COMMONWEALTH v. MANUEL

Nos. 1048 MDA 2015, 1152 MDA 2015.

194 A.3d 1076 (2018)

2018 PA Super 232

COMMONWEALTH of Pennsylvania, Appellee v. Charles Howard MANUEL, Appellant. Commonwealth of Pennsylvania, Appellee v. Timothy A. Manuel, Appellant.

Superior Court of Pennsylvania.

Filed August 23, 2018.


Attorney(s) appearing for the Case

Jeremy D. Williams , York, for appellants.

Stephanie E. Lombardo , Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.


Charles H. Manuel and Timothy A. Manuel (referred to collectively as "Appellants") appeal from their judgments of sentence, entered in the Court of Common Pleas of York County, after they were each convicted in a stipulated non-jury trial of one count of possession with intent to manufacture or deliver marijuana ("PWID").1 The issue presented by this appeal is whether a search warrant based on information provided by a confidential informant ("CI"), whose reliability has not been adequately corroborated, can supply the basis for either a search or an arrest. Upon careful review, we conclude that it cannot and therefore reverse the judgments of sentence.

On June 16, 2014, Officer Michelle Hoover of the York Area Regional Police Department met with a CI who advised her that, within the prior 72 hours, he2 had been inside the premises located at 1110 Pleasant Grove Road, Red Lion, York County ("Pleasant Grove Residence"), and had observed marijuana packaged for sale, multiple marijuana plants growing, and marijuana growing accessories. The CI advised Officer Hoover that a white male named Timothy Manuel lived at the residence.

Based upon the information provided by the CI, Officer Hoover applied for and received a warrant to search the Pleasant Grove Residence and all persons present. On June 20, 2014, the York County Drug Task Force executed the warrant and found marijuana plants growing in Appellants' bedrooms, as well as drug paraphernalia, cash, and a digital scale. Appellants were arrested and each charged with one count of PWID.

On January 20, 2015, Appellants filed a joint motion to suppress, arguing that the search warrant obtained by Officer Hoover lacked sufficient probable cause because the police did not perform any investigation to independently corroborate the CI's information. A hearing was held on March 23, 2015, and, by order dated March 24, 2015, the trial court denied the suppression motion.

A stipulated bench trial was held on May 1, 2015, at the conclusion of which Appellants were found guilty of PWID. Appellants were sentenced on June 3, 2015. Charles received a sentence of two years' intermediate punishment, consisting of two months' imprisonment on Outmate status, followed by four months of house arrest and then probation. Timothy was originally sentenced to six to twenty-three months' incarceration; however, after he filed a motion for reconsideration of sentence, the court resentenced him to a twenty-three month term of intermediate punishment, consisting of three months' imprisonment, followed by three months of house arrest and then probation.

Appellants filed timely notices of appeal, which this Court consolidated, and raised for our review the issue of whether the trial court erred in denying their motions to suppress, where the Application for a Search Warrant and attached Affidavit of Probable Cause lacked sufficient probable cause because they failed to establish the veracity and reliability of the CI and lacked independent police corroboration of criminal activity, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

On appeal, the panel majority reversed, concluding that the information contained in the affidavit of probable cause was legally insufficient to support the issuance of a search warrant where the reliability of the CI, who had previously provided information leading to only one arrest and no convictions, had not been sufficiently established through independent police corroboration. The dissent concluded that the affidavit "comfortably satisfied" probable cause, emphasizing that the CI had personally observed marijuana cultivation and packaging at Appellants' residence.

The Commonwealth filed for reargument and we granted en banc review. The parties submitted substituted briefs and raise the following issue:

Whether the trial court erred in denying the [motion to suppress] where the [a]pplication for a [s]earch [w]arrant and attached [a]ffidavit of [p]robable [c]ause lacked sufficient probable cause by failing to establish the veracity and reliability of the [CI] and lacked independent police corroboration of criminal activity, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution?

Substituted Brief of Appellants, at 3.

We begin by noting that our scope and standard of review of an order denying a motion to suppress are unique when we are reviewing a magistrate's decision to issue a search warrant. They differ from those cases in which we are reviewing a court's decision regarding evidence obtained without a warrant. When reviewing a magistrate's decision to issue a warrant, there are no factual findings from the trial court. Thus, we need not consider "only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." See Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012). Instead, we are merely reviewing the magistrate's decision to issue the warrant. As such, our duty is to "ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner." Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537-38 (2001).

Appellants challenge the sufficiency of the information contained in the probable cause affidavit. Specifically, Appellants assert that the reliability of the CI was not established where the CI had previously provided information leading to only one arrest which had not yet led to a conviction. Moreover, Appellants assert that independent police corroboration of the CI's information was insufficient, consisting solely of verifying publicly available information. For the reasons that follow, we conclude that the information contained in the affidavit of probable cause was legally insufficient to support the issuance of a search and seizure warrant.

