The Pennsylvania Superior Court has decided the case of Commonwealth v. Kemp, finding that the police properly obtained a search warrant for the defendant’s house where police had twice seen the defendant travel from his house directly to a location where he engaged in drug transactions with a confidential informant. The court further held that police had the authority necessary to frisk the defendant when they executed the search warrant because when they arrived, he was nervous, made quick movements, dropped a bag, and backed away from them.
The Facts of Kemp
Kemp centered around whether the police properly obtained a search warrant for the defendant’s home. In their investigation, the police spoke with a confidential informant who they had previously used. The CI told them that he had purchased marijuana from the defendant multiple times over the past couple of years. The CI provided the officers with the defendant’s cell phone number and told them that he usually sells vehicle from a Jeep Cherokee or white Cadillac DTS. The CI also told police that the defendant was a SEPTA bus driver and that he had purchased marijuana from him within the past six months.
After receiving this information, the police investigated the cell phone number that the CI had provided and determined that it was registered to the defendant. Police also knew the defendant’s address from prior contacts. They also knew that he was in fact a SEPTA driver because a police report had been made on a previous occasion when the defendant had been involved in a car accident while driving a bus.
In March 2015, the police met up with the CI to engage in controlled buys of marijuana. The officer had the CI call the defendant and place an order for marijuana. The defendant agreed to sell the CI marijuana and set a location for the sale. At the same time, other officers monitored the defendant’s home. Officers observed the defendant leave his home, enter a white Cadillac DTS, and drive directly to the proposed location without making any stops. They then watched him meet with the CI and sell marijuana to the CI. The CI then returned to the officers and provided them with the marijuana. The CI confirmed that he had just purchased the marijuana from the defendant. 48 hours later, the police used the same procedures to have the CI make a second marijuana purchase. Again, the defendant traveled directly from his house to the sale location without making any stops.
The officers then obtained a search warrant for the defendant’s house. When they arrived to execute the warrant, they saw the defendant exiting the house while carrying a black plastic bag. One of the officers exited his vehicle, identified himself as a police officer, and told the defendant that he had a search warrant for the house. The defendant put the bag on the ground and began to back away. The police then handcuffed him, frisked him, and recovered a gun. At the suppression hearing, the officer testified that he knew that the defendant owned multiple guns and had a license to carry a concealed firearm. Accordingly, the frisk was for his own safety. After finding the gun, police told the defendant that they were going to search the house. They asked where the defendant’s dogs were, and the defendant then accompanied them into the house. While they were approaching the house, the defendant again began to pull away. Officers then conducted a second search of the defendant and found marijuana in his socks.
The Motion to Suppress the Drugs
The defendant moved to suppress the gun and the marijuana recovered from his socks. He argued that there was no probable cause for the police to search his house and therefore the search warrant was defective. The defendant’s argument focused on the fact that the CI never told the police that he had seen marijuana in the defendant’s house and that the police never saw any drug transactions in or near the house. The defendant also challenged the frisk that police conducted when they arrived at the house to execute the warrant, arguing that they did not have the authority to search him outside of his house. The trial court denied the motion to suppress. The defendant was convicted of Possession with the Intent to Deliver and sentenced to a county jail sentence. Although the defendant had no prior record and the guidelines should have called for probation, the trial court used a sentencing guideline enhancement for selling drugs in a school zone and therefore imposed a jail sentence.
The Superior Court Appeal
The defendant appealed to the Superior Court. On appeal, the defendant challenged the denial of the motion to suppress as well as the sentencing guidelines used in sentencing him. The Superior Court affirmed the decision of the trial court to deny the motion to suppress. It found that the police had properly established probable cause for the search of the defendant’s home because the defendant had traveled directly from the home to the location of the drug sales on two occasions without stopping anywhere along the way. Therefore, the police had sufficient reason to believe that the defendant was storing the marijuana in his house. Had he stopped somewhere before making the sales, there may not have been probable cause for the house. But because he traveled directly to the controlled buys, the warrant was not lacking in probable cause.
The Superior Court also upheld the frisk of the defendant. It recognized that when police are executing a valid search warrant, they have the authority to detain people on the promises as well as those who have recently exited and are outside the premises. Police may also engage in a frisk when they have reasonable suspicion that a person is armed and dangerous. Here, the police were justified in detaining the defendant because they had a search warrant and he had just exited the home. They were also permitted to frisk him because he appeared uneasy, dropped a bag, and backed away from the officers. The officers also knew that the defendant owned multiple guns and had a concealed carry permit. Therefore, they had reasonable suspicion that the defendant could be armed. They were also justified in the second, more intrusive search of the defendant's socks because the defendant had in fact been armed and because they had watched him sell drugs to a CI twice. Accordingly, the Superior Court affirmed the defendant’s conviction.
At the same time, the court vacated the defendant’s sentence and remanded for a new sentencing hearing. Based on the defendant’s prior record score of zero and the low offense gravity score for selling marijuana in the quantity involved, the sentencing guidelines recommended a sentence of Restorative Sanctions (probation) to nine months plus or minus three months. However, the Commonwealth had argued for but failed to sufficiently prove that the sales took place within a school zone. Had the Commonwealth proven that the sales took place in a school zone, it would have made the defendant’s sentencing guidelines 12 – 30 months. But because the Commonwealth failed to present sufficient evidence, the defendant was sentenced under the wrong guidelines and was entitled to a new sentencing hearing.
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