J-A10019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
               v.                         :
                                          :
                                          :
 WILFREDO CORDERO                         :   No. 2674 EDA 2017

                    Appeal from the Order July 18, 2017
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0000533-2017


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED JUNE 26, 2018

      The Commonwealth appeals from the order granting Wilfredo Cordero’s

motion to suppress. We conclude that the trial court did not err in concluding

that the search warrant was unconstitutionally overbroad and in granting the

motion to suppress. We affirm.

      Cordero was charged with possession with intent to deliver a controlled

substance (“PWID”), possession of a controlled substance, and possession of

drug paraphernalia. 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-

11(a)(32).

      Cordero’s arrest occurred following the execution of a search warrant

for his residence. The Application for Search Warrant was based on an Affidavit

of Probable Cause signed by John Leonard, a police officer with the Vice and

Intelligence Unit of the City of Allentown Police Department. Aff. of Probable

Cause at ¶ 1. The Affidavit detailed the affiant’s experience, including that he

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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had been a police officer since 2012 and with the Vice and Intelligence Unit

since January 2016, and that he had participated in “more than 75 search and

seizure warrants,” “participated in the arrests of numerous individuals” for

drug violations, and “interviewed numerous drug users and drug distributors.”

Id. at ¶ 2. The affiant stated that, based on his experience, “large scale

dealers” or “narcotic traffickers”: (1) “maintain books, receipts, notes,

ledgers, relating to the purchase of financial instruments and/or the transfer

of funds, and other papers relating to the transportation, ordering, sale, and

distribution of Controlled Substances”; (2) “secret contraband, proceeds of

narcotics sales, and records of drug transactions in secure locations within

their residences of relatives [sic] and associates, safe deposit boxes, and/or

other locations (including buried on the grounds thereof)”; (3) “build ‘stash’

places within their residences”; (4) “maintain evidence pertaining to their

obtaining, secreting, transfer, concealment and/or expenditure of drug

proceeds; such as: currency, financial instruments, precious metals, and

gemstones, jewelry, books, records, invoices, receipts, records of real estate

transactions, bank statements and related records, passbooks, money drafts,

letters of credit, money orders, bank drafts[,] cashier’s checks, bank checks,

safe deposit box keys, and money wrappers”; (5) “maintain addresses or

telephone numbers in books or papers which may reflect names, addresses,

and/or telephone numbers of their associates in the trafficking organization,

and/or individuals involved in their money laundering activities”; (6) “take or

cause to be taken photographs of themselves, their associates, their property,

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and their product using still photographs, digital photographs, video cameras,

and/or camera phones”; (7) “have in their possession[,] that is on their

person, at their residence and/or their businesses, firearms”; and (8) “utilized

cellular telephones to make telephone calls to and receive calls from

customers and sources of supply and associates.” Id. at ¶ 3.

      The affiant then detailed three occasions where a confidential informant

texted “Will” at a specified phone number, entered the rear door of Apartment

1 at 950 West Liberty Street, and returned with a “white in color rock-like

substance,” which tested positive for cocaine. Id. at ¶¶ 6-9. The affiant further

stated that he conducted surveillance of 950 West Liberty Street at diverse

times in the month preceding the application. Id. at ¶ 10. He observed people

“entering the building,” but “only stay[ing] for brief moments” and observed

from the sidewalk, numerous “glass pipes commonly used to smoke crack[]

littered around [the] curtilage” of the location. Id. ¶

      The search warrant then listed the following items to be seized:

         1. Computers and their contents, books, records, receipts,
         notes, ledgers, and other papers relating to the
         transportation, ordering, purchase and distribution of
         controlled substances, as mentioned in the probable cause
         affidavit.

