Com. v. Acevedo, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHNATHAN JESUS ACEVEDO : No. 425 MDA 2019
Appeal from the Order Entered February 4, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004049-2018
BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED: APRIL 14, 2020
Appellant, the Commonwealth of Pennsylvania (the Commonwealth),
appeals from the order entered on February 4, 2019, granting a motion to
suppress filed by Johnathan Jesus Acevedo (Acevedo). Upon careful review,
we vacate the order and remand for additional proceedings.
The Commonwealth charged Acevedo with possession with intent to
deliver (PWID) and possession of drug paraphernalia1 when the police
searched his residence, after obtaining a search warrant, and recovered two
digital scales, a spoon, a bottle of Inositol,2 a box of .375 ammunition,
$2,440.00 in U.S. currency, and six clear plastic bags containing
approximately 108 grams of cocaine. Relevant to the current appeal, the
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1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.
2 Inositol is a substance used to adulterate and add volume and weight to
controlled substances such as cocaine. See Wikipedia.org.
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search warrant application was supported with facts contained in the affidavit
of probable case, which states:
The affiant is Police Officer Patrick Gartell of the Northern York
County Regional Police Department presently assigned to the York
County Drug Task Force, and [has] been sworn in as a Special
York County Detective authorized to conduct drug investigations
in York County, [Pennsylvania]. As such, I am empowered to
conduct drug investigations in York County. Through my
employment, I have opportunities, on a daily basis to interact with
various persons, including informants and sources of information,
who are familiar with controlled substance use and distribution
use in York County, [Pennsylvania]. In the past, I have spoken
with such persons regarding the manner in which controlled
substances are sold, their value, how they are packaged and how
controlled substances are used. Additionally, I have constant
opportunities to view controlled substances, and how they are
packaged, when such controlled substances are seized by law
enforcement.
Additionally, while working drug investigations in central
Pennsylvania I have had the opportunity to interview dozens of
informants and sources of information. These interviews
concerned the value of controlled substances, the appearance of
controlled substances, methods of sale, methods of packaging,
methods of hiding, secreting and transporting controlled
substances, as well as identifying persons involved in the
[distribution of controlled substances].
Within the past [two] months I spoke with a confidential informant
(CI) who advised that they could purchase cocaine from a person
they knew as “Johnny.” Through information from the CI and
databases available to me I identified “Johnny” as [Acevedo]. I
then showed the CI a PennDot photo of Acevedo. The CI
[confirmed] Acevedo was the person they knew as “Johnny,” and
the person they could purchase cocaine from. A check of PennDot
records lists Acevedo’s address as 752 Colony Drive, York City,
York Co., [Pennsylvania].
Within the past two months I directed the CI to make
arrangements to purchase cocaine from Acevedo. Acevedo
agreed to sell the CI cocaine and a pre-determined location was
agreed upon. I then searched the CI and found [him/her] to be
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free of drugs, money, or any other contraband. I then provided
the CI with a quantity of cash which the serial numbers were
previously recorded. The CI was kept under continual
surveillance. Officers then watched as the CI met with Acevedo
at the predetermined location. The CI then turned over a quantity
of cocaine [he/she] advised was purchased from Acevedo using
the official funds provided. The CI was again searched and [found
to be] free of drugs, money, or any other contraband. After
meeting with the CI[,] assisting police officers followed Acevedo
to the area of his residence and observed him entering the front
door of 752 Colony Drive[.]
On a second occasion, and within the past week, I directed the
same CI to contact Acevedo and make arrangements to purchase
cocaine from him. The CI and Acevedo agreed upon a
pre-determined location. I then searched and found [the CI] to
be free of drugs, money, or any other contraband. I then provided
the CI with a quantity of cash of which I previously recorded the
serial numbers. I then kept the CI under continual surveillance
and followed him/her to the pre-determined location. I
maintained continual visual surveillance of the CI for the duration
of this incident. A short time later I watched as the CI met with
Acevedo. The CI then returned to me a[nd] turned over a quantity
of cocaine. The CI advised that [he/she] purchased the cocaine
from Acevedo using the official funds provided when officers saw
them meet. I again searched the CI and found [him/her] to be
free of drugs, money, or any other contraband.
