Com. v. Pinnock, M.

J-S67009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MILIK EMIL PINNOCK :
:
Appellant : No. 900 MDA 2019

Appeal from the Judgment of Sentence Entered May 3, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006227-2017

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: MARCH 18, 2020

Appellant, Milik Emil Pinnock, appeals from the judgment of sentence

entered on May 3, 2018, following his bench trial convictions for possession

with the intent to deliver1 (“PWID”) and possession of drug paraphernalia.2

We affirm.

The trial court accurately summarized the factual and procedural history

of this case as follows.

On October 6, 2017, the Honorable Howard F. Knisely signed an
order authorizing installation of a global positioning system
([“]GPS[“]) mobile tracking device on the Honda Accord owned by
Appellant. The application and affidavit presented to Judge
Knisely asserted there was probable cause to believe Appellant's
vehicle was involved in or connected to criminal activity,
____________________________________________

* Former Justice specially assigned to the Superior Court.

1 35 Pa.C.S.A. § 780-113(30).

2 35 Pa.C.S.A. § 780-113 (a)(32).
J-S67009-19

specifically, the sale of cocaine purchased in Philadelphia[,
Pennsylvania] but distributed within Lancaster[, Pennsylvania].
[On October 9, 2017 t]he GPS tracker was installed on the vehicle
. . . pursuant to 18 Pa.C.S.A. § 5731. That day, Appellant’s vehicle
traveled to and from Philadelphia.

On October 10, 2017, at approximately 1:10 p.m., members of
the Lancaster County Drug Task Force seized Appellant, searched
his vehicle and entered his residence at 541 North Plum Street in
the City of Lancaster pursuant to a valid search warrant. During
the search of the residence, [d]etectives located approximately
263.34 grams of cocaine, $1,073.00 in U.S. currency, two digital
gram scales, sandwich bags, and a gallon size bag and two quart
size bags with cocaine residue. The seizure and arrest of Appellant
resulted in the Commonwealth obtaining additional controlled
substances on his person. Subsequent to his arrest, Appellant
was administered his Miranda3 warnings by Detective Jason
Zeigler of the Drug Task Force, waived his rights, and ultimately
provided a statement admitting the cocaine, paraphernalia and
money were his and that he was selling cocaine.

Based upon his incriminating statements and the evidence seized
from his residence and person, [the Commonwealth charged]
Appellant [] with [PWID] cocaine, and possession of drug
paraphernalia[.]

***

[Thereafter,] Appellant filed multiple omnibus pre-trial motions. …
Specifically, Appellant moved to suppress the controlled
substances and paraphernalia seized from his person and
residence[.] [The trial court held a suppression hearing on July
13, 2018 to address Appellant’s various claims and ultimately
denied Appellant’s motion to suppress on October 2, 2018.]

On January 25, 2019, Appellant appeared before the [court] for a
stipulated bench trial. [That same day, the trial court found
Appellant guilty of both charges].

***

____________________________________________

3 Miranda v. Arizona, 384 U.S. 436 (1966).

-2-
J-S67009-19

[Appellant was sentenced on May 3, 2019, during which he]
received a sentence of 7 to 14 years’ incarceration in a state
correctional institution for the PWID conviction. [The court only
imposed costs for the possession of drug paraphernalia conviction.
This timely appeal followed.4]

Trial Court Opinion, 6/28/19, at 1-5 (footnotes added) (footnotes omitted).

Appellant raises the following issues on appeal:

I. Did the affidavit of probable cause in support of the
authorization for the October 6, 2017 court order
authorizing installation of the [GPS] placed on [Appellant’s]
vehicle provide insufficient facts to establish probable cause
to believe that the vehicle was involved in criminal activity?

II. Did the affidavit of probable cause for the [search] warrant
issued on October 10, 2017[] provide insufficient facts to
establish probable cause for the issuing authority to have a
basis to believe that [Appellant’s] residence would contain
evidence of drug activity?

III. Did the affidavit of probable cause contain deliberate
misstatements and omissions that were material to the
finding of probable cause to issue the October 10, 2017
search warrant?

IV. Without the GPS tracking device data and the information
[tainted] by [] deliberate and material misstatements
contained in the affidavit of probable cause for the October
10, 2017 search warrant, would the remaining portions of
the affidavit be incapable of establishing probable cause to
believe [that] evidence of drug activity would be found in
[Appellant’s] residence[?]

Appellant’s Brief at 5-6.
____________________________________________

4 Appellant filed a notice of appeal on June 3, 2019. On June 5, 2019, the
trial court entered an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on June 28, 2019.

-3-
J-S67009-19

We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable David L. Ashworth. We conclude that Appellant is not entitled

to relief in this case. Specifically, we agree that the trial court did not err in

denying Appellant’s motion to suppress because both the affidavit in support

of the order authorizing installation of a GPS on Appellant’s vehicle and the

affidavit in support of the October 10, 2017 search warrant were supported

by probable cause. We also note that, based upon our review, we are satisfied

that the affidavit of probable cause did not contain material omissions that

undermined or invalidated the October 10, 2017 search warrant.5 Because

Judge Ashworth’s June 28, 2019 opinion adequately and accurately disposes

of Appellant’s issues on appeal, we adopt it as our own. In any future filing

with this or any other court addressing this ruling, the filing party shall

attached a copy of Judge Ashworth’s June 28, 2019 opinion.

