J-A17018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

BRENDA YAMILET PALACIOS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2047 EDA 2022

Appeal from the Order Entered July 21, 2022

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0003267-2021

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED NOVEMBER 14, 2023

The Commonwealth appeals from the order granting the suppression 

motion of Brenda Yamilet Palacios (“Yamilet Palacios”). Following our careful 

review, we affirm.

The relevant factual and procedural history of this case is as follows: 

The Commonwealth charged Yamilet Palacios with possession with intent to 

deliver a controlled substance, simple possession, and possession of 

paraphernalia.1 See Information, 11/12/21. The charges resulted from a 

search warrant issued pursuant to a police investigation involving a 

shooting/homicide. Yamilet Palacios moved for suppression, arguing the 

search warrant lacked probable cause and failed to establish the requisite

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* Retired Senior Judge assigned to the Superior Court.

1 See 35 P.S. § 780-113(a)(30), (a)(16), (a)(32).
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nexus between the evidence sought and her home. See, e.g., Brief in Support 

of Motion to Suppress, 6/9/22, unnumbered at *2. The trial court held a 

suppression hearing, and the court admitted the search warrant into evidence. 

See N.T., 4/26/22, at 6.

The affidavit of probable cause for the warrant specified the following: 

On August 21, 2021, at 8:23 p.m., Allentown Police Department officers were 

dispatched to 12th and Linden Streets for reports of a shooting. See Affidavit 

of Probable Cause, 8/25/21, at ¶ 2. On arrival, officers found a male lying on 

the sidewalk, next to a yellow ATV, suffering a gunshot wound to the right 

side of his head. See id. at ¶ 3. The victim was identified as Roniel Orlando 

Santos-Rivera (“Santos-Rivera”). The affiant, Detective Yamil Castillo, 

obtained surveillance footage from several cameras in the vicinity of the 

shooting. See id. at ¶ 5.

Surveillance footage revealed the following: Santos-Rivera arrived at a 

Pacemart, located at 640 N. 7th Street, riding the yellow ATV, at about 7:56 

p.m. See id. at ¶ 6. Several others arrived around that time, including a 

white BMW with a damaged front bumper. See id. at ¶¶ 7, 18. A female was 

driving the BMW, a black male was in the front passenger seat, and there was 

a passenger in the back. See id. Both the driver and front passenger of the 

BMW exited the vehicle at the Pacemart. See id. at ¶ 8. Detective Samson 

Wega was able to identify the front passenger as Taijon Edwards (“Edwards”) 
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and the driver as his girlfriend, Yamilet Palacios, based on the detective’s prior 

unrelated contact with Edwards. See id. at ¶ 9.2 Detective Castillo observed 

that the surveillance footage showed Santos-Rivera (on the ATV) and the BMW 

leave the Pacemart and travel south on 7th Street. See id. at ¶ 10.

Surveillance footage also depicted the ATV and BMW travelling south to 

Linden Street, then west on Linden Street, after which Detective Castillo 

observed someone lean outside of the front passenger window of the BMW in 

the 1000 block of Linden Street. See id. at ¶ 14. Police later located a shell 

casing at the 1000 block of Linden Street. See id. at ¶ 16. Four spent shell 

casings were later found in the 1100 block of Linden Street, consistent with 

the path of travel of the BMW, as seen on surveillance, and which matched 

the casing from the 1000 block of Linden Street. See id. at ¶¶ 15-16. The 

surveillance footage showed Santos-Rivera continuing to travel down the 1000 

and 1100 blocks of Linden Street before crashing the ATV into a residence at 

the corner of 12th and Linden Streets. See id. at ¶ 17. Santos-Rivera, when 

found, was suffering from a gunshot wound to the right side of his head. See 

id. at ¶ 3. 

As part of their investigation, officers obtained the license plate number 

for the BMW using a license plate reader and were also able to identify the 

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2 Detective Wega also, through his own investigation, learned that the person 

the BMW was registered to, Shaquille Alexander Robinson, had made phone 

calls and money deposits to Edwards while Edwards was incarcerated. See 

Affidavit of Probable Cause, 8/25/21, at ¶¶ 11-12. 
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BMW by the damage to its front bumper. See id. at ¶¶ 11, 18. Officers 

observed the vehicle parked, around 6:00 a.m. the following morning, at the 

900 block of Gordon Street, which is around the corner from the address 

where Yamilet Palacio and Edwards lived, on North 9th Street. See id. at ¶¶ 

18-20.

