Commonwealth of Pennsylvania v. Rosemarie Torres-Vega, Commonwealth of Pennsylvania v. Luis Alfredo Padin-Pizarro

Commonwealth of Pennsylvania v. Rosemarie Torres-Vega

Commonwealth of Pennsylvania v. Luis Alfredo Padin-Pizarro

Criminal Action-Constitutional Law-Search and Seizure-Violation of the Controlled Substance, Drug, Device and Cosmetic Act-Manufacture and Distribution of a Controlled Substance-Fentanyl-Search Warrant-Probable Cause-Totality of the Circumstances-Four Corners of the Warrant-Reliability of Information by Confidential Informant-Consent to Search-Validity-Property of Spouses-Protective Sweep-Plain View Doctrine

Rosemarie Torres-Vega and Luis Alfredo Padin-Pizarro (“Defendants”) are a husband and wife who are accused with two (2) other co-defendants of manufacturing and selling fentanyl on a large scale between May of 2020 and February of 2022.  Defendants have filed Omnibus Pretrial Motions seeking to suppress evidence seized during searches of properties at 200 Canal Street where the drug operation is alleged to have occurred and 630 East Lehman Street where Defendants are alleged to have resided.  Defendants argue that the affidavit of probable c ause in support of the search warrant for the property at 200 Canal Street on January 30, 2021 failed to demonstrate the reliability of the information provided by the confidential informants, Torres-Vega was unable to provide consent for a search of the residence at 630 East Lehman Street on July 27, 2022 incident to her arrest and contraband illegally was seized by police incident to Torres-Vega’s arrest on July 27, 2022 when she returned to the residence with police because she needed her cell phone.  

1.  The task of an issuing authority for a search warrant is to make a practical, common-sense assessment of whether, given all of the circumstances set forth in the affidavit, a fair probability exists that contraband or evidence of a crime will be found in a particular place.

2.  When issuing a warrant, the issuing authority may not consider any evidence outside of the four (4) corners of the affidavit in support the warrant request. 

3.  There is a presumption of validity regarding the affidavit supporting a search warrant. 

4.  A search conducted without a warrant constitutionally is impermissible unless an established exception exists, such as a consensual search. 

5.  Valid consent is the product of an essentially free and unconstrained choice and not the result of duress or coercion, express or implied, under the totality of the circumstances.

6.  A spouse has the authority to consent to a search of a dwelling in which he or she resides with a spouse even if his or her spouse also is not present to provide consent. 

7.  A protective sweep is a quick and limited search of premises that is incident to an arrest and is conducted for safety of law enforcement or others.

8.  While conducting a protective sweep, law enforcement cannot be required to ignore contraband discovered.

9.  Where a co-defendant admitted his involvement in the distribution of large amounts of counterfeit Percocet tablets again his personal interest and provided information regarding a pill press used to manufacture tablets at 200 Canal Street, a confidential informant provided law enforcement with counterfeit tables containing fentanyl during the investigation, two (2) confidential informants described the very distinct vehicle operated by Padin-Pizarro and identified him as the head of the distribution scheme at 200 Canal Street, police surveillance observed Padin-Pizarro who operated a vehicle matching the description provided by the confidential informants entering and exiting the property at 200 Canal Street and a confidential informant attempted a purchase of counterfeit Percocet tablets at 200 Canal Street, enough information was provided to establish the reliability of the information provided by the confidential informants for probable cause to issue the search warrant for 200 Canal Street.      

10.  In light of the fact that Torres-Vega provided consent on July 27, 2022 to search the residence at 630 East Lehman Street where she and Padin-Pizarro resided and Padin-Pizarro indicated that he would appear for the search and failed to do so, Torres Vega had the authority to consent to a search of the dwelling in the absence of Padin-Pizarro who presented no indication that he separately had secured items to which Torres-Vega had no access and effectively abandoned his opportunity object to the search to which Torres-Vega had consented. 

11.  Since Torres-Vega invited police back into the residence when she was being arrested to get her cellphone and law enforcement obtained a search warrant when he had observed contraband as he was escorting Torres-Vega into the home to get her cell phone, the plain view of the contraband provided probable cause for the search warrant of the residence on July 27, 2022.

