J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD LEE ARNDT

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1704 MDA 2018 Appeal from the Judgment of Sentence Entered September 14, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 0003980

- 2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E. *

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 24, 2019

Appellant Ronald Lee Arndt appeals from the judgment of sentence

following a bench trial and convictions for possession with intent to deliver

and possession of drug paraphernalia. 1 On appeal, Appellant contends the

trial court erred by denying his motion to suppress because the information in

the search warrant was stale, uncorroborated, unreliable, and hearsay within

hearsay. We affirm.

We set forth the following background, as t aken from the suppression

record. 2 On June 11, 2017, Detective Joseph Grego applied for a warrant to

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780

- 113(a)(30), (32).

2 We recognize that our scope of review is limited to the record available to the suppression court. In re L.J. , 79 A.3d 1073, 1085 (Pa. 2013). In thisJ

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search Appellant’s home for “any assets, paraphernalia, or other materials

related to the use or sales of” methamphetamine. Appl. for Search Warrant

and Authorization, 6/11/17 (emphasis added) (unpaginated). In support of

the application, Detective Grego averred the following in his affidavit of

probable cause:

3. That on June 29th, 2015, the Elizabethtown Police Department forwarded a Drug Task Force inf ormation form from a named citizen (complainant #1) stating that “ Phillip Bennett ” who lives at 303 N Hanover Street [,] Elizabethtown [,] PA is dealing heroin and meth. The complainant stated he/she “ watches a lot of in and out traffic and has witnessed dr ug deals in front of his/her building ”

. The complainant labels “ [Appellant] ” as a suspect and the

“ landlord ” of 303 N Hanover Street [,] Elizabethtown [,] PA. Detective Kelly of the Lancaster County Drug Task force was initially assigned this complaint and is familiar with Phillip Bennett from an ongoing methamphetamine investigation including Jere Kenneth Gilgore [,] Jr

. 4. That on July 28th, 2015, the Elizabethtown Police Department forwarded a Drug Task Force information form from a named citizen (complai nant # 1 ) stating that “ Phillip Bennett ” who lives at 303 North Hanover Street [,] Elizabethtown [,] PA, is always going to the apartment building across the street and people from the apartment building are always going to his residence and “ seeing drugs a l ot ”

. 5. That on August 25th, 2015 , the Elizabethtown Police Department forwarded a Drug Task Force information form from a named citizen (complainant #1 ) stating that “ [Appellant] ” who lives at 303 North Hanover Street [,] Elizabethtown [,] PA has drug tran sactions taking place at all times.

_________________ __________ ______ ____ _______ case, however, the trial court held an abbreviated suppression hearing at which only the warrant was admitted into evidence and the parties requested time to brief the issues. We have therefore included some excerpts from the trial for background purposes.J

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6. That during the week of March 30th, 2017, Your Affiant spoke

w ith a Confidential Informant (CI # 1 ). C I # 1 related that he/she has personal knowledge of an individual who is in the business of selling methamphetamine i n Elizabethtown, PA. CI#1 advised that he/she could controlled [sic] purchases of methamphetamine from this individual. CI# 1 has demonstrated his/her knowledge of Controlled Substances to specifically inc l ude Methamphetamine, its packaging, pricing, and term inology.

7. That during the week of March 30th, 2017, CI# 1 made a controlled purchase of a quantity of Methamphetamin e from an unknown individual in Elizabethtown [,] PA. This purchase was made under the direction and control of your Affiant using DTF/DA Funds. Your A f

fiant along with Detectives Lombardo, Vance and Ziegler of the Lancaster County Drug Task Force conducted surveillance of CI#1 meeting with the unnamed subject, the unnamed subject then went to the 300 block of North Hanover Street [,] Elizabethtown [,] PA, the unnamed subject then left the area of 300 block of North Ha nover Street and returned to CI # 1. CI #1 was searched before the controlled purchase with negative results for contraband. Afte r completing the controlled purchase, CI# 1 met with your Affiant and turned over a quantity of Methamphetamine. CI#1 was then searched again with negative results for contraband. Your Affiant performed a field test on a portion of the m ethamphe tamine and a positive result was obtained. During the controlled purchase, the unnamed subject told CI#1 that the methamphetamine was purchased from

