COMMONWEALTH of Pennsylvania, Appellee, v. Robert STAMPS, Appellant.
Supreme Court of Pennsylvania.
Decided March 13, 1981.
427 A.2d 141 | 493 Pa. 530
Submitted Oct. 22, 1980.
NIX, J., did not participate in the consideration or decision of this case.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
Before O‘BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION
KAUFFMAN, Justice.
On February 24, 1976, appellant, Robert Stamps, was arrested and charged with possession and possession with intent to deliver a controlled substance.1 A search, pursuant to warrant, had uncovered twenty-five (25) packets of heroin in appellant‘s apartment. A timely motion to suppress the
On Thursday, February 19, 1976, a reliable informant4 told Police Officer Victor Marcone (1) that “in the past 10 days” he had been inside appellant‘s second floor apartment at 1211 South 47th Street in Philadelphia; (2) that he had observed appellant with approximately ten bundles of heroin in his possession; (3) that appellant told him he was going to sell the “stuff” in one-half hour for $800.00 to a person named “Roy;” (4) that he also had seen appellant on another occasion leave his apartment with three bundles of heroin to sell to two different persons; (5) that customers “always” called appellant‘s telephone number before visiting his apartment to purchase drugs.5
Thereafter, on Monday, February 23, 1976 from 11:20 a. m. to 11:50 a. m., police conducted a surveillance of the building in which appellant‘s apartment was located. At that time, they observed two persons enter the building and leave after a short period. On the basis of an affidavit prepared by Officer Marcone immediately after conducting
After being admitted by appellant, Officer Marcone proceeded upstairs to appellant‘s second floor apartment, where he discovered a second male sitting in the kitchen staring into an open oven.6 Another man then walked down from the third floor apartment into the kitchen of appellant‘s apartment. Thereafter, Officer Marcone searched the apartment and found twenty-five packets of heroin under the cushion of a couch located in the “combination parlor-bedroom.”7 He also discovered a telephone bill and an electric bill for the apartment addressed to appellant. After he was arrested, appellant, who kept his clothing in the kitchen and in the parlor-bedroom, was permitted to dress.
Appellant here raises two issues: (1) whether the affidavit prepared by Officer Marcone was based on stale information which could not support a finding of probable cause, and (2) whether the evidence adduced at trial was sufficient to establish appellant‘s possession of contraband in light of the presence of other persons in the apartment at the time of the search.
I
The probable cause portion of the affidavit provided:
I Plcm. # 4334 having received information from a reliable informant 2-19/76 that he was inside of the above location in the past 10 days and did see [Robert Stamps] have in his possession approx. 10 bundles of alleged Heroin which he stated to the informant was for one person named Roy who was coming over in a half an hour to buy
the stuff for $800.00. This informant stated that there were approx. five other person [sic] in this apt. and that he would not be shore [sic] who to blame if it link [sic] out to the cops about this certain transaction. The informant also stated that he on another date seen the above named person called (BROTHER ROB) leave this apt. with three bundles of heroin on his possession and was going to the bar to sell them to two different persons. This informant also stated that this person [sic] phone number was 349-8533 and that before any of the aboves [sic] customers come over they always call. This informant in the past two years has given me information which has resulted in a number of arrests with evidence confiscated on all arrests. A check with the phone company of the number supplied to me by this informant was made and found it to be in the name of the above living at the above location. On 2/23/76 from approx. 11:20 a. m. to 11:50 a. m. a surveillance was conducted at the above location and two persons were seen entering and leaving this location after staying only a short period of time, one of the persons being a white male. Due to the information received from this reliable informant along with a phone check an [sic] a surveillance I believe that the above named person is selling and storing large quantities of Heroin from inside of his apartment.
Appellant contends that the informant‘s observation of criminal conduct no more than fourteen days prior to the issuance of the warrant was too remote to support a finding of probable cause at time of issuance, and that the evidence discovered pursuant to the warrant therefore should have been suppressed. We disagree.
It is well settled that for a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance.8 This
Courts have been reluctant, however, to set a hard and fast rule as to what constitutes staleness; such a determination must be made on a case by case basis.10 Mere lapse of time between discovery of criminal activity and issuance of the warrant will not necessarily dissipate probable cause; a showing that the criminal activity is likely to have continued up to the time of issuance of the warrant will render otherwise stale information viable. United States v. Harris, 403 U.S. 573, 579 n.2, 91 S.Ct. 2075, 2079 n.2, 29 L.Ed.2d 723 (1971); see Tolbert, 492 Pa. at 579, 424 A.2d at 1344; Eazer, 455 Pa. at 324, 312 A.2d at 400; Shaw, 444 Pa. at 113-14, 281 A.2d at 899.