____________________________________________

5 The trial court did not specifically address Appellant’s claim that the October
10, 2017 search warrant was invalid because Detective Weber, the affiant,
omitted material facts from the affidavit in support of probable cause.
Appellant’s Brief at 23-27. In particular, Appellant claims that Detective
Weber omitted the following information: (1) an inventory of every item
recovered from Appellant’s trash; (2) the fact that Detective Weber did not,
himself, observe Appellant driving his vehicle to Philadelphia, Pennsylvania;
and, (3) the fact that Appellant’s vehicle was parked at a different location in
Lancaster for several hours between October 9, 2017 and October 10, 2017.
Id. Herein, we conclude that the alleged omissions cited by Appellant were
not “highly relevant” to the magistrate’s finding of probable cause.
Commonwealth v. Taylor, 850 A.2d 684, 689 (Pa. Super. 2004). We are
therefore satisfied that the affidavit of probable cause did not contain material
omissions that invalidated the October 10, 2017 search warrant. As such,
Appellant’s third and fourth issues are meritless and he is not entitled to relief.

-4-
J-S67009-19

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/18/2020

-5-
 Circulated 02/24/2020 11:14 AM

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BY: ASHWORTH,: J., JUN'_E; 2.8, 2019·

Milik>Eniit Pinnock has filed a· airect appeat toJn�-Superior ·C-O·ur1 dt Pennsylv�n.ia

from. the .judgment qf sentence-imposed on May· 3, 20'19.. This 'Opinion Is wrltten

pursuanqo Rute·.1.92s(a) ofthe Penn�ylve!nia· Rules ofAppellate Procedure, and, for

the·foffowir,g reasons, this court requeststhat the: appealbe dlsmlssed ..

I. Back�round

The. relevant facts,.-as·e.stabllshed at the �tipulatecl bench trial, andthe

prececura: ·history of this cas·a riia'y be -sumrnerlzed as foll?ws, On Octcbere, 2017, ttje

Honcraoje Howarn F: Knisely signed. an. 9 rder a utliorizfng i nst�lla'tion of .a :global

positioning system (GPS)_mobile tracking devlceon lne Honda Accord :owned by
Appellant The applleatfon and affi�avit presented to Judge Knis�ly asserted· there was

probable cause 'to'beleve Appeil�nt's vehicle was· involved in or connected to· criminal

activity,: speC.tficaUy, the sale ot' cocaine purchased in Philadelphia but distribt:iteo. within

Lancaster. The GPS.tracker was. installed.on. the vehi.cle on th� morning of Octoq�r:9:,

···-··-·-----··-·-··-------------------·--··---··-
 20�7. pursuant to Hl.Pa.O.S.A. § 5761.. Thatc;tay, Appe_llanfs vehlcle traveled to and

from Philadelpt,ia;
On October ·10, 2017, at approximately 1 :1o·p.m .. members of the Lancaster

Coonty Otug. Task Force seized Appell�nt; searched his- Vehicle andenterec _his

residence at 541 North Plum Street in the City pf.L�ocaster pursuant.to a valid search

warrant. During the search of the' r�sidence, Detectives ·located appr.Ox.imately 26J:34
grams ofcocaine, $1,073.00.in U.ft_currency,�q qlgital._gram scales; sandwich.baqs,

and a ·gal!on size··betg and two quart slze Q"ag$ wj(h cocslne residue; .. S�e Suppres�ic;,_n

Hearing Common1ay.ealth:Trial Exhibits 3�. The sl:!izure-and arrest of Appellant resulted,

In the Commonwealth obtaining additfonaf controlled substances on his person.

Subsequent to hfa arrest, Appellant was administere(i his Mrranda 1 wamin_gs by

Detective
. .Jason
. Zeigler Qf the
. . .Task Force;. �jyect his rights, and ultrma.tely
Drug '

.provided a statement adrnittiog tbe coqaine{ paraphemella.and rnortey were his and

thc1t.hewt,ls.s.ellihg cocaine •. See S_uppres$ion Hearing comrnonwealtb Trial Exhiblts 7

& 8.
Based upon his in.crimihating statements and the evidence. seized ·from his

residence arid person, Appel(anfwas charg�d with possession .with ihte11f to deliver
(PWID} 'cocaine, and possesslon.ot drtJg paraphern_alia;2· Ultlma�ly, these. charge�

were docketed to .Jnfor,ma.tion No. �221 of 2017.

1Mlranc.ta v. Arizon(3, �84 U.S. 436, (1966).
235 P.S. §. '78()�113(a}(30), and 35 P.S. '§ 780·113(a)(3.2}, r�spectivelY,

2

.. ..,... '-!W

···-··-·---·-··---·-·-··--·--·-----------
------------------·-·--··-·-----
 At Appeilants.arraign·m�nt on October.. 10, 2017, b.ail was set at $.200,000.00,

secured; andhewas comrnlttedto Lancaster'County Prison.(LCP.). on November 1'5,.
:401.T, Appellant appeared. for hi� preliminary hearing:.and bail was cha,nged from

$200;000.0.0 securedto $200,000.00 unsecured .. This resulted in Appellantbein�

transported from L;CP to.· SCleQall��; based. upona
.
state parole detainer lodg·ea aga1nsf ''

�ppellant.
Appellant remained at SCI-Oalfa·s as his case proceeded �t theLancaster

OountyCourt.ot Common Pleas level. Appellantflled·multipte omnibus pre-trial
.r.noti'o.ns.3 �ntainiog claims that were presented and addressed ;3t a suppression

