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Commonwealth of Pennsylvania v. Hector Santiago III

Commonwealth of Pennsylvania v. Hector Santiago III

Criminal Action-Constitutional Law-Fourth Amendment-Search and Seizure-Omnibus Pretrial Motion-Suppression of Evidence-Vehicle Stop-Search Warrant-Illegal Substance-Probable Cause-Totality of the Circumstances-Experience of Law Enforcement Officer-Odor of Marijuana-Anxious Appearance-Prior Criminal History-Specificity-Description of Items Sought

Hector Santiago III (“Defendant”) was charged with Possession with Intent to Deliver a Controlled Substance and related offenses as a result of a traffic stop during which the law enforcement officer observed that the vehicle operated by Defendant lacked a registration plate.  Consent to search the vehicle was requested after the officer smelled marijuana, Defendant appeared extremely nervous, denied a previous criminal history and did not respond directly to questions regarding whether there was anything illegal in the vehicle or the officer had permission to search the vehicle.  Following subsequent denial of consent to search the vehicle, a search warrant for the vehicle was issued, after which approximately eighty (80) packages of marijuana were located.  Defendant filed an Omnibus Pretrial Motion to suppress evidence obtained during the search on the basis that the Affidavit of Probable Cause was not supported by sufficient indicia of probable cause to support issuance of a search warrant and the search warrant was overly broad because it included stolen items and did not sufficiently specify the sought substances. 

1.  The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures by police in areas where individuals have a reasonable expectation of privacy.

2.  The determination of whether probable cause exists to issue a search warrant is based upon the totality of the circumstances.

3.  Before an issuing authority may issue a constitutionally valid search warrant, the issuing authority must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search given all the circumstances set forth in the affidavit of probable cause, including the veracity and basis of knowledge of persons supplying hearsay information. 

4.  A court reviewing the issuance of a search warrant must determine whether there is substantial evidence in the record supporting the decision to issue the search warrant.

5.  The experience of the police is an important consideration in determining probable cause.

6.  The odor of marijuana may be a factor in evaluating whether police had probable cause to conduct a search under the totality of the circumstances. 

7.  A defendant’s prior criminal history may be a factor in determining probable cause. 

8.  The fact that a defendant appears to be overly nervous is a proper consideration in determining probable cause supporting issuance of a search warrant.

9.  Substantial evidence existed to support the issuance of the search warrant where the officer included in the Affidavit of Probable Cause his experience and training in investigations involving the Controlled Substance, Drug, Device and Cosmetic Act, he detected the odor of marijuana emanating from the vehicle, Defendant had a prior criminal background including numerous charges involving the distribution of narcotics and firearms, the claimant’s excessive anxious appearance and Defendant appeared untruthful and evasive when questioned.

10.  A valid search warrant must describe with particularity the items sought. 

11.  An overly broad search warrant authorizes the seizure of an entire set of items, many of which will prove unrelated to the crime under investigation. 

12.  Where the items to be seized are as precisely identified as the nature of the activity permits, the searching officer is required to describe only the general class of item sought.

13.  After establishing the existence of probable cause, the sufficiency of the description of the items sought must be measured against those items for which probable cause existed. 

14.  The search warrant properly was limited to items for which probable cause existed, specifically drugs that are illegal under the Controlled Substances, Drug, Device and Cosmetic Act and stolen items, weapons or firearms that could used to protect the illegal substances.

L.C.C.C.P. No. CP-38-CR-0001482-2022, Opinion by John C. Tylwalk, President Judge, July 17, 2023.

                   IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                     PENNSYLVANIA

                                                  CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                 :         NO. CP-38-CR-1482-2022

                                                                   :

          v.                                                       :

                                                                   :

HECTOR SANTIAGO III                                     :

                                                      ORDER OF COURT

          AND NOW, this 17th day of July, 2023, upon consideration of Defendant’s Omnibus Pretrial Motion to Suppress Evidence, the Exhibit provided to the Court at the hearing conducted on May 17, 2023, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED.  Defendant is directed to appear for the Call of the List scheduled for August 1, 2023 and the August 2023 Term of Criminal Jury Trials at 8:30 a.m. in the designated Courtrooms. 

