Commonwealth v. Nicholson

262 A.3d 1276

COMMONWEALTH of Pennsylvania, Appellant

v.Antoin Tyrell NICHOLSON

No. 66 WDA 2021

Superior Court of Pennsylvania.

Submitted June 21, 2021

Filed: September 27, 2021

Bart D. Wischnowski, Assistant District Attorney, Beaver, for Commonwealth, appellant.

Michael J. Carland, Beaver, for appellee.

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.^*

OPINION BY PELLEGRINI, J.:

The Commonwealth of Pennsylvania appeals from an order of the Court of Common Pleas of Beaver County (suppression court) granting Antoin Tyrell Nicholson's (Nicholson) dispositive motion to suppress evidence obtained from a search of his home. Following a hearing on the motion, the suppression court ruled that the evidence was obtained pursuant to an invalid warrant which had been erroneously granted by the Magisterial District Judge. The Commonwealth argues in its appeal that the suppression court erred in finding that the warrant was not supported by probable cause. Finding no merit in these appellate claims, we affirm.

I.

This appeal concerns whether a search warrant issued for Nicholson's home was supported by probable cause. The affidavit of probable cause used to obtain this warrant was authored by Stephen Kelch, a New Brighton Area Police Officer and part of the Pennsylvania Attorney General's Drug Task Force.

Officer Kelch wrote in his affidavit that the New Brighton Police Department's investigation began with a tip from a confidential informant (CI). The CI reported that Nicholson was selling controlled substances, driving a blue Dodge Caliber, and residing at 1235 6th Avenue, New Brighton, Pennsylvania. Officer Kelch verified the CI's information and worked with the CI to set up two controlled purchases of crack cocaine from Nicholson using marked bills.

Officer Kelch's descriptions of the controlled buys were summarized by the suppression court as follows:

The first controlled buy occurred during the week of November 10, 2019. The [CI] contacted "Wes" and requested to purchase crack cocaine. "Wes" instructed the confidential informant to find a blue Dodge Caliber at the 500 block of 5th Avenue and open the door, exchange money for crack cocaine, and leave. The [CI] performed as directed while Corporeal Kelch and Task Force Officer Conley observed from a distance. Shortly after the confidential informant completed the transaction, the officers saw "Wes" exit a nearby Dollar Store and enter the car. "Wes" then drove directly to 1235 6th Avenue. Task Force Officer Conley followed "Wes" and saw him enter the rear of the residence at 1235 6th Avenue.

* * * *

The second controlled buy occurred within forty-eight hours before December 11, 2019. The [CI] contacted [Nicholson] and requested to purchase crack cocaine. [Nicholson] arranged for the [CI] to meet at the 600 block of 7th Avenue. Task Force Officers then observed [Nicholson] leave his residence at 1235 6th Avenue. [Nicholson] made two stops before arriving at the designated meeting location. First, he stopped at the post office. Second, Corporeal Kelch testified that [Nicholson] stopped at a second location, but he could not identify where [Nicholson] had stopped. [Nicholson] then arrived at the 600 block of 7th Avenue. The controlled buy was completed just like the first controlled buy using an unlocked vehicle. [Nicholson] then drove directly back to 1235 6th Avenue.

Suppression Court Opinion and Order, 12/15/2020, at 2-3; see also Probable Cause Affidavit of Officer Stephen Kelch, 12/11/2019, at Paragraphs 7-9.

Officer Kelch's affidavit concluded with a description of his general knowledge of drug dealer behavior, including that a drug dealer typically stores drugs, weapons and other contraband in his home, among many other places. See Probable Cause Affidavit of Officer Stephen Kelch, 12/11/2019, at Paragraphs 11-19.

Based on this information, the Magisterial District Judge granted the search warrant of Nicholson's home. During the resulting search, the police found cocaine, paraphernalia, weapons and cash. The Commonwealth then charged Nicholson with several drug and firearms offenses.