In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), an affidavit similar to the one now before us declared that a reliable informant had purchased
In determining whether the affidavit in question was sufficient to establish probable cause, we recognize that affidavits supporting search warrants normally are prepared “. . . by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). They therefore should be interpreted in a “common sense and realistic” fashion rather than in a hypertechnical manner. Ventresca, 380 U.S. at 108, 85 S.Ct. at 745; Commonwealth v. Greco, 465 Pa. 400, 406, 350 A.2d 826, 829 (1976); Commonwealth v. Matthews, 446 Pa. 65, 71, 285 A.2d 510, 513 (1971). Moreover, the probable cause determination of the issuing authority must be accorded great deference. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Ventresca, 380 U.S. at 108-09, 85 S.Ct. at 745-46; see Matthews, 446 Pa. at 71, 285 A.2d at 513.
Here, the affidavit reported that the informant had been inside appellant‘s apartment “in the past 10 days” and had
II
Relying on our decisions in Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); and Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), appellant next contends that since two other parties present in his apartment at the time of the search had equal access to the area where the contraband was found, the evidence at trial was insufficient to convict him of illegal possession of heroin. We recognize that “. . . the fact of possession loses all persuasiveness if persons other than the accused had equal access . . . to the place in which the property was discovered . . . .” Fortune, 456 Pa. at 369, 318 A.2d at 329, Davis, 444 Pa. at 16, 280 A.2d at 121. Here, however, we disagree with appellant‘s assertion that two other parties had equal access
Our standard of review in determining the sufficiency of the evidence is:
whether, accepting as true all of the evidence, be it direct or circumstantial, and all reasonable inferences arising therefrom upon which, if believed, the trier of facts could properly have based the verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. (Citations omitted)
Commonwealth v. Malone, 444 Pa. 397, 398, 281 A.2d 866, 867 (1971). Considered in this light, we conclude that the evidence and the “reasonable inferences arising therefrom,” were sufficient to prove beyond a reasonable doubt that appellant, as the sole tenant of the apartment, was in constructive possession of the heroin hidden under a sofa cushion in the parlor-bedroom of that apartment. The cases cited by appellant are inapposite.
In Fortune, supra, we reversed the conviction of the owner and resident of a two-story private home for illegal possession of narcotic drugs when she was upstairs at the time police entered and four other persons were downstairs with greater access to the kitchen floor area where the drugs were found. As in Fortune, the accused in the instant case was the sole resident of the premises where the contraband was discovered. The similarity, however, ends there.
In Davis, supra, we reversed the defendant‘s conviction for illegal possession of stolen goods where they were found in a locked cupboard in the basement of an apartment building in which his mistress lived. Unlike the instant case, there was no evidence that the defendant had any type of possessory interest in the building, nor was there any evidence that he had access to the locked cupboard in the basement.
Likewise, in Tirpak, supra, the convictions of four defendants were reversed where none of them had a possessory interest in the premises and the area in which drugs were found was equally accessible to other persons present at a party.
The order of the Superior Court is affirmed.
NIX, J., concurs in the results.
O‘BRIEN, C. J., and ROBERTS, J., filed dissenting opinions.
O‘BRIEN, Chief Justice, dissenting.
The majority today incorrectly, in my view, holds that the evidence presented at trial was sufficient to sustain appellant‘s conviction for possession of a controlled substance. As
In Commonwealth v. Fortune, 456 Pa. 365, 368-69, 318 A.2d 327, 328 (1974), we stated:
“When the illegal possession of contraband is charged, the evidence must establish that the appellant had a conscious domain over the contraband. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). The illegal possession of narcotic drugs is a crime which ‘by its very nature is unique to the individual. By definition, the possessor is the only person who could commit the crime. Guilt by association . . . is unacceptable.’ Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). See also Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). The presence of one person in a group of people at the scene ‘is not of critical import in drug possession cases.’ Commonwealth v. Reece, [supra, 437 Pa. at 427, 263 A.2d at 466]. See also Commonwealth v. Tirpak [supra]. ‘[T]he fact of possession loses all persuasiveness if persons other than the accused had equal access . . . to the place in which the property was discovered . . .’ Commonwealth v. Davis, supra at 16, 280 A.2d at 121, quoting 9 J. Wigmore, Evidence § 2513 (3d ed. 1940). . . .” (Emphasis added.)