The legal principles applicable to a review of the sufficiency of probable cause affidavits are well settled. Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. The standard for evaluating a search warrant is a "totality of the circumstances" test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).[3] A magistrate is 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." The information offered to establish probable cause must be viewed in a common sense, nontechnical manner. Probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and deference is to be accorded a magistrate's finding of probable cause.

Commonwealth v. Rapak, 138 A.3d 666, 670-71 (Pa. Super. 2016), quoting Commonwealth v. Ryerson, 817 A.2d 510, 513-14 (Pa. Super. 2003) (quotation omitted).

Probable cause does not demand the certainty we associate with formal trials. Rather, a determination of probable cause requires only that the totality of the circumstances demonstrates a fair probability that contraband or evidence of a crime will be found in a particular place. Thus, where the evidence available to police consists of an anonymous tip, probable cause may be established upon corroboration of major portions of the information provided by the tip. Similarly, where the evidence consists of the allegations of a police informant who has not previously provided information, probable cause requires only corroboration of principal elements of information not publicly available. As recognized by the [U.S. Supreme] Court in [Illinois v.] Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983),] "[i]t is enough, for purposes of assessing probable cause, that `[c]orroboration through other sources of information reduced the chances of a reckless or prevaricating tale,' thus providing `a substantial basis for crediting the hearsay.'"

Commonwealth v. Otterson, 947 A.2d 1239, 1244-45 (Pa. Super. 2008), quoting Commonwealth v. Brown, 924 A.2d 1283, 1286-87 (Pa. Super. 2007) (emphasis added) (citations and quotation marks omitted).

Officer Hoover's affidavit of probable cause provided, in its entirety, as follows:

The undersigned, Ofc. M. Hoover, has been a member of the York Area Regional Police Department for six years, a member of the York County Drug Task Force, and has been sworn as a Special York County Detective authorized to conduct investigations in York County, PA. During this time period, I have participated and executed numerous narcotic investigations, search and seizure warrants, and narcotics arrests. These narcotic investigations include undercover purchases, controlled purchases using confidential informants, execution of search warrants and electronic surveillance. Additionally, while working narcotic investigations in York County I have had the opportunity to interview numerous narcotic dealers, narcotic purchasers, informants, and other concerned citizens with general drug information. These interviews focused on the values of controlled substances, the appearance of controlled substances, methods of sale, methods of packaging, methods of hiding, secreting and transporting controlled substances, as well as identifying persons involved in controlled substance distribution. On June 16, 2014 I met with a reliable confidential informant who advised they were inside 1110 Pleasant Grove Road, Red Lion, PA 17356 located in Windsor Township of York County within the past 72 hours. While in the residence, the informant stated [he] observed marijuana packaged for sale, multiple marijuana plants growing, and growing accessories such as growing tools, soil, a humidifier and a grow tent. This informant advised a [white male] named Timothy Manuel lives in the residence. The informant should be considered reliable due to the fact that [he has] provided police with information that has led to a felony drug arrest that is currently pending in the York County Court system. This informant is familiar with what marijuana looks like and how it is packaged in York County. I ran a check through PENN DOT and observed Timothy Manuel lists the address 1110 Pleasant Grove Road, Red Lion, PA 17356 as his residence. On 6/16/14 I viewed a red Mitsubishi parked in the driveway of 1110 Pleasant Grove Road. The vehicle is registered to Charles Manuel of 1110 Pleasant Grove Road, Red Lion, PA 17356. Based on the totality of the above circumstances, I know through training and experience that narcotics dealers will commonly use a location such as a dwelling to store or "stash" larger quantities of narcotics, packaging, material, and proceeds in order to protect their product(s) and proceeds and to evade law enforcement. Based on my training and experience, I know that narcotics dealers will commonly keep a portion of their product and weapons on their person. Therefore, I request to search all persons present for officer safety reasons and to protect the destruction of evidence. I believe that the premise known as 1110 Pleasant Grove Rd. in Windsor Township[i]s being utilized to grow, store, package, and prepare marijuana for the purpose of street level sales. Therefore, I ask for the issuance of a search and seizure warrant for the premises known as 1110 Pleasant Grove Rd. in Windsor Township.

Affidavit of Probable Cause, 6/18/14.

Appellants argue that the information contained in the affidavit does not sufficiently establish the reliability of the CI because previous information provided by the CI had, at that point, resulted in only one arrest and no convictions. Appellants assert that "[a] solitary arrest not resulting in a criminal conviction is hardly deserving of automatic reliability veiled behind a cloak of secrecy for confidential informants." Substituted Brief of Appellants, at 16. Appellants note that the affidavit does not indicate what the previous information given by the CI was, how it led to an arrest, or whether the arrest "survived even a prima facie review at a preliminary hearing." Id. at 15. Appellants further cite the apparent doubts regarding the reliability of the CI expressed by the trial court in its Pa.R.A.P. 1925(a) opinion:

While we agreed, and still do agree, to some extent with the Appellant[s'] arguments, we think that the fact that Officer Hoover was able to confirm that [Timothy Manuel] lived at the residence provided by the CI, provided information about the presence of drugs which was not available to the general public, and that this particular CI had given reliable information in the past did establish sufficient probable cause.

