J-S49013- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. RASHEED JOHNSON, Appellee No. 2800 EDA 2013

Appeal from the Order of September 5 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR -0005637-2012 BEFORE: OLSON, OTT and STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 17, 2014 The Commonwealth of Pennsylvania appeals from an orde r granting suppression in favor of Appellee, Rasheed Johnson, which was entered on September 5, 2013. 1 We reverse and remand. The factual background of this case is as follows: On [February 25,] 2012 the Pennsylvania [Society for the Prevention of Cruelty to Animals (“PSPCA”)] received a[ n anonymous] complaint regarding t[wo] dogs in the rear of [Appellee’s residence. 2 ] The complainant stated that there [were] two dogs in the rear yard with heavy chains, n o food or water[,] and the yard is full of feces and urine.

1 Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the Commonwealth certified in its notice of appeal “ that the order will terminate or substantially handicap the prosecution. ” Pa.R.A.P. 311(d).

2 The record is unclear as to Appellee’s relationship with the owner of the residence; however, there is no dispute that Appellee h ad a privacy interest in the residence.J-S49013- 14

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On [February 25,] 2012, at approximately 9:15[ a.m. PSPCA Officer Darlene Sosa] conducted an investigation into the complaint at [Appellee’s residence]. In the rear yard of the property, [Officer Sosa] observed one medium sized pit bull mix breed dog tethered on a heavy chain in [the] corner o f the yard. The collar on the dog appeared [to be] tight[] aroun d the neck. The area where the dog was chained was covered with fe ces and urine. The dog did not have access to food or water, or to clean sanitary condition[s]. [Officer Sosa] observed another heavy chain going into another dog house but [Officer Sosa] c ouldn’t see the dog at that time. That area was also covered in feces. [Officer Sosa] took [a] photo of the yard [that showed ] trash, debri[s,] and feces. [On February 25,] 2012 [Officer Sosa checked] the PSPCA cruelty database [which revealed that] the owner of th is property[,] Terrance Hayward[ ( “Hayward”), had previously been] found guilty [of dog fighting in] February 20 09. [As part of his sentence, he was prohibited from] owning animal s for five years. Affidavit of Probable Cause, 2/25/12, at 2. Based upon the above affidavit of probable cause, Off icer Sosa sought a search warrant for Appellee’s residence. A magistrate granted Officer Sosa’s application for a search warrant and Appellee’s re sidence was searched. Evidence of dog fighting and drug dealing was found in the

residence. The procedural history of this case is as follows. Appel lee was charged via criminal complaint with possession with intent to del iver a controlled substance, 3 possession of a controlled substance, 4 possessing an animal for

3 35 P.S. § 780-113(a)(30).

4 35 P.S. § 780-113(a)(16).J-S49013- 14

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fighting, 5 aiding animal fighting, 6 knowingly permitting animal fighting, 7 and possession of drug paraphernalia. 8 On May 16, 2012, a criminal information charging those same offenses was filed. On June 29, 2012, Appellee filed an omnibus pre-tri al motion, which included a motion to suppress the evidence seized from hi s residence. A suppression hearing was held on August 12, 2013, at the conclusion of which the suppression court granted Appellee’s motion to suppr ess. On August 21, 2013, the Commonwealth moved to reconsider the order suppressing the evidence. That same day, the suppression court vacated it s suppression order. On September 5, 2013, the suppression court hea rd argument on the Commonwealth’s motion for reconsideration. Following a rgument, the suppression court denied the Commonwealth’s motion for r econsideration and re-instated the original suppression order. This timely appeal followed. 9

The Commonwealth raises one issue for our review: Did the [suppression] court err by suppressing narcotics and evidence of dog fighting seized pursuant to a search war rant as

5 18 Pa.C.S.A. § 5511(h.1)(3).

6 18 Pa.C.S.A. § 5511(h.1)(14).

7 18 Pa.C.S.A. § 5511(h.1)(17).

8 35 P.S. § 780-113(a)(32).

