Com. v. Ryals, S. ( 2015 )

J-S69007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
STAN RYALS
Appellee No. 2355 EDA 2013
Appeal from the Order Entered July 10, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014654-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 16, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which granted
Appellee, Stan Ryal’s, motion to suppress. We reverse and remand for
further proceedings.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
On July 10 2013, [Appellee’s] counsel presented a Motion
to Suppress Physical Evidence which was filed on June 14,
2013[,] related to a search warrant issued upon
information allegedly derived from anonymous [citizens’]
complaints, in conjunction with information obtained from
a confidential informant as well as police observation of an
alleged street drug transaction.
The Affidavit of Probable Cause is silent as to when the
alleged complaints were received from the citizens or when
information received from an informant was obtained prior
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to the application for issuance of the warrant. …
[The suppression] [c]ourt found that under the U.S.
Supreme Court’s “totality of the circumstances” test set
forth in Illinois v. Gates, 462 U.S. 213, 238-239 (1983),
probable cause did not exist in order to issue a search
warrant. Based upon the information contained in the
warrant, [the suppression] [c]ourt determined that the
affidavit failed to establish any nexus between the
observed drug transaction and the residence.
Accordingly, [the suppression] [c]ourt granted [Appellee’s]
motion and suppressed all evidence obtained against
[Appellee] stemming from the unlawful search. …
The Affidavit of Probable Cause prepared by Police Officer
Galazka stated:
I, P/O Galazka #7481, your affiant, am presently
assigned to Narcotic Field Unit South. I have been a
sworn Police Officer since Jan. of 1995. In my
capacity as a Police Officer, I have been assigned to
the Narcotics Bureau since 1999. In my course of
assignment as a Police Officer, I have been involved
in an excess of 2000 narcotic arrests. Since being
assigned to the Narcotic Bureau, I have worked
numerous investigations for violations of the
Pennsylvania Controlled Substance Act of 1972. My
involvement in these investigations has entailed
surveillances, undercover purchases, and the
preparation of search and seizure warrants by
myself. I have received specialized narcotics-related
training given by the Philadelphia Police Department.
I have also been trained in courses given by the
DEA. My training and experience have made me
familiar with the ways in which narcotics are
packaged for sales on the street and from houses for
illegal sales and distribution. I have received
training in the handling of confidential informants
being utilized for the purpose of undercover
investigations.
On 10-19-12[,] your affiant interviewed P/O O’Neill
#5786 and P/O Gorman #3778 of the 3rd district,
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who stated the following:
P/O O’Neill #5786 and P/O Gorman #3778 received
information from numerous citizen complaints that
heroin and crack cocaine is being distributed from
532 Mifflin St. by a [black male] name[d] [Appellee].
On 10-19-12[,] at approx. 9:17am, while working
the 8am x 4pm tour of duty and on patrol in the area
of the 500 block of Mifflin St., they observed a white
female (later [identified] as Samantha Kerns), who
was riding her bicycle and stopped at 532 Mifflin St.,
where she met with a heavyset [black male] known
as [Appellee]. Kerns and [Appellee] had a brief
conversation and Kerns handed [Appellee] [United
States Currency;] [Appellee] then handed a small
object to Kerns. Kerns noticed the Police and began
to ride her bicycle [westbound] on Mifflin St. Police
stopped Kerns in the 1900 block of S. 7th Street and
she handed the officers (1) one small clear plastic
baggie containing a blue glassine packet with the
word “Bugatti” stamped on it in red ink, containing a
white powdery substance, alleged heroin, which she
had in her right hand. Det. Farrell #9243 conducted
a field sobriety test with positive results for heroin.
The narcotics were placed on PR#3059924.
Your Affiant, P/O Brown #2962 and P/O Rich #9843
also received information from a reliable confidential
informant 01101 that [Appellee is] distributing and
storing heroin inside of 532 Mifflin St.
On 10-19-12[,] P/O Brown conducted a check of the
Philadelphia Police arrest photo database, which
revealed a photo of [Appellee] with a PPN 651845.
P/O O’Neill positively [identified] this photo as the
person who sold the heroin to Samantha Kerns.
On 10-16-12[,] the 3rd district responded to an
attempted fire bombing at 532 Mifflin St. While at
532 Mifflin St. police could smell a strong odor of
gasoline and a window was broken, where an
unknown person attempted to throw a fire bomb.
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Based on the above facts and circumstances your
Affiant respectfully requests a daytime search and
seizure warrant for 532 Mifflin St.
(Trial Court Opinion, filed February 4, 2014, at 1-4) (some citations and
quotation marks omitted). Appellee based his suppression motion on the
claim that the search warrant failed to establish probable cause. On July 10,
2013, the suppression court granted the motion and suppressed all physical
evidence obtained as a result of the search warrant. On August 8, 2013, the
Commonwealth timely filed a notice of appeal1 and a voluntary concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth raises the following question for our review:
DID THE [SUPPRESSION] COURT ERR BY SUPPRESSING
EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT
FROM 532 MIFFLIN STREET WHERE THE POLICE
CORROBORATED REPORTS OF DRUG DEALING FROM
BOTH NUMEROUS CONCERNED CITIZENS AND A
CONFIDENTIAL INFORMANT BY OBSERVING [APPELLEE]
SELLING HEROIN AT THAT LOCATION?
(Commonwealth’s Brief at 3).
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are:
____________________________________________
1
The Commonwealth’s notice of appeal certifies that the court’s order
granting Appellee’s motion to suppress terminates or substantially handicaps
the prosecution. See Pa.R.A.P. 311(d); Commonwealth v. Huntington,
924 A.2d 1252, 1254 n.1 (Pa.Super 2007) (stating: “The Commonwealth
may take an appeal as of right from an order that does not end the entire
case if the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution”).
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[We] 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. As long as there is some
evidence to support them, we are bound by the
suppression court’s findings of fact. Most importantly, we
are not at liberty to reject a finding of fact which is based
on credibility.
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.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and
quotation marks omitted).
The Commonwealth argues Appellee’s motion to suppress should have
been denied. The Commonwealth contends numerous citizens, who
identified Appellee by name, complained Appellee was selling heroin out of
532 Mifflin Street. The Commonwealth alleges a confidential informant
(“CI”), who was identified in the affidavit of probable cause by registration
number, corroborated these reports when the CI told police Appellee was
distributing and storing heroin inside 532 Mifflin Street. The Commonwealth
also asserts police surveillance of 532 Mifflin Street further corroborated the
citizens’ and CI’s reports, when police observed a woman on bicycle stop at
532 Mifflin Street and purchase heroin from Appellee, who was later
identified from a police photo database. The Commonwealth claims, under
the totality of the circumstances, that it was reasonably probable Appellee
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was storing narcotics and/or the proceeds from drug sales at 532 Mifflin
Street, and there was a substantial basis upon which the magistrate could
reach this conclusion and issue the warrant. The Commonwealth maintains
the suppression court improperly viewed each piece of evidence in isolation.
The Commonwealth concludes we should reverse the suppression court’s
order. We agree.
“The linch-pin that has been developed to determine whether it is
appropriate to issue a search warrant is the test of probable cause.”
Commonwealth v. Clark, 611 Pa. 601, ___, 28 A.3d 1284, 1288 (2011).
“In determining whether the warrant is supported by probable cause, the
magistrate may not consider any evidence outside the four-corners of the
affidavit.” Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa.Super.
2003) (quoting Commonwealth v. Sharp, 683 A.2d 1219, 1223 (Pa.Super.
1996)). “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 [person] of reasonable caution [to
believe] that a search should be conducted.” Clark, supra at ___, 28 A.3d
at 1288 (citation omitted). Additionally,
the question of whether probable cause exists for the
issuance of a search warrant must be answered according
to the “totality of the circumstances” test articulated in
Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921(1985), and its Pennsylvania progeny, which incorporates
the reasoning of the United States Supreme Court in
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). The task of the magistrate acting as
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the issuing authority is to make a practical, common sense
assessment of whether, given all the circumstances set
forth in the affidavit, a fair probability exists that
contraband or evidence of a crime will be found in a
particular place. A search warrant is defective if the
issuing authority has not been supplied with the necessary
information. The chronology established by the affidavit of
probable cause must be evaluated according to a common
sense determination.
Huntington, supra at 1255 (some citations and quotation marks omitted).