L.C.C.C.P. Nos. CP-38-CR-0001047-2022 and CP-38-CR-0001077-2022, Opinion by Bradford H. Charles, Judge, June 24, 2024.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA:    

            :

                        v.                                                         :      No.           CP-38-CR-1047-2022                                                                                                :          

ROSEMARIE TORRES-VEGA                :          

____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA:    

            :

                        v.                                                         :      No.           CP-38-CR-1077-2022                                                                                                :          

LUIS ALFREDO PADIN-PIZARRO                    :          

AND NOW, this 24^th day of June 2024, in accordance with the attached Opinion, the DEFENDANTS’ Motions to Suppress are denied.  This matter is scheduled for Call of the List on July 2, 2024, and set for Trial on July 22, 2024.

BY THE COURT:

                                                                                                                        J.

                                                                        BRADFORD H. CHARLES

BHC/tjb

cc:        Court Administration

            District Attorney

Alan J. Tauber, Esq. // 718 Arch St., Suite 701N, Philadelphia, PA 19106

Jeremy D. Williams, Esq. // 13 E. Market St., York, PA 17401

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA:    

            :

                        v.                                                         :     No.            CP-38-CR-1047-2022                                                                                                :          

ROSEMARIE TORRES-VEGA                :          

____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA:    

            :

                        v.                                                         :     No.            CP-38-CR-1077-2022                                                                                                :          

LUIS ALFREDO PADIN-PIZARRO                    :          

APPEARANCES

Brian Deiderick, Esquire                                   For Plaintiff

DISTRICT ATTORNEY’S OFFICE       

Alan J. Tauber, Esquire                                     For Defendant Torres-Vega

LAW OFFICE OF ALAN J. TAUBER, P.C.

Jeremy D. Williams, Esquire                             For Defendant Padin-Pizarro

CHAMPION LEGAL, LLC

OPINION BY CHARLES, J., June 24, 2024

This case has a painfully protracted history. After almost two years, the parties are still muddling through pre-trial proceedings.  The Defendants, husband and wife, and two other Co-Defendants are accused of manufacturing and distributing fentanyl on a large scale.  The progress of the case has been hampered by one of the Defendants fleeing to Cuba for a time, multiple continuances requested by both sides, plea deals being accepted and then later withdrawn, personnel changes in the District Attorney’s Office, and the Commonwealth providing requested discovery in a piecemeal manner. The latest Omnibus Pretrial Motions filed by Rosemarie Torres-Vega (hereafter “TORRES-VEGA”) and Luis Padin-Pizarro (hereafter “PADIN-PIZARRO), (collectively “DEFENDANTS”), seek to suppress evidence seized by the Lebanon Police Department in two separate searches during the course of its investigation. DEFENDANTS raise five (5) issues that we will list below and discuss in further detail.  We author this Opinion in support of our decision to deny DEFENDANTS’ motions to suppress.

I.          FACTUAL BACKGROUND^[1]

These cases are consolidated with Commonwealth v. Alexis Echevarria-Delgado (CR-1075-2022), and Commonwealth v. Kara Narvaez-Maysonet (CR-1076-22). DEFENDANTS are charged with violations of the Crimes Code and the Controlled Substance, Drug Device and Cosmetic Act, arising from the alleged participation in a conspiracy to possess and deliver fentanyl between May 2020 and February 2022. These cases are scheduled for trial on July 22, 2024.

From May to August of 2020, the Lebanon City Police Department investigated several overdose death cases. It was suspected that the victims were purchasing and consuming counterfeit Percocet tablets infused with fentanyl. One of the persons suspected of being involved in the sales and distribution of these tablets was identified as R.A., later revealed to be Richard Andino (hereafter “ANDINO”).  ANDINO was subsequently charged with distributing these tablets and later provided a statement regarding his involvement. ANDINO stated he became acquainted with a group working on cars and he began receiving large quantities of counterfeit Percocet tablets infused with fentanyl from two Hispanic males who ran the garage located at 200 Canal Street in Lebanon. ANDINO advised that these males had purchased a pill press for pressing counterfeit Percocet stamped tablets from that location. ANDINO stated that shortly after this manufacturing process began at the garage, people began overdosing and dying on that supply. 

A confidential informant, (hereafter “CI-1”), provided the Lebanon County Drug Task Force and the Pennsylvania Office of Attorney General with information on individuals dealing counterfeit Percocet tablets infused with fentanyl. CI-1 said that the head of the organization was a Hispanic male who drove a cherry red luxury Jeep SUV described as the only one like it in the County.  A second confidential informant (hereafter “CI-2”) provided information regarding the sales and manufacture of counterfeit Percocet tablets infused with fentanyl from the garage located at 200 Canal Street. CI-2 identified ” Luis” as the person who runs the garage and is responsible for the manufacturing and sales of the counterfeit Percocet tablets, and that ” Luis” drove a cherry red luxury, Jeep SUV. CI-2 was shown a driver’s license photo of PADIN-PIZARRO and CI-2 positively identified PADIN-PIZARRO as the subject he knew as “Luis”.

