Com. v. Gagliardi, V.

J-S02035-15

2015 PA Super 242

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

VALENTINO GAGLIARDI

Appellee No. 966 EDA 2014

Appeal from the Order Entered on February 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002666-2013

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

ROMEO P. GAGLIARDI

Appellee No. 981 EDA 2014

Appeal from the Order Entered on February 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0014776-2012

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

ROMEO GAGLIARDI

Appellee No. 1004 EDA 2014

Appeal from the Order Entered on February 21, 2014
J-S02035-15

In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002665-2013

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

DISSENTING OPINION BY WECHT, J.: FILED NOVEMBER 20, 2015

In this consolidated appeal, the Commonwealth appeals the trial

court’s February 21, 2014 order suppressing evidence seized pursuant to the

execution of a search warrant for want of probable cause. The learned

Majority finds error in the trial court’s reasoning for suppressing the

evidence in a multitude of ways, including the trial court’s

mischaracterization of, and, consequently, erroneous application of, the

standard of review, as well as the court’s conclusion that the confidential

informant was unreliable. I have no significant disagreement with those

portions of the Majority’s opinion.

However, I depart with the Majority on the crucial issue in the case:

whether the information contained in the affidavit of probable cause

demonstrated a fair probability that additional narcotics would be found in

the residence in question. In other words, in my view, the Majority

incorrectly concludes that the information contained within the four corners

of the affidavit established a nexus between drug transactions on the street

and Romeo Gagliardi’s residence. Hence, I respectfully dissent.

On August 23 and 24, 2012, Philadelphia Police Officer Bruce Cleaver,

along with his partner, Officer Stevens, conducted two controlled purchases

of narcotics using a confidential informant. The informant had indicated to

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Officer Cleaver that a white male named “Romeo,” who was residing at 2627

Emily Street, was selling drugs in the South Philadelphia area. On the two

days in question, the officers provided the confidential informant with

marked currency, and observed as the informant contacted “Romeo” and set

up a drug transaction. The informant and “Romeo” agreed to conduct the

transactions under a tree near 26th and Dudley Streets. On both occasions,

the informant went to the tree and waited for “Romeo,” who would exit the

Emily Street residence and walk to the tree. Once both parties were there,

the informant would hand the marked currency to “Romeo,” and “Romeo”

would hand the informant a clear packet, which was later determined to

contain cocaine. “Romeo” then would walk away from the tree. Notably,

after the first transaction, “Romeo” was observed making a second

transaction in the same location, but this time the deal occurred inside of a

vehicle that had pulled up to the location. After he made the second deal

with the person in the vehicle, “Romeo” then returned to 2627 Emily Street.

After the transaction that occurred on the second day with the informant,

“Romeo” went directly back to 2627 Emily Street.

Based upon his observation, Officer Cleaver applied for a search

warrant for the residence located at 2627 Emily Street. Officer Cleaver also

prepared an affidavit of probable cause, which he submitted alongside the

warrant application. Officer Cleaver set forth the following in the affidavit of

probable cause:

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I, P/O Bruce Cleaver #2706, your Affiant, am presently assigned
to Narcotic Field Unit South. I have been a sworn Police Officer
since November 1998. In my capacity of Police Officer, I have
been assigned to the 25th Dist Net, and Highway Patrol. In my
course of assignment as Police Officer, I have been involved in
hundreds of 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 on
the Federal and State level. 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.

Your Affiant, P/O Cleaver #2706, received information from C/I
#1349. C/I stated a W/M in his 30’s who goes by the name
Romeo lives at 2627 Emily Street and sells cocaine in South
Philadelphia.

On 8-23-12 P/O Cleaver and P/O Stevens #6301 met with C/I
1349. C/I was checked for narcotics, USC and paraphernalia
with negative results and given $100 PRBM (EK41747841A,
JB64594258A, EA89277660B, JC86786621B, GF60289673D).
C/I made contact with “Romeo” and agreed to meet. The C/I
went to 26th and Dudley under a tree. A W/M was observed
come out of 2627 Emily Street [sic] was identified by the C/I as
the male he knew as Romeo. Romeo approached the C/I and
they engaged in a brief conversation and the C/I handed Romeo
the PRBM. Romeo then handed the C/I a clear packet. Romeo
was then observed walk W/B on Mifflin. The C/I then handed
over to P/O Stevens a clear zip lock packet containing a chunk of
compressed white powder. The C/I checked for narcotics, USC
and paraphernalia with negative results. That item tested
positive for cocaine and was placed on PR#3061629. Romeo
was observed talk [sic] on a cell phone and he walked back to
the tree where he met the C/I. A white Honda Civic was
observed park [sic] under that tree and Romeo got into the
passenger side. A W/M driver handed Romeo USC and Romeo

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handed the W/M driver a clear packet. Romeo exited the Honda
and walked back to 2627 Emily and entered the front door.

