Opinion

Com. v. Noel, M.

Court: Superior Court of Pennsylvania
Filed: Feb 7, 2020
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 10.9%

The opinion

J-S74039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF

PENNSYLVANIA, : PENNSYLVANIA

Appellant :

v. :

: No. 2047 EDA 2019

MARQUISE NOEL

Appeal from the Order Entered June 18, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0002562-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

v. :

MARQUISE NOEL : No. 2048 EDA 2019

Appeal from the Order Entered June 18, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0002563-2018

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: Filed: February 7, 2020

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S74039-19

In these consolidated matters,1 the Commonwealth appeals2 from the

Order entered in the Court of Common Pleas of Philadelphia County on June

18, 2019, granting the motion to suppress cell phone site location information

filed by defendant Marquise Noel (hereinafter “Noel”).3 Following a careful

review, we reverse the suppression court’s Order and remand for further

proceedings consistent with this Memorandum.

The suppression court filed its Findings of fact and Conclusions of Law

on June 21, 2019, and on June 24, 2019, the court filed an Amended

____________________________________________

1 In accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),

the Commonwealth filed a timely and separate notice of appeal for each docket

number. On July 22, 2019, the Commonwealth filed a notice of appeal in No.

2047 EDA 2019, in connection with Docket No. CP-51-CR-0002562-2018,

wherein Noel was charged with the murder of Tafari Lawrence, conspiracy,

violations of the Uniform Firearms Act, and possessing an instrument of crime

(PIC). The Commonwealth also filed a notice of appeal on July 22, 2019, in

No. 2048 EDA 2019 pertaining to Docket No. CP-51-CR-0002563-2018,

wherein Noel was charged with the attempted murder and aggravated assault

of Marcus Alexander. On October 28, 2019, the Commonwealth filed an

Application for Consolidation of the matters asserting that the issues on both

appeals are identical. In a Per Curiam Order entered on November 21, 2019,

this Court granted the Commonwealth’s Application and consolidated the

matters on appeal.

2 The notices of appeal filed at both docket numbers contain the requisite

statement certifying that the suppression court’s June 18, 2019, Order

terminates or substantially handicaps the prosecution. See Pa.R.A.P. 311(d)

(permitting Commonwealth appeal from an interlocutory order if it certifies

that the order will terminate or substantially handicap the prosecution);

therefore, the Commonwealth has perfected its appeals and invoked this

Court’s jurisdiction. See Commonwealth v. Chism, 216 A.3d 1133, 1136

(Pa.Super. 2019).

3 The suppression court granted a separate suppression motion on February

14, 2019, barring the introduction into evidence of the cell phone itself along

with incriminating text messages found thereon and clothing taken from Noel

at the hospital. That Order is not at issue herein, see infra.

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Statement of Findings of Fact and Conclusions of Law wherein it slightly

revised its June 21st filing and set forth the relevant Factual and Procedural

history herein as follows:

Relevant Background and Procedural History

On February 11, 2018, shortly before 1:58 PM, the decedent

Tafari Lawrence was shot near 7500 Elmwood Avenue in the City

of Philadelphia. Lawrence was pronounced dead at 2:18 PM, after

he was transferred to Presbyterian Hospital.

At approximately 2:20 PM on February 11, 2019[sic], the

[Noel] arrived at the same hospital after suffering a gunshot

wound to his leg.1 While at the hospital, [Noel] spoke to

Philadelphia Homicide Detectives and informed them that he was

shot during a robbery at the intersection of 59th Street and

Baltimore Avenue. Police search of that area determined that no

robbery had taken place earlier in the day.

At 3:28 PM, video surveillance from Presbyterian Hospital

recorded Homicide Detectives Freddy Mole, Joseph Murray, and a

third male search [Noel’s] cell phone. The recording captured

Detective Mole visibly pushing buttons on the phone causing a

light to emit from the screen. The video further revealed that

Detectives Mole and Murray examined the phone from 3:28:10 PM

to approximately 3:32:14 PM, a period of approximately four

minutes.

After searching the phone, Detective Murray composed an

affidavit for a warrant to search [Noel’s] phone, wherein he cited

[Noel’s] account of the nonexistent robbery at 59th Street and

Baltimore Avenue as probable cause. The police determined that

there were no reports of a shooting or disturbance at that location,

and found [Appellant’s] story to be suspect. The search warrant

was approved on February 11, 7:19 PM and signed by the

magistrate at 8:00 PM, less than an hour later. The search

pursuant to the warrant was executed twenty minutes later, at

8:20 PM.

At a preliminary hearing held on April 3, 2018, Detective

Mole testified that he had seized [Noel’s] phone at the hospital,

but refrained from searching the phone until after he had secured

a warrant.

On October 12, 2018, [Noel] filed a Motion to Suppress. On

or before December 19, 2018, [Noel’s] counsel obtained and

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examined surveillance video from the hospital depicting

Detectives Mole and Murray conducting the above unwarranted

search of [Noel’s] phone.

