Commonwealth v. Jones

ones concern- two issues3 are constitutional remaining subjects stance herein ing whether the Commonwealth Court’s protection rights, of its equal Thermal Pure to violation already addition, the commerce clause. As we have violates reverse on which to the Commonwealth provided grounds See decision, questions. Court’s we need not address these Krenzelak, Krenzelak v. A.2d 987 The order of the Commonwealth Court is reversed. ZAPPALA, J., or did not the consideration participate decision of this matter.

MONTEMURO, J., as a senior participates by designation 701(f). judge provided by as Rule of Judicial Administration Pennsylvania, Appellee, COMMONWEALTH JONES, Appellant. West Supreme Pennsylvania. Court of Sept. 1995.

Submitted Decided Nov. yet action taken on Thermal 3. We note DER's claims that no been jurisdiction request plenary exercise its over Pure's order, although DER's cease and desist that order and the Common- proceedings stayed, along a motion wealth Court thereon remain Residents to dismiss Thermal Pure's Petition for Re- filed Chester today view in the Commonwealth Court. Our decision in this matter claims, abey- rendering any proceedings moot still in resolves DER’s ance. Jones, Garshak, Appellant. West Robert J. Colville, Streily, Appellee. Michael W.

Robert E. ZAPPALA, CAPPY, FLAHERTY, NIX, C.J., and Before MONTEMURO, JJ. CASTILLE THE JUDGMENT ANNOUNCING OPINION THE COURT OF MONTEMURO, Justice. Court, Superior order of the from an appeal

This is an of the order A.2d 600 which reversed Pa.Super. Allegheny County granting Pleas of the Court of Common a seized Suppress pursuant Motion to evidence Appellant’s underlying whether the affidavit warrant. At issue is search as probable to establish cause the search warrant is sufficient Amendment of the Federal Constitu- by the Fourth required a substan- provides Because we find that the affidavit tion.1 cause, Superior affirm the we tial basis to establish Court. 2, 1993, Pittsburgh of City detectives with

On June Biddle warrant for 423 Department Police obtained search Street, The affidavit of Pittsburgh, Pennsylvania. reads:2 warrant was issued which the search hrs) (24 the above Detec- June past

Within sells, concerning have information tives received (which Cocaine, and is the base Marijhanna, Crack Cocaine Cocaine). from received this information form of Detectives informant, who from hereon will reliable confidential past Also, individ- the above described be referred to as C.I. actor, to as the actors. The fore uals will be referred the above was inside of mention C.I stated he/she (2) observed two ounce’s of Cocaine personal location and personal stated that form. C.I also powder she/he cocaine into prepare powder used to paraphernalia observed the bedroom inside of the crack cocaine inside of one of just personal furthermore stated house. C.I she/he Jones) (Kimba Liberty in the East area observed Marijhanna. plastic baggys sells cut off Mall area on for active has been stated that the above above C.I (2) knowledge. C.I two months to the above C.I past I, alleges of Article Section 8 of the Appellant also a violation However, Appellant to raise this Pennsylvania failed Constitution. present it for the first time before courts and cannot issue in the lower 302(a). Regardless, analysis our would be Court. Pa.R.A.P. Gray, Pennsylvania Commonwealth v. Constitution. See same under (1986). Alternatively, Appellant contends we A.2d 509 Pa. our state of circumstances test under abandon the should the lower Appellant has not raised this issue in Because constitution. courts, waived. it also is application quoted for the search verbatim from 2. The affidavit warrant, any changes this Court. or corrections without stated that around the evening, hours of 3PM to the late drugs abusers could be in coming observed apartment. above This C.I is knowledgeable ap- with the Cocaine, pearance Marijhanna, and Crack Cocaine. And how it is into ingested body. the human C.I states above actors would hide the out the through apart- drugs ment. The above C.I has been reliable in the past with the arrest and convention of the following people: J. Snoe on 7- Cocaine, poss 18-92 Crack years who received two probation from Judge Cargile Little. L. on 7-23-92 for poss Marij, who case is still pending the Courts of Allegheny County. poss J. Newsome on 7-30-92 for with Cocaine, intent to Del Crack pending who case is still Allegheny Courts of County. Due to the above reasons Det’s would like to secure a search warrant. warrant, police

While the were executing Appellant, Jones, West arrived and was informed by police that he subject would be to a pat-down search if he entered the entered, apartment. Jones and a pat-down search revealed a bag of crack person. cocaine his Jones was arrested and charged with three Substance, violations of the Controlled Drug, Device and Cosmetic Act: Possession with Intent Deliver,3 Substance,4 Possession of a Controlled and Posses- sion or Distribution of Small Amount.5