Trial Court Opinion (Case No. 7222-2014), 8/14/15, at 7. Appellants argue that, contrary to the trial court's conclusion, the additional information obtained by the police fell short of the quantum and quality necessary to corroborate the CI's information and establish his reliability. We agree.

In evaluating an affidavit of probable cause,

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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing] that probable cause existed."

Gray, 503 A.2d at 925, quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317.

An informant's tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity. Clark, 28 A.3d at 1288. "[I]nformation received from an informant whose reliability is not established may be sufficient to create probable cause where there is some independent corroboration by police of the informant's information." Commonwealth v. Sanchez, 589 Pa. 43, 907 A.2d 477, 488 (2006), quoting United States v. Tuttle, 200 F.3d 892, 894 (6th Cir. 2000).

In this case, the sole indicia of the CI's reliability presented in the affidavit of probable cause was that he had provided information leading to a single felony drug arrest. The affidavit does not identify the name of the defendant or docket number in that case, indicate the type of information provided by the CI that led to the arrest, or state whether the defendant was even held over for trial. Moreover, there is no indication that the CI himself participated in the criminal activity of which he informed the police, thus exposing himself to legal jeopardy and lending credence to his information. Clark, supra. In short, the only evidence available to evaluate the reliability of this CI is the fact that he once provided police with some unspecified information that, either alone or in conjunction with other unidentified evidence, led to a finding of probable cause to arrest someone on felony drug charges.

The Commonwealth argues that the mere presence of "the `customary' phrase that the informant has provided information which `has in the past resulted in arrests or convictions'" is sufficient to establish a CI's veracity. Brief of Appellee, at 16, quoting Commonwealth v. Dukeman, 917 A.2d 338, 341-42 (Pa. Super. 2007). Dukeman, however, is distinguishable on its facts. In that case, two CIs provided independent information regarding the presence and sale of drugs at Dukeman's residence, as well as specific familiarity with Dukeman and the locations of the drugs. The trial court suppressed the evidence uncovered in the search, finding that one of the CIs "had not provided information in the past that implicated anyone." Id. at 339. On appeal, this Court reversed, finding that any question surrounding one CI's reliability was resolved through the corroboration provided by the statement of the second CI, whose veracity was not challenged. Additionally, in Dukeman, the police further corroborated the CIs' information by surveilling Dukeman's residence, which confirmed vehicle traffic consistent with drug trafficking.

Likewise is the Commonwealth's reliance on Commonwealth v. Gutierrez, 969 A.2d 584 (Pa. Super. 2009), and Commonwealth v. Gindlesperger, 706 A.2d 1216 (Pa. Super. 1997), misplaced. In Gutierrez, a warrant was upheld where the CI's input had led to the arrest and conviction of more than twenty-five other persons. Moreover, the police corroborated the CI's information with a controlled buy at the address that was the subject of the warrant in question. In contrast, here, the CI was far less demonstrably reliable and the police did not conduct a controlled buy to corroborate the CI's information.

By contrast, in Gindlesperger, a CI witnessed marijuana plants being grown in the subject premises and was stated by police to have provided reliable information in the past that would result in multiple arrests at some unspecified time in the future. The affidavit provided no names or other details as to the allegedly impending arrests. Upon review, this Court vacated the judgment of sentence, finding that under the totality of the circumstances, the reliability of the CI was not established. If anything, the facts in Gindlesperger are akin to those in the matter sub judice; while the CI personally observed drug activity at the Manuels' residence, his reliability is based solely on a single arrest not yet leading to a conviction.

We are cognizant that there is no "magic number" of arrests or convictions for which a CI need previously have provided information to be deemed reliable. See Clark, 28 A.3d at 1292 ("[T]here is no talismanic recitation of a particular phrase with respect to `reliability' or `basis of knowledge' that will either be required or will suffice to conclusively establish, or conclusively disaffirm, the existence of probable cause."). We are also mindful of the fact that we are not to consider the various factors in a mechanical fashion, but rather assess the totality of the circumstances in a common-sense manner. See Commonwealth v. Smith, 784 A.2d 182, 187 (Pa. Super. 2001) (pursuant to "totality of circumstances" test, task of issuing authority is to make practical, common-sense decision whether, given all circumstances set forth in affidavit, there is fair probability that contraband or evidence of crime will be found in particular place). Accordingly, the fact that the CI had previously provided information leading only to one unadjudicated arrest does not automatically render the affidavit lacking in probable cause. For example, where, as here, a CI's tip provides inside information,4 police corroboration of the inside information can impart additional reliability to the tip. See id. at 188. Here, however, the lack of any meaningful follow-up investigation by the police to secure true corroboration of such inside information leads us to conclude that, under the totality of the circumstances, the affidavit did not establish probable cause.