“ Ronnie ”

. 8. That on May 30th, 2017, your Affiant conducted surveillance of 303 N Hanover Street [,] Elizabethtown [, ] PA. At approximately 1900 hours, your Affiant observed [Appellant] standing on the porch of 303 N Hanover Street [,] Elizabethtown [,] PA speaking with an unknown male.

9. That on May 31st, 2017, at 1549 hours, your Affiant observed [Appellant] leave 303 N Hanover Street [,] Elizabethtown [,] PA [,] with another male who I recognized to be Jere Kenneth Gilgore [,] Jr. [,] and get into a silver Dodge Dakota bearing PA registration ZBS9552 registered to Jere Kenneth Gilgore [,] Jr [.,] and then leave the area. Gilgore had been a subject of investigation for methamphetamine sales in the past by Detectives Kelly and Parduski of the Lancaster County Drug Task Force. Detectives Kelly and Parduski had obtained two controlled buys fo rJ

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methamphetamine from Gilgore’s r esidence, 45 N Cherry Alley [,] Elizabethtown [,] PA in October and November of 2015. Du ring their investigation, they also observed his silver Dodge Dakota bearing PA registration ZBS9552 parked outside.

10

. That on June 7th, 2017 [,] at approximately 030 5 hours, your Affiant, along with Detective Cavanaugh of the Lancaster County Drug Task Force, travelled to 303 N Hanover Street [,] Elizabethtown [,] PA [,] with the intent of conducting a trash pull. This would be in an attempt to corroborate the informat ion that your Affiant has compiled on [Appellant] (DOB: 01/05/1969) and his residence of 303 N Hanover Street [,] Elizabethtown [,] PA. Upon my arrival, I observed a black in color garbage can with several black bags of garbage inside or it. This trash can was on the edge of the sidewalk closest to the road, in front of 303 N Hanover Street [,] Elizabethtown [,] PA [,] and clearly placed for pick

- up. Your Affiant then conducted a trash pull and seized three garbage bags filled with trash. Your Affiant then c onducted a search of the garbage and located the following items: (1) small empty clear sandwich bag containing residue that tested positive for methamphetamine on 06/07/20 at 1249 hours, (1 ) small clear zip

- loc bag containing residue that [tested] positiv e for methamphetamine on 06/07/2017 at 1310 hours, (1) clear zip

loc baggie missing the entire bottom half on the bag, (1) piece of PPL [power utility] documentation with the name “ [Appellant] ” and the address of “303 N. Hanover St.”, and methamphetamine pipe with residue. Additionally, while conduct ing the trash pull, your Affiant observed a silver motorcycle bearing PA registration Y2274 parked in front of the trash can, on the street, in front of 303 N Hanover Street [,] Elizabethtown [,] PA. This moto rcycle and registration is in the name of “ [Appellant] ”

. Your Af f iant took pictures of said items of evidence and are hereby attached to this application.

11. That based on your Af fiant’ s training and experience utilizing clear plastic bags is a common t actic that drug dealers use to package and distribute narcotics (including but not limited to methamphetamine ). This is corroborated by the (1 ) sandwich baggie containing methamphetamine residue and the (1) small clear plastic bag containing methamphetami ne residue located in the trash pull.J

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12. That within the last 48 ho urs, your Affiant received infor mation from CI#1 that [Appellant] had additional quan [t] ities or methamphetamin e for sale.

Aff. of Probable Cause, 6/11/17, at ¶¶ 3

- 12.