· heaon.� on:J41y:13, 201'8 -. Speciflc�lfy, Appellant moved to,sup.press the controlled

subetances and jn�raph�rn.alia setzed from his. person and residence, as·.well El$ .the·

statements-made by -Appellant. Following _the suppresslon h.earing1 ccunset f9r the

parties su.�,:n,JttE;?d memoranda in support ofan,d in opposition to suppression. By Order

. dated October 2� 20.18, App�lla�t's suppresslon claims weredenled, I de�rrnln,�d thatc

(1) s·uff)cient probable eauee e?(isted for the authorization of 'the instauatlon of the

mobl!e tracking device, and (2) th�re were-no deliberate misstaternents and/or

30h January· 24,. 2018, Appellant filed· an omnibus pretrial motion cha.lle.ng_lng th�
affidavit of. prot,�bl.a: cause re.lated to the search warrant executed on Appell�nt's· home an.d
vehicle, a$w�U as 'the custodial statements made. by him \o the pollce. On March 12, 201 a,
App�llan.t fil�d a supplemental omnibus pretric11 rnotipn·ch�llerigi.nQ. the affidavit.. of probebte
.cause related to the-application for-ln.stallatiqn pfthe GPS mobileJra�king devfce on Appellant's
vehlcle. On May·30i 2018, Appellant filed cl second supplem�.ntai'.omnibus pretrial motion where
he supptel'ilented Iii� prior �lairn.s tp Include. an allegation of ir1.ientiorial omissions. and
:l'l]isstatements mat.ertal tq any.. potenUal finding of prQbci_ble. cause made by the �ffiant..in both
· the search warrant's affid�lt of probable cause aria the. affidavit of probable cause ·wlt.hin the·
GPS trackin·g device applicii'fion. ·

3

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·------ · ·�--------------
cmlssions Withiri. the search warrant's. affidavit-thc1t wetemateriel to any.potentlalflnding

of probable cause.

On.January 25,.201,9, Appella�tappeared before the under.sign�d-fora

.stlputeted bench trial. At-the concnrslcn. ottne trial, Appe.llarit was found guilfy of both.

charges. Seritencing·w·as deferred pending apresentsnce investigation (PSl}:r. The·PS.I

report was completed and docketed on March 8, 2019.
On April 30, 201:9,.Appellant flied a jnctlcn ,for extrac'.>'rdlnary r�ll'ef requ�sting thctt

his· convlcuons be vacated' an'd thatne.be Jmm,edi'ately-diScharg,ed from any form of

unsecured ball-retated confinement on-this dcoketbecauee of the.ccurt's taHure to

sentence ;film within 90 pays bfcc;,nviction, as statutorily 11:!QUired. by Pa.R!Ctlm.P; 704.

No formalacttonwesteken on Appell�nt'� rnotlon prior.to the scheduled s.enteocin�·on

Ma� 3, 201�. ·AJ. that time.; the motion was·argued:byt�e parties, and.orally d�riied from.

t�e bench:' Notes of Testin,ony (t.J.T}, Sentencin� at'3.

. .
'Pihnpck :argued thai the trial court vit;>lated. his. rights to due·:process and a speedy tnal;
becauselt fa.lied tosentence him Within the 90�day t,me period that Pennsylvania Rule of
Criminal Procedure 704 lndlcates. "[S)enfence in a court case shall-ordinarily· be imposed_.:withln
9.0 days of convlction., ..1i PaiR.Crim.P; 10.4. The sentencing berediooccus oµfside·the.e>rdlnaty
tfme _ft.am� of 90 days, but thl� court .held· tt_,at. Pinnock was not ·entitled. to. rener (I. e,.,. discharge.
of- his· sentence} due to a mere eight-pay delay. . . .
In epmn,on�ealthv. ·Ander;s·i 555.Pa·. 467,-725A..2d 170 (1�99), the .Supreme.
Qo.urt. of Pennsylvania mandated thaj 'the-trial court.shOuld eonstcer' four
factQt.s_ t'o determine whetner ,irdetay .cutslde the ordiria'rY· 90· days.-established
in. tbe Rules: of Crin,lnal· Procedure:war.rants di1:1charge.of the case ... : Those
factors are; :, · . ·· · ·
(1) the length of the delay falling outside of ·�ule 1_405(Afs 60-day:and good
-cauee PfQVisions, (2) the· reason for the improper oelay, (3) the defendant'.s
timely o-r: untimely ·asse.rti5:h�d,a,60--Qay w!ndow·for sentencing,
which Rule·.704 now extends to 90 days;. se·e id. at 19.2 n:i. . ·
. A' tl:\e time of cb.nv.ictipn on Jani.,,ary 25,·2.019, ,Pinnoci<. .waiYed. his rigt,t to a P$1 but I felt
I did r)ot have sufficle.n.t..lmorm.atJon to make: an ·informed declslon with regard to· the appr�pr.la1e
sentence: Thereto�. I ordered a PS.I, which was·origlt1ally sche�uted for.February 1, 201°9.
However, Pinnocl<,._who. w� !n the .custody.·of the Oepijrtm.eot of-Co'rrectio11s onprevlous
m_attefl?.UnrEi!at�d to this action, had to be,w.ritted In for the PSJb·ecause·the. DOC. does riot.
�llowvldeo conferencing for. PSJs, PinnQ�kwas-r.etur.ned. to Lanca$t�r .County on February'14,
-2019, and rem.a,ined here until February 21, 2019, duringwhlch time thf; PS'! was perfor.med.
The final PSI reportwae flied on M�rch e, Z919 .. However, because of my coort.caleodar•. and
.the·-unavailability of counsef the. sentencing ·could not t,e �cheduied· until May 3, 2.01'�. eight
. day.s b'eyolid the 90 ,da�s dir�cted by Rule704.· N, T .., S�ntenclng at 3� .e •

App\ylng the four Ander� factors to.· the facts of this case, it was clear that the need for a
PSI report was "good cause" for. a .mere. eight·day delay which d\d 11ot preju:dJce ·Piny,ock: kl any
substantial way, · ·· ·

5

�-------- -- ......
.. .ȴ?.....a...;;SRW\ffl ....

