrant specifically states “The
Phoenix Apartment Complex, 501 East Beaver Ave,
Apt#201 located in State College Boro, Centre County,”
with the name of the owner/occupant listed as Aaron
Murray.” Despite the fact that Apartment 201 contains
multiple living units, the warrant fails to describe the
particular living unit that was to be searched so as to
ensure the other living units, for which no probable cause
existed, were not searched. The Court finds that the
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language of the warrant is sufficient to permit a search of
Murray’s room and any common areas. Magisterial District
Justice [sic] [Carmine W.] Prestia had a substantial basis
from the warrant application to believe that probable cause
existed as it relates to Murray and his activities. However,
the search of [Appellee’s] room was improper and outside
the scope of the probable cause used to obtain the search
warrant. The officers had no knowledge of [Appellee’s]
existence and obtained the warrant solely on the basis of
the interactions with Murray in his own room and in a
vehicle outside the apartment. Furthermore, at the time
the warrant was executed, the door to [Appellee’s] room
was locked, indicating that Murray could not have
exercised dominion or control over the items in
[Appellee’s] room. As such, [Appellee’s] Motion to Quash
Search Warrant and Suppress Evidence is GRANTED, and
all evidence obtained from [Appellee’s] bedroom must be
suppressed.
Opinion and Order, 8/18/15, at 4.
The Commonwealth filed a timely appeal. Within its notice of appeal,
the Commonwealth certified that the suppression court’s order would
terminate or substantially handicap the prosecution of Appellee. 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). On September 30, 2015, the Commonwealth filed its
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On October
1, 2015, the trial court filed an opinion in response, in which the court
“respectively maintains that its Opinion and Order of August 18, 2015 was
correctly entered, the reasons for which were adequately addressed
therein.” Opinion, 10/1/15, at 1.
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On appeal, the Commonwealth presents the following issue for our
review:
1. Did the [trial] court err as a matter of law in granting
[Appellee’s] Motion to Suppress when the search of
[Appellee’s] room was constitutionally valid as part of
the single-unit residence identified on the search
warrant?
Commonwealth’s Brief at 4. In support of its claim of error, the
Commonwealth further asserts:
In this incident, Trooper Guido had probable cause to
search Aaron Murray’s bedroom which was developed
through two controlled buys. Based on this probable
cause, he obtained a search warrant which sufficiently
identified the area to be searched. Because [Appellee’s]
bedroom was part of the single-unit apartment, Trooper
Guido was not obligated to obtain a separate warrant or
develop probable cause independent of that already
established in order to justify searching it.
Commonwealth’s Brief at 10. We agree.
Our standard of review in addressing a challenge to the suppression
court’s granting of a suppression motion is well settled.
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.
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Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa.Super. 2012)
(citations omitted). “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. Brown, 606 Pa. 198, 996 A.2d 473,
476 (2010) (citation omitted).
With regard to search warrants, we have explained the following.
It is well-established that for a search warrant
to be constitutionally valid, the issuing authority
must decide that probable cause exists at the time of
its issuance, and make this determination on facts
described within the four corners of the supporting
affidavit, and closely related in time to the date of
issuance of the warrant. It is equally well established
that a reviewing court [must] pay great deference to
an issuing authority’s determination of probable
cause for the issuance of a search warrant.
Moreover, our Supreme Court has recognized that
affidavits supporting search warrants normally are
prepared ..., ‘by nonlawyers in the midst and haste
of a criminal investigation,’ and, accordingly, said
affidavits, should be interpreted in a ‘common sense
and realistic’ fashion rather than in a hypertechnical
manner.
Commonwealth v. Griffin, 24 A.3d 1037, 1043 (Pa.Super. 2011)
(brackets, some quotation marks, and citations omitted).
With regard to the particularity requirements of a search warrant
application, this Court recently has summarized:
The Rules of Criminal Procedure include a particularity
requirement: “Each search warrant shall be signed by the
issuing authority and shall” . . . (c) name or describe with
particularity the person or place to be searched.”
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Pa.R.CrimP. [205]. The Comment to Rule [205] explains:
“Paragraphs (b) and (c) are intended to proscribe general
or exploratory searches by requiring that searches be
directed only towards the specific items, persons, or places
set forth in the warrant. Such warrants should, however,
be read in a common sense fashion and should not be
invalidated by hypertechnical interpretations.” Similarly,
the Supreme Court has held a “practical, common-sense”
approach should be taken in determining whether the
place to be searched is specified with sufficient
particularity. Commonwealth v. Carlisle, 517 Pa. 36,
534 A.2d 469, 472 (1987).
The Pennsylvania Supreme has concluded Article 1,
Section 8 of the Pennsylvania Constitution affords greater
protection than the Fourth Amendment, [Commonwealth
v.] Edmunds, [][526 Pa. 374, 586 A.2d 887 (1991)],
including a more demanding particularity requirement; the
description must be as particular as reasonably possible.
Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d
896, 899 (1989). “The twin aims of Article 1, Section 8
are the safeguarding of privacy and the fundamental
requirement that warrants shall only be issued upon
probable cause. Commonwealth v. Waltson, 555 Pa.
223, 724 A.2d 289, 292 (1998).
In order to protect these twin aims, a warrant
must describe the place to be searched and the
items to be seized with specificity, and the warrant
must be supported by probable cause. The place to
be searched must be described “precise enough to
enable the executing officer to ascertain and identify,
with reasonable effort the place intended, and where
probable cause exists to support the search of area
so designated a warrant will not fail for lack of
particularity.”
Id., at 292 (quoting In re Search Warrant B-21778,
341 Pa.Super. 350, 491 A.2d 851, 856 (1985) aff’d, 513
Pa. 429, 521 A.2d 422 (1987)).
Commonwealth v. Irvin, 2016 Pa.Super. Lexis 77, ___ A.3d ___
(Pa.Super. filed Feb. 8, 2016) (quoting Commonwealth v. Belenky, 777
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A.2d 483, 485-86 (Pa.Super. 2001)). In short, probable cause exists when,
based upon a totality of the circumstances set forth in the affidavit of
probable cause, there is a fair probability that evidence of a crime will be
found in a particular place. Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d
1053 (2013).
Upon careful scrutiny of the uncontradicted facts of record, as well as
pertinent legal authority in conducting our de novo review, we conclude that
the trial court’s finding that Appellee’s bedroom was a “separate living unit”
is supported by neither the evidence presented at the suppression hearing
nor applicable case law. Trooper Guido testified without contradiction that
Apartment 201 consisted of a regular, two-bedroom college apartment; he
could not recall a dead bolt or a key entry to Appellee’s bedroom. N.T.,
7/13/15, at 26. Further, there was no indication that Appellee’s bedroom
had a separate mailbox, address, or any private entrance. Id. In concluding
that the bedroom was a separate living unit, the trial court did not apply “a
practical, common-sense” approach when determining whether the place to
be searched was specified with sufficient particularity in the search warrant.
Irvin, supra.
The case relied upon by the trial court to support its conclusion, In
the Interest of Wilks, 613 A.2d 577 (Pa.Super. 1992), is inapposite. In
Wilks, police observed the defendant engage in an alleged drug transaction
on the street and then enter a residence on the second floor of a nearby
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apartment building. Based on this observation, the police secured a search
warrant which listed the area to be searched as the second floor of the
building. Importantly, the search warrant did not specify a particular
apartment number. When the police went to execute the warrant, they
discovered two different apartments on the second floor. The door to
Apartment C was open, so some of the police officers entered to “see if they
could identify the person they wanted in the warrant.” Wilks, 613 A.2d at
579 (citation omitted). A different officer knocked on the closed door of
Apartment B and announced, “Police, open the door. We have a warrant.”
Id. Moments later, after hearing a commotion inside Apartment B, the
police found the door unlocked and entered the premises. The police then
observed the defendant sitting on a couch inside. When the defendant’s
mother arrived, she informed the police that one of the locked bedrooms
inside Apartment B belonged to the defendant. A search of the defendant’s
bedroom revealed large amounts of drugs and a handgun. Wilks, supra.
The trial court granted the defendant’s suppression motion in Wilks,
and the Commonwealth filed a timely appeal to this Court. According to the
Commonwealth, the warrant at issue met the particularity requirements,
because, although an apartment number was not listed, “the warrant
adequately identified the location by address, physical description, floor and
name of occupant, and the targeted apparent was the only place searched
and the only place from which evidence was seized.” Wilks, 613 A.2d at
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579 (capitalization omitted). We disagreed, holding that the warrant at
issue “did not clearly describe the premises to be searched, but in essence,
without probable cause, authorized the search of both apartments B and C
which were located on the second floor.” Id. at 580.
When discussing relevant case law in Wilks, this Court cited to our
Supreme Court’s previous decision in Commonwealth v. Carlisle, 517 Pa.
36, 40, 534 A.2d 469, 471 (1987), for the proposition that “[a] search
warrant directed against an apartment house, or other multiple-occupancy
structure will be held invalid for lack of specificity if it fails to describe the
particular room or subunit to be searched with sufficient definiteness to
preclude a search of other units.” Wilks, 613 A.2d at 579 (emphasis
added). This reference to a particular room must, however, be read in
context. In Carlisle, our Supreme Court cited with approval this Court’s
quoting the general requirement of particularity found in 68 Am.Jur.2d
Searches and Seizures § 77 (1973). Carlisle, 534 A.2d at 471. Despite
the mention of “room” in that treatise, our Supreme Court in Carlisle held
the search warrant at issue described the premises to be searched with
sufficient particularity even though the affidavit that accompanied the
warrant designated only the specific apartment to be searched. See
Carlisle, 534 A.2d at 471-72 (citing) (explaining that that the “evil to be
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prevented is the search of other apartments where there is no legal basis for
police intrusion.”)2
Thus, Wilks cannot be read to preclude the search of both bedrooms
inside a single apartment. Interestingly, as noted above, while the police
searched a locked bedroom within Apartment B, it was the lack of an
apartment number, rather the identification of an interior room, upon which
this Court affirmed the trial court’s order suppressing the evidence. Wilks,
supra.
