J-A10019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : WILFREDO CORDERO : No. 2674 EDA 2017
Appeal from the Order July 18, 2017 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000533-2017
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 26, 2018
The Commonwealth appeals from the order granting Wilfredo Cordero’s
motion to suppress. We conclude that the trial court did not err in concluding
that the search warrant was unconstitutionally overbroad and in granting the
motion to suppress. We affirm.
Cordero was charged with possession with intent to deliver a controlled
substance (“PWID”), possession of a controlled substance, and possession of
drug paraphernalia. 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-
11(a)(32).
Cordero’s arrest occurred following the execution of a search warrant
for his residence. The Application for Search Warrant was based on an Affidavit
of Probable Cause signed by John Leonard, a police officer with the Vice and
Intelligence Unit of the City of Allentown Police Department. Aff. of Probable
Cause at ¶ 1. The Affidavit detailed the affiant’s experience, including that he
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A10019-18
had been a police officer since 2012 and with the Vice and Intelligence Unit
since January 2016, and that he had participated in “more than 75 search and
seizure warrants,” “participated in the arrests of numerous individuals” for
drug violations, and “interviewed numerous drug users and drug distributors.”
Id. at ¶ 2. The affiant stated that, based on his experience, “large scale
dealers” or “narcotic traffickers”: (1) “maintain books, receipts, notes,
ledgers, relating to the purchase of financial instruments and/or the transfer
of funds, and other papers relating to the transportation, ordering, sale, and
distribution of Controlled Substances”; (2) “secret contraband, proceeds of
narcotics sales, and records of drug transactions in secure locations within
their residences of relatives [sic] and associates, safe deposit boxes, and/or
other locations (including buried on the grounds thereof)”; (3) “build ‘stash’
places within their residences”; (4) “maintain evidence pertaining to their
obtaining, secreting, transfer, concealment and/or expenditure of drug
proceeds; such as: currency, financial instruments, precious metals, and
gemstones, jewelry, books, records, invoices, receipts, records of real estate
transactions, bank statements and related records, passbooks, money drafts,
letters of credit, money orders, bank drafts[,] cashier’s checks, bank checks,
safe deposit box keys, and money wrappers”; (5) “maintain addresses or
telephone numbers in books or papers which may reflect names, addresses,
and/or telephone numbers of their associates in the trafficking organization,
and/or individuals involved in their money laundering activities”; (6) “take or
cause to be taken photographs of themselves, their associates, their property,
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and their product using still photographs, digital photographs, video cameras,
and/or camera phones”; (7) “have in their possession[,] that is on their
person, at their residence and/or their businesses, firearms”; and (8) “utilized
cellular telephones to make telephone calls to and receive calls from
customers and sources of supply and associates.” Id. at ¶ 3.
The affiant then detailed three occasions where a confidential informant
texted “Will” at a specified phone number, entered the rear door of Apartment
1 at 950 West Liberty Street, and returned with a “white in color rock-like
substance,” which tested positive for cocaine. Id. at ¶¶ 6-9. The affiant further
stated that he conducted surveillance of 950 West Liberty Street at diverse
times in the month preceding the application. Id. at ¶ 10. He observed people
“entering the building,” but “only stay[ing] for brief moments” and observed
from the sidewalk, numerous “glass pipes commonly used to smoke crack[]
littered around [the] curtilage” of the location. Id. ¶
The search warrant then listed the following items to be seized:
1. Computers and their contents, books, records, receipts, notes, ledgers, and other papers relating to the transportation, ordering, purchase and distribution of controlled substances, as mentioned in the probable cause affidavit.
2. Papers, tickets, notes, receipts, and other items relating to domestic and international travel.
3. Books records, invoices, receipts, records of real estate transactions, bank statements and related records, money draft, letters of credit, money orders, bank drafts, and cashier’s checks, bank checks, safe deposit box keys, money wrappers, and other items evidencing the obtaining, secreting, transfer, and/or concealment of assets and the
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obtaining, secreting, transfer, concealment and/or expenditure of money.
4. Electronic equipment, such as facsimile machines, currency counting machines, telephone answering machines, and related manuals used to generate, transfer, count, record and/or store the information described in items 1, 2, 3, and 5 of this appendix.
5. United States Currency, precious metals, jewelry, and financial instruments, including stocks, bonds, money orders and traveler’s checks.
6. Photographs, including still photographs, negatives, video tapes, films, undeveloped film, slides, digital media, digital media storage devices, in particular photographs of co- conspirators, of assets and/or controlled substances.
7. Address and/or telephone books, any papers reflecting names, address, telephone numbers, pager numbers, fax numbers and/or telex numbers of co-conspirators, source of supply, customers, financial institution, and other individuals or businesses with whom a financial relationship exists.