In an omnibus pretrial motion, Nicholson moved to suppress the evidence obtained from his home. He argued that the affidavit supporting the search warrant did not contain sufficient facts to give the police probable cause to believe that evidence of criminal activity would be found in the residence. Relying heavily on our decision in Commonwealth v. Way , 342 Pa.Super. 341, 492 A.2d 1151 (1985), the suppression court granted the motion, precluding the seized evidence from being admitted at trial. See Suppression Court Opinion and Order, 12/15/2020, at 6-7.¹

The Commonwealth now appeals,² contending that the suppression court erred in finding that the police lacked probable cause to justify the search. According to the Commonwealth, the police had sufficient facts to believe that illegal drugs would be found at Nicholson's residence under the totality of the circumstances. The Commonwealth stresses that the police observed Nicholson going home after each of the two controlled buys, and that by nonetheless ruling there was no connection between the drug sales and the residence, the suppression court failed to evaluate "the facts in a common-sense, non-technical fashion[.]" Appellant's Brief, at pp. 20-21.

II.

A.

The issuance of a constitutionally valid search warrant requires that police provide the issuing authority with sufficient information to persuade a reasonable person that there is probable cause to conduct a search based upon information that is viewed in a commonsense manner. See Commonwealth v. Housman , 604 Pa. 596, 986 A.2d 822, 843 (2009). The issuing authority must determine whether, given the totality of the circumstances presented, there is a fair probability that evidence of a crime or contraband will be found in a particular location. Id.

However, "probable 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. Wallace , 615 Pa. 395, 42 A.3d 1040, 1049–50 (2012) (citing Commonwealth v. Heyward , 248 Pa.Super. 465, 375 A.2d 191, 192 (1977) ) (emphasis added); see also Commonwealth v. Kline , 234 Pa.Super. 12, 335 A.2d 361, 364 (1975). The affidavit of probable cause must establish a "substantial nexus" between the suspect's home and the criminal activity or contraband sought to permit the search of the home. Id . The task of the reviewing court is to ensure that the issuing authority had a substantial basis to conclude that probable cause existed. Id .

These principles were applied in Way , a factually analogous case discussed by the suppression court in the present matter. See Suppression Court Opinion and Order, 12/15/2020, at 6-7.

In Way , an undercover police officer asked two suspects to procure methamphetamine for him. See Way , 492 A.2d at 1152. The two suspects met with the defendant, who provided the drugs. After the transaction, a surveillance officer followed the defendant's vehicle to another location, which turned out to be the defendant's home. The affidavit in support of the warrant stated that police followed the defendant to his home after the transaction.

On these facts, the affidavit was held to be insufficient to support a probable cause determination. We explained that

[p]robable cause to believe that a man has committed a crime does not necessarily give rise to probable cause to search his home ... [A]n allegation based on an assumption or supposition not supported by the facts is insufficient to support (an inference of) criminal activity in the premises, in spite of the fact that there are plenty of allegations alleged to relate to criminal activity of the individual who is alleged to have lived in the premises.

Id . at 1154 (quoting Commonwealth v. Kline , 234 Pa.Super. 12, 335 A.2d 361, 363 (1975) ). Rather, the totality of the circumstances demonstrated that the defendant's base of operations for his drug dealing was his vehicle and not his home. Id . ; see also Commonwealth v. Gagliardi , 128 A.3d 790, 798 (Pa. Super. 2015).

In this case, while Nicholson returned to his residence after each drug sale, that does not alone support a probable cause determination justifying a search of his home. As to the first controlled buy, the police did not observe where Nicholson came from on his way to the location of that transaction. This made it just as likely that he picked up the contraband from somewhere other than his own residence. It was also equally possible that Nicholson kept the drugs in his vehicle, where the sale took place.

Similarly, just prior to the second transaction, police observed Nicholson leaving his home and making two stops – one at the post office and one at another identified location - before he arrived at the location of that second drug buy. This again supports the notion that Nicholson retrieved the drugs from a location other than his home on his way to the sale. It does not logically follow that Nicholson had the drugs stashed at his home just because he went there after each sale was completed. As in Way , the police, at most, had probable cause to believe the drugs were kept in Nicholson's car , which he used as his main base of operations.

The Commonwealth has argued that a finding of probable cause was supported by the totality of the circumstances because the police observed facts creating a substantial nexus between the drug buys and Nicholson's home. It attempts to analogize the present case to the scenarios in Commonwealth v. Gray , 509 Pa. 476, 503 A.2d 921 (1985), and Commonwealth v. Clark , 611 Pa. 601, 28 A.3d 1284 (2011), where it was held that under the totality of the circumstances, police had probable cause to search a drug dealer's home.

However, both of those cases are distinguishable because in each, a reliable confidential informant had specifically told police that drugs would be found in the defendant's home. See Clar...