Instantly, appellant was not alone in his two room apartment; rather, the record indicates that another individual was in the kitchen. The police officer himself testified that he waited approximately two and one-half minutes after announcing his presence before he was admitted into the apartment. The contraband was discovered under a cushion in the “parlor bedroom.” The proposed distinctions offered by the majority to the above cited cases are not, in my view, persuasive.
While it is true that appellant was the lessee of the apartment where the heroin was seized, our law requires more. Thus, in my view, had the heroin been discovered in a place that was peculiarly accessible to appellant, such as in a
ROBERTS, Justice, dissenting.
For the reasons set forth in this Court‘s recent decision in Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981), reaffirming the constitutional requirement that the affidavit supporting a search warrant be based upon fresh information, I would reverse.
Contrary to the assertion of Mr. Justice Kauffman, the two incidents mentioned in the search warrant affidavit clearly do not reveal “on-going possession” of heroin by appellant up to the time the search warrant was issued. The Commonwealth has utterly failed to establish that these two independent occasions of criminal activity at a prior time are connected to continuous criminal activity. These two incidents are: (1) at some time at least four days, and perhaps as many as fourteen days, prior to the execution of the search warrant an informant observed “10 bundles of alleged Heroin” in appellant‘s apartment which were to be sold and removed within half an hour of the informant‘s observation; and (2) on an unspecified date, this same informant saw appellant leave appellant‘s apartment with three bundles of heroin to sell to two individuals at a bar.
The remaining facts alleged in the affidavit in no respect link these two occasions of alleged possession of heroin to a continuous period of possession. These facts simply are: (1) the phone number alleged by the informant to be appellant‘s was in fact appellant‘s phone number; (2) customers “always call” the number before arriving at appellant‘s home (no specific incidents of customer calls are alleged); and (3)
Where no evidence of present criminal activity is offered to the issuing authority, the issuance of a search warrant is constitutionally invalid because, without such information, it is impossible for a neutral and detached magistrate to determine whether there is probable cause to search. Commonwealth v. Tolbert, supra, 492 Pa. at 580, 424 A.2d at 1344. Commonwealth v. Eazer, 455 Pa. 320, 325, 312 A.2d 398, 400 (1973). As this Court stated, “[a] search warrant must issue, if at all, upon an existing cause. A search warrant is no general arm for ferreting out crime, but a special proceeding, based on present cause, hedged by strict constitutional provisions. . . .” Commonwealth v. Shaw, 444 Pa. 110, 114, 281 A.2d 897, 899 (1971) quoting People v. Chippewa Circuit Judge, 226 Mich. 326, 328, 197 N.W. 539, 540 (1924). Accord, Commonwealth v. McCants, 450 Pa. 245, 249, 299 A.2d 283, 286 (1973).
The opinion of Mr. Justice Kauffman relies on United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality). Contrary to its assertion, this case did not involve an affidavit “similar to the one now before us.” There, the affidavit alleged not only that illegal liquor sales had occurred “within the past two weeks” but also that “these recent purchases were part of a history of purchases over a two-year period.” Id. at 579, 91 S.Ct. at 2079-80. Similarly, in United States v. Johnson, 461 F.2d 285 (10th Cir. 1972), also relied upon in the opinion, the affidavit revealed a recent four-month history of illegal sales of non-tax-paid liquor. No similar history establishing a continuity of criminal activity is contained in the affidavit before this Court.
“[t]here are times when the facts and circumstances presented to the magistrate remain unchanged long after the warrant is issued. However, once it is recognized that it is possible for the facts and circumstances to change with the passing of time, a redetermination of probable cause is constitutionally required.”
Id., 450 Pa. at 249, 299 A.2d at 286 (emphasis in original). Accord, Commonwealth v. Eazer, supra, 455 Pa. at 326, 312 A.2d at 401; Commonwealth v. Shaw, supra, 444 Pa. at 113-14, 281 A.2d at 899. As this Court observed,
“[i]t is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed’ [Rosencranz v. United States, 356 F.2d 310, 317 (1st Cir. 1966)] (emphasis added).”
Commonwealth v. Simmons, supra, 450 Pa. at 631, 301 A.2d at 823.
In the absence of facts establishing the required element of continuity, the affidavit submitted to the magistrate did not provide probable cause to believe that narcotics were then on appellant‘s premises. Accordingly, the trial court erred in failing to grant appellant‘s motion to suppress the evidence seized pursuant to a constitutionally deficient warrant. To conclude otherwise is to permit the circumvention
The judgment of sentence should be reversed and a new trial granted.