Commonwealth v. King

1

COMMONWEALTH OF PENNSYLVANIA Appellant v. LARONTE O. KING

No. 1729 EDA 2022

No. J-S10023-23

Superior Court of Pennsylvania

April 18, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered June 17, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s) CP-51-CR-0008659-2021

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM

LAZARUS, J.

The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Philadelphia County, granting Laronte O. King's motion to suppress physical evidence recovered from his car pursuant to a search warrant.^[1] After careful review, we reverse and remand for further proceedings.

In March 2021, SEPTA Transit Police Detective Timothy Butler began investigating a Francisville, Philadelphia group with regard to their "involve[ment in] firearms activity." Affidavit of Probable Cause, 4/16/21, at 1. The group had "been stopped numerous times in past narcotics investigations in the area of the SEPTA Girard B[road] S[treet] L[ine] subway station." Id. The investigation stemmed from Detective Butler's observation of an Instagram post, authored by an individual named Keith Davis, stating that he was "taking the AVE. back (meaning Girard [A]ve[nue])." Id. Davis had been a suspect in a prior narcotics investigation.

Davis' Instagram page had been linked to another Instagram page associated with King. King is a convicted felon who is ineligible to possess a gun. King's Instagram page contained various photos of him posing with firearms, one of which, posted on March 24, 2021, depicts him posing with black and green gun with a silver extractor.^[2] King's Instagram page also contained a rap video of him and Davis where King was "observed rapping with a large bulge on his hip believed to be a firearm." Id. Finally, another photo posted on King's Instagram page showed King standing in what appeared to be an alley holding a firearm that looked "to be the same firearm as the [black and green gun] observed in the first photo, but with an extended magazine." Id. Detective Butler determined that these Instagram video and photos were taken on the 800 block of Perkiomen Street, in the City and County of Philadelphia. Id.

On April 5, 2021, Detective Butler observed a story posted on King's Instagram page that included a picture of narcotics and "what appear[ed] to be the butt of the [black and green] firearm of the gun[,] seen in previous post[s,] sitting in a person's lap believed to be King by the looks of the sweatpants in the picture." Id. Later that same day, as he was surveilling the area near King's residence, Detective Butler saw King exit his home, enter a silver Dodge Charger (temp. tag 3539-102), move the car "up and then exit the vehicle." Id. King then entered a dark-colored Nissan Maxim[a], sat in the vehicle "for a short amount of time," exited the vehicle, and reentered the Charger and drove away. Id. Detective Butler also observed a photo on King's Instagram page in which King was posing in front of the silver Charger "with a bulge in his shirt that was shaped like a firearm." Id. at 2. Three days later, on April 8, 2021, Detective Butler saw a video, posted on King's Instagram page, in which King was standing in front of a Philadelphia establishment "rapping a song and at one point the lyrics mentioned a 'nine' refere[nc]ing a 9MM handgun and then King lifted up his shirt displaying the butt of a firearm[.]" Id.^[3]

Finally, on April 16, 2021, two other SEPTA police officers^[4] on surveillance observed the silver Dodge Charger "near [King's] residence." Id. The officers saw King exit his residence with an unknown female, enter the Charger, and drive away. The officers attempted to stop the vehicle at the intersection of Broad and Diamond Streets. However, King "sped of[f] in order to fle[e] police." Id. The Charger was eventually located that evening, one block from SEPTA's Girard Avenue subway station; the vehicle was unoccupied. Id.

Detective Butler prepared an affidavit of probable cause, containing the aforementioned information, seeking a search warrant for King's silver Dodge Charger (temp. tag 3539-102), based on his belief that "the common use of vehicles to transport firearms, how often King is posted driving in a vehicle, and the fact that King is observed on the [C]harger with what appeared from training and experience to be a firearm underneath his shirt tucked in his pants . . . will reveal evidence [that he has been] violating [sections 6105 and 6106 of the Uniform Firearms Act.]" Id. Specifically, the search warrant application identified the following items to be searched for and seized from the Charger: "[f]irearms, ammunition, firearms accessories, and any[]thing else that could be considered evidence of the investigation." Application for Search Warrant, 4/16/21, at 1. On April 16, 2021, the warrant was issued by Naomi Williams, and a subsequent search of the Charger uncovered a loaded .380 caliber handgun and 35 flip-top containers containing crack cocaine.

King was charged with various drug offenses^[5] and violations of the Uniform Firearms Act.^[6] King filed a motion to suppress the evidence recovered from the search of the silver Dodge Charger, claiming that the warrant was not supported by probable cause. Following the Commonwealth's argument, the Honorable Donna Woelpper granted the motion simply stating, "I disagree. I'm going to grant the defendant's motion to suppress and you have a 30-day appeal date." N.T. Motion to Suppress Proceeding, 6/17/22, at 13.^[7] The Commonwealth filed a timely notice of appeal from that order and complied with the trial court's order for a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth presents the following issue for our consideration: "Did the trial court err by suppressing evidence seized from a car pursuant to a warrant, on the alleged ground that the facts in the warrant did not establish probable cause?" Commonwealth's Brief, at 4.

When the Commonwealth appeals from a suppression order, this Court may consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the record as a whole, remains uncontradicted. In our review, we are not bound by the suppression court's conclusions of law, and we must determine if the suppression court properly applied the law to the facts. We defer to the suppression court's findings of fact because, as the finder of fact, it is the suppression court's prerogative to pass on the credibility of the witnesses and the weight to be given to their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014) (citations omitted). In analyzing whether a warrant is supported by probable cause, judicial review is limited to the four corners of the supporting affidavit. See Pa.R.Crim.P. 203(B).

The Commonwealth argues that the affidavit used to secure the warrant to search King's car was supported by probable cause where "the facts in the affidavit . . . present[ed] a sufficient nexus between [King's] car and the gun [found in it]." Commonwealth's Brief, at 13. Specifically, the Commonwealth contends there was probable cause where: King, who was ineligible to possess a gun due to a prior conviction, had been surveilled by a SEPTA Transit police detective who observed King's social media posts of photos and videos where King was posing with a gun on his person and in front of or on a silver Dodge Charger (with a bulge under his shirt that looked like gun); the same detective saw the Charger parked near King's residence and observed King exit his residence, get into the Charger and drive away; and, where Philadelphia police officers tried to stop King while he was driving the Charger, but King fled from the police.

"A search warrant must be supported by probable cause." U.S. Const. amend. IV; Pa. Const. art. I, § 8. Probable cause exists "where the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted." Commonwealth v. Torres, 177 A.3d 263, 265 (Pa. Super. 2017). In Commonwealth v. Gray, 503 A.2d 291 (Pa. 1985), our Supreme Court adopted a "totality of the circumstances" test, originally set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), as the appliable law under the Pennsylvania Constitution. The Gray Court concluded that this "approach is as workable here as in those others area of criminal procedure where a common-sense, practical approach is indicated." Gray, supra at 485. Under such a test:

the task of an issuing authority is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. It is the duty of a court reviewing an issuing authority's probable cause determination to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner. Further, a reviewing court is not to conduct a de novo review of the issuing authority's probable cause determination, but is simply to determine whether or not there is substantial evidence in the record

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