            On January 30, 2021, the Lebanon County Drug Task Force executed a search warrant for the garage at 200 Canal Street. During surveillance prior to the warrant being executed, PADIN-PIZARRO was tracked to various locations within Lebanon City, including his residence at 630 East Lehman Street.  He was seen by police driving a cherry red Jeep SUV.  A search of 200 Canal Street was timed simultaneously with making contact at PADIN-PIZARRO’s residence. Upon arrival at Canal Street, contact was made with PADIN-PIZARRO’s wife, later identified as TORRES-VEGA. Upon the request of Detective Minnick (hereafter MINNICK), TORRES-VEGA said that she would call PADIN-PIZARRO to facilitate him meeting MINNICK at the residence. TORRES-VEGA called PADIN-PIZARRO using her cell phone. MINNICK testified that PADIN-PIZARRO was on speaker phone when he talked to PADIN-PIZARRO on TORRES-VEGA’s cell phone.  MINNICK noted that the phone number on the screen was 717-992-5891. According to MINNICK, PADIN-PIZARRO said that he would return home to meet MINNICK, but he never returned home while the police were present.

During the search of the residence, Police seized a white binder that contained documents, drugs, a firearm, a wallet and combined currency of $1,255.36. The search of 200 Canal Street produced approximately 2,900 fentanyl tablets, 397 grams of fentanyl, a Taurus 9mm handgun, 68 boxes of Xylazine, an electric tablet press, drug paraphernalia and packaging materials.

On March 12, 2021, the Commonwealth, pursuant to an application for disclosure of records under the Wiretap Act, obtained subscriber information, incoming and outgoing call and text message records, and raw unbilled data from April 30, 2020 to March 10, 2021, for phone numbers 717-454-7871 and 717-992-5891. On September 30, 2021, the Commonwealth obtained a search warrant for the Google records of all account data related to delgado123455@gmail.com.

On October 19, 2021, the Commonwealth obtained a search warrant for Google records of all account data connected to the email addresses kiaraechevarria50@gmail.com, that allegedly belonged to co-Defendant Echevarrria-Delgado and beebaa6@gmail.com, that allegedly belonged to TORRES-VEGA.  Included in the warrant was information supplied by the Drug Enforcement Agency (DEA) and Homeland Security Investigations (HSI) regarding the purchase of drug manufacturing equipment between October 30, 2020 and September 7, 2021.  As a result of the warrant, packages addressed to TORRES-VEGA were intercepted and searched.  The contents of the packages included a 1 kilogram of white Firmapress powder, a full-face rubber mask, and a two-kilogram bag of Firmapress powder.

On July 27, 2022, an arrest warrant for TORRES-VEGA was executed at 630 E. Lehman Street.  During a protective sweep of the premises, Police seized a white ceramic container containing white power, a gray container containing blue powder, a white plastic container marked “Super Mannitol” that contained white powder, two electric grinders, a blue pill marked “M-30”, a box of white glassine baggies, a box of small rubber bands, two sifters, two electronic scales, a Glock case, a 40 caliber Glock 23, $2,157.00 in U.S. currency, two cell phones, a plastic strainer, an SD card, a thumb drive, a plastic bag containing light brown powder, one box of live 5.56 45m ammunition, and a bank bag with assorted receipts and $2,953.42 of U.S. currency.

The Criminal Complaint was filed on July 28, 2022. Thereafter, the cases have had a tortured procedural history.  Numerous continuances were requested by and granted to both sides.  Most significantly, a guilty plea was accepted from TORRES-VEGA on September 27, 2023.  Sentencing was subsequently scheduled, but the Commonwealth withdrew the plea agreement before sentencing. On October 17, 2023, the Commonwealth filed a Motion for Continuance because former Assistant District Attorney Nicole Eisenhart resigned her position to pursue a career in private practice and her successor, Assistant District Attorney Brian Deiderick, did not have enough time to properly prepare his cases for trial.  On October 18, we issued an Order scheduling a status conference for November 21, 2023.  On October 31, 2023, the Court granted TORRES-VEGA’s Motion to Withdraw the Guilty Plea.  Effectively, the parties reset the litigation during October/November of 2023.  As part of this reset, we scheduled new pre-trial motion deadlines.