8. Indicia of occupancy, residency, and/or ownership of said premises, described in the probable cause affidavit, including but not limited to: Utility bills, telephone bills, rent receipts, rental agreements, cancelled envelopes, sent via U.S. Postal Service, clothing and keys to door locks of said premises.
9. Weapons, including but not limited to handguns, shotguns, rifles, and automatic weapons, including any and all stolen handguns, shotguns, rifles, and automatic weapons and ammunition.
10. Cellular telephones and their contents, including but not limited to SMS and other text messaging, contacts, stored photographs and/or videos, stored incoming and outgoing call information.
11. Documents pertaining to ownership and/or control of other locations by the way of leases, keys, utility bills, and other documents.
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12. Controlled substances and paraphernalia for the use or distribution of controlled substances.
13. All persons present at 950 West Liberty Street, Apartment #1, Allentown Pa 18102.
Application for Search Warrant, Appendix A (emphasis omitted).
On April 24, 2017, Cordero filed an Omnibus Pre-trial Motion, which
included a motion to suppress the evidence discovered during the search of
his residence. He argued the search warrant was overbroad and contained an
unreasonable discrepancy between the descriptions of items to be searched
for and seized and the allegations in the affidavit of probable cause. Omnibus
Pretrial Mot., filed Apr. 24, 2017, at ¶ 14.
On June 14, 2017, the trial court held a hearing on the motion and
permitted Cordero to file a letter brief in support of the suppression issue. On
July 18, 2017, it granted the motion to suppress evidence obtained as a result
of the execution of the search warrant. The court found the Application for
Search Warrant was overbroad and “not tailored to fit the facts of the within
matter,” and therefore the police officers obtained the evidence in violation of
Article 1, Section 8 of the Pennsylvania Constitution. Trial Court Opinion, filed
July 10, 2017, at 6. The Commonwealth filed a timely notice of appeal, which
included a certification that the order “will terminate or substantially handicap
the prosecution.” Notice of Appeal, filed Aug. 16, 2017; Pa.R.A.P. 311(d).
The Commonwealth raises the following issues on appeal:
1. Did the lower court err when it deemed the search warrant overbroad and invalid thereby suppressing physical evidence properly seized?
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2. In any event, are the purported overbroad portions of the search warrant severable?
Commonwealth’s Br. at 4 (suggested answers omitted).
First, the Commonwealth argues that the trial court erred in granting
the motion to suppress. It claims the court overlooked portions of the warrant,
including the affiant’s training and experience and his observations. It further
notes that there is only one crime for drug dealing, PWID, and it does not
have different degrees based on the number of exchanges or type of controlled
substance. It further argues that whether the defendant is involved in a large
or small drug operation is irrelevant. The Commonwealth concludes that,
based on the totality of the circumstances—the affiant’s training and
experience, his personal observations, and the information from the
confidential informant—the list of potential items was reasonable and the
warrant was not overbroad.
“Our standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal conclusions
drawn from those facts are correct.” Commonwealth v. Jones, 988 A.2d
649, 654 (Pa. 2010). “Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, ‘whose duty it is to
determine if the suppression court properly applied the law to the facts.’” Id.
(quoting Commonwealth v. Mistler, 912 A.2d 1265, 1269 (Pa. 2006)).
The Pennsylvania Supreme Court has further explained that:
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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.
Id. at 655 (quoting Commonwealth v. Torres, 764 A.2d 532, 537–38, 540
(Pa. 2001)) (alterations in original).
Article I, Section 8 of the Pennsylvania Constitution provides, in
pertinent part: “[N]o warrant to search any place or to seize any person or
things shall issue without describing them as nearly as may be, nor without
probable cause . . . .” Pa. Const. Art. I § 8. This Court has explained that “a
warrant must name or describe with particularity the property to be seized
and the person or place to be searched.” Commonwealth v. Orie, 88 A.3d
983, 1002 (Pa.Super. 2014) (quoting Commonwealth v. Rivera, 816 A.2d
282, 290 (Pa.Super. 2003)). “The particularity requirement prohibits a
warrant that is not particular enough and a warrant that is overbroad,” which
are separate, but related, issues. Id. (quoting Rivera, 816 A.2d at 290). A
warrant is unconstitutional due to a lack of particularity where it “authorizes
a search in terms so ambiguous as to allow the executing officers to pick and
choose among an individual’s possessions to find which items to seize.” Id.
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(quoting Rivera, 816 A.2d at 290). A warrant is unconstitutional as overbroad
where it “authorizes in clear or specific terms the seizure of an entire set of
items, or documents, many of which will prove unrelated to the crime under
investigation.” Id. at 1002-03 (quoting Rivera, 816 A.2d at 290). “An
overbroad warrant is unconstitutional because it authorizes a general search
and seizure.” Id. at 1003 (quoting Rivera, 816 A.2d at 290).