On December 20, 2019 [sic], the Commonwealth filed a

Motion to Disqualify Counsel and Law Firm From Representing

[Noel] and a Motion for Continuance, alleging that defense counsel

violated his duty to [Noel] with respect to the discovered

surveillance video.2 On December 21, 2018, [Noel] filed a Writ of

Habeas Corpus, requesting immediate bail. On January 18, 2019,

after two hearings, this [c]ourt denied the Commonwealth's

Motion to Disqualify.3 On January 22, 2019, this [c]ourt denied

[Noel’s] Writ of Habeas Corpus.

On February 14, 2019, during a suppression hearing before

this [c]ourt, the Commonwealth declined to put on evidence. At

that hearing, the Commonwealth averred that it reviewed the

surveillance video, interviewed Detectives Murray and Mole, and

found their accounts to be incredible. Accordingly, based on their

understanding of the Pennsylvania Supreme Court's holding in

Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018), the

Commonwealth informed this [c]ourt that it had no choice but to

concede [Noel’s] Motion to Suppress the contents of [Noel’s] cell

phone and clothing recovered on February 11, 2018.

Consequently, this [c]ourt granted the defendant's Motion to

Suppress with respect to both the cell phone and the clothing.

On February 25, 2019, after this [c]ourt permitted [Noel] to

supplement the testimony presented at the preliminary hearing,

this [c]ourt removed the lead charge of Murder generally and held

the matter for court on Third-Degree Murder. On February 27,

2018, this [c]ourt granted [Noel’s] Writ of Habeas Corpus

pursuant to Pa.R.Crim.P. 600(B) and granted bail.4 This [c]ourt

also continued the matter for the Commonwealth to conduct

additional investigation for the purpose of reestablishing probable

cause to search [Noel’s] cell phone via an independent source.

In the months after the February 14, 2019 listing, Detective

Laura Hammond oversaw the investigation of the instant matter.

On April 18, 2019, Detective Hammond obtained two search

warrants for cell phone records identified pursuant to a

investigation. On May 20, 2019, [Noel] filed a Motion to Preclude

Cell Phone GPS or Location Data Evidence. On June 5, 2019,

[Noel] submitted a Letter Brief Regarding [his] Pretrial Motions.

On June 13, 2019, this [c]ourt received the Commonwealth's

Response to the Defense Motion for Preclusion of Cell Site

Analysis.

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On June 17, 2019, this [c]ourt presided over a hearing to

address [Noel’s] Motion to Preclude Cell Phone GPS or Location

Data Evidence. At the conclusion of that hearing, this [c]ourt

continued the matter to the next day for the Commonwealth to

provide this [c]ourt with case law to support the proposition that

a Defendant's dishonesty alone is sufficient to warrant a finding of

probable cause pursuant to a "four-corners" challenge to a search

warrant.

On June 18, 2019, in lieu of submitting the requested

information, the Commonwealth presented case law to support an

additional argument that [Noel] lacked standing to challenge the

April 18, 2019 warrant on the grounds that he did not have an

ownership or privacy interest in the attendant cell phone records

for the [(215) 873-]1723 device. On that same date, after hearing

argument on all presented issues, this [c]ourt granted [Noel’s]

Motion to Preclude Cell Phone GPS or Location Data Evidence.

Facts Contained within the April 18, 2019 Search Warrants

On April 18, 2019, Detective Hammond submitted search

warrants for the cell phone tower records associated with the 267-

576-8390 and 215-873-1723 phone numbers, containing the

following averments:

On February 11, 2018, police officers responded to a

shooting and hospital case at the location of 75th and Elmwood

Streets, and transferred two victims, Marcus Alexander and the

decedent Tafari Lawrence to Presbyterian Hospital. Doctors

pronounced Lawrence dead at 2:18 PM, while Alexander was

treated and released. Police further discovered sixteen 9mm fired

cartridge casings ("FCCs"), and nine .45 cal. FCCs. Pursuant to an

autopsy, Dr. Albert Chu determined that the cause of death was

multiple gunshot wounds and the manner of death was homicide.

At an unidentified date and time,[4] [Noel] arrived at

Presbyterian Hospital suffering from two gunshot wounds to the

____________________________________________

4 It is discernable from a plain reading of the Affidavit of Probable Cause that

Noel was brought to Presbyterian Hospital in or around the time Alexander

and Lawrence arrived there on Sunday February 11, 2018, for he is specifically

referred as a third shooting victim on that day:

On Sunday, February 11, 2018, 12th District police responded to

a radio call of a shooting and a hospital case at 75th and Elmwood.

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right leg. [Noel] reported to police that he was shot during a

robbery at the intersection of 59th Street and Baltimore Avenue.

A subsequent investigation found that there was not a single

report of a robbery, gunshots, hospital case, or even a disturbance

at that location during the time alleged. Officers found [Noel’s]

explanation suspect on the basis that the shooting would have had

to occur on a Sunday afternoon in a residential area.

On February 13, 2018, detectives interviewed [Noel], who

stated that on the day of the shooting, he purchased food at a

Checkers restaurant at 58th Street and Baltimore Avenue, and

drove away from that location. [Noel] described how, as he was

driving, he hit a pothole and got out of the vehicle at 59th Street

____________________________________________

Upon their arrival, officers located two male shooting victims.

