Com. v. Manuel, C. ( 2018 )

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2018 PA Super 232COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
CHARLES HOWARD MANUEL
Appellant No. 1048 MDA 2015
Appeal from the Judgment of Sentence entered June 3, 2015
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0007220-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TIMOTHY A. MANUEL
Appellant No. 1152 MDA 2015
Appeal from the Judgment of Sentence entered July 1, 2015
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0007222-2014
BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.
DISSENTING OPINION BY STABILE, J.: FILED AUGUST 23, 2018
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In this appeal from Appellant’s judgment of sentence, the sole issue
before this Court is whether the trial court erred in denying Appellant’s motion
to suppress. The Majority finds error based on its examination of the affidavit
of probable cause. Because I believe the Majority did not properly apply this
Court’s standard of review, and also believe the Majority improperly relied
upon case law pre-dating Illinois v. Gates, 462 U.S. 213 (1983), and
Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985), I respectfully dissent.
To put the issue before this Court in context, it is helpful to put the
process of issuing a warrant and a review of that issuance in general terms.
Simply stated, an affiant presents a sworn affidavit to the issuing authority,
in this case, a magisterial district judge (“MDJ”). The MDJ uses a common
sense approach to determine whether the information within the affidavit
establishes a fair probability that evidence of a crime will be found in a certain
location.
When the search authorized by the warrant results in the securing of
evidence of a crime, an aggrieved person can seek suppression of that
evidence. Giving deference to the issuing authority, the suppression court
assesses whether the MDJ had a substantial basis for concluding that probable
cause existed for issuance of the warrant. If the suppression court denies
suppression, this Court on appeal likewise affords deference to the issuing
authority. It is not the suppression court’s or this Court’s role to stand in the
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shoes of the issuing authority and make a de novo determination as to
issuance of the warrant.
Starting from the initial step of seeking a warrant, the application must
be supported by a written affidavit that complies with Pa.R.Crim.P. 206
(Contents of Application for Search Warrant).1 In accordance with
Pa.R.Crim.P. 203(B) (Requirements for Issuance):
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1 Rule 206 provides, in relevant part:
Each application for a search warrant shall be supported by written
affidavit(s) signed and sworn to or affirmed before an issuing
authority, which affidavit(s) shall:
(1) state the name and department, agency, or address of the
affiant;
(2) identify specifically the items or property to be searched for
and seized;
(3) name or describe with particularity the person or place to be
searched;
(4) identify the owner, occupant, or possessor of the place to be
searched;
(5) specify or describe the crime which has been or is being
committed; [and]
(6) set forth specifically the facts and circumstances which form
the basis for the affiant’s conclusion that there is probable cause
to believe that the items or property identified are evidence or the
fruit of a crime, or are contraband, or are expected to be otherwise
unlawfully possessed or subject to seizure, and that these items
or property are or are expected to be located on the particular
person or at the particular place described[.]
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No search warrant shall issue but upon probable cause supported
by one or more affidavits sworn to before the issuing authority in
person or using advanced communication technology. The issuing
authority, in determining whether probable cause has been
established, may not consider any evidence outside the affidavits.
Pa.R.Crim.P. 203(B).
“Probable cause exists where the facts and circumstances within the
affiant’s knowledge and of which he has reasonably trustworthy information
are sufficient in themselves to warrant a man of reasonable caution in the
belief that a search should be conducted.” Commonwealth v. Leed, ___
A.3d ___, 2018 WL 2452659, at *5 (Pa. June 1, 2018) (quoting
Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (internal
quotation marks and citation omitted)).
Examining the initial steps of issuing the warrant and the duty of the
reviewing court, our Supreme Court has explained:
It is well-established that a magistrate may not consider any
evidence outside of the affidavit to determine whether probable
cause exists to support a search warrant. See Pa.R.Crim.P.
203(B). This Court has held “[b]efore an issuing authority may
issue a constitutionally valid search warrant, he or she must be
furnished with information sufficient to persuade a reasonable
person that probable cause exists to conduct a search . . .” and
such information “must be viewed in a common sense,
nontechnical, ungrudging and positive manner.”
Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23, 25 (1992).
The United States Supreme Court has stated:
The task of the issuing magistrate is simply to make a
practical common-sense decision whether, given all the
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Pa.R.Crim.P. 206.
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circumstances set forth in the affidavit before him, . . . there
is a fair probability that contraband or evidence of a crime
will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had
a “substantial basis for . . . [concluding]” that probable
cause existed.
Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S.
257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). Furthermore,
probable cause is based on probability, not a prima facie case of
criminal activity; deference should be afforded the magistrate’s
finding of probable cause.
Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009).
In Commonwealth v. Ryerson, 817 A.2d 510 (Pa. Super. 2003),
this Court reiterated:
Our standard of review for an appeal denying a motion to suppress
is well settled.
In reviewing the decision of a suppression court, we must
ascertain whether the record supports the factual findings
of the suppression court and then determine the
reasonableness of the inferences and legal conclusions
drawn therefrom. We will consider only the evidence of the
Commonwealth and that defense evidence which remains
uncontradicted when read in the context of the entire
record.
Id. at 513 (quoting Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa.
Super. 1999)). Further,
[i]n reviewing an issuing authority’s decision to issue a warrant, a
suppression court must affirm unless the issuing authority had no
substantial basis for its decision. On appeal, [the appellate court]
affirms the decision of the suppression court unless it commits an
error of law or makes a factual finding without record support.
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Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013) (citing
Commonwealth v. Johnson, 42 A.3d 10017, 1031 (Pa. 2012) and
Commonwealth v. Briggs, 12 A.3d 291, 320 (Pa. 2011)).
The Majority states that we are “reviewing the magistrate’s decision to
issue [a search] warrant.” Majority Op. at 5. The Majority suggests that “our
duty is ‘to ensure that the magistrate had a substantial basis for concluding
that probable cause existed. In so doing, the reviewing court must accord
deference to the issuing authority’s probable cause determination, and must
view the information offered to establish probable cause in a common-sense,
non-technical manner.’” Id. (quoting Commonwealth v. Torres, 764 A.2d
532 (Pa. 2001)). However, after correctly quoting Torres, the Majority
ignores the directive to accord deference to the authority’s probable cause
determination and instead embarks on what amounts to a de novo review of
the MDJ’s issuance of the warrant.
This Court, like the suppression court, accords deference to the MDJ’s
finding of probable cause. See Commonwealth v. Rapak, 138 A.3d 666,
671 (Pa. Super. 2016) (citation omitted). However, “after-the-fact scrutiny
by courts of the sufficiency of an affidavit should not take the form of de novo
review. A magistrate’s determination of probable cause should be paid great
deference by reviewing courts.” Gates, 462 U.S. at 236 (quotations and
citation omitted). See also Leeds, 2018 WL 2452659, at *6 (“a magistrate’s
probable cause determination should receive deference from the reviewing
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courts. In keeping with the Fourth Amendment’s strong preference for
warrants, ‘courts should not invalidate . . . warrants by interpreting affidavits
in a hyper[-]technical, rather than a commonsense, manner.’”) (quoting
Gates, 462 U.S. at 236). Again, the suppression court must affirm unless
the issuing authority lacked any substantial basis for its decision and this Court
must affirm unless the suppression court committed error of law or made a
factual finding without record support. Lyons, 79 A.3d at 1064.
According to the affidavit of probable cause, the CI in this case provided
information to the police that in the previous 72 hours he 2 had been inside
Appellants’ home and witnessed the growing of multiple marijuana plants,
marijuana packaged for sale, and marijuana growing accessories such as
growing tools, soil, a humidifier and a grow tent. This was first-hand
information from a CI who was present and witnessed the criminal activity for
which Appellants were charged and convicted. This was not an anonymous
source, but rather a CI who previously provided reliable information to the
police that led to a felony arrest. This was information that led the police to
believe, based upon training and experience, that the premises were being
used to grow, store, package, and prepare marijuana for the purpose of
street-level sales.
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2The gender of the CI is unknown. As the Majority does, we shall refer to the
CI with male pronouns.
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Probable cause for the issuance of a search warrant exists when there
is a fair probability evidence of a crime will be found in a particular place.
Lyons, 79 A.3d at 1064. Viewing the totality of the circumstances here, the
issuing authority determined those facts established a fair probability that
evidence of a crime would be found in the premises to be searched.
The facts notwithstanding, the Majority nonetheless insists that to
establish probable cause, the police still must independently corroborate the
CI’s report of criminal activity. Our case law no longer supports such a
mechanical application of a test for probable cause, especially where the
informant’s information is based upon personal observation. See
Commonwealth v. Clark, 28 A.2d 1284, 1287-88 (Pa. 2011). Giving
deference to the issuing authority’s determination, it is my opinion that the
affidavit of probable cause supported issuance of a warrant by a neutral and
detached MDJ who found there was a fair probability evidence of a crime would
be found at Appellants’ residence.
