J-A13010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYAN BURNETTE-MCCULLOUGH :
:
Appellant : No. 2064 EDA 2018
Appeal from the Judgment of Sentence Entered June 26, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004701-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 14, 2019
Bryan Burnette-McCullough (“Appellant”) appeals the June 26, 2018
judgment of sentence entered following his convictions at a bench trial of
firearm and drug violations and conspiracy. We affirm.
Prior to trial, Appellant filed a counseled motion to suppress evidence.
Motion to Suppress, 11/21/16. Following a hearing, the suppression court1
denied Appellant’s motion. Order, 8/28/17. Appellant filed a motion for
reconsideration, which the suppression court granted. Motion for
Reconsideration, 4/27/17; Order, 8/28/17. The suppression court had initially
held that the traffic stop, which led to Appellant’s arrest, was an investigatory
____________________________________________
1 The Honorable Mary Alice Brennan served as judge for the suppression
hearing and the trial. We refer to the suppression court or trial court
depending on the procedural posture of the case.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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detention and that the police had reasonable suspicion to stop Appellant’s
vehicle. Order and Opinion, 8/28/17, at 3. The suppression court
subsequently determined that the stop was a custodial detention and that the
police had probable cause to stop Appellant’s vehicle based on the following
findings of fact:
1. Lieutenant Richard Gibney is employed by the Darby
Borough Police as a Lieutenant in the anti-crime unit. He has been
a police officer with Darby Borough since 1987. N.T. Suppression,
02/24/2017 p. 7.
2. The Anti-Crime Unit investigates major crimes in the
Borough including homicide, robbery, rape, firearms and narcotics
cases. When investigating narcotics cases Lieutenant Gibney has
used [a] confidential informant[] (“CI”) more than a hundred
times. He has also on numerous occasions cooperated with the
State Police and the DEA [Drug Enforcement Agency] in narcotics
cases. N.T. Suppression 02/24/2017 p. 8.
3. In December of 2015, Lieutenant Gibney interviewed
a CI who gave him “a ton” of detailed information about a group
that was selling narcotics out of Southwest Philadelphia, Delaware
County and Darby, in particular. The detailed information included
what narcotics they were selling, general areas they were selling,
their nicknames, their vehicles, and the block address of a house
in Darby that [Appellant] was using as a stash house. N.T.
Suppression 02/24/2017 p. 8, 9.
4. Based on this information, Lieutenant Gibney
contacted the Philadelphia Police and spoke with Sergeant Mike
Davis from the 12th District. Sergeant Davis investigates a lot of
the narcotics cases in Southwest Philadelphia. He knew of the
individuals identified by the CI. Sergeant Davis confirmed the
information the CI gave to Lieutenant Gibney; “he confirmed it
all”. Lieutenant Gibney also contacted the DEA who had an
ongoing investigation on some of the identified individuals. The
DEA also confirmed the information given by the CI. At this point,
the CI’s information was confirmed and corroborated by two
independent law enforcement agencies, both with ongoing
investigations into this drug “organization” and active interest in
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the information provided. In addition, the CI’s reliable information
resulted in at least two arrests for the Darby Police. [Lieutenant]
Gibney also learned about additional drug locations in Darby that
he did not know about previously. N.T. Suppression 02/24/2017
p. 9, 13, 19.
5. One of the individuals the CI gave detailed information
about is [Appellant], Bryan Burnett-McCullough. The CI told
Lieutenant Gibney that [Appellant’s] nickname on the street is
“Beezy” and that he is selling heroin. The CI said that [Appellant]
uses a house in Darby on the 1100 block of Chestnut Street as a
stash house to keep his drugs. The [c]ourt takes judicial notice
that stash houses are locations that drug sellers secure to store
their illegal narcotics safely away from where they live and away
from where they sell the drugs. This also helps the drug dealer
from carrying larger quantities of drugs on him at any given time,
so that if arrested, the amount will not trigger sentencing
enhancements. N.T. Suppression 02/24/2017 p. 10.