Upon receiving the information from the CI, police failed to conduct any investigation that might have yielded corroboration of information unavailable to the public at large and, as a result, bolstered the reliability of the CI's tip. Police neither arranged for the CI to conduct a controlled buy at the premises nor performed any type of photographic or electronic surveillance. Nor did they conduct a trash pull. Rather, Officer Hoover merely ran searches through PennDOT that established that Timothy Manuel resided at the Pleasant Grove Residence and that Charles Manuel registered a car at that address. This generally available information was not corroborative of the CI's information.5

This Court's decision in Commonwealth v. Chatman, 275 Pa.Super. 5, 418 A.2d 582 (1980) (en banc), supports our conclusion. There, a CI provided police with information regarding the storage and sale of heroin from an address in Wilkinsburg. Relevant to our inquiry, the affidavit of probable cause included the following information regarding the CI's reliability:

The affiant received information from a reliable informant who in the past has been very knowledgeable about the narcotics traffic in the Wilkinsburg area[.] This informant has given information in the past which led to the arrest of Curtis Williams and Earl Montel.

Id. at 583. The trial court suppressed the evidence obtained pursuant to the search warrant issued on the basis of the information supplied by the CI. On appeal, the sole issue was whether "the averment that the informant's prior information led to the arrests of certain named individuals is sufficient to establish the informant's credibility." Id. An equally divided panel of this Court affirmed the decision of the trial court, concluding that:

An affidavit, such as in the case at bar, which merely states that the informer supplied prior information leading to the arrest of two individuals, cannot suffice to establish credibility because there is no indication that the "information proved to be correct." In other words, as Professor LaFave has explained: "(t)he mere statement that the police decided to arrest because of what this informant said on a prior occasion does not indicate whether that decision was lawful or whether anything learned incident to or following the arrest verified what the informant had said." 1 W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3, at 514 (1978). For all that appears in the instant affidavit, [the individuals arrested as a result of the informant's information] may have been acquitted and the information furnished against them by the informant may have proven totally false. On the other hand, it may be that prosecutions were pending against [them], or that the prosecutions were dismissed for reasons unrelated to the veracity of the informant's information. Whatever the case may be, the critical fact is that the unadorned assertion that the informant previously supplied information which prompted arrests leaves the magistrate "intellectually crippled in terms of making the informed judgment contemplated by the fourth amendment." Moylan, [Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 759 (1974)].

Id. at 585 (emphasis added). Likewise, here, the fact that the CI previously provided information which led to a single arrest — the details of which do not appear in the affidavit — is insufficient to establish the CI's credibility, particularly as there is no indication that the information ultimately proved to be correct. See id. See also Gindlesperger, supra (reliability of CI not established where affidavit stated CI provided information that "will lead" to future arrests and contained no details as to prior information supplied by CI).

Here, the totality of the circumstances, as presented in Officer Hoover's affidavit, fell far short of establishing probable cause. The affidavit itself is largely comprised of information that is irrelevant under the circumstances of this case. For example, Officer Hoover writes extensively of her training and experience, but did not use that training and experience to do anything more than conduct a search of PennDOT's records. Pared down to its relevant essentials, the affidavit of probable cause actually amounted to no more than the following facts: A person that Officer Hoover knows told her that, within the last 72 hours, he was in a residence confirmed by Officer Hoover to belong to Appellants and, while there, the person saw live and packaged marijuana, as well as accessories for the cultivation thereof. These facts, alone, do not form a substantial basis for concluding that probable cause existed. See Gates, supra. Rather, the information indicates the need for further investigation, which Officer Hoover did not undertake.

In sum, we simply do not believe that the CI's reliability was adequately established by an averment that he provided a tip leading to one still-pending prosecution, details of which were not included in the affidavit of probable cause. Without something more, the affidavit of probable cause contained insufficient information to "reduce[] the chances of a reckless or prevaricating tale," and provide "a substantial basis for crediting the [CI's] hearsay." Otterson, supra. As such, the trial court erred in finding the warrant to be supported by probable cause.

Judgments of sentence reversed.

P.J.E. Bender, Judge Panella, Judge Dubow and Judge Kunselman join this Opinion.

Judge Stabile files a Dissenting Opinion in which Judge Shogan, Judge Olson and Judge Murray join.

DISSENTING OPINION BY STABILE, J.:

In this appeal from Appellant's judgment of sentence, the sole issue before this Court is whether the trial court erred in denying Appellant's motion to suppress. The Majority finds error based on its examination of the affidavit of probable cause. Because I believe the Majority did not properly apply this Court's standard of review, and also believe the Majority improperly relied upon case law pre-dating Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), I respectfully dissent.

To put the issue before this Court in context, it is helpful to put the process of issuing a warrant and a review of that issuance in general terms. Simply stated, an affiant presents a sworn affidavit to the issuing authority, in this case, a magisterial district judge ("MDJ"). The MDJ uses a common sense approach to determine whether the information within the affidavit establishes a fair probability that evidence of a crime will be found in a certain location.

When the search authorized by the warrant results in the securing of evidence of a crime, an aggrieved person can seek suppression of that evidence. Giving deference to the issuing authority, the suppression court assesses whether the MDJ had a substantial basis for concluding that probable cause existed for issuance of the warrant. If the suppression court denies suppression, this Court on appeal likewise affords deference to the issuing authority. It is not the suppression court's or this Court's role to stand in the shoes of the issuing authority and make a de novo determination as to issuance of the warrant.

