Commonwealth v. Gagliardi
| Decision Date | 20 November 2015 |
| Citation | 2015 PA Super 242,128 A.3d 790 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Valentino GAGLIARDI, Appellee. Commonwealth of Pennsylvania, Appellant v. Romeo P. Gagliardi, Appellee. Commonwealth of Pennsylvania, Appellant v. Romeo Gagliardi, Appellee. |
Hugh J. Burns, Jr., Assistant District Attorney and Michael L. Erlich, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
William J. Ciancaglini, Philadelphia, for appellees.
The Commonwealth of Pennsylvania appeals as of right from the trial court's February 21, 2014 orders, granting the motions to suppress that were filed by Romeo Phillip Gagliardi, Romeo J. Gagliardi, and Valentino Gagliardi (hereinafter, collectively, “the Gagliardis”). We vacate the trial court's orders and remand.
On August 24, 2012, the Commonwealth applied for a warrant to search the residence of 2627 Emily Street, in Philadelphia. Attached to the application was an affidavit that was sworn by Philadelphia Police Officer Bruce Cleaver. At the time Officer Cleaver swore the affidavit, Officer Cleaver was a 14–year police veteran and was assigned to the Narcotics Bureau. As Officer Cleaver declared in the affidavit, during his time as a police officer, he was “involved in hundreds of narcotics arrests” and received specialized narcotics-related training given by the Philadelphia Police Department. Search Warrant and Affidavit, 8/24/12, at 2.
As Officer Cleaver averred, the confidential informant (“CI”) in this case provided him with the following tip: “a [white male] in his 30's who goes by the name Romeo lives at 2627 Emily [Street] and sells cocaine in South Philadelphia.”1 Using the CI, Officer Cleaver then conducted two controlled purchases of narcotics from Romeo. The first controlled purchased occurred on August 23, 2012 and transpired in the following manner: the officers gave the CI $100.00 in marked currency and watched the CI contact Romeo to set up a drug transaction; the CI went to 26th and Dudley Street and waited for Romeo under a tree; Romeo exited 2627 Emily Street and walked up to the CI; the CI gave Romeo $100.00 and Romeo gave the CI a clear packet containing cocaine; and, the two parted ways. Id.
Following the transaction, the police observed Romeo engage in a second transaction, where Romeo was again the seller. According to the affidavit, after the CI and Romeo parted, Romeo spoke on a cell phone and “walked back to the tree where he met the [CI].” A white Honda parked under the tree, Romeo entered the passenger-side of the vehicle, the driver handed Romeo money, and Romeo handed the driver a clear packet. Following the transaction, Romeo “exited the Honda[,] walked back to 2627 Emily [Street,] and entered the front door.” Id.
The next day, Officer Cleaver used the CI to conduct a second controlled purchase of narcotics from Romeo. With respect to this second controlled purchase: the officers gave the CI $100.00 in marked currency; the CI contacted Romeo; the CI went to 26th and Dudley Street; Romeo exited 2627 Emily Street and walked up to the CI; the CI gave Romeo $100.00 and Romeo gave the CI a clear packet containing cocaine; and, Romeo “walk[ed] back into 2627 Emily [Street].” Id.
The affidavit concluded by stating that the CI was reliable because the CI had, in the past, “made buys which led to numerous confiscations of narcotics, [United States currency] and paraphernalia.” Id.
Officer Cleaver swore to the above facts on August 24, 2012—which was the same day as the second controlled purchase. Also on August 24, 2012, the issuing authority approved the search warrant for 2627 Emily Street and the police executed the search warrant for the residence. As the Commonwealth notes:
Inside the residence, the police found two pounds of high grade marijuana, 136 grams of cocaine, $9,682[.00] in cash, a digital scale, a razor blade, a PGW bill in the name of Valentino Gagliardi, and a 9 millimeter Sig Sauer handgun loaded with 11 live rounds. Romeo Phillip Gagliardi [ ]—the Romeo who was observed selling cocaine to the informant—was arrested. Also present when the warrant was executed were his son Romeo J. Gagliardi [ ] and Valentino Gagliardi. They were likewise taken into custody.