6. The CI told Lieutenant Gibney of [Appellant’s]
predictive behavior: that [Appellant] would arrive (at his stash
house in Darby) in a white tinted out Maxima, run into the house
to re-supply his drugs. The CI explained: “if we catch him running
in and out of the house that’s the time he would be going to re-
up his drugs and he would be leaving with them.” In addition,
that [Appellant] “stays 1 to 5 minutes if he runs in and out that’s
when he is getting it.” Also, that there is no set time, any time of
the day or night, in and out to re-up his supply. N.T. Suppression
02/24/2017 p. 11, 56.
7. Lieutenant Gibney confirmed the CI’s knowledge of
the drug world, including his knowledge of people involved in drug
trafficking, and how drugs were used, packaged, and sold.
Lieutenant Gibney found the CI’s information to be reliable and
made arrests with the help of the CI’s information. N.T.
Suppression 02/24/2017 p. 12, 13.
8. The CI provided detailed information to Lieutenant
Gibney pertaining to [Appellant’s] car, a white tinted out Maxima.
[Lieutenant] Gibney gave the information on [Appellant’s] car to
the night supervisor who found the vehicle and was able to obtain
the registration. Lieutenant Gibney ran the tag and the vehicle
came back as being registered to [Appellant] at a Philadelphia
address (7328 Garman Street), which coincides with the
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information from the CI that this is a stash house location.
Lieutenant Gibney then obtained a picture of [Appellant].
Lieutenant Gibney showed the picture to the CI who confirmed
[Appellant] as being the individual he knows as Beezy. N.T.
Suppression 02/24/2017 p. 13, 14.
9. The Darby police, along with the DEA set up
surveillance on the 1100 block of Chestnut Street as other
investigations and resources allowed. Although [Appellant’s] car
was spotted on a number of occasions, in and out different times
of the day and night, the officers were not there at the right time,
right place until March 2. [N.T. Suppression 02/24/2017] p. 44.
10. On March 2, 2016[, Appellant] was observed parking
his car on the 1100 block of Chestnut Street, got out of the car
but left it running, looked around, and entered 1106 Chestnut
Street. A few minutes later, [Appellant] exited the house, looked
around, got back in his running car and quickly drove away. N.T.
Suppression 02/24/2017 p. 17, 18.
11. [Appellant’s] activity at the stash house was
consistent with the predictive information Lieutenant Gibney
received from the CI. [N.T. Suppression 02/24/2017 p. 17, 18].
12. In addition to providing information about [Appellant],
the CI also provided Lieutenant Gibney information about other
members of [Appellant’s] criminal organization of drug dealers
who combined money and resources to sell narcotics. The CI
provided information on the group and an individual known as
“Titty” whose real name is Rasheed Wood. Lieutenant Gibney was
familiar with Wood from a prior drug arrest. The CI also identified
individuals known as Cash and Cowboy. The CI also provided
information about other locations the group operated from.
Lieutenant Gibney confirmed all of the CI’s information with the
Philadelphia Police and the DEA. The DEA assisted in the
investigation because they were aware of [Appellant’s] activities
and were independently investigating him. N.T. Suppression
02/24/2017 p. 19, 20, 26.
13. The CI was intimately familiar with [Appellant’s]
activities and routines because he had bought, sold and used
drugs with [Appellant]. The CI had interactions with [Appellant]
the week before his meeting with the Darby Police. Lieutenant
Gibney found all of the CI’s information to be accurate and
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reliable; “right on the money”. N.T. Suppression 02/24/2017 p.
21, 36, 54.
14. Lieutenant Gibney, after observing [Appellant’s]
activities at 1106 Chestnut Street, in light of the predictive
behavior provided by the CI, and the totality of the investigation,
radioed for [Appellant’s] vehicle to be stopped. N.T. Suppression
02/24/2017 p. 22, 26.
15. Officer Daniel Falkenstein is employed by the Darby
Borough Police Department since August 2011. N.T. Suppression
02/24/2017 p. 63.