Victim #1, later identified as Tafari Lawrence 23BM, was lying on

the highway unresponsive and suffering from multiple gunshot

wounds Victim #2, identified as Marcus Alexander 24BM, was

suffering from a gunshot wound to the buttocks. Both victims

were transported to Presbyterian Hospital by police. Victim #1,

succumbed to his injuries shortly after arrival and was pronounced

dead at 2:18 pm by Dr. Simms. Victim #2 was treated and

released. The crime scene consisted of sixteen (16) 9mm fired

cartridge casings and nine (9) 45 caliber cartridge casing[s]

indicating that at least two different guns were fired.

On Monday, February 12, 2018, Dr. Albert Chu performed a post

mortem examination on the remains of Talfari Lawrence. Through

his examination, Dr. Chu was able to ascertain that the cause of

death was multiple gunshot wounds and ruled the manner of

death homicide.

A third shooting victim, identified as Marquis Noel 21BM, arrived

at Presbyterian Hospital suffering from two gunshot wounds to the

right leg. Mr. Noel reported to police that he was just shot during

a robbery at 59th and Baltimore. Detectives investigated this

information and found that there was not a single report of a

robbery, gunshots, hospital case, or even a disturbance near 59th

and Baltimore around the time that Mr. Noel alleged that this

happened. The fact this was a Sunday afternoon in a residential

area, makes Mr. Noel’s story extremely suspect.

See Application for Search Warrant and Affidavit, April 18 2019, at 2 ¶¶ 1-3.

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and Baltimore Avenue to check for damage, whereupon a man

attempted to rob him at gunpoint. [Noel], a former boxer,

resolved to fight the assailing [sic], resulting in him sustaining two

gunshot wounds. After seeing this incident, and [sic] unidentified

bystander used [Noel’s] vehicle to drive him to Presbyterian

Hospital. [Noel] did not know the whereabouts of that individual

or the vehicle.

Officers arrested [Noel] on February 11, 2018, where he

remained in custody. At an unascertained time,[5] homicide

detectives obtained a list of phone numbers [Noel] communicated

with while incarcerated, and identified 267-325-7876, 267-266-

6053, 267-902-4644 as commonly called numbers. After listening

to recorded phone conversations, police determined that the

individual associated with the numbers were either [Noel’s]

family, a paramour, or his associates. Police officers further

obtained call detail records for each phone.

In April 2019, Homicide Detective John Verrecchio analyzed

the call detail records for the three aforementioned numbers.

Through that analysis, Detective Verrecchio identified four

numbers that appeared on all three sets of call detail records, but

ceased contact after 2:00 PM on February 11, 2018: 267-576-

8390, 215-873-1723, 267-388-1637, and 800-483-8314.

Detectives eliminated the 800-483-8314 number after

determining that it was associated with an automated payment

service, and eliminated the 267-388-1637 number after

discovering activity on that phone after [Noel’s] number was

seized on February 11, 2018.

For the 267-576-8390 number, investigators identified one

connection with the 267-266- 6053 number, an outgoing call to

the 8390 number, at 7:30 PM. Investigator[s] further identified

an outgoing call from the 267-325-7876 number to the 8390

____________________________________________

5The Affidavit of Probable Cause does include a timeframe during which these

phone numbers were obtained pursuant to search warrants:

Marquis Noel was arrested on 2/11/2018 and has been in custody

ever since. In an attempt to identify a cellular phone number that

Marquis Noel may have had prior to his arrest, Homicide

Detectives obtained a list of phone numbers with whom he is

communicating with [sic] while incarcerated. . . .

See Application for Search Warrant and Affidavit, dated April 18 2019, at 3 ¶

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number at 6:30 PM. Investigators discovered no connections

between the 267-902-4644 number and the 8390 number.

Police were unable to discover any connections between the

targeted 215-873-1723 number and the 267-325-7876 and the

267-266-6053 numbers. Investigators were able to identified [sic]

four outgoing calls from the 267-902-4644 number and the 1723

number, made at 2:32 PM, 3:00 PM, 6:14 PM, and 6:15 PM. Each

call indicated an attempt with no connections.

At the end of each warrant, the affiant described how

cellular devices facilitate communication by connecting with cell

towers using unique identification numbers, which are in turn

documented and recorded with the date, time, duration, direction,

type of connection, and cell tower the connection was facilitated

to, permitting investigators to geo-locate the cellular handset

during each connection. The affiant contends that this information

can be used to identify the user of the device.

The affiant concludes each warrant with her attestation of

her belief that sufficient probable cause exists to recover all

records relating to target number: 267-576-8390. The

Commonwealth alleges that the target phone is, in fact, the device

associated with the 215-873-1723 number. [(emphasis in

original)].

Additional Facts Stipulated by the Parties at the June 17

and June 18, 2019 Hearings

The cell phone records for the device associated with the

215-873-1723 number, as provided by AT&T Wireless, listed

Locus Communication as the owner of record. Locus

Communications is a wireless communications company that

provides discounted, pre–paid access to a third party cellular

network in exchange for a user's payment of a finite amount of

network time. Locus Communications itself purchases access to

the AT&T network, which it in turn resells to its consumer base.

