Com. v. Camacho, J.

• Court: Superior Court of Pennsylvania
• Decided: November 18, 2022
• Docket: 100 MDA 2022
• Status: Unpublished

Opinion

J-S23043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JONATHAN ANTONIO CAMACHO : No. 100 MDA 2022

Appeal from the Order Entered December 15, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003420-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : SHARAYA NICOLE JONES : No. 101 MDA 2022

Appeal from the Order Entered December 15, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003911-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 18, 2022

In this consolidated case, the Commonwealth appeals from the orders

that granted the suppression motions of both Jonathan Antonio Camacho and

Sharaya Nicole Jones. On appeal, the Commonwealth chiefly contends that

the lower court erred in granting the appellees’ suppression motions because

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 Retired Senior Judge assigned to the Superior Court. J-S23043-22

the affidavit of probable cause utilized in obtaining the search warrant

contained legally sufficient personal observations of contraband. Specifically,

the affidavit incorporated information from a police officer who, based on his

training and experience, saw Camacho possess and smoke marijuana and then

go into the residence that was the subject of the search warrant. We reverse

the at-issue orders and remand for further proceedings.

Following the execution of the search warrant at 520 South Queen

Street in York, Pennsylvania, Camacho was charged with possession with

intent to deliver cocaine, possession of a small amount of marijuana, and

conspiracy to commit possession with intent to deliver cocaine. 1 Similarly,

Jones’s charges included possession with intent to deliver cocaine and

conspiracy to commit possession with intent to deliver cocaine.2

After both appellees filed their suppression motions, contending that the

affidavit supporting the search warrant lacked probable cause, the court held

a suppression hearing. Ultimately, the court granted both motions to suppress

because, in conducting an inquiry limited to the four-corners of the affidavit

of probable cause, it determined, inter alia, there to be no sufficient nexus

between the allegations asserted in the affidavit and the residence that was

thereafter searched. See Order, dated 12/15/21.

The affiant’s name is Detective Vincent Monte, who, according to the ____________________________________________

1See 35 P.S. § 780-113(a)(30); 35 P.S. 780-113(a)(31), and 18 Pa.C.S.A. § 903(a)(1), respectively.

2 See 35 P.S. § 780-113(a)(30); and 18 Pa.C.S.A. § 903(a)(1), respectively.

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affidavit, had been employed by the York City Police Department for ten years,

performing hundreds of drug investigations in that span of time. The affidavit

of probable cause states:

Within the last month this officer received neighborhood complaints of a light skinned heavy set [male] suspected of selling drugs from 520 South Queen Street in York City. The complaints referenced various people meeting the male after he exited 520 South Queen Street. The male suspect would do a hand-to-hand transaction with the people he met then he would return to 520 South Queen Street. The male suspect was observed holding/count[ing] money after doing a hand-to-hand with the people that approached him.

From surveillance on 520 South Queen Street over the last month I identified the male subject as Jonathan Camacho . . . . Camacho is known to me through multiple prior felony and misdemeanor drug investigations. Camacho is currently on York County Probation for a drug violation.

I also discovered through Pennsylvania JNET that Sharaya Jones … has a listed address of 520 South Queen Street in York City. I know from prior investigations involving Camacho that Jones and Camacho are in a relationship together and have children together.

While I conducted surveillance on 520 South Queen Street, and within the last 72 hours, I observed Camacho exit the rear of the residence and have in his possession a clear plastic sandwich bag containing a green leafy substance that I know based on my training and experience to be marijuana ([S]chedule I). Pennsylvania Medical Marijuana (MMJ) has rules for the original packaging of medical marijuana to include that it must be kept in the original package in which it is dispensed. The bag I observed in Camacho’s possession did not have any labels/markings on it to indicate that it was medical marijuana.

I watched Camacho take marijuana from the clear plastic bag and roll it into a cigar wrapper. Camacho placed the clear bag that still contained marijuana into his pocket, and then began to smoke the marijuana cigar. Medical [m]arijuana is not permitted to be

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smoked/consumed in cigar/cigarette form in Pennsylvania. After lighting and smoking the marijuana cigar Camacho went back inside 520 South Queen Street with the bag of marijuana still in his pocket.

Camacho was convicted/plead[ed] guilty to felony drug offenses in York County in 2011, 2018, and 2019 all for crack cocaine ([S]chedule II).

Based on the information above I respectively request a search warrant be issued for 520 South Queen Street York City Pennsylvania to search for additional quantities of illegal marijuana and illegal narcotics as well as materials and items used to package, sell and possess illegal narcotics, such as plastic bags and scales; records or other documentation of past narcotics transactions, and cell phones utilized to facilitate narcotics transactions. I am also requesting that all persons present during the service of the warrant be searched. I am requesting all persons to be searched based on this officer’s ten years of experience that narcotics can be easily concealed on a person and later destroyed.