In assessing the description’s validity, “a court must initially determine
for what items probable cause existed.” Id. (quoting Rivera, 816 A.2d at
291). The court must then measure “[t]he sufficiency of the description . . .
against those items for which there was probable cause.” Id. “Any
unreasonable discrepancy between the items for which there was probable
cause and the description in the warrant requires suppression. An
unreasonable discrepancy reveals that the description was not as specific as
was reasonably possible.” Id.1
In Commonwealth v. Grossman, the Pennsylvania Supreme Court
concluded that a search warrant was unconstitutionally overbroad where it
allowed a search for and seizure of “[a]ll insurance files, payment records,
receipt records, copies of insurance applications and polices, [and] cancelled
checks.” 555 A.2d 896, 897, 900 (Pa. 1989) (some alterations in original).
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1 Pennsylvania’s requirement that the warrant describe the items to be seized “as nearly as may be” is “more stringent” than the Fourth Amendment’s requirement of particularity in the description, Orie, 88 A.3d at 1003, and it requires that the warrant “describe the items as specifically as is reasonably possible.” Id. (quoting Rivera, 816 A.2d at 290).
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The affidavit in support of the warrant application, included facts regarding
irregularities in three client files and then concluded “there [was] sufficient
probable cause to believe [the defendant] . . . fraudulently executed various
documents in connection with an ongoing scheme to defraud insurance
applicants.” Id. at 900 (some alterations in original). The Court noted that
“[a]lthough . . . the police may have had suspected that other clients were
being defrauded, the affidavit that was placed before the issuing judge did not
include any such additional information.” Id. The Court held that, although
there was probable cause to search for the files of the three named clients,
there was not probable cause to search the other files. Id. The Court held the
warrant was unconstitutionally overbroad and suppressed all evidence seized
as a result of the warrant. Id.
In Commonwealth v. Orie, this Court addressed a series of search
warrants. We found that the warrant for a flash drive was overbroad where it
sought “any contents contained therein, including all documents, images,
recordings, spreadsheets or any other data stored in digital format.” Orie, 88
A.3d at 1008. We noted there was no limitation to account for non-criminal
use of the flash drive. Id. We similarly found that a search warrant for an
email account seeking “all stored communications and other files . . . between
August 1, 2009 and the present, including all documents, images, recordings,
spreadsheets or any other data stored in digital format,” was overbroad. Id.
(alteration in original).
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In Orie, we denied relief because, although the flash drive and email
account were seized pursuant to an overbroad warrant, the police did not
search the flash drive or account until subsequent, more detailed warrants
that provided particularity were issued. Id. at 1008. In Commonwealth v.
Melvin, 103 A.3d 1, 17 (Pa.Super. 2014), we addressed search warrants for
email accounts similar to the warrant issued in Orie. We concluded that the
trial court erred in not granting the motion to suppress because the warrant
was overbroad and, unlike in Orie, there were no “unique facts” in Melvin
from which to conclude the search was proper. Id. at 18-19. The police did
not obtain a second search warrant following seizure of the email account and
prior to the search. Id. at 19.
Here, the trial court concluded the search warrant was “overbroad and
not tailored to fit the facts of the within matter,” and, therefore, the police
officers had seized the evidence in violation of Article I, Section 8 of the
Pennsylvania Constitution. Trial Ct. Op., at 6. The trial court reasoned that the
Application and Affidavit of Probable Cause described street-level dealing for
three single purchases of cocaine by the same confidential informant. Id. at
7. The drug transactions “were arranged via text messaging to the same
cellular telephone number . . . and were effectuated at the rear door of an
apartment building.” Id. The court noted that the facts supported the issuance
of a search warrant and seizure of “cocaine, currency, drug paraphernalia,
records consistent with the selling of cocaine, and the single cellular
telephone.” Id. The court, however, found the facts did “not support a warrant
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that would allow for the search and seizure of items consistent with a large
scale drug trafficking operation.” Id. The court noted that the warrant allowed
for the search and seizure of items associated with a large scale drug
trafficking organization. Id. The items listed were “so broad and overreaching
that [the warrant] allow[ed] for the seizure of entire sets of items unrelated
to the crime for which [Cordero] was under investigation.” Id. at 7-8. It
concluded that an unreasonable discrepancy existed between the items for
which probable cause existed and the “generally described voluminous list set
forth in Appendix A of the Application for Search Warrant.” Id. at 8.