After meeting with the CI, assisting police officers followed
Acevedo from the pre-determined location keeping him under
continual surveillance. Acevedo did not stop or meet with anyone
else after meeting with the CI. Police [o]fficers followed Acevedo
to the area of his residence and then observed Acevedo enter the
front door of 752 Colony Drive[.]
On [June 12, 2018,] officers were conducting surveillance of
Acevedo’s residence located at 752 Colony Drive[.] They
observed Acevedo arrive and enter the residence. A short time
later[,] officers watched Acevedo exit the residence and leave the
area in a red Lexus. Officers followed Acevedo and kept him under
continual surveillance. In the area of North Sherman St. and
Hudson St.[,] Acevedo was stopped and taken into custody on the
prior [two] deliveries. Once in custody Acevedo was searched.
Officers found a plastic baggie containing cocaine in his pants
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pocket. Acevedo acknowledged the substance found in his pocket
was cocaine.
The cocaine found on Acevedo was packaged the same way he
had it packaged during the prior deliveries.
Based upon Department policy and the York County District
Attorneys[’] Office recommendations, which arise out of concerns
for the safety and well-being of investigators, the substance
seized was not field tested[.] However, based upon my training
and experience, including my experience with drug investigations
in the past where I have had the opportunity to seize and view
cocaine, as well as the manner in which it [is] commonly packaged
in York County, I believe[d] the substance to be cocaine[.]
Additionally, as described above, arrangements were made in my
presence by the CI to purchase a quantity of [cocaine.] The CI
was provided an amount of cash which was consistent with the
amount of cocaine to be purchased[.] The CI met with the
supplier as described above and purchased what the CI, who is a
cocaine user, believed to be cocaine[.] The amount of cocaine
purchased by the CI was consistent with the amount of money
provided. []Taken in their totality, I believe that all of these
factors demonstrate that the substance purchased and seized was
cocaine[.]
A check of Acevedo’s criminal history shows he pleaded guilty to
conspiracy to manufacture a controlled substance for an offense
that occurred in York County on [October 11, 2016].
Through my training and experience, including the observations
made during this investigation which are presented above, I
believe that a cocaine vending operation is being conducted by
Johnathan Acevedo inside the residence at 752 Colony Drive,
within York City, York County, [Pennsylvania]. I believe that
evidence of that offense, including additional amounts of cocaine;
cash previously used to purchase cocaine; materials and items
commonly used to package cocaine, such as plastic bags and
electronic scales; records or documentation of past cocaine
transactions; and property or other assets acquired through illegal
drug trafficking will be present at 752 Colony Drive [w]ithin York
City, York County, [Pennsylvania].
Affidavit of Probable Cause, 6/12/2018, at 2-5.
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Based upon the information set forth in the affidavit of probable cause,
the police applied for a search warrant to search the residence on Colony
Drive. A magisterial district judge authorized the search warrant. Upon
execution of the search warrant, police recovered the items described above.
As mentioned in the affidavit of probable cause, in a search incident to arrest,
police also recovered cocaine from Acevedo’s person that was packaged
similarly to the cocaine previously purchased by the CI. The Commonwealth
charged Acevedo with the aforementioned crimes on July 31, 2018. On
August 30, 2018, Acevedo filed an omnibus pre-trial motion seeking
suppression. The trial court held a hearing on October 5, 2018 and the court
held its decision in abeyance pending the filing of briefs.
On February 4, 2019, the trial court granted Acevedo suppression by
order and opinion. The trial court determined that the affidavit of probable
cause did not indicate that Acevedo was selling cocaine from his residence and
“any connection to [Acevedo’s] residence [was] too tenuous[.]” Trial Court
Opinion, 2/4/2019, at 6. More specifically, the trial court offered the following
rationale for granting suppression:
The CI provided good information[3] that tipped off [police] officers
and led to two [controlled narcotics transactions] that provided
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3 The trial court noted it “was not truly assessing the reliability of the CI; but
rather, [was] assessing any evidence supplied to the magistrate, by the
officers, about the residence in question.” Trial Court Opinion, 2/4/2019, at
7. “[A] determination of probable cause based upon information received from
a confidential informant depends upon the informant's reliability and basis of
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probable cause to arrest [Acevedo] for selling cocaine. Yet,
crucially, the officers did not follow [Acevedo] from his supposed
residence to the [controlled drug buys]; but, rather, followed
[Acevedo] to his residence after each of the [transactions]. Thus,
the officers established that [Acevedo] twice returned to his
domicile after selling drugs and nothing more. There was no
useful information garnered vis-à-vis the residence as the source
of drugs or a stash location when the affidavit does not indicate
whether [Acevedo] left for the [controlled drug buys] from the
home. As [Acevedo] was not followed from his residence to the
[controlled drug buys] – despite the officers knowing the location
at which [Acevedo] resided – it is impossible to infer – certainly
not the degree necessary for probable cause – that [Acevedo]
obtained drugs to sell from his residence. The Commonwealth
cannot say from whence the drugs utilized in the [controlled drug
buys] were obtained. This leads to the day of arrest – and the
final opportunity, along with the rest of the totality of the
evidence, for the affidavit to have provided sufficient probable
cause.
