Com. v. Johnson, R.

Opinion

J-S49013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

RASHEED JOHNSON,

Appellee No. 2800 EDA 2013

Appeal from the Order of September 5, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005637-2012

BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 17, 2014

The Commonwealth of Pennsylvania appeals from an order granting

suppression in favor of Appellee, Rasheed Johnson, which was entered on

September 5, 2013.1 We reverse and remand.

The factual background of this case is as follows:

On [February 25,] 2012 the Pennsylvania [Society for the

anonymous] complaint regarding t[wo] dogs in the rear of 2 ] The complainant stated that there [were] two dogs in the rear yard with heavy chains, no food or water[,] and the yard is full of feces and urine.

1 Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the that the order will terminate or substantially handicap the prosecution. 2

residence; however, there is no dispute that Appellee had a privacy interest in the residence. J-S49013-14

On [February 25,] 2012, at approximately 9:15[ a.m. PSPCA Officer Darlene Sosa] conducted an investigation into the In the rear yard of the property, [Officer Sosa] observed one medium sized pitbull mix breed dog tethered on a heavy chain in [the] corner of the yard. The collar on the dog appeared [to be] tight[] around the neck. The area where the dog was chained was covered with feces and urine. The dog did not have access to food or water, or to clean sanitary condition[s]. [Officer Sosa] observed another heavy

see the dog at that time. That area was also covered in feces. [Officer Sosa] took [a] photo of the yard [that showed] trash, debri[s,] and feces.

[On February 25,] 2012 [Officer Sosa checked] the PSPCA cruelty database [which revealed that] the owner of this property[,] Terrance Hayward[ ( been] found guilty [of dog fighting in] February 2009. [As part of his sentence, he was prohibited from] owning animals for five years.

Affidavit of Probable Cause, 2/25/12, at 2.

Based upon the above affidavit of probable cause, Officer Sosa sought

searched. Evidence of dog fighting and drug dealing was found in the

residence.

The procedural history of this case is as follows. Appellee was charged

via criminal complaint with possession with intent to deliver a controlled

substance,3 possession of a controlled substance,4 possessing an animal for

3 35 P.S. § 780-113(a)(30). 4 35 P.S. § 780-113(a)(16).

-2- J-S49013-14

fighting,5 aiding animal fighting,6 knowingly permitting animal fighting,7 and

possession of drug paraphernalia.8 On May 16, 2012, a criminal information

charging those same offenses was filed.

On June 29, 2012, Appellee filed an omnibus pre-trial motion, which

included a motion to suppress the evidence seized from his residence. A

suppression hearing was held on August 12, 2013, at the conclusion of which

2013, the Commonwealth moved to reconsider the order suppressing the

evidence. That same day, the suppression court vacated its suppression

order. On September 5, 2013, the suppression court heard argument on the

rgument, the

and re-instated the original suppression order. This timely appeal followed.9

The Commonwealth raises one issue for our review:

Did the [suppression] court err by suppressing narcotics and evidence of dog fighting seized pursuant to a search warrant as

5 18 Pa.C.S.A. § 5511(h.1)(3). 6 18 Pa.C.S.A. § 5511(h.1)(14). 7 18 Pa.C.S.A. § 5511(h.1)(17). 8 35 P.S. § 780-113(a)(32). 9 On October 4, 2013, the Commonwealth filed a concise statement of errors See Pa.R.A.P. 1925(b). On December 9, 2013, the suppression court issued its Rule 1925(a) opinion. appeal was included in its concise statement.

-3- J-S49013-14

there was a substantial basis for finding probable cause under the totality of the circumstances?

ruling] we are limited to determining whether the factual findings are

supported by the record and whether the legal conclusions drawn from those

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.

Super. 2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (internal alterations

In re L.J., 79 A.3d

1073, 1080 (Pa. 2013) (citation omitted).

In this case, Appellee moved to suppress the evidence seized from his

residence because, according to Appellee, the magistrate lacked probable

cause to issue the search warrant. Pennsylvania Rule of Criminal Procedure

203 provides, in relevant part, that:

(B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. . . . The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.

***

(D) At any hearing on a motion for the [] suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (B).

Pa.R.Crim.P. 203.

-4- J-S49013-14

We have explained the probable cause requirement for issuance of a

search warrant as follows:

[T]he question of whether probable cause exists for the issuance of a search warrant must be answered according to the totality of the circumstances test articulated in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985), and its Pennsylvania progeny, which incorporates the reasoning of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). . . . The task of the magistrate acting as the issuing authority is to make a practical, common sense assessment of whether, given all the circumstances set forth in the affidavit, a fair probability exists that contraband or evidence of a crime will be found in a particular place. A search warrant is defective if the issuing authority has not been supplied with the necessary information. The chronology established by the affidavit of probable cause must be evaluated according to a common sense determination.

