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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN SCOTT TURPIN :
:
Appellant : No. 1656 MDA 2016
Appeal from the Judgment of Sentence May 10, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000623-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 13, 2018
Appellant, Dylan Scott Turpin, appeals from the judgment of sentence
entered in the Court of Common Pleas of Cumberland County. On appeal, he
raises two claims of suppression court error and argues the Commonwealth
presented insufficient evidence to sustain his conviction for conspiracy to
deliver a controlled substance (heroin). We affirm.
Police officers suspected Turpin’s roommate, Ben Irvin, of dealing
narcotics out of the single-family townhouse the pair shared. They
investigated and confirmed their suspicion by setting up a controlled buy
with a confidential informant. The buy took place off the premises, but
officers observed Irvin leave the residence immediately prior to the buy and
return to it directly after. The officers then obtained a warrant to search the
entire residence for, among other things, heroin and drug paraphernalia.
While executing the search of the townhouse, officers found six bags of
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heroin, a handgun, marijuana, and a substantial amount of currency, among
other items, in Turpin’s bedroom.
Prior to trial, Turpin moved to suppress the contraband found in his
room. He advanced two arguments. First, he claimed the search warrant was
overbroad, as he maintained the law did not permit the officers to search his
bedroom. According to Turpin, his bedroom constituted a separate living
unit. Second, he claimed the handgun was outside the scope of the warrant
and, alternatively, the handgun’s incriminating nature was not immediately
apparent to the officers. After conducting an evidentiary hearing, the
suppression court found no viability to either of these arguments.
The matter proceeded to a two-day jury trial. The jury heard evidence
offered by the Commonwealth of a rather sophisticated and extensive drug-
dealing operation run from the residence. The jury convicted Turpin on all
six counts, including conspiracy to deliver a controlled substance (heroin).
The trial court subsequently imposed an aggregate period of imprisonment
of 12 to 24 months. After the denial of Turpin’s post-sentence motions, this
timely appeal followed.
We begin with Turpin’s two suppression issues.
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
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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.
Where, as here, 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. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
Both issues concern a search warrant.
Pursuant to the “totality of the circumstances” test set
forth by the United States Supreme Court in [Illinois v.] Gates,
[462 U.S. 213,] 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 supplying
hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. Thus, the
totality of the circumstances test “permits a balanced
assessment of the relative weights of all the various indicia of
reliability (and unreliability) attending an informant’s tip....”
Gates, 462 U.S. at 234. 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, 537-538 (Pa. 2001) (some
citations and quotation marks omitted).
The affidavit of probable cause details the investigation into Ben Irvin.
Pertinent here, police observed activity at Irvin’s residence that “was
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indicative of drug dealing.” Affidavit of Probable Cause, filed 2/19/15, at 3
(unnumbered). The investigation identified “two other individuals that
seemed to be either living with Irvin or staying with him for periods of time.”
Id., at 2 (unnumbered). One of these roommates was Turpin.
Officers set up a controlled buy with a confidential informant and
surveilled Irvin’s residence prior to the buy. The officers observed Irvin leave
the residence and drive to the pre-determined meeting location with the
informant. The drug deal occurred and the officers recovered suspected
heroin from the informant. They also observed Irvin return to his residence
after the drug sale. This activity led the affiant to conclude “that Irvin’s
Heroin distribution has been ongoing and that additional Heroin is located
within his residence.” Id., at 4 (unnumbered).
The search warrant identified heroin, drug paraphernalia, proceeds
from drug sales, and cell phones owned or possessed by Irvin as the items
to be searched for and seized. The premises to be searched was identified as
“[t]he residence at 105 E Green ST Mechanicsburg, PA 17055[,]” which is
described as “single family townhouse” whose “address # ‘105’ is printed
directly beside the front door.” Application for Search Warrant and
Authorization, filed 2/19/15.
The police executed the search warrant and searched the entire
residence, including Turpin’s bedroom. In his bedroom, they recovered,
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among other items, bags of heroin, a bag of marijuana, currency, and a
stolen handgun.
Turpin first claims the search warrant was overbroad. The premise for
this argument is Turpin’s belief that the officers were not permitted to search
his private bedroom. We disagree. As explained below, when probable cause
exists to believe that contraband is located within a particular room of a
single, shared residence, Article 1, Section 8 of the Pennsylvania
Constitution does not preclude a search of the entire residence.
A warrant must “name or describe with particularity the … place to be
searched.” Pa.R.Crim.P. 205(A)(3). Paragraph (A)(3) is “intended to
proscribe general or exploratory searches by requiring that searches be
directed only towards the specific items, persons, or places set forth in the
warrant.” Pa.R.Crim.P. 205, Comment. “[W]arrants should, however, be
read in a common sense fashion and should not be invalidated by
hypertechnical interpretations.” Id. See also Commonwealth v. Carlisle,
534 A.2d 469, 472 (Pa. 1987) (finding “a ‘practical, common-sense’
approach” should be taken in determining “whether the place to be searched
is specified with sufficient particularity[]”).