We agree. The warrant permitted a general search and seizure at
Cordero’s residence. The Application for a Search Warrant and Affidavit of
Probable Cause contained evidence to establish probable cause existed to
believe cocaine and items associated with the distribution of cocaine would be
found in the home. They did not, however, contain probable cause to search
for many of the items listed, including, but not limited to, “[c]omputers and
their contents, books, records, receipts, notes, ledgers, and other papers
relating to the transportation, ordering, purchase and distribution of controlled
substances,” “[p]apers, tickets, notes, receipts, and other items relating to
domestic and international travel,” “record of real estate transactions, bank
statements and related records,” “precious metals, jewelry, and financial
instruments,” and “cellular telephones and their content.” Application for
Search Warrant, Appendix A. Such categories were broad, and, as in Orie,
the warrant made no limitation for the non-criminal use of the items.
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Further, the affiant’s experience and knowledge contained in the
affidavit did not provide the necessary link to establish probable cause. The
affiant stated his experience with “large scale” dealers or “narcotics
traffickers.” He provided no information to establish that Cordero was a large
scale drug dealer or narcotics trafficker. Rather, the facts state that a
confidential informant, on three occasions, texted the same phone number,
entered the rear door of Apartment 1, and returned with cocaine. This does
not establish probable cause to believe that Cordero was a large scale dealer
or narcotics trafficker. Further, the additional facts observed by the affiant,
including people staying inside the building for only brief periods and drug
paraphernalia on the sidewalk, do not change the outcome. Because the
residence was an apartment, and others likely lived at the street address,
without more to connect such observations to Cordero or his apartment, we
cannot conclude that this provides a nexus to support a conclusion that
Cordero was a “large scale drug dealer” or “narcotic trafficker.”2 See
Grossman, 555 A.2d at 900; cf. Commonwealth v. Iannelli, 634 A.2d ____________________________________________
2 The Application includes the following description of the residence to be searched: “950 West Liberty Street Apartment #1 Allentown PA 18102. 950 West Liberty Street is a three story multi-unit apartment complex with white in color exterior brick and a flat roof. Apartment# 1 is located on the first floor and has a white in color exterior door that exits into the rear yard of 950 West [L]iberty St.” Application for Search Warrant at 1. The Application and Affidavit do not contain information regarding the number of apartments in the building. Further, the affiant states he observed people entering the building and leaving shortly, but does not say whether such people entered through the white door that exits into the rear yard.
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1120, 1130-31 (Pa.Super. 1993) (finding search warrant not overbroad where
affidavit established probable cause to believe defendant was at top of corrupt
organization, that he received income from pattern of racketeering activity,
and that he headed organization formed for purpose of engaging in commerce
of running illegal lotteries and bookmaking operations).3
The Commonwealth next contends that even if the warrant was
overbroad, the trial court erred in failing to apply the doctrine of severance.
It claims the trial court “should have severed the warrant and deemed the
items seized, which were plainly supported by probable cause, to be
admissible.” Commonwealth’s Br. at 21.
“The doctrine of severance mandates that invalid portions of a search
warrant may be stricken and the remaining portions held valid, as long as the
remaining portions of the warrant describe with particularity the evidence to
be seized.” Commonwealth v. Bagley, 596 A.2d 811, 824 (Pa.Super. 1991).
The doctrine, however, does not apply where the warrant is “essentially
general in character.” Commonwealth v. Casuccio, 454 A.2d 621, 630
(Pa.Super. 1982). This Court noted that:
[W]e do not mean to suggest that invalid portions of a warrant will be treated as severable under all circumstances. We recognize the danger that warrants might be obtained which are essentially general in character ____________________________________________
3 We do not agree with the Commonwealth’s contention that, because there is only one Pennsylvania crime for the distribution of drugs, a search warrant can seek to search for all items associated with drug dealers, regardless whether the warrant establishes a nexus between the alleged dealer and the item to be searched for and seized.
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but as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, would not be tolerated.
Id. (quoting Aday v. Superior Court of California, 362 P.2d 47 (Cal.
1961).4
Here, the warrant was general and, therefore, we decline to apply the
severance doctrine. Many of the listed items were general categories and were
not supported by probable cause, including, but not limited to, computers and
their contents, items relating to domestic and international travel, cellular
telephones and their contents,5 and financial statements. Further, even for
the items for which probable cause did exist, the items were not described
with particularity. The affidavit stated that Cordero sold the informant cocaine.
The items to be searched for, however, included “[c]ontrolled substances and
paraphernalia for the use or distribution of controlled substances.”
Accordingly, we conclude the trial court did not err in declining to sever the
search warrant.
Order affirmed.
4 Cordero argues that the severance doctrine is unconstitutional under the Pennsylvania constitution. Because we conclude that, even if constitutional, the doctrine would not apply here, we do not reach this question.
5 Probable cause existed to seize the cellular telephone with the telephone number contacted by the informant. It did not exist, however, to seize all cellular telephones.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/26/18
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