J-S59037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RAY PALESTINI
No. 297 EDA 2017
Appeal from the Order December 20, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001581-2016
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2017
The Commonwealth appeals from the order granting the motion of
Appellee, Ray Palestini, to suppress physical evidence arising from the search
of Appellee’s residence on the basis of an anticipatory search warrant. The
Commonwealth argues that probable cause existed to issue the warrant
because law enforcement personnel repeatedly observed Appellee’s
accomplice purchase bags of pills from two pharmacies and transport them to
Appellee’s residence. We reverse and remand for further proceedings.
On September 15, 2015, police officers obtained an anticipatory search
warrant to search Appellee’s residence for controlled substances, specifically,
methadone, oxycodone and xanax. On September 17, 2015, the officers
* Former Justice specially assigned to the Superior Court.
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executed the warrant at Appellee’s residence and seized 599 methadone pills,
302 oxycodone pills, 70 lorazepam pills, and $17,000.00 in cash. Appellee
was arrested and charged with possession with intent to deliver controlled
substances1 and other drug-related offenses. Appellee filed a motion to
suppress asserting that the search warrant failed to provide probable cause to
search his residence. Appellee also moved to suppress statements that he
made to police officers following his arrest.
The affidavit of probable cause underlying the anticipatory search
warrant provides:
I. Affiant’s Background
Your affiant is currently a Narcotics Agent with the
Commonwealth of Pennsylvania, Office of Attorney General,
Bureau of Narcotics Investigation and Drug Control,
Philadelphia Office, Region II. Your Affiant has been
employed by the Office of Attorney General since September
1990.
Your Affiant has prepared and/or assisted in the execution
of over 400 search and/or arrest warrants as an undercover
Criminal Investigator. During those assignments, your
Affiant received extensive narcotics training. Your Affiant
has attended numerous training sessions and seminars in
the area of criminal investigations, including but not limited
to, a one hundred and sixty (160) hour Advanced Criminal
Investigations School, Pa State Police Academy. Your
Affiant has attended the 45-hour “Top Gun” Narcotics
Investigators School, and the BNIDC Agent’s Academy.
Your Affiant is empowered by law to conduct investigations
of, and make arrests for, offenses involving violations of the
Controlled Substance, Drug Device and Cosmetic Act of April
1 75 P.S. § 780-113(a)(30).
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14, 1972, and Corrupt Organization and Criminal Conspiracy
under the Pennsylvania Crimes Code.
Your Affiant is an “investigative or law enforcement officer”
within the meaning of Section 5702 of the Pennsylvania
Wiretapping and Electronic Surveillance Control Act and, in
such capacity, your Affiant has successfully completed the
Pennsylvania State Police “A” certification course required
to monitor and utilize electronic surveillance equipment.
Your Affiant’s certification number is A-1409.
Your Affiant’s duties have included arrests, surveillance,
undercover purchases of controlled substances, the
interviewing and use of informants and the debriefing and
interviewing of drug law violators. As a result of your
Affiant’s training and experience, your Affiant is familiar with
the manner in which drugs are sold, priced, and the manner
in which drugs are processed and packaged. Your Affiant is
also familiar with drug trafficking patterns employed by
persons involved in the distribution of illegal drugs.
II. Probable Cause
On July 15, 2015 your Affiant Narcotics Agent Vincent
Jackson received information from a confidential source
[(“C/S”)] that the defendant Rosemary Divincenzo was
picking up a large amount of controlled substance pills. The
C/S specifically stated the defendant would be receiving a
large shipment of methadone pills from a pharmacy in
Delaware County Pa. The defendant was previously
arrested for distributing methadone, oxycodone and Xanax
pills in 2011 by Philadelphia Pennsylvania police
department. Based on the defendant’s prior arrest record,
your Affiant decided to perform a physical surveillance on
the defendant to determine if she was engaged in the illegal
distribution of controlled substances.