“Article 1, Section 8 of the Pennsylvania Constitution affords greater
protection than the Fourth Amendment, … including a more demanding
particularity requirement[.]” Commonwealth v. Korn, 139 A.3d 249, 253
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(Pa. Super. 2016) (citations and material in brackets omitted; brackets
added).
In order to protect these twin aims, a warrant must describe the
place to be searched and the items to be seized with specificity,
and the warrant must be supported by probable cause. The place
to be searched must be described precise enough to enable the
executing officer to ascertain and identify, with reasonable effort
the place intended, and where probable cause exists to support
the search of area so designated a warrant will not fail for lack of
particularity.
Id., at 253-254 (citations and quotation marks omtted).
To support his argument that the warrant was overbroad, Turpin
singularly relies on Commonwealth v. Waltson, 724 A.2d 289 (Pa. 1998).
There, our Supreme Court considered “whether the search of an entire
residence is barred as overbroad pursuant to Article 1, Section 8 where the
affidavit of probable cause for the warrant references only a particular room
within the residence.” Id., at 290.
The facts in Waltson can be briefly stated. A woman told the police
that her boyfriend was growing marijuana in the basement of their single
unit house. The police obtained a warrant where the place to be searched
listed the residence. And the items to be seized included drugs and drug
paraphernalia. The police executed the warrant and searched the entire
residence. They found the marijuana in the basement—and recovered other
drugs and drug paraphernalia throughout the home.
The Court found “the scope of the search authorized by the warrant
was lawful if it was limited to places within the premises where the police
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had probable cause to believe that the items to be seized could be found.”
Id., at 293. As the search warrant included drugs and drug paraphernalia
among the items to be seized, the Court concluded, “that the police could
reasonably believe that these items would be found in places other than the
basement and thus, police did not need to limit the scope of the search only
to the basement.” Id. “[T]he scope of the search extends to the entire area
in which the object of the search may be found and properly includes the
opening and inspection of containers and other receptacles where the object
may be secreted.” Id., at 292 (citation and internal quotation marks
omitted).
Turpin relies on Waltson to distinguish it from this case.
The search in the present matter, unlike that in Waltson, was not
limited to the areas under the control of the named resident but
was expanded into an area under the control of Mr. Turpin, who
was not the subject of any investigation and who was only
incidentally referenced in the search warrant as an individual
living at the residence. Thus unlike in Waltson, the privacy
interests of an individual other than the named resident were
implicated by the search of the residence and, in particular, by
the search of Mr. Turpin’s bedroom, an area of utmost privacy.
Appellant’s Brief, at 17. Simply put, he contends the residence here, a
“single family townhouse,” as described by the affidavit of probable case,
was occupied by two people whose bedrooms must be considered separate
residences. Thus, barring the search of his bedroom.
Turpin’s reliance on Waltson is mistaken, as a recent decision from
our Court, which Turpin fails to cite, illustrates. In Korn, the police utilized a
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confidential informant to make two controlled buys of Xanax from Korn’s
roommate. Korn and his roommate lived in a two-bedroom apartment. And
the controlled buys took place in Korn’s roommate’s bedroom. The police
obtained a search warrant to search the entire apartment for drugs. The
subsequent search disclosed contraband in Korn’s locked bedroom.
Korn moved to suppress the seized contraband and the suppression
court agreed, finding: “Despite the fact that Apartment 201 contains multiple
living units, the warrant fails to describe the particular living unit that was to
be searched so as to ensure the other living units, for which no probable
cause existed, were not searched.” Id., 139 A.3d at 251-252 (citation
omitted). A panel of this Court reversed the suppression order.
The panel observed the suppression “court’s finding that [Korn]’s
bedroom was a ‘separate living unit’ is supported by neither the evidence
presented at the suppression hearing nor applicable case law.” Id., at 254.
In finding the two bedroom apartment did not contain separate living units,
the panel noted “there was no indication that [Korn]’s bedroom had a
separate mailbox, address, or any private entrance.” Id. (citation omitted).
That Korn’s bedroom locked from the inside, the panel reasoned,
“establishes nothing more than the fact that [Korn’s roommate] could not
enter the bedroom at the time of the search.” Id., at 256. After finding the
apartment consisted of a single residential unit, the panel applied Waltson
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and concluded “there was probable cause to search the entire apartment.”
Id.
Waltson and Korn control this case. The officers suspected Turpin’s
roommate of dealing drugs out of the residence, a single-family townhouse.
And a controlled buy confirmed their suspicion. There was no indication in
the record that Turpin’s bedroom had a separate mailbox, address, or any
private entrance. In fact, when asked at the suppression hearing what he
does with his bedroom when he is not at home, Turpin testified, “I shut my
door.” N.T., Suppression Hearing, 8/11/15, at 37. The officers had probable
cause to search the entire residence for heroin.
Next, Turpin argues the suppression court erred in failing to suppress
the handgun when its seizure was beyond the scope of the search warrant
and it was not immediately apparent it was contraband. We disagree.
Detective Jared Huff testified he searched Turpin’s bedroom and found
the handgun after he “moved some things off the TV stand and tilted the TV
stand over and there [it] was.” N.T., Suppression Hearing, 8/11/15, at 28-
29. Following protocol, he “immediately notified the other law enforcement
on scene” he had found a handgun. Id., at 29. Another detective
photographed the handgun, which was laying serial number side up.
Detective Troy McNair testified that once the handgun was
photographed, he picked it up, cleared the weapon, and called in the serial
number. The handgun came back as reported stolen.
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Officers also found “bags of suspected heroin” and a “small bag of
marijuana” in Turpin’s bedroom. Receipt/Inventory of Seized Property, at 1
(unnumbered) (admitted at suppression hearing as Commonwealth’s Exhibit
1).
It is true the search warrant did not designate a handgun as an item to
be seized. But “[t]he plain view doctrine provides that evidence in plain view
of the police can be seized without a warrant[.]” Commonwealth v.
Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012) (brackets in original and
added; citations omitted).
The plain view doctrine applies if 1) police did not violate the
Fourth Amendment during the course of their arrival at the
location where they viewed the item in question; 2) the item was
not obscured and could be seen plainly from that location; 3) the
incriminating nature of the item was readily apparent; and 4)
police had the lawful right to access the item.
Id. (citation omitted).
It is the third prong Turpin challenges. “In determining whether the
incriminating nature of an object is ‘immediately apparent’ to a police officer,
courts should evaluate the ‘totality of the circumstances.’” Commonwealth
v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013) (citations omitted). And
the officer’s belief of the object’s incriminating nature must be supported by
probable cause. See id.
Here, looking at the totality of the circumstances, the incriminating
nature of the handgun was immediately apparent—the officer recovered it in
the same room as the heroin and marijuana. See United States v.
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Rodriguez, 711 F.3d 928, 936 (8th Cir. 2013) (finding incriminating nature
of guns immediately apparent where they are found in close proximity to
drugs and drug paraphernalia). The totality of the circumstances plainly
reveals the incriminating nature of the handgun was immediately apparent.
Lastly, Turpin challenges the evidence presented by the
Commonwealth to prove him guilty of conspiracy to deliver a controlled
substance (heroin).
In reviewing sufficiency of evidence claims, we determine
whether the evidence admitted at trial, and all the reasonable
inferences derived therefrom viewed in favor of the
Commonwealth as verdict winner, supports the jury’s findings of
all the elements of the offense beyond a reasonable doubt. A
sufficiency challenge is a pure question of law. Thus, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017) (internal
quotation marks and citations omitted).
“The Commonwealth establishes the offense of possession with intent
to deliver when it proves beyond a reasonable doubt that the defendant
possessed a controlled substance with the intent to deliver it.”
Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super. 2005) (citation
omitted). See also 35 P.S. § 780-113(a)(30). As for criminal conspiracy,
see 18 Pa.C.S.A. § 903(a)(1), the focal point is the agreement made by the
co-conspirators to commit an overt act in furtherance of the agreed upon
crime, see Little, 879 A.2d at 298. Direct evidence of the defendant’s
criminal intent or the conspiratorial agreement is rare. See id. So, “the
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defendant’s intent as well as the agreement is almost always proven through
circumstantial evidence, such as by the relations, conduct or circumstances
of the parties or overt acts on the part of the co-conspirators.” Id. (citation
omitted).
The Commonwealth presented evidence from two detectives about the
highly unusual number of visitors to the home. For instance, Detective
Mellott testified he observed “a large number of people stopping for very
short periods of time to visit the residence….” N.T., Trial, 3/23/16, at 11-12.
The visitors stayed “a few minutes” at most. Id., at 12. The Commonwealth
also presented evidence the officers recovered over 300 bags of heroin from
the residence. The officers found the heroin in both bedrooms and in a
common area. One of the bags of heroin found in Turpin’s room, labeled
“Blue Magic,” matched bags with same label in Irvin’s bedroom and matched
a bag of heroin recovered from the controlled buy. The Commonwealth also
presented evidence the police found almost $1,000 in cash in Turpin’s
bedroom and that Turpin was unemployed. And they recovered the stolen
handgun from Turpin’s room.
We find the Commonwealth presented sufficient evidence to sustain
Turpin's conviction for conspiracy to deliver a controlled substance (heroin).
The above-described conduct constitutes sufficient circumstantial evidence of
a conspiracy in which Turpin and Irvin were jointly involved in a drug dealing
operation they ran from their home.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/13/2018
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