On March 13, 2024, TORRES-VEGA filed Pretrial Motions raising the following issues:

• Whether the Police search conducted on January 30, 2021, at 630 E. Lehman Street, and the search violated TORRES-VEGA’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the search of TORRES-VEGA’s phone violated her rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution (Franks/Hall Challenge)?
• Whether the Police search conducted on January 30, 2021, at 200 Canal Street violated TORRES-VEGA’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the Police search and seizure of Google records violated TORRES-VEGA’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the Police entry of 630 E. Lehman Street July 27, 2022, violated TORRES-VEGA’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the warrantless search and seizure of packages addressed to TORRES-VEGA violated her rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?

On March 14, 2024, PADIN-PIZARRO filed Pretrial Motions raising the following issues:

• Whether the Police search conducted on January 30, 2021, at 630 E. Lehman Street violated PADIN-PIZARRO’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the Affidavit of Probable Cause violated PADIN-PIZARRO’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution (Franks/Hall Challenge)?
• Whether the Police search conducted on January 30, 2021, at 200 Canal Street violated PADIN-PIZARRO’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the Police search and seizure of Phone, Facebook, Google records are fruits of the poisonous tree and violated PADIN-PIZARRO’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?
• Whether the Police entry of 630 E. Lehman Street July 27, 2022, violated DEFENDANTS’ rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution?

            On May 20, 2024, the Court heard oral arguments on the Omnibus Pretrial Motions of DEFENDANTS.  On May 21, 2024, the Court entered an Order for the parties to file briefs within twenty (20) days from that date in support of their positions.  The decision on those Pre-Trial Motions is now ripe for disposition. 

II.        LEGAL PRINCIPLES

1. Motion to Suppress

            A defendant may make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights. Pa.R.Crim.P. 581.  In order to prevail on the suppression motion, a defendant must demonstrate (1) a subjective expectation of privacy in the area searched or effects seized at the time of the search, and (2) that the expectation was actual, societally sanctioned as reasonable, and justifiable. Commonwealth v. Torres,764 A.2d 532 (Pa. 2001).   Pretrial suppression orders are limited to the suppression of evidence illegally obtained in violation of a defendant’s rights, including violations of rights secured by the Pennsylvania Rules of Criminal Procedure and by Pennsylvania’s statutes. Commonwealth v. Murphy, 382 A.2d 842 (Pa. 1975).

2. Standard for a Search Warrant

The question of whether probable cause exists for the issuance of a search warrant must be answered according to the “totality of the circumstances” test articulated in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985), and its Pennsylvania progeny, which incorporates the reasoning of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983).  The task of the magistrate acting as the issuing authority is to make a “practical, common sense assessment” of whether, “given all the circumstances set forth in the affidavit,” a “fair probability” exists that contraband or evidence of a crime will be found “in a particular place.” Commonwealth v. Murphy at 916 A.2d 679, 682 (Pa.Super. 2007).  The chronology established by the affidavit of probable cause must be evaluated according to a “common sense” determination. Id.

When issuing a warrant, a magistrate may not consider any evidence outside of the “four corners” of the affidavit to support the conclusion that probable cause exists to believe that contraband or evidence of a crime will be found in a particular place.   Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa.Super. 2003).  The application for the search warrant must be evaluated from the perspective of the issuing magistrate and whether it provides sufficient information, within the four corners of the affidavit, Id. at 514.

There is a presumption of validity of the affidavit supporting the search warrant. However, if an affidavit contains deliberate or knowing misstatements of material facts, the search warrant can be deemed invalid.  Franks v. Delaware, 438 U.S. 154 (1978); Commonwealth v. Bruno, 154 A.3d 764 (Pa. 2017).

3. Consent to Search

            A search conducted without a warrant is constitutionally impermissible unless an established exception applies. Commonwealth v. Ginnery, 293 A.3d 624 (Pa. Super. 2023). One such exception is for a consensual search, which requires an “assessment of the constitutional validity of the citizen/police encounter giving rise to the consent, and the voluntariness of the consent given.” Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012), overruled on other grounds by In re L.J., 622 Pa. 126, 79 A.3d 1073 (2013). Valid consent is, “the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne-under the totality of the circumstances.” Commonwealth v. Neysmith, 192 A.3d 184, 187 (Pa.Super. 2018) , appeal denied,  200 A.3d 4 (Pa 2019), cert. denied, 139 S.Ct. 2640, 204 L.Ed.2d 287 (2019). 

