Commonwealth v. Gindlesperger

COMMONWEALTH GINDLESPERGER,

Gregory Appellant. Pennsylvania. Court of

Superior

Argued June

Filed Dec.

CERCONE, Judge President Emeritus: pro nunc appeal an tunc1 This is upon appel- entered judgment sentence marijuana2 possession lant’s conviction substance manufacture of controlled and judgment of (marijuana).3 We vacate sentence. adopt lower court’s statement We n pertinent facts of the case: on

Pursuant to a search warrant issued 9, 1994, April police officers entered area of the defendant’s residence basement marijuana approximately and seized probable cause for the search plants. The based, in part, on information warrant was (here- provided by a confidential informant “Cl”) defendant, Gregory inafter Gindlesperger, growing Further,'indepen- in his basement. plants tip verification of came when the dent employed a thermal detection officer the emanation of device and observed house waste from the defendant’s marijuana production activ- consistent with ities.

According to the affidavit of warrant, cause for a search Cl told Pfadt Gerald Officer he/she growing at plants the defen- February during 1994. dant’s residence plants The Cl stated that the were located in the basement and consisted about plants. The Cl adult and clone accurately appearance of described the marijuana plants to Officer Pfadt. working as a has been Officer Pfadt . years, he for 9 has been officer Erie, Segal, appellant. Drug Elliot County J. Erie a member of the Mobile years. for 5 He has been Task Force Erie, Taylor, Atty., A. Asst. Dist. Garrett directly or in numer- involved has assisted Com., appellee. concerning investigations ous violations CER'CONE, law, KELLY, J., drug including investigations of President Before Emeritus, BROSKY, grow manufacture or controlled Judge J. those who appellant thirty gave Superior 1.Appellant’s appeal ber 1996. The court initial Appellant days appeal. because the failure of counsel his filed was dismissed in which to file post- filed motion for to file brief. appeal on a notice of December on 1996 in which relief November conviction requested grant him lower court 780-113(a)(16). § 2. 35P.S. pro permission appeal to file nunc tunc. petition granted rein- lower court the PCRA Id., 780-113(a)(30). § rights appeal Novem- stated direct seized suppress the evidence substances, trial motion to marijuana, in indoor such as residence. The low- during the search environments. and a bench trial that motion er court denied confirm the Cl to Officer Pfadt asked 2, 1995, May 1995. On June was held on marijuana production the defendant’s appellant guilty of the basement, Febru- court found during the week of the lower appel- In March court sentenced ary charges. the Cl did so. The lower 30, 1996, lant, Pfadt that January the Cl told Officer to three to five on lights to using artificial defendant was now hundred hours of years imprisonment, one marijuana growth. fine, facilitate service, $15,000 and community a costs. 17, 1994, Gregory Captain sentence March motion to reconsider Appellant’s On Pennsylvania Army National Davis of was denied. defen- Drug Force Guard Task viewed following on issues Appellant raises through a thermal detec- residence dant’s appeal: device, referred to as tion hereinafter warrant based the search 1.Whether designed to distin- This device is “WASP.” by single and provided upon information and noticeable amounts guish appreciable confidential infor- anonymous, first-time Captain Davis detect- heat. of extraneous thermal detection plus an infrared mant coming unexplainable of heat ed “an source and unsupported sufficient device not con- area that was from the basement cause, rendering thus probable permissible of the furnace sistent with the location of evidence ensuing and seizure He also heat sources.” other known of his fed- appellant’s home violative of similar structure cheeked five residences Article Amendment and state eral Fourth of the defen- design on either side and protections? constitutional section 8 heat