Based on the foregoing investigation, Detective Castillo applied for a 

search warrant three days later for Yamilet Palacios and Edwards’s residence 

to search for evidence related to Santos-Rivera’s shooting. See id. at ¶ 23. 

Police executed the warrant, after which Yamilet Palacios was charged with 

the various drug offenses.

Upon consideration of Yamilet Palacios’s suppression motion and the 

hearing, the court determined that the search warrant lacked probable cause 

and granted suppression. See Order, 7/21/22. The Commonwealth timely 

appealed and certified that the suppression order would terminate or 

substantially handicap the prosecution. See Notice of Appeal, 8/12/22 (citing 

Pa.R.A.P. 311(d)). Both the Commonwealth and the suppression court 

complied with Pa.R.A.P. 1925.

The Commonwealth raises the following issue for our review:

Did the lower court err when it granted [Yamilet Palacios’s]

[m]otion to [s]uppress where there was a substantial basis for 

the issuing authority to determine that probable cause existed 

to issue a search warrant for [Yamilet Palacios’s] North 9th 

Street [address ?]

Commonwealth’s Brief at 4.
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Our standard of review for an order granting a suppression motion is as 

follows:

Our review is limited to determining whether the record 

supports the findings of fact of the suppression court and whether 

the legal conclusions drawn from those findings are correct. We 

are bound by the factual findings of the suppression court, which 

are supported by the record, but we are not bound by the 

suppression court’s legal rulings, which we review de novo.

Commonwealth v. Mendoza, 287 A.3d 457, 462 (Pa. Super. 2022) (internal 

citation omitted).

The Commonwealth maintains the suppression court erred in concluding 

the search warrant lacked probable cause. Regarding the probable cause 

requirement for search warrants, our Supreme Court has explained:

The Fourth Amendment to the United States Constitution 

commands that “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, 

and particularly describing the place to be searched, and the 

persons or things to be seized.” . . . Similarly, Article I, Section 

8 of the Pennsylvania Constitution provides that “[t]he people 

shall be secure in their persons, houses, papers and possessions 

from unreasonable searches and seizures, and no 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, supported by oath or affirmation subscribed to by 

the affiant.”

Commonwealth v. Jacoby, 170 A.3d 1065, 1081 (Pa. 2017).

The following law applies to the issuing authority’s determination of 

whether an affidavit contains sufficient probable cause:

It is well-established that a magistrate may not consider any 

evidence outside of the affidavit to determine whether probable 
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cause exists to support a search warrant. [B]efore an issuing 

authority may issue a constitutionally valid search warrant, he or 

she must be furnished with information sufficient to persuade a 

reasonable person that probable cause exists to conduct a 

search. . .. [S]uch information must be viewed in a common 

sense, nontechnical, ungrudging and positive manner . . ..

The task of the issuing magistrate is simply to make a 

practical common-sense decision whether, given all 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.

Mendoza, 287 A.3d at 462 (internal citations, quotations, and brackets 

omitted).

A reviewing court is not to conduct a de novo review of the issuing 

authority’s probable cause determination; instead:

[It] is simply to determine whether or not there is substantial 

evidence in the record supporting the decision to issue a 

warrant. . .. 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.

Thus, although reasonable minds frequently may differ on 

the question whether a particular affidavit establishes probable 

cause, the deference afforded a magistrate judge ensures that, if 

a substantial basis exists to support the magistrate’s probable 

cause finding, the [suppression] court must uphold that finding 

even if a different magistrate judge might have found the affidavit 

insufficient to support a warrant.

Id. at 463 (internal citations, quotations, and brackets omitted; some ellipses 

in original).