On 8-24-12 P/O Cleaver and P/O Stevens met with C/I 1349.
C/I was checked for narcotics, USC and paraphernalia with
negative results and given $100 PRBM (JC30004608A,
GL08921446A, IE5595364D, ED44111159C, GJ28611809B).
The C/I made contact with Romeo and the C/I went to 26 th and
Dudley St at the tree. Romeo was observed walk out of 2627
Emily St. He met the C/I and they engaged in a brief
conversation. The C/I handed Romeo the PRBM and Romeo
handed the C/I a clear packet. Romeo was observed walk back
into 2627 Emily. The C/I then handed over to P/O Cleaver a
clear zip lock packet containing a white compressed powder.
The C/I was again checked for narcotics, USC and paraphernalia
with negative results. The item tested positive for cocaine and
placed on PR#3061631.

Based upon the above observations and the buys by the reliable
C/I who in the past has made buys which led to numerous
confiscations of narcotics, USC and paraphernalia, I respectfully
request a Search and Seizure Warrant for 2627 Emily St.

Affidavit of Probable Cause, 8/24/2012.

On August 24, 2012, the day of the second controlled purchase, the

warrant was approved and executed by police. Romeo Phillip Gagliardi,

Romeo J. Gagliardi, and Valentino Gagliardi were inside the residence when

the police executed the warrant. Each was arrested after the police

searched the residence and found two pounds of marijuana, one hundred

and thirty-six grams of cocaine, $9,682 in currency, a digital scale, a razor

blade, a nine millimeter handgun, and indicia of residence for Romeo Phillip

Gagliardi. All three individuals were charged with possession of a controlled

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substance with intent to deliver, possession of an instrument of crime, and

criminal conspiracy.1

On February 21, 2014, the Gagliardis made a joint oral motion before

the trial court, seeking the suppression of the physical evidence obtained via

the execution of the search warrant on 2627 Emily Street. Following a brief

hearing, and considering only the material contained within the four corners

of the affidavit, the trial court concluded that the search warrant was not

supported by adequate probable cause. Thus, on that same date, the trial

court granted the Gagliardi’s motion and suppressed the evidence.

The Commonwealth presents the following question in this appeal:

“Did the lower court err by invalidating a search warrant for a house on the

ground that the police supposedly lacked probable cause despite arranging

controlled buys in which a defendant was observed leaving the house, selling

cocaine, and then returning to the house on two days in succession?” See

Brief for the Commonwealth at 3.

The legal standards governing a review of this issue are well-

established:

Our standard of review in addressing a challenge to the [grant]
of a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the [defendant] prevailed before the
suppression court, we may consider only the evidence of the
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1
35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 907, 903, respectively.

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[defendant] and so much of the evidence for the
[Commonwealth] as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court’s
factual findings are supported by the record, we are bound by
these findings and may reverse only if the court’s legal
conclusions are erroneous. Commonwealth v. Bomar, 826
A.2d 831, 842 (Pa. 2003). Where . . . the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, “whose duty it is to determine if
the suppression court properly applied the law to the facts.”
Commonwealth v. Mistler, 912 A.2d 1265, 1269 (Pa. 2006)
(quoting Commonwealth v. Nester, 709 A.2d 879, 881 (Pa.
1998)). Thus, the conclusions of law of the courts below are
subject to our plenary review.

* * *

Article I, Section 8 [of the Pennsylvania Constitution] and the
Fourth Amendment [to the United States Constitution] each
require that search warrants be supported by probable cause.
“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. Edmunds, 586 A.2d 887, 899 (Pa.
1991) (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191
(Pa. 1986)). “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.” Commonwealth v.
Thomas, 292 A.2d 352, 357 (Pa. 1972).

In Illinois v. Gates, 462 U.S. 213 (1983), the United States
Supreme Court established the “totality of the circumstances”
test for determining whether a request for a search warrant
under the Fourth Amendment is supported by probable cause.
In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986), [the
Pennsylvania Supreme Court] adopted the totality of the
circumstances test for purposes of making and reviewing
probable cause determinations under Article I, Section 8. In
describing this test, we stated:

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Pursuant to the “totality of the circumstances” test set
forth by the United States Supreme Court in Gates, the
task of an 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
who supply hearsay information, there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. . . . It is the duty of
a court reviewing an issuing authority’s probable cause
determination to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed. 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. Torres, 764 A.2d 532, 537-38 (Pa. 2001)
(emphasis added).

