191 A.3d 8
Pa. Super. Ct.2018Background
- In 2011 a confidential informant (CI) who previously had been reliable told PSP Trooper Baumgard that Dennis Katona offered to sell him cocaine and later delivered multiple drug quantities to the CI (some at Katona’s home). The CI wore a recording device with prosecutorial and judicial approval for in‑home consensual intercepts.
- Over May–June 2011 the CI made several recorded visits; payments and deliveries occurred on multiple dates, including confirmations that additional drugs would be available on June 29, 2011.
- Troopers executed an anticipatory search warrant at Katona’s residence on June 29 after Katona contacted the CI; officers seized 84.2 g cocaine, 99.64 g methamphetamine, scales, and packaging; parties stipulated those items and expert testimony supported intent to deliver.
- Katona was convicted (stipulated non‑jury trial) of possession with intent to deliver and possession; sentenced to 40–80 months and appealed, challenging (1) constitutionality/scope of the in‑home consensual wiretap(s), (2) validity of the anticipatory warrant, and (3) sufficiency of evidence of possession.
- The Superior Court affirmed: it held evidence supported constructive possession; it rejected suppression of the substantive information provided to police (even if multiple recordings themselves might violate Article I, §8); and it found the anticipatory warrant met Grubbs/Wallace standards given the prior pattern and the CI’s June 27 assurance that drugs would be available June 29.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence of possession | Commonwealth: constructive possession proven by drugs in master bedroom, documents linking residence, scales, packaging, prior deliveries to CI | Katona: mere presence in home; wife could have had exclusive possession; unknown duration at residence | Held: Affirmed. Totality of circumstances shows constructive possession (ability and intent to control); co‑possessor possible but does not negate conviction |
| Legality/Scope of in‑home consensual wiretaps (multiple intercepts) | Katona: §5704(2)(iv) and Brion permit only a single prior judicially‑approved intercept; multiple continuous intercepts rendered later recordings unlawful, vitiating affidavit | Commonwealth: statute imposes no explicit time/quantity limit for consensual in‑home intercepts; practical problems would result from a one‑intercept rule | Held: Court declined to resolve single‑intercept constitutional question; instead resolved case on narrower ground (see next issue) |
| Use of recorded content vs. informant’s verbal reports in affidavit | Katona: affidavit relied on illegally recorded statements so excision would leave no probable cause | Commonwealth: even without recordings, CI’s voluntary disclosures and officer corroboration provided independent source and probable cause | Held: The court held recordings (the physical tapes) may be suppressible under Brion, but the substance that the CI voluntarily revealed to police is admissible and provided an independent source for probable cause; affidavit valid when recordings excised |
| Validity of anticipatory warrant (triggering condition) | Katona: affidavit failed to show probable cause the triggering event (delivery/receipt at residence) would occur | Commonwealth: triggering condition was Katona’s promised contact/delivery to CI on June 29, supported by pattern of prior deliveries and June 27 statement | Held: Affirmed. Under Grubbs/Wallace the affidavit sufficiently showed probable cause that the triggering condition would occur and that contraband would be at the residence |
Key Cases Cited
- Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (Pa. 1994) (Pennsylvania Constitution protects in‑home conversations from electronic recording without prior judicial probable‑cause review)
- Hoffa v. United States, 385 U.S. 293 (U.S. 1966) (no Fourth Amendment privacy interest in information voluntarily disclosed to another who is a government informant)
- Katz v. United States, 389 U.S. 347 (U.S. 1967) (Fourth Amendment protects reasonably‑expected privacy; established Katz test)
- United States v. White, 401 U.S. 745 (U.S. 1971) (plurality: no Fourth Amendment difference between an informant’s oral reporting and contemporaneous recording/transmission of the same conversation)
- United States v. Grubbs, 547 U.S. 90 (U.S. 2006) (anticipatory warrants are permissible; affidavit must show probable cause that triggering condition will occur and that contraband will be found if it does)
- Commonwealth v. Wallace, 42 A.3d 1040 (Pa. 2012) (explains Grubbs in Pennsylvania context; anticipatory warrants require sufficient averments about the triggering condition and presence of contraband)
- Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001) (distinguishes Brion for telephonic disclosures; examines whether expectation of privacy extends to information voluntarily disclosed and the admissibility of recordings vs. informant testimony)