The Commonwealth did not discover any information concerning

Locus Communications until after it had already secured the

records associated with the 1723 device.

On February 13, 2018, homicide detectives interviewed

[Noel] concerning the instant shooting. Defense counsel stipulated

that, during that interview, [Noel] told police that he did not

possess a phone at the time of the shooting, but that he had

previously used a device belonging to his mother, associated with

a 267-325-8100.5

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The Commonwealth stipulated that, if called to the stand at

the instant hearing, [Noel] would have testified that he was the

exclusive user of the device associated with the 215-873-1723.

[Noel] would further [sic] testified that he obtained the device two

to three months prior to the instant shooting and solely purchased

minutes to operate the device.

This [c]ourt determines that [Noel] lied when he initially

spoke to detectives on February 11 and February 13, 2018 and,

at the time of the incident, he was the sole owner and exclusive

user of the device associated with the 215-873-1723 number.

______

1This fact was stipulated by the parties at the June 17, 2019,

suppression hearing.

2 Upon discovery of the video, defense counsel contacted the

District Attorney's Office, informed them of said video, and

requested to negotiate a non-trial disposition in the instant

matter. The Commonwealth responded by filing the motion to

disqualify counsel based on a conflict of interest between himself,

his firm, and [Noel], resulting in dereliction of his duties under the

Rules of Professional Conduct.

3 After appointing separate counsel for [Noel], this [c]ourt

determined that defense counsel was not derelict of duty, no

conflict of interest existed, and defense counsel was qualified to

continue his representation in the above-captioned matter.

4[Noel] currently remains in custody pursuant to a pending,

unrelated matter.

5No additional information about the 267-325-8100 device was

presented at the hearing.

Suppression Court’s Amended Statement of Findings of Fact and Conclusions

of Law, filed 6/24/19, at 1-7.

The suppression court did not enter an order directing the

Commonwealth to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and the Commonwealth did not file a concise

statement. In its brief, the Commonwealth presents the following Statement

of the Question Involved:

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Did the lower court err by suppressing data relating to the

whereabouts of a cell phone where [Noel] abandoned any

reasonable expectation of privacy in that data and, in any event,

it was seized pursuant to a valid search warrant.

Commonwealth’s Brief at 3. In considering this issue, we follow a clearly

defined standard of review:

When the Commonwealth appeals from a suppression order,

we follow a clearly defined standard of review and consider only

the evidence from the defendant’s witnesses together with the

evidence of the prosecution that, when read in the context of the

entire record, remains uncontradicted. The suppression court’s

findings of fact bind an appellate court if the record supports those

findings. The suppression court’s conclusions of law, however, are

not binding on an appellate court, whose duty is to determine if

the suppression court properly applied the law to the facts.

Our standard of review is restricted to establishing whether

the record supports the suppression court’s factual findings;

however, we maintain de novo review over the suppression court’s

legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016) (internal

citations and quotation marks omitted).

Herein, after acknowledging, “an appellate court may disagree with me,”

N.T. Hearing, 6/18/19 at 46, the suppression court determined that Noel had

a legitimate expectation of privacy in the cell tower records associated with

number (215) 873-1723 at the time of the homicide and that, therefore, the

April 18, 2019, search warrant for the cellular phone records related to that

phone number had not been supported by probable cause. Id. at 45-46. The

court explained its reasoning behind its decision as follows:

Based on the totality of the circumstances presented within

the April 18, 2019 Affidavit, this [c]ourt determines that the

Commonwealth did not establish sufficient probable case to justify

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its search of the cellular phone records associated with the 215-

873-1723 number. The facts presented by the Commonwealth

fail to rise above the realm of mere suspicion, and cannot be used

to justify its seizure of the attendant records.

Here, the affidavit describes facts and circumstances

showing that, two victims, Marcus Alexander and the decedent

Tafari Lawrence, arrived at Presbyterian Hospital on Sunday,

February 11, 2018, whereupon Lawrence succumbed to his

injuries at 2:18 OM, shortly after his arrival. The affidavit further

describes how [Noel] arrived at the same hospital suffering from

two gunshot wounds. The affidavit fails to indicate the date and

time [Noel] arrived at the hospital.6

While the affidavit indicates that police officer [sic] spoke to

[Noel] after his arrival at the hospital, and conducted an

investigation after hearing his account of an unrelated robbery

occurring at 59th Street and Baltimore Avenue, the affidavit does

not indicate when the discussion between officers took place,

when officers investigated the area of 59th Street and Baltimore

Avenue, or what methods the investigators used to confirm their

suspicion that [Noel’s] account was untruthful. The affidavit

further fails to indicate the time of [Noel’s] arrest.

Detectives secured cell phone records from three devices

[Noel] called during his incarceration, associating the numbers

with [Noel’s] family, associates, and a paramour. After examining

those records, [detectives] identified four numbers that ceased

contact after the time of the February 11, 2018, shooting. By

employing a process of elimination, the Commonwealth

determined that two of the phone numbers, 267-576-8390 and

215-873-1723, could be linked to [Noel’s] device. Detectives used

this information, coupled with their own experience of that CSLI

date[sic] could reveal pursuant to an investigation, in order to

secure warrants for each set of records.