An affidavit of probable cause must “establish a ‘substantial nexus’

between the suspect’s home and the criminal activity or contraband sought to 
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permit the search of the home.” Commonwealth v. Nicholson, 262 A.3d 

1276, 1280 (Pa. Super. 2021) (internal citation omitted). Probable cause “to 

believe that [an individual] has committed a crime does not necessarily give 

rise to probable cause to search his [or her] home.” Id. Indeed, the “affidavit 

of probable cause must establish a ‘substantial nexus’ between the suspect’s 

home and the criminal activity . . . to permit the search of the home. The 

task of the reviewing court is to ensure that the issuing authority had a 

substantial basis to conclude that probable cause existed.” Id. (internal 

citations omitted). In determining whether there is a “substantial nexus” 

between a suspect’s home and the criminal activity at issue, our Supreme 

Court has prohibited the use of “categorical assumptions” about where 

suspects are likely to store contraband; as our High Court has explained:

There is nothing even to suggest that similar people within the 

same general category would respond to a set of circumstances in 

the same way. Probable cause to search [a suspect’s] home 

must be evaluated based upon the circumstances of his 

case, his behavior, and any nexus to the location to be 

searched, but not upon categorical assumptions. Our 

Constitutions prohibit such categorical conclusions, as well as 

those searches that are based upon such conclusions.

Jacoby, 170 A.3d at 1085 (emphasis added). Instead, “there must be 

something in the affidavit that links the place to be searched directly to the 

criminal activity.” Nicholson, 262 A.3d at 1282.

Here, the Commonwealth maintains the suppression court erred in 

granting Yamilet Palacios’s suppression motion. Specifically, the 

Commonwealth argues “the lower court failed to give proper deference to the 
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issuing authority’s . . . probable cause determination, myopically re-evaluated 

the averments in the search warrant, and held the Commonwealth to a 

standard higher than whether or not there was a ‘fair probability[’

] [evidence 

from] the shooting a mere three days prior” would be found in the residence. 

Commonwealth’s Brief at 10. The Commonwealth asserts that “the evidence 

sought here – guns, clothing, and cell phones – are not by their nature easily 

exchanged, sold, consumed, or otherwise disposed of.” Id. at 12. The 

Commonwealth also notes that Yamilet Palacios would have been unaware 

that surveillance footage captured her or that she was a suspect, which 

decreases the likelihood that she would have disposed of the contraband. See 

id. at 14-15.

The suppression court considered the Commonwealth’s argument and 

determined the Commonwealth was due no relief:

Initially, the Commonwealth has failed to establish a 

“substantial nexus” between the home of [Yamilet Palacios] and 

the criminal activity. . .. [See] Nicholson, 262 A.3d [at] 1280[; 

see also] Jacoby, 170 A.3d [at] 1084-85 [] (probable cause to 

search a residence for a murder weapon does not exist in the 

absence of a nexus to the residence).

This is not an investigation in which “hot pursuit” led the 

police to [Yamilet Palacios’s] residence. No evidence exists that 

[Yamilet Palacios] or Edwards were even seen at the 9th Street

apartment after the shooting. The best that the affidavit provides 

is that the BM[W] . . ., which was not registered to either [Yamilet 

Palacios] or Edwards, was seen “in a close proximity (around the

corner)” to the premises to be searched the next morning. 

Additionally, the search warrant was not executed until August 25, 

2021, almost four . . . days after the shooting. . ..
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This is not to say that the information in the possession of 

the police would generally be considered stale. However, in order 

to support a finding of probable cause, it must be shown that 

criminal activity at some prior time continued up to or about the 

time the search warrant was issued. . .. Here, the shooting was 

an isolated incident “pinpointed in time,” and not a continuing 

course of events. . ..

* * * *

. . . In this case, if categorical assumptions are rejected, 

i.e., how long someone would keep a firearm in their home after

participating in a shooting, then the factor that presents itself as 

the Commonwealth’s biggest obstacle to establishing probable 

cause is the nexus to the place to be searched. There must be

something in the affidavit that links [Yamilet Palacios’s] residence 

directly to the criminal activity or contraband. More is required 

than merely asserting because [Yamilet Palacios] resides with . . . 

Edwards at the 9th Street address, probable cause exists to 

believe that firearms and the other items to be searched for and 

seized would be located at that address. Probable cause, not

suspicion, is required.

Suppression Court Opinion, 9/2/22, at 6-8 (footnotes omitted).