Starting from the initial step of seeking a warrant, the application must be supported by a written affidavit that complies with Pa.R.Crim.P. 206 (Contents of Application for Search Warrant).1 In accordance with Pa.R.Crim.P. 203(B) (Requirements for Issuance):

No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.

Pa.R.Crim.P. 203(B).

"Probable cause exists where the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted." Commonwealth v. Leed, ___ Pa. ___, 186 A.3d 405, 413 (2018) (quoting Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1031 (2012) (internal quotation marks and citation omitted)).

Examining the initial steps of issuing the warrant and the duty of the reviewing court, our Supreme Court has explained:

It is well-established that a magistrate may not consider any evidence outside of the affidavit to determine whether probable cause exists to support a search warrant. See Pa.R.Crim.P. 203(B). This Court has held "[b]efore an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search ..." and such information "must be viewed in a common sense, nontechnical, ungrudging and positive manner." Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23, 25 (1992). The United States Supreme Court has stated: 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, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for... [concluding]" that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). Furthermore, probable cause is based on probability, not a prima facie case of criminal activity; deference should be afforded the magistrate's finding of probable cause.

Commonwealth v. Housman, 604 Pa. 596, 986 A.2d 822, 843 (2009).

In Commonwealth v. Ryerson, 817 A.2d 510 (Pa. Super. 2003), this Court reiterated:

Our standard of review for an appeal denying a motion to suppress is well settled. In reviewing the decision of a suppression court, we must ascertain whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. We will consider only the evidence of the Commonwealth and that defense evidence which remains uncontradicted when read in the context of the entire record.

Id. at 513 (quoting Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa. Super. 1999)). Further,

[i]n reviewing an issuing authority's decision to issue a warrant, a suppression court must affirm unless the issuing authority had no substantial basis for its decision. On appeal, [the appellate court] affirms the decision of the suppression court unless it commits an error of law or makes a factual finding without record support.

Commonwealth v. Lyons, 622 Pa. 91, 79 A.3d 1053, 1064 (2013) (citing Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1031 (2012) and Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 320 (2011)).

The Majority states that we are "reviewing the magistrate's decision to issue [a search] warrant." Majority Op. at 1081. The Majority suggests that "our duty is `to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner.'" Id. (quoting Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532 (2001)). However, after correctly quoting Torres, the Majority ignores the directive to accord deference to the authority's probable cause determination and instead embarks on what amounts to a de novo review of the MDJ's issuance of the warrant.

This Court, like the suppression court, accords deference to the MDJ's finding of probable cause. See Commonwealth v. Rapak, 138 A.3d 666, 671 (Pa. Super. 2016) (citation omitted). However, "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deference by reviewing courts." Gates, 462 U.S. at 236, 103 S.Ct. 2317 (quotations and citation omitted). See also Leeds, 186 A.3d at 413 ("a magistrate's probable cause determination should receive deference from the reviewing courts. In keeping with the Fourth Amendment's strong preference for warrants, `courts should not invalidate... warrants by interpreting affidavits in a hyper[-]technical, rather than a commonsense, manner.'") (quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317). Again, the suppression court must affirm unless the issuing authority lacked any substantial basis for its decision and this Court must affirm unless the suppression court committed error of law or made a factual finding without record support. Lyons, 79 A.3d at 1064.

According to the affidavit of probable cause, the CI in this case provided information to the police that in the previous 72 hours he2 had been inside Appellants' home and witnessed the growing of multiple marijuana plants, marijuana packaged for sale, and marijuana growing accessories such as growing tools, soil, a humidifier and a grow tent. This was first-hand information from a CI who was present and witnessed the criminal activity for which Appellants were charged and convicted. This was not an anonymous source, but rather a CI who previously provided reliable information to the police that led to a felony arrest. This was information that led the police to believe, based upon training and experience, that the premises were being used to grow, store, package, and prepare marijuana for the purpose of street-level sales.

Probable cause for the issuance of a search warrant exists when there is a fair probability evidence of a crime will be found in a particular place. Lyons, 79 A.3d at 1064. Viewing the totality of the circumstances here, the issuing authority determined those facts established a fair probability that evidence of a crime would be found in the premises to be searched.

The facts notwithstanding, the Majority nonetheless insists that to establish probable cause, the police still must independently corroborate the CI's report of criminal activity. Our case law no longer supports such a mechanical application of a test for probable cause, especially where the informant's information is based upon personal observation. See Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1287-88 (2011). Giving deference to the issuing authority's determination, it is my opinion that the affidavit of probable cause supported issuance of a warrant by a neutral and detached MDJ who found there was a fair probability evidence of a crime would be found at Appellants' residence.

In Clark, our Supreme Court provided an overview of the evolution of the probable cause standard.

Prior to 1983, in order to establish probable cause for the issuance of a search warrant based on information received from a confidential informant, an affidavit of probable cause had to satisfy a two-part test [, the Augilar [Aguilar]-Spinelli test]. The test required the affiant to set forth 1) the basis of the informant's knowledge; and 2) facts sufficient to establish an informant's veracity or reliability. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In 1983, the U.S. Supreme Court abandoned this "two-part" test and adopted a "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).3 The Court held that the Aguilar-Spinelli factors were no longer rigid, independent requirements that had to be satisfied, but instead, were merely relevant factors among the totality of circumstances necessary to show probable cause." Id.

Id. at 1286-87 (emphasis added) (footnote omitted). Under Gates, "probable cause is a fluid concept that turns on the assessment of probabilities in factual contexts that are `not readily, or even usefully, reduced to a neat set of legal rules.'" Id. at 1287-88; see also Rapak, 138 A.3d at 671. A totality of the circumstances analysis "permits a balanced assessment of relative weights of all the various indicia of reliability or unreliability of an informant's tip." Clark, 28 A.3d at 1288. Accordingly, "a CI's veracity and basis of knowledge are but factors among the totality of circumstances" to be considered. Id. Therefore, post-Gates, "an informant's tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity." Id. (citations omitted) (emphasis in original). An affidavit of probable cause is reviewed "in its entirety, giving significance to each piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip." Commonwealth v. Wallace, 615 Pa. 395, 42 A.3d 1040, 1048-49 (2012) (quoting Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984)). Therefore,

[i]f, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in the locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.

Id. at 1051 (emphasis added) (quoting Gates, 462 U.S. at 233-34, 103 S.Ct. 2317 (citations and footnote omitted in original)).

The fluidity of the totality of the circumstances test under Gates does not hamstring an issuing authority from finding probable cause to issue a search warrant by insisting upon rigid criteria. Rather, an issuing authority may find that probable cause exists for a search warrant based upon whatever is presented in an affidavit of probable cause, so long as what is presented contains sufficient indicia of reliability to demonstrate there is a fair probability that contraband or evidence of a crime will be found in a particular place. See Lyons, 79 A.3d at 1065. Corroboration of a confidential informant's information, although very useful, is no longer always required to satisfy the dictates of probable cause. See Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114, 117 (1995). "The suppression or exclusion of evidence is a `most extreme remedy' that can be justified only when it is necessary to vindicate fundamental rights or to correct or deter police abuse." Commonwealth v. Huntington, 924 A.2d 1252, 1259 (Pa. Super. 2007) (citing Commonwealth v. Dennis, 421 Pa.Super. 600, 618 A.2d 972, 981 (1992)).

To illustrate, in Jones, a post-Gates plurality decision, the defendant was charged with drug offenses. Jones, 668 A.2d at 116. He filed a motion to suppress evidence obtained pursuant to a search warrant. Id. As here, the defendant alleged that the affidavit supporting probable cause contained no corroboration to ensure its reliability. Id. The affidavit of probable cause related that the police had information from a confidential informant who personally observed the selling of drugs upon the searched premises, the informant observed drug abusers coming and going from the premises from 3 p.m. to late evening, and the informant observed paraphernalia used to prepare powder cocaine into crack cocaine inside the premises. Id. The informant provided reliable information in the past leading to the arrest and conviction of one person and the arrest of two other individuals whose cases were still pending in court. Id. at 117. Rejecting the defendant's argument that the affidavit of probable cause required corroboration, the Supreme Court emphasized that it is the totality of the circumstances test to be employed and that this test does not require corroboration in every situation. Id. at 117-18. "[R]equir[ing] corroboration in every situation would be contrary to the purpose of the totality of circumstances test: allowing a flexible, common sense approach to all circumstances of an affidavit." Id. at 117 (citations omitted). The Court found "that the information provided by the informant was not rumor or speculation, but was based upon direct, personal observation." Id. Therefore, the Court held the affidavit provided a sufficient basis of knowledge and no corroboration was required. Id. at 117-18.

Here, as in Jones, the information provided by the CI was based upon the CI's personal observation of criminal activity within and upon Appellants' premises reported to police within 72 hours of his observation. Prior information provided by this CI allowed the police to make a felony arrest. In concluding that the issued warrant lacked probable cause, the Majority entirely ignores the CI's first-hand observation of criminal activity that perhaps is the most significant feature of the affidavit establishing probable cause in this case. Further, the Majority does not discuss or give any credence to the affiant officer's expertise, which lent support to finding that Appellants' use of the premises was typical of a stash house for drug activity and street-level sales.

