COMMONWEALTH of Pennsylvania v. Miguel REVIERA
Superior Court of Pennsylvania
September 8, 1989
563 A.2d 1252 | 387 Pa. Super. 196
Argued Jan. 18, 1989.
Petition for permission to appeal is denied. Judgment of sentence affirmed.
Dennis H. Eisman, Philadelphia, for appellee.
Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
BECK, Judge:
This case involves the question of the legality of an anticipatory search warrant; i.e., whether the police properly obtained a warrant to search a house based upon reliable information that controlled substances would be delivered to the house shortly after the warrant was issued. The trial court suppressed evidence seized by the police on the grounds that a warrant may not be issued in anticipation of
Our standard of appellate review is well established.
In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant‘s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. While we are bound by the lower court‘s findings of fact if supported by the record, we are not bound by the court‘s legal conclusions which are drawn from the facts of the case.
Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1351-54 (1988) (citations omitted). See also Commonwealth v. Toanone, 381 Pa.Super. 336, 340, 553 A.2d 998, 999 (1989).
The relevant facts are as follows. On September 11, 1986, an undercover police officer received a tip from an informant that a man known as Jose was storing and selling controlled substances at 3031 North Lawrence Street in Philadelphia. Prior information from the same informant had led to the arrest of three persons and the seizure of controlled substances within the past two months. Sometime after 5 P.M., the undercover officer arrived at 3031 North Lawrence Street, knocked on the door, and told Jose that he wished to buy an ounce of cocaine. Jose said that he was waiting for a delivery of cocaine that would take place at approximately 10 P.M. He directed the officer to return to the house after 10 P.M. at which time he could purchase cocaine for $1,300 an ounce. While Jose and the undercover agent were talking, several other persons approached Jose and asked him for cocaine; those persons were also told to return after 10 P.M. that evening.
Based upon this information, the officer swore out an affidavit of probable cause and requested a warrant to conduct a nighttime search for contraband on the premises at 3031 North Lawrence Street. This warrant was approved and issued by a bail commissioner at 9:50 P.M.
On February 8, 1988, the trial court granted a defense motion to suppress physical evidence seized during the search of the house. The court based its decision on the grounds that as of 9:50 P.M. on September 11, 1986, the moment that the warrant was issued, the package of controlled substances had not yet arrived at 3031 North Lawrence Street. The Commonwealth filed a timely appeal to this court. Since the Commonwealth has certified in good faith that the suppression order if given effect would substantially handicap or terminate its prosecution of the defendant, we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Slaton, 383 Pa.Super. 301, 308-309, 556 A.2d 1343, 1346 (1989) (en banc).
We must determine whether the trial court was correct in finding that the defendant‘s rights were violated by the issuance of what is commonly referred to as an “anticipatory search warrant“. An anticipatory search warrant is “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 1 W.R. LaFave, Search and Seizure § 3.7(c) at 94 (2d ed. 1987). The validity of such warrants is a question of first impression for the appellate courts of Pennsylvania. However, the great majority of state and federal courts that have considered the issue have approved the practice of
The fourth amendment states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Probable cause has sometimes been defined as facts or circumstances that would warrant a man of reasonable caution to believe “that an offense has been or is being committed.” Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967) (emphasis added). See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948). In Commonwealth v. Baker, the Pennsylvania Supreme Court recently described probable cause in slightly broader terms: “Probable cause exists when the magistrate is presented with evidence which would cause a reasonable man to believe that a crime is being, or is about to be committed.” 513 Pa. 23, 28, 518 A.2d 802, 805 (1986) (emphasis added). The conflict between these two standards for probable cause is more apparent than real. We interpret both definitions as indicating that a search warrant may be issued on the basis of reliable information that criminal activity is in progress and that after the warrant is issued the crime will be completed within the near future.
As the Pennsylvania Supreme Court noted in Commonwealth v. Shaw, “A search warrant is no general
In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), the Pennsylvania Supreme Court adopted the totality of the circumstances test for reviewing the issuance of search warrants. Under Gray:
The task of the issuing magistrate is simply to make a practical, commonsense 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.
