Com. v. Barony, N.
Com. v. Barony, N. No. 475 WDA 2016
| Pa. Super. Ct. | May 23, 2017Background
- Pennsylvania State Police recorded phone calls (July 27–Aug 4, 2011) between a confidential informant and Norman Barony about a marijuana grow; the informant later died (after suppression hearing).
- On Aug 4, 2011, Trooper Schaefer conducted a "trash pull" on Pine Street (he rode with the private hauler); he recovered a long marijuana stem, an empty box of "Herbal Clean," and indicia linking the residence to Barony.
- Trooper Schaefer used part of the stem for a field test that indicated marijuana; he then obtained a search warrant on Aug 5, 2011 and executed it Aug 6, 2011.
- Search of the residence yielded nine marijuana plants, growing paraphernalia, and seeds; charges followed and Barony was convicted after a bench trial.
- Barony moved to suppress (trash pull legality; alleged staleness and unreliability of informant leading to insufficient probable cause; confrontation issues). Trial court denied suppression; Superior Court affirmed in May 2017.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Barony) | Held |
|---|---|---|---|
| Legality of trash pull (abandonment/expectation of privacy) | Trash set out for collection was abandoned and accessible; police may lawfully inspect trash and use its contents as probable-cause indicia. | Barony had a subjective and reasonable expectation of privacy; trash was within curtilage/private drive and not voluntarily relinquished to a third party. | Court held trash was abandoned (set out along street, not in curtilage, accessible to hauler/public); suppression denied. |
| Probable cause for search warrant (reliance on trash pull + informant) | The trash pull produced physical evidence (stem, Herbal Clean, indicia) and field test results sufficient to supply probable cause independent of informant. | Barony argued informant information was unreliable/stale, and warrant lacked sufficient probable cause. | Court held probable cause existed at issuance (Aug 5) based on recent trash pull and Trooper's observations; warrant not stale and suppression denied. |
| Confrontation / ability to test informant reliability at suppression hearing | Commonwealth notes informant was available at suppression hearing (consensual recordings were made) and the trash evidence sufficed. | Barony contends informant later died and his unavailability denied confrontation and undermined reliability of the warrant affidavit. | Court held Barony could have called the informant at the suppression hearing (when alive); informant’s later death does not retroactively defeat probable cause; Confrontation claim rejected. |
Key Cases Cited
- California v. Greenwood, 486 U.S. 35 (U.S. 1988) (garbage left for collection is abandoned and not protected by Fourth Amendment)
- Commonwealth v. Perdue, 564 A.2d 489 (Pa. Super. 1989) (placing trash out for collection amounts to abandonment terminating Fourth Amendment protection)
- Commonwealth v. Jones, 484 A.2d 1383 (Pa. 1984) (probable cause for a warrant must exist at time of issuance and be based on facts closely related in time)
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (totality-of-the-circumstances test for probable cause in warrant affidavits)
- Commonwealth v. Bonasorte, 486 A.2d 1361 (Pa. Super. 1984) (defendant may seek production of a confidential informant at a suppression hearing where material and reasonable)