In fact, Article 1, Section 8 of the Pennsylvania Constitution has been
held not to preclude a search of the entire residence where there is probable
cause to believe that contraband is located within any particular room of a
single living unit. In Commonwealth v. Waltson, 555 Pa. 223, 724 A.2d
289 (1998), the Pennsylvania State Police responded to a domestic dispute
and were informed by the defendant’s alleged girlfriend that the defendant
was growing marijuana in the basement. Thereafter, a search warrant was
issued, which described the premises to be searched by house number.
Upon searching the entire residence, the police found not only ten marijuana
plants growing in one room of the basement, but also found other drugs and
drug paraphernalia throughout the rest of the house.
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2
Moreover, as discussed below, our Supreme Court has not differentiated
between the probable cause necessary with regard to a particular room in a
single living unit vis-à-vis the entire residence.
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Following his conviction on various drug charges, the defendant filed a
timely appeal to this Court, in which he challenged the trial court’s denial of
his suppression motion. We rejected his challenge to the trial court’s
suppression ruling and affirmed the defendant’s judgment of sentence. See
Commonwealth v. Waltson, 703 A.2d 518, 521 (Pa.Super. 1997)
(concluding that “when there is probable cause to believe criminal activity is
afoot in one room of a single unit household, a warrant to search the entire
unit is not overbroad.”) Our Supreme Court granted the defendant’s petition
for allowance of appeal “in order to address whether a search warrant is
overbroad where it authorizes a search of an entire residence, where
probable cause underlying the warrant relates to only a particular room of
the house.” Waltson, 724 A.2d at 290-91.
The high court held that, “where there is probable cause to believe
that contraband is located within a particular room of a single unit house,
Article 1, Section 8 does not preclude a search of the entire residence.” Id.
at 290. In doing so, our Supreme Court rejected the defendant’s contention
that the “Pennsylvania Constitution’s enhanced privacy rights limit the scope
of a lawful search of a single unit residence more than the Fourth
Amendment.” Id. at 291. The Waltson court then concluded the following:
[W]here a search warrant adequately describes the place to be
searched and the items to be seized the scope of the search
“extends to the entire area in which the object of the search may
be found and properly includes the opening and inspection of
containers and other receptacles where the object may be
secreted.”
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Id. at 292 (quoting Commonwealth v. Reese, 520 Pa. 29, 549 A.2d 909,
911 (1988)) (footnote omitted). See also Irvin, supra (explaining that a
second search warrant to search entire residence for heroin and funds
derived from its sale was properly based on lawful observations during
execution of initial search warrant).
In the case sub judice, the trial court did not recognize our Supreme
Court’s holding in Waltson and, nevertheless, concluded Appellee’s locked
bedroom door demonstrated that Mr. Murray could not have exercised
dominion or control over the items in Appellee’s room. Once again, the trial
court’s conclusion is not supported by the uncontradicted evidence presented
at the suppression hearing. Officer Guido could not recall a dead bolt or key
entry to Appellee’s bedroom.3 The fact that Appellee locked the bedroom
door from the inside establishes nothing more than the fact that Mr. Murray
could not enter the bedroom at the time of the search. Finally, we are
unpersuaded by Appellee’s attempt to avoid application of Waltson because
the decision refers to a “single family residence.” Waltson, 724 A.2d at
293. The fact that the suppression hearing transcript does not establish a
familial relationship between Appellee and one or more of his roommates
does not alter the fact that the entire apartment was the subject of the
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3
We reject Appellee’s speculation that Trooper Guido’s inability to recall a
dead bolt or key entry to the bedroom door somehow established the
presence of either mechanism. See Appellee’s Brief at 7-8.
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search. See Irvin, at *16 (upholding search of entire residence that was
occupied by two male roommates).
In sum, we conclude that the suppression court erred in suppressing
the evidence found in Appellee’s bedroom within Apartment 201, when
precedent establishes that there was probable cause to search the entire
apartment. Accordingly, we reverse the order granting suppression and
remand this case for further proceedings, consistent with this Opinion.4
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Dubow joins the Opinion.
Judge Shogan files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2016
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4
Given our disposition, we need not address the Commonwealth’s
alternative argument that probable cause arose regarding Appellee once he
was searched and a quantity of Xanax was found on his person. See
Commonwealth’s Brief at 16-17.
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