···-·-..··----..· ··-··--·------------------------
 which ralses the ·follo�hig issues: ·c1 ). whether the affidavit of· probable cause .In support

of the..authorization for the Octob.er 6, 2017, court orde� authorizing fnstaltatlon of.the
mobile tracking device provided sufficient facts to. ��tablish probable cauee to believe
that the vehicle. was.lnvclvec in crimirial·activ.ity; {2) wh�ther th.e affid�v!t of probable
·cause forthe wartantissue.d on October 1Q, 20111 ·fjrovided sufficientfacts to �stablish

· probable cause to believa.Appellant's residence wo.uld contain eviaence of drug �ctivifyi
(3.) whether the affidavit of probable cause contained .deliberate rnlsstatements and

omlssorts that were material to the. fim;Hng of probable cause to Issue the· .Octbbei' 1 O;

2.017, search w-�·m1iit; and· (4) whetru.:!r, without the. $.PS.tracklna .de.vice data �nd the

·information affected by ttie mlsstatements contamed in ·the a.ffida•ift of. p·robab� cause

for the October 1 o. 2017, �etarch warrant,
. .. the remain.I
. ng..portlons' of the affidavit were

�ap·a�1¢. of �stablishing probable cause 1o believe evidence of drug .activity would be

-found In Appellant's resldence on October 10;.�017:i S�eStatementofErrorsat,11[1-4;

II. Dlseusslon

Appellant.·eontend� that the ·court erred.'in d�nying his suppresslon mctlon wb�re

"[t.]he search .conducted pursuant to a·.s�arch warrant ... was tssueo without.sufficifmt,
probable cause/ Stf,ltEHJl�nt of Errors at1. in review1ng.. tnedenlat o� a auppreeslcn

motion,
. . the 'appellate
.. court must
. determine.
. .

whether the suppressior, courrs f�ctµal findings are supported by
the recoro and whether the.l13gal concluelons.drawn'frorn tho�e
tacts· are 'correct, Because ·the C.omrrionwealth. prevailed before

·sin hls'.Statenient of' Error.s, Appel!�ht misstates the d�te of th� court order auth;rizing ·
in1,l�llatioh ofthe mobile trackihg.devjce as October3, 2017 .. See Statement of Errors at'� t

--- ··--·---------------·------ --·----... ..... ,_.
 the suppr�sslon court, we may consideron!y th� evidence· of the
.Qomm9nwe:a!th and so much ·of the evidence for the defense as
remains Vnqoritradicted whenreadinthe context of the record
as a W�ole .. y./her� the suppre.��iortcourt'.s factual fif"!dings.�re
s.upport�d·by the reco.rd,,-we·�te:botihd bY these·findin.9s,.and
may reverse. o.nly .If the court's legal conclustons are erroneous..
·Where ..... the appeal o.f the determlnafio�· onhe st.ip'pr.ession
court turns on allegations ofJegal error, the suppression court's
legal conclusions ·ar.e O'C?t binding on _�n appell�te..courf, wbose
duty It Is to determire if the suppression court properly app,lled
the lawto the. f�ct�, Thus, th�, conclusions of law of the. courts
below are subject to our plena.i.y r�v1�w)

co·mm6�n\Y&afth v, Jones,:605 Pa, 1.88, ·t98, 9�8 A.2!'.i 6.49, ·a54 (20.10) (internal

:cita:tions antj quotati6n.s· omi,ttecj) .. lrr·appeals Iromsuppresslon orders, the scope of

review.is limited to the evldence produced at.thesuppresslon.hearing. lo re L.J.1 622.

P�.126, 152, 7� A.3d 1073,.1'088-:8.9 (2013).. The Commohweafthbears the .sole
bu rden · of p�oqf to establish by a preponderance oft he. evidence· th�t th.e cha llenge.d
evidence is admissible .at\d that'it was not obtelned in ·\iiol�tiqn otthe de.fehdant's

corlsfitut,lonal rights. Pa.R.Cdn,.P; 58t(H): See etso Commonwealth v, Enimpah, 6.30

Pa. 357', 36�. 106 A3d695, 701 (2014).

· The evidence at the suppresslon hearin.Q established thefonowin{j'facts:8

Detective Adam'T,.Weber-1 a member ofthe Lancaster County Drug Ta.sk.Force,

prepar.ed tne,applicat((ln' and affidayit.qf probaple cause for the search warrantlssued

on October '1 o. 20.17.. N. T ., Si!Pp.ressionnat-9; see a/so
Commonwe�lth Ex_hlbi� 1., Affid�vitof Probable Cause at ,t 14. Upon eX,ecutlng a

search of the abandoned trash, the 'Detectives found, inter all�. onen�!ea·r plastic

sandwic� bag .confalning white· powcer residue, five :dear-plastic corner. Quf/torn

.sandwtch bag�. a p.alr of used rubber glov�s. two dryer sheets, and a place of a Gl�nt
�rocery store circular wlU') the address of. 541 North Plum -Street. Commonwealth
-Exhipit 1, Affidavit of Probable Cause at 1114.
Through a trackin9_ device, Detective W�ber:"was able to confirm that Appellant's

gray Honda Accord left his residence at apprpximc1tely 2:4.5 p.m., drove cHr.ectly to
Philadelphia, arrivin·9 at approximately 5:00 p.m. Co·mmonWealth Exhiblt.1 ,AftJqavlt of

Probable 'Cause, 1f rt The Vehicle stayed'in Philadelphic1 a couple hours and then
drove directly back to. Appellan't's neighborhood, arriving atHamilton Street at.

approximately 9:46 p.m.' 1.:1.; s�e also N.T.,;Suppression-.,at 1.0; see also Oefendant's

7AppeUant's·resigeoce at 541 North Plum .$treet'I� on the comer �fNorth Plum Str�et
and Hamilto_n Street
8

--------------- �-- ..