Affidavit of Probable Cause, dated 6/27/21.

The text of the search warrant identified that it primarily sought seizure

of marijuana “along with any other drugs or paraphernalia, packaging

materials, scales, business records, official funds, firearms, ammunition,

identification and other documentary and physical items relating to the

possession, distribution and sale of narcotic and dangerous drugs.” Application

for Search Warrant and Authorization, dated 6/27/21.

In reaching its conclusion that suppression was warranted, the lower

court found that

[b]ased on the totality of the circumstances, there were not enough facts to support probable cause to search the Queen Street house. There was no police corroboration of the neighborhood complaints regarding confirmation of identify or

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hand-to-hand transactions by [Camacho] The [a]ffidavit did not contain any information regarding length of stay by [Camacho] at the Queen Street house. The amount of marijuana, only seen stored on [Camacho’s] person, was not enough to show more would be present within the Queen Street house. Therefore, [the lower] court granted [appellees’ motions], finding there was not probable cause within the four concerns of the [a]ffidavit for the search and seizure inside the Queen Street house.

Suppression Court Opinion, dated 3/25/22, at 8-9 (citations omitted).

Correspondingly, the Commonwealth filed a timely notice of appeal,

inclusive of a certification pursuant to Pennsylvania Rule of Appellate

Procedure 311(d) stating that the lower court’s determination would terminate

or substantially handicap the prosecution of the appellees. Thereafter, the

relevant parties complied with their obligations under Pennsylvania Rule of

Appellate Procedure 1925. As such, this matter is ripe for review.

On appeal, the Commonwealth asks:

1. Did the suppression court err in finding that the application for a search warrant lacked probable cause within its four corners where the officer directly observed Camacho visibly enter into the location to be searched while in possession of marijuana and marijuana paraphernalia, and, in addition to the officer’s own observations, the officer had received numerous reports of Camacho engaging in hand-to-hand transactions outside the residence to be searched?

Commonwealth’s Brief, at 4.

As this is a Commonwealth appeal from a suppression order, we apply

the corresponding standard of review:

[We] consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. As long as there is some evidence to support them, we are bound by the

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suppression court's findings of fact. Most importantly, we are not at liberty to reject a finding of fact which is based on credibility.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa. Super. 2011)

(citation omitted) (bracket in original). However, the lower court’s conclusions

of law are not binding on this Court, as it is this Court’s duty to ascertain

whether the lower court correctly applied the law to the facts. See

Commonwealth v. Keller, 823 A.2d 1004, 1008 (Pa. Super. 2003) (citation

omitted). While our review is limited to the evidentiary record that was created

at the suppression hearing, see In re L.J., 79 A.3d 1073, 1087 (Pa. 2013), it

does not appear that anything evidentiary other than the affidavit of probable

cause and search warrant were provided to the suppression court in the

present matter.

The burden is on the affiant to demonstrate that the warrant’s execution

will likely lead to the recovery of contraband or evidence of a crime. See

Commonwealth v. Janda, 14 A.3d 147, 157 (Pa. Super. 2011) (citation

omitted). Relatedly, in making its probable cause determination for the

issuance of a warrant, a magistrate may not consider any evidence outside

the four-corners of the affidavit. See Commonwealth v. Sharp, 683 A.2d

1219, 1223 (Pa. Super. 1996) (citations omitted). As to what constitutes

probable cause:

The legal principles applicable to a review of the sufficiency of probable cause affidavits are well settled. Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search.

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The standard for evaluating a search warrant is a ‘totality of the circumstances' test as set forth in Illinois v. Gates, 462 U.S. 213, … (1983), and adopted in Commonwealth v. Gray, 503 A.2d 921 ([Pa.] 1985). A magistrate is to make a ‘practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' The information offered to establish probable cause must be viewed in a common sense, non-technical manner. Probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and deference is to be accorded a magistrate's finding of probable cause.

Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa. Super. 2003)

(citation and internal parallel citations omitted). “The duty of a court reviewing

[a magistrate’s decision] is to ensure that the magistrate had a substantial

basis for concluding that probable cause existed.” Commonwealth v.

Gindlesperger, 706 A.2d 1216, 1219 (Pa. Super. 1997); see also

Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018) (requiring deference

from reviewing courts when analyzing a magistrate’s probable cause

determination).

Here, the Commonwealth concedes that “the seemingly anonymous

reports of drug sales out of the residence [described in the affidavit] would

not have provided the requisite probable cause by themselves[.]”

Commonwealth’s Brief, at 12-13. Despite that concession, “Detective Monte

saw … Camacho exit the residence, roll and smoke a marijuana cigar, return

a portion of marijuana still in the bag to his pocket, and reenter the residence.”

