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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NATEN UNG
No. 2319 EDA 2015
Appeal from the Order Entered July 9, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0001220-2015
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 06, 2017
The Commonwealth appeals from the order entered in the Philadelphia
County Court of Common Pleas, which granted Appellee Naten Ung’s 1 motion
to suppress. The Commonwealth claims that the suppression court erred in
concluding a warrant to search Appellee’s residence was not supported by
probable cause. We reverse and remand for further proceeding.
The factual background at issue was set forth in the affidavit of
probable cause prepared by Philadelphia Police Officer Charles Kapusniak as
follows:
On 12/2/14, P/O Kapusniak#3465 and P/O Rich#9843 met
with Confidential Informant#1493[(“C/I”)], this informant
has been used in prior narcotics investigations leading to
arrests and confiscations of narcotics, weapons and USC.
*
Former Justice specially assigned to the Superior Court.
1
We note that Appellee did not file an appellate brief.
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The C/I stated to police that an asian male known to the
C/I as “SP” (short thin approximately 5’4 120 lbs, with a
tatoo under his left eye and on his neck)who lives at 517
Porter St. sells marijuana & cocaine in that immediate area
utilizing the cell phone numbers of #267-546-6610 and
215-300-8337.
On 12/2/14, between the times of (1:00 and 4:00 pm
exact time excluded to protect the C/I) C/I#1493 was
searched in accordance with Phila. Police Dept. policy and
procedure for narcotics or contraband with negative
results. The C/I was given $20 pre-recorded buy money
and in the presence of police dialed the #215-300-8337
and had a drug related conversation with a male voice in
reference to purchasing marijuana. The male voice
instructed the C/I to the area of 400 block of Tree St. The
C/I was taken to that location. P/O Kapusniak#3465
observed the C/I approach an Asian male fitting the
description of “SP” and handing the male the pre-recorded
buy money in exchange for small items. The C/I
immediately returned to P/O Rich#9843 and turned over
(4) clear packets each containing a green weedy substance
of alleged marijuana. Those items were turned over to
P/O Kapusniak#3465 and were placed on PR#3184704.
On 12/9/14, between the times of (5:00 pm and 7:00 pm
exact time excluded to protect the C/I) C/I#1493 was
searched in accordance with Phila. Police Dept. policy and
procedure for narcotics or contraband with negative
results. The C/I was given $40 pre-recorded buy money
and in the presence of police dialed the #267-546-6610
and had a drug related conversation with a male voice in
reference to purchasing cocaine. The male voice
instructed the C/I to go to the area of the 2300 block of S.
6th St. The C/I was observed by P/O Kapusniak#3465
meeting up with “SP” and handing him the pre-recorded
buy money in exchange for small items. The C/I returned
immediately back to P/O Rich#9843 and handed over (2)
green tinted packets each containing a white powder
substance of alleged cocaine. Those items were turned
over to P/O Kapusniak#3465 and were placed on PR
#3184727.
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On 12/16/14, between the times of (2:00pm and 4:00 pm
exact time excluded to protect the C/I) C/I#1493 was
searched in accordance with Phila. Police Dept policy and
procedure for narcotics or contraband with negative
results. The C/I was given $40 pre-recorded buy money
and in the presence of police dialed the #267-546-6610
and had a drug related conversation with a male voice in
reference to purchasing cocaine. The male voice instructed
the C/I to go to the area of 2400 S.Fairhill St. The C/I was
sent to that location, a short time later P/O Rich#9843
observed “SP” exit 517 Porter St and followed him on foot
to 2400 S. Fairhill St. P/O Rich#9843 observed the C/I
approach “SP” and hand him the pre-recorded buy money
in exchange for small items. After the above transaction
P/O Rich#9843 followed “SP” back to 517 Porter St., The
C/I returned back to P/O Kapusniak#3465 and handed
over (2) green tinted packets each containing a white
powder substance of alleged cocaine. Those items were
placed on PR#3184759.