         2. Papers, tickets, notes, receipts, and other items relating
         to domestic and international travel.

         3. Books records, invoices, receipts, records of real estate
         transactions, bank statements and related records, money
         draft, letters of credit, money orders, bank drafts, and
         cashier’s checks, bank checks, safe deposit box keys,
         money wrappers, and other items evidencing the obtaining,
         secreting, transfer, and/or concealment of assets and the

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       obtaining, secreting,       transfer,    concealment      and/or
       expenditure of money.

       4. Electronic equipment, such as facsimile machines,
       currency    counting    machines,    telephone answering
       machines, and related manuals used to generate, transfer,
       count, record and/or store the information described in
       items 1, 2, 3, and 5 of this appendix.

       5. United States Currency, precious metals, jewelry, and
       financial instruments, including stocks, bonds, money
       orders and traveler’s checks.

       6. Photographs, including still photographs, negatives, video
       tapes, films, undeveloped film, slides, digital media, digital
       media storage devices, in particular photographs of co-
       conspirators, of assets and/or controlled substances.

       7. Address and/or telephone books, any papers reflecting
       names, address, telephone numbers, pager numbers, fax
       numbers and/or telex numbers of co-conspirators, source of
       supply, customers, financial institution, and other
       individuals or businesses with whom a financial relationship
       exists.

       8. Indicia of occupancy, residency, and/or ownership of said
       premises, described in the probable cause affidavit,
       including but not limited to: Utility bills, telephone bills, rent
       receipts, rental agreements, cancelled envelopes, sent via
       U.S. Postal Service, clothing and keys to door locks of said
       premises.

       9. Weapons, including but not limited to handguns,
       shotguns, rifles, and automatic weapons, including any and
       all stolen handguns, shotguns, rifles, and automatic
       weapons and ammunition.

       10. Cellular telephones and their contents, including but not
       limited to SMS and other text messaging, contacts, stored
       photographs and/or videos, stored incoming and outgoing
       call information.

       11. Documents pertaining to ownership and/or control of
       other locations by the way of leases, keys, utility bills, and
       other documents.



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         12. Controlled substances and paraphernalia for the use or
         distribution of controlled substances.

         13. All persons present at 950 West Liberty Street,
         Apartment #1, Allentown Pa 18102.

Application for Search Warrant, Appendix A (emphasis omitted).

      On April 24, 2017, Cordero filed an Omnibus Pre-trial Motion, which

included a motion to suppress the evidence discovered during the search of

his residence. He argued the search warrant was overbroad and contained an

unreasonable discrepancy between the descriptions of items to be searched

for and seized and the allegations in the affidavit of probable cause. Omnibus

Pretrial Mot., filed Apr. 24, 2017, at ¶ 14.

      On June 14, 2017, the trial court held a hearing on the motion and

permitted Cordero to file a letter brief in support of the suppression issue. On

July 18, 2017, it granted the motion to suppress evidence obtained as a result

of the execution of the search warrant. The court found the Application for

Search Warrant was overbroad and “not tailored to fit the facts of the within

matter,” and therefore the police officers obtained the evidence in violation of

Article 1, Section 8 of the Pennsylvania Constitution. Trial Court Opinion, filed

July 10, 2017, at 6. The Commonwealth filed a timely notice of appeal, which

included a certification that the order “will terminate or substantially handicap

the prosecution.” Notice of Appeal, filed Aug. 16, 2017; Pa.R.A.P. 311(d).

      The Commonwealth raises the following issues on appeal:

         1. Did the lower court err when it deemed the search
         warrant overbroad and invalid thereby suppressing physical
         evidence properly seized?


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         2. In any event, are the purported overbroad portions of the
         search warrant severable?

Commonwealth’s Br. at 4 (suggested answers omitted).

      First, the Commonwealth argues that the trial court erred in granting

the motion to suppress. It claims the court overlooked portions of the warrant,

including the affiant’s training and experience and his observations. It further

notes that there is only one crime for drug dealing, PWID, and it does not

have different degrees based on the number of exchanges or type of controlled

substance. It further argues that whether the defendant is involved in a large

or small drug operation is irrelevant. The Commonwealth concludes that,

based on the totality of the circumstances—the affiant’s training and

experience, his personal observations, and the information from the

confidential informant—the list of potential items was reasonable and the

warrant was not overbroad.