Further, 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 must limit our inquiry to the information within the four corners of the affidavit submitted in support of probable cause when determining whether the warrant was issued upon probable cause.

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013), appeal

denied, 78 A.3d 1089 (Pa. 2013).

substantial evidence upon which the issuing magistrate could have

reasonably determined that probable cau

residence. Officer Sosa, who had three years of experience investigating

cruelty to animal cases, observed one (with evidence of a second) dog in

unsanitary conditions. Specifically, Officer Sosa stated that the area was

covered in feces, urine, trash, and debris. Officer Sosa further stated that

-5- J-S49013-14

there was no food or water visible, that the one dog she saw was tethered

with a tight chain around its neck, that the dog was a pitbull mix, and the

owner of the residence had previously been convicted of dog fighting and

was prohibited from owning animals.

The suppression court erred by considering each of these factors

independently instead of examining the totality of the circumstances. An

affidavit based solely upon one of these facts might be insufficient for the

magistrate to find probable cause. However, when considered together, the

facts show a fair probability of ongoing criminal activity. For example, the

suppression court stated as to the feces, urine, trash, and debris in the yard,

Opinion, 12/9/13, at 4. However, there was more evidence. The

suppression court did not consider the unsanitary conditions of the yard in

combination with the fact that there was no food or water, the dogs were

chained with heavy chains, the collar on the one dog appeared to be tight,

the dog was covered with feces and urine, and the one dog was a pitbull mix

(a breed frequently used in animal fighting). Most glaring was the fact that

Hayward, the owner of the residence, had previously been convicted of

animal fighting and was, at that time, prohibited from owning animals. The

other evidence summarized above, strongly supports a fair probability that

-6- J-S49013-14

affidavit was sufficient to establish probable cause.

The suppression court further erred by focusing on possible innocent

explanations for the information included in the affidavit of probable cause.

See United States v. Booker

possibility of an innocent explanation does not vitiate properly established

see also Commonwealth v. Thompson, 985 A.2d 928,

not required to eliminate all innocent explanations for a suspicious set of

ssion court focused

on the fact that the dog may have been given water and food inside the

house and thus did not require additional food and water outside the

residence. See Suppression Court Opinion, 12/9/13, at 4; N.T., 8/12/13, at

15. Although this is one possible innocent explanation, an equally plausible

explanation is that the dog lacked proper food and water. The suppression

court further surmised that the owner of the residence may have been

planning on cleaning the yard that day. N.T., 8/12/13, at 15. Again,

although this is one possible innocent explanation, an equally plausible

explanation is that the yard was never cleaned and the dogs were required

to live in filth. When all of the factors are considered together, it is evident

that probable cause existed to believe that proof of a crime would be found

-7- J-S49013-14

The suppression court also erred by faulting Officer Sosa for not

conducting a more thorough investigation. Cf. Suppression Court Opinion,

12/9/13, at 4 (Offic

any additional investigative techniques she could have employed would have

been time consuming and difficult, if not impossible, without a search

warrant. Although Officer Sosa could have taken such steps, they were not

necessary in order to obtain probable cause to search the residence.

Finally, the suppression court erred by considering the manner in

which the search warrant was executed when making its four corners

analysis. See

very sparse warrant is really the reason that [the suppression court] decided

on the [four] corners that they should have done a lot more before they

affidavit of probable cause or in the testimony of [Officer Sosa] at the

hearing could not properly be considered by the suppression court in

determining whether the affidavit of probable cause was sufficient for the

magistrate to find probable cause to issue the search warrant. Instead, the

-8- J-S49013-14

suppression court was limited to considering the four corners of the affidavit

of probable cause. Second, Officer Sosa lacked authority to proceed onto

Officer Sosa immediately sought approval from a magistrate for a search

warrant and was able to execute the search warrant that same day.

In sum, the suppression court erred by conducting a de novo review of

evidence offered to support that determination. Instead, the suppression

court should have reviewed the totality of the circumstances established by

basis for the magistrate to determine that they demonstrated a fair

probability that contraband or criminal activity would be discovered in

Appell

the search warrant was valid. Accordingly, we reverse the suppression

proceedings consistent with this memorandum.10

Order reversed. Case remanded. Jurisdiction relinquished.

was defective but that the execution of the search warrant was constitutionally defective. As the suppression court did not conduct a full

the search warrant was defective, we decline to decide in the first instance whether the suppression motion should have been granted on those grounds.

-9- J-S49013-14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2014

- 10 -