The officers staked out [Acevedo’s] residence. The officers saw
[Acevedo] arrive at and enter his home. Shortly thereafter, the
officers observed [Acevedo] leave the residence, enter a red
Lexus, and depart the area of the home. Thereafter, [Acevedo’s]
vehicle was stopped and he was arrested for the previous
[controlled drug buys]. Incident to arrest, [] cocaine was seized
from his person. The Commonwealth [] infer[s] that because
[Acevedo] entered his residence and left shortly thereafter and
was seized with cocaine on his person that matched the packaging
from the [controlled drug buys] then the residence had to be the
source of the drugs and thus probable cause to search was
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knowledge viewed in a common sense, non-technical manner. Thus, an
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.” Commonwealth v. Gagliardi, 128 A.3d 790, 795-796
(Pa. Super. 2015) (citation omitted). As discussed below, our Supreme Court
previously rejected the grant of suppression based upon lack of probable
cause merely “because the CI had not stated that he had previously been
inside th[e] residence” where alleged narcotics were said to be sold.
Commonwealth v. Clark, 28 A.3d 1284, 1289 (Pa. 2011). Here, police
independently verified the CI’s tips when they surveilled the two prior
controlled drug buys.
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established. [The trial court] believe[d] this [was] too attenuated
and weak. On the day of the arrest, the officers had staked out
the residence. If the officers had set up a third [controlled drug
buy] then they might well have observed the same thing
([Acevedo] entering his residence and leaving shortly thereafter),
which, in combination with an established [controlled drug buy],
would have established that the home was the likely source of the
drugs. Instead, the information in the affidavit merely indicates
that [Acevedo] arrived at and left his home before being arrested.
The presence of cocaine on [Acevedo’s] person at the time of
arrest would only allow the magistrate to infer that [Acevedo] had
cocaine on his person and not the source of the cocaine.
Cocaine on [Acevedo’s] person was not a substantial basis from
which the magistrate could conclude that the residence was the
source of the cocaine. For the foregoing reasons, [the trial court
granted Acevedo’s] motion to suppress evidence gathered from
the search of his residence[.]
Id. at 7-8 (emphasis in original). This timely appeal resulted.4
In its Rule 1925(b) statement, the Commonwealth averred that the trial
court failed to consider the nexus between the money used by the CI in the
two controlled drug buys and Acevedo’s residence. More specifically, the
Commonwealth argued that the police recorded the serial numbers from the
money used in the two prior CI transactions and that they witnessed Acevedo
enter his residence immediately thereafter on both occasions. As such, the
Commonwealth argued there was a reasonable probability that evidence of
crime would be located in Acevedo’s residence. The Commonwealth also
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4 The Commonwealth filed a notice of appeal on March 6, 2019. The notice
of appeal contained the requisite certification, pursuant to Pa.R.A.P. 311(d),
stating that the suppression order would terminate or substantially handicap
the prosecution. On March 27, 2018, the Commonwealth filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On August 9, 2019, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) which relied, in part, upon its previous February 4, 2019 opinion.
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argued that police seized cocaine from Acevedo’s person after he was seen
leaving his residence and while he was en route to a third controlled drug buy.
Thus, the Commonwealth averred that, in considering the totality of the
circumstances, there was probable cause to issue a search warrant for
Acevedo’s residence and suppression was unwarranted.