      “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.” Commonwealth v. Jones, 988 A.2d

649, 654 (Pa. 2010). “Where, as here, 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.’” Id.

(quoting Commonwealth v. Mistler, 912 A.2d 1265, 1269 (Pa. 2006)).

      The Pennsylvania Supreme Court has further explained that:

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         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, non-technical
         manner.

                                         ...

         [Further,] a 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 the warrant.

Id. at 655 (quoting Commonwealth v. Torres, 764 A.2d 532, 537–38, 540

(Pa. 2001)) (alterations in original).

      Article I, Section 8 of the Pennsylvania Constitution provides, in

pertinent part: “[N]o 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 . . . .” Pa. Const. Art. I § 8. This Court has explained that “a

warrant must name or describe with particularity the property to be seized

and the person or place to be searched.” Commonwealth v. Orie, 88 A.3d

983, 1002 (Pa.Super. 2014) (quoting Commonwealth v. Rivera, 816 A.2d

282, 290 (Pa.Super. 2003)). “The particularity requirement prohibits a

warrant that is not particular enough and a warrant that is overbroad,” which

are separate, but related, issues. Id. (quoting Rivera, 816 A.2d at 290). A

warrant is unconstitutional due to a lack of particularity where it “authorizes

a search in terms so ambiguous as to allow the executing officers to pick and

choose among an individual’s possessions to find which items to seize.” Id.

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(quoting Rivera, 816 A.2d at 290). A warrant is unconstitutional as overbroad

where it “authorizes in clear or specific terms the seizure of an entire set of

items, or documents, many of which will prove unrelated to the crime under

investigation.” Id. at 1002-03 (quoting Rivera, 816 A.2d at 290). “An

overbroad warrant is unconstitutional because it authorizes a general search

and seizure.” Id. at 1003 (quoting Rivera, 816 A.2d at 290).

        In assessing the description’s validity, “a court must initially determine

for what items probable cause existed.” Id. (quoting Rivera, 816 A.2d at

291). The court must then measure “[t]he sufficiency of the description . . .

against those items for which there was probable cause.” Id. “Any

unreasonable discrepancy between the items for which there was probable

cause    and the      description in     the   warrant requires suppression. An

unreasonable discrepancy reveals that the description was not as specific as

was reasonably possible.” Id.1

        In Commonwealth v. Grossman, the Pennsylvania Supreme Court

concluded that a search warrant was unconstitutionally overbroad where it

allowed a search for and seizure of “[a]ll insurance files, payment records,

receipt records, copies of insurance applications and polices, [and] cancelled

checks.” 555 A.2d 896, 897, 900 (Pa. 1989) (some alterations in original).

____________________________________________


1 Pennsylvania’s requirement that the warrant describe the items to be seized
“as nearly as may be” is “more stringent” than the Fourth Amendment’s
requirement of particularity in the description, Orie, 88 A.3d at 1003, and it
requires that the warrant “describe the items as specifically as is reasonably
possible.” Id. (quoting Rivera, 816 A.2d at 290).

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The affidavit in support of the warrant application, included facts regarding

irregularities in three client files and then concluded “there [was] sufficient

probable cause to believe [the defendant] . . . fraudulently executed various

documents in connection with an ongoing scheme to defraud insurance

applicants.” Id. at 900 (some alterations in original). The Court noted that

“[a]lthough . . . the police may have had suspected that other clients were

being defrauded, the affidavit that was placed before the issuing judge did not

include any such additional information.” Id. The Court held that, although

there was probable cause to search for the files of the three named clients,

there was not probable cause to search the other files. Id. The Court held the

warrant was unconstitutionally overbroad and suppressed all evidence seized

as a result of the warrant. Id.