9 On October 4, 2013, the Commonwealth filed a concise st atement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On December 9, 2013, the suppression court issued its Rule 19 25(a) opinion. The Commonwealth’s lone issue on appeal was included in its concise statement.J-S49013- 14

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there was a substantial basis for finding probable cause u nder the totality of the circumstances?

Commonwealth’s Brief at 3. “In addressing a challenge to a [suppression] court’s [suppression ruling] we are limited to determining whether the f actual findings are supported by the record and whether the legal conclusion s drawn from those

facts are correct.” Commonwealth v. Brown , 64 A.3d 1101, 1104 (Pa. Super. 2013), appeal denied , 79 A.3d 1096 (Pa. 2013) (internal alterations and citation omitted). “[O]ur scope of review is limite d to the factual findings and legal conclusions of the suppression court.” In re L.J. , 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). In this case, Appellee moved to suppress the evidence seiz ed from his residence because, according to Appellee, the magistrate lacked probable cause to issue the search warrant. Pennsylvania Rule of Criminal Procedure 203 provides, in relevant part, that: (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before t he issuing authority. . . . The issuing authority, in determinin g whether probable cause has been established, may not consider any evidence outside the affidavits.

* * * (D) At any hearing on a motion for the [] suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admiss ible to establish probable cause other than the affidavits pro vided for in paragraph (B).

Pa.R.Crim.P. 203.J-S49013- 14

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We have explained the probable cause requirement fo r issuance of a

search warrant as follows: [T]he question of whether probable cause exists for the issuance of a search warrant must be answered according to the to tality of the circumstances test articulated in Commonwealth v. Gray , 503 A.2d 921 (Pa. 1985), and its Pennsylvania prog eny, which incorporates the reasoning of the United States Su preme Court in Illinois v. Gates , 462 U.S. 213 (1983). . . . The task of the magistrate acting as the issuing authority is to ma ke a practical, common sense assessment of whether, given all th e circumstances set forth in the affidavit, a fair probabil ity exists that contraband or evidence of a crime will be found i n a particular place. A search warrant is defective if the i ssuing authority has not been supplied with the necessary info rmation. The chronology established by the affidavit of proba ble cause must be evaluated according to a common sense determina tion. Further, probable cause is based on a finding of the p robability, not a prima facie showing, of criminal activity, and deference is to be accorded a magistrate’s finding of probable cause. We must limit our inquiry to the information within the four corners of the affidavit submitted in support of probable cau se when determining whether the warrant was issued upon probab le cause. Commonwealth v. Arth ur , 62 A.3d 424, 432 (Pa. Super. 2013), appeal

denied , 78 A.3d 1089 (Pa. 2013). In this case, the four corners of Officer Sosa’s affidavit presented substantial evidence upon which the issuing magistrate coul d have reasonably determined that probable cau se existed to search Appellee’s residence. Officer Sosa, who had three years of experie nce investigating cruelty to animal cases, observed one (with evidence of a second) dog in unsanitary conditions. Specifically, Officer Sosa stated that the area was covered in feces, urine, trash, and debris. Officer So sa further stated thatJ-S49013- 14

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there was no food or water visible, that the one dog she saw was tethered with a tight chain around its neck, that the dog was a pitbull mix, and the owner of the residence had previously been convicted of dog fighting and was prohibited from owning animals. The suppression court erred by considering each of these factors independently instead of examining the totality of the circumstances. An affidavit based solely upon one of these facts might be insufficient for the magistrate to find probable cause. However, when consi dered together, the facts show a fair probability of ongoing criminal activ ity. For example, the suppression court stated as to the feces, urine, trash, and debris in the yard, such evidence “does not signify abuse without more.” Suppr ession Court Opinion, 12/9/13, at 4. However, there was more evi dence. The suppression court did not consider the unsanitary condition s of the yard in

combination with the fact that there was no food or wa ter, the dogs were chained with heavy chains, the collar on the one dog a ppeared to be tight, the dog was covered with feces and urine, and the one d og was a pitbull mix (a breed frequently used in animal fighting). Most g laring was the fact that Hayward, the owner of the residence, had previously b een convicted of animal fighting and was, at that time, prohibited fr om owning animals. The fact that a pitbull mix was present at Hayward’s residen ce, along with the other evidence summarized above, strongly supports a fai r probability thatJ-S49013- 14

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criminal activity was occurring inside the residence. Thus, Officer Sosa’s affidavit was sufficient to establish probable cause. The suppression court further erred by focusing on possi ble innocent explanations for the information included in the affi davit of probable cause.

