J-E01004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRUCE M. REESE

Appellant No. 52 EDA 2013

Appeal from the Judgment of Sentence of November 20, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0013539-2011

BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., 

OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

CONCURRING AND DISSENTING MEMORANDUM BY WECHT, J.:FILED JUNE 23, 2015

Among the claims raised by Bruce Reese in this case is his contention 

that the search warrant that was executed on his residence was not 

supported by probable cause because the information contained within the 

four corners of the affidavit did not establish a factual nexus between the 

crime committed on the street and his residence. Today’s learned Majority 

concludes that Reese has waived this claim because, inter alia, he 

abandoned that claim in his brief to the initial three-judge panel of this 

Court. See Maj. Mem. at 6-9. I have reviewed that brief, and I agree with 

the Majority that Reese has waived this claim.

That determination should end our review of that claim. The Majority 

nonetheless elects to address the merits of the claim, even though it 

concluded that Reese had not preserved that issue for our review. 
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Ultimately, the Majority concludes that, had the issue been preserved, Reese 

still would not have been entitled to relief. The Majority’s insistence on 

reviewing the waived claim compels me to dissent from, and to reject on the 

merits, that alternative discussion.

The relevant facts of this case are relatively few in number. Reese and 

another man robbed four men at gunpoint on a West Philadelphia Street. 

Reese wielded the gun during the robbery. Reese was identified by at least 

one person on the scene. The three other victims identified Reese as the 

perpetrator from a photo array. Two days after the robbery occurred, police 

obtained and executed a search warrant on Reese’s residence, which was 

not the location where the robbery had occurred. During the search, police 

found, inter alia, a black handgun, which turned out not to be a real firearm. 

In a pretrial suppression motion, Reese sought to suppress the 

evidence recovered during the execution of the search warrant. At the 

hearing on the motion, Reese argued that the warrant was not supported by 

adequate probable cause because the police did not establish a factual nexus 

between the crime committed on the street and his residence. The trial 

court denied the motion. On direct appeal, a panel of this Court reversed 

the trial court’s suppression order. We granted en banc review. As noted 

earlier, the present Majority, after finding the issue waived, explains that the 

warrant in fact was supported by probable cause. I disagree with that latter 

conclusion.
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The legal standards governing our review of this issue are wellestablished:

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 suppression 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. 

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003). 

Where . . . the appeal of the determination of the suppression 

court turns on allegations of legal error, the suppression court’s 

legal 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.” Commonwealth v. Mistler, 912 A.2d 

1265, 1269 (Pa. 2006) (quoting Commonwealth v. Nester, 

709 A.2d 879, 881 (Pa. 1998)). Thus, the conclusions of law of 

the courts below are subject to our plenary review.

* * *

Article I, Section 8 [of the Pennsylvania Constitution] and the 

Fourth Amendment [to the United States Constitution] each 

require that search warrants be supported by probable cause. 

“The linch-pin that has been developed to determine whether it 

is appropriate to issue a search warrant is the test of probable 

cause.” Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa. 

1991) (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191 

(Pa. 1986)). “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. 

Thomas, 292 A.2d 352, 357 (Pa. 1972).

In Illinois v. Gates, 462 U.S. 213 (1983), the United States 

Supreme Court established the “totality of the circumstances” 
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test for determining whether a request for a search warrant 

under the Fourth Amendment is supported by probable cause. 

In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986), [the 

Pennsylvania Supreme Court] adopted the totality of the 

circumstances test for purposes of making and reviewing 

probable cause determinations under Article I, Section 8. In 

describing this test, we stated:

Pursuant to the “totality of the circumstances” test set 

forth by the United States Supreme Court in Gates, 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 

who supply 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, nontechnical manner.

* * *

Commonwealth v. Torres, 764 A.2d 532, 537-38 (Pa. 2001) 

(emphasis added).

Commonwealth v. Jones, 988 A.2d 649, 654-55 (Pa. 2010) (internal 

citations modified). 

Our precedents require the Commonwealth to establish probable cause 

not only for the person suspected of criminal activity, but also for the 

premises to be searched:

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. . . . [A]n allegation based on an assumption or 
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supposition not supported by the facts is insufficient to support 

(an inference of) criminal activity in a 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.

Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975); see 

Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 1985) (“[T]he 

lack of a substantial nexus between the street crime and the premises to 

be searched renders the warrant facially invalid.” (emphasis added)). 

Additionally, a magistrate’s determination of probable cause “must be based 

[up]on facts described within the four corners of the supporting affidavit.” 

Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing 

Commonwealth v. Smith, 784 A.2d 182, 184 (Pa. Super. 2001)).

The November 14, 2011 affidavit of probable cause in this case 

primarily recites the events of the robbery and describes the complainants’ 

respective identifications of Reese. There is only one paragraph discussing 

the premises to be searched, which reads as follows:

[Reese] has [eight] prior arrest[s] in Philadelphia and list[s] 413 

N Edgewood for [six] of the arrest[s]. While being interviewed . 

. . [Harrison] informed [Detective] Mullen that during the 

afternoon hours of 11/13/11 he encountered the cousin of 

[Reese], a male he knows as Kyle Bentley, outside of 5700 

Belmar. [Harrison] stated [that Bentley] informed him that 

[Reese] is residing in West Philly. The address of 413 N 

Edgewood is in the West Philadelphia area. On 4/27/11[, Reese] 

was released from prison. The prison release information list[s 

Reese’s] address as 1413 N Edgewood. This address listing 

appears to be a typographical error. There are no connections 

for [Reese] to 1413 N Edgewood at all. 
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Continuation of Probable Cause for Search Warrant #161856, 11/14/2011, 

at 1. Stated simply, there is no information within the “four corners” of the 

affidavit of probable cause establishing any “nexus” between Reese’s 

address and the instant robbery. Way, surpa. There are ample facts in the 

affidavit to establish both Reese’s identity and that Reese resides at 413 

North Edgewood Street. However, the affidavit offers no factual basis for 

concluding that Reese’s putative residence was connected to this robbery in 

any way. Although the affidavit offered significant factual bases for 

concluding that Reese was a perpetrator, “[p]robable cause to believe that a 

man has committed a crime does not necessarily give rise to probable cause 

to search his home.” Way, 492 A.2d at 1154. 

This Court’s reasoning in both Kline and Way is highly instructive.

1

 In 

Kline, the police obtained a search warrant for an apartment after 

____________________________________________

1 Subsequent decisions have distinguished somewhat our holding in 

Kline and, by extension, Way. Specifically, this Court has enumerated 

several types of evidence that are sufficient to establish the “substantial 

nexus” between the place to be searched and the evidence to be seized. 

See Commonwealth v. Davis, 595 A.2d 1216, 1220-22 (Pa. Super. 1991) 

(holding that confidential informant’s observation of a defendant coming and 

going from a specific house between three different narcotics’ sales 

established “probable cause to believe that the objects sought . . . would be 

found in [the defendant’s] home.”); Commonwealth v. Macolino, 485 

A.2d 1134, 1136-38 (Pa. Super. 1984) (holding that police established 

probable cause to search a home, when the affidavit of probable cause 

contained information from wiretapped conversations emanating from the 

house discussing narcotics trafficking, and police surveillance of the 

property, wherein the defendant was observed coming and going from that 

house while meeting with a known narcotics supplier); Commonwealth v. 

(Footnote Continued Next Page)
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eyewitness complainants identified the defendant as a drug dealer and 

indicated that the defendant lived in that particular apartment. Specifically, 

three different informants stated that they had purchased drugs from the 

defendant in the preceding week. Although the complainants stated that the 

defendant kept the drugs that he sold in his apartment, there was no factual 

basis in the affidavit to support that claim:

[The suppression court] suppressed the evidence seized 

pursuant to the warrant because [the suppression court] 

concluded that although the affidavit contained facts sufficient to 

establish that [the defendant] was indeed dealing in drugs and 

lived in the apartment described, it did not contain facts 

sufficient to establish the basis [up]on which the several 

informants . . . had concluded that [the defendant] had gone to 

his apartment to get the drugs.

Kline, 335 A.2d at 362-63. On appeal, this Court upheld the suppression 

court’s ruling, stating that assumptions regarding the premises to be 

searched are insufficient to establish probable cause:

(Footnote Continued) _______________________

Frye, 363 A.2d 1201, 1204 (Pa. Super. 1976) (holding that a defendant’s 

admission may form the basis for establishing probable cause to search a 

specific locale, stating that “the nexus between the evidence to be seized 

and the place to be searched was provided by Frye’s admission that he was 

conducting at least part of his unlawful operations from his home.”). 