                                                                   BY THE COURT:

                                                                   _________________________, P.J.

                                                                   JOHN C. TYLWALK

JCT/jah

Cc:  Nichole Eisenhart, Esquire

       Shannon Pascal, Esquire

       Leslie Fillak/Court Administration

       Judith Huber, Esquire/Law Clerk

                   IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                     PENNSYLVANIA

                                                  CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                 :         NO. CP-38-CR-1482-2022

                                                                   :

          v.                                                       :

                                                                   :

HECTOR SANTIAGO III                                     :

APPEARANCES:

NICHOLE EISENHART, ESQUIRE                           FOR THE COMMONWEALTH

FIRST ASSISTANT DISTRICT ATTORNEY

SHANNON PASCAL, ESQUIRE                       FOR HECTOR SANTIAGO III

ASSISTANT PUBLIC DEFENDER

OPINION, TYLWALK, P.J., JULY 17, 2023.

          Defendant is charged with Possession with Intent to Deliver a Controlled Substance and other related offenses as the result of a traffic stop on November 27, 2022 on Route 78 East in Swatara Township. Trooper Tristan Shoopack of the Pennsylvania State Police, Jonestown Barracks, conducted the stop when he was monitoring traffic on eastbound I-78 and observed that the vehicle being driven by Defendant lacked a registration plate.  Based on observations made during the traffic stop, Trooper Shoopack requested to search the vehicle.  Defendant did not consent to the search.  Trooper Shoopack then requested and received a search warrant from Magisterial District Judge Maria Dissinger. 

Defendant has filed an Omnibus Pretrial Motion to Suppress evidence obtained during the search.  Defendant contends that the Affidavit of Probable Cause did not set forth sufficient indicia of probable cause to justify the issuance of the search warrant and that the search warrant was overly broad.  We scheduled a hearing on the Motion for May 17, 2023.  At that time, the parties agreed to admit the search warrant into evidence in lieu of testimony.  (Exhibit “1”)  Both parties have filed Briefs in support of their positions and the matter is now before us for disposition.

          The Affidavit of Probable Cause submitted by Trooper Shoopack stated, in part:

Your affiant, … has participated in multiple investigations regarding The Controlled Substance, Drug, Device and Cosmetic Act, including but not limited to drug possession with intent to deliver, drug possession, and drug paraphernalia.  Your Affiant has also completed over 100 hours of extended trainings pertaining in (sic) Criminal Interdiction and Drug Investigations.

…  I observed a Grey Hyundai Santa Fe traveling East on I78 in the left hand lane of travel with no vehicles blocking the right lane of travel.  I observed the vehicle to pass my location and no registration plate to be affixed on the vehicle in its appropriate location.

I then initiated a traffic stop at on I78E Mile Marker 3.  I approached the vehicle from it’s (sic) passenger side and immediately smelled the odor of marijuana to be emanating from the vehicle.  I then asked the operator for his license, registration and insurance documents.  The operator identified himself with his NY driver’s license as Hector Santiago.

I then asked Santiago out of the vehicle to be further interviewed.  Santiago immediately lit a cigarette upon exiting the vehicle.  Santiago began by stating he has never received a citation or has been “in trouble” before, a query of Santiago’s criminal history shows numerous charges pertaining to the distribution of narcotics as well as firearm charges.  Santiago was advised that he would only be receiving a warning for the traffic infractions.  Santiago acknowledged that he would only be receiving a warning but continued to be extremely anxious.  I then asked Santiago if there was anything illegal in the vehicle.  Santiago immediately redirected the question and did not answer.  Santiago was then asked for consent to search his vehicle.  Santiago again redirected the question but eventually declined consent to search his vehicle.

Based on your Affiant’s training and experience it is common for individuals with drugs are (sic) often have weapons and/or firearms in their possession.

(5/17/23, Exhibit “1”)

MDJ Dissinger signed a search Warrant on November 27, 2021 authorizing

a search for:

          “Any and all controlled substances including but not limited to

Marijuana, related paraphernalia, currency or proceeds related to the sale of illegal drugs/narcotics, evidence of a violation of the Controlled Substance, Drug, Device and Cosmetic Act, stolen items, weapons and firearms which may be used to protect drug/narcotics.”

(5/17/23, Exhibit “1”)  Upon searching the vehicle, the police located approximately eighty (80) packages of marijuana. 