. detected no such residence and dant’s failure the Commonwealth’s 2. Whether pattern. identity of the confidential to disclose a search warrant April On or at the time of the before informant both this, days prior to three issued. Within suppression hearing warrants suppression production of again the Cl confirmed prose- and dismissal of the evidence house. marijuana plants at the defendant’s cution? based, part, warrant was The search court’s refusal the lower 3. Whether would be “[t]his the fact that source of medical accept assertion coming the heat source consistent with legitimate defense at trial necessity in the as a lighting used artificial process sentencing Pfadt his due marijuana.” Officer violated growing of and/or grow guar- mari- who constitutional averred that “individuals other fundamental setting do so in con- juana in an indoor by amendments 5 and afforded antees plants in vari- operation and have tinuing and Arti- Constitution of the United States as to be able stages growth so ous Pennsyl- I, 26 of the cle Sections marijuana supply have a continuous Constitution? vania “the averred that He also be harvested.” 780-113(a)(30) § 35 P.S. 4. Whether officer to this provided information Cl has failing unconstitutionally overbroad reliable proven past that has been in the small growing/manufacturing differentiate of individuals in the arrests and will result personal/medical amounts of drug laws.” for violations marijuana for large amounts use versus n the defendant’s search of During the delivery to others? residence, found failed to the Commonwealth Whether and artifi- in the basement plants growing number of live mari- sufficiently prove The defendant equipment. lighting cial three-year man- trigger the juana plants to various vio- charged with was arrested of 18 Pa.C.S. datory prison sentence Substance, Drug, the Controlled lations of 7508(a)(l)(ii)? § Act, 35 P.S. Device and Cosmetic brief, Appellant’s at 3. seq. § et 708.101 order review of an standard of Our 28, 1995, April atT-4 opinion, Trial court as follows: motion is omitted). denying suppression pre- (citations Appellant filed a reviewing rulings suppression probability of a a fair that contraband or evidence When court, must particular we determine whether the rec- be found in a crime will ” supports findings. (cita ord that court’s factual 116-17 place.’ Id. doing, In so we consider evidence omitted). tions prosecution and so much offered to establish evidence the defense as remains uncon- must be a com- cause viewed tradicted when read context of sense, defer- mon nontechnical manner and sup- record as a whole. Where record issuing mag- ence accorded must be court, ports findings suppression reviewing duty of a court istrate. The are bound facts may we those magistrate decision to ensure that the only if legal reverse conclusions drawn concluding that had a basis for substantial therefrom are in error. probable cause existed. 355, Hughes, Commonwealth v. 536 Pa. 366- omitted). (citations 424, 117 A.2d at 668 (1994). 67, 763, 639 A.2d 769 When faced Appellant claims that the warrant- testimony, appellate a conflict of with unconsti less use of the WASP device was an court, which, to suppression court defers tutional under both the Fourth search finder, passes credibility upon as fact Amendment to the United States Constitu witnesses, findings and whose are not dis- I, Pennsyl 8 tion and Article Section of the supported turbed when the record. Com- will examine vania Constitution. We first Marshall, 556, v. Pa. monwealth 523 568 (1989). this claim the Fourth Amendment. A.2d 590 protects right “[t]he The Fourth Amendment Appellant’s appeal first contention on is in people persons, secure their to be that the search warrant herein was not based houses, against unreason papers, and effects probable on sufficient cause. ad- seizures_” able and Const. searches U.S. arguments vances three related to this issue: of Fourth “[T]he amend. touchstone (1) IV. the warrantless use of the WASP device analysis question Amendment has been the an unlawful in violation ‘constitutionally has a person of whether a Fourth Amendment to the United States I, expectation priva- protected and reasonable Constitution Article section 8 of the ” Constitution; (2) 170, States, Pennsylvania cy.’ the nature of v. United 466 U.S. Oliver way 177, 1735, 1740-41, 214, the WASP device and the it which 104 80 L.Ed.2d S.Ct. States, was used rendered the information contained (1984), v. quoting 223 Katz United probable too cause affidavit unreliable 507, 516, 347, 360, 88 S.Ct. 19 389 U.S. support probable a finding to cause for a (1967)(Harlan, J., 576, L.Ed.2d 587 concur- (3) warrant; and cause affidavit ring). An unreasonable search under failed to establish that the infor- confidential (1) person occurs Fourth Amendment when mant information was credible and/or expectation priva- has exhibited an actual reliable, faet was based false or (2) cy; expectation is that soci- one misleading information. ety recognize prepared is to as reasonable. evaluating States, “The standard for whether 361, v. 389 88 Katz U.S. probable cause exists for the issuance of a (Harlan, J., 516, 19 L.Ed.2d 588 S.Ct. ‘totality search warrant of the circum is the Oglialoro, concurring); Commonwealth v. Gates, test as in Illinois v. stances’ set forth (1990). 