In Clark, our Supreme Court provided an overview of the evolution of
the probable cause standard.
Prior to 1983, in order to establish probable cause for the issuance
of a search warrant based on information received from a
confidential informant, an affidavit of probable cause had to
satisfy a two-part test [, the Augilar-Spinelli test]. The test
required the affiant to set forth 1) the basis of the informant’s
knowledge; and 2) facts sufficient to establish an informant’s
veracity or reliability. Spinelli v. United States, 393 U.S. 410,
89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S.
108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In 1983, the U.S.
Supreme Court abandoned this “two-part” test and adopted a
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“totality of the circumstances” test. Illinois v. Gates, 462 U.S.
213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).[3] The Court
held that the Aguilar-Spinelli factors were no longer rigid,
independent requirements that had to be satisfied, but instead,
were merely relevant factors among the totality of circumstances
necessary to show probable cause.” Id.Id. at 1286-87 (emphasis added) (footnote omitted). Under Gates, “probable
cause is a fluid concept that turns on the assessment of probabilities in factual
contexts that are ‘not readily, or even usefully, reduced to a neat set of legal
rules.’” Id. at 1287-88; see also Rapak, 138 A.3d at 671. A totality of the
circumstances analysis “permits a balanced assessment of relative weights of
all the various indicia of reliability or unreliability of an informant’s tip.” Clark,
28 A.3d at 1288. Accordingly, “a CI’s veracity and basis of knowledge are but
factors among the totality of circumstances” to be considered. Id. Therefore,
post-Gates, “an informant’s tip may constitute probable cause where police
independently corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where the informant
himself participated in the criminal activity.” Id. (citations omitted) (emphasis
in original). An affidavit of probable cause is reviewed “in its entirety, giving
significance to each piece of information and balancing the relative weights of
all the various indicia of reliability (and unreliability) attending the tip.”
Commonwealth v. Wallace, 42 A.3d 1040, 1048-49 (Pa. 2012) (quoting
Massachusetts v. Upton, 466 U.S. 727, 732 (1984)). Therefore,
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3Our Supreme Court adopted the Gates standard in Commonwealth v.
Gray, 503 A.2d 921, 926 (Pa. 1985).
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[i]f, for example, a particular informant is known for the unusual
reliability of his predictions of certain types of criminal activities in
the locality, his failure, in a particular case, to thoroughly set forth
the basis of his knowledge surely should not serve as an absolute
bar to a finding of probable cause based on his tip. Likewise, if an
unquestionably honest citizen comes forward with a report of
criminal activity—which if fabricated would subject him to criminal
liability—we have found rigorous scrutiny of the basis of his
knowledge unnecessary. Conversely, even if we entertain
some doubt as to an informant’s motives, his explicit and
detailed description of alleged wrongdoing, along with a
statement that the event was observed firsthand, entitles
his tip to greater weight than might otherwise be the case.
Id. at 1051 (emphasis added) (quoting Gates, 462 U.S. at 233-34 (citations
and footnote omitted in original)).
The fluidity of the totality of the circumstances test under Gates does
not hamstring an issuing authority from finding probable cause to issue a
search warrant by insisting upon rigid criteria. Rather, an issuing authority
may find that probable cause exists for a search warrant based upon whatever
is presented in an affidavit of probable cause, so long as what is presented
contains sufficient indicia of reliability to demonstrate there is a fair probability
that contraband or evidence of a crime will be found in a particular place. See
Lyons, 79 A.3d at 1065. Corroboration of a confidential informant’s
information, although very useful, is no longer always required to satisfy the
dictates of probable cause. See Commonwealth v. Jones, 668 A.2d 114,
117 (Pa. 1995). “The suppression or exclusion of evidence is a ‘most extreme
remedy’ that can be justified only when it is necessary to vindicate
fundamental rights or to correct or deter police abuse.” Commonwealth v.
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Huntington, 924 A.2d 1252, 1259 (Pa. Super. 2007) (citing Commonwealth
v. Dennis, 618 A.2d 972, 981 (Pa. Super. 1992)).