16. On March 2, 2016[,] at approximately 5:34 p.m.[,]
Officer Falkensten received a call from Lieutenant Gibney to stop
a white Nissan Maxima that was the subject of a narcotics
investigation. Based on that information, Officer Falkenstein
conducted a traffic stop on [Appellant’s] vehicle just past Ridge
Avenue on MacDade Boulevard. N.T. Suppression 02/24/2017 p.
64.
17. Officer Falkenstein made contact with [Appellant] who
was the driver and the sole occupant of the vehicle. Officer
Falkenstein requested [Appellant’s] license and registration and
advised him he was being stopped as part of a narcotics
investigation. N.T. Suppression 2/24/2017 p. 64, 64.
18. [Appellant] immediately acted very nervous. Officer
Falkenstein became concerned [that Appellant] may be armed and
removed him from the vehicle to conduct a pat down search. As
[Appellant] was standing next to Officer Falkenstein, he smelled
an odor of burnt marijuana. N.T. Suppression 02/24/2017 p. 66.
19. [Appellant] was wearing a green coat. Inside the left
jacket pocket was located a partially smoked marijuana cigarette.
[Appellant] was then taken into custody and later transported to
the police station. N.T. Suppression 02/24/2017 p. 67, 68.
20. [Appellant] was searched incident to his arrest at the
police station. Found in his left sock were four small yellow plastic
baggies containing a white chalky substance consistent with crack
cocaine packaged for sale. Further search located seven individual
blue wax baggies containing a brown powdery substance
consistent with heroin packaged for sale in his underwear, 21
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smaller yellow plastic bags containing the same white chalky
substance as the initial four bags and a single pill that was later
identified as Oxycodone. [Appellant] also was in possession of
$41 in his right breast pocket and $390 in a pant pocket. N.T.
Suppression 02/24/2017 p. 70, 71.
21. After [Appellant] was arrested, 1106 Chestnut Street
was secured so no evidence could be destroyed while a search
warrant was obtained. N.T. Suppression 02/24/2017 p. 56.
22. Lieutenant Gibney obtained a search warrant for 1106
Chestnut Street. During the search of that residence a quantity
of narcotics, a .45 caliber Taurus semi auto[matic] handgun with
10 live rounds, paraphernalia and business cards with “Beezy” and
[Appellant’s] phone number on them. All items seized are listed
in the inventory which was admitted into evidence along with the
search warrant. N.T. Suppression 02/24/2017 p. 83.
Suppression Court Order and Opinion, 8/28/17, at 1–8 (internal brackets
omitted; emphasis in original). Accordingly, the suppression court vacated its
first order denying suppression and then denied the motion to suppress a
second time. Id. at 13.
Following Appellant’s convictions, the trial court sentenced him to
incarceration for an aggregate term of five to ten years. Sentencing Order,
6/26/18. This appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
A. Did the [t]rial [c]ourt commit an error of law when it failed to
grant Appellant’s Motion to Suppress, where the officers lacked
reasonable suspicion or probable cause to stop the vehicle he
was traveling in thus violating his constitutional rights?
B. Did the trial court commit an error of law by failing to grant
Appellant’s Motion to Suppress, where the evidence used to
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support a finding of reasonable suspicion carried a low degree
of reliability?
C. Did the trial court commit an error of law by failing to grant
Appellant’s Motion to Suppress where the information provided
to law enforcement was stale at the time of the seizure of
Appellant?
Appellant’s Brief at 4.
“Once a motion to suppress evidence has been filed, it is the
Commonwealth’s burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant’s
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. Super.
2012) (en banc); Pa.R.Crim.P. 581(H).
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to determining
whether the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are correct.
We may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted . . . . Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal conclusions
based upon the facts. Commonwealth v. Williams, 2008 PA
Super 6, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en banc)
(citations, quotations, and quotation marks omitted).