On July 20, 2015 surveillance was established at the
pharmacy the defendant used to fill her prescriptions for
controlled substances, at approximately 2:30 p.m. the
defendant was observed arriving at [redacted2] pharmacy.
2 The redactions were in the copy of the affidavit of probable cause contained
in the certified record. It is unclear when the redactions were made.
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The pharmacy is located at [redacted], Pa. She was
observed going inside. Your Affiant observed Rosemary
Divincenzo accept a large white bag with pill bottles inside
of it, while he was in the pharmacy with her.
Divincenzo was followed by Law Enforcement personnel as
she exited the pharmacy at approximately 2:51 p.m. She
proceeded to get onto I95 North towards Philadelphia.
Divincenzo was eventually followed to 2502 S. 10th Street,
where she was observed entering the property. Divincenzo
had the white bag containing pill bottles in her hand; this
was at approximately 3:23 p.m.
Rosemary Divincenzo exited 2502 S. 10th Street at
approximately 3:43 p.m. She did not have the white bag in
her hand. She got into her vehicle and left the area. A few
minutes later a white male identified as Raymond Palestini
was observed by members of the DEA Philadelphia Tactical
Diversion Squad exit 2502 S. 10th Street. He proceeded to
engage in what appeared to be drug transactions with
several individuals.
On August 18, 2015 your Affiant received information once
again from the same confidential source that Rosemary
Divincenzo was receiving a large amount of schedule II
Controlled Substance pills, specifically methadone,
oxycodone and xanax. She was going to the same
pharmacy as before, [redacted] pharmacy. Your Affiant
observed Divincenzo go inside of the pharmacy at 2:05
p.m., [and] she was observed by your Affiant leaving the
pharmacy at 2:20 p.m., with a large white bag containing
pill bottles. Rosemary Divincenzo made one stop at a
Dunkin Doughnut shop, two doors away from the pharmacy.
She met with no one and left a few minutes later. She was
observed by your affiant the whole time. She then drove to
I95 North, towards Philadelphia. Divincenzo was followed by
your Affiant to 2502 S. 10th Street, once again. She was
observed by Group Supervisor Minh Nguyen of DEA
Philadelphia as she entered the property with the white pill
bag at approximately 2:43 p.m. Prior to Divincenzo arriving
Raymond Palestini was observed engaging in what appeared
to be several drug transactions. At approximately 3:08
p.m., Divincenzo was observed leaving the property without
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the white bag with the pills inside. Surveillance was
terminated at 4:00 p.m.
On September 15, 2015 your Affiant received information
from the same confidential source as previously, that
Rosemary Divincenzo was once again picking up 1200
methadone pills from [redacted] pharmacy located at 1154
Baltimore Ave, Springfield Pennsylvania at approximately
1:00 p.m.
On September 15, 2015 it is anticipated that Rosemary
Divincenzo is going to deliver the 1200 methadone pills to
Raymond Palestini at 2502 S. 10th Street, as she has
previously done on July 20, 2015 and August 18, 2015.
Based on your Affiant’s training and experience, he believes
the subject Rosemary Divincenzo and Raymond Palestini are
conspirators in the illegal distribution of narcotics. Your
Affiant expects to find supporting information and evidence
of illegal drug distribution at 2502 S. 10th Street,
Philadelphia Pennsylvania.
Based on the foregoing, your Affiant has probable cause to
believe Rosemary Divincenzo will deliver approximately
1200 methadone pills to 2502 S. 10th Street, Philadelphia
Pennsylvania on September 15, 2015. Your Affiant is
submitting an application for an Anticipatory Search and
Seizure Warrant for 2502 S. 10th Street Philadelphia Pa. If
approved this Warrant shall be Valid and Lawful for the
residence listed above. The execution of this warrant shall
be contingent upon Rosemary Divincenzo obtaining
prescription drugs then immediately driving to and entering
2502 S. 10th Street with a large white bag with pills inside
and exiting without the bag.
