J-A03027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SYEEN HILL

Appellee No. 1080 MDA 2016

Appeal from the Order Entered June 16, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0005746-2015

BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 12, 2017

The Commonwealth appeals the order of the Court of Common Pleas of

Lancaster County entered on June 16, 2016, granting Appellee Syeen Hill’s 

motion to suppress evidence obtained from the search of his residence. The 

Commonwealth argues the suppression court erred in finding the search 

warrant failed to set forth probable cause to search Appellee’s residence. 

We agree. Accordingly, we reverse and remand. 

The underlying facts are not at issue here. See Suppression Court 

Opinion, 6/16/16, at 1-5. Briefly, “based on the information supplied by 

[two] informants and the information gather[ed] through the officers’ 

surveillance of [Appellee], there was a fair probability that [Appellee] was a 

drug dealer who sold his drugs on the streets of Lancaster City, that he used 

his vehicle, a 2003 Chevrolet Impala, to facilitate some of his drug sales, 
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and that he continued to engage in criminal activity up to the time that 

warrant was issued.” Id. at 9. Accordingly, the suppression court denied 

Appellee’s motion to suppress to the extent it sought to suppress the 

evidence recovered from the search of Appellee’s person and vehicle. 

However, the suppression court granted Appellee’s motion to suppress to the 

extent it challenged the search of his residence. The suppression court, as 

noted, found the Commonwealth failed to present evidence sufficient to 

support issuance of a warrant to search Appellee’s residence. This appeal 

followed.

On appeal, the only issue is whether the Commonwealth presented 

sufficient evidence to justify issuance of a search warrant of Appellee’s 

residence. Commonwealth’s Brief at 4. 

When reviewing an [o]rder granting a motion to suppress we are 

required to determine whether the record supports the 

suppression court's factual findings and whether the legal 

conclusions drawn by the suppression court from those findings 

are accurate. In conducting our review, we may only examine 

the evidence introduced by appellee along with any evidence 

introduced by the Commonwealth which remains uncontradicted. 

Our scope of review over the suppression court's factual findings 

is limited in that if these findings are supported by the record we 

are bound by them. Our scope of review over the suppression

court's legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012) 

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).

The suppression court stated that 

a finding of a confidential informant’s reliability does not end 

[the suppression court]’s analysis of whether the search warrant 
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was adequately supported by probable cause. Instead, the four 

corners of the affidavit must contain sufficient facts to permit an 

issuing authority to reasonably conclude that there was 

contraband in the locations that were the subject of the search 

warrant. 

Suppression Court Opinion, 6/16/16, at 9.

The above-quoted language is indicative of the multiple errors 

committed by the suppression court in addressing the matter. First, it 

shows that the suppression court applied an incorrect standard for reviewing 

the issuing authority’s probable cause determination.

According to our Supreme Court, when deciding whether to issue 

a search warrant, “the task of the 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 supplying 

hearsay information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.” 

Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 925 

(1986), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 

2317, 76 L.Ed.2d 527 (1983). However, as our Supreme Court 

held, with respect to a court that is reviewing an issuing 

authority’s probable cause determination:

[the] reviewing court is not to conduct a de novo

review of the issuing authority’s probable cause 

determination, but 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.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 655 (2010) 

(internal citations, quotations, and corrections omitted).
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Commonwealth v. Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015) 

(footnote omitted).

From the above-quoted language of the suppression court’s opinion, it 

seems clear that the suppression court erroneously conducted a de novo

review of the magistrate’s determination, as opposed to determining 

whether there was substantial evidence in the record to support the decision 

to issue a warrant. Id.

The suppression court not only erroneously engaged in a de novo

review of the issuing authority’s probable cause determination, it also failed 

to give deference to the issuing authority’s probable cause determination, 

failed to view the totality of circumstances in a practical, common-sense 

manner, and possibly held the Commonwealth to a higher burden than 

probable cause. Indeed, the suppression court acknowledged that “during 

one of the controlled purchases[, Appellee] was observed leaving his home 

to sell drugs and then observed returning to his home immediately 

thereafter.” Suppression Court Opinion, 6/16/16, at 12. However, it also 

noted that “this fact, when viewed under the totality [of the circumstances], 

does not support with any reasonable amount of certainty that any criminal 

behavior was going on inside [Appellee]’s home.” Id. 

The paragraph of the affidavit of probable cause describing the 

controlled purchase mentioned by the suppression court reads as follows:

[D]uring the week of 18 October 2015, CI #1 made a controlled 

purchase of a quantity of cocaine from [Appellee], from 47 
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Caroline St. #2 Lancaster, PA.[1] This purchase was made under 

the direction and control of your [a]ffiant using DFT/DA funds. 