The Majority concludes that the CI's reliability was not established because he had provided only one tip leading to one still-pending prosecution. However, as the Majority recognizes, our law does not establish any talismanic number of prior instances of reporting reliable information to support probable cause. Majority Op. at 1084-85 (citing Clark, 28 A.3d at 1292). Nor does our law require that the reliable information given in the past has resulted in convictions, as opposed to arrests. It is well-settled "that prior arrests attributed to information supplied by the informant need not result in convictions to establish the credibility of the informant or the reliability of his information." Commonwealth v. White, 311 Pa.Super. 146, 457 A.2d 537, 539 (1983) (citations omitted). "[T]here is no logical reason for mandating that all information lead to convictions before reliability is established." Id. (quoting Commonwealth v. Archer, 238 Pa.Super. 103, 352 A.2d 483, 486 (1975)). See also Huntington, 924 A.2d at 1255 ("In assessing an informant's reliability, a presumption exists that the information is trustworthy when it has been provided by an identified witness") (citation omitted); Commonwealth v. Hayward, 756 A.2d 23, 36 (Pa. Super. 2000) ("Identified citizens who report their observations of criminal activity to police are assumed to be trustworthy in the absence of special circumstances.") (quoting In the Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172, 174 n.1 (1993) (emphasis in original)). Cf. Commonwealth v. Gindlesperger, 706 A.2d 1216, 1226 (Pa. Super. 1997) (see Majority Op. at 1084-85) (no probable cause for issuance of warrant based on statement in affidavit "that the informant's prior information `will lead' to arrests, rather than stating the customary `has in the past resulted in' arrests or convictions."). Unlike the CI in Gindlesperger, whose information "will lead" to arrests, the reliability of the CI here was established by the fact he was not an anonymous source and prior information provided by him had already led to a felony arrest.

In my opinion, the Majority's analysis also improperly focuses upon what is not in the affidavit as opposed to what is contained in the affidavit to support probable cause. As noted above, the Majority ignores entirely the weight and significance the issuing authority placed upon the CI's first-hand information contained in the affidavit and instead faults the police for not taking every opportunity to pursue "any meaningful follow-up" corroboration prior to preparing the affidavit of probable cause. Majority Op. at 1085.

Again, the police must support a request for a search warrant with an affidavit of probable cause. See Pa.R.Crim.P. 206. "The police have probable cause when the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Harvard, 64 A.3d 690, 697 (Pa. Super. 2013) (quoting Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275, 1284 (2007)). Once presented with a request by police for a search warrant, the issuing authority makes a practical, common sense determination whether, based on the affidavit, there is a fair probability evidence will be found in a particular place. Id. Employing the totality of the circumstances test as outlined in Gates and adopted by our Supreme Court in Gray, a balanced assessment of the indicia of reliability of an informant's tip can be made. See Gates, 462 U.S. at 238-39, 103 S.Ct. 2317; Gray, 503 A.2d at 926. "A magistrate's finding of probable cause must be based on facts described within the four corners of the affidavit[,] and our scope of review of a suppression court's ruling is confined primarily to questions of law." Harvard, 64 A.3d at 696 (quoting Commonwealth v. Smith, 784 A.2d 182, 184 (Pa. Super. 2001) (citation omitted)).

As explained above, a reviewing court does "not conduct a de novo review of the issuing authority's probable cause determination, but [] simply determines whether or not there is substantial evidence in the record supporting the decision to issue the warrant." Torres, 764 A.2d at 540. Nevertheless, the Majority improperly conducts a de novo review of the information contained within the affidavit of probable cause. The Majority concludes that the police should have corroborated, or are required to corroborate substantially, the information in the affidavit of probable cause.

Here, the police were possessed of first-hand information from a reliable CI suggesting to them — based upon their training and experience — that evidence of criminal activity would be found upon Appellants' premises. Short of some suggestion that this CI was lying, the MDJ had no reason to doubt that the eyewitness information from this CI, who previously provided reliable information to police, was both credible and reliable. While more information is no doubt better than less, the determination of probable cause is to be based upon what is contained in the four corners of the affidavit and not denied upon what else may have been submitted in support of an application. Therefore, to the extent the Majority bases its decision upon what does not appear in the affidavit of probable cause, as opposed to what is contained therein, the Majority, in my opinion, has strayed from our standard of review.

Our standard of review merely requires that we determine if the record supports the suppression court's findings and if that court properly applied the law to the facts. Ryerson, 817 A.2d at 513. Viewing all information contained within the affidavit of probable cause in a common-sense, non-technical manner, the MDJ was justified in believing that there was a fair probability that contraband or evidence of a crime would be found upon the premises. As a reviewing court, I would conclude the suppression court did not commit legal error in finding the MDJ had a substantial basis upon which to issue this search warrant. Therefore, this Court should affirm. Lyons, 79 A.3d at 1064.

In its opinion, the Majority suggests Commonwealth v. Chatman, 275 Pa.Super. 5, 418 A.2d 582 (1980), supports its analysis and conclusions. Majority Op. at 1085-86. I find the Majority's reliance on Chatman misplaced and of no precedential value. The decision in Chatman holds no precedential value, as the decision was issued by an evenly divided en banc court that serves only to affirm the result in the trial court. See Commonwealth v. Mosley, 114 A.3d 1072, 1082 n.11 (Pa. Super. 2015) (citing Commonwealth v. James, 493 Pa. 545, 427 A.2d 148 (1981) ("when a judgment of sentence is affirmed by an equally divided court ... no precedent is established and the holding is not binding on other cases."). Moreover, Chatman was decided prior to our Supreme Court's 1985 Gray decision adopting Gates and its totality of the circumstances test while discarding the Aguilar-Spinelli test upon which Chatman relies. The issue in Chatman focused exclusively on the second prong of the now discarded Aguilar-Spinelli test that required specific findings on an informant's credibility or reliability. Chatman, 418 A.2d at 584. This Court evenly split on whether there was sufficient indicia of reliability to satisfy the now discarded Aguilar-Spinelli test. Id. at 585.