III. Conclusion
Based on the above facts and circumstances, your affiant
believe probable cause exists to believe that the residence
of 2502 S. 10th Street, Philadelphia, PA is used to sell illegal
narcotics. Your Affiant also knows through his education,
knowledge and experience that individuals involved in the
trafficking of controlled substances likely are in possession
of weapons, drug paraphernalia used for the packing and
transport of controlled substances, records and sums of U.S.
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currency. Your Affiant further knows that individuals
involved in the trafficking of controlled substances secrete
or hide controlled substances and these other items within
a secure place, such as a vehicle or home to deter detection
by law enforcement and/or other individuals
In the event that Rosemary Divincenzo does not deliver the
pills to 2502 S. 10th Street, this warrant will become null
and void and will not be served.
Affiant submits this Application for authorization of an
Anticipatory Search and Seizure Warrant by this Honorable
Court, for 2502 S. 10th, Philadelphia County, PA.
R.R. 13a-18a.3
On November 28, 2016, the trial court granted Appellee’s motion to
suppress all evidence arising from the search of his residence without ruling
on Appellee’s motion to suppress his post-arrest statements. The
Commonwealth filed a motion for reconsideration. On December 8, 2016, the
trial court granted the motion, vacated the suppression order and scheduled
the matter for a hearing. On December 20, 2016, following the hearing, the
trial court reinstated its order granting Appellee’s motion to suppress all
physical evidence.
The Commonwealth filed a timely appeal under Pa.R.A.P. 311(d)
certifying that the suppression order terminated or substantially handicapped
its prosecution. Both the Commonwealth and the trial court complied with
Pa.R.A.P. 1925.
3 For the parties’ convenience, we cite to the Commonwealth’s reproduced
record whenever possible.
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The Commonwealth raises a single issue in this appeal:
Did the [trial] court err by suppressing almost one thousand
narcotics pills and seventeen thousand dollars in cash seized
pursuant to a search warrant where an experienced
investigator repeatedly observed a suspect receive bags of
pill bottles which were transported to a drug sales location?
Commonwealth’s Brief at 3.
The Commonwealth claims that the trial court erred in failing to afford
adequate deference to the magistrate’s determination that probable cause
existed. Id. at 8-9. According to the Commonwealth, the affiant, an
experienced officer in drug trafficking, received information from a C/S that
that Divincenzo was picking up large quantities of controlled substances from
a pharmacy on two occasions. Id. The affiant then corroborated the C/S’s
information by observing Divincenzo picking up large bags of pills from the
pharmacies. Id. Further, investigators followed Divincenzo to the residence
to be searched, and on both occasions, Divincenzo entered the residence with
a white pharmacy bag and left the residence without the bag. Id. Appellee
was seen exiting the residence and conducting what appeared to be narcotics
transactions. Id. The Commonwealth thus asserts that the trial court’s focus
on the reliability of the C/S was misplaced, because the affiant corroborated
the C/S’s report, and the affiant’s own observations provided a substantial
basis for finding probable cause. Id. at 12-13. Additionally, the
Commonwealth claims that the trial court erred in suggesting that Appellee’s
oral statements should also be suppressed because that issue was not
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encompassed in its order suppressing the physical evidence. Id. at 13.
Although the affidavit of probable cause fails to establish the C/S’s reliability,
we conclude that there was sufficient independent corroboration of the C/S’s
tips by the investigating officers to justify the issuance of the warrant.
Our standard of review is well settled.
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, we maintain de novo review over the suppression
court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016) (citations
and quotation marks omitted).