Based on the affid avit, the magisterial district judge authorized the

search warrant of Appellant’s home, wh ich occurred on June 12, 2017. The

police seized , among other items, 46 grams of methamphetamine, a blue

notebook listing Appellant’s drug sales, drug paraphernalia, digital scale, small

plastic baggies, and $1,280. Compl., 6/12/17. The police arrested and

charged Appellant.

On September 12, 2017, Appellant filed a motion to suppress the

evidence recovered from Appellant’s home. The trial court held a brief hearing

on February 2, 2018, at the conclusion of which the trial court ordered the

pa rties to file memoranda of law addressing the suppression motion. On

February 23, 2018, Appell ant filed a memorandum of law contending that the

information in the affidavit of probable cause “was stale, nonspecific, lacked

independent police corroboration of information given by unreliable and

unproven informants, and failed to provide a valid and substantiated nexus to

believe there would be” drugs in Appellant’s home. Appella nt’s Mem. in Supp.

of Suppression, 2/23/18, at 7. According to the docket, the trial court denied

the suppression motion on April 17, 2018, but the order was not included in

the certified record transmitted to this Court.J

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The parties proceeded to a bench trial, at which the parties agreed to

stipulate to certain facts:

[Commonwealth]: The first witness would be Detective Joseph Grego from DTF. All the detectives are from the Lancaster County Drug Task Force. Detective Gre go would testify the search warrant was approved and signed by MDJ Hartman on June 11th of 2017. There was a briefing at the office of DTF on June 12, 2017, approximately 9 a.m. The search warrant was executed on June 12 of 2017. They knocked and announ ced. They breached the door. There were four people inside. The service portion of the search warrant was read, and the Miranda rights were read off of the little card that they carry with them. The search began. The role of Detective Grego was to col lect and log the evidence that the other detectives found. That evidence was put in the evidence locker and, in fact, it’s my understanding that defense is stipulating to chain of custody for all the exhibits.

[Appellant’s trial counsel agreed to stipula te].

[Commonwealth]: Detective Grego and Detective [Anthony] Lombardo read the Miranda warnings off of the long form, the eight

- and

- a
- half

- by

- 11 sheet, to [Appellant] once he was taken back to the station. [Appellant] made statements of, it’s my stuff. [ 3 ] He was selling to make money. He was having trouble with employment. He buys the methamphetamine out of state and he gets more or less two ounces of meth and sells it about an ounce a month. Most of the money in the safe is from the drug sales.

N.T . Trial, 6/7/18, at 4

- 5. Appellant testified that the drugs were for his

personal use. Id. at 12.

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3 Appellant had initially moved to suppress the statements, but withdrew the claim at the suppression hearing. N.T. Suppression, 2/2/18, at 2.J

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Appellant was convicted , and on September 14, 2018, the trial court
sentenced Appellant to fifteen months to four years’ imprisonment. Appellant

timely a ppealed and timely filed a court

- ordered Pa.R.A.P. 1925(b) statement.

Appellant raises the following issue:

Did the trial court err in refusing to suppress evidence where the warrant issued was based on information which was stale, nonspecific, lacked ind ependent corroboration of an unreliable third

- party informant, and failed to provide a nexus to believe there would be drugs found at [Appellant’s] home when the warrant was executed?

Appellant’s Brief at 5.

Appellant raises several challenges to the sear ch warrant. First, he

contends that the information set forth in the third, fourth, and fifth

paragraphs of the affidavit of probable cause is sta le. Id. at 14. Second,

Appellant argues the police failed to corroborate the stale information and

establis h the reliability of the named person and confidential informant. Id.

at 15. Appellant emphasizes that the confidential information did not identify

the seller of the drugs or any details of the alleged sale. Id. at 16. Moreover,

Appellant claims, the information was double hearsay. Id.

Appellant also asserts that the information in the eighth and ninth

paragraphs of the affidavit, in which a police officer observed Appellant with a

person of interest eighteen months earlier , was also invalid

. Id. at 17.

