Commonwealth v. Leed

186 A.3d 405

COMMONWEALTH of Pennsylvania, Appellee

v.Eric Jay LEED, Appellant

No. 122 MAP 2016

Supreme Court of Pennsylvania.

Argued: November 29, 2017

Decided: June 1, 2018

Alan Gary Goldberg, Esq., Goldberg & Beyer, Lancaster, Adam Louis Szilagyi, Esq., for Appellant.

Susan E. Moyer, Esq., James M. Reeder, Esq., Lancaster County District Attorney's Office, Craig William Stedman, Esq., Lancaster, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

We granted allowance of appeal in this case to resolve a dispute over an affidavit of probable cause used in support of a search warrant application. Specifically, we consider whether a statement contained in one paragraph, which when read in the context of the whole affidavit appears to be an inadvertent error, renders the affiant's information stale, and therefore lacking in probable cause. We conclude it does not.

I.

A.

In September 2012, Detective Anthony Lombardo of the Lancaster County Drug Task Force spoke to a confidential informant (CI # 1). CI # 1 informed him that Appellant, Eric Jay Leed, was in the business of selling large quantities of powder cocaine and marijuana in the City of Lancaster. CI # 1 had recently purchased cocaine from Leed and knew he resided at 1223 Union Street in Lancaster. In February 2014, Detective Gregory Macey met with his own CI (CI # 2), who also said Leed was selling powder cocaine and marijuana. Both CIs identified Leed from a PennDOT photograph. Drug Enforcement Administration (DEA) agents spoke with a third individual, a private citizen, who told them Leed had been making trips to Unit 503 at Lanco Mini Storage in Lancaster. The DEA agents verified through Lanco's manager that Leed was the only lessee of Unit 503 since August 2013, and that Leed last visited the unit on March 20, 2014. At some point, Detective Lombardo requested that a K9 Unit conduct a sweep outside of Unit 503. The drug detection dog gave a positive response.

Detective Lombardo applied for a search warrant of the storage unit. The heart of the instant dispute concerns Detective Lombardo's affidavit of probable cause, which stated, in relevant part, as follows.

3. That during the month of September 2012, your Affiant spoke with a Reliable Confidential Informant (CI# 1), whose information has led to at least (2) prior arrests and convictions for felony violations of the PA Controlled Substance, Drug, Device, and Cosmetic Act. CI# 1 related that he/she has knowledge of a white male, named Eric Leed, who is in the business of selling large amounts of powder cocaine and Marijuana in the Lancaster City area. CI# 1 additionally related that Leed lives at 1223 Union St. Lancaster. CI# 1 knew this information to be true because he/she had purchased cocaine from Leed as recently [as] September 2012. CI# 1 has demonstrated his/her knowledge of controlled substances, to specifically include cocaine and Marijuana, its packaging, pricing and terminology.

4. That during the month of September 2012, your Affiant obtained a PENNDOT photograph of Eric J. Leed (DOB: 06–21–1983). Your Affiant showed the PENNDOT photograph to CI# 1. CI# 1 positively identified the photograph as being [the] same individual known to him/her as described in paragraphs # 3.

5. That during the month of February 2014, Det. Gregory Macey of the Lancaster County Drug Task Force, spoke with a Reliable Confidential Informant (CI# 2), whose information has led to at least (1) prior arrest and conviction for felony violations of the PA Controlled Substance, Drug, Device, and Cosmetic Act. CI# 2 related that he/she has knowledge of a white male, named Eric Leed, who is in the business of selling large amounts of powder cocaine and Marijuana. CI# 2 has demonstrated his/her knowledge of controlled substances, to specifically include Cocaine and Marijuana, its packaging, pricing and terminology.

6. That during the month of February 2014, Det. Greg Macey of the Lancaster County Drug Task Force obtained a PENNDOT photograph of Eric J. Leed (DOB: 06–21–1983). Det. Macey showed the PENNDOT photograph to CI# 2. CI# 2 positively identified the photograph as being [the] same individual known to him/her as described in paragraphs # 5.

7. That during the month of March 2014, Agents from the Drug Enforcement Administration Harrisburg Resident Office spoke with a citizen in good standing within the community. The named citizen, who wished to remain anonymous, stated that Eric Leed was making frequent short term trips to storage unit # 503 located within Lanco Mini Storage located at 1813 Old Philadelphia Pike, Lancaster, PA.

8. That on 21 March 2014, Michael Neff of the Drug Enforcement Administration spoke with the manager of Lanco Mini Storage. The manager advised that Eric Leed is the sole lessee of unit # 503 at Lanco Mini Storage located at 1813 Old Philadelphia Pike, Lancaster, PA and has been so since renting the unit in August 2013. The manager further stated that the last time that Leed accessed the unit was on March 20, 2014.