Commonwealth v. Williams, 176 A.3d 298, 315 (Pa. Super. 2018).
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. Stilo, 138 A.3d 33, 35–36 (Pa.
Super. 2016); In re L.J., 79 A.3d 1073, 1083–1087 (Pa. 2013).
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Appellant first argues that the traffic stop was not supported by
“reasonable suspicion to believe that he was engaged in criminal activity or
probable cause to believe that a crime had been committed.” Appellant’s Brief
at 12. Appellant complains that:
[t]he only information that was present at the time of the stop
was that [Lieutenant] Gibney wanted the vehicle stopped for a
drug investigation despite not having [had] any contact with the
[CI] or anyone who knew [Appellant] in two months. . . . It is
clear that [Officer Falkenstein] did not have any information at his
disposal to support the traffic stop.
Id. at 15–16.2
The Commonwealth responds:
The vehicle stop was an investigative detention . . . . It was
a stop to investigate [Appellant’s] involvement in drug activity
that turned into a custodial detention once the officer smelled
marijuana.
***
[Officer Falkenstein] stopped the vehicle as a result of a “narcotics
investigation.” Tr. 2/24/17, 63; see also Tr. 2/24/17, 65 (“an
investigation of drug complaints”). Lieutenant Gibney never told
Officer Falkenstein to “arrest” [Appellant]; instead he “called for
[Appellant] to get stopped.” Id. at 19; see also Id. at 20, 49, 50,
64, 65, [71–74], 76, 77 (Lieutenant Gibney only instructed him to
“stop” [Appellant], not arrest him.). The officer stopped the
vehicle to investigate whether the driver was using it as part of a
drug trafficking operation.
____________________________________________
2 Within Appellant’s first issue, he challenges Officer Falkenstein’s frisk
pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and the search of Appellant’s
coat pocket as illegal. Appellant’s Brief at 17–22. These two claims are waived
because Appellant did not include them in his Pa.R.A.P. 1925(b) statement.
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues
not raised in a 1925(b) statement will be deemed waived.”); Rule 1925(b)
Statement, 8/14/18.
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Commonwealth’s Brief at 11, 13.
To secure the right of citizens to be free from intrusions by police, courts
in Pennsylvania require law enforcement officers to demonstrate ascending
levels of suspicion to justify their interactions with citizens as those
interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d
621, 624 (Pa. Super. 2000). There are three levels of interaction between
police officers and citizens:
The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to respond.
The second, an “investigative detention” must be supported by a
reasonable suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of an arrest. Finally, an arrest
or “custodial detention” must be supported by probable cause.
Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa. Super. 2014) (quoting
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)). The
following factors impact an officer’s reasonable suspicion that an individual is
engaging in criminal conduct:
A police officer may detain an individual in order to conduct an
investigation if that officer reasonably suspects that the individual
is engaging in criminal conduct. This standard, less stringent than
probable cause, is commonly known as reasonable suspicion. In
order to determine whether the police officer had reasonable
suspicion, the totality of the circumstances must be considered.
In making this determination, we must give due weight ... to the
specific reasonable inferences the police officer is entitled to draw
from the facts in light of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an examination of
only those facts that clearly indicate criminal conduct. Rather,
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even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.
Commonwealth v. Freeman, 150 A.3d 32, 36–37 (Pa. Super. 2016)
(quoting Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004)
(internal quotation marks and citation omitted)).
Morever:
for a stop to be valid, someone in the police department must
possess sufficient information to give rise to reasonable suspicion.
The officer with the reasonable suspicion, usually the dispatcher,
need not convey all of this background information to the officer
who actually effectuates the stop. Thus, the police may justify the
search by presenting sufficient evidence at the suppression
hearing that someone in the chain of command had reasonable
suspicion before the stop, even if the arresting officer did not.
Commonwealth v. Walls, 206 A.3d 537, 542 (Pa. Super. 2019) (quoting
Commonwealth v. Barber, 889 A.2d 587, 594 (Pa. Super. 2005)).