250, Pa. 1288 525 579 A.2d 213, 2317, 103 76 462 U.S. S.Ct. L.Ed.2d 527 Fourth Amendment “The adopted by Su [the overriding respect for the sanc stressed ‘the preme Gray, v. 509 Court] Commonwealth tity that has been embedded of the home (1985).” 476, 484, 921, 925 Pa. origins Repub our traditions since Jones, 424, 418, Commonwealth v. ” 170, States, 466 U.S. lic.’ Oliver v. United (1995). 114, 116 magistrate “A to A.2d 668 214, 1735, 1741, 80 L.Ed.2d S.Ct. ‘practical, make a common-sense decision (1984). have The courts extended whether, given all the circumstances set forth “curtilage” protection Amendment him, including the in the affidavit before home, they curti have defined the knowledge” “and “veracity” per and “basis of law, information, lage, as common reference supplying hearsay there is did the sons Place, an indi v. 103 S.Ct. the factors that determine whether 462 U.S. (1983). reasonably may an expect that area vidual 77 L.Ed.2d 110 The noted that adjacent immediately home will re theory “dog “heat both the waste” private.” main 104 S.Ct. at theory imagers to thermal sniff’ relation curtilage 80 L.Ed.2d at 225. “The area sur accepted by courts have been some and re- rounding private pro house is entitled jected by others. tection under the Fourth Amendment as a theory The “heat waste” was criticized occupants place have a where reasonable Deutsch, Cal.App.4th People privacy society pre expectation of Cal.Rptr.2d where the court pared accept.” v. Lema Commonwealth pointed out that “does nski, 332, 349, simply radiating heat measure the waste (1987),citing Dow Chemical Co. Unit structure, temper- all from a but it measures States, ed 476 U.S. 106 S.Ct. exterior surface ature differentials across the curtilage L.Ed.2d 226 The “is often Cal.Rptr.2d at 368. of a structure.” Id. 52 greater privacy than protection afforded a “Therefore, the device the function of open signifi because of traditional field paint picture an infrared sources govern cance of the home a haven from gen- the heat permits inferences about mental intrusions.” Commonwealth occurring resi- erating activities within the Oglialoro, 525 Pa. at A.2d at court found the dence.” Id. Deutsch n In instant court the lower found Supreme decision of the United States Court warrantless Karo, 705, 468 U.S. 104 United States v. home with the WASP device was a (1984), 3296, 82 L.Ed.2d 530 more anal- S.Ct. search under the Fourth Amendment. The imaging searches than the ogous to thermal Ford, relied on v. lower court United States theory. “heat waste” (11th Cir.1994) 34 F.3d 992 and related Karo, Drug agents Enforcement In of the a homeowner cases4 for conclusion that beeper in a can of Administration inserted expectation does not have reasonable the movement of ether and then monitored privacy in waste.” “vented heat” or “heat during points the sur the can.5 At several discharge The lower court reasoned that the veillance, able to determine were substances, other “visible or invisi heat or private in a the can of located ether was eyes, personal the naked not so ble to are surveillance, the home. At the end of the in detail threaten and intimate” as to got for house agents a search warrant interests “which form the need basis defendants, in by which the rented two residence, namely protection beeper was locat containing can of ether as intimacy, personal autonomy privacy yielded and laborato ed. The search cocaine opinion, with a home.” Trial court sociated Supreme 7, ry equipment. States 27,1995, The United January quoting at United States (8th monitoring beep Pinson, 1056, Cir.1994), found that 24 Court v. F.3d 1059 664, 130 denied, private 1057, 115 can 513 U.S. S.Ct. er while the was located cert. residence, court L.Ed.2d 598 The lower relied Amendment violated the Fourth heavily de on its conclusion that WASP fact it a critical about “reveal[ed] because imager, produce vice or thermal does premises that the Government interior of intimacy amount to intru of detail would knowing extremely and that interested siveness violative of the Fourth Amendment. not have obtained without it could otherwise opinion at 11. Trial court 714-15, 104 Id. S.Ct. at a warrant.” at Karo, Relying on L.Ed.2d at 541-42. 82 court also use of the