4. Reliability of a Confidential Informant

             In 1983, the U.S. Supreme Court adopted a “totality-of-the-circumstances” test as a guide to a magistrate’s determination of an informant’s tip. Illinois v. Gates, 462 U.S. 213, 233 (1983). The Court held that the are no rigid, independent requirements that had to be satisfied, but only relevant factors among the totality of the circumstances necessary to show probable cause. Id.  In Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011), the Pennsylvania Supreme Court declared that under the totality-of-the-circumstances approach, “…there is no talismanic recitation of a particular phrase with respect to “reliability” or “basis of knowledge” that will either be required or will suffice to conclusively establish, or conclusively disaffirm, the existence of probable cause.”  Id. at 1292. 

In Clark, the PA Supreme Court determined that the probable cause necessary to support the search warrant existed because the information provided by the informant, that the Defendant was packaging and distributing cocaine out of his residence, was corroborated by independent police investigation. The police observed the Defendant leave his residence, go directly to the site of a pre-arranged controlled buy, exchange cocaine for money, and return directly to his residence.  The Court stated, “A common sense, non-technical reading of these facts properly established a fair probability that contraband or evidence of a crime would be found in the residence. “ Id at 1292. 

E. Use of Information Supplied by Another Law Enforcement Agency in Affidavit of Probable Cause

In the case U.S v. Yusuf, 461 F.3d 371 (3^rd Cir. 2006), the Third Circuit Court noted that informants are not presumed to be credible, and the government is generally required to show by the totality of the circumstances either that the informant has provided reliable information in the past or that the information has been corroborated through independent investigation. In contrast, information received from other law enforcement officials during the course of an investigation is generally presumed to be reliable. A challenge to the presumed reliability must demonstrate that the information provided by the other agency would have put a reasonable official on notice that further investigation was necessary.  Id. at 385.

In Commonwealth v. Yong, 177 A.3d 876 (Pa. 2018), the PA Supreme Court considered the parameters of what has been termed the “collective knowledge doctrine”.  The doctrine reflects the realities of police work and the need for swift action and justifiable reliance on communications in order to efficiently perform the duties attendant to law enforcement. See, e.g., Whiteley v. Warden Wyo. State Penitentiary, 401 U.S. 560, 568 (1971) (stating, “[c]ertainly police officers … are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause”); U.S. v. Hensley, 469 U.S. 221, 231 (1985) (“this rule is a matter of common sense: it minimizes the volume of information concerning suspects that must be transmitted to other jurisdictions and enables police officers in one jurisdiction to act promptly in reliance on information from another jurisdiction.”). Id at 885.  In Yong, there was evidence that Officers were acting as a team, but there was no evidence the knowledge-holding officer gave a command to the other officer or conveyed the information which gave rise to probable cause. The Court determined that when the arresting officer does not have the requisite knowledge and was not directed to so act, seizure is still constitutional if the investigating officer with probable cause or reasonable suspicion was working with the officer and would have inevitably and imminently ordered that the seizure be effectuated. Yong at 890.

F. The Protective Sweep

A protective sweep is a quick and limited search of the premises that is incident to an arrest and is conducted for officer safety or the safety of others. Maryland v. Buie, 494 U.S. 325, 327 (1990). There are two levels of protective sweeps: (1) officers can, without probable cause or reasonable suspicion, look in closets and other spaces close to the place of arrest from which an attack could be launched and (2) officers can search for attackers further away from the place of arrest if they can sufficiently articulate specific facts that justify a reasonable fear for the safety of officers on the premises. See Commonwealth v. Taylor, 771 A.2d 1261, 1267 (Pa. 2001).  A protective sweep is narrowly confined to a cursory visual inspection of those places in which a person might be hiding and cannot be used as a pretext for an evidentiary search. Commonwealth v. Crouse, 729 A.2d 588 (Pa.Super 1999).

 In Commonwealth v. Harrell, 65 A.3d 420 (Pa.Super. 2013), Officers tracked footprints from a crime scene with the help of a K-9 dog.  The dog led them to the residence of the Defendant.  An officer on scene recognized the individual and identified him as the Defendant.  The Officers approached and instructed the Defendant to get down on the floor of the porch, and he complied.  He was then taken into custody. A female emerged from the house and was temporarily taken into custody. She was asked if anyone else was in the house, and she responded that there are children in the house. The Officers conducted a protective sweep of the house to ensure that no other individuals who might be armed and dangerous were in the house. They removed the children from their bedroom and collected them in the front room of the house, along with the female.  While conducting the sweep, the officers noticed a large blue tub in the kitchen, and the stove with glowing elements. 