Id., 509 Pa. at 484, 503 A.2d at 925 (quoting Illinois v. Gates, 462 U.S. 213 at 238-239, 103 S.Ct. 2317 at 2332, 76 L.Ed.2d 527 at 533 (1983) (emphasis added). Gray implies that the magistrate must focus upon whether evidence of crime will be discovered when the search is conducted. Significantly, the Gray Court did not require a finding that evidence of crime be present at the place to be searched as of the moment that the warrant is signed. We hold that a magistrate has authority to issue a search warrant where
In approving the use of anticipatory warrants, we recognize that “the entire thrust of the exclusionary rule and the cases that have applied it is to encourage the use of search warrants by law enforcement officials.” Alvidres v. Superior Court, 12 Cal.App.3d 575, 581, 90 Cal.Rptr. 682, 685 (1970). A search pursuant to a warrant is preferred over a warrantless search because in the former case it is a neutral magistrate who makes the critical determination of whether probable cause exists. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Commonwealth v. Gambit, 274 Pa.Super. 571, 418 A.2d 554 (1980), aff‘d, 501 Pa. 453, 462 A.2d 211 (1983). When the police receive reliable information that a shipment of contraband will arrive at a specific location, they are faced with a fast moving situation requiring them to decide between conducting a warrantless search or risking the delay needed to secure a warrant at the last possible moment. Permitting the issuance of an anticipatory warrant allows the police a reasonable degree of flexibility in responding to crime, while ensuring the oversight of a neutral authority who can act to protect the constitutional rights of criminal suspects. Accord Alvidres v. Superior Court, supra; People v. Glen, supra.
At this juncture, an additional observation is in order. Implicit in the question of whether an anticipatory warrant is valid is the issue of whether the warrant allows for a sufficient degree of judicial control over the circumstances under which a search will be conducted. We em-
We must now review the facts of the instant case in order to determine if the warrant was properly issued and the evidence legally seized. As we have noted, upon arriving at 3031 North Lawrence Street, an undercover officer attempted to purchase cocaine from a man who was a suspected participant in the drug selling operation. That man informed the officer, as well as others who were seeking to purchase cocaine, that a delivery of cocaine would be arriving at the premises at 10:00 P.M. that night. The officer then sought and obtained a warrant for a nighttime search of those premises. The warrant was signed by the issuing authority at 9:50 P.M. and executed at 10:20 P.M.
On these facts, we find that the evidence was sufficient to support the issuance of an anticipatory warrant. Here, the police were informed by a participant in the suspected crime that contraband would arrive at 10:00 P.M. that night. A statement by one who intends to participate in the crime that is the object of the search warrant ordinarily provides a sufficiently reliable basis for concluding that criminal activity will take place where and when he says it will.
We recognize that the warrant did not include any contingencies for its execution by police. There was no attempt to make the warrant contingent on surveillance by the police to corroborate in actual fact that drugs had arrived at 10:00 P.M.3 We find, however, that under the circumstances of this case the absence of such a contingency was not a fatal defect. As stated above, the issuing authority had strong evidence based upon statements made by a participant in the crime to an undercover officer that a delivery of cocaine would occur at 10 P.M. As the warrant was not issued until 9:50 P.M., there was little danger that the warrant would be executed prematurely. Cf. United States ex rel. Beal v. Skaff, 418 F.2d at 433 (no unreasonable danger of loss of judicial control over search where police could not have arrived at location to be searched in advance of scheduled delivery of contraband). We conclude that the warrant was properly approved and that the search conducted pursuant to the warrant was not illegal.
In his brief as appellee, Reviera also claims that he was arrested solely because he had protested the fact the police were conducting a search of his brother‘s house. Even assuming that the arrest was illegal, the evidence seized from 3031 North Lawrence Street could not be
Order reversed and case remanded for trial.
TAMILIA, J., files concurring opinion.
TAMILIA, Judge, concurring.