The lower likened the court the warrantless ther Deutsch held that of surveil- device to the use WASP police imaging scan mal conducted dogs trained to the odor of lance detect something citing case “told the about illegal Id. at United contraband. ‘ Pinson, (8th following agents E.g., v. 1056 the ether States 24 F.3d Karo United denied, Cir.1994), 115 they cert. 513 U.S. S.Ct. had that it was be used because learned (1994); 130 L.Ed.2d 598 United clothing which had been to extract cocaine from (D.Hawai'i Penny-Feeney, F.Supp. imported to the United States. Cir.1993). 1991), (9th aff'd, 984 F.2d 1053 they In imaging within the could scans. Dow Chemical Co. activities house which obtaining States, 227, 106 have supra, not otherwise learned without S.Ct. U.S. Deutsch, People a warrant to search it.” L.Ed.2d officials Cal.Rptr.2d at 369. Agency flew over Environmental Protection manufacturing facility at altitudes of Dow’s rejecting the “canine sniff’ cases 12,000, 3,000, 1,200 The officials feet. scans, applicable imaging to thermal photographer employed a commercial aerial Deutsch reasoned: mapping cam “precision aerial who used Precisely because the thermal facility at photographs to take era” registering indiscriminate sources at tool, S.Ct. altitudes. it is an which tells those intrusive Supreme held much about activities inside home 90 L.Ed.2d at 232. The may quite illicit unrelated the search did not violate the activity. very respect it is the the curti- The court found that Amendment. dog antithesis of a because the sniff lage apply open did not areas doctrine dog narcotics trained alerts facility, photo of this industrial and that contraband, presence of the ther- whereas revealing of inti graphs taken “were not so imager indiscriminately registers mal all as to con mate detail raise constitutional sources of heat. 106 S.Ct. cerns.” (citation omitted). Similarly, in Id. at 369 found L.Ed.2d at 236-38. The court Dow Field, (W.D.Wis. F.Supp. U.S. v. photographs outline of the limited to “an 1994), imaging the court found that thermal buildings facility’s equipment,” is more intrusive than a “canine sniff’ revealing anything “intimate.” Id. more The court contraband. therein reasoned: 238-39, 90 L.Ed.2d 106 S.Ct. Thermal can extract information 237-38. person’s home, place from within a acceptable in The warrantless search found deserving protection govern- most a ther- distinguishable Dow Chemical imager pick ment intrusion ... can The a imaging person’s scan of home that mal kinds, up many including heat sources of curtilage looks the of the a thermal scan into commonly thought not those of as such. imager, police a the home. With thermal imager To this extent the “intrudes” into actually person’s the walls home. scan of a home, place always the the that has en- addition, In a thermal makes visible joyed highest protection level of eye visible to the human what would not be jurisprudence. per- Fourth Amendment A expect that son can his movements a car it. The thermal makes visible without device may structure, be tracked he just suitcase the outline of but the a might subject with him on a trip takes spots” a location of “hot within it. inspection; expect that his does not revealing more “intimate thermal scan is activities within his home will be sub- own photographs than were the details” aerial ject high of the technology surveillance Dow. employed dogs here. em- sort Unlike the 207, Ciraolo, 106 In U.S. California contraband, ployed to sniff for the thermal 1809, (1986), 90 L.Ed.2d the United S.Ct. imager picks up ac- information of lawful fly- police Court a Supreme addressed States as as tivities well unlawful. backyard at an altitude of over of defendant’s Young, 123 Id. at 1519. See also State v. (within navigable airspace). From 1000 feet 173, 593, 867 P.2d 598-99 Wash.2d vantage point, identified the officers (1994)(“the infrared inves- thermal detection eight high grow- marijuana plants to ten feet represents a intrusive tigation particularly backyard, photographed them ing infor- method of surveillance which reveals 35 mm camera. a standard with about lawfully mation not otherwise obtained home”). going what is on within the Supreme Court found that this search The The not violate Fourth Amendment. did of the Relevant decisions polieé looked although held police sur- .court Supreme Court concerned with home, protected curtilage area of the discerning into the are veillance methods useful require the thermal Fourth Amendment does not the reasonableness warrantless passing by person open where police eyes “to when a a leaves windows shield their 213, public thoroughfares.” peer at passerby might home on Id. uncovered so that 256-57, at L.Ed.2d at 216. “Nor 106 S.Ct. dwelling. Id. at into 579 A.2d one’s does the mere fact that individual at 1291. taken measures to restrict some views of his curtilage was within the Although the barn preclude an officer’s activities observations home, Oglialoro court found public point vantage from a where he has police right to be long have the “[a]s as right to be activities and which renders the are, activity where and the is clear and they added). clearly Id. The visible.” (emphasis visible, they peering are into curti- the fact the offi- Ciraolo court concluded since significance.” Id. at lage is of no plants readily cers were to “observe able The court found that at marijuana,” eye discernible as to the naked violaté Fourth Amend- search did un- the search was not an unreasonable one imaging A ment on this basis.6 Amendment. Id. der of search con- type search differs Similarly, at 217. 5.Ct. 90 L.Ed.2d imaging as thermal scans Oglialoro ducted in Riley,