9. That Off Billiter of the Manheim Township Police Department, attended a six week handler and K9 certification course in Canada conducted by Baden K9 in Apr—May 2008. Both handler and K9 receive re-certifications and twice monthly training. They have attended courses and certifications of both handler and K9 to include [a Baden K9 Patrol & Narcotics re-certification on December 9, 2008, and numerous other certifications between December 8, 2010, and February 24, 2012].

10. That on March 21, 2013 , your Affiant requested Officer Billiter and his K9 partner Ruger, of the Manheim Twp Police Department to conduct [a] K9 sweep of unit # 503 at Lanco Mini Storage located at 1813 Old Philadelphia Pike, Lancaster, PA for the presence of narcotics. At approx. 1644 hrs, Officer Billiter and K9 Ruger conducted a sweep of random storage units to include unit# 503. Each and every time Ruger alerted on unit# 503 and Officer Billiter advised your Affiant that K9 Ruger had alerted on the unit, indicating the presence of narcotics.

11. That your Affiant respectfully requests that a Search Warrant be granted for Unit# 503 located at Lanco Mini Storage, 1813 Old Philadelphia Pike[.]

Affidavit of Probable Cause, 3/21/14, at ¶¶ 3–11 (emphasis added).¹

Detective Lombardo presented his search warrant application and affidavit of probable cause to a magisterial district judge on March 21, 2014. The magistrate approved and signed the warrant that same day. That evening, the police searched Leed's storage unit. Therein, the officers discovered 15 pounds of marijuana, $9,900.00 in currency, plastic bags, a scale, a bank statement, income tax return, and other personal documents. Based on the fruits of this search, the officers applied for and obtained an additional search warrant for Leed's bank records.

On March 31, 2014, Detective Lombardo filed a criminal complaint, charging Leed with one count of possession with intent to deliver (PWID).² Leed was arrested on April 2, 2014 and taken to the county prison. While in prison, authorities recorded a telephone conversation between Leed and his mother. Based on this phone conservation, as well as the results of the previous two searches, the police sought and obtained a third search warrant for Leed's mother's home. Therein, the police found a safe, which contained an additional $8,900.00 in currency and a mobile phone.

B.

On June 9, 2014, the Commonwealth filed an information, charging Leed with one count of PWID. On July 8, 2014, Leed filed an omnibus pre-trial motion. Relevant to this appeal, the motion sought suppression of the fruits from all three search warrants. Among other contentions, Leed alleged that the information contained within the first search warrant for his storage unit was stale and therefore lacking in probable cause. Leed's Omnibus Pre–Trial Motion, 7/8/14, at ¶ 15(b). Leed averred that because the affidavit on its face stated that police conducted a canine sniff on March 21, 2013, a year before the warrant was applied for, the warrant's information was stale, especially considering the same affidavit stated Leed did not rent the unit until five months later in August 2013. N.T., 11/24/14, at 3–4.

The trial court conducted a suppression hearing on November 24, 2014. The Commonwealth called Detective Lombardo to testify that the March 21, 2013 date in paragraph 10 was an error on his part. Leed objected on the basis that extrinsic testimony was not permitted, since challenges to search warrants are generally limited to the information contained within the four corners of the affidavit. See generally Pa.R.Crim.P. 203(D). Detective Lombardo proceeded to testify that the March 21, 2013 date was his drafting mistake, and the canine sniff was actually conducted on March 21, 2014, the same day he applied for the search warrant. N.T., 11/24/14, at 7. Leed did not present any evidence at the suppression hearing.

Following post-hearing briefing, the trial court issued an order and opinion denying Leed's motion to suppress on February 23, 2015. Therein, the trial court explained that it agreed with Leed that Rule 203(D) prohibits extrinsic testimony, so it disregarded Detective Lombardo's entire suppression hearing testimony. Trial Ct. Op., 2/23/15, at 7 n.5. However, on the merits, the trial court agreed with the Commonwealth that a common sense reading of the affidavit as a whole permitted it to infer that the March 21, 2013 date was an error, and Detective Lombardo actually meant to state the canine sniff took place on March 21, 2014. It viewed this inference to be consistent with the principle that analyzing the existence of probable cause requires the trial court to look at "the totality-of-the-circumstances." Id. at 7. Because the trial court concluded that the March 21, 2013 date in paragraph 10 was listed in error, it further concluded the affidavit's information was not stale, and that there was probable cause to issue...