J-S49013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RASHEED JOHNSON,
Appellee No. 2800 EDA 2013
Appeal from the Order of September 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005637-2012
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 17, 2014
The Commonwealth of Pennsylvania appeals from an order granting
suppression in favor of Appellee, Rasheed Johnson, which was entered on
September 5, 2013.1 We reverse and remand.
The factual background of this case is as follows:
On [February 25,] 2012 the Pennsylvania [Society for the
anonymous] complaint regarding t[wo] dogs in the rear of
2
] The complainant stated that there
[were] two dogs in the rear yard with heavy chains, no food or
water[,] and the yard is full of feces and urine.
1
Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
that the order will terminate
or substantially handicap the prosecution.
2
residence; however, there is no dispute that Appellee had a privacy interest
in the residence.
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On [February 25,] 2012, at approximately 9:15[ a.m. PSPCA
Officer Darlene Sosa] conducted an investigation into the
In the rear yard of the
property, [Officer Sosa] observed one medium sized pitbull mix
breed dog tethered on a heavy chain in [the] corner of the yard.
The collar on the dog appeared [to be] tight[] around the neck.
The area where the dog was chained was covered with feces and
urine. The dog did not have access to food or water, or to clean
sanitary condition[s]. [Officer Sosa] observed another heavy
see the dog at that time. That area was also covered in feces.
[Officer Sosa] took [a] photo of the yard [that showed] trash,
debri[s,] and feces.
[On February 25,] 2012 [Officer Sosa checked] the PSPCA
cruelty database [which revealed that] the owner of this
property[,] Terrance Hayward[ (
been] found guilty [of dog fighting in] February 2009. [As part
of his sentence, he was prohibited from] owning animals for five
years.
Affidavit of Probable Cause, 2/25/12, at 2.
Based upon the above affidavit of probable cause, Officer Sosa sought
searched. Evidence of dog fighting and drug dealing was found in the
residence.
The procedural history of this case is as follows. Appellee was charged
via criminal complaint with possession with intent to deliver a controlled
substance,3 possession of a controlled substance,4 possessing an animal for
3
35 P.S. § 780-113(a)(30).
4
35 P.S. § 780-113(a)(16).
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fighting,5 aiding animal fighting,6 knowingly permitting animal fighting,7 and
possession of drug paraphernalia.8 On May 16, 2012, a criminal information
charging those same offenses was filed.
On June 29, 2012, Appellee filed an omnibus pre-trial motion, which
included a motion to suppress the evidence seized from his residence. A
suppression hearing was held on August 12, 2013, at the conclusion of which
2013, the Commonwealth moved to reconsider the order suppressing the
evidence. That same day, the suppression court vacated its suppression
order. On September 5, 2013, the suppression court heard argument on the
rgument, the
and re-instated the original suppression order. This timely appeal followed.9
The Commonwealth raises one issue for our review:
Did the [suppression] court err by suppressing narcotics and
evidence of dog fighting seized pursuant to a search warrant as
5
18 Pa.C.S.A. § 5511(h.1)(3).
6
18 Pa.C.S.A. § 5511(h.1)(14).
7
18 Pa.C.S.A. § 5511(h.1)(17).
8
35 P.S. § 780-113(a)(32).
9
On October 4, 2013, the Commonwealth filed a concise statement of errors
See Pa.R.A.P. 1925(b). On
December 9, 2013, the suppression court issued its Rule 1925(a) opinion.
appeal was included in its concise
statement.
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there was a substantial basis for finding probable cause under
the totality of the circumstances?
ruling] we are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions drawn from those
Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.
Super. 2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (internal alterations
In re L.J., 79 A.3d
1073, 1080 (Pa. 2013) (citation omitted).
In this case, Appellee moved to suppress the evidence seized from his
residence because, according to Appellee, the magistrate lacked probable
cause to issue the search warrant. Pennsylvania Rule of Criminal Procedure
203 provides, in relevant part, that:
(B) No search warrant shall issue but upon probable cause
supported by one or more affidavits sworn to before the issuing
authority. . . . The issuing authority, in determining whether
probable cause has been established, may not consider any
evidence outside the affidavits.
***
(D) At any hearing on a motion for the [] suppression of
evidence, or for suppression of the fruits of evidence, obtained
pursuant to a search warrant, no evidence shall be admissible to
establish probable cause other than the affidavits provided for in
paragraph (B).
Pa.R.Crim.P. 203.