in Florida v. 488 U.S. 109 S.Ct. eye and the are with the naked not done found L.Ed.2d 835 object is not “clear and visible.” of the search permissible under the Fourth Amendment A.2d at fly-over helicopter during police which the observed, surveillance, naked-eye mari- with ease, Superior very pertinent In a juana growing greenhouse within legality police surveil addressed curtilage of defendant’s home. appel greenhouse lance connected Riley The searches in Ciraolo and lant’s home. Commonwealth Lemanski curtilage entered into defendants’ 529 A.2d homes, but conducted those pub stopped officer Lemanski eye” searches with “naked surveillance. adjacent lic residence road contrast, scan, in a thermal green through the plants growing curtilage search enters home not involved, house roof. Due to distance eye, with the naked but with a surveillance Later, identify plants. officer could device that visible what makes otherwise road, returned to the officer and another gives could not be seen. lens, using and a zoom binoculars police information about activities in the sus- greenhouse and identified the scanned the home, i.e., pect’s engaged in that he is some marijuana. Id. type of activity therein which involves more suppress 1087. the The trial refused normally production than is generated evidence. inside a The search does tell the home. not Superior On held that appeal, the activity police occurring whether the inside greenhouse curtilage the was within the legal illegal. the home is protection the home and was thus entitled to Pennsylvania Relevant decisions of the Su The court Amendment. preme Superior Courts are instruc also police found were not able to view that the on the tive issue reasonableness greenhouse finding opening without imaging thermal searches. Common shrubbery along property and. brush Oglialoro, supra, 525 Pa. wealth house, and had to “much more line use appellee’s over police flew eye” than naked view the contents [the] roof helicopter. The of the barn bam 349-50, greenhouse. Id. at plastic The transparent consisted of sheets. Thus, 1093. court found the officer’s surveillance, eye police, naked form not the basis for observations could marijuana growing in the bam. Id. at issuance of a search The Su A.2d at 1289-91. warrant. this situation to one A.2d 1094. preme Court likened basis, However, Oglialoro court also Id. 579 A.2d at On this determined presence only fifty helicopter's feet search was found to be intrusive and unreason- lawful, bam, although represented a over able. Id. ground. persons property on "hazard” provide informa- a search do entirely supports results of such The result Lemanski occurring inside the that the warrantless thermal im- conclusion tion about activities aging scan conducted here violated the home, may be contained or items which police in Leman- Fourth Amendment. The Thus, imager although thermal therein. ski, here, contraband could not view the home, it penetrate the walls does not eye from their lawful with naked observation outer walls extracts nevertheless search, vantage uti- point. within, which occurrences information about binoculars and a zoom to make lized lens obtained without could not be otherwise see, eye could not visible what naked Karo, States v. search warrant. See United satisfy found too intrusive to the Fourth supra. prohibition Amendment’s on unreasonable courts, we do and Field Like the Deutsch here, Similarly, searches. could analogy persuasive. not find the “heat waste” they sought the contraband with view testimony in his Davis indicated Captain As eye vantage naked surveillance from a lawful hearing, the device suppression at the WASP device, Rather, point. the thermal the walls of signatures” on detects “heat like the binoculars and zoom lens used not de- Lemanski, buildings. The thermal does to see what allowed building “vapors” escaping from a they could not. tect heat otherwise at the walls of a structure so much as it looks The Commonwealth relies on Common- than parts if of it are “hotter” to see certain Johnston, wealth walls of parts, or “hotter” than the other support argument of its similar structures. prohibit Fourth Amendment does not imaging search. instant Johnston expect reasonable for individuals It is involved a canine-sniff search of a rental the exterior not “read” will facility. dog “Rent-a-Space” locker at a de- their homes with surveillance walls of belonging to defen- “alerted” at locker vices, ac- searching for evidence of criminal dant/appellant, where was subse- Field, tivity. “[a] court stated As the quently found. The court concluded that his actions within expect person does the Fourth canine-sniff search did not violate subject high technol- his own home will be non- Amendment because the search was ogy surveillance....” intrusive, the of information as a disclosure Field, Similarly, the F.Supp. at 1519. limited, extremely result of the search was recognized that “nondisclosed Deutsch court inconvenience of the the embarrassment and the home are those which activities within minimal, search was and the items sniffed expectation of society accepts a reasonable (hallway). public were located close to a area privacy therefore activities which [are] 530 A.2d at 78. government intrusion.” require a warrant reasoning of Deutsch and Based on the Deutsch, Cal.Rptr.2d at 368. People v. cases, “dog analogy Field we find the sniff’ imaging. unpersuasive in to thermal relation appellant ex- The record here shows It is also clear that the Johnston case did expectation privacy an actual hibited curtilage of the involve an intrusion into the He took occurring in his home. activities home, thermal as was the case with the area of his home care to conceal the extreme imaging scan here. marijuana from growing the in which he was the home. persons intruded into of within In the instant the the even view curtilage appellant’s Thus, of home for an protected parts the of the Katz test both exterior scanned the Captain Davis Fourth when the unreasonable using the appellant’s (1) of residence i.e., walls person has exhibited a Amendment — imager made device. The thermal WASP the privacy, and expectation of an actual spots” signatures,” “heat “hot visible society prepared to that is expectation is one detect with the impossible to which met under accept as reasonable —are eye. naked States, v. of this case. See Katz United facts 516, 361, 88 S.Ct. at supra, 389 U.S. at detect Although a thermal cannot (Harlan, J., concurring). home, L.Ed.2d at 588 of a “images” inside the walls necessary to an invalid basis issuance find it to rule in this manner determined We protections warrant, question maintain the constitutional of becomes whether vitality our citizens which continue to have in the es- information affidavit the untainted importance despite of the advance tech- a search war- probable cause for tablishes nology in surveillance. As the Penn- rant). provided by If sylvania Supreme Court has stated:. omitted, proba- affidavit of scan WASP To maintain freedom all we must main- of instant case consisted ble cause requires tain an society, ordered which been attestations that has Officer Pfadt’s effectively our that we enforce laws. years, nine member of officer for applied the strictures that are to be Force Drug for five County Erie Task to preserve our freedom must never be years, violations investigated numerous inadvertently to provide allowed the vehi- Act, methods Drug of is familiar with undermining equal it. cle for Of concern is and use con- who sell used individuals guard .against surrendering we that law, in violation trolled substances fear, era, perceived lawless fundamen- investigations in numerous has been involved protections that are tal essential controlled sub- involving growing preservation and maintenance of our free marijuana in an indoor envi- stances such as society. provided: then ronment. The affidavit Miller, 118, Pa. 127- Commonwealth individual, During February 1994 an whose 28, (1986). empha- 518 A.2d We officer, and will be identity is to this known size scan herein 1,#Cl told this after as referred herein was conducted without warrant. The re- marijuana officer that he/she fact, used, in sults of the scan were obtain Gregory plants growing in the residence premises. For search warrant for the St., 807 Eldred Gindlesperger located at reasons, that the use of these we conclude Erie, Pennsylvania. Twp., Harborcreek device in the instant case violated WASP is familiar with Accordingly, # 1 Fourth Cl stated he/she Amendment. portion marijuana affidavit search warrant appearance growing as a result relied on information obtained description of the plant and the of the WASP scan was invalid and not a given Cl # plants to this officer proper basis for issuance warrant. marijua- appearance consistent with to, # 1 plants this officer. Cl na known