Your [a]ffiant and Detectives Kunkle and Vance of the Lancaster 

County Drug Task Force conducted surveillance of [Appellee] 

exiting 47 Caroline St. #2 Lancaster PA, meeting with CI #1 and 

then going back to 47 Caroline St. #2 Lancaster PA. CI#1 was 

searched before the controlled purchase with negative results for 

contraband. After completing the controlled buy, CI #1 met with 

your [a]ffiant and turned over a quantity of cocaine. CI #1 was 

then searched again with negative results for contraband. Your 

[a]ffiant conducted a field test on a quantity of the cocaine and a 

positive result was obtained.

N.T. Suppression Hearing, 4/6/16, at Commonwealth’s Ex. 1 (“Affidavit”) at 

¶ 12. 

In the paragraph immediately preceding the one just quoted, the 

affiant also stated:

[D]uring the months of September and October 2015 your 

affiant conducted surveillances at 47 Caroline St. #2, Lancaster 

County, PA. During these surveillances your affiant observed a 

silver 2003 Chevrolet Impala sedan, assigned Pennsylvania 

registration JYG-5505, parked in the parking lot next to 47 

Caroline St. #2, Lancaster County, PA. [Appellee] was observed 

exiting 47 Caroline St. #2, Lancaster County, PA, and getting 

into and operating the [vehicle]. Your [a]ffiant also observed 

[Appellee] meeting with unknown subjects on foot and in his 

vehicle in areas around 47 Caroline St., Lancaster PA for short 

periods of time. Your [a]ffiant observed this short term traffic 

on multiple occasions and this activity is consistent with drug 

sales.

Id. at ¶ 11.

____________________________________________

1 Appellee does not argue that he did not reside at that address. See 

generally Appellee’s Brief. 
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 As noted above, the suppression court concluded that the affidavit of 

probable cause did not establish a nexus between Appellee’s residence and 

the sale of contraband. We disagree. Viewing the totality of circumstances 

in a practical, common-sense manner, we conclude that substantial evidence 

supports the magistrate’s probable cause determination. 

It is undisputed that Appellee resided at 47 Caroline Street, Apt #2, 

Lancaster, and that there was a fair probability that he was a drug dealer 

selling drugs in Lancaster city. See Suppression Court Opinion, 6/16/16, at 

9. The affidavit also states that Appellee was seen on multiple occasions on 

foot, around his residence, meeting with unknown individuals for short 

period of times, an activity consistent with the sale of contraband. See 

generally Affidavit. On one occasion, the controlled purchase mentioned by 

the suppression court above, Appellee was seen exiting his residence, 

meeting and providing the confidential informant cocaine, and then returning 

to his residence. Affidavit at ¶ 12. Finally, it appears the suppression court 

did not consider affiant’s training and experience in dealing with illegal 

drugs. Indeed, in the affidavit, the officer stated that drug dealers often 

keep contraband in their residences. Affidavit at ¶ 2. Viewing these facts in 

a practical, common-sense manner, we conclude that these facts constitute 

sufficient evidence that Appellee was using his residence as the base for his 

illicit operations. 
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In a similar case, Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011), 

our Supreme Court noted:

The “trial court [] discounted the common sense import of the 

fact that after the controlled buy was arranged, the police 

observed Appellee leave his residence in his vehicle, [] drive to a 

location, conduct the transaction, and immediately return to his 

residence. This fact certainly connected the illegal transaction to 

Appellee’s residence, in a common sense, non-technical way, 

and permitted the issuing authority to conclude that drugs would 

likely be found in the residence. 

Id. at 1291. 

In Commonwealth v. Davis, 595 A.2d 1216 (Pa. Super. 1991), we 

similarly found informant’s observations of defendant making three drug 

sales in the street and entering a particular residence after concluding each 

sale, and, also defendant’s claim that he had just received a shipment of 

drugs, furnished adequate probable cause for a search warrant of 

defendant’s home. 

In light of the foregoing, therefore, we find that the suppression 

court’s reasoning that perceived no connection between the transaction and 

Appellee’s residence was flawed. Therefore, we conclude that the issuing 

authority had a substantial basis for determining that there was a fair 

probability that contraband would be found at Appellee’s residence, and, that 

the suppression court, by discounting portions of the affidavit of probable 

cause and conducting its own review of the evidence proffered by the 

Commonwealth, failed to give deference to the issuing authority’s probable 

cause determination. 
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The suppression court also stated that the Commonwealth’s evidence 

failed to show “with any reasonable amount of certainty that any criminal 

behavior was going on inside [Appellee’s residence].” Suppression Court 

Opinion, 6/16/16, at 12. We note the Commonwealth must show and prove 

that “there is a fair probability that contraband or evidence of a crime will be 

found in a particular case,” not that there was a “reasonable amount of 

certainty” that criminal behavior was going on inside Appellee’s residence. 