In response to these arguments, the trial court concluded:
Turning to the buy-money, [the trial court did] not deny that the
buy money would have been evidence of the two [controlled drug
buys]; however, based upon the [criminal i]nformation [filed by
the Commonwealth], [Acevedo] does not appear to have been
charged with [crimes pertaining to] the [controlled drug buys].
Rather, the true target of the search appears to have been
evidence of a drug-vending operation at the location in question.
For all the reasons stated in [the February 4, 2019 opinion], the
buy-money would be irrelevant to the crimes charged. The
buy-money would have been relevant to charging [Acevedo] for
the two [controlled drug buys] known to have occurred. Now, the
affidavit of probable cause does state in its closing paragraphs
that the officer believes that monies from previous drug-dealing
will be found at the residence. The Superior Court might conclude
this is enough, especially in light of such cases as
Commonwealth v. Clark, [28 A.3d 1284, 1291 (Pa. 2011)]
which calls upon courts to weigh the totality of the circumstances
and to not evaluate pieces [of evidence] in isolation. [The trial
court] was swayed by York County’s recent experience with
Commonwealth v. Manuel, 194 A.3d 1076, 1081 (Pa. Super.
2018). It seemingly calls upon [courts] to hold officers to a more
stringent standard than what has previously sufficed in York
County, Pennsylvania. Despite Manuel, [the trial court] has
denied suppression in numerous recent cases, including:
Commonwealth v. Inkroe, Commonwealth v. Lawrence,
Commonwealth v. Madera-Guilbe, [and] Commonwealth v.
Ferguson. In all of these cases, the officers performed
independent police work that tied the residence to be searched to
the defendant. [The trial court] believe[s it] did balance the
totality of the circumstances in this case and, even with the
addition of the buy-money, [did] not believe that the balance tips
in the Commonwealth’s favor. Though there was theoretically
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some possibility of locating buy-money at the location in question
as [Acevedo] was observed to return there, [the trial court]
believe[d] it [was] too tenuous. [The trial court] readily
acknowledge[d] that this [was] a close call. If the
Commonwealth’s assertion that a third [controlled drug buy] was,
in fact, evident in the affidavit of probable cause, then [the trial
court] would agree that a sufficient nexus had been established.
If the [trial court] erred, [it] know[s] that the Superior Court will
set it right.
Rule 1925(a) Opinion, 8/9/2019, at 4-5 (superfluous capitalization and trial
court citations omitted; emphasis in original).
On appeal, the Commonwealth presents the following issue for our
review:
I. Whether [t]he [s]uppression [c]ourt erred in suppressing
the fruits of the search warrant as the four corners of the
search warrant contained probable cause to search
[Acevedo’s] residence under the totality of the
circumstances[?]
Commonwealth’s Brief at 4.5
This Court has stated:
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.
Our standard of review is restricted to establishing whether the
record supports the suppression court's factual findings; however,
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5 The Commonwealth makes the same arguments to this Court that it
presented to the trial court. We need not recite them again here.
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we maintain de novo review over the suppression court's legal
conclusions.
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.[6]
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. Korn, 139 A.3d 249, 252–253 (Pa. Super. 2016) (internal
citations, ellipsis, and quotations omitted).
Our Supreme Court has concluded:
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all 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. And the duty of a reviewing
court is simply to ensure that the magistrate had a substantial
basis for concluding that probable cause existed.
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6 “Although reasonable minds frequently may differ on the question of whether
a particular affidavit establishes probable cause, the deference afforded a
magistrate judge ensures that, if a substantial basis exists to support the
magistrate's probable cause finding, the trial court must uphold that finding
even if a different magistrate judge might have found the affidavit insufficient
to support a warrant.” Gagliardi, 128 A.3d at 795.
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Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (emphasis in
original). “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.” Id.