Jones filed an Omnibus Motion in the nature of a Motion to Suppress residence, the evidence obtained from the claiming no cause existed to search him. Jones also filed an Amended Omnibus Motion the nature of a Motion to Suppress the evidence obtained claiming that the search war- rant was invalid. The suppression court ordered suppres- sion of the crack cocaine found on Jones because it determined that the affidavit contained no corroboration which ensured its reliability, nor did it set forth specificity any dates when the informant observed cocaine the residence to be Slip Op. searched. at 12-13. appeal, Superior On 780-113(a)(30). § 3. 35 P.S. 780-113(a)(16). §

4. 35 P.S. 780-113(a)(31). §

5. 35 P.S. considered, one factor be only that corroboration held a of and upon totality the circumstances and that based affidavit, was the informant’s information fair of reading Slip Op. stale. at B-A. not evaluating probable cause standard for whether

The “totality of a warrant is the of for the issuance search exists Gates, in v. 462 set forth U.S. circumstances” test as Illinois 2317, (1983), 213, 103 and adopted 76 L.Ed.2d 527 S.Ct. 476, 484, in 509 Pa. 503 A.2d Gray, Commonwealth (1985). 921, “practical, is to make a com 925 A whether, all the circumstances set given decision mon-sense him, ‘veracity’ and including in affidavit before forth information, knowledge’ persons supplying hearsay ‘basis of of a that or evidence of probability there is a fair contraband 484, Id. at 503 A.2d particular place.” will found in a crime be 238-39, 925, Gates, at at quoting 462 U.S. S.Ct. 2332. at The information offered to establish sense, in manner and must be a common nontechnical viewed issuing magistrate. be to the Com deference must accorded Baker, 121, 126-27, 23, A.2d monwealth v. 532 Pa. duty reviewing of a court the decision is to ensure The concluding a for had substantial basis 127, at Id. at probable cause existed. allegation totality is that the circumstances Jones’ first requirement police lessen the corroboration test does not The by an informant. Commonwealth provided of information merely factor to be consid- that corroboration is one contends in lack of corroboration totality equation, ered not a se invalid. per does render search warrant do totality adopted

The of circumstances test to away rigid, determinations cause. precise Gates, require at 103 S.Ct. at 2329. To See contrary situation be every corroboration would totality allowing of circumstances test: purpose flexible, to all of an approach sense the circumstances common Gates, 2332-33; affidavit. See at at U.S. S.Ct. Gray, 509 Pa. at 503 A.2d at 926.6 Turning our attention to the of the circum case, stances of this begin by examining we the informant’s knowledge. basis of The affidavit the instant case states the informant personally observed: Kimba Jones selling drugs; drugs apartment; the Biddle Street coming abusers from apartment p.m. from 3 late evening; paraphernalia used to prepare powder cocaine into crack cocaine inside apartment. informa tfee tion provided by the informant is not a rumor or speculation, direct, but is personal based observation. Because the provides affidavit knowledge, sufficient basis of no corrobo required. ration is

As to the veracity, informant’s although recog Gates importance corroboration, nized the police it did so in the limited anonymous tips circumstance of veracity because the of persons supplying tips such is unknown. 462 at 237- U.S. 38, circumstance, 103 S.Ct. at 2331-32. In such corrobora tion provides a “substantial basis for the crediting hearsay.” 245, 2335, States, Id. at 103 S.Ct. at quoting Jones v. United 257, 725, 4 addition, U.S. 80 S.Ct. L.Ed.2d In an informant’s can veracity also be through established an assertation that the informant has given reliable information in the past. 1293, United States v. Laury, 985 F.2d 1312-13 (5th Cir.1993). Carlisle, In Commonwealth v. 348 Pa.Super. 96, (1985), aff'd, 36, (1987), A.2d 664 517 Pa. 534 A.2d 469 the court stated that reliability can be shown reliable and accurate or it prior tips, “may also be by indepen determined however, dent tip,” corroboration of the the affidavit “need not test, adoption 6. Even before the of the of circumstances corrob- always required. oration required was not All that was was that the underlying "be informed of some of the circumstances from which the informant concluded that the narcotics were where he were, they underlying claimed and some of the circumstances from which officer the concluded that the informant .. . was 'credible' or his Texas, 108, 114-15, Aguilar information ‘reliable.’" 378 U.S. 1514, 1509, accord, (1964); Spinelli S.Ct. 12 L.Ed.2d 723 v. United States, (1969); Gray, 89 S.Ct. 21 L.Ed.2d 637 503 A.2d 921. Id. at 100-01, at 666. all meet these criteria.” Therefore, veracity already been estab- if an informant’s reliable corroboration is not neces- through prior tips, lished sary. judice,