In the end, despite acknowledging throughout the opinion that the determination of whether probable cause has been established depends on the totality of the circumstances, the Majority merely pays lip service to this standard. Indeed, insisting on the insufficiency of the information addressing the informant's reliability or the lack of independent corroboration by police as reasons for reversing the suppression court, the Majority de facto reverted to the Aguilar-Spinelli test, which has been long abandoned by our courts.4

Properly applying our standard of review exposes the flaws in the Majority's finding of suppression court error. Here, the MDJ issued a warrant based on the report of first-hand knowledge from the CI coupled with the officer's experience. Together they established a fair probability that evidence of a crime would be found at Appellants' residence. As explained above, the "task of an issuing authority is simply to make a practical, commonsense decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Harvard, 64 A.3d at 697 (quoting Torres, 764 A.2d at 537). The suppression court then denied Appellants' motion to suppress, properly according deference to the MDJ's probable cause determination and finding the MDJ had a substantial basis for concluding probable cause existed. See id. (citing Torres, 764 A.2d at 537-38). It then became incumbent on this Court to ascertain whether the record supports the suppression court's findings and to determine the reasonableness of the inferences and legal conclusions drawn therefrom. Ryerson, 817 A.2d at 513. Because this case turns on allegations of legal error, it is our charge to determine if the suppression court properly applied the law to the facts. Id.

Under our standard of review, we may reverse the suppression court's decision only if it "commits error of law or makes a factual finding without record support." Lyons, 79 A.3d at 1064. Finding neither, I would affirm the suppression court's order. Therefore, I dissent.

Judge Shogan, Judge Olson and Judge Murray join this Dissenting Opinion.

FootNotes


1. 35 P.S. § 780-113(a)(30).
2. The gender of the CI is unknown. We will refer to the CI with male pronouns.
3. Prior to the Supreme Court's 1983 decision in Gates, an affidavit of probable cause based on information from a CI had to satisfy a two-part test in order to establish probable cause. Specifically, the affiant was required to set forth: (1) the basis of the CI's knowledge; and (2) facts sufficient to establish the CI's veracity or reliability. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In Gates, the Court abandoned this "two-part" test and adopted a "totality-of-the-circumstances" test, holding that the Aguilar-Spinelli factors were no longer rigid, independent requirements that had to be satisfied, but instead, were merely relevant factors among the totality of the circumstances necessary to show probable cause. Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1287 (2011).
4. "Inside information" by necessity must be the type of information not available in the public domain.
5. The trial court essentially conceded that the facts contained in the affidavit of probable cause were thin. See Trial Court Opinion (Case No. 7222-2014), 7/16/15, at 7 ("[W]e agreed, and still do agree, to some extent with the Appellant[s'] arguments[.]"). Nevertheless, the court found probable cause, based largely on its belief that the corroborative information obtained by the police was sufficient to impart an indicia of reliability to the CI. However, as noted above, the information obtained by the police did not confirm any of the CI's alleged inside information, but was readily obtainable. Accordingly, the "corroboration" that convinced the trial court of the affidavit's sufficiency is of no moment.
1. Rule 206 provides, in relevant part: Each application for a search warrant shall be supported by written affidavit(s) signed and sworn to or affirmed before an issuing authority, which affidavit(s) shall: (1) state the name and department, agency, or address of the affiant; (2) identify specifically the items or property to be searched for and seized; (3) name or describe with particularity the person or place to be searched; (4) identify the owner, occupant, or possessor of the place to be searched; (5) specify or describe the crime which has been or is being committed; [and] (6) set forth specifically the facts and circumstances which form the basis for the affiant's conclusion that there is probable cause to believe that the items or property identified are evidence or the fruit of a crime, or are contraband, or are expected to be otherwise unlawfully possessed or subject to seizure, and that these items or property are or are expected to be located on the particular person or at the particular place described[.]

Pa.R.Crim.P. 206.

2. The gender of the CI is unknown. As the Majority does, we shall refer to the CI with male pronouns.
3. Our Supreme Court adopted the Gates standard in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926 (1985).
4. In his dissent in Wallace, Justice McCaffery noted: In Clark, we rejected the conclusion of the lower courts that the affidavit was infirm because it contained no express statement quantifying the informant's reliability or basis of knowledge, and stated that `[b]oth lower courts failed to look at the information as a whole, but examined and considered individual factors in a mechanical fashion, effectively nullifying the mandate to assess the totality of the circumstances.'

Wallace, 42 A.3d at 1056 (McCaffery, J. dissenting) (citing Clark, 28 A.3d at 1289).


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