I read these cases as standing for the general proposition that, while the 

Commonwealth must establish a nexus between the place to be searched 

and the items to be seized, that burden is not meant to be harshly 

interpreted. However, the central holding of Kline and Way – that mere 

evidence of a suspect’s criminal activity and the location of his residence 

does not establish probable cause to search that residence – remains in 

force.
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Here, as far as appears from the affidavit, none of the 

informants said where the [drugs were.] The [informants] 

apparently concluded that [the drugs were] in [the defendant’s] 

apartment. However, an affidavit must set forth how 

information leading to such a conclusion was obtained. 

Commonwealth v. Ambers, 310 A.2d 347, 350 (Pa. Super. 

1973); Commonwealth v. Soychak, 289 A.2d 119, 124 (Pa. 

Super. 1972). There is no indication of where the transaction 

took place, how long it took, how long [the defendant] was 

gone, or what led the [informants] to conclude that [the 

defendant] had gone to his apartment. The information from the 

confidential informants does not corroborate their conclusion 

that [the defendant] kept drugs in his apartment, even though it 

does tend to establish that [the defendant] was a drug dealer.

Id. at 364 (internal citations modified). Thus, the mere fact that an affidavit 

of probable cause tends to establish the criminal activity of a defendant, and 

the location of his home, does not provide probable cause to support the 

issuance of a search warrant for that home.

In Way, this Court relied upon Kline to suppress evidence seized 

pursuant to a search warrant in another narcotics case:

The facts fairly summarized are that the informant arranged a 

drug transaction by phone. The alleged transaction occurred in a 

blue van along a country road. After the alleged transaction, 

police followed the blue van to a driveway of a property at the 

corner of Douglas Dr. and Glendale Rd. The informant identified 

appellant as the driver of the blue van. A police source told the 

affiant that appellant lived at the intersection of Douglas Dr. and 

Glendale Rd.

Way, 492 A.2d at 1154. The trial court concluded that the search warrant 

was supported by probable cause. On appeal, this Court reversed, 

concluding that, “within the four corners of the affidavit, we fail to find 
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sufficient facts to permit an issuing authority reasonably to conclude that 

there was contraband in the premises to be searched.” Id. 

Turning to the instant case, examining the totality of the 

circumstances, and considering only the evidence adduced by the 

Commonwealth and the uncontradicted evidence of the defense, there are 

no factual averments in the affidavit that establish any “nexus” between 

Reese’s home and the instant crime. Within its four corners, the affidavit 

establishes only probable cause to believe that Reese committed the robbery 

and lived at the subject residence. Consequently, Kline and Way are 

analogous to the present case: “[T]he lack of a substantial nexus between 

the street crime and the premises to be searched renders the warrant 

facially invalid.” Way, 492 A.2d at 1154; see Kline, 335 A.2d at 364. 

Other than a lone citation to Kline for establishing a general principle 

of law, the Majority pays no attention to the details of Kline or Way, or to 

the principle that emerges from those binding cases: that identity of the 

perpetrator and knowledge of his residence does not amount to probable 

cause to support a warrant to search a suspect’s residence. The police must 

set forth facts in the affidavit to establish a nexus between the crime and the 

residence. Here, as in those cases, the information contained in the affidavit 

of probable cause establishes only identity and the location of Reese’s 

purported residence. Per Kline and Way, this is simply insufficient to 

establish probable cause.
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The Majority pays lip service to the nexus requirement, but then skims 

through that essential inquiry by relying upon the fact that the police 

requested permission to search for, among other things, a gun, and upon 

the speculative assumption that guns are items that typically are kept in 

one’s home. See Maj. Mem. at 14. The Majority rests its conclusion on a 

single case: Commonwealth v. Hutchinson, 434 A.2d 740 (Pa. Super. 

1981). However, Hutchinson is too imprecise to be considered controlling 

in this case. 

On July 30, 1976, Hutchinson robbed four people in front of a medical 

center. Id. at 742. At the time of the robbery, Hutchinson was wearing a 

blue checked shirt and wielded a firearm. Two of the victims identified 

Hutchinson from a photograph. At an unknown time, police obtained and 

executed a search warrant on Hutchinson’s home, which resulted in the 

recovery of a blue checked shirt and a .22 caliber pellet gun. Id. 