See United States v. Booker , 612 F.3d 596, 601 (7th Cir. 2010) (“The possibility of an innocent explanation does not vitiate properly established probable cause.”); see also Commonwealth v. Thompson , 985 A.2d 928, 941 (Pa. 2009) (Castille, C.J. concurring) (citation om itted) (“an officer is not required to eliminate all innocent explanations f or a suspicious set of facts to have probable cause”). For example, the suppre ssion court focused on the fact that the dog may have been given water and food inside the house and thus did not require additional food and wa ter outside the

residence. See Suppression Court Opinion, 12/9/13, at 4; N.T., 8/12 /13, at 15. Although this is one possible innocent explanation, an equally plausible explanation is that the dog lacked proper food and wa ter. The suppression

court further surmised that the owner of the residence m ay have been planning on cleaning the yard that day. N.T., 8/12/ 13, at 15. Again, although this is one possible innocent explanation, an e qually plausible explanation is that the yard was never cleaned and the dogs were required

to live in filth. When all of the factors are conside red together, it is evident that probable cause existed to believe that proof of a crime would be found in Appellee’s residence.J-S49013- 14

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The suppression court also erred by faulting Officer Sosa for not conducting a more thorough investigation. Cf. Suppression Court Opinion, 12/9/13, at 4 (Offic er Sosa “took little time to determine all the facts.” ). Officer Sosa could not enter Appellee’s backyard and sear ch the doghouse nor could she search Appellee’s residence without a search warrant. Thus, any additional investigative techniques she could have employed would have been time consuming and difficult, if not impossible, wi thout a search warrant. Although Officer Sosa could have taken such st eps, they were not necessary in order to obtain probable cause to search th e residence. Finally, the suppression court erred by considering the manner in which the search warrant was executed when making its fo ur corners analysis. See N.T., 9/5/13, at 7 (“That breach of privacy against wh at is a very sparse warrant is really the reason that [the suppr ession court] decided on the [four] corners that they should have done a lo t more before they stole privacy rights from the [Appellee].”). Appellee’s argument that “the absence of any suggestion in the affidavit of probable cause or in the testimony of [Of ficer Sosa] at the suppression hearing that she . . . found a need to [car e for the dogs]” is without merit. Appellee’s Brief at 5. First, any te stimony at the suppression hearing could not properly be considered by the suppressi on court in determining whether the affidavit of probable cause w as sufficient for the magistrate to find probable cause to issue the search wa rrant. Instead, theJ-S49013- 14

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suppression court was limited to considering the four corne rs of the affidavit of probable cause. Second, Officer Sosa lacked authority to proceed onto Appellee’s land to care for the dogs without a search wa rrant. Instead, Officer Sosa immediately sought approval from a magistr ate for a search

warrant and was able to execute the search warrant tha t same day. In sum, the suppression court erred by conducting a de novo review of the magistrate’s finding of probable cause and by dissect ing each piece of evidence offered to support that determination. Inste ad, the suppression court should have reviewed the totality of the circumsta nces established by Officer Sosa’s affidavit to determine whether they pro vided a substantial basis for the magistrate to determine that they demons trated a fair probability that contraband or criminal activity would be discovered in Appell ee’s residence. Under the totality of the circumstances, it is clear that the search warrant was valid. Accordingly, we reverse th e suppression court’s order granting Appellee’s motion to suppress and remand for further proceedings consistent with this memorandum. 10 Order reversed. Case remanded. Jurisdiction relinq uished.

10 Appellee’s motion to suppress argued not only that the search warrant was defective but that the execution of the search warra nt was constitutionally defective. As the suppression court did n ot conduct a fu ll suppression hearing and rule on Appellee’s contention th at the execution of the search warrant was defective, we decline to decide in the first instance whether the suppression motion should have been grante d on those grounds.J-S49013- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/17/2014