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We have explained the probable cause requirement for issuance of a
search warrant as follows:
[T]he 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, 503 A.2d 921 (Pa. 1985), and its Pennsylvania progeny,
which incorporates the reasoning of the United States Supreme
Court in Illinois v. Gates, 462 U.S. 213 (1983). . . . The task of
the magistrate acting as 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.
Further, 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
must limit our inquiry to the information within the four corners
of the affidavit submitted in support of probable cause when
determining whether the warrant was issued upon probable
cause.
Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013), appeal
denied, 78 A.3d 1089 (Pa. 2013).
substantial evidence upon which the issuing magistrate could have
reasonably determined that probable cau
residence. Officer Sosa, who had three years of experience investigating
cruelty to animal cases, observed one (with evidence of a second) dog in
unsanitary conditions. Specifically, Officer Sosa stated that the area was
covered in feces, urine, trash, and debris. Officer Sosa further stated that
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there was no food or water visible, that the one dog she saw was tethered
with a tight chain around its neck, that the dog was a pitbull mix, and the
owner of the residence had previously been convicted of dog fighting and
was prohibited from owning animals.
The suppression court erred by considering each of these factors
independently instead of examining the totality of the circumstances. An
affidavit based solely upon one of these facts might be insufficient for the
magistrate to find probable cause. However, when considered together, the
facts show a fair probability of ongoing criminal activity. For example, the
suppression court stated as to the feces, urine, trash, and debris in the yard,
Opinion, 12/9/13, at 4. However, there was more evidence. The
suppression court did not consider the unsanitary conditions of the yard in
combination with the fact that there was no food or water, the dogs were
chained with heavy chains, the collar on the one dog appeared to be tight,
the dog was covered with feces and urine, and the one dog was a pitbull mix
(a breed frequently used in animal fighting). Most glaring was the fact that
Hayward, the owner of the residence, had previously been convicted of
animal fighting and was, at that time, prohibited from owning animals. The
other evidence summarized above, strongly supports a fair probability that
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affidavit was sufficient to establish probable cause.
The suppression court further erred by focusing on possible innocent
explanations for the information included in the affidavit of probable cause.
See United States v. Booker
possibility of an innocent explanation does not vitiate properly established
see also Commonwealth v. Thompson, 985 A.2d 928,
not required to eliminate all innocent explanations for a suspicious set of
ssion court focused
on the fact that the dog may have been given water and food inside the
house and thus did not require additional food and water outside the
residence. See Suppression Court Opinion, 12/9/13, at 4; N.T., 8/12/13, at
15. Although this is one possible innocent explanation, an equally plausible
explanation is that the dog lacked proper food and water. The suppression
court further surmised that the owner of the residence may have been
planning on cleaning the yard that day. N.T., 8/12/13, at 15. Again,
although this is one possible innocent explanation, an equally plausible
explanation is that the yard was never cleaned and the dogs were required
to live in filth. When all of the factors are considered together, it is evident
that probable cause existed to believe that proof of a crime would be found
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The suppression court also erred by faulting Officer Sosa for not
conducting a more thorough investigation. Cf. Suppression Court Opinion,
12/9/13, at 4 (Offic
any additional investigative techniques she could have employed would have
been time consuming and difficult, if not impossible, without a search
warrant. Although Officer Sosa could have taken such steps, they were not
necessary in order to obtain probable cause to search the residence.
Finally, the suppression court erred by considering the manner in
which the search warrant was executed when making its four corners
analysis. See
very sparse warrant is really the reason that [the suppression court] decided
on the [four] corners that they should have done a lot more before they
affidavit of probable cause or in the testimony of [Officer Sosa] at the
hearing could not properly be considered by the suppression court in
determining whether the affidavit of probable cause was sufficient for the
magistrate to find probable cause to issue the search warrant. Instead, the
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suppression court was limited to considering the four corners of the affidavit
of probable cause. Second, Officer Sosa lacked authority to proceed onto
Officer Sosa immediately sought approval from a magistrate for a search
warrant and was able to execute the search warrant that same day.
In sum, the suppression court erred by conducting a de novo review of
evidence offered to support that determination. Instead, the suppression
court should have reviewed the totality of the circumstances established by
basis for the magistrate to determine that they demonstrated a fair
probability that contraband or criminal activity would be discovered in
Appell
the search warrant was valid. Accordingly, we reverse the suppression
proceedings consistent with this memorandum.10
Order reversed. Case remanded. Jurisdiction relinquished.
10
was defective but that the execution of the search warrant was
constitutionally defective. As the suppression court did not conduct a full
the search warrant was defective, we decline to decide in the first instance
whether the suppression motion should have been granted on those
grounds.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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