Com. v. Langley, D.

J-A04026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DWIGHT A. LANGLEY

Appellant No. 124 EDA 2016

Appeal from the Judgment of Sentence dated December 16, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005743-2014

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED JUNE 27, 2017

Appellant Dwight A. Langley appeals the judgment of sentence

imposed after he was convicted of possession with intent to deliver a

controlled substance.1 Appellant claims that the affidavit in support of the

warrant failed to establish probable cause to search his house. We affirm.

The relevant facts follow. On August 21, 2014, Sergeant Timothy

Bernhardt of the Upper Darby Police Department applied for a warrant to

search 6818 Clover Lane in Upper Darby, Pennsylvania for controlled

substances and related items. The affidavit of probable cause stated in

pertinent part:

____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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In June of 2014, the Upper Darby Township Police
Department received a drug complaint from a citizen in good
standing in the community. The complainant stated that drugs
were being sold from within 6818 Clover Lane, Upper Darby
Pennsylvania, 19082. Specifically, the complainant said people
were coming and going in the early morning hours of the day to
purchase drugs specifically, marijuana from within 6818 Clover
Lane . . . . In June of 2014, [Sergeant Bernhardt] received
information from the Drug Enforcement Administration,
Philadelphia office, regarding drugs being sold from 6818 Clover
Lane . . . . This complainant also stated that drugs were being
sold from within 6818 Clover Lane . . . . In both complaints the
information was the same, that a black male by the name
Dwight Langley, was the male who lived and sold drugs from
6818 Clover Lane . . . . In the Drug Enforcement
Administration’s tip, it was also stated that the male, Dwight
Langley, keeps large amounts of marijuana in the basement of
6818 Clover Lane . . . . [Sergeant Bernhardt], based upon
experience and knowledge, knows this type of behavior which is
described is highly consistent with places and people that are
trafficking in controlled substances. Also, it was stated that
Dwight Langley drives a gray Nissan Armada, which he owns.

Through investigation, [Sergeant Bernhardt] discovered
that a 50 year old black male (d.o.b. 08/24/1964) by the name
of Dwight Langley lived at 6818 Clover Lane, Upper Darby,
Pennsylvania, 19082. [Sergeant Bernhardt] and assisting
officers conducted surveillance on the property at 6818 Clover
Lane on several occasions throughout the month of August 2014.
While conducting this surveillance, [Sergeant Bernhardt]
observed a large black male exit and enter the property on
numerous occasions at different times of the day and night.
[Sergeant Bernhardt] conducted a photo search through J-NET[2]
of Dwight Langley b/m (d.o.b. 08/24/1964), which did reveal a
photograph of a black male named Dwight Langley (d.o.b.
08/24/1964), this being the same male that [Sergeant
Bernhardt] and assisting officers observed entering and exiting
the property at 6818 Clover Lane . . . . [Sergeant Bernhardt]
____________________________________________
2
J-NET is an abbreviation for the Pennsylvania Justice Network, “the
Commonwealth’s system of providing immediate justice information to law
enforcement agencies.” Commonwealth v. Carr, 887 A.2d 782, 783 (Pa.
Super. 2005).

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also observed a photo taken of Dwight Langley (d.o.b.
08/24/1964) in connection with an arrest by the Upper Darby
Township Police Department in 2005. While conducting
surveillance officers did observe on several occasions the black
male known as Dwight Langley driving a gray Nissan Armada,
bearing Pennsylvania registration . . . . [Sergeant Berhardt] also
conducted a criminal history check through J-NET for Dwight
Langley. Langley was arrested for the following offenses:

(1) . . . .

(2) In November of 2005 Dwight Langley was
arrested by the Upper Darby Township Police Department
as an adult using the name Dwight Ainsworth Langley for
the following offenses: Possessing of a Controlled
Substance By an Unregistered Person Except by
Prescription is Unlawful, Manufacture of a Controlled
Substance, Receiving Stolen Property, Criminal Attempt
Possession of Firearm with Altered Manufacturer’s Number,
Use of Drug Paraphernalia. As a result of this arrest,
Dwight Ainsworth Langley was found not guilty.

[Sergeant Bernhardt] did a check through the Upper Darby
Township Database and located several incidents in which
Dwight Langley was associated with the address 6818 Clover
Lane, Upper Darby Pennsylvania, 19082.