      In Commonwealth v. Orie, this Court addressed a series of search

warrants. We found that the warrant for a flash drive was overbroad where it

sought “any contents contained therein, including all documents, images,

recordings, spreadsheets or any other data stored in digital format.” Orie, 88

A.3d at 1008. We noted there was no limitation to account for non-criminal

use of the flash drive. Id. We similarly found that a search warrant for an

email account seeking “all stored communications and other files . . . between

August 1, 2009 and the present, including all documents, images, recordings,

spreadsheets or any other data stored in digital format,” was overbroad. Id.

(alteration in original).




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      In Orie, we denied relief because, although the flash drive and email

account were seized pursuant to an overbroad warrant, the police did not

search the flash drive or account until subsequent, more detailed warrants

that provided particularity were issued. Id. at 1008. In Commonwealth v.

Melvin, 103 A.3d 1, 17 (Pa.Super. 2014), we addressed search warrants for

email accounts similar to the warrant issued in Orie. We concluded that the

trial court erred in not granting the motion to suppress because the warrant

was overbroad and, unlike in Orie, there were no “unique facts” in Melvin

from which to conclude the search was proper. Id. at 18-19. The police did

not obtain a second search warrant following seizure of the email account and

prior to the search. Id. at 19.

      Here, the trial court concluded the search warrant was “overbroad and

not tailored to fit the facts of the within matter,” and, therefore, the police

officers had seized the evidence in violation of Article I, Section 8 of the

Pennsylvania Constitution. Trial Ct. Op., at 6. The trial court reasoned that the

Application and Affidavit of Probable Cause described street-level dealing for

three single purchases of cocaine by the same confidential informant. Id. at

7. The drug transactions “were arranged via text messaging to the same

cellular telephone number . . . and were effectuated at the rear door of an

apartment building.” Id. The court noted that the facts supported the issuance

of a search warrant and seizure of “cocaine, currency, drug paraphernalia,

records consistent with the selling of cocaine, and the single cellular

telephone.” Id. The court, however, found the facts did “not support a warrant

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that would allow for the search and seizure of items consistent with a large

scale drug trafficking operation.” Id. The court noted that the warrant allowed

for the search and seizure of items associated with a large scale drug

trafficking organization. Id. The items listed were “so broad and overreaching

that [the warrant] allow[ed] for the seizure of entire sets of items unrelated

to the crime for which [Cordero] was under investigation.” Id. at 7-8. It

concluded that an unreasonable discrepancy existed between the items for

which probable cause existed and the “generally described voluminous list set

forth in Appendix A of the Application for Search Warrant.” Id. at 8.

      We agree. The warrant permitted a general search and seizure at

Cordero’s residence. The Application for a Search Warrant and Affidavit of

Probable Cause contained evidence to establish probable cause existed to

believe cocaine and items associated with the distribution of cocaine would be

found in the home. They did not, however, contain probable cause to search

for many of the items listed, including, but not limited to, “[c]omputers and

their contents, books, records, receipts, notes, ledgers, and other papers

relating to the transportation, ordering, purchase and distribution of controlled

substances,” “[p]apers, tickets, notes, receipts, and other items relating to

domestic and international travel,” “record of real estate transactions, bank

statements and related records,” “precious metals, jewelry, and financial

instruments,” and “cellular telephones and their content.” Application for

Search Warrant, Appendix A. Such categories were broad, and, as in Orie,

the warrant made no limitation for the non-criminal use of the items.