Because we have found the thermal in the plants are located stated imaging search violative of the Amendment, necessary it and consist us basement area of the residence specifically eight contention approximately address adult Pennsylvania the search violated the thirty plants. clone However, it Constitution. is well-established February During 1994 this week Constitution has been confirm the Cl #1 to officer instructed privacy protection provide greater held to being grown in marijuana plants were still In the Inter than the Fourth Amendment. Gindlesperger. The Cl the residence B.C., est and stated # 1 this officer later contacted (1996); Gayle, 449 Pa.Su Commonwealth grown being still within per. 931 n. 9 n. the residence. (1996); Wright, 448 Pa.Su Commonwealth #1 stated that During 1994 Cl March n. per. 627 n. lighting set Gindlesperger has artific[i]al growing process of up to assist Next, in- we must determine whether the marijuana plants. magis- provided formation hours # 1 seventy-two Cl Within the last trate, than that obtained as a result of other growing again scan, was sufficient Gindlesperger. in of the residence support the issuance the search warrant. marijuana in an in- grow Individuals Lemanski, who Pa.Su- See Commonwealth (when continuing opera- setting door do so in a per. informa- stages of plants in by tion search is tion and have various obtained unconstitutional past that growth mation to officer in the so as to be able have a continu- in supply ous to be result proven harvested. been reliable and will officer’s experience This is based on this arrests of for violations individuals training. drug reliability of the informant laws.” The 'provided depended Cl #1 has to this on the affidavit. this statement past proven in the that has been officer Appellant argues that this statement was reliable and will result in arrests of insufficient to the informant’s relia- establish n individuals drug violations laws. for Jones, bility. Commonwealth v. affidavit, April Search Warrant n added). (emphasis Supreme the issue of the Court addressed reliability contends that informant. the affida a confidential case, vit failed to establish that the confidential police that stated in officer/affiant reliable, and that in informant was that the confi- probable the affidavit of cause his/her Thus, formation was credible. he contends dential informant the information the affidavit attribut past with has been in the reliable able to the informant was not sufficient to following peo- arrest and conviction of for establish cause issuance of the ple: poss J. Snoe on 7-18-92 Crack tip “A from an warrant. unnamed Cocaine, probation years two who received properly informant can form the basis Judge Cargile Little. L. 7-23-92 warrant, probable cause to issue a search poss Marij, pending is still who case provided adequate there is evidence County. Allegheny the Courts of J. reliability.” informant’s Commonwealth v. poss with Newsome on 7-30-92 for intent Lemanski, 529 A.2d at Cocaine, to Del who case still Crack reliability of the informant’s “[T]he Allegheny pending Coun- the Courts information must be determined from the ty. Id, by supplied facts A official.” 668 A.2d at 116. Jones court magistrate must consider four factors in de to be sufficient found these assertions credibility termining the of an unidentified reliability establish informant’s without reliability informant and the informa additional The court rea- corroboration. tion: soned: (l)Did give prior the informant reliable magistrate presented with an [T]he (2) information? Was the sto- informant’s containing information from an affidavit (3) ry corroborated another source? informant known to who was Were the informant’s statements a decla- provided information in had reliable against ration interest? Does the de- past. The states specifically affidavit reputation support fendant’s the infor- tips tip? provided had on three mant’s informant occasions, prior resulting one conviction Gray, 322 Pa.Super. Commonwealth v. the courts. pending and two before cases It is not neces Furthermore, provides the the affidavit sary satisfy all the affidavit four of these Id, and the prior names of the arrestees dates criteria. they were arrested. case, In the instant the informant’s state- against 668 A.2d at 117. ments not a declaration inter- est, there information concern- nor was case, In the instant officer/affi- ing reputation support would provided had ant stated that the informant tip. have informant’s We held However, past. in the reliable information i.e., information, corroborating was obtained Jones, information, as unlike the informant’s illegal search. criterion affidavit, had not resulted of the date of the remaining the confidential infor- to establish persons. other in the arrest conviction of given reliability is whether had mant’s most, At indicated arrests affidavit prior information. reliable unspecified time in the occur some would Further, the affidavit instant future. The affidavit here indicated that Jones, provided unlike no “provided had infor- the one informant confidential affidavit, by the as mant was not established names or other details to the arrests place. totality which to take of the circumstances even under test.7 fact does The that an affidavit not information in the We that the conclude names, dates, or contain the other informa by the provided confiden- affidavit which was concerning prior tion or arrests convictions informant, probable necessarily not not establish fatal to a determination that a tial did gave informa search confidential informant reliable for of warrant. cause issuance Miller, supra, tion. v. See Commonwealth supported not warrant was (Commonwealth 513 Pa. by lower court there- probable cause. The persons to required disclose names of fading suppress results of fore erred in anonymously as referred to affidavit hav must vacate the Accordingly, we search. ing previously of been on the basis arrested based on the judgment which was of sentence tip, informant’s would where such disclosure herein. evidence'improperly seized lead to identification of confidential informant appeal Appellant’s next contention danger). and informant then would failing require that the erred in trial court However, in the instant the affidavit not identity to disclose Commonwealth information, specific lacked this it also ruling our informant. Given confidential prior that the information stated informant’s denying appel- court erred trial arrests, stating “will lead” than rather necessary suppress, it is lant’s motion customary past “has in” ar in the resulted this for us to issue. address rests or convictions. argues the trial court Appellant next We have reviewed numerous cases in of medical “rejecting” his defense erred reliability of a confidential infor which necessity. his sole Appellant contends mant has been on the that he sustained basis using purpose growing given prior reliable information. In none of his allegation cases for the treatment those was there seized herein was tinnitus, excruciating informant’s information “willlead” head- deafness, E.g., arrests future to or convictions. Com the trial court Appellant aches. asserts that Jones, supra; monwealth v. Commonwealth accepted defense trial and should have this Rodriguez, v. A.2d 988 sentencing. Dosch, (1991); v. 348 Pa.Su Commonwealth instant ease sat as judge trial 7(1985); per. 66 A.2d Common fact-finder, appellant was tried in as Healey, Pa.Super. wealth v. non-jury Appellant presented his de- trial. Prosdocimo, (1984); v. Commonwealth trial, in a necessity short fense medical Pa.Super. by defense direct conducted examination reliability “[T]he the informant’s tes- objection made counsel. No must information be determined testimony, trial timony. the close of At supplied facts official.” Com closing make permitted parties to Lemanski, monwealth appellant did statements. Counsel duty A.2d at 1095. The of a court necessity in his raise the of medical issue reviewing the issuance of search warrant ap- Nor did closing argument to the court. magistrate “to a substan ensure had motions, in he pellant post-trial file concluding tial cause basis have raised the defense. could Gray, supra, existed.” Commonwealth raise the issue sentencing, appellant At did Here, 509 Pa. at 503 A.2d at 925. necessity to the sen- medical in relation “facts, supplied official” were argued that imposed. tence to be prior lacking in detail incarceration, period sentencing him to provided by the informant. confidential marijuana for grew and used the where addition, the affiant did not assert that needs, his constitutional arrest(s) his medical violates prior tips had fact resulted in I, conviction(s). rights under Article Sections both these deficien With cies, infor- reliability of the confidential Constitution Gray, supra, 509 Pa. at 503 A.2d at 925. 7. See Commonwealth marijuana.” growth, and Fourteenth Amendments of or Fifth United States Constitution. as- right serts that his to have access to the use case does not Bumsworth While marijuana of as a medical to allevi- treatment necessity the medical issue rela address suffering “important” right, ate is an his sentencing, it the issue tion to does address heightened requires which of re- standard constitutionality of the statute terms evaluating constitutionality