* * *

2) The Upper Darby Police Department received a call
through Delaware County Emergency Services Center for
an Interrupted Burglary. The Upper Darby Township
Uniformed Patrol Division responded and spoke to a Black
male, who identified himself as Dwight Langley. Mr.
Langley advised the responding officer he was the
homeowner. Upon uniform police arrival, Delaware County
Emergency Services Center advised two males were seen
exiting the house and last seen running down the rear
alley. Responding Officer[s] observed a large clear plastic
bag of marijuana lying on the ground next to the rear
door. The bag of marijuana was returned and placed into
evidence. No further police action was taken at that time.

* * *

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Within 48 hours of the application of this search warrant,
two trash bags were obtained from 6818 Clover Lane, Upper
Darby, Pennsylvania, which had been placed in the rear alley for
pickup by the Upper Darby Township Sanitation Department.
Located in the trash bags, [Sergeant Bernhardt] found the
following items: mail addressed to resident of 6818 Clover Lane,
two (2) clear plastic type bags, each bag containing residue from
a green vegetable matter.

[Sergeant Bernhardt] did conduct a field test using a Narco
Test Kit on the residue from a green vegetable matter, which
resulted in a positive reaction for the presence of marijuana.
The residue was taken from the two clear plastic type bags
located in the trash bags.

Aff. of Probable Cause, 8/21/14, at 1-4 (some formatting added).

The search warrant application was granted, and Sergeant Bernhardt

and other members of the Upper Darby police department executed the

warrant at approximately 12:30 p.m. on August 22, 2014. N.T., 10/27/15,

at 36. Inside the house, police found approximately 69 pounds of marijuana

(most of which was in the basement); two digital scales; Ziploc bags;

$7,100 in cash; notes with names, numbers, and dates; Appellant’s

passport; and mail addressed to Appellant at 6818 Clover Lane. Id. at 42-

51, 54-72; N.T., 10/28/15, at 49.

Prior to trial, Appellant moved to suppress all evidence found during

the search of his house. The trial court held a suppression hearing on

February 4, 2015. At the beginning of the hearing, Appellant’s counsel

stated, “[w]e are challenging the four corners of the search warrant. We’re

challenging the probable cause.” N.T., 2/4/15, at 10. Appellant’s counsel

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added that he was also “arguing that in the section of the application that

refers to items to be searched and seized that that is an overbroad request

and basically an exploratory search warrant.” Id. at 11. On February 18,

2015, the trial court denied Appellant’s motion to suppress.

Appellant was tried by a jury, which found Appellant guilty of

possession with intent to deliver a controlled substance. On December 16,

2015, the trial court sentenced Appellant to sixteen to sixty months’

incarceration. On January 7, 2016, Appellant filed a timely notice of appeal.

On March 8, 2016, Appellant filed a timely Rule 1925(b) statement

that asserted the warrant “failed to present sufficient factual averments of

the kind and quantity necessary to establish probable cause to search the

property.” Pa.R.A.P. 1925(b) Statement, 3/8/16, at 1. The trial court’s Rule

1925(a) opinion construed Appellant’s issue as only a challenge to the

overbreadth of the warrant. Trial Ct. Op. at 9-10. The opinion, however,

did not address the other arguments that Appellant raised at the suppression

hearing and which he again raises on appeal. Those arguments are

presented in connection with the following issue stated in Appellant’s brief:

Did the trial court err in denying Appellant’s motion to suppress
evidence seized pursuant to the execution of a search warrant in
his case when the factual basis for the warrant failed to establish
probable cause to search the property in question?

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Appellant’s Brief at 2.3

This Court has explained:

Our standard of review in addressing a challenge to the denial 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 Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense 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.
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. Thus, the
conclusions of law of the courts below are subject to our plenary
review.

Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa. Super. 2016)

(citation omitted).

In analyzing whether a warrant was supported by probable
cause, judicial review is confined to the four corners of the
____________________________________________
3
The Commonwealth argues that Appellant’s claim is waived because during
the suppression hearing, Appellant argued only “that the affidavit was too
broad in its scope rendering it constitutionally impermissible.”
Commonwealth’s Brief at 9. We disagree with this characterization of
Appellant’s argument before the trial court, and note that Appellant stated at
the suppression hearing, “We are challenging the four corners of the search
warrant. We’re challenging the probable cause.” N.T., 2/4/15, at 10; see
id. at 27-32 (arguing the tips were not corroborated and did not establish
probable cause). In this appeal, Appellant does not pursue the argument
that the warrant was overbroad. Appellant’s Brief at 15 n.7.

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affidavit. Probable cause, of course, is a practical, non-technical
conception requiring a consideration of the totality of the
circumstances.