The above averments, limited to four-corers analysis of the

affidavit, are insufficient to demonstrate anything beyond a mere

suspicion that [Noel] was involved in a criminal offense. While the

affidavit establishes that [Noel] connected with three numbers at

the time of his incarceration belonging to family, associates, and

a paramour, it fails to identify which individual possessed which

device, or how contact with these individuals was relevant to the

instant homicide. Though the investigators had access to certain

recordings of prison telephone conversations between [Noel] and

the users of these numbers, there is no indication that any

discussion concerning the instant offense occurred.

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The detectives’ investigation of the three identified numbers

further fails to establish the likelihood of discovering relevant CSLI

evidence in the targeted cell phones. As a preliminary matter, the

averments in the affidavit were insufficient to identify a single

number, instead the Commonwealth requests two [sic] search

two unrelated cellular device records on the belief that one relates

to the phone possessed by [Noel]. As the affidavit indicates, for

the 8390 device, only two contacts with the investigated phone

numbers were identified: one outgoing call from the 6053 device

at 7:30 PM on February 11, 2018 and an outgoing call from the

7876 number on February 12, 2018 at 6:21 PM, both well after

the time of the instant shooting and when the Commonwealth

alleges that [Noel] was either hospitalized or in custody. The

evidence relating to the targeted 1723 records is similarly lacking:

the Commonwealth identifies four attempted connections on

February 11, 2018 at 2:32 PM, 3:00 PM, 6:14 PM, and 6:15 PM,

in the form of outgoing calls from the 4644 device. The

Commonwealth further concedes that the record of each of these

outgoing calls indicates an attempt without a connection. Not only

does the Commonwealth again present evidence for cell phone

connections occurring after the time [Noel] was identified as

having been in custody, but fails to demonstrate that the evidence

used to identify this particular device would even appear on that

device’s records. This [c]ourt further notes that the affidavit for

the 1723 device records concludes by requesting to recover

records pertaining to the 8390 number, not the targeted number

on the affidavit.

The above evidence fails to establish probable cause as the

methodology used was insufficient to identify [Noel] as the user

of the device connected to the attended CSLI records, or how the

CSLI records from the targeted devices would be relevant after

conducting a cell site analysis of the records. Accordingly, based

on the information contained within the April 18, 2019 warrants,

the Commonwealth fails to carry its burden and the records are

suppressed.

___

6The affidavit does indicate that investigators disbelieved [Noel’s]

account of a robbery occurring before his arrival due to the

unlikelihood that such an event would go unreported on a Sunday

afternoon, implying that he entered the hospital near that time.

Amended Statement of Findings of Fact and Conclusions of Law, filed 6/24/19,

at 13-15.

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The Commonwealth asserts the suppression court erred as a matter of

law for two reasons: “First, [Noel] affirmatively abandoned ay privacy interest

that he may have enjoyed in the records in question. Second, those records

were secured by means of a search warrant that was properly approved by

the issuing authority.” Commonwealth’s Brief at 10.

In analyzing these claims, we are guided by our recent pronouncement

pertaining to searches and seizures as follows:

Once a defendant files a motion to suppress evidence, it is

the Commonwealth's burden to prove, by a preponderance of the

evidence, that the challenged evidence was not obtained in

violation of the defendant's rights. Commonwealth v. Wallace,

615 Pa. 395, 42 A.3d 1040, 1047–48 (2012) (citing Pa.R.Crim.P.

581(H)). When this Court reviews a ruling on a motion to

suppress, our standard of review is well settled: we are bound by

the suppression court's factual findings that are supported by the

record but we review its legal conclusions de novo.

Commonwealth v. Cooley, 632 Pa. 119, 118 A.3d 370, 373

(2015). “Our scope of review is limited to the record developed at

the suppression hearing, considering the evidence presented by

the Commonwealth as the prevailing party and any uncontradicted

evidence presented by [the defendant].” Commonwealth v.

Fulton, 179 A.3d 475, 487 (Pa. 2018) (citation omitted).

***

Both the Fourth Amendment of the United States

Constitution and Article 1, Section 8 of the Pennsylvania

Constitution “guarantee individuals freedom from unreasonable

searches and seizures.” Commonwealth v. Bostick, 958 A.2d

543, 550 (Pa. Super. 2008) (citation omitted). In Pennsylvania,

a defendant charged with a possessory offense has “automatic

standing” to pursue a suppression motion under Rule 581.

Commonwealth v. Enimpah, 630 Pa. 357, 106 A.3d 695, 698

(2014). However, in addition to standing, “a defendant must show

that he had a privacy interest in the place invaded or thing seized

that society is prepared to recognize as reasonable.” Id. “The

expectation of privacy is an inquiry into the validity of the search

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or seizure itself; if the defendant has no protected privacy

interest, neither the Fourth Amendment nor Article I, § 8 is

implicated.” Id. at 699.

This Court has found that an expectation of privacy will exist

when the individual exhibits an actual or subjective expectation of

privacy and that expectation is one that society is prepared to

recognize as reasonable. Commonwealth v. Jones, 874 A.2d

108, 118 (Pa. Super. 2005). In determining whether a person's

expectation of privacy is legitimate or reasonable, we must

consider the totality of the circumstances and the determination

“ultimately rests upon a balancing of the societal interests

involved.” Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d

615, 619 (1993) (citations omitted). “The constitutional

legitimacy of an expectation of privacy is not dependent on the

subjective intent of the individual asserting the right but on

whether the expectation is reasonable in light of all the

surrounding circumstances.” Commonwealth v. Viall, 890 A.2d

419, 422 (Pa. Super. 2005) (citation omitted).

Generally, the Fourth Amendment requires that law officers

obtain a warrant before they intrude into a place of privacy;

however, an exception to the warrant requirement exists when

the property seized has been abandoned. Commonwealth v.

Clark, 746 A.2d 1128, 1133 (Pa. Super. 2000). “[T]o prevail on a

suppression motion, a defendant must demonstrate a legitimate

expectation of privacy in the area searched or effects seized, and

such expectation cannot be established where a defendant has

meaningfully abdicated his control, ownership or possessory

interest.” Commonwealth v. Dowds, 563 Pa. 377, 761 A.2d

1125, 1131 (2000). Simply put, “no one has standing to complain

of a search or seizure of property that he has voluntarily

abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d

1216, 1220 (1976).

Our Supreme Court has explained, “abandonment of a

privacy interest is primarily a question of intent and may be

inferred from words spoken, acts done, and other objective

facts.” Dowds, 761 A.2d at 1131. “All relevant circumstances

existing at the time of the alleged abandonment should be

considered.” Shoatz, 366 A.2d at 1220. “The issue is not

abandonment in the strict property-right sense, but whether the

person prejudiced by the search had voluntarily discarded, left

behind, or otherwise relinquished his interest in the property in

question so that he could no longer retain a reasonable

expectation of privacy with regard to it at the time of the search.”

Id.

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Commonwealth v. Kane, 210 A.3d 324, 329–31 (Pa.Super. 2019)

(emphasis added), appeal denied, 218 A.3d 856 (Pa. 2019).

With regard to the device associated with the 215-873-1723 number, in

its Amended Statement of Findings of Fact and Conclusions of Law, the

suppression court “determine[d] that [Noel] lied when he initially spoke to

detectives on February 11 and February 13, 2018.” Amended Statement of

Findings of Fact and Conclusions of Law, 6/24/19, at 8. In fact, the record

reflects that when being questioned at the Homicide Division on February 13,

2018, Noel specifically had denied ownership of any cell phone at the time of

the homicide, and, instead, acknowledged only that he paid a bill for a cell

phone in his mother’s name with the number (267) 325-8100. N.T., 6/18/19,

at 18.

Yet, in granting Noel’s motion to suppress, the suppression court focuses

on the Commonwealth’s argument that Noel lacked a privacy interest in the

records because Locus Communications, a prepaid telecommunications

provider, was listed as the subscriber instead of Noel. The Commonwealth

posits that even assuming arguendo that the suppression court had been

correct to reject its line of reasoning at the suppression hearing that Noel

lacked a reasonable expectation of privacy in the 1723 phone from the outset

because its owner was a prepaid telecommunications provider Lotus

Communications, that conclusion does not foreclose the prosecutor’s

additional point that Noel could claim no reasonable expectation of privacy in

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the phone records retrieved from it after Noel had denied any association with

the 1723 phone in question. Commonwealth’s Brief at 14 (citing N.T.,

6/18/19, at 22).6 The Commonwealth contends this is “particularly true given

that the new request for records-unlike the initial search-did not involve a

physical intrusion into his personal effects and was performed by a detective

who had nothing to do with any prior misconduct.” Commonwealth’s Brief at

15. We agree.

“[T]o prevail on a suppression motion, a defendant must

demonstrate a legitimate expectation of privacy in the area

searched or effects seized, and such expectation cannot be

established where a defendant has meaningfully abdicated his

control, ownership or possessory interest.” Commonwealth

v. Dowds, 563 Pa. 377, 761 A.2d 1125, 1131 (2000). Simply put,

“no one has standing to complain of a search or seizure of property

that he has voluntarily abandoned.” Commonwealth v. Shoatz,

469 Pa. 545, 366 A.2d 1216, 1220 (1976).

____________________________________________

6 The Commonwealth stresses that it:

[d]id not oppose [Noel’s] motion to suppress text messages

retrieved from the 1723 phone after determining that Detective

Mole had seized a bag containing [Noel’s] personal effects,

retrieved the phone from inside it, illegally searched the phone,

and testified falsely about doing so [at] a preliminary hearing. But

the Commonwealth did not take a position with respect to the

discrete issue of whether [Noel] had a protected privacy interest

in cell site location data. Nor should the Commonwealth be

condemned for seeking to ensure that a murder may be

successfully prosecuted. Rather, the Commonwealth has done its

best to uphold its obligations to the criminal justice system under

unfortunate circumstances.

Brief for Appellant at 14-15, n. 5.

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Commonwealth v. Kane, 210 A.3d 324, 330 (Pa.Super. 2019) (emphasis

added), appeal denied, 218 A.3d 856 (2019).

In Commonwealth v. Fulton, 645 Pa. 296, 179 A.3d 475 (2018), the

Pennsylvania Supreme Court held that a warrantless search of any information

from a cell phone violates the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution, because

one’s expectation of privacy is in the cell phone itself, not in each individual

piece of information stored therein. Id at 319, 179 A.3d at 489, see also

Commonwealth v. Bowens, 2020 WL 255335 (Pa.Super. Jan 17, 2020).

Notwithstanding, “[w]hile the Pennsylvania Constitution affords greater

protection against unreasonable search and seizure than the Federal

Constitution…, it does not afford an individual a legitimate expectation of

privacy in the telephone bills of a third party. . . .” Commonwealth v.

Benson, 10 A.3d 1268, 1273 (Pa.Super. 2010), appeal denied, 611 Pa. 645,

24 A.3d 863 (2011).

Because Noel claimed he did not own a telephone at the time of the

homicide, he abandoned any legitimate expectation of privacy he may have

had in the location data associated with the phone numbers at issue as he

could have had no connection to them. Only following their independent

investigation and after securing a search warrant did police obtain the cell-

site location information from a telephone network and analyze phone records

of phone numbers assigned to third parties who Noel regularly called while he

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was in prison, each of which had the phone number ending in 1723 in

common. Notwithstanding, the suppression court reasons that:

the Commonwealth is requesting that both sides of the same coin

appear face up when analyzing [Noel’s] privacy interest in the

instant phone records. On one hand, [Noel’s] possession, use,

and ownership interest of a telecommunications device informs

the relevance of the records in the instant matter. On the other

hand, the lack of that exact same ownership interest should be

interpreted to prevent [Noel] from defending on any constitutional

privacy grounds. Clearly, these mutually exclusive positions

cannot be permitted to co-exist with respect to the same

evidence. Either the Commonwealth contends that [Noel] does

not have an ownership interest, and concedes the records’

irrelevance, or the records’ relevance with respect to [Noel]

derives from his ownership interest in that information. A hybrid

combination of two juxtaposed premises and conclusion veers into

the realm of intellectual dishonesty and convoluted legal

precedent.

Amended Statement of Findings of Fact and Conclusions of Law, 6/24/19, at

11-12.

To the contrary, the issue of Noel’s ownership interest, or lack thereof,

in a telecommunications device is distinct from the cell-site location

information obtained from a search of three other devices with which Noel had

contact while incarcerated. Certainly, Noel cannot claim he had an

expectation of privacy in the calls he made from prison, nor has he proven he

has a reasonable expectation of privacy in the phone records of telephones

owned by third parties; it is they who would receive and have the obligation

to pay the telephone bills containing the records of telephone numbers dialed,

including the numbers ending in 1723 and 8390. see Benson, supra at 1273

(finding that where a third party owned the phone and bore the responsibility

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of paying the bills containing the call records in question, the appellant did not

have an expectation of privacy in those records, nor did he have a legal right

to control access to information from the telephone company).

Moreover, the potential relevance of these phone records at the time of

trial is not foreclosed by the Commonwealth’s earlier concession that

Detectives Mole and Murray performed an illegal search of a cell phone in

Noel’s possession at the hospital, as the suppression court acknowledges:

While the Commonwealth failed to demonstrate probable cause in

this matter, this [c]ourt agrees in principal that a novel search of

[Noel’s] prison phone calls could, in theory, be used to identify

relevant evidence wholly independent from any other method,

illegal or otherwise, to secure CSLI data. Here, the

Commonwealth employed two separate detectives who were

previously uninvolved in the instant investigation to secure

evidence without using any data or information obtained from the

suppressed cell phone. This type of investigation is sufficiently

separate and attenuated to invoke the independent source

doctrine.

[Noel] further alleges that by virtue of the suppression of

the recovered cell phone, any CSLI derived from the attendant

phone records must similarly be excluded, as the suppression of

the phone precludes any and all data relating to that phone.

[Noel’s] own legally sound averment contained in his suppression

motion precludes this [c]ourt from reaching such a conclusion. As

[Noel] correctly states, the Supreme Court of the United States’

holding in Carpenter [v. United States, 138 S.Ct. 2206 (2018)]

requires that government investigators obtain a warrant

supported by probable cause before securing CSLI records.

Carpenter, 138 S.Ct. at 2221.[7] This requirement is distinctive

____________________________________________

7 As this Court recently stressed, “the High Court in Carpenter emphasized

that its decision was a narrow one and did not extend to matters not before

it.” Commonwealth v. Pacheo, 2020 WL 400243, at *7 (Pa.Super. Jan. 24,

2020) (applying the analysis in Carpenter which dealt with historical cell site

location information to real-time CSLI tracking and holding an individual

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from an investigator’s obligation to secure a warrant to search a

physical phone, a clear and obvious requirement. By virtue of this

distinction, this [c]ourt concludes that cell phone records and

attendant CSLI searches can, theoretically, be supported by a

wholly separate finding of probable cause unrelated to the

evidence supporting the search of a physical phone. Accordingly,

the suppression of a mobile device cannot automatically preclude

the discovery of the related phone records.