Following our review, we conclude that the record supports the court’s 

factual findings, and its application of those facts to the current law. We note 

that Yamilet Palacios and Edwards were captured on surveillance footage 

riding in the white BMW near Santos-Rivera when he was shot. Someone was 

seen leaning out of the front passenger side window of the BMW in the area 

where Santos-Rivera was shot. A casing was found at that location, which 

matched other casings found down the road in the direction the white BMW 

was traveling. Yamilet Palacios and Edwards were identified by a detective as 

the driver and front passenger, respectively, of the BMW. Yamilet Palacios 

and Edwards shared the same address, namely the 9th street address listed 
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on the warrant. However, police did not observe the BMW parked in the 

vicinity of Yamilet Palacios’s residence shortly after the shooting or present 

any evidence that other eyewitnesses did; rather, police only observed the 

vehicle parked around the corner from the residence approximately nine 

hours after the shooting. See Affidavit of Probable Cause, 8/25/21, at ¶¶ 2, 

18. It was unknown (at least in terms of the affidavit of probable cause) 

where the BMW may have gone in the interim; and, further, the search 

warrant was not executed until three days after the police saw the BMW 

around the corner from Yamilet Palacios’s residence. 

If the Commonwealth’s categorical assumption about whether, how 

long, and where a suspect will retain firearms and clothing is rejected, as our 

Supreme Court has directed per Jacoby, then the evidence within the four 

corners of the affidavit failed to establish a “substantial nexus” between the 

shooting and residence. See Jacoby, 170 A.3d at 1085 (rejecting the trial 

court’s “categorical assumption” that people “generally hold on to guns . . . 

and that, as such, probable cause to search for guns exists in apparent 

perpetuity” in support of its finding that probable cause existed to search a 

defendant’s residence for a firearm fifteen months after the commission of a 

crime).3Instead, consistent with Nicholson and Jacoby, the fact that a 

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3 We are mindful of the Commonwealth’s argument that in Commonwealth 

v. Janda, this Court upheld a search warrant and affirmed a probable cause 

(Footnote Continued Next Page)
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suspect uses a vehicle during the commission of a crime may give rise to 

probable cause to search the vehicle; but the fact that a suspect thereafter at 

some point uses that vehicle to return home does not, without more,4 give 

rise to probable cause to search the residence, absent any other 

demonstration of a “substantial nexus” between the criminal activity and the 

residence, such as, for example, evidence that the suspect returned “directly” 

home after the criminal activity. See Nicholson, 262 A.3d at 1281. For these 

reasons, we cannot say the suppression court committed an error of law in 

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determination where police obtained a search warrant seven months later for 

a suspect’s residence to search for footwear the suspect had worn during a 

burglary, and concluded, in part, and apparently utilizing a categorical 

assumption, that “shoes, unlike drugs, are not an item commonly disposed of 

soon after they come into their owner's possession,” and, therefore, there was 

a fair probability they would be found in the suspect’s residence. 14 A.3d 147, 

159 (Pa. Super. 2011). Similarly, in Commonwealth v. Hutchinson, this 

Court, again in reliance on categorical assumptions, upheld an order denying 

suppression of the fruits of the search of a robbery suspect’s home, and 

concluded that “the items seized, a shirt and a gun, were each of a type 

reasonably likely to be found in the perpetrator’s home, especially given the 

short period of time [unspecified] between the commission of the crimes and 

the application for the search warrant.” 434 A.2d 740, 743 (Pa. Super. 1981). 

Jacoby’s prohibition on categorical assumptions casts doubt on the continuing 

viability of these holdings. Contra Commonwealth’s Brief at 13-16 (arguing 

for application of Janda and Hutchinson).

4 We emphasize that probable cause determinations are fact-intensive, and 

each case stands on its own specific fact pattern. See, e.g., Commonwealth 

v. Smith, 979 A.2d 913, 917 (Pa. Super. 2009) (observing that the “question 

whether probable cause exists in a given circumstance is so fact-intensive that 

well-settled legal principles in themselves offer cold comfort”) (internal 

citation and quotations omitted).
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granting Yamilet Palacios’s suppression motion and, therefore, affirm the 

order granting suppression.

Order affirmed.

Date: 11/14/2023