The task of the issuing magistrate is simply to make a
practical, commonsense 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.

Finally, since no factual question is involved in a four corners
analysis of the sufficiency of a warrant affidavit, the issue is one
of law as to which our review is plenary.

Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003) (citations,

quotation marks and brackets omitted).

Before we begin our discussion of Appellant’s issue, we note that the

trial court’s opinion did not address Appellant’s precise probable cause

argument. Instead, the trial court focused on the issue Appellant has now

abandoned, the alleged overbreadth of the warrant. However, the trial

court’s failure to explain its reasoning with respect to the probable cause

issue does not prevent us from making a determination of whether, based

on the four corners of the warrant affidavit, the magistrate had a substantial

basis for finding probable cause to search Appellant’s house. The question

before the trial court was a question of law, which we resolve de novo

regardless of the trial court’s specification of its legal theory. See

Commonwealth v. Haughwout, 837 A.2d 480, 487 n.11 (Pa. Super.

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2003) (trial court’s failure to address issue in its opinion did not hamper

appellate review because, in deciding issues of law, appellate court need not

defer to conclusions of trial court). Indeed, where the trial court does not

issue a Pa.R.A.P. 1925(a) opinion explaining the reasons for its order, an

appellate court may resolve questions of law without remanding for further

explanation of the trial court’s ruling. Commonwealth v. Hall, 867 A.2d

619, 640 (Pa. Super. 2005) (“even if the trial judge failed to provide a

1925(a) opinion we would still be within our rights not to order a remand”

(citation and internal quotation marks omitted)), appeal denied, 895 A.2d

549 (Pa. 2006). We therefore are free to determine whether, as a matter of

law, the magistrate had a substantial basis for concluding that probable

cause existed.

Staleness

Appellant first argues: “Virtually all of the information offered in

support of the warrant in [this] case was stale, and, thus, could not serve to

establish probable cause to search his residence.” Appellant’s Brief at 16

(some capitalization removed). In particular, Appellant notes that the tips

were provided more than two months prior to the application for the

warrant, his 2005 drug arrest was almost nine years prior to the application,

and no date was given for other incidents connecting him to 6818 Clover

Lane. Id. at 20-21 (citing, among other cases, Commonwealth v. Novak,

335 A.2d 773 (Pa. Super. 1975)).

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“Settled Pennsylvania law establishes that stale information cannot

provide probable cause in support of a warrant.” Commonwealth v.

Hoppert, 39 A.3d 358, 363 (Pa. Super.) (citation omitted), appeal denied,

57 A.3d 68 (Pa. 2012). This Court has explained:

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. (emphasis in original) (citation omitted). “Mere lapse in time between

discovery of criminal activity and issuance of a search warrant will not

necessarily dissipate probable cause[,] and a showing that criminal activity

is likely to have continued up to the time of issuance of a warrant will render

otherwise stale information viable.” Commonwealth v. Karns, 566 A.2d

615, 617 (Pa. Super. 1989) (citation omitted), appeal denied, 578 A.2d

927 (Pa. 1990).

In Karns, police obtained a search warrant based in part on tips from

two informants that Karns was growing a large quantity of marijuana in his

house. 566 A.2d at 616-17. Karns argued that the warrant was invalid

because the affidavit of probable cause did not state when the tips were

given, and thus did not demonstrate the freshness of the information on

which it relied. Id. at 617. This Court rejected that argument, observing

that the size of the alleged marijuana-growing operation indicated that it

was conducted over a continuous period of time. Id. In addition, we noted

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that one of the informants told police one week before the search warrant

was issued that Karns would be harvesting his crop within the next month.

Id. Considering that “probable cause determinations must be based on

commonsense, nontechnical analysis,” we held that the magistrate and trial

court properly determined that probable cause had been established. Id. at

617-18 (quoting Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1985)).

Here, while the police received the tips approximately two months

before they obtained the search warrant for Appellant’s house, and

Appellant’s drug arrest was years earlier, the tips and prior arrest were not

the only information on which the police relied in obtaining the warrant.

Indeed, the police found marijuana residue in the trash outside of

Appellant’s house less than 48 hours before they applied for the search

warrant. This discovery was consistent with the tips, which specified that

Appellant was selling marijuana, and it suggested that the drug activity was

continuing. See Hoppert, 39 A.3d at 363; Karns, 566 A.2d at 617. One of

the tips also specified that Appellant kept a large quantity of marijuana in his

basement, which indicated a large-scale, ongoing operation. See Hoppert,

39 A.3d at 363; Karns, 566 A.2d at 617. Because the older information

suggesting an ongoing operation was corroborated by the newer, consistent

information, we reject Appellant’s argument that the information in the

warrant was too stale to support a finding of probable cause. See

Coleman, 830 A.2d at 560; Karns, 566 A.2d at 617.