Commonwealth v. Jones, 988 A.2d 649, 654-55 (Pa. 2010) (internal

citations modified).

Our cases require the Commonwealth to establish probable cause for

the premises to be searched, and not only for the person suspected of

criminal activity:

Probable cause to believe that a man has committed a crime on
the street does not necessarily give rise to probable cause to
search his home. . . . [A]n allegation based on an assumption or
supposition not supported by the facts is insufficient to support
(an inference of) criminal activity in a premises, in spite of the
fact that there are plenty of allegations alleged to relate to
criminal activity of the individual who is alleged to have lived in
the premises.

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Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975); see also

Commonwealth v. Wallace, 42 A.3d 1040, 1049-50 (Pa. 2012) (“As the

Superior Court has previously and aptly opined on this point, ‘probable cause

to believe that a man has committed a crime on the street does not

necessarily give rise to probable cause to search his home.’”) (citing

Commonwealth v. Heyward, 375 A.2d 191, 192 (Pa. Super. 1977); Kline,

335 A.2d at 364)). “[T]he lack of a substantial nexus between the street

crime and the premises to be searched renders the warrant facially invalid.”

Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 1985)

(emphasis added). Additionally, a magistrate’s determination of probable

cause “must be based [up]on facts described within the four corners of the

supporting affidavit.” Commonwealth v. Dukeman, 917 A.2d 338, 341

(Pa. Super. 2007) (citing Commonwealth v. Smith, 784 A.2d 182, 184

(Pa. Super. 2001)).

Here, stated simply, there is no information within the “four corners”

of the affidavit of probable cause establishing any “nexus” between Emily

Street and the drug dealing that occurred under the tree near 26 th and

Dudley Streets. Way, supra. There are ample facts in the affidavit to

establish Romeo P. Gagliardi’s identity and that he resides at 2627 Emily

Street. However, the affidavit offers no factual basis for concluding that

Romeo P. Gagliardi’s putative residence was connected to the drug dealing in

any way. Although the affidavit offered significant factual bases for

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concluding that Romeo P. Gagliardi was a street drug dealer, “[p]robable

cause to believe that a man has committed a crime does not necessarily give

rise to probable cause to search his home.” Way, 492 A.2d at 1154.

Unlike the Majority, I believe that this Court’s analyses in Kline and

Way are instructive.2 In Kline, the police obtained a search warrant for an

apartment after eyewitness complainants identified the defendant as a drug

dealer and indicated that the defendant lived in that particular apartment.
____________________________________________

2
Subsequent decisions have distinguished somewhat our holding in
Kline and, by extension, Way. Specifically, this Court has enumerated
several types of evidence that are sufficient to establish the “substantial
nexus” between the place to be searched and the evidence to be seized.
See Commonwealth v. Davis, 595 A.2d 1216, 1220-22 (Pa. Super. 1991)
(holding that confidential informant’s observation of a defendant coming and
going from a specific house between three different narcotics sales and had
recently obtained a large shipment of narcotics established “probable cause
to believe that the objects sought . . . would be found in [the defendant’s]
home.”) (discussed infra); Commonwealth v. Macolino, 485 A.2d 1134,
1136-38 (Pa. Super. 1984) (holding that police established probable cause
to search a home where the affidavit of probable cause contained
information from wiretapped conversations emanating from the house
discussing narcotics trafficking, and police surveillance of the property,
wherein the defendant was observed coming and going from that house
while meeting with a known narcotics supplier); Commonwealth v. Frye,
363 A.2d 1201, 1204 (Pa. Super. 1976) (holding that a defendant’s
admission may form the basis for establishing probable cause to search a
specific locale, stating that “the nexus between the evidence to be seized
and the place to be searched was provided by Frye’s admission that he was
conducting at least part of his unlawful operations from his home.”).

I read these cases as standing for the general proposition that, while the
Commonwealth must establish a nexus between the place to be searched
and the items to be seized, that burden is not insurmountable. However,
the central holding of Kline and Way—that mere evidence of a suspect’s
criminal activity and the location of his residence does not establish probable
cause to search that residence—remains in force.