In the case sub presented from an affidavit information an informant who was containing information police provided known had reliable past. The affidavit states that the informant had specifically occasions, resulting in one convic- provided tips prior on three Furthermore, pending and two cases before courts. tion prior names of the arrestees provides the affidavit reliability of the infor- they dates were arrested. Since by the corrobo- already prior tips, mant had been established necessary. ration was not to the

Taking presented into account all circumstances including knowledge veracity the basis of magistrate, informant, that a to find we hold substantial basis existed probable cause.7 the affidavit insufficient

Jones next contends that it forth a when the informant made because fails set date An must forth sufficient facts his observations. affidavit set frame criminal occurred from which the time that activities when the can be determined so cause exists we have authorized issuance of a The Dissent contends is, perfor- solely reliability, past based search warrant mance, informant, process of a and in the have relieved the confidential obligation report. any of to corroborate an informant’s affiant case, holding. a our In this Such contention mischaracterizes current, knowledge contains the of informant's affidavit basis —his rely solely we not informant’s personal observations. Thus do reliability, sup- but assess the foundations of the information he reading Opinion plied. The of our is that when an affidavit correct informant, of a and the basis that contains information from reliable knowledge Further, provided, required. is is corroboration not there obligation if the never has been an corroborate information infor- present- sufficiently knowledge and is mant is reliable the source of his magistrate. a ed to assertion, "gutted” proba- Contrary we have not to the Dissent’s Rather, requirement. cause we have looked within the four corners ble test, affidavit, applied and deter- of circumstances concluding had a basis for mined substantial existed in this case. Edmunds, search is Commonwealth v. warrant issued. (1991). 374, 382, 887, However, 586 A.2d “staleness” not determined exactitude. rigorous of information must be Baker, 23, 28, 802, 513 Pa. Commonwealth v. (1986). activity likely A that criminal is have showing continued to the time of the issuance of a warrant renders up otherwise stale information viable. Commonwealth 141, (1981), 530, 536, 427 Stamps, citing 493 Pa. A.2d Harris, 2075, United States v. 579 n. 91 S.Ct. 2079 n. 29 L.Ed.2d 723 sense, non

Viewing the affidavit with a common eye technical leads to the conclusion that the affidavit evi an out of on-going drug operation emanating dences Street, Biddle and a substantial provides issuing basis warrant. twenty-four search The affidavit states that within hours, Jones, the detectives received information that Kimba Street, just” selling resident 423 Biddle “has been observed drugs. past affidavit also states that within the two informant, appearance months the who is familiar with the cocaine, marijuana, crack in they cocaine and how are body, into the had gested personally drugs observed apartment personally coming and had observed abusers apartment p.m. evening. from the from 3 to late Furthermore, parapherna the informant personally observed prepare powder lia used to cocaine into crack cocaine inside apartment. A appraisal common sense of the affidavit leads to the on-going drug operation occurring conclusion that an had been affidavit, very for the two months to the and that the prior drugs by apartment’s recent sales of a member of the house- drug activity occurring up hold indicated that the was still until the time warrant was hold that the search issued. We stale, affidavit not and the had a substan- was tial which to issue the search warrant.8 basis Superior

The Order of the affirmed. provided by Dissent information the informant 8. The contends that the stale, questions probability drugs two observed months ZAPPALA, J., concurs the result. FLAHERTY,

CAPPY, J., which dissenting opinion files J., joins.

MONTEMURO, J., by designation as a senior participates 701(f). as Rule judge provided by of Judicial Administration CAPPY, Justice, dissenting. today the issuance of a search majority

The authorizes hearsay of a solely upon warrant the uncorroborated based provided the informant has confidential informant because past. reaching In that conclusion reliable information stripped requirement cause majority thus, I dissent. any respectfully must meaning; of the state justify Probable cause sufficient to intrusion home, a citizen’s is understood privacy into the life best reasonable, rational determination a neutral as activity of criminal will detached evidence magistrate, issued, in the at the time the warrant is probably be found generally, or be searched. place, person, on the to See Baker, 121, 615 v. A.2d 23 Commonwealth of information sufficient question quantum The of what plagued judiciary. cause has Of long establish proba- are warrants where affidavit of particular concern information hearsay provided ble is based unnamed informants. ago Supreme with the United States thirty years