Id., at 11; see also 35 P.S. § 10231.304(b)(1) (establishing that it is unlawful

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to smoke medical marijuana); Commonwealth v. Barr, 266 A.3d 25, 41 (Pa.

2021) (stating that the Controlled Substance, Drug, Device and Cosmetic Act,

see 35 P.S. §§ 780-101-133, “still renders possession of marijuana illegal for

those not qualified under the [Medical Marijuana Act, see 35 P.S. §§

10231.101-10231.2110]”).

When distilled down, the question before this Court is whether an

affiant’s personal observation of a specific illicit act, i.e., the unlawful

possession and attendant consumption of marijuana, can provide probable

cause in support of a search warrant, when juxtaposed against these particular

facts. As noted, supra, the Detective described Camacho’s movements as

having exited the at-issue residence and then, after smoking marijuana in

short proximity, returning to the inside of the same residence with some

amount of contraband still on him. Moreover, this observation occurred within

seventy-two hours of when the search warrant was sought.

We agree with the premise that “[p]robable cause to believe that a man

has committed a crime on the street does not necessarily give rise to probable

cause to search his home.” Commonwealth v. Kline, 335 A.2d 361, 364 (Pa.

Super. 1975) (emphasis added). In addition, the affidavit of probable cause

must establish a “substantial nexus” between the criminal activity or

contraband sought and the place to be searched. Id.

However, as evidenced by the text of the affidavit of probable cause,

Detective Monte, through knowledge obtained in his prior investigations,

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asserted that Camacho had more than a fleeting or temporary connection with

the 520 South Queen Street property. Specifically, the Detective wrote that

Camacho and Jones, the individual whose name was attributable to the

property, were in a relationship together and had children together, implying,

at a minimum, continual contacts with the location.

The lower court, in its opinion, emphasizes that after the execution of

the search warrant, Camacho was only found possessing a small amount of

marijuana. See Suppression Court Opinion, dated 3/25/22, at 8. It then states

that the marijuana was always on Camacho’s person and “is never attributed

to the house.” Id. (citation to suppression hearing omitted). The court

concludes: “[b]ecause the small amount of marijuana was in [Camacho’s]

pocket, the belief more would be in the place to be searched, the Queen Street

house, is not reasonable.” Id. (citation omitted). Stated differently, “[t]he

amount of marijuana, only seen stored on [Camacho’s] person, was not

enough to show more would be present within the Queen Street house.” Id.,

at 9.

We disagree with the lower court’s analysis of the reasonability

underpinning the magistrate’s probable cause determination. “The totality of

the circumstances test is satisfied where the police officers have a reasonable

belief that the items to be seized are related to criminal conduct and that those

items are presently located in the place to be searched.” Commonwealth v.

Waltson, 724 A..2d 289, 292 (Pa. 1998) (citation omitted). Furthermore, in

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defining what can be searched, “the scope of a search warrant is limited by

the items to be seized and where they may be found and not to a particular

location within those premises.” Id. (citation omitted).

Here, Detective Monte saw Camacho exit the South Queen Street

residence, noted that he possessed and consumed a leafy green substance

known to the Detective as marijuana that, in its observed form, is illegal, and

then watched Camacho proceed back into the same residence with the

contraband. Based on these events, it was reasonable for the Detective to

believe that, at a minimum, marijuana and related materials would be found

inside of the South Queen Street property given the high likelihood that the

marijuana baggie would not remain in Camacho’s pocket in perpetuity. In

other words, because the Detective emphasized Camacho’s connection to the

South Queen Street location and sought the search warrant within seventy-

two hours of observing him smoking the marijuana, it was reasonable to think

that, based on the unbroken chain of Camacho reentering the house with

contraband on him, some amount of marijuana would be found there.

While the lower court correctly states that the unverified and

unsubstantiated community complaints against the South Queen Street house

that were described in the affidavit of probable cause would not have been

sufficient, Detective Monte’s personal observation of criminal activity in the

form of Camacho possessing an illegal substance, when considered in tandem

with his movements directly back into the residence, meant that there was a

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nexus between the illegal activity witnessed outside and the place that was

requested to be searched as well as a corresponding high probability criminal

activity, in the form of contraband, would be discovered via the execution of

that search warrant. Governed by our standard of review, which requires both

deference towards the magistrate as well as consideration of the affidavit of

probable cause in a common sense and nontechnical manner, the magistrate’s

finding of probable cause was supported by the affidavit’s contents, and it was

not in error for the search warrant to be issued.

Accordingly, we determine that the lower court erred in granting the

appellees’ motions to suppress. As such, the orders of the lower court that

suppressed the evidence uncovered from the search are reversed, and the

matter is remanded for further proceedings.

Orders reversed. Cases remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/18/2022

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