On February 21, 2014, the Gagliardis made joint, oral motions to suppress the evidence in their cases. The Gagliardis argued that the search warrant for 2627 Emily Street was not supported by probable cause, as the affidavit of probable cause did not describe the basis of the CI's knowledge and did not establish a nexus between the contraband and the house. N.T. Motion, 2/21/14, at 5.
On February 21, 2014, the trial court granted the Gagliardis' motions and suppressed the evidence seized from 2627 Emily Street. Id. at 14. Within the trial court's later-filed opinion, the trial court declared that the search warrant was defective because there were “insufficient facts contained in the affidavit of probable cause that could allow anyone to draw the legally correct deduction that there was a strong probability that illegal activities were being conducted from the premises searched[ ] or that any evidence of that illegal activity would be found there at the time of the search.” Trial Court Opinion, 6/18/14, at 16.
First, the trial court declared, the affidavit was insufficient because it failed to establish that the tip was reliable. Id. at 7. With respect to this issue, the trial court declared that the affidavit: “did not say how or when the [CI] became aware that Romeo lived at 2627 [Emily Street] and was selling drugs;” did not specify when the CI informed the police of Romeo's address or that Romeo was selling drugs; did not describe how the CI contacted Romeo to arrange the buys; and, stated only that the CI previously “made buys” for the police, which “assisted in some unspecified number of previous confiscations.” Id. Since the trial court concluded that the tip was unreliable, the trial court held that the affidavit failed to “indicat[e] that Romeo did, in fact, live or have some other possessory interest in” 2627 Emily Street. Id. at 7–8. According to the trial court, “[f]or all one can glean from [the affidavit] ... [Romeo] could simply have been visiting someone [at 2627 Emily Street] and made the [ ] sales with whatever drugs he happened to have on his person while he just happened to be at that particular location.” Id. at 6–7.
Second, the trial court concluded that the affidavit did not establish a nexus between 2627 Emily Street and the contraband. Id. at 6. According to the trial court, this was because: none of the transactions occurred inside of the house; “the [CI] did not say that Romeo was selling drugs from, or storing them at, 2627 Emily [Street];” “[a]side from the fact that [Romeo] was seen leaving and reentering the house before and after making drugs sales, there is no indication whatsoever that he was, in fact, connected to the premises in any legally controlling capacity;” and, following the first controlled transaction between the CI and Romeo, Romeo conducted a second transaction without returning to the house, “thus indicating that Romeo did not have to return to the premises to replenish his stock and could very possibly have only been selling whatever drugs he happened to have on his person at any given time.” Id. at 6–7.
The Commonwealth filed timely notices of appeal from the trial court's interlocutory suppression orders and, within each notice of appeal, the Commonwealth certified that the relevant suppression order terminated or substantially handicapped the prosecution. See Pa.R.A.P. 311(d).2 Now before this Court, the Commonwealth raises the following claim:
Did the [trial] court err by invalidating a search warrant for a house on the ground that the police supposedly lacked probable cause despite arranging controlled buys in which a defendant was observed leaving the house, selling cocaine, and then returning to the house on two days in succession?
After viewing the evidence in a common-sense, non-technical manner, we conclude that substantial evidence in the record supports the issuing authority's decision to issue a warrant—and that the trial court thus erred when it granted the Gagliardis' motions to suppress.
To begin, we conclude that the trial court's faulty suppression ruling was occasioned by the fact that the trial court applied an incorrect standard of review to the issuing authority's probable cause determination.
According to our Supreme Court, when deciding whether to issue a search warrant, “the task of the issuing authority is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 925 (1986), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). However, as our Supreme Court held, with respect to a court that is reviewing an issuing authority's probable cause determination:
[the] reviewing court is not to conduct a de novo review of the issuing authority's probable cause determination, but is simply to determine whether or not there is substantial evidence in the record supporting the decision to issue a warrant.... In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner.
Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 655 (2010) ().3
Thus, although “[r]easonable minds frequently may differ on the question whether a particular...
To continue reading
Request your trial