The state Superior Court has overturned Leon Berry’s drug trafficking conviction on grounds that the search warrant for his Plains Township apartment lacked probable cause.
Berry, 42, was one of three men arrested in an undercover drug investigation that involved the seizure of guns and $60,000 worth of heroin, ecstasy and crack cocaine.
The arrests of the three men were announced during a news conference at Wilkes-Barre Police Headquarters in January 2012.
In its ruling, the court found that the search warrant for his Second Street apartment did not meet “the four corners rule,” meaning it lacked probable cause that Berry was using the residence as a place to store, package and sell drugs.
The search warrant was prepared by two undercover officers with Wilkes-Barre police.
Berry was targeted as an alleged drug dealer by police after informants claimed he was selling heroin and crack cocaine in the Parsons area of Wilkes-Barre.
Three days after he allegedly made a hand-to-hand exchange of crack cocaine for cash on Jan. 16, 2012, drug agents searched his residence on Jan. 19, allegedly finding a large amount of heroin, crack cocaine, ecstasy tablets, a digital scale and more than $4,500.
“Neither the confidential source nor the confidential informant made any allegations that Berry was using his residence for selling or storing drugs,” the Superior Court ruled.
The Superior Court said the search warrant had probable cause Berry sold drugs on the street, but it lacked probable cause that Berry used his residence as a drug haven.
Berry was charged over the alleged drugs seized from his residence, and not the drug sale at Mill Street and Matson Avenue in Wilkes-Barre. The criminal complaint supporting the charges did not include the hand-to-hand drug sale on Jan. 16, 2012.
Luzerne County Judge Lisa Gelb in a non-jury trial on Nov. 30, 2012, convicted Berry on three counts each of possession with intent to deliver cocaine, heroin and ecstasy. He was sentenced to five to 10 years in state prison, and is currently housed at the State Correctional Institution at Pine Grove in Indiana County.
The Luzerne County Public Defender’s Office, which represented Berry at the bench trial, filed the appeal.
It was not immediately known if Berry will be released pending a new trial.