On 1/6/15, between the times of (1:00 pm and 3:00 pm
exact time excluded to protect the C/I) C/I#1493 was
searched in accordance with Phila. Police Dept. policy and
procedure for narcotics or contraband with negative
results. The C/I was given $40 pre-recorded buy money
and in the presence of police dialed the #215-300-8337
and had a drug related conversation with male voice in
reference to purchasing cocaine. The male voice
instructed the C/I to go to the area of 600 Ritner St. The
C/I was taken to that location and was observed by P/O
Kapusniak#3465 approaching “SP” and handing him the
pre-recorded buy money in exchange for small items. The
C/I returned back to P/O Rich#9843 and handed over (2)
red packets each containing a white powder substance of
alleged cocaine. Those items were turned over to P/O
Kapusniak#3465 and placed on PR#3184778. P/O
Kapusniak#3465 and P/O [R]ich39843 set up a
plainclothes surveillance of 517 Porter and [ ] at
approximately 4:45 pm observed “SP” enter that property
using a key.
A NIK test “E” & “G” was conducted on samples of the
items purchased during this investigation which tested
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positive for matijuana and cocaine by P/O
Kapusniak#3465.
A property check revealed that (Huang Li H) is the owner
of record.
Aff. of Probable Cause, 1/7/15, 1-2.
Officer Kapusniak applied for a warrant to search 517 Porter Street on
January 7, 2015, attaching the above affidavit. In addition to the factual
averments set forth above, Officer Kapusniak also stated:
I your affiant, P/O Kapusniak#3465 have been a
Philadelphia police officer for 22 years and have been
involved in over 5000 narcotics investigations and believe
that based on the information given, and the controlled C/I
buys that the property of 517 Porter St. is being used to
store and deliver illegal narcotics along with the proceeds
of those sales. I am respectfully requesting a search &
seizure warrant for that property at this time.
Id. at 2.
A search warrant for 517 Porter Street was issued and executed on
January 8, 2015. Inside Appellee’s residence, the police found, inter alia,
nine packets of cocaine, forty-three packets of marijuana, several containers
of Xanax pills, $1,087 dollars in cash, and a loaded handgun. Appellee was
arrested and charged with possession with intent to deliver a controlled
substance,2 criminal use of communication facility,3 intentional possession of
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 7512(a).
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a controlled substance,4 possession of drug paraphernalia,5 and possession
of an instrument of crime.6
On June 26, 2015, Appellee filed a motion to suppress the physical
evidence recovered from his residence, claiming that probable cause was
lacking. The suppression court agreed and granted Appellee’s suppression
motion on July 9, 2015. The court determined that the facts set forth in
Officer Kapusniak’s affidavit did not establish probable cause. Suppression
Court Opinion, 1/19/16, at 5-6. The court specifically found that the
information was stale and vague:
The affidavit questioned here presents evidence of criminal
activity at 517 Porter Street at some date prior to January
8th, some 23 days earlier. With no direct observations that
criminal activity was afoot at the aforementioned property,
the information was stale and vague. There is no
corroborated indication that [Appellee] engaged in criminal
activity at 517 Porter Street. No facts are averred which
tend to show that 517 Porter was placed under
observation; no personal observation is averred which
would tend to indicate that the contraband was known to
have been moved; no additional indication of ongoing or
continuing activity is averred. Therefore it is not
substantiated that contraband was to be found at 517
Porter Street.
Id. at 5.
4
35 P.S. § 780-113(a)(16).
5
35 P.S. § 780-113(a)(32).
6
18 Pa.C.S. § 907(a).
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The Commonwealth filed a timely notice of appeal7 and
contemporaneously submitted a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. The suppression court filed a responsive Pa.R.A.P.
1925(a) opinion.
The Commonwealth raises a single issue for our review:
Did the [suppression] court err by invalidating a search
warrant for [Appellee’s] residence where police observed
him leave the premises, sell drugs, and then return to the
premises, and later confirmed that he was continuing to
sell drugs on the street before returning home?
Commonwealth’s Brief at 3.
The Commonwealth contends that the suppression court erred by
finding that the evidence Officer Kapusniak supplied in his affidavit did not
establish probable cause for the issuance of a search warrant for Appellee’s
residence located at 517 Porter Street. To that end, the Commonwealth
emphasizes that a reliable C/I reported that Appellee was selling drugs in
the immediate vicinity of his home and the police corroborated this
information by setting up four controlled drug transactions. The
Commonwealth points out that in one such transaction, police observed
Appellee leave 517 Porter Street, engage in a drug transaction, and then
7
While we note that the order at issue is interlocutory, it is well settled that
pursuant to Pa.R.A.P. 311(d), the Commonwealth may pursue this appeal if
it certifies “that the order will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 311(d); Commonwealth v. Whitlock, 69 A.3d
635, 636 n.2 (Pa. Super. 2013). In this case, the Commonwealth provided
the requisite certification within its notice of appeal filed on July 29, 2015.