view in 7508(a)(1). growers of mari “treating statute, of its classification sentencing § 18 Pa.C.S.A. thereof, differently” juana possessors as vein, appellant In argues that 35 a similar of a mari as the issue what constitutes well 780-113(f)(2), § P.S. which classifies the juana “plant” purposes of the statute. marijuana if felony, manufacture of even as a appellant’s analyze to further ar We decline use, solely personal forth a and sets sentence, however, to guments related years, penalty maximum of five is unconstitu- judgment vacating are of because we tionally Appellant argues that overbroad. ruling on our that the lower sentence based statutory it scheme unfair because have the evidence suppressed court should manufacturing marijuana treats all anyAs we seized herein. conclusions would same, regardless of its purpose or sentencing appellant’s make on issues would addition, appel- manufactured. amount In dicta, is not ap therefore constitute mere it argues lant that the evidence was not suffi- engage time in a substan propriate at this to possessed cient prove twenty-one to that he analysis sentencing tive constitutional thus, plants; improp- live he was light medical neces appellant’s statutes erly 7508(a)(l)(ii), under sentenced section analysis sity issue. Such would more imposes mandatory year pris- which three twenty- appropriate case lower sentence where there at least are (51) fifty-one guilt upheld. one but less than live court’s determination of plants. necessity the issue such a of medical sentencing properly related to could be ad The lower court denied all of dressed. arguments concerning sentencing, without opinion, relying benefit of an but on Com vacated; Judgment of sentence denial of Burnsworth, monwealth reversed; jurisdiction suppress to motion Bumsworth, A.2d 883 defen relinquished. pled guilty dant manufacture possession marijua with intent to deliver BROSKY, J., dissenting opinion. files a na, mandatory but contested the minimum sentencing provisions as to the number BROSKY, Judge, dissenting. confiscated. The Su The Fourth Amendment preme language ruled that of sec protects the citizens of States Constitution 7508(a)(1) unambiguous, tion is clear and from unreasonable the United States language, “plant” under the term then, By implication searches and seizures. according should be construed its common government are not free from intru- citizens usage. legislature noted The court kinds, merely, all intru- sion of unreasonable drug trafficking, enacted the statute deter earth, If sion. there Paradise on kind growing marijuana. deter the Fur Nirvana, government there no would be ther, legislative held that clas the court “the Indeed, in such a intrusion of kind. treating growers marijuana sification dif may govern- there not be a need for world ferently possess from individuals who certain govern- at all. On the earth we know ment quantities marijuana, must be evaluated provide people of ments exist to for the analysis.” ‘rational basis’ provide land. Laws exist in an effort 669 A.2d at 889. court found that protect met, prevent “in chaos and to test in that order rational basis do evil. involving innocent from those who would penalties for ac creased violations marijuana plants tual to discour there is need for law enforcement enacted fact, or, law age production, deter authorities and activities. enforcement examples. Consequently, I regarding In lar to latter law search and constitutional seizure, closely is often did unreasonableness to find that the search would be inclined tied to The more intrusive the intrusiveness. rights under either violate agents law action of enforcement the more Pennsylvania Constitution. unreasonable the action is deemed to be. Of course, by intrusive action law enforcement is by illegal if preceded issuance of justification ensuring