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Appellant’s reliance on Novak is misplaced. In Novak, the affidavit of

probable cause stated that an informant told police he had bought drugs

from Novak more than a dozen times in the last two months. 335 A.2d at

774. Because no specific dates were provided, this Court assumed that the

transactions occurred in the most remote part of the two-month time period,

seven weeks before police applied for the search warrant. Id. at 774-75.

We held that because there was no evidence of continued illegal activity, the

seven-week-old information in the affidavit was too stale to support a finding

of probable cause. Id. at 775-76. Here, unlike in Novak, there was more

recent evidence (marijuana residue in the trash recovered within 48 hours

prior to the application for the search warrant) that corroborated the older

information and indicated that the drug operation was ongoing.

Corroboration

Appellant next argues that, “[e]ven if the tips cited in the Affidavit

were not stale, they could not have provided support for the warrant

because their contents lacked the indicia of reliability necessary to establish

probable cause.” Appellant’s Brief at 21. Appellant notes that the affidavit

does not state that the sources had provided reliable information in the past,

and it does not contain declarations against interest. He contends that the

additional information in the affidavit had “virtually no corroborative value.”

Id. at 23.

With regard to tips from anonymous sources, we have said:

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Ordinary citizens, like ordinary witnesses, generally do not
provide extensive recitations of the basis of their everyday
observations. Likewise, . . . the veracity of persons supplying
anonymous tips is by hypothesis largely unknown, and
unknowable. . . . Yet, such tips, particularly when supplemented
by independent police investigation, frequently contribute to the
solution of otherwise “perfect crimes.” While a conscientious
assessment of the basis for crediting such tips is required by the
Fourth Amendment, a standard that leaves virtually no place for
anonymous citizen informants is not.

Commonwealth v. Singleton, 603 A.2d 1072, 1074 (Pa. Super. 1992)

(quoting Gray, 503 A.2d at 925); see Commonwealth v. Cramutola, 676

A.2d 1214, 1216 (Pa. Super. 1996) (“The law is clear that information

provided to the police by an anonymous source can establish probable cause

so long as it is corroborated by police investigation”).

An anonymous report that is not itself sufficient to establish probable

cause “may be sufficiently corroborated by independent observation of a

suspect’s conduct, if the latter tends to confirm the information in the report

or otherwise to support a conclusion that the suspect is engaged in

committing a crime.” Commonwealth v. Corleto, 477 A.2d 863, 865-66

(Pa. Super. 1984) (emphasis and citation omitted). In a number of cases,

“‘innocent details’ and/or conduct ‘consistent with activity of law abiding

citizens’ were used in whole or in part to confirm an informant’s report of

criminal activity, thus justifying the issuance for a search warrant.” Id. at

866. In reviewing a magistrate’s determination of probable cause, “it should

be remembered that while mere suspicion is inadequate, the affidavit need

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only set forth a probability, and not a prima facie case, of criminal activity.”

Id.

In Corleto, a first-time informant contacted the police to report that

he had seen Corleto sell cocaine at his apartment. 477 A.2d at 864. The

police then conducted surveillance and saw numerous people briefly visit

Corleto’s apartment in a short period of time. Id. This Court held that,

although the frequent short visits could be consistent with non-criminal

activity, they tended to corroborate the informant’s report. Id. at 866. We

concluded that based on the totality of circumstances, the magistrate could

reasonably conclude that Corleto was selling drugs from his apartment. Id.

Here, police found marijuana residue and mail addressed to the

resident of 6818 Clover Lane in the trash placed outside of Appellant’s

house. As Appellant suggests, it is possible that the marijuana in the trash

was for personal use or that the trash came from someone who had

mistakenly received mail sent to Appellant’s address. However, the affidavit

only had to establish a probability, and not a prima facie case, of criminal

activity. See Corleto, 477 A.2d at 866. Based on our review of the

affidavit, we conclude that the trial court did not err in holding that the

magistrate had a substantial basis for making the practical, commonsense

decision that there was a reasonable probability that contraband would be

found inside Appellant’s house at the time the warrant was issued, and we

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affirm the judgment of sentence. See Coleman, 830 A.2d at 560;

Freeman, 150 A.3d at 34-35.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017

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