In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme
Court adopted a “totality-of-the-circumstances” standard for evaluating
search warrants, which “permits a balanced assessment of the relative
weights of all the various indicia of reliability and unreliability attending an
informant’s tip.” Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011)
(discussing Gates). Our Supreme Court adopted Gates as the applicable law
under the Pennsylvania Constitution in Commonwealth v. Gray, 503 A.2d
921 (Pa. 1985). Under the totality-of-the-circumstances test, facts
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insufficient to support probable cause if considered separately may add up to
probable cause in combination, see Commonwealth v. Dennis, 612 A.2d
1014, 1016-17 (Pa. Super. 1992) (citations omitted), particularly when
“viewed through the eyes of a prudent, reasonable, cautious police officer
guided by experience and training.” Commonwealth v. Wells, 916 A.2d
1192, 1195 (Pa. Super. 2007) (citations omitted).
The standard for assessing search warrants that rest upon information
received from a confidential informant
depends upon the informant’s reliability and basis of
knowledge viewed in a common sense, non-technical
manner. Commonwealth v. Luv, [] 735 A.2d 87, 90 ([Pa.]
1999). 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. Id. The corroboration
by police of significant details disclosed by the informant in
the affidavit of probable cause meets the Gates threshold.
Commonwealth v. Sanchez, 907 A.2d 477, 488 ([Pa.]
2006) (quoting United States v. Tuttle, 200 F.3d 892,
894 (6th Cir. 2000)) (“[I]nformation received from an
informant whose reliability is not established may be
sufficient to create probable cause where there is some
independent corroboration by police of the informant’s
information.”).
Clark, 28 A.3d at 1288.
An anticipatory warrant is “a warrant based upon an affidavit showing
probable cause that at some future time (but not presently) certain evidence
of crime will be located at a specified place.” United States v. Grubbs, 547
U.S. 90, 94 (2006) (citation omitted). “Most anticipatory warrants subject
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their execution to some condition precedent other than the mere passage of
time—a so-called ‘triggering condition.’” Id.
When considering whether an anticipatory search warrant
was supported by probable cause under the Fourth
Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution, judicial review is
confined to the averments contained within the four corners
of the affidavit of probable cause. Further, “[w]hether a
particular anticipatory warrant should or should not be
approved . . . will depend upon the sufficiency of the
averments in the individual case.”
In judging whether particular averments establish probable
cause, we are mindful of the principle that:
Probable cause . . . 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.
Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012) (citations and
footnotes omitted). “[T]he duty of a reviewing court is simply to ensure that
the magistrate had a substantial basis . . . for conclud[ing] that probable cause
existed.” Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)
(citation and quotation marks omitted).
In this case, although the affidavit did not establish that the C/S was
reliable, it still managed to furnish probable cause because the investigating
officers sufficiently corroborated the C/S’s tips. Thus, the issuing authority
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had probable cause to issue the anticipatory warrant to search for controlled
substances in Appellee’s residence.
We first review the information that the C/S provided to the police. The
affidavit states that on three separate dates, the C/S advised that Divincenzo
would be receiving substantial shipments of controlled substances at the
pharmacies. R.R. 14a-16a. On July 15, 2015, the affidavit states, the C/S
advised that Divincenzo was picking up a “large shipment” of methadone pills
from a pharmacy in Delaware County. R.R. 14a. The affidavit does not state
how or when the C/S learned this information. Neither does the affidavit state
that the C/S identified the pharmacy or when Divincenzo would pick up the
shipment. Similarly, the affidavit states that on August 18, 2015, the C/S
advised that Divincenzo “going to the same pharmacy as before” to receive a
“large amount” of “methadone, oxycodone and Xanax.” Id. at 15a. Once
again, the affiant fails to describe how or when the C/S learned this
information. Neither does the affidavit state that the C/S identified when
Divincenzo would receive the shipment. Finally, the affidavit states that on
September 15, 2015, the C/S advised that Divincenzo was picking up 1200
methadone pills at 1:00 p.m. from a pharmacy at 1154 Baltimore Avenue in
Springfield, Pennsylvania. Id. at 16a. Yet again, the affiant fails to describe
how or when the C/S learned this information. The affidavit does not indicate
that the C/S provided information in the past which resulted in arrests or
convictions.