warrant of the ac- present

tion. Since in the case the did prior conducting

not secure a warrant testing ques-

heat radiation the fundamental testing

tion before us whether or not such is enough require is intrusive issuance M. and Ruth Shiner C. SHINER Williard being my a warrant before conducted. In opinion it is not. Technological creating advances are diffi- (a/k/a Eugene Eugene P. P. MORIARTY questions regarding cult surveillance of crim- (a/k/a Weisman) Moriarty E. Jane Jane suspects. eavesdropping inal Electronic Weisman) Laffey, P.C., Nernberg E. & now, possible particularly if some Nernberg, and James R. A. Jr. Maurice Hollywood’s offerings representa- are movie Cases). (Two Cooney

tive, possible through it is to “see” walls ways building’s various to determine what a (a/k/a Appeal Eugene P. MORIARTY Nevertheless, occupants doing are inside. Weisman) Eugene E. and Jane Mor P. my opinion, conducting of the thermal (at 2196). Weisman) (a/k/a iarty E. Jane present detection test case did significant appel- LAFFEY, P.C., constitute a intrusion Appeal of NERNBERG & privacy. lant’s The test was conducted Jr., Nernberg, and James A. Maurice residence, ap- outside the it did not (at 2299). disturb Cooney R way pellant’s peace and it revealed Pennsylvania. Superior Court generalized minimal and which, itself, was not of a sensitive nature. Nov. 12, Argued 1997. my opinion the minimal invasion the test Filed Jan. public outweighed constitutes is inter- 19, 1998. Reargument Denied March est in law enforcement. effective majority provides analy- an extensive of fourth law in sis amendment an effort

persuade conducting readers violated fourth detection tests However,

amendment. no cases in this Com- yet.'

monwealth so as have held

initial this determination of isstie lies with panel. On end of the amend- one fourth spectrum

ment entries into homes or wire-

tapping be conducted without the is- cannot

suance of a the other warrant. On end of

spectrum, a “flyover” property of someone’s going

to observe or the what below

usage dogs drugs to sniff for out- trained space passed

side a rental constitutional

scrutiny.1 my opinion, the intrusiveness testing thermal detection more simi- Johnston, See, Oglialoro, Commonwealth 515 Pa. 530 A.2d 74 and Commonwealth v.

Case Details

Case Name: Commonwealth v. Gindlesperger

Court Name: Superior Court of Pennsylvania

Date Published: Dec 24, 1997

Citation: 706 A.2d 1216

Court Abbreviation: Pa. Super. Ct.