Defendant argues that the issuance of the search warrant to include “stolen items” was unjustified under the terms of the Affidavit of Probable Cause and was overly broad in that it would allow Trooper Shoopack to search and seize anything he believed may have been stolen.  Defendant also argues that Trooper Shoopack’s statement that “it is common for individuals with drugs are (sic) often have weapons and/or firearms in their possession” is overly broad as it could allow the search of individuals who are taking prescription drugs or medical marijuana in addition to illegal controlled substances. 

          Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures by police in areas where individuals have a reasonable expectation of privacy. Commonwealth v. Loughnane, 643 Pa. 408, 173 A.3d 733, 741 (2017).  Thus, search warrants must be issued by a magistrate who is neutral and detached.  Commonwealth v. Sharp, 683 .2d 1219, 1222 (Pa. Super. 1996).  The magistrate’s review of the warrant must be based upon an “independent determination of probable cause.”  Id., quoting Commonwealth v. Edmunds, 586 A.2d 887, 905 (Pa. 1991). 

          The determination of whether probable cause exists to issue a search warrant is based on the totality of the circumstances.  Commonwealth v. Gray, 502 A.2d 921 (Pa. 1985).  The totality of the 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). 

It is well-established that a magistrate may not consider any evidence outside of the affidavit to determine whether probable cause exists to support a search warrant. See Pa.R.Crim.P. 203(B). This Court has held “[b]efore an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search…” and such information “must be viewed in a common sense, nontechnical, ungrudging and positive manner.” 

The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all 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.

[P]robable cause is based on a probability, not a prima facie case of criminal activity. 

… [W]ith 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.

Thus, although “[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause,” the deference afforded a magistrate judge ensures that, “[i]f a substantial basis exists to support the magistrate’s probable cause finding, [the trial court] must uphold that finding even if a different magistrate judge might have found the affidavit insufficient to support a warrant.”

Commonwealth v. Mendoza, 287 A.3d 457, 462-463 (Pa. Super. 2022) (citations omitted). 

          We believe the MDJ’s assessment of the facts presented by Trooper Shoopack justified the issuance of the search warrant.  The experience of the police is an important consideration in the determination of probable cause.  See, Commonwealth v. King, 2023 WL 2982919 (Pa. Super. 2023) (non-precedential). In the Affidavit of Probable Cause, Trooper Shoopack first described his ample training and experience in the investigation of cases involving controlled substances.  Trooper Shoopack’s training and experience were relevant in the MDJ’s consideration of the Trooper’s assessment of the situation, including the statement that “individuals with drugs are (sic) often have weapons and/or firearms in their possession” in determining whether there was probable cause to support the issuance of a warrant.  (Exhibit “1”)

Trooper Shoopack noted that he had detected the odor of marijuana immediately upon his approach of Defendant’s vehicle.  Pursuant to the Pennsylvania Medical Marijuana Act (“MMA”), if a “patient” receives certification from a practitioner and possesses a valid identification card from the Commonwealth’s Department of Health, then that patient can possess and consume medical marijuana in a manner that is consistent with the statutory provisions  35 P.S. § 10231.303(b)(1)(i).  A “patient” is defined as “an individual who (1) has a serious medical condition; (2) has met the requirements for certification under this act; and (3) is a resident of this Commonwealth.”  35 P.S. §10231.103.  It is unlawful to smoke medical marijuana.  35 P.S. §10231.304.  The possession of marijuana remains illegal under the Controlled Substances Act for those who are not qualified under the MMA.  

Since the promulgation of the MMA, it has been held that the smell of marijuana alone cannot create probable cause to justify a search under the state and federal constitutions. Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021). However, the smell of marijuana indisputably can still signal the possibility of criminal activity. Commonwealth v. Barr, 266 A.3d at 41.  In Barr, the Pennsylvania Supreme Court concluded that the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search. Commonwealth v. Barr, 266 A.3d at 41.  In this case, Trooper Shoopack detected the odor of marijuana and would have realized that it was not possible for Defendant to be authorized to possess marijuana under the Pennsylvania MMA as his New York license indicated that he was not a resident of Pennsylvania and would not have a Pennsylvania medical marijuana card. 

In addition to the smell of marijuana, Trooper Shoopack cited several other considerations which, taken together, constituted probable cause for the issuance of the search warrant. A defendant’s prior criminal history may be a factor in the determination of probable cause. Commonwealth v. Bable, 428 A.2d 643 (Pa. Super. 1981).  Trooper Shoopack indicated that Defendant had a prior criminal background which included numerous charges for the distribution of narcotics as well as firearms charges.