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       Further, the affiant’s experience and knowledge contained in the

affidavit did not provide the necessary link to establish probable cause. The

affiant stated his experience with “large scale” dealers or “narcotics

traffickers.” He provided no information to establish that Cordero was a large

scale drug dealer or narcotics trafficker. Rather, the facts state that a

confidential informant, on three occasions, texted the same phone number,

entered the rear door of Apartment 1, and returned with cocaine. This does

not establish probable cause to believe that Cordero was a large scale dealer

or narcotics trafficker. Further, the additional facts observed by the affiant,

including people staying inside the building for only brief periods and drug

paraphernalia on the sidewalk, do not change the outcome. Because the

residence was an apartment, and others likely lived at the street address,

without more to connect such observations to Cordero or his apartment, we

cannot conclude that this provides a nexus to support a conclusion that

Cordero was a “large scale drug dealer” or “narcotic trafficker.”2 See

Grossman, 555 A.2d at 900; cf. Commonwealth v. Iannelli, 634 A.2d
____________________________________________


2 The Application includes the following description of the residence to be
searched: “950 West Liberty Street Apartment #1 Allentown PA 18102. 950
West Liberty Street is a three story multi-unit apartment complex with white
in color exterior brick and a flat roof. Apartment# 1 is located on the first floor
and has a white in color exterior door that exits into the rear yard of 950 West
[L]iberty St.” Application for Search Warrant at 1. The Application and Affidavit
do not contain information regarding the number of apartments in the
building. Further, the affiant states he observed people entering the building
and leaving shortly, but does not say whether such people entered through
the white door that exits into the rear yard.



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1120, 1130-31 (Pa.Super. 1993) (finding search warrant not overbroad where

affidavit established probable cause to believe defendant was at top of corrupt

organization, that he received income from pattern of racketeering activity,

and that he headed organization formed for purpose of engaging in commerce

of running illegal lotteries and bookmaking operations).3

       The Commonwealth next contends that even if the warrant was

overbroad, the trial court erred in failing to apply the doctrine of severance.

It claims the trial court “should have severed the warrant and deemed the

items seized, which were plainly supported by probable cause, to be

admissible.” Commonwealth’s Br. at 21.

       “The doctrine of severance mandates that invalid portions of a search

warrant may be stricken and the remaining portions held valid, as long as the

remaining portions of the warrant describe with particularity the evidence to

be seized.” Commonwealth v. Bagley, 596 A.2d 811, 824 (Pa.Super. 1991).

The doctrine, however, does not apply where the warrant is “essentially

general in character.” Commonwealth v. Casuccio, 454 A.2d 621, 630

(Pa.Super. 1982). This Court noted that:

          [W]e do not mean to suggest that invalid portions of a
          warrant will be treated as severable under all
          circumstances. We recognize the danger that warrants
          might be obtained which are essentially general in character
____________________________________________


3 We do not agree with the Commonwealth’s contention that, because there
is only one Pennsylvania crime for the distribution of drugs, a search warrant
can seek to search for all items associated with drug dealers, regardless
whether the warrant establishes a nexus between the alleged dealer and the
item to be searched for and seized.

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          but as to minor items meet the requirement of particularity,
          and that wholesale seizures might be made under them, in
          the expectation that the seizure would in any event be
          upheld as to the property specified. Such an abuse of the
          warrant procedure, of course, would not be tolerated.

Id. (quoting Aday v. Superior Court of California, 362 P.2d 47 (Cal.

1961).4

       Here, the warrant was general and, therefore, we decline to apply the

severance doctrine. Many of the listed items were general categories and were

not supported by probable cause, including, but not limited to, computers and

their contents, items relating to domestic and international travel, cellular

telephones and their contents,5 and financial statements. Further, even for

the items for which probable cause did exist, the items were not described

with particularity. The affidavit stated that Cordero sold the informant cocaine.

The items to be searched for, however, included “[c]ontrolled substances and

paraphernalia     for   the   use    or   distribution   of   controlled   substances.”

Accordingly, we conclude the trial court did not err in declining to sever the

search warrant.

       Order affirmed.




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4 Cordero argues that the severance doctrine is unconstitutional under the
Pennsylvania constitution. Because we conclude that, even if constitutional,
the doctrine would not apply here, we do not reach this question.

5 Probable cause existed to seize the cellular telephone with the telephone
number contacted by the informant. It did not exist, however, to seize all
cellular telephones.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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