In Clark, our Supreme Court recounted:
The affiant in [Clark] was Philadelphia Police Officer James Kidd,
a fourteen-year narcotics bureau veteran who had been involved
in over 3000 narcotics arrests by the time of the instant
investigation. The affidavit of probable cause stated that on
September 8, 2004, a “reliable confidential informant” had
informed Officer Kidd that a white male, approximately 6′–6′2″ in
height, weighing approximately 170–195 lbs., known as “Steve,”
packages and distributes cocaine from 4242 Salmon Street in
Philadelphia, and makes deliveries of cocaine in a white Pontiac
Grand Am with a black roof, Pennsylvania license number
FRG-5450. The affidavit further stated that the police conducted
a controlled drug buy on September 9, 2004, as follows: The
police observed a white male matching the description of “Steve”
depart 4242 Salmon Street, directly enter a white Pontiac Grand
Am with a black roof and license number FRG–5450, and drive to
the site of a pre-arranged controlled buy. The police observed as
the CI purchased cocaine in two green plastic baggies from the
white male with $40[.00] pre-recorded buy money. After the
transaction, the police followed the white male back to 4242
Salmon Street, where they saw him exit the Pontiac and directly
enter the residence. The police verified that the Pontiac was
registered to “Steve Clark” with an address of 4242 Salmon
Street.
Based on the above recitation, a Municipal Court Judge issued a
search warrant for 4242 Salmon Street and the police executed a
search of the residence on September 10, 2004. The police seized
$1775[.00] in United States currency, cocaine, cocaine “cutting”
agents, packaging paraphernalia, a loaded .25 caliber handgun,
and mail addressed to “Steve Clark.” They arrested Appellee,
Steven Clark, who subsequently filed a motion to suppress the
evidence seized from the residence.
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Id. at 1285–1286.
Ultimately, the Clark Court found:
The totality of the circumstances here included the fact that the
police corroborated significant details of the informant's tip by
conducting and observing, the day before they applied for the
search warrant, a controlled buy of narcotics that dovetailed
precisely with the information the CI had provided. Indeed, the
only portion of the CI's information that the police had not verified
was where the cocaine was stashed. Although the observed facts
pointed to 4242 Salmon Street as the stash house, the lower
courts here erroneously determined that probable cause to search
that residence was lacking, in part, because the CI had not stated
that he had previously been inside that residence.
Id. at 1289. The Clark Court concluded, “there was a sufficient connection
between the residence and the transaction to corroborate the CI's information
that drugs were stored in the residence, and to support a determination of
probable cause to search the residence.” Id. at 1291.
In this case, we note initially that we give great deference to the
magistrate in finding probable cause to support the issuance of a search
warrant. Here, the application for the search warrant, and the attached
affidavit of probable cause, included a verified factual recitation of two prior
controlled drug buys of cocaine from Acevedo. Thus, similar to the facts in
Clark, the CI herein was reliable. Moreover, based upon all of the information
provided, the affidavit of probable cause demonstrated a fair probability that
the proceeds of crime would be found in the location for which the warrant
was sought. The affidavit specifically stated that police twice witnessed
Acevedo enter his residence immediately after receiving previously recorded
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buy money in exchange for cocaine. These funds constituted the proceeds of
criminal activity, were specifically identified in the affidavit of probable cause,
and there was a fair probability that they would be found inside the residence.
See Commonwealth v. Coleman, 830 A.2d 554, 564 (Pa. 2003) (“there was
an overwhelming probability that, at the time police would actually enter the
residence under authority of [a search] warrant, evidence of a crime -
specifically, the marked buy money - would be found there.”). In addition,
the affidavit of probable cause detailed that, shortly after the controlled drug
buys, police surveilled Acevedo leave his residence and when they initiated a
traffic stop and arrested Acevedo, they recovered cocaine from his person
packaged identically to the two prior controlled buys.7 Hence, the officer’s
affidavit also demonstrated a reasonable probability that police would find
cocaine, together with other identified items relating to criminal activity, in
the residence. Based upon a totality of the circumstances, the affidavit of
probable cause established a fair probability that controlled substances or
other evidence of illicit activity would be located at Acevedo’s residence. Since
all of the aforementioned information was set forth in the affidavit of probable
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7 In his motion to suppress, Acevedo did not challenge the traffic stop or the
seizure of the cocaine from his person incident to his arrest. Nor does he
suggest that the cocaine was stored in his vehicle. Regardless, as our
Supreme Court noted in Clark, “[a]lthough the circumstances of the observed
transaction also potentially pointed to [Clark’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 that the affidavit information
preclude all possibility that the sought after article is not secreted in another
location.” Clark, 28 A.3d at 1291 (citation omitted).
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cause, we hold that the magistrate had a substantial basis for concluding that
probable cause existed. Accordingly, it was trial court error to grant
suppression.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2020
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