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Specifically, three different informants stated that they had purchased drugs

from the defendant in the preceding week. Although the complainants

stated that the defendant kept the drugs that he sold in his apartment, there

was no factual basis in the affidavit to support that claim:

[The suppression court] suppressed the evidence seized
pursuant to the warrant because [the suppression court]
concluded that although the affidavit contained facts sufficient to
establish that [the defendant] was indeed dealing in drugs and
lived in the apartment described, it did not contain facts
sufficient to establish the basis [up]on which the several
informants . . . had concluded that [the defendant] had gone to
his apartment to get the drugs.

Kline, 335 A.2d at 362-63. On appeal, this Court upheld the suppression

court’s ruling, stating that assumptions regarding the premises to be

searched are insufficient to establish probable cause:

Here, as far as appears from the affidavit, none of the
informants said where the [drugs were.] The [informants]
apparently concluded that [the drugs were] in [the defendant’s]
apartment. However, an affidavit must set forth how
information leading to such a conclusion was obtained.
Commonwealth v. Ambers, 310 A.2d 347, 350 (Pa. Super.
1973); Commonwealth v. Soychak, 289 A.2d 119, 124 (Pa.
Super. 1972). There is no indication of where the transaction
took place, how long it took, how long [the defendant] was
gone, or what led the [informants] to conclude that [the
defendant] had gone to his apartment. The information from the
confidential informant does not corroborate their conclusion that
[the defendant] kept drugs in his apartment, even though it
does tend to establish that [the defendant] was a drug dealer.

Id. at 364 (internal citations modified). Thus, the mere fact that an affidavit

of probable cause tends to establish the criminal activity of a defendant, and

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the location of his home, does not provide probable cause to support the

issuance of a search warrant for that home.

The Majority attempts to distinguish Kline upon the basis that, here,

“we are dealing with two controlled transactions” that were observed by the

police and set forth in the affidavit of probable cause. See Maj. Op. at 16.

However, the number of transactions that occurred on the street is entirely

irrelevant. The crux of Kline is that the affidavit failed to establish a nexus

between the residence and the drug transactions that occurred outside of

the residence. It does not matter if the police observe ten, twenty, or even

one hundred transactions on the street unless they can establish a nexus

between those transactions and the home. Clearly, the facts that the police

observed two transactions and then wrote about them in the affidavit of

probable cause do not, ipso facto, remove this case from Kline’s command.

Moreover, the Majority entirely omits to discuss Kline’s requirement

that an affidavit of probable cause must address how an informant or a

police officer in conjunction with the informant concluded that additional

drugs were secreted in the residence in question. See id. at 364. Under

Kline, the number of transactions or the fact that a person lived at a

particular residence is insufficient to satisfy that mandate. Indeed, for all

practical purposes, the Majority concludes that the relevant nexus existed

based only upon the facts that drug transactions occurred on the street and

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that the actor lived in the residence to be searched, which is precisely what

Kline held to be insufficient for purposes of establishing probable cause.

In Way, this Court relied upon Kline to suppress evidence seized

pursuant to a search warrant in a narcotics case:

The facts fairly summarized are that the informant arranged a
drug transaction by phone. The alleged transaction occurred in a
blue van along a country road. After the alleged transaction,
police followed the blue van to a driveway of a property at the
corner of Douglas Dr. and Glendale Rd. The informant identified
appellant as the driver of the blue van. A police source told the
affiant that appellant lived at the intersection of Douglas Dr. and
Glendale Rd.

Way, 492 A.2d at 1154. The trial court concluded that the search warrant

was supported by probable cause. On appeal, this Court reversed,

concluding that, “within the four corners of the affidavit, we fail to find

sufficient facts to permit an issuing authority reasonably to conclude that

there was contraband in the premises to be searched.” Id.

Once more, the Majority attempts to distinguish Way because the

affidavit of probable cause demonstrated that the actor’s “base of

operations” was a van, and not the residence. See Maj. Op. at 17. That

may be true, but the factual difference between Way and the instant case is

immaterial. Way stands for the same proposition as Kline, that the

affidavit of probable cause must establish a nexus between the illegal

behavior and the residence to be searched. In Way, the affidavit did not

make that showing regarding the residence. Here, the affidavit similarly

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does not demonstrate a nexus between the street activity and the Gagliardi

home.

Examining the totality of the circumstances, I find no factual

averments in the affidavit that establish any “nexus” between Romeo P.