See Gray, 503 A.2d at 925. To the extent the suppression court held the 

Commonwealth to a burden higher than “probable cause” the suppression 

court erred.

Finally, in support of its ruling, the suppression court relied on 

Commonwealth v. Kline, 335 A.2d 361 (Pa. Super 1975) (en banc) and 

Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985). In Gagliardi, 

this Court distinguished Kline and Way. 

However, neither opinion controls the resolution in the case at 

bar. Certainly, in Kline, this Court held that the affidavit of 

probable cause failed to establish a nexus between the drug 

dealer’s apartment and the contraband because the affidavit 

omitted certain facts concerning the single, private transaction 

between the drug dealer and two girls. We held that these 

omitted facts included: “where the transaction [between the 

dealer and the two girls] took place, how long it took, how long 

[the dealer] was gone, [and] what led the girls to conclude that 

he had gone to his apartment [to retrieve the drugs].” Kline,

335 A.2d at 364. In the case at bar, however, we are dealing 

with [one] controlled transaction[]—that w[as] witnessed by the 

police and recounted, in detail, in the affidavit of probable cause. 

Further, the affidavit in the case at bar clearly recites “where the 

[controlled] transaction[] took place” and “what led [the police] 

to conclude” that [appellant] left his home prior to the drug sales 
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and then returned to his home after the drug sales. See id. 

Kline is thus inapposite to the facts of this case.

Moreover, Way is of even less persuasive value than Kline. In 

Way, the affidavit of probable cause merely declared that: the 

defendant was a drug dealer; an “alleged [drug] transaction 

occurred in [the defendant’s] blue van along a country road[; 

and, a]fter the alleged [drug] transaction, police followed the 

blue van to a driveway of a property” that was owned by the 

defendant. Way, 492 A.2d at 1152–54. Confronted with this 

affidavit, the Way Court held that there were “[insufficient] facts 

to believe that drugs would be found” in the defendant's house 

and that the search warrant for the defendant's house was thus 

defective. Id. at 347. Way is inapplicable to the case at bar. 

Indeed, in Way, the totality of the circumstances demonstrated 

that the defendant’s base of operations for his drug dealing was 

his blue van—while in the case at bar, the facts establish that 

the [Appellee]’s base of operations for his drug dealing was his 

[residence]. 

Gagliardi, 128 A.3d at 798. Accordingly, for the same reasons stated in 

Gagliardi, we also conclude that the suppression court’s reliance on Kline

and Way was misplaced. 

The suppression court also found the Commonwealth’s reliance on 

Davis was misplaced because here, as opposed to Davis, there was not 

sufficient evidence to link Appellee’s residence with the sale or storage of 

drugs. In particular, the suppression court noted that neither informant 

alleged that Appellee was selling drugs from his home or that he was using 

his home to store drugs, that neither informant indicated being inside 

Appellee’s residence or even knew Appellee’s address, and that the 

information provided in the affidavit would instead indicate that Appellee was 

selling drugs out of his vehicle. Suppression Court Opinion, 6/16/16, at 12. 
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Finally, the suppression court noted that the instant case was also 

distinguishable because the quantity of cocaine involved in Davis was 

substantial, which led to the inference that defendant in Davis was keeping 

the drugs at his place. Here, however, the suppression court reasoned, 

there is no indication of quantity “to support the inference that [Appellee] 

was necessarily storing the drugs in his home.” Id. at 13. 

The determination whether there was probable cause to believe 

Appellant sold drugs out of his residence or used his residence as a storage 

location must be made by the issuing authority in light of the information 

available, not in light of the information not present. The missing 

information, while useful, is not determinative of the existence of probable 

cause. Here, as noted above, looking at the information available in a 

common sense, non-technical way, there was enough information to permit 

the issuing authority to conclude that drugs would likely be found in 

Appellee’s residence. 

Regarding the suppression court’s observation that the information 

available would suggest that Appellee was running his business out of his 

car, rather than out of his residence, we note that, although the 

circumstances of some transactions potentially pointed to Appellee’s vehicle 

as a storage location for the drugs, “the law does not require that the 

information in a warrant affidavit establish with absolute certainty that the 

object of the search will be found at the stated location, nor does it demand 
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that the affidavit information preclude all possibility that the sought after 

article is not secreted in another location.” Davis, 595 A.2d at 1222. 

In light of the foregoing, we conclude that the issuing authority had a 

substantial basis for determining that there was a fair probability contraband 

would be found at Appellee’s residence. Thus, we vacate the suppression 

court’s order at issue here and remand.

Order vacated. Case remanded. Jurisdiction relinquished. 

Judge Dubow joins this memorandum.

Judge Lazarus files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2017