Judges Opinions, — October 17, 2018 10:10 — 0 Comments

Commonwealth of PA vs. Brett Anthony Karmey and Gregory Teeter No. CP-38-CR-0001135-2017 and CP-38-CR-0001136-2017

Criminal Action-Constitutional Law-Burglary-Search Warrant-Hotel Room-Fourth Amendment-Probable Cause-Affidavit of Probable Cause-Discretion of Magisterial District Judge

Defendants, who were in the Lebanon area to work on pipeline construction and were charged with Criminal Conspiracy, Possession of an Instrument of Crime and violations of the Controlled Substance, Drug Device and Cosmetics Act related to their role in Burglary of a drug store, filed Omnibus Pretrial Motions to Suppress Evidence, asserting that the search warrant issued for the hotel room in which they were staying and in which contraband was located was issued without probable cause because it was based upon insufficient information.

1. The Fourth Amendment to the United States Constitution requires that a warrant be issued by a neutral and detached magistrate with that magistrate’s review based upon an independent determination of probable cause
2. In Pennsylvania, probable cause for a search warrant will be found to exist if police have a reasonable belief that items to be seized are related to criminal conduct and those items presently are located in the place to be searched.
3. In issuing a search warrant, the duty of the magistrate is to make a practical, common sense determination whether, given all of the circumstances set forth in the affidavit including the veracity and basis of knowledge of those supplying hearsay, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
4. The reviewing court must pay great deference to an issuing authority’s determination of probable cause for the issuance of a search warrant.
5. The magisterial district judge properly issued the search warrant when the affidavit of probable cause indicated that Defendants were observed in and located nearby the pharmacy that had been burglarized, the method of entry into the pharmacy suggested Defendants’ experience in committing burglaries, Defendants had no ties to the Lebanon County area, both Defendants had extensive criminal records including burglary convictions relating to other pharmacies and controlled substance violation convictions and law enforcement became aware that Defendants had been staying at the hotel where they had left various personal items in the room.
L.C.C.C.P. Nos. CP-38-CR-0001135-2017 and CP-38-CR-0001136-2017, Opinion by John C. Tylwalk, President Judge, February 1, 2018.
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA
v.
BRETT ANTHONY KARMEY
NO. CP-38-CR-1135-2017

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY TEETER
NO. CP-38-CR-1136-2017

ORDER OF COURT
AND NOW, this 1st day of February, 2018, upon consideration of Defendants’ Pre-Trial Motions and the evidence submitted for our consideration on December 20, 2017, it is hereby Ordered that said Motions are DENIED. Defendants are directed to appeal for the Call of the List scheduled for February 6, 2018 and the Term of Criminal Jury Trials to commence on February 26, 2018.

BY THE COURT:
JOHN C. TYLWALK, P.J.

APPEARANCES:

DAVID ARNOLD, ESQUIRE FOR THE COMMONWEALTH
DISTRICT ATTORNEY

JAY NIGRINI, ESQUIRE FOR BRETT ANTHONY KARMEY
SODOMSKY & NIGRINI AND GREGORY TEETER
OPINION, TYLWALK, P.J., FEBRUARY 1, 2018.
Defendants are charged with multiple counts of Possession of Controlled Substances, Possession of an Instrument of Crime and Criminal Conspiracy related to an incident which occurred on June 5, 2017 at the CVS Pharmacy at 833 Bowman Street in the City of Lebanon. Both have filed Omnibus Pre-Trial Motions seeking suppression of evidence found pursuant to a search warrant issued for a hotel room in which they had been staying. They argue that the evidence must be suppressed because the search warrant was based on insufficient information and was issued without probable cause. We scheduled a hearing on the Motions for December 20, 2017. At that time, the parties submitted the application for the search warrant, including the affidavit of probable cause, for our consideration. We afforded the parties the opportunity to file briefs in support of their respective positions. The Commonwealth has filed its brief and the matter is now before us for resolution.
Sergeant Jonathan Hess applied to Magisterial District Judge John Ditzler for a search warrant of the Lebanon Days Inn Hotel on June 6, 2017 and MDJ Ditzler issued the search warrant on that date. The affidavit of probable cause prepared by Sergeant Hess revealed that on June 5, 2017, at approximately 4:20 a.m., officers from the Lebanon City Police Department, including Officer Allen, were dispatched to the CVS Pharmacy due to the activation of a burglary alarm. The officers arrived to find a burglary in progress as they observed that two individuals, who were dressed entirely in black, were inside the pharmacy. One of the individuals was wearing a ski mask and one was climbing into the ceiling.
Shortly thereafter, the two individuals were apprehended in the area near CVS and identified as the Defendants.
It was determined that Defendants had entered through a hole they had made in the roof and had then forced several doors to enter other secured parts of the building. Two portable radios (“walkie-talkies”) were found at the scene, indicating that the Defendants had been using them to communicate with each other and/or other unknown parties.
The officers who had responded to the scene determined that Defendants were in the Lebanon area to work on the pipeline construction and might be staying at the Days Inn Hotel on Quentin Road in Lebanon. Sergeant Hess determined that both Defendants were from out-of-state and had extensive criminal records for burglaries and drug-related offenses. Sergeant Hess’s investigation also revealed newspaper articles from other states which indicated that both Defendants had previous arrests for burglarizing pharmacies.
When Sergeant Hess visited the Days Inn to see whether Defendants had been staying there, the manager informed him that Karmey had been renting Room 153, but that he was not familiar with Teeter. The manager reported that both beds in that room had been used and that it had been rented until 11:00 a.m. on June 5, 2017; after that time, the hotel had received no word from anyone regarding whether Karmey intended to extend his stay. Upon checking the room, the staff had found that personal possessions had been left there by the occupant. The manager had called a phone number in the hotel file in reference to the room and had spoken to a female who indicated that someone would stop at the hotel to retrieve the items which remained in the room.
In the affidavit of probable cause, Sergeant Hess concluded:
Based on the information in this affidavit, it is your affiant’s opinion and belief that Brett Karmey and or Gregory Teeter have been burglarizing businesses, specifically pharmacies, for more than 20 years and are what is often referred to as Career Burglars. Additionally, based on Karmey and Teeter’s multi-state criminal history and the transient nature of their pipe line construction employment indicates they travel extensively and may be been involved in recent burglaries in other jurisdictions. It is also your affiant’s opinion and belief that contents of room 153 at the Days Inn, and the examination of the contents described in this affidavit, may assist investigators in the investigation into the burglary that occurred at the CVS Pharmacy … . Specifically those contents may reveal other parties possibly involved, planning of the burglary, arrangements made for flight after commission of the burglary as well as tools and or proceeds from other recent burglaries.
(Affidavit of Probable Cause – Exhibit “1” at p. 7)
The Fourth Amendment requires that warrants be issued by a neutral and detached magistrate and that the magistrate’s review must be based on an “independent determination of probable cause.” Commonwealth v. Sharp, 683 A.2d 1219, 1222 (Pa. Super. 1996). In determining whether probable cause exists, the magistrate may not consider any evidence outside the affidavits. Pa.R.C.P. 203(B).
In Pennsylvania, the determination of whether probable cause exists to issue a search warrant is based on the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213 (1983), and adopted in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985). The totality of circumstances test is satisfied when the police have a reasonable belief that the items to be seized are related to criminal conduct and that those items are presently located in the place to be searched. Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998).
The magistrate’s duty in issuing a search warrant is simply to make a practical, common sense determination whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay, that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Commonwealth v. Flaherty, 583 A.2d 1175, 1177 (Pa. Super. 1990). The magistrate’s finding of probable cause is based upon probability, not a prima facie showing, of criminal activity. Commonwealth v. Tolbert, 424 A.2d 1342 (Pa. 1981). A reviewing court “must pay great deference to an issuing authority’s determination of probable cause for the issue of a search warrant.” Commonwealth v. Woods, 590 A.2d 1311, 1313 (Pa. Super. 1991).
We believe MDJ Ditzler properly issued the search warrant here. Defendants were observed inside a pharmacy and were apprehended nearby. The method of entry to the pharmacy pointed to Defendants’ experience and expertise in committing burglaries. In addition, the presence of the walkie talkies suggested the involvement of other individuals who were not located at the scene. Neither Defendant had any local ties to the Lebanon area. Both Defendants had extensive criminal records, which included burglaries and controlled substance violations. They also had previous arrests for burglarizing pharmacies. Sergeant Hess had learned that the two had been staying at the Days Inn and that they had left various personal possessions in the room. These circumstances rendered it highly likely that contraband and/or evidence of Defendants’ criminal activity, i.e., tools, maps, plans, travel information, information regarding other individuals involved, and/or controlled substances, would be found in the room where Defendants had been staying. The evidence provided ample support for the finding of probable cause and justified the issuance of the search warrant. Thus, we will deny Defendants’ Motions and direct them to appear for the next Call of the List.

 

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