PA: State failed to show nexus to house as “base of operations”

Police set up controlled buys with the defendant and watched. He left his home, went to one or two locations, went inside, came out, and drove to the place for the deal. Nexus was thus lacking to his house. The “base of operations” was just as likely his car. The officer’s allegation in the affidavit that his “professional experience” is that drugs are kept at home may be true but it’s really just “boilerplate.” Suppression affirmed. Commonwealth v. Nicholson, 2021 PA Super 193, 2021 Pa. Super. LEXIS 607 (Sept. 27, 2021):

The affidavit of probable cause also contained Officer Kelch’s assertion that drugs would be found in Nicholson’s home based on his “professional experience” that drug dealers typically store drugs, weapons and other contraband in their homes. While such experience can be a relevant factor for probable cause under the totality of the circumstances, it is only properly considered where the officer can “demonstrate a nexus between his experience and the search, arrest, or seizure of evidence.” Commonwealth v. Thompson, 985 A.2d 928, 935 (Pa. 2009).

In other words, there must be something in the affidavit that links the place to be searched directly to the criminal activity. Merely referring to “professional experience” does not alone justify the issuance of a search warrant. Otherwise, a police officer’s “professional experience” could be used to justify a search of any place where drugs could possibly be kept. With respect to Nicholson’s residence, no such nexus was shown here to make the police officer’s professional experience probative.

Moreover, Officer Kelch’s allegation that drug dealers often keep drugs in their homes is one of many boilerplate comments setting forth his training experience, most of which had no relevance to the probable cause determination in this case. …

This could have gone the other way just as easily. And would have in most other jurisdictions.

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