Hutchinson challenged the constitutionality of the search warrant, 

alleging that the warrant was not supported by adequate probable cause due 

to the police’s failure to aver any facts to establish that evidence of the 

robbery in front of the medical center would be found inside his home. Id. 

at 742-43. This Court disagreed, noting 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 between the 

commission of the crimes and the application for the search 
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warrant.” Id. at 743 (citing United States v. Richard, 535 F.2d 246 (3d 

Cir. 1976)) (emphasis added). Conspicuously absent from the Hutchinson

opinion is any indication as how much time had passed between the crime 

and the application for the warrant, aside from the vague declaration that a 

“short period of time” had elapsed.

The Majority readily acknowledges that Hutchinson does not 

elaborate in any way on how much time had elapsed, or what constitutes a 

short period of time. See Maj. Mem. at 13. Nonetheless, the Majority 

concludes that the two days that elapsed between the robbery and the 

execution of the warrant in the case sub judice falls within the “short period 

of time” window. In other words, despite not knowing what constitutes a 

short period, the Majority determines that what happened in this case falls 

within that window, a curious conclusion to say the least. Hutchinson does 

not define the parameters of the inquiry, yet the Majority finds that this case 

falls within those parameters. It is for this reason that I would not apply 

Hutchinson to this case. It simply is too imprecise in its reasoning to 

provide useful guidance to other cases, including this one. 

Moreover, Hutchinson and the Majority’s application of Hutchinson

raise more questions than are answered. What if the time period between 

the crime and the warrant in Hutchinson was only eight hours? If the 

Hutchinson Court believed that eight hours was a “short period of time,” 

would it feel the same about two days? Where lies the outer boundary of a 
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“short period of time?” Three days? A week? Hutchinson is too vague to 

allow its application to this case with any degree of reliability or certainty, 

and certainly too vague to hold that it absolutely controls this case. I would 

rely upon the more precedentially sound and secure footing of Kline and 

Way, and would hold that identification of a suspect and location of 

residence is an insufficient nexus to establish probable cause to search a 

home at which the crime was not committed. And, even if Hutchinson

were controlling, I would not find two days to be a “short period of time.” 

I also reject the general proposition that police can establish the 

relevant nexus based only upon the type of item involved. That one person 

typically stores a gun in his home is not probable cause that someone else 

will do so. Probable cause is based upon facts and assertions, not upon 

surmise and unjustified assumptions. Hutchinson does not require me, or 

this Court, to make that assumption. Although Hutchinson noted that a 

gun is an item typically stored in a person’s home, that assumption did not 

alone establish probable cause in the Court’s view. That assumption was 

tethered to the fact that only a “short period of time” had elapsed since the 

commission of the crime. However, as I noted above, without discernible 

boundaries for what constitutes a “short period of time,” I would not apply 

Hutchinson strictly and would not hold that two days is in fact a “short 

period of time.” Absent such a holding, Hutchinson does not require that 

we find probable cause merely because of the unsupported assumption that 
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people typically store guns in their homes, particularly guns that have been 

used during the commission of a crime.

To hold otherwise would eliminate the nexus requirement set forth in 

Kline and Way. Most people store items of importance to them in their 

homes. Thus, police would never have to demonstrate that a person 

actually has stored the item used in the crime in their home. In other 

words, no longer would the police have to establish a factual nexus between 

the crime and the residence. Law enforcement officers only would have to 

aver that the item for which they are searching for is one of the thousands 

upon thousands of items that people normally store in their homes. Notably, 

even if this were all that were required, the police in the instant case did not 

even offer this minimal averment. Instead, the Majority makes this 

assertion for them. 

In sum, I agree with the Majority that Reese has waived the relevant 

claim implicated in this appeal. If I were the author of the majority 

memorandum, I would go no further. However, today’s Majority discusses, 

erroneously, the merits of the claim. Because the Majority does so, I am 

compelled to respond. I would hold that the police failed to establish 

probable cause to search Reese’s home because they did not aver, let alone 

establish, a factual nexus between the crime on the street and Reese’s 

home. Hence, I concur with the Majority’s waiver discussion, but I dissent 

from its discussion of the merits. 
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