--------------------------
 Exhibit 1. At approximately 12:37 a.m. on the morning of October 10, 2017, Appellant's

vehicle became stationary in the 400 block of East Frederick Street, just around the

corner from his residence at 541 North Plum Street, and remained there all night until

approximately 6:57 a.m. Id.; see also N.T., Suppression at 20-21; see also Defendant's

Exhibit 1. On the morning of October 10, 2017, Appellant's vehicle took two short-term

trips to and from the area of the residence. N.T., Suppression at 11, 19; see a/so .
Defendant's Exhibit 1.

Detective Weber testified that during "several surveillances" he had only ever

seen Appellant driving his car. N.T., Suppression at 22. He explained: "I've watched

him at least on 10 different occasions for anywhere from a few seconds to, you know,

10 to 15 minutes at a time where I've seen him driving and no one else In the vehicle
i_
but him." Id. at 23.

Based upon these facts and others set forth In the affi�avit of probable cause,

Detective Weber believed Appellant purchased a large quantity of cocaine in

Philadelphia on October 9, 2017, and returned with It to 541 North Plum Street in

Lancaster City. Commonwealth Exhibit 1, Affidavit of Probable Cause at ,i 19. On

October 10, 2017, the tracking device revealed that Appellant's vehicle was making

short term trips from 541 North Plum Street and then Immediately returning to his

residence. Id.; see a/so N.T., Suppression Hearing at 11. Detective Weber viewed this

activity as consistent with the drug activity reported by his Cl as set forth In the affidavit

of probable cause. Commonwealth Exhibit 1, Affidavit of Probable Cause at ffll 3-9, 19.

Appellant argued at his suppression hearing and argues now on appealjh!t

t�ere was insufficient probable cause for the October 6, 2017, court order authorizing
9

________ _._.,...__.._ __
-
.!!lstallatlon of the mobil� tracking device on Appellant's V\hlcle. and fOLttte sea..r.gh
warrant Issued on October 10, 2017, for Appellant's residence and vehicle, and, further,

t�at there were material misstatements and omissions of facts that would Invalidate the

-
October 10, 2017, search warrant

A. Mobile Tracking Device

In Commonwealth v. Burgos, 64 A.3d 641 (Pa. Super. 2013), our Superior

Court held that "the attachment and monitoring of a GPS tracking device to [a target's}

car constitute[s) a 'search' under the Fourth Amendment." Id. at 652 (footnote omitted).

See also United States v. Jones, 565 U.S. 400, 404 (2012) ("We hold that the

Government's Installation of a GPS device on a target's vehicle, and Its use. of that

device to monitor the vehicle's movements, constitutes a 'search."'). Therefore, "In

order for the police to attach and monitor a GPS tracking device to an individual's

vehicle in Pennsylvania, the police must have probable cause." Burgos, supra at 652.

On October 6, 2017, Judge Knisely signed an order authorizing Detective Weber

to place a GPS mobile tracking device on Appellant's Honda Accord. In Issuing the

order, Judge Knisely made a finding of probable cause, which Is what is requlred by

Burgos, supra, and the Pennsylvania Wiretapping and Electronic Surveillance Control

Act. Section 5761 of the Act provides, in relevant part:

An order authorizing the use of one or more mobile tracking devices
may be Issued to an investigative or law enforcement officer by the
court of common pleas upon written application. Each application
shall be by written affidavit, signed and sworn to or affirmed before
the court of common pleas. The affidavit shall:

10
 (1) state-the. name and department) agen_cy or address of the
affiant; · ·
(2). identify the vehicles; containers or· it�.ms to-vihlct); in which'
oron.. whlch the· mobile tracking devi�e.shalrbe attaehed.or be
placed, �nd:the names of the owners or poasessorsotthe
vehicles, contalners.or items{ �.... · ·
;(3} state the jurisqlctibn � area 111 which the vehicles, containers
I
or it.ems are expected to be found; and
(4}:provide-a statementsetting fprth all facts and circumstances
Wbich provide the applicant'with prob�ble o�µse that criminal
·activity ha.s. been. :ls·orwill be in ptogress and that theuse of ·a
mobile tracking dev.Jce will yl�d information relevant to the
,nvestigation of the c.rir.ninal act_lvity.
tij Pa.C..S·.A. § 57p1{c) (emphasis added). The Court in Bu_rg:os;_ supra 1 concluded tniit

the wiretap orders which "servees the,functional·equival.ent of traditional-search

�rrant�L].:. are·statutortly prt,$_qrib�d.-drders,approved and·i�s1,1ed by tne·Judicfary,

.
whlch allQV., ari in.Y.�tigatlng. officer to. conduct a s�archvia>ihterception of�n individual

and his or her property and effects,. upon a -showing ofll)e requisi_te level of suspicion."
Bur.gos, 64 A.3d at 655.