Whether a defendant appears to be overly nervous is also a proper consideration in determining probable cause.  See, Commonwealth v. Robinson, 2015 WL 6736199 at * 8 (Pa. Super. 2015) (unpublished, non-precedential decision).  Trooper Shoopack further noted Defendant’s display of nervousness and anxiety which were unwarranted, as Defendant had been informed and had acknowledged that he would merely be issued a warning for not having a registration plate on the vehicle. 

          The Affidavit of Probable Cause also indicated that Defendant was not truthful and was evasive when questioned by Trooper Shoopack.  Defendant represented that he had no criminal background when Trooper Shoopack’s investigation indicated that he had multiple prior offenses for violations involving the distribution of controlled substances and firearms charges.   Defendant also acted evasive and redirected Trooper Shoopack’s questions when he was asked whether there was anything illegal in the vehicle and whether Defendant would consent to a search. 

          Based on the totality of the information cited in Trooper Shoopack’s affidavit of Probable Cause, we conclude that the MDJ had a substantial basis for concluding that probable cause existed.  Therefore, we determine that the issuance of the search warrant was appropriate. 

          Defendant also argues that the search warrant was overly broad in that it permitted a search of the vehicle for “stolen” items, arguing that this gave Trooper Shoopack unlimited license to rummage through and seize anything he found in the vehicle, with no parameters as to how to identify any article as stolen.  Defendant also argues that the description of the drugs referred to in the search warrant was insufficient and could include lawful substances.  We disagree. 

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. …” Pa. Const. Art. I § 8. Thus, “a warrant must name or describe with particularity the property to be seized and the person or place to be searched.” 

The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad,” which are separate, but related, issues.  A warrant lacks sufficient particularlity if 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.” . A warrant is unconstitutionally overbroad if 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. 

Commonwealth v. Green, 204 A.3d 469, 480-481 (Pa. Super. 2019) (citations omitted).

          A valid search warrant must describe with particularity the items sought, to establish that “citizens generally enjoy protection … from general, exploratory searches by government actors.”  Commonwealth v. Rega, 933 A.2d 997, 1011 (Pa. 2007). A particular warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.  Commonwealth v. Young, 287 A.3d 907, 919 (Pa. Super. 2022).  An overly broad warrant is a warrant which “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.  An overbroad warrant is unconstitutional because it authorizes a general search and seizure.  Id. at 920.  A search warrant cannot be “so ambiguous as to allow the executing officers to pick and choose among an individuals’ possessions to find which items to seize” in order to avoid a general rummaging of property.  Commonwealth v. Rega, 70 A.3d 777, 785 (Pa. Super. 2013).   

          However, warrants should be read “in a commonsense fashion and should not be invalidated by hypertechnical interpretations; thus, when an exact description of a particular item is not possible, a generic description may suffice.  Pa.R.Crim.P. 205 – Comment.  “Where the items to be seized are as precisely identified as the nature of the activity permits … the searching officer is only required to describe the general class of the item he is seeking.  Commonwealth v. Rega, 933 A.2d at 1012. 

In assessing the breadth of a warrant, courts must first determine for which items probable cause existed by examining the totality of the circumstances and deciding whether, “given all the circumstances set forth in the affidavit … there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  Commonwealth v. Rega, 70 A.3d at 785.  After establishing the existence of probable cause, the sufficiency of the description must then be measured 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.  Id.

The representations set forth in the Affidavit of Probable Cause, indicated the existence of probable cause that a search of the vehicle would yield illegal controlled substances and/or weapons.  The Affidavit of Probable Cause referred to Trooper Shoopack’s investigation involving illegal items which might be present in the vehicle.  The search warrant authorized, in part, a search for illegal controlled substances and “stolen items, weapons and firearms which may be used to protect drug/narcotics.”  (Exhibit “1”)   Thus, the police were authorized to search only for drugs which were illegal under The Controlled Substances Act and any stolen items, weapons and firearms which would be linked to those controlled substances and/or which would be used to protect the illegal drugs/narcotics.  There was no discrepancy between the items for which there was probable cause and the description in the warrant.  Thus, we find that the search warrant was properly limited to items for which probable cause existed and was not overly broad. 

For these reasons, we will deny Defendant’s Pre-Trial Motion for the suppression of evidence. 

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