Here, after reconsideration, the suppression court “concede[d] the stop
of [Appellant’s] vehicle constituted a custodial detention.” Suppression Court
Opinion, 7/28/17, at 13. According to the suppression court:
[The] combination of information from a known reliable source
with first[-]hand knowledge, extensive corroboration and their
own observations provided ample reason for police to suspect
criminal conduct was afoot and to stop [Appellant’s] vehicle. We
find [Lt.] Gibney had probable cause to stop [Appellant’s] vehicle.
Id. at 16.
Upon review, we find support in the record for the suppression court’s
findings of fact. N.T. Suppression, 2/24/17, at 6–78. However, we affirm on
a different legal basis because the suppression court used the reasonable-
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suspicion standard (“criminal conduct was afoot”) to reach its conclusion that
the police had probable cause to stop Appellant’s vehicle. Based on the totality
of the circumstances, we agree with the Commonwealth that the vehicle stop
was an investigatory detention supported by reasonable suspicion. While our
basis for upholding the legality of the stop may be different than that of the
trial court, we emphasize “an appellate court is not bound by the rationale of
the trial court and may affirm on any basis if the record supports it.”
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
Information provided by the CI before March 2, 2016, which Lieutenant
(“Lt.”) Gibney confirmed with the Philadelphia police and DEA, provided Lt.
Gibney with reason to suspect that Appellant was engaged in a drug-trafficking
operation. Police surveillance of Appellant’s vehicle in the 1100 block of
Chestnut Street for several months and Appellant’s activity at the stash house
on March 2, 2016, provided Lt. Gibney with reason to suspect that criminal
activity was afoot. Armed with specific and articulable facts regarding
Appellant’s involvement in a drug operation, the make and model of his
vehicle, the location of his stash house, and his conduct on March 2, 2016, Lt.
Gibney directed Officer Falkenstein to stop Appellant’s vehicle. Officer
Falkenstein conducted the vehicle stop to further Lt. Gibney’s investigation
into Appellant’s drug activity. N.T., 2/24/17, at 59–62. Officer Falkenstein’s
vehicle stop did not involve “such coercive conditions as to constitute the
functional equivalent of an arrest.” Ransom, 103 A.3d at 77; Gutierrez, 36
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A.3d at 1107. We conclude that Officer Falkenstein had reasonable suspicion
to stop Appellant’s vehicle in furtherance of Lt. Gibney’s investigation.3
Next, Appellant argues that the suppression court erred in denying him
relief “because the information used to establish reasonable suspicion and
probable cause carried a low degree of reliability.” Appellant’s Brief at 23.
Specifically, Appellant complains that the CI’s information did not disclose
objective facts, it was not corroborated by independent police work over the
course of three months, and it did not pertain to the inner workings of
Appellant’s alleged operation. Id. at 23, 25, and 30. In support of his
argument, Appellant relies on Commonwealth v. Wilson, 622 A.2d 293 (Pa.
Super. 1993).4 Appellant’s Brief at 30. Notably, Appellant does not clarify the
context of his challenge, i.e., the vehicle stop or the search of his stash house.
____________________________________________
3 Officer Falkenstein did not arrest Appellant until the officer noticed an odor
of burnt marijuana “coming from [Appellant’s] person.” N.T., 2/24/17, at 62,
63. Officer Falkenstein testified that Appellant was the sole occupant of the
vehicle. Id. at 61. He also testified as to his training and experience
identifying the odor of burnt marijuana, which he described as “distinct,
pungent.” Id. at 62–63.
The suppression court found, and the record confirms, that, based on
the officer’s observations, he had probable cause to arrest Appellant and
search him. Suppression Court Opinion, 8/28/17, at 16–17; N.T., 2/24/17,
at 61–63. Appellant acknowledges that he was “constitutionally seized once
the vehicle was stopped.” Appellant’s Brief at 14.
4 Wilson is not applicable. Therein, the Court had:
no insight as to the “basis” of the confidential informant’s
“knowledge” with regard to the information recited to the police.