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immediately return to his residence. Further, the Commonwealth highlights
that police observed Appellee return to the subject address after a controlled
drug transaction only two days before the issuance of the search warrant.
The Commonwealth avers that this last incident renders the information in
the affidavit far from stale but instead evidence of a continuous drug
operation. We agree.
When reviewing a Commonwealth appeal from a suppression order
we apply the following standard and scope of review:
[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, 49 A.3d 442 (Pa. 2012) (citations and quotation marks
omitted).
It is beyond cavil that under both the state and federal constitutions, a
search warrant must be supported by probable cause. Commonwealth v.
Hoppert, 39 A.3d 358, 362 (Pa. Super. 2012). In general, “[p]robable
cause exists where the facts and circumstances within the affiant’s
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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. Clark, 28 A.3d
1284, 1288 (Pa. 2011) (citation omitted). Indeed, “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.” Id.
Pennsylvania Courts have adopted a “totality of the circumstances”
approach to the determination of probable cause:
In [Pennsylvania], 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 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.
Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013) (some
citations and quotation marks omitted).
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Further, “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.” Commonwealth v. Davis, 595 A.2d 1216,
1222 (Pa. Super. 1991) (citation omitted). Indeed, a magistrate’s
determination of probable cause should be afforded substantial deference:
[A]lthough [r]easonable minds frequently may differ on
the question 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.
Commonwealth v. Gagliardi, 128 A.3d 790, 794-95 (Pa. Super 2015.
It is well settled that stale information cannot provide probable cause
in support of a warrant. Hoppert, 39 A.3d at 363. However:
Age alone . . . does not determine staleness. The
determination of probable cause is not merely an exercise
in counting the days or even months between the facts
relied on and the issuance of the warrant. Rather, we
must also examine the nature of the crime and the type of
evidence.
Id. (citation omitted) (emphasis omitted).
Moreover, “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, 668 A.2d 114, 118 (Pa.
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1995) (holding that affidavit supporting issuance of search warrant did not
contain stale information where confidential informant reported that illegal
drug activity had been ongoing at the subject property for over two months
and had just observed such activity within 24 hours of the warrant
application).
In the case sub judice, the suppression court concluded that the
search warrant at issue was not supported by probable cause because the
evidence presented in Officer Kapusniak’s affidavit did not establish a
sufficient connection between any illegal drug activity by Appellee and
Appellee’s residence. We disagree. First, the C/I reported that Appellee was
living at the subject address and was dealing drugs in the immediate
vicinity. The C/I had provided reliable information in the past leading to
arrests. See Clark, 28 A.3d at 1288. Further, the police independently
corroborated the C/I’s information by observing Appellee engaged in four
controlled drug transactions in the vicinity. See id. (C/I’s tip regarding the
packaging and distribution of drugs from a residence was sufficient probable
cause to support the issuance of a search warrant when the information was
corroborated by police observation of the defendant leaving the residence,
engaging in a controlled drug buy, and returning to the residence).
Significantly, the police saw Appellant leave his residence, engage in a
controlled drug buy, and return to the subject property on December 16,
2015. The suppression court discounts this incident as constituting “stale”
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information because it occurred twenty-three days prior to the issuance of
the search warrant. However, on January 6, 2015, just two days before
the warrant was issued, police observed Appellee engage in yet another
controlled drug transaction and watched him return to 517 Porter Street.
We conclude that the issuing authority was well within its purview to find
that the January 6 incident established that criminal activity was likely to
have continued up to the time of the issuance of the warrant, rendering the
December 16, 2015 incident viable rather than stale. See Jones, 668 A.2d
at 118.
In light of the substantial uncontested evidence presented in Officer
Kapusniak’s affidavit of probable cause, we conclude that the issuing
authority had ample basis to find probable cause. See Goldsborough, 31
A.3d at 305; Arthur, 62 A.3d at 432. Thus, the suppression court erred by
declining to uphold the decision to issue the instant search warrant. See
Gagliardi, 128 A.3d at 794-95. Accordingly, we reverse the suppression
court’s order and remand for further proceedings.
Order reversed. Case remanded for further proceeding. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2017
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