“Probable cause is based on a finding of the probability, not a prima
facie showing of criminal activity, and deference is to be accorded a
magistrate’s finding of probable cause.” Commonwealth v. Ryerson, 817
A.2d 510, 514 (Pa.Super. 2003). “The duty of the reviewing court is simply
to verify that the issuing magistrate had a substantial basis for concluding
that probable cause existed.” Huntington, supra at 1255. Moreover, the
reviewing court must “consider the affidavit in its entirety, giving
significance to each relevant piece of information and balancing the relative
weights of all the various indicia of reliability (and unreliability)” rather than
judge “bits and pieces of information in isolation….” Clark, supra at ___,
28 A.3d at 1289 (holding: “lower courts failed to look at the information as a
whole, but examined and considered individual factors in a mechanical
fashion, effectively nullifying the mandate to assess the totality of the
circumstances”).
“In assessing an informant’s reliability, a presumption exists that the
information is trustworthy when it has been provided by an identified
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witness.” Huntington, supra at 1255. “[A] totality-of-the-circumstances
analysis permits a balanced assessment of the relative weights of all the
various indicia of reliability and unreliability attending an informant’s tip.”
Clark, supra at ___, 28 A.3d at 1288 (citing Gates, supra at 234, 103
S.Ct. at 2330, 76 L.Ed.2d at ___). “A [confidential informant’s] veracity and
basis of knowledge are but factors among the totality of the
circumstances[.]” Clark, supra at ___, 28 A.3d at 1288.
[A]n informant’s tip may constitute probable cause where
police independently corroborate the tip, or where the
informant has provided accurate information of criminal
activity in the past, or where the informant himself
participated in the criminal activity. The corroboration by
police of significant details disclosed by the informant in
the affidavit of probable cause meets the Gates threshold.
Id. (citations omitted).
Furthermore, “[a]n affidavit of probable cause must include facts from
which a magistrate can determine the time frame within which the
supporting information was acquired.” Sharp, supra at 1223 (citation
omitted). “A search warrant is defective if the issuing authority is not
supplied with a time frame upon which to ascertain when the affiant
obtained the information from the informant and when the informant himself
witnessed the criminal acts detailed in the affidavit of probable cause.” Id.“[S]tale information cannot provide probable cause in support of a warrant.”
Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa.Super. 2012) (quoting
Commonwealth v. Janda, 14 A.3d 147, 158 (Pa.Super. 2011)) (quotation
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marks omitted). Nevertheless, “[a] showing that criminal activity is likely to
have continued up to the time of the issuance of a warrant renders
otherwise stale information viable.” Commonwealth v. Jones, 542 Pa.
418, 427, 668 A.2d 114, 118 (1995).
Instantly, the magistrate had a substantial basis to conclude, under
the totality of the circumstances, there was probable cause to support a
search warrant for 532 Mifflin Street. See Huntington, supra. The CI’s
information was presumptively trustworthy because the affidavit of probable
cause identified the CI by registration number, stated the CI was reliable,
and included the date the CI provided information to the police. See
Huntington, supra. The police also independently corroborated the CI’s
information, that Appellee was distributing and storing heroin inside 532
Mifflin Street, when the police observed Appellee sell heroin in front of 532
Mifflin Street. See Clark, supra. Moreover, the affidavit’s failure to include
the dates the citizens’ observed Appellee’s illegal activity and relayed that
information to the police did not render the search warrant defective. An
attempted firebombing at 532 Mifflin Street on October 16, 2012, further
indicated a likelihood that criminal activity continued to occur up to the time
the search warrant was issued on October 19, 2012. See Jones, supra.This incident rendered the citizens’ arguably stale information sufficiently
viable to permit the magistrate to determine the time frame within which the
illegal activity occurred or was occurring. See id.; Sharp, supra.-9-
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Therefore, under the totality of the circumstances, the magistrate properly
determined the affidavit of probable cause contained sufficient information to
support the search warrant. Accordingly, we reverse the suppression court’s
order and remand for further proceedings. See Huntington, supra at 1259(stating suppression or exclusion of evidence is most extreme remedy that
can be justified only when it is necessary to vindicate fundamental rights or
to correct or deter police abuse).
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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