Hera, the Drug
. . a eourt-authorlzed
Task Force ·.obtained ..· . order, pµr.si,Jant tQ

section.. 57.61, for attachin9.._the GPS tra.ckJn_g devlce to.Appejtant's vehicle. The--brder,:

of Court usedthe language, '1here ls probable ceuse.to .l;>elleve th.at criminal activity has

been, :js being, or.will bein p.rQgress-�nd tnat t,he,use· of a.mobile tracking·device
attached toor placed J'n or �ii a Vl:)hicle identified as a·2ort·gray.,n color Honda Accord.

s�dan- .. � will yie'ld inform�tion. re_levantto..-the investi_gation 9.f the cr\mlnal _-activity." S_ee

Suppression· Hearinij Commonwe?11th:Exhibit 2.:

Th� question posed bY Appellant's suppresslcn motion was-whether the wiretap
order was supported by pr9b.ab.le cause under section '5761; The BurgQs Co1.,1ri noted

11

--------------·--·----------------
 that 1he stan'datd for .determfning ·whe.ther: probable cause' exlstedfor-an .ord�r

�uthorizing a GPS tracking system isthe ·sah,� a� that used to determine probable

cause fot.search warrants. 64 A.3d at655, Probable-cause "does not require aprlma
facie. .showlnQ of crlrnlnal activity on the part of th�· occupants ..ofth.e premises to be

searched," Id. "(quoting-Commo.nweal.th·v .. G.utlerrez, 969 A.2d 584,.588 (P� .. Su.per�

2009.)), Rather, there need only be a "fair pro�aollity"·ihat contraband: or evid¢nce of ·a

cdme·win be found in a particular .Plac�. fo.$· explalned by·the ·superior Court)n Burgo,:

ihe question Qf wheth�r probable cause exists f0.r a wlr:etap
must b� adjudged by .jt,e ��tality .ot the: clrcumstartces.
Pursuant to the 't9�lity ottheclrcumstenoes' test set forth
by. the: United $tates Suprerne 'court, .. the task:of.[the trial
c9urt]'ls slri,ply to make a practical, common-sense declslon
wheth�r. given all of the clrcumstances set forth In the
affidavit .b�fore him, inclUding the. ·v�ra.clty' and. 'basls of
knowl�g�! of persone supplying hearsay lnformatlon, \hei:e
ts a fair probapillty that contraband'or evidence·.of a crime.
will be fo.und: in a partictdar place. Th4s,.the totality of the
circumstances testpermtts a balanced assessment of the ·
relc;rt.iveV{e.ights Cif all thevartous i'ridicia of ·.rellability.(and
unreliability) attending .an i'nfonnant's tlp[.J
:54 A.Gd at 65�>-(cltatiori omitted). Moreover, .the reviewing court must limit its:-rnqi)i_ry to
.the information i«lthi� ·the four corners oft�e:"affidavit for lnstallation and. use.ofa

m9bil� tracklqg devi�-�" to determine if there was probable- cause 'to suppo rt the officer's
. request for a. wir.etap order: See Pa.R. C.rirn. P: 20.3(8). ("the Issuing autnonty.. in

iietermining whether probable.ca1,.1se has been establi�h�d, maynot consider·any.

evldeince outslde ·of the affidavits.''.}.

Und�r th�· totality of the circumstances test, this court was ·satisfied. that the

.informatio.n provic;ied in the affidavit rose to.the necessary I eve.I of° pro6abll';) cause.

12

� "-·········--............ __
·------------------
,.

.
"Probable cause is not certitude, nor even.preponderance;. r�ther, ifls merely· ;si·

sufficiently substantive probability to justify the l�tru$ion involved." Commonwealth v,

D�>ria, 574 A.2d 653, 657(Pa. Super. 1990) (concurrence). See also Ccm:1monwealth

v •.GI.ass, 562 Pa. 187, 201, 754 A;2d 6.5!$, 663 (2000) rProbable cause is a 'practical,

nontechnical conception: it 'is a fluid concept-. turning on the assessment of
probabilities In particular factual .contexts not r�adily, or even··usefully, reduced to a neat
set.ot legal rules;'") (quoting Ulinois v. Gate.s, 462 U.S.213; 231..:32 (1.983)).

Here, Detective Weber submitted the affidavit in support of .the application for an

order authori�ing the insta.lla.tion and use of a mQbile tracking devic.e on Appellant's.
vehicle. He averred that during th.e month, of September 2017, he spoke with a .rellable .

Cl. (C;I #1) who related that he/she had persc:mal knowledg� of a mannamed "Biz''

selling large quantities of cocaine from a gray �017. Honda Accord sedan in Lancaster.
This Cl had purchased cocaine from "J3iz'i from the Honda as recently i:lS $eptember

2017: See Suppression Hearing Commonwe�lth Exhibit 2 at,r 4.