On appeal the Defendant argued that the initial warrantless entry was not supported by probable cause or exigent circumstances.  The Superior Court disagreed and noted that even though the Defendant was  on the front porch  when the sweep was conducted, they did not recover the weapon used to kill the two victims, a female exited the residence and informed officers that there were children inside, and Officers did not know at that time if there was anyone else involved in the shooting, if the murder weapon was inside the house, or if the children were in danger.  The Court determined that under those circumstances, the Officers were justified in performing a protective sweep of the residence.  Id at 436. 

G. Plain-View Doctrine

While conducting a protective sweep officers cannot be required to ignore any contraband discovered, and the Fourth Amendment does not require its suppression in such circumstances. Commonwealth v. Potts, 73 A.3d 1275, 1282 (Pa.Super.2013);  See also Commonwealth v. Witman, 750 A.2d 327, 336 (Pa.Super.2000) (stating that evidence observed in plain view during a protective sweep is admissible). In Crouse, supra, the Superior Court held pursuant to Buie, supra, the Officers were lawfully on the second floor and in the bedroom doing a security check, and they were in a proper position to seize the drug paraphernalia in plain view on the nightstand. 

III.       ANALYSIS

            The DEFENDANTS’ arguments for suppressing evidence that was seized during the execution of the search warrant for 200 Canal Street, the warrantless search of the residence, and during the execution of the arrest warrant for TORRES-VEGA, are based on the following legal theories:

1. The Affidavit of Probable Cause for the search warrant for 200 Canal Street lacked sufficient reliable and credible information because it failed to establish the veracity of the three informants (Franks/Hall Challenge).
2. The Affidavit of Probable Cause for the arrest warrant for TORRES-VEGA lacked probable cause because it relied in part on information supplied by the DEA and HSI, and the evidence seized during the execution of that warrant amounted to an unlawful seizure by federal agents.
3. Evidence was seized by Police on January 30, 2021, at 630 East Lehman Street as a result of a warrantless invalid consent search.
4. Evidence was seized by Police on July 27, 2022, at 630 East Lehman Street should be suppressed because the protective sweep done by law enforcement officers was a pretext for an evidentiary search and/or exceeded the scope of the protective sweep.
5. Evidence recovered from Google account information was the fruit of an unlawful warrantless search.

The DEFENDANTS claim that MINNICK’s Affidavit of Probable Cause failed to demonstrate the reliability of the informants.  They allege that MINNICK did not show proper corroboration of any of the informants’ hearsay evidence with prior arrests based upon cooperation of the informants, controlled narcotics purchases, observed conduct, or recorded conversations.  Furthermore, DEFENDANTS argue that MINNICK provided misleading information in his Affidavit because he did not disclose that ANDINO cooperated in exchange for consideration in a pending criminal case, and that he plead guilty to past crimen falsi offenses.

The Commonwealth noted that each informant provided separate information, but the information that each provided corroborated certain portions of information provided by the other two.  The Commonwealth pointed out that it disclosed ANDINO’s name and that ANDINO had provided good information in the past about a homicide that ANDINO witnessed.   The Commonwealth argued that DEFENDANTS cited no authority that MINNICK had to put information in his Affidavit that ANDINO pled guilty to past crimes of dishonesty.  The Commonwealth stated that the Defendant in Baker, supra, had a plea agreement in place when he cooperated with police, but MINNICK testified that no plea agreement existed that required the Commonwealth to “help” ANDINO with his pending charges if he cooperated with the investigation.

When the Court does a “four corners” reading of the Affidavit in question we find the following indicia that goes to the credibility and reliability of the three informants:

• ANDINO admitted that he was involved in the distribution of large amounts of counterfeit Percocet tablets (a statement against his penal interests).
• ANDINO provided information about a pill press that was purchased and was being used in the manufacturing of the tablets at 200 Canal Street.
• CI-1 provided law enforcement with approximately 3600 counterfeit Percocet tablets containing fentanyl during their investigation.
• CI-1 provided the name of a subject involved in the distribution of the tablets.
• CI-1 and CI-2 each described the very distinct vehicle driven by PADIN-PIZARRO and identified him as the head of the organization distributing the tablets at 200 Canal Street.  Police saw PADIN-PIZARRO driving a distinctive cherry red SUV consistent with what had been reported by CI-1 and CI-2.
• CI-2 identified PADIN-PIZARRO as the individual that he knew as “Luis”.
• CI-2 identified several individuals working in the sales and distribution of tablets at 200 Canal Street.
• CI-2 stated that he believed a pill press was located at the rear of the garage.
• The Lebanon County Task Force conducted surveillance on 200 Canal Street prior to the execution of the search warrant and observed PADIN-PIZARRO coming and going from there in a cherry red Jeep Grand Cherokee.
• CI-2 attempted a controlled purchase of the counterfeit Percocet at 200 Canal and PADIN-PIZARRO told CI-2 that he would provide him with the phone number of the individual that CI-2 could do the drug transaction through.

Given the totality of the circumstances we find that there was enough information provided in the Affidavit for the Honorable Charles T. Jones, Jr. to determine the reliability of the confidential informants, and that probable cause existed to issue the warrant.

            We agree with the Commonwealth that no authority has been cited by the DEFENDANTS that MINNICK was required to give information about ANDINO’s prior record. We do not perceive that MINNICK “misled” the Judge^[2].  As for the allegation that ANDINO cooperated with MINNICK in exchange for consideration in another case, we note that DEFENDANTS presented no evidence that MINNICK made any promises or that ANDINO had a deal in place in exchange for his cooperation. We conclude that the DEFENDANTS’ claims that the warrant was unlawfully issued due to a lack of probable cause is without merit.  The Court therefore denies the DEFENDANTS’ Motions to suppress evidence seized at 200 Canal Street.

DEFENDANTS have not provided this Court with anything other than bald assertions that MINNICK was not allowed to include information supplied to him by federal authorities in his Affidavit.  In fact, he would have been remiss if he had not included information he learned from DEA and HSI, because it was pertinent to his two-year investigation into the sources of fentanyl-laced drugs responsible for overdose deaths in Lebanon County.  We cannot take the leap of logic DEFENDANTS request, that cooperation between law enforcement agencies requires us to declare that Lebanon County officials undertook an unconstitutional search on behalf of federal agents.  DEFENDANTS’ Motions to suppress evidence or information because search warrants relied in part upon information provided by the DEA and/or HSI will be denied.

TORRES-VEGA asserted that it was uniformed police officers, and not MINNICK, who TORRES-VEGA gave consent to search the home.  DEFENDANTS suggested that because MINNICK conducted his interview with TORRES-VEGA about her consent to search in the presence of the uniformed officers, the consent could have been a result of coercive actions, and therefore the Commonwealth has not met its burden to prove that the search was consensual.  Absolutely no evidence was presented to us that would support DEFENDANTS’ arguments of coercion.  The only evidence presented was that TORRES-VEGA cooperated and consented to a search voluntarily.

PADIN-PIZARRO does not contest that TORRES-VEGA gave consent to search their home.  Instead, he argues that she did not have actual or apparent authority to give consent to search his personal belongings.  He asserts that he had a privacy expectation in his personal effects inside his dresser drawer because it was separate from the space that he shared as a co-occupant with his wife.  TORRES-VEGA likewise did not focus upon coercion as it relates to her consent to search.  Rather, TORRES-VEGA argued that she did not understand English well enough to voluntarily consent. 

As it relates to PADIN-PIZARRO’s argument that his wife lacked authority to consent to a search of his personal belongings, we find such an argument to be disingenuous.  TORRES-VEGA was PADIN-PIZARRO’s wife.  The couple occupied the home at 630 East Lehman Street together.  They even shared the same bedroom.  Under cases such as Commonwealth v. Lehnerd, supra, an individual is TORRES-VEGA’s position has authority to consent to a search of her dwelling even if a co-occupant may not have been present to also consent.  Certainly, TORRES-VEGA had common authority over the entire premises and there is nothing to indicate that PADIN-PIZARRO had separately secured items at a location to which TORRES-VEGA had no access.  If we were to adopt PADIN-PIZARRO’s argument that his wife lacked authority to consent to a search of a furniture drawer where he kept belongings, police would never be able to rely upon consent of an occupant until or unless they obtained separate consent from every other occupant as to every drawer and every shelf located inside a premises.  That is clearly not the law.