To illustrate, in Jones, a post-Gates plurality decision, the defendant
was charged with drug offenses. Jones, 668 A.2d at 116. He filed a motion
to suppress evidence obtained pursuant to a search warrant. Id. As here,
the defendant alleged that the affidavit supporting probable cause contained
no corroboration to ensure its reliability. Id. The affidavit of probable cause
related that the police had information from a confidential informant who
personally observed the selling of drugs upon the searched premises, the
informant observed drug abusers coming and going from the premises from
3 p.m. to late evening, and the informant observed paraphernalia used to
prepare powder cocaine into crack cocaine inside the premises. Id. The
informant provided reliable information in the past leading to the arrest and
conviction of one person and the arrest of two other individuals whose cases
were still pending in court. Id. at 117. Rejecting the defendant’s argument
that the affidavit of probable cause required corroboration, the Supreme Court
emphasized that it is the totality of the circumstances test to be employed and
that this test does not require corroboration in every situation. Id. at 117-
18. “[R]equir[ing] corroboration in every situation would be contrary to the
purpose of the totality of circumstances test: allowing a flexible, common
sense approach to all circumstances of an affidavit.” Id. at 117 (citations
omitted). The Court found “that the information provided by the informant
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was not rumor or speculation, but was based upon direct, personal
observation.” Id. Therefore, the Court held the affidavit provided a sufficient
basis of knowledge and no corroboration was required. Id. at 117-18.
Here, as in Jones, the information provided by the CI was based upon
the CI’s personal observation of criminal activity within and upon Appellants’
premises reported to police within 72 hours of his observation. Prior
information provided by this CI allowed the police to make a felony arrest. In
concluding that the issued warrant lacked probable cause, the Majority entirely
ignores the CI’s first-hand observation of criminal activity that perhaps is the
most significant feature of the affidavit establishing probable cause in this
case. Further, the Majority does not discuss or give any credence to the affiant
officer’s expertise, which lent support to finding that Appellants’ use of the
premises was typical of a stash house for drug activity and street-level sales.
The Majority concludes that the CI’s reliability was not established
because he had provided only one tip leading to one still-pending prosecution.
However, as the Majority recognizes, our law does not establish any talismanic
number of prior instances of reporting reliable information to support probable
cause. Majority Op. at 12 (citing Clark, 28 A.3d at 1292). Nor does our law
require that the reliable information given in the past has resulted in
convictions, as opposed to arrests. It is well-settled “that prior arrests
attributed to information supplied by the informant need not result in
convictions to establish the credibility of the informant or the reliability of his
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information.” Commonwealth v. White, 457 A.2d 537, 539 (Pa. Super.
1983) (citations omitted). “[T]here is no logical reason for mandating that all
information lead to convictions before reliability is established.” Id. (quoting
Commonwealth v. Archer, 352 A.2d 483, 486 (Pa. Super. 1975)). See also
Huntington, 924 A.2d at 1255 (“In assessing an informant’s reliability, a
presumption exists that the information is trustworthy when it has been
provided by an identified witness”) (citation omitted); Commonwealth v.
Hayward, 756 A.2d 23, 36 (Pa. Super. 2000) (“Identified citizens who
report their observations of criminal activity to police are assumed to be
trustworthy in the absence of special circumstances.”) (quoting In the
Interest of S.D., 633 A.2d 172, 174 n.1 (Pa. Super. 1993) (emphasis in
original)). Cf. Commonwealth v. Gindlesperger, 706 A.2d 1216, 1226 (Pa.
Super. 1997) (see Majority Op. at 11-12) (no probable cause for issuance of
warrant based on statement in affidavit “that the informant’s prior information
‘will lead’ to arrests, rather than stating the customary ‘has in the past resulted
in’ arrests or convictions.”). Unlike the CI in Gindlesperger, whose
information “will lead” to arrests, the reliability of the CI here was established
by the fact he was not an anonymous source and prior information provided
by him had already led to a felony arrest.
In my opinion, the Majority’s analysis also improperly focuses upon what
is not in the affidavit as opposed to what is contained in the affidavit to support
probable cause. As noted above, the Majority ignores entirely the weight and
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significance the issuing authority placed upon the CI’s first-hand information
contained in the affidavit and instead faults the police for not taking every
opportunity to pursue “any meaningful follow-up” corroboration prior to
preparing the affidavit of probable cause. Majority Op. at 12.
Again, the police must support a request for a search warrant with an
affidavit of probable cause. See Pa.R.Crim.P. 206. “The police have probable
cause when the facts and circumstances within the officer’s knowledge are
sufficient to warrant a person of reasonable caution in the belief that an
offