Commonwealth v. Kemp
195 A.3d 269
Pa. Super. Ct.2018Background
- In March 2015 a police sergeant arranged two controlled buys using a confidential informant (CI) who called Appellant Aubrey Kemp’s cell number, met him, and returned with marijuana; surveillance showed Kemp leaving his home, driving a white Cadillac DTS, and going directly to the buy location.
- Based on the controlled buys and other investigative checks tying the phone and address to Kemp, police obtained and executed a search warrant for Kemp’s home and car on March 31, 2015.
- When officers arrived to execute the warrant, Kemp exited his house carrying a black plastic bag; he set the bag down, backed away, was handcuffed, and frisked; officers recovered a Glock .40 on his person and later marijuana from his socks; drugs and a firearm were found inside the home during the search.
- Kemp moved to suppress the evidence, arguing the affidavit lacked a nexus between his home and the criminal activity and that the detentions/frisks were unlawful; he was convicted of PWID marijuana and sentenced to 11½–23 months.
- On appeal the trial court’s suppression denial was reviewed; the court also agreed the sentencing guideline range was miscalculated (school-zone enhancement improperly applied) and the Commonwealth conceded resentencing was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of affidavit to support warrant | Commonwealth: controlled buys, surveillance showing Kemp drove from home directly to buys, CI reliability create a nexus to the home | Kemp: affidavit did not show drugs were kept in or sold from the home; CI never observed contraband in the residence | Court: Affidavit adequate—observed trips from residence to transactions created a commonsense nexus (Clark controlling) |
| Authority to detain Kemp at execution | Commonwealth: officers executing a valid warrant may detain persons on or recently exited from premises | Kemp: detention and subsequent frisks were unsupported by observed criminal activity | Court: Detention justified—officers executing valid search warrant may detain occupants/recent exitors (Martinez) |
| Legality of frisks (protective searches) | Commonwealth: Kemp’s evasive behavior, bag-dropping, known gun ownership, and drug-dealing suspicion justified pat-downs and protective searches | Kemp: frisk (especially second, more intrusive search) exceeded Terry limits and resembled DeWitt facts | Court: Frisks valid—first frisk for weapons justified; second frisk valid after Kemp pulled away and officers had reasonable safety concerns |
| Sentencing guideline calculation | Commonwealth: applied 12–30 month range including school-zone enhancement | Kemp: no evidence of school-zone proximity; correct range was restorative sanctions to 9 months | Court: Agreed school-zone enhancement not proven; vacated sentence and remanded for resentencing using proper guideline range |
Key Cases Cited
- Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010) (standard of review for suppression rulings)
- Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011) (observed trips from residence to controlled buy can establish nexus for a warrant)
- Commonwealth v. Kline, 335 A.2d 361 (Pa. Super. 1975) (buying drugs on the street does not automatically establish probable cause to search home absent nexus)
- Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985) (following defendant to home without prior link to residence insufficient to show nexus)
- Commonwealth v. Martinez, 649 A.2d 143 (Pa. Super. 1994) (officers executing a warrant may detain persons on the premises or recently exited)
- Commonwealth v. Clemens, 66 A.3d 373 (Pa. Super. 2013) (Terry frisk standards and officer safety justification)
- Commonwealth v. DeWitt, 608 A.2d 1030 (Pa. 1992) (furtive movements and flight do not alone justify an investigative stop in vehicular context)
- Commonwealth v. O’Bidos, 849 A.2d 243 (Pa. Super. 2004) (challenge to guideline calculation implicates discretionary aspects of sentencing)