In addition, we are not going to forget the fact that MINNICK gave PADIN-PIZARRO the opportunity to be at home while it was being searched.  PADIN-PIZARRO said that he would drive back to his house, but he elected not to do so.  If in fact PADIN-PIZARRO was concerned about his privacy interests, he could have appeared at the residence to assert those interests.  As it was, PADIN-PIZARRO effectively abandoned his opportunity to object to a consent search agreed upon by TORRES-VEGA. 

As it relates to the argument of TORRES-VEGA that she did not understand what she was doing, the record belies such an argument.  When TORRES-VEGA entered her plea of guilty, she indicated that she read, wrote and understood the English language.  Moreover, MINNICK testified that he had no difficulty communicating with TORRES-VEGA in English during his interview.  Any suggestion at this point that TORRES-VEGA could not understand English is self-serving. 

            Accordingly, we rule that TORRES-VEGA gave valid consent to search the residence, and that consent covered anything that might be discovered during the search.  We deny the DEFENDANTS’ Motions to suppress the evidence seized as a result of the search by Police Officers of 630 East Lehman Street on January 30, 2021.^[3] 

            PADIN-PIZARRO argued that the protective sweep during execution of the Arrest Warrant for TORRES-VEGA on July 27, 2022, exceeded the scope of that warrant.   PADIN-PIZARRO contended that the warrant was for non-violent drug offenses and TORRES-VEGA was already outside, and Police were aware that he was not in the house, so the protective sweep was not necessary.

            TORRES-VEGA does not contest the validity of the protective sweep, but she argues that the subsequent evidence that was seized did not fall under the plain view exception to a warrantless search. TORRES-VEGA stated that MINNICK testified that before he departed the house with TORRES-VEGA, she asked to retrieve her cell phone that was on the second floor of the home.  MINNICK sent two Officers to attend to TORRES-VEGA, and the Officers called him to come upstairs.  MINNICK testified that when he went to the second-floor bedroom, he observed two electronic grinders on the floor, two small sifters, and other paraphernalia.  TORRES-VEGA asserted that the Commonwealth did not establish that the two Officers observed the items from a lawful position, and that the subsequent search warrant was obtained by MINNICK based upon the items being in plain sight.

            The Commonwealth averred that the protective sweep of the home was completed, and no items of contraband were discovered during the sweep.  The Commonwealth noted that had TORRES-VEGA not requested to re-enter her home to obtain the cellphone, the Police would not have needed to go back in, and nobody would have observed the items until or unless a search warrant had been obtained.

            This Court is not sure how PADIN-PIZARRO can assert that the Police knew that he was not in the house apart from entering the house.  More important, Police would have no way to determine whether other persons, perhaps armed, could have been in the structure, either as visitors or part-time occupants. A protective sweep was certainly necessary.  More important, TORRES-VEGA invited Police back in the house when she wanted to get her cellphone.  She was under arrest and Police were certainly not going to send her in unescorted to get the phone.  We are not going to ask the Police to ignore contraband that was in plain view once they were in the room where TORRES-VEGA led them to get the phone.  MINNICK observed the contraband himself after the Officers called him up and he obtained a search warrant before proceeding any further.  We find that the plain view of the drug paraphernalia provided probable cause for the search warrant, and we deny DEFENDANTS’ Motions to Suppress the evidence seized as a result of the search by Police Officers of 630 East Lehman Street on July 27, 2022. 

            We find that the searches and seizures at 200 Canal Street and the two searches and seizures at 630 East Lehman Street were lawful. Thus, the fruit of those searches and seizures provided valid probable cause for the warrant requested to search the Google accounts and telephone numbers in question.

IV.       CONCLUSION

            We reject the DEFENDANTS’ Pre-Trial Suppression arguments. It is time for the parties to prepare for trial and present their arguments to a jury.  The Court denies all of the motions contained within the Omnibus Pretrial Motions of TORRES VEGA and PADIN-PIZARRO.

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[1] The contents of this section are derived from the Affidavit of Probable Cause appended to the Complaint, and from the Search Warrants we were given.  We understand that no trial has occurred and that everything set forth in this section must still be considered allegations.

[2] Judge Jones was an experienced criminal attorney before he became a judge.  We are confident that Judge Jones realized that very few people in ANDINO’s situation had “clean” pasts.

[3] The Commonwealth also argued that when MINNICK took notice of the phone number on TORRES-VEGA’s phone, it was not a search.  DEFENDANTS did not address this issue in their briefs, but to the extent necessary we hold that MINNICK’s observation of PADIN-PIZARRO’s number on his Wife’s phone did not violate his constitutional rights.