ARGUED: April 10, 2012
Appeal from the Order of the Superior Court entered November 10, 2010 at No. 2140 WDA 2008, vacating the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered November 25, 2008 and the Order entered October 22, 2008 at No. CP-02-CR-0011630-2007 and remanding.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
MR. EAKIN JUSTICE
The Commonwealth appeals from the order of the Superior Court vacating appellee's judgment of sentence for persons not to possess firearms, possessing instruments of crime (unlawful body armor), possession of small amount of marijuana, and possession of drug paraphernalia. We conclude the Superior Court erred in holding the trial court violated Pa.R.Crim.P. 203(D) in the course of deciding whether a search warrant should have been issued; accordingly, we reverse.
On April 11, 2007, police received information from a concerned citizen who witnessed a possible drug transaction at appellee's residence. Two days later, the officers searched the garbage from appellee's residence and discovered drug paraphernalia, as well as marijuana and cocaine residue. Police investigation revealed appellee had five prior narcotics arrests, and two prior arrests and one conviction for firearms violations. A confidential informant subsequently told police he knew drugs were being sold from appellee's residence. The officers conducted surveillance and saw individuals coming and going from the residence in brief increments of time, and several vehicles pulling up in front of the residence. On April 19, 2007, police conducted a second trash pull of appellee's garbage and discovered more drug paraphernalia and residue.
Based on this information, police applied for and executed a search warrant for appellee's residence on April 20, 2007. The affidavit of probable cause in support of the warrant included the following information concerning the two trash pulls:
On 4/13/07 Det Volker and your affiant conducted a trash pull of [appellee's residence]. Upon searching the garbage taken from the residence Det. Volker did recover "diapers" which are sandwich baggies with the corners torn off of them. Approx. 20 of the baggie "diapers" were found inside an empty plastic sandwich baggie box. Also found was one plastic baggie with marijuana stems and seeds inside of it, approx. 3 plastic baggie "knots", 10 plastic baggie "corners" and 1 plastic baggie with cocaine residue inside it. The plastic baggie residue was field tested using the Narcopouch 904B which tested positive for the presence of cocaine.
On 4/19/07 Det Volker and your affiant conducted a final trash pull of [appellee's residence]. Upon searching the garbage taken from the residence Det. Volker did recover approx. ten "diapers" which are plastic baggies with the corners torn off, 2 plastic baggies with marijuana residue, one plastic baggie knot and a plastic corner of a baggie with cocaine residue. The plastic baggie corner was field tested using a NarcoPouch 904B which tested positive for the presence of cocaine. Indicia of residency was located in said trash ….
Affidavit of Probable Cause, 4/20/07, at 4-5 (emphasis added).
After searching the inside of appellee's home, police recovered three guns, soft body armor, drug paraphernalia, and a small amount of marijuana. Appellee admitted sole possession of the contraband and was charged accordingly.
Appellee moved to suppress his post-search inculpatory statements and the evidence seized from his home on the grounds the affidavit for the search warrant failed to establish probable cause. At the suppression hearing, appellee argued the affidavit did not specify where the trash was actually located when police seized it. If the trash was on the curb awaiting collection, it was abandoned, and police could lawfully search it without a warrant; if it was on appellee's porch, appellee retained a privacy interest in it, and the trash pull was unlawful. See N.T. Suppression Hearing, 3/6/08, at 35-37; see also California v. Greenwood, 486 U.S. 35, 37 (1988) (Fourth Amendment does not prohibit warrantless search and seizure of garbage left for collection outside curtilage of home); Commonwealth v. Perdue, 564 A.2d 489, 493 (Pa. Super. 1989), appeal denied, 574 A.2d 68 (Pa. 1990) (same).
The trial court initially granted appellee's suppression motion, see N.T. Suppression Hearing, 5/28/08, at 3, and orally denied the Commonwealth's motion to reconsider at a hearing. See N.T. Reconsideration Hearing, 6/30/08, at 9. Later that day, it issued a written order granting reconsideration. See Order, 6/30/08. At the subsequent suppression hearing, the court explained it decided to grant the motion to reconsider because it determined there were two constitutional issues: one involved the search warrant itself, and the other involved the trash pull. Because there was no way to tell from the affidavit of probable cause and the prior proceedings whether the trash pull violated appellee's Fourth Amendment rights, the trial court allowed the Commonwealth to present evidence pertaining to the trash pull that was not within the four corners of the affidavit.
The court's aim was to determine whether the evidence from appellee's trash was illegally seized and, as such, could not serve as probable cause. See N.T. Suppression Hearing, 10/22/08, at 3-4. Accordingly, the trial court allowed one of the officers who conducted the trash pulls to testify the trash had been set out on the sidewalk adjoining the steps leading to appellee's residence on trash collection day. See id., at 8-12. Based on this testimony, the trial court concluded the trash was abandoned; therefore, appellee had no expectation of privacy, and the trash pulls did not violate his constitutional rights. Accordingly, the trial court held the evidence obtained from the trash pulls was properly included in the affidavit, and it denied appellee's motion to suppress. See id., at 23-24. Appellee objected to this ruling, arguing the "four corners rule" in Pa.R.Crim.P. 203(D) did not permit evidence outside the four corners of the affidavit in determining the constitutional validity of the trash pull.
Appellee pled guilty to other drug charges not at issue in this appeal, and was tried without a jury, found guilty, and sentenced to an aggregate term of four to eight years imprisonment. He appealed to the Superior Court, arguing the trial court was without jurisdiction to modify the order of May 28 on June 30, more than 30 days after its entry. See 42 Pa.C.S. § 5505 (court may modify or rescind any order within 30 days after entry if no appeal has been taken). Appellee also argued the court violated Pa.R.Crim.P. 203(D) when, in determining whether the search warrant was properly issued, it considered testimony not contained in the affidavit of probable cause.
The Superior Court disagreed with appellee's argument concerning the trial court's lack of jurisdiction to reconsider the suppression order. It held Padilla categorizes a pre-trial suppression order as a final order for purposes of appeal only, and such an order is still considered interlocutory pursuant to 42 Pa.C.S. § 5505. See Commonwealth v. James, 12 A.3d 388, 391 (Pa. Super. 2010) (citing Commonwealth v. Hoffman, 532 A.2d 463, 463 (Pa. Super. 1987) (Commonwealth can directly appeal suppression order, but it is "otherwise [an] interlocutory order ...."). Accordingly, the court concluded the trial court had jurisdiction to grant the Commonwealth's motion for reconsideration of the suppression order. Id., at 391-92.
Regarding appellee's challenge to the trial court's admission of testimony not contained in the affidavit, the Superior Court held the trial court violated Pa.R.Crim.P. 203(D) by considering evidence at the suppression hearing that was outside the four corners ...