Gagliardi’s home and his drug transactions on the street. Within its four

corners, the affidavit establishes only probable cause to believe that Romeo

P. Gagliardi sold drugs and lived at the subject residence. Consequently,

Kline and Way are analogous to the present case: “[T]he lack of a

substantial nexus between the street crime and the premises to be searched

renders the warrant facially invalid.” Way, 492 A.2d at 1154; see Kline,

335 A.2d at 364.

As noted earlier, probable cause must be assessed utilizing a common

sense standard. See Jones, supra. However, common sense is not the

same as guesswork. A court cannot fill in factual gaps in pursuit of a result

that might be dictated by common sense. To determine here that probable

cause existed for the residence in question based only upon the facts

contained within the four corners of the affidavit would require me, through

conjecture and surmise, to supply facts that simply are not in the affidavit.

The Majority concludes that the affidavit creates a fair probability that

Romeo Gagliardi was using 2627 Emily Street as his “base of illicit

operations.” Maj. Op. at 15 (emphasis in original). There are no facts in the

affidavit to support this conjecture. The Majority relies only upon the facts

that twice Gagliardi left his home to sell drugs and returned thereafter. But,

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there is no way to know with any reasonable amount of certainty that any

other illicit behavior was going on inside the home.

We can only guess as to what occurred once Gagliardi returned to his

residence, an endeavor that we are prohibited from pursuing. There is not a

single fact to suggest that additional drugs were inside the home, that

Gagliardi was selling drugs from the home, or that he did anything other

than live there. We cannot find probable cause simply because we think we

know what went on inside the home. There must be facts or averments that

a court can point to in the affidavit to support such a conclusion. I see none

in the affidavit here. Without more information, I cannot conclude that a

sufficient basis exists to warrant a magistrate to conclude that a nexus

exists to establish probable cause between the actions observed on the

street and 2627 Emily Street.

As a final matter, I must address Commonwealth v. Davis, 595 A.2d

1216, 1220-22 (Pa. Super. 1991), a case cited by the Commonwealth and

one that bears facial similarities to the case sub judice. In Davis, a

confidential informant informed police that Davis sold drugs in the area of

the William Penn Project in the Chester, Pennsylvania. The informant

described Davis, and told the police that Davis lived at 408 Pancoast Place,

which is located in the William Penn Project. The informant observed Davis

make three individual drug transactions in the William Penn Project, and

then immediately return to 408 Pancoast Place. Finally, the informant

indicated that Davis had received a shipment of “a couple of ounces of

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cocaine” within forty-eight hours of providing the information to police.

Davis, 595 A.2d at 1218. Police incorporated this information into an

affidavit of probable cause and applied for a search warrant. The application

was granted, and the officers executed the warrant on the house. The

search resulted in the confiscation of drugs, money, and drug paraphernalia.

Id.
Davis filed a suppression motion alleging, inter alia, that the warrant

issued without adequate probable cause. The trial court granted the motion,

and the Commonwealth appealed. Finding that the affidavit contained

sufficient probable cause to support the warrant, this Court reversed the trial

court’s suppression ruling. Id. at 1219.

In so ruling, the Davis Court cited, inter alia, Kline and Way, but

distinguished those cases because the affidavit contained more facts to

establish a nexus between Davis’ drug sales in the William Penn Project and

408 Pancoast Place than were present in Kline and Way. The Court noted

that Davis had been observed leaving and returning to the house, which

supported the inference that he lived there. He also was observed actually

selling drugs in the area of the residence three times, and then returning to

the residence immediately thereafter. Finally, the panel noted that “the

confidential informant was told by Davis that he had ‘just recently’ obtained

‘a couple of ounces of cocaine.’ This also occurred within 48 hours prior to

obtaining the warrant to search [Davis’] home.” Id. at 1221.

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Davis is inapposite. Like the defendant in Davis, Romeo P. Gagliardi

was observed making drug sales outside of his home and returning to the

home shortly thereafter. However, Davis is distinguishable because Davis

had just recently received a substantial shipment of cocaine. The quantity of

cocaine was large enough to support the inference that the drugs necessarily

were being stored in the home, primarily because it would be impractical to

carry such a quantity on one’s person. That additional factor is what set

Davis apart from Kline and Way. Instantly, there is no indication in the

affidavit of probable cause that Romeo P. Gagliardi had received a recent

shipment of narcotics. Hence, Davis is distinguishable, and does not control

this case. Kline and Way control.

In my view, the trial court’s ruling was supported by the evidence of

record and was not in error. The trial court correctly ruled that the search

was unconstitutional. The evidence should remain suppressed. Because the

Majority concludes otherwise, I respectfully dissent.

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