Dete�tive Weber knew Appellant used the-alias "aiz," and further that he fit the

Cl's descrfptlon otthe dealer•. A search of the J.:.Net d.atab.ase produced a photograph

of Appellant! whi.ch Cl #1 positively identified as .�Bit;�- See Suppression Hearing
Commonwealth Exhibit 2 atfflT 5-6. The J-Net database prQVided an address of 541

North PlumStreet, Lancaster, for Appeilant. Id. at115;. During tnemonttr of September

2017, Detective·Weber observed a graY2017 .Honda Accord sedan parked in the area
Qf 541 North Pl.um Street. This vehicle matched Cl #1 s description of Appellant's
1

vehicle. Id. at ,i 1: A cheek of the regJ.stratlon for the lfoense plate on the Honda

13
 Accord showed that the vehicle was regis.tered to Appellant:at541 North Plum Street

Id. at,J a.
During the month of September2017, Detective Weber �poke to. a second
reliable Cl(CI #2) who rela.ted that he/she also had personal knowiedge of Appellant

selling large quantities.of cocalne from his Hondei Accord in Lancaster; and that

Appellan1 lived afan unknown address in the 500 block of North Plum Street .See
9uppression Hearing commonwealth Exhibit 2 at en 9_:. This Cl further state.d that, bajsed

upon conversations With Appellant, he.-�newAppeliantwas. �rivin9. his vehicle to

Philadelp?la to pick up large q�antlties of ceealne and bringing it back to Lancaster to
sell.· Id. This second Cl was .able to positively identify Appellant from th.e J·Net

photograph! Id. at 1J 10.
betectiv� Weber.c.onducted surveillance of Appellant during .Sep1ember and

oeteoer of 2017. _Appellant was observed on at least two occaslons exiti�g ,his

residence at 541' North Plum Street and getting into Ns Honda Accord and driving to

various locations Jr _Lancast�r, meeting with unknown subjects for a short period of

time, and then returning to his r�sidence; S�e Supprest;i�ri Hearing commonwealth
Exhib.
.
it 2 at
. .
•,r 1-1.. Detective Weber viewed these short-term meetings as consistent w.ith
drug.. trafficking. Id; Acrimlnafhistory check of Appellant in October of 2017 revealed
..

that Appellant had pleaded· guilty.to felony-violation� of the Drug Act on September 1.6,

2013. ld. al 'IT 12.
This collected ilifprmatii::m was a nalyied by Detective Weber, who .had 14 years

experienc.e in .the investigation of cnrnes and seizure of evidence Within Pennsylvania

and who has received extensive field training. and attel)ded formal classes and has

14

-
. . ............... ,._, . _
experience In- controiled substance idei,Hffoatlon, fleld-:testing·., packaging,
. . pti,clng
and
'

paraphernatla, ·through patrctlnterotctlons, infervle.ws and surveillances. As of.2017,

Detective·Weber.tiad been involved in ov&r 1700 inves_tiga1ions-.involviog violations o_f

the Dru� Act; as :eithe.rth�-pro:�ecut�r. a Witness, an undercover officer, or. in a

survelllance capaclty.. He·also:-had experience in- d�br.i�fing
. . , witnesses,
-defenoants: . .

informants ar.1.d other per�ons. i,y.ho have knowledge and experience
.
using,. amassing,
spending, convertinq. transp0.rt!ng, d_lstributir,g and cohcealihg controlled substanoee,

1.n iight of this train.ing, experience and.experfise, Oetective.·Weber averred.that

there was probable cause. tobellevethat Appellartw.as involved in the disttibatfo:n of

cocalne
•• '
in Lancaaterand.ttrat h'e used his Honda-Accord to facilitate-that distribution.-
'' ,, • • • • • <, • '

Detective -W�ber, therefore, �q_uest�d a rnoblle trackir'.19. 'devic�Jor App_eUant's vehlcle,

and'Ju�ge Knisely authorized it:

After �vevi�w
. . . . affidavit's,.four
of the . corners,·- this cou�:d�termined; based on.a

totality of th.e -clrcurtistc1n�s.
.
t'1.ii!UtJere: Wa�
. probable causeto believe that Appellant
: . . . . .

was. distributing cocaine and to supp_ort Det�ctiveWeb�rs'request
.' . fqr�
.
mobile
.
tracking

device, This court found. Cl #1 · to be a �ii:al:>le source, _,and the information provided: by
him regarding'. his. purchaae of cocalne from Appellant to be· reliable and not too remote
lr:rJirne·.to·negate ptobablecauae. J_j�{;jwlse, .Cf"ll2·wa� d.eterrnined to J:>e ,reliable anp

hls information neither stale nor nonspecifl� for purposea of evaluating_ probable cause.

Judge knl�ly had .a substantial basis to find probable' cauee existed. tobelieve ·

Aµpellant's vehicle w.�s involved in crlmlnal activity or that the vehicle being tracked.
'fv'O'Ulct yield information relevant to a <;lrl!g 'lrivestiQation. Acc.ord.ingly� Appellant's motion

to supp_ressall evidence obtained by themobil_e trac�ing device was properly denied.

15
 B. Search Warrant for Vehicle and Residence

On October 10, 2017, a search warrant for Appellant's vehicle and residence
was signed and Issued by Magisterial District Judge Janice Jimenez. The affidavit of

probable cause In support of the search warrant re-stated all of the Information

contained in the affidavit offered In su ort of the a llcation fort e installation of the
��eluding
mobile tracking device the information regarding the conflderltial informants,

the surveillances of Appellant and his home, his criminal history, and confirmation of the
experience)
vehicle registration, as well as Detective Weber's training and See

Suppression Hearing Commonwealth Exhibit 1 at ffll 1, 3-9, 11-12. The affiant,

Detective Weber, however added two additional pieces of Information for the search

warrant.