I join in the majority but write separately because I believe this case, though correctly decided, creates a void when considered in conjunction with Commonwealth v. Ogborne, 384 Pa.Super. 604, 559 A.2d 931 (1989). While I believe the majority in both cases would hold they can be distinguished, I view the underlying issues as being inseparable. Those issues may be simply stated in the following fashion:
Reviera Issue
May police who suspect a party of preparing to engage in criminal activity which has not culminated in the ultimate act be permitted to obtain a search warrant in anticipation of the act?
Yes, as answered by Reviera.
Ogborne Issue
When police arrest parties after a Terry stop resulting from surveillance which corroborates prior information which was insufficient to support an anticipatory search warrant, must the evidence obtained in the arrest be suppressed?
Yes, as answered by Ogborne.
In this case, the police received information from a reliable informant that appellant was dealing in drugs and
That type of situation is presented by the facts of Ogborne. In Ogborne, the officer received a call from an informant that appellant would arrive later that evening in a black Dodge automobile at the 100 block of Saude Avenue, Tinicain Township, and to his knowledge, he would have in his possession approximately ten bundles of the drug Phencyclidine (P.C.P.). The officer did not request a search warrant because he did not think he had probable cause. (In this regard, according to our analysis in Reviera, he was most likely correct.) After confirming the address, appellant‘s identity and the presence of a black Dodge at that location through local police, a surveillance was set up and at approximately 11:20 p.m., police observed a black Dodge enter Saude Avenue and turn into a private
The Ogborne majority held that the officer‘s reliance on a Terry1 investigation and search was impermissible and there was more than ample time to obtain a search warrant. What was lacking in Ogborne that was present in Reviera was the personal knowledge of the officer that drugs were being sold at the Reviera dwelling and the exact time the seller would have the drugs available for distribution. I believe this was crucial to our finding that an anticipatory warrant could issue and that it would not become a tool for a fishing expedition. Cases cited by Reviera in support of anticipatory warrants point out the need to make the execution of the warrant contingent on the occurrence of specific events or the passage of a specified period of time. Ogborne would have difficulty meeting this test. Also it is evident in Reviera that this is a case of first impression and the police officer in Ogborne did not have the benefit of our holding today that anticipatory warrants could be obtained. We reversed in Reviera because a learned trial judge believed the same.
Under these circumstances in Ogborne, the police did the best they could which was to set up a surveillance and when sufficient activity occurred to confirm their suspicions they acted to investigate further. An anticipatory search warrant which might have been obtained for the 100 block of Saude Avenue would not have been specific enough to search a car which pulled into a driveway at 115 Saude
This case and Ogborne should have been joined for argument as representing different points on the continuum of anticipatory search. Had this been done, I believe the Court en banc would have seen the need for a definitive statement which would permit issuance of both anticipatory warrants and the right to proceed as in Ogborne, when such a warrant is not viable.
Notes
Transcript at 4-5. We decline to adopt a per se rule concerning how far in advance of an anticipated arrival of contraband a warrant may be obtained. However, under Pennsylvania law, the issuing authority must “[d]irect that the search be executed within a specified period of time, not to exceed two (2) days from the time of issuance....”William, in passing sentence I am taking into consideration your pre-sentence investigation report and the seriousness of the charges and your criminal record and the possibility of your rehabilitation. And your drunken driving is serious and we are very concerned about it. And you know, your record reveals that you have been institutionalized before and you haven‘t had the ability to take advantage of the programming, especially the alcohol and drug treatment.
The conduct here—there is two separate cases where vehicles landed in the front lawn of properties in the south side area. And your blood alcohol was dangerously high. The criminal behavior that constitutes a serious threat and danger to the community, incarceration being—what I am going to do is incarcerate you and that is to serve as a punitive and a deterrent measure. I think that we have to—you‘re 27 years old now. You are going to have to grapple seriously with your drug and alcohol addiction problem, you know, for you to get straightened out once and for all so you can enjoy your life and become a good citizen.