Over Texas, Aguilar 84 S.Ct. Court’s decisions application previously apartment be in the at the time of the would still suppliers drug because “move their merchandise search warrant quickly possible.” as as not, alleged, duty We have relieved the affiant of the to ascertain as overlooks the time for an informant's observations. Dissent frame " drug activity "has been for the informant's statement months; prior two not state that the informant’s affidavit does Additionally, "has two months old. the informant observations are selling drugs. together, these just” personally Read observed Jones compel provide sufficient the conclusion observations information apartment activity occurring still at the time the at was warrant issued. States, (1964) 393 1509, Spinelli and v. United L.Ed.2d (1969), 410, 584, 21 L.Ed.2d 637 a strict two- U.S. 89 S.Ct. probable cause when developed test was to establish pronged an upon information from premised the affidavit to search was that required test Aguilar/Spinelli unnamed informant. The informant’s “basis of knowl- issuing authority the ascertain the and, “veracity” “reliability,” the informant’s before edge,” 1983, In in Illinois v. issuing a warrant. with its decision (1983), Gates, the 76 L.Ed.2d 527 S.Ct. Aguilar/Spinelli the Supreme abrogated United States test, to stringent approach probable it with a less replaced cause, of the circumstances” test. totality referred to as “the probable adopted to cause determinations was approach This Pennsylvania Gray, the in Commonwealth v. by Courts totality adopted The of the circumstances test was to inter- ject process reviewing common sense into the affidavits of in- cause based information from unidentified probable upon In test the Gates abandoning Aguilar/Spinelli formants. the Court stated: that it to abandon the “two-pronged conclude is wiser

[W]e in by Aguilar Spinelli. test” established our decisions totality-of-the-circumstances In its we reaffirm the place analysis traditionally probable-cause that has informed de- magistrate The task of the is issuing simply terminations. whether, given to make a common-sense decision practical, him, in affidavit before all the circumstances set forth the including “veracity” knowledge” the and “basis of of the information, hearsay prob- there is a fair persons supplying of a crime found ability that contraband or evidence will be duty reviewing the of a court is particular place. And simply magistrate to ensure that had a “substantial ... concluding]” probable basis for cause existed. Gates, 238-39, 462 U.S. at 103 S.Ct. at 2332. [citations omitted, intent of the Gates Court was footnote omitted]. at the warrant as a encourage to look whole a conclusion that cause exists. order to reach However, of the circumstances test does not mean credible, or, if is even if informant is the informant

reliable, necessary dispense we can with the nexus between reliability informant’s the informant’s and the basis link knowledge. That nexus the crucial which reasonably before rely concluding must that evidence of sufficiently supports probability affidavit criminality be in the location be searched. presently will cause,1 present In the read case affidavit fashion, sense, us a common non-technieal tells that within sale “recently” last 24 an informant observed a hours Further, public on a street. generated appellant, informant, months, in the sometime within the last two drug various and appellant’s apartment drugs observed Also, within the last two months the informant paraphernalia. the coming appellant’s apart- observed from people The ment after and into the late hours. p.m. evening 3:00 confi- affiant believes the informant to be reliable because the in the provided dential informant has reliable information past.

Assuming past, that the informant has been reliable in the the could provided what information is from which magistrate reasonably that the is “recently” conclude observed sale drugs appellant’s related to the distant observation of the frame apartment? The time for the informant’s observations to that the quite only are The clear reference time is vague. of all the last informant told the affiant his observations within of interpretation 24 hours. There is no valid this affidavit a the infor- magistrate which reasonable could determine that truly mation therein is Is it probable contained not stale.2 two would drugs ago observed months still be sense appellant’s given the common awareness apartment of. drug suppliers most law officers that move their enforcement possible? merchandise as as The mere belief of this quickly Majority opinion page 422- 1. The entire affidavit is set forth in the at establishing necessity 2. The a frame for the observa- of time informant's See, activity probable tion of criminal is an essential element of cause. Edmunds, 586 A.2d 887 Commonwealth v. proba- not establish is rehable does affiant that the informant cause. ble of confidential that corroboration a

The majority position, informant unnecessary, when the informant’s information of strips concept the past, reliable the be proven the “totality the of circumstances” warrants under reviewing it was upon which of common sense very of the element no the majority approach, Under the founded. reviewing the affidavit function of longer serves the critical eye, whether independent neutral ascertain relying upon has been established reasonable basis of of the existence evidence regarding informant’s information only Not does criminality location to be searched. obligation to cor- any the affiant of majority position relieve information, of the the affiant is further relieved roborate to be is at location to ascertain that evidence duty be at the warrant is to searched the time executed. stamp than to rubber no other purpose now serves swears to cause whenever affiant the affidavit of the informant. past reliability today guts requirement majority As war- substance, issuance search and authorizes the any uncorroborated, hearsay solely untimely, rants based informants, I of unnamed dissent. statements FLAHERTY, J., joins dissenting opinion.

Case Details

Case Name: Commonwealth v. Jones

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 28, 1995

Citation: 668 A.2d 114

Court Abbreviation: Pa.