First, Detective Weber provided details regarding a trash pull outside Appellant's

residence. See Suppression Hearing Commonwealth Exhibit 1 at ,r 14. Discovered in

one of the abandoned trash bags was a clear plastic sandwich bag containing white

powder residue. Id. Detective Weber performed a field test on a portion of the powder

residue from the bag and a positive result was obtained for the presence of cocaine. Id.

at ,r 15. In addition to the sandwich bag, Detective Weber seized five clear plastic

corner cut/tom sandwich bags, a pair of used rubber gloves, and two dryer sheets. Id.

at 14. Based on his training and experience, Detective Weber averred that dealers

often put a quantity of cocaine In the corner of a plastic bag, then twist or cut or tear the

corner off of the bag and then tie the open end to package the drug for sale. Moreover,

in his experience, rubber gloves are commonly worn while handling, cutting, cooking

16
 powder cocaine intq- crack cocaine; and p::.1ckag,ing narcotics. Finally, Detective Weber

stared· that.-cfryet sheets are commonly used to mask-theseentof drugs· so··thatJ�w
enfqro�r.nent officers anc;i their K-9s ca�.not detect the acent of drug.s. ·,d. at ,t 16.

Th, second significant piece .of li"iformatl'6n added to the affidav.it for the. search

warrant'
. .
was that Defective Weber
.
had installed a ·rnobile tracking device
. on Appellari,t'. .s

vehicle purs9a.nt to.a court-authotfzed order. See Suppression He.ar'ing Cwnrnqnwea!th
Exti'ibit t at,i 13. This device pr.ovideq Information that Appellant's vehicle had made a
round.trlp to Ptiiladeiphia on October·e,:20171 petweeh the hours of 2:45p.m. and 9:46 _.

p.m. 1:d.·at-,t 11,

The affidavit also listed practices that, based on Detective W.e.b�r·s e�perienQe;
were common fo lndi\'ldu�l$ invcilved in drug ·traffickinQ.· See Suppression Hearlng
.C·o·mmonwealth
. '
�xhit,it:1 at-,J 2_. Such .·p'r'��tices·
;,, .
·inc!uded that
.
dealers wm "make trip�
. to

large cities, such as Philadelphia, to buy their product because they are able. to·
purchase at a lowerprice and can make a iarger profit selling it in smaller citie·s." :··1d'.: at
,I. fl; Moreover, Q'e.tecJt�. We�e.r ;,9te.d·t�t'drug·traffickers "commonly keep q�ntitle�.

o'f. drugs and ,paraphernalia In their vehicles when utili:ifng their vehicles to. transport.
drugs and whe.ii using their vehtcles durfng drug·.sale�'.'·.�nd hide the �n,J'gs and
contraband In "traps" or hidden compartments in the venrcie, Id. af,J 1 a.

Based upon the totality o:f these {�cts and chtumstances, the magisterial district
judge granted the searchwarrant. App�llant claimed at the suppression hearinq, and.

claims. nowen appeal, 'that there was insufficient· probable.cause ler.�hi� warrant arid,

further, thattbers were material rnlsatetementeane ornlselcnaoffacta that would

irtvalidate.the October to·, 2017, search warrant,
.17.

---"""-··---·-�·----------------------------
 Af, ·note;d above; "search werrants may only·issue upon probable cause and '�JhE!

is�urng authority, in determining whether propa�le: cause- has been establisheo, ma_y not. .

coi"lslder.anY, evidence outside the .affidavits.'" Com.monwealth v, Green, 204..A.3d

46� .. -4a·2 (Pa: $uper. 201 �) (quoting �om!Jlonwealth v. Leed,.- Pa.·-, 1 ee _A3q 405,
41 � (2018) (cfuotin.·fl_. P,tR.Crim."P. 203(8}). "Prob�b!e cause exists where the facts and

·circul'T)_stan�s within th�_affia�r�.krwwledge and of which he has. reason�b1¥
trustworthy information �resuffi.cient ln themselves to warrant a man of-reasonable

cautior:i .. in the belief that a-search should be conducted," Id·: (quoting Leed, supra),

Here, .th� affidavit ofprobabl�. cause indlcateci' Appellant; a: eonvicted drug

offend�r. was :selling� from hfs Honda Accord, large quantities 'of'cocalne, -which he

boµghtin Pnitadelphia ·ari°d transportec.bacxto tancastet fr11:Jis vehicle-. Surveillan¢.e of
Appefiant's vehicle confirmed- �hat.Appellant was.me only person-known to qriVe the

Honda · Accord-,: r�istered to Appellant. A mobile tracking device. on AppellaJ:tt's. vehicle
conflrmeo a. short rourrd trip to Philadelphia on OclQb�r 91 2017 ,White a trash pull on
the same date yieldes:J evldence of cccame In !:'1 ·Sandwi�h baggie, .alon$ 'liith other

known drug paraphernalla .. These facts presented by Detecflve Weber· in the,affidavit

of probable cause created the:proba.bility (hat evJdenct3 otAppellant's drug d_ealing:

wouldbe found In A_ppel.l�n�is home ahd vehicle. Because g_real deference Is due the·

is.�u)ng magistrate, the search warrant was-supported by sufficient probable cause,

Therefore,.AppeUa.nt's Fourth Amendmen't rights. were not Violated.

18
 Ill, Conclusio.n

For the reasons
. . set forth above, ft ls respectfµlly requ�sted
. that Milik
. Emil

Pinnock's appeal from hls Judgment ofsentenceimposed on May 3., 20.19, be

dismissed.

Accordingly, I enter the following:

-r.

19
 1� THE COURT OF QOMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

V; No. 6227 � 2017

.MILIKEMIL PINNOCK

ORD.ER

AND NOW,.. thi� 28111 day of June, 2019, .the Court submits this Opinion pursuant

to ijule t925(�) ofthe Pennsylvania Rules of Appellate Procedure.

L.ASHWORTH
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