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Had this been the only information in the affidavit, it would have been
proper for the trial court to grant Appellee’s motion to suppress. Here,
however, the warrant includes additional information that police officers
obtained through their own independent investigation. The affidavit states
that on July 18, 2015, the affiant watched Divincenzo “at the pharmacy [she]
used to fill her prescriptions for controlled substances . . . Your affiant
observed [her] accept a large white bag with pill bottles inside of it, while he
was in the pharmacy with her.” Id. at 15a. Law enforcement personnel
followed her to Appellee’s residence in Philadelphia, where she entered with
the bag at 3:23 p.m. and left at 3:43 without the bag. Id. Appellee then left
the residence and “engage[d] in what appeared to be drug transactions with
several individuals.” R.R. at 15a. Similarly, the affidavit states that on August
18, 2015, the affiant “observed [Divincenzo] go inside the pharmacy at 2:05
p.m. [and leave] at 2:20 p.m., with a large white bag containing pill bottles.”
Id. at 15a-16a. The affiant followed her to Appellee’s residence, where
another law enforcement officer observed her enter the residence with the
bag at 2:43 p.m. and leave at 3:08 p.m. without the bag. Id. at 16a. Finally,
as noted above, the affidavit states that on September 15, 2015, the C/S
informed the affiant that Divincenzo was picking up 1200 methadone pills at
approximately 1:00 p.m. from a pharmacy in Springfield. Id.
The trial court concluded that this information was insufficient:
[The affiant] doesn’t mention where he got those tidbits of
information, how he or the source knew she was going to
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be picking up “approximately 1200 methadone pills,” or in
any other way explain how he arrived at the conclusion that
it was “her” pharmacy and was where she got “her”
prescriptions filled, whether from the source or anyone else,
even having noted himself that on the anticipated third
occasion she was going to go to a different pharmacy. If
the mere facts that a person went to a pharmacy and picked
up drugs were the only bases needed to support the
astronomical leap to the conclusion that criminal activity
was afoot[,] the police would be entitled to search every
residence in the country at any time they felt like it if a
resident of, or visitor to it, was seen buying something at a
pharmacy and bringing it to his or anyone else’s home. That
the observed activities were illegal are sheer conclusions
based upon the observation of what by the agent’s own
description only appeared to be completely normal and legal
activities: an individual going to a drug store and getting
monthly prescription refills.
Trial Ct. Op., 3/13/17, at 11.
We disagree with this analysis. On one date in July 2015 and another
in August 2015, the C/S informed the police that DiVincenzo was purchasing
a large amount of controlled substance pills at a Delaware County pharmacy.
The police corroborated both tips. On both dates, they observed DiVincenzo
purchasing large bags of prescription drugs at Delaware County pharmacies,
driving to Appellee’s residence, entering the residence and leaving without the
bags less than one half hour later. On the first date, the police observed
Appellee engage in what appeared to be hand-to-hand drug sales after
DiVincenzo’s departure. On the second date, the police observed Appellee
engage in what appeared to be drug sales prior to DiVincenzo’s arrival. On
September 15, 2015, one month later, the C/S told the affiant that DiVincenzo
would deliver 1200 methadone pills to Appellee’s residence. Collectively, this
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information furnished probable cause to anticipate that DiVincenzo and
Appellee were conspiring to sell narcotics illegally, and that DiVincenzo would
purchase a significant number of methadone pills and deliver them to
Appellee’s residence that day for illegal distribution.4
Order reversed. Case remanded for proceedings in accordance with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
4 As a further precaution, the affidavit stated that the police would not execute
the warrant unless DiVincenzo obtained prescription drugs that day, drove
immediately to Appellee’s residence, entered the residence with a bag and left
without the bag. Appellee does not dispute that these events actually took
place.
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