Specifically, he alleges that the police officer failed to substantiate Appellant’s

identification and that being seen with a person of interest eighteen months

ago did not establish criminal behavior. Id.J

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Appellant contends the evidence seized from the trash pull w as
insufficient to establish probable cause. Id. at 17

- 18. In particular, Appellant

concedes that drug paraphernalia, as well as evidence linking Appellant to the

address in question , was in the trash

. Id. Appellant, however, sugg ests that

the evidence only establishes that he lived at the address and that “someone

at the residence may have smoked methamphetamine.” Id. at 18. Appellant

insists, nonetheless, that the affidavit did not establish probable cause that

methamphetamine would be found. 4 Id. at 18

.
We state the standard of review:

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the su ppression court’ s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. The suppression court's leg al conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

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4 We note that Appellant is not challenging the constitutionality of the trash pull itself, but whether the evidence retrieved from Appellant’s trash established probable cause. See generally Commonwealth v. James , 69 A.3d 180, 182 (Pa. 2013) (citing Calif ornia v. Greenwood , 486 U.S. 35, 37 (1988), for proposition that the “ Fourth Amendment does not prohibit warrantless search and seizure of garbage left for collection outside curtilage of home ”).J

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Moreover, appellate co urts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre

- trial motion to suppress.

Commonwealth v. Shreffler , 201 A.3d 757, 763 (Pa. Super. 2018) (citation

omitted).

In evaluating an affidavit o f probable cause,

[t] he 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. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable caus e existed.

Commonwealth v. Manuel , 194 A.3d 1076, 1083 (Pa. Super. 2018) ( en

banc ) (citation, ellipses, brackets, and quotation marks omitted). “ Probable

cause exists where the facts and c ircumstances 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. Leed , 186 A.3d 405, 413 (Pa.

2018) (citations and quotation marks omitted).

In Commonw

ealth v. Jones , 988 A.2d 649 (Pa. 2010), the

Pennsylvania Supreme Court explained that a “ grudging or negative attitude

by reviewing courts towards warrants is inconsi stent with the Fourth

Amendment’ s strong preference for searches conducted pursuant to a

warrant; courts should not invalidate warrants by interpreting affidavits in a

hypertechnical, rath er than a commonsense, manner.” Jones , 988 A.2d atJ

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655

- 56 (quotation marks and citation omitted). “Reasonable minds,” the

Jones Court observed, “frequently may differ on the question [of] whether a

particular affidavit establishes probable cause, and we have thus concluded

that the preference for warrants is most appropriately effectuated by

according ‘great deference’ to a magistrate’s determination.” Id. at 656

(quotation marks, citation, and footnote omitted).

Instantly, the evidence retrieved from the garbage outside of Appellant’s

residence included plastic bags containing methamphetamine residue,

methamphetamine pipe, and mail from a utility company id entifying Appellant

as a resident. See Aff. of Probable Cause at ¶ 10. We agree with the trial

court that such evidence tended to establish probable cause that Appellant

was using methamphetamine. See generally Leed , 186 A.3d at 413; Jones ,
988 A.2d at 655

- 56; Manuel , 194 A.3d at 1083. Because the search warrant

for use or sale of methamphetamine was based on evidence retrieved from a

trash pull, the legality of which Appellant did not challenge, the trial court did

not err in deferring to the magistrat e district judge’s determination and

denying Appellant’s suppression motion. See Shreffler , 201 A.3d at 763.

W e therefore need not address Appellant’s other arguments attacking the

validity of the other information in the affidavit of probable cause. 5 F or these

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5 We agree with the trial court, however, that much of the i nformation in the affidav it of probable cause was stale. Cf. Commonwealth v. Jacoby , 170J

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reasons, because the trial court did not err in denying Appellant’s motion to

suppress, we affirm the judgment of sentence

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/24/2019

_________________ __________ ______ ____ _______ A.3d 1065, 1085 (Pa. 2017) (holding that although the search warrant was flawed, ultimately, the error was harmless).