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The Commonwealth counters that the CI’s information was reliable
because the CI was an identified source, Lt. Gibney confirmed the CI’s
information about Appellant’s drug activity with the Philadelphia police and
the DEA, and the CI accurately predicted Appellant’s behavior with regard to
the stash house. Commonwealth’s Brief at 14, 16–17. The Commonwealth
also submits that “the CI advised the police that he (the CI) bought drugs
from [Appellant]. The CI identified a photo of [Appellant]. And the CI’s
information resulted in at least two other arrests for the Darby Police.” Id. at
17 (citing Findings of Fact 3–6).
“A determination of probable cause based 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). “An informant’s tip
____________________________________________
This does not mean that this aspect of the “reasonable suspicion”
criteria cannot be satisfied by the detailed nature of the tip.
However, we find that the color and type of vehicle driven by the
defendant were facts not restricted to those in the defendant’s
inner circle of friends. It would have been information accessible
to the public and general acquaintances of the accused.
Wilson, 622 A.2d 293, 296 (1993).
In contrast, the CI in this case provided Lt. Gibney with information
about more than Appellant’s vehicle; he described Appellant’s involvement in
a drug organization, Appellant’s behavior at the stash house, and his personal
drug dealings with Appellant. N.T. Suppression, 2/24/17, at 6–78. The
suppression court addressed the CI’s reliability in its opinion. Suppression
Court Opinion, 8/28/17, at 14–15.
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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.” Commonwealth v. Goldsborough, 31 A.3d 299 306 (Pa. Super.
2011) (quoting Luv, 735 A.2d at 90).
We have determined that Officer Falkenstein had reasonable suspicion
to stop Appellant’s vehicle in furtherance of Lt. Gibney’s drug investigation.
Additionally, Officer Falkenstein had probable cause to arrest Appellant based
on his observation that Appellant smelled of burnt marijuana. Thus, we need
not examine whether the CI’s information provided probable cause to stop or
to arrest Appellant.
Lastly,5 Appellant argues that the CI’s information “was stale at the time
of the police actions.” Appellant’s Brief at 35. According to Appellant, the CI’s
last contact with Appellant was a week before the CI spoke with Lt. Gibney;
three months later, Lt. Gibney directed the traffic stop without having received
any additional information about Appellant from the CI or other sources. Id.
at 36. Appellant asserts that “a three-month period is clearly insufficient to
establish probable cause” for issuance of the search warrant for 1106 Chestnut
____________________________________________
5 Within Appellant’s last issue, he challenges the initial warrantless entry of
1106 Chestnut Street. Appellant’s Brief at 37–45. This issue is waived
because Appellant did not include it in his Rule 1925(b) statement. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”); Rule 1925(b)
Statement, 8/14/18.
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Street. Id. at 37 (citing Commonwealth v. Novak, 335 A.2d 773, 776 (Pa.
Super. 1975) (evidence of drug sales occurring seven weeks before arrest was
insufficient to establish probable cause for issuance of arrest warrant)).
The Commonwealth responds: “The four corners of the affidavit
contained reliable information from a CI that [Appellant] was selling drugs and
a lawful search of [Appellant’s] person confirmed the CI’s tip.”
Commonwealth’s Brief at 21. Specifically, the Commonwealth explains that
the lawful stop of Appellant’s vehicle resulted in the lawful arrest of Appellant;
upon searching Appellant incident to arrest, the police recovered:
ample evidence further corroborating the tip from the CI that
[Appellant] was drug dealer and using the house at 1106
Chestnut Street as a stash house: 21 bags of crack cocaine, one
Oxycodone pill, four separate bags of crack cocaine in his sock,
seven bags of heroin in his underwear, $41.00 in his right breast
pocket, and $390.00 in his right pant pocket. [N.T.,] 2/24/17,
70–71.