Amended Statement of Findings of Fact and Conclusions of Law, filed 6/24/19,

at 16-17.

Even were we to have found Noel has demonstrated a legitimate

expectation of privacy in the cell-site location data at issue, his claim would

fail, for Detective Hammond protected such interest by securing a search

warrant before obtaining that information.

As this Court recently reiterated,

Both the Constitution of the United States and the

Constitution of the Commonwealth of Pennsylvania safeguard

individuals from unreasonable governmental intrusions into the

privacy of their homes. “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrant shall

issue, but upon probable cause, supported by Oath or affirmation

....” U.S. Const. Amend. IV. Similarly, Article I, § 8 of the

Constitution of the Commonwealth of Pennsylvania provides:

The people shall be secure in their persons, houses,

papers and possessions from unreasonable searches and

seizures, and no warrant to search any place or to seize

any person or things shall issue without describing them

as nearly as may be, nor without probable cause,

supported by oath or affirmation subscribed to by the

affiant.

____________________________________________

retains a legitimate expectation of privacy in the record of his movements

captured through real-time cell-site location information).

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To determine if probable cause exists, courts employ the

“totality-of-the-circumstances approach ....” Gates, 462 U.S. at

230, 103 S.Ct. 2317. Under this test, the Supreme Court of the

United States explained:

the probable cause standard is ... a practical,

nontechnical conception. In dealing with probable cause,

as the very name implies, we deal with probabilities.

These are not technical; they are the factual and

practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.

Our observation in United States v. Cortez, 449 U.S.

411, ... (1981), regarding “particularized suspicion,” is

also applicable to the probable cause standard ...

probable cause is a fluid concept — turning on the

assessment of probabilities in particular factual contexts

— not readily, or even usefully, reduced to a neat set of

legal rules.

*****

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.

Id. at 231–32, 238, 103 S.Ct. 2317 (some punctuation and

citations omitted).

Commonwealth v. Batista, 219 A.3d 1199, 1202–03 (Pa.Super. 2019)

(footnote omitted). In addition,

“[i]t is a fundamental rule of law that a warrant must name or

describe with particularity the property to be seized and the

person or place to be searched[;]” this particularity requirement

prohibits both a warrant that is not particular enough and a

warrant that is overbroad. Commonwealth v. Dougalewicz,

113 A.3d 817, 827 (Pa. Super. 2015) (citation omitted). A warrant

that is not particular enough “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[,]”

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resulting in “the general ‘rummaging’ banned by the Fourth

Amendment.” Id. An overbroad warrant “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[,]” and “is unconstitutional because it authorizes a

general search and seizure.” Id.

However, search warrants should “be read in a common

sense fashion and should not be invalidated by hypertechnical

interpretations. This may mean, for instance, that when an exact

description of a particular item is not possible, a generic

description will suffice.” Commonwealth v. Rega, 593 Pa. 659,

933 A.2d 997, 1012 (2007) (quoting Pa.R.Crim.P. 205 cmt.).

Accordingly, “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.” Id. (citation omitted). Importantly, “[b]ecause the

particularity requirement in Article I, Section 8 is more stringent

than in the Fourth Amendment, if the warrant is satisfactory under

the Pennsylvania Constitution it will also be satisfactory under the

federal Constitution.” Commonwealth v. Orie, 88 A.3d 983,

1003 (Pa. Super. 2014).

Kane, supra at 332-33.

Herein, the suppression court held the April 18, 2019, warrant was

issued without the requisite probable cause. The court summarizes the

averments set forth in the affidavit of probable cause underlying the warrant

as follows:

[T]he affidavit describes facts and circumstances showing

that, two victims, Marcus Alexander and the decedent Tafari

Lawrence, arrived at Presbyterian Hospital on Sunday, February

11, 2018, whereupon Lawrence succumbed to his injuries at 2:18

PM, shortly after his arrival. The affidavit further describes how

[Noel] arrived at the same hospital suffering from two gunshot

wounds. The affidavit fails to indicate the date and time [Noel]

arrived at the hospital.6

While the affidavit indicates that police officer [sic] spoke to

[Noel] after his arrival at the hospital, and conducted an

investigation after hearing his account of an unrelated robbery

occurring at 59th Street and Baltimore Avenue, the affidavit does

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not indicate when the discussion between officers took place,

when officers investigated the area of 59th Street and Baltimore

Avenue, or what methods the investigators used to confirm their

suspicion that [Noel’s] account was untruthful. The affidavit

further fails to indicate the time of [Noel’s] arrest.

Detectives secured cell phone records from three devices

[Noel] called during his incarceration, associating the numbers

with [Noel’s] family, associates, and a paramour. After examining

those records, [sic] identified four numbers that ceased contact

after the time of the February 11, 2018, shooting. By employing

a process of elimination, the Commonwealth determined that two

of the phone numbers, 267-576-8390 and 215 873-1723, could

be linked to [Noel’s] device. Detectives used this information,

coupled with their own experience of what CSLI date [sic] could

reveal pursuant to an investigation, in order to secure warrants

for each set of records.

The above averments, limited to four-corners analysis of the