Id. at 23. According to the Commonwealth, the CI’s information was not stale
because the contraband recovered from Appellant’s person demonstrated
“that the criminal activity continued up to the date of the issuance of the
warrant[.]” Id. at 25 (citing Novak, 335 A.2d at 775).
A search warrant must be supported by probable cause. U.S. Cont.
amend. IV; Pa.Const. Art. I, § 8. “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.”
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Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (quoting
Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972)).
“In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527
(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.” Jones, 988
A.2d at 655. The Pennsylvania Supreme Court adopted this test for purposes
of making and reviewing probable cause determinations under Article I,
Section 8. Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986). The
Pennsylvania Supreme Court has described this test as follows:
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 supplying 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.
* * *
Further, a reviewing court is not to conduct a de novo review of
the issuing authority’s probable cause determination, but is simply
to determine whether or not there is substantial evidence in the
record supporting the decision to issue the warrant.
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Jones, 988 A.2d at 655 (quoting Commonwealth v. Torres, 764 A.2d 532,
537–538, 540 (Pa. 2001) (internal brackets omitted)).
Regarding staleness, we have explained that the “[a]ge of the
information supporting a warrant application is a factor in determining
probable cause.” Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa. Super.
2012). “If too old, the information is stale, and probable cause may no longer
exist.” Id. However, staleness is not determined by age alone, as this would
be inconsistent with a totality of the circumstances analysis. Id.
If the officer is presented with evidence of criminal activity at
some prior time, it must also be shown that the criminal activity
continued up to or about the time the warrant is issued, in order
to support a finding of probable cause. There is no hard and fast
rule regarding what constitutes stale information; such
determinations must be made on a case-by-case basis. The
applicable standard for determining the time limits to be placed
on search warrants is one of reasonableness.
Commonwealth v. Vergotz, 616 A.2d 1379, 1382 (Pa. Super. 1992)
(internal citations omitted).
In denying Appellant’s challenge to the search warrant, the suppression
court opined that:
[t]he narcotics found on [Appellant] during his search incident to
arrest totally validated the CI’s information. [Lt.] Gibney then
used the information he obtained from the CI, the results of his
own investigation, and [Appellant’s] fresh arrest for drug
possession to establish probable cause to obtain a search warrant
for 1106 Chestnut Street. This [c]ourt determines that the Search
Warrant in question was issued upon a proper determination of
probable cause by the issuing Magisterial District Justice.
Suppression Court Opinion, 8/28/17, at 17.
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Upon review, we conclude that the suppression court’s factual findings
are supported by the record and the legal conclusions drawn from those facts
are correct. The affidavit in the instant case, when read in the light of common
sense and the totality of the circumstances, supports the finding that probable
cause existed for a search Appellant’s stash house. In the affidavit, Lt. Gibney
detailed information provided by the CI about Appellant selling heroin in the
Darby, Southwest Philadelphia, and West Philadelphia areas, using a stash
house in the 1100 block of Chestnut Street in Darby to “re-up” his supply, and
driving a “tinted out white Maxima.” Affidavit of Probable Cause,
Commonwealth Exhibit 11, at 2. Lt. Gibney explained his confirmation of the
CI’s information, the CI’s identification of Appellant from a photograph, police
surveillance of the 1100 block of Chestnut Street, and police observation of
Appellant entering the stash house on March 2, 2016, in a manner the CI
predicted. Id. Lt. Gibney also indicated that the CI had used, sold, and
packaged drugs in the past. Id. The affidavit also describes the contraband
recovered during Appellant’s arrest and search, which demonstrates the
continuing nature of Appellant’s criminal activity. Id. at 3.
The ongoing investigations, the CI’s information, Appellant’s conduct on
March 2, 2016, and the recovered contraband were facts and circumstances
within Lt. Gibney’s knowledge “and of which he ha[d] reasonably trustworthy
information[;]” thus, they were “sufficient in themselves to warrant a man of
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reasonable caution in the belief that a search should be conducted.” Jones,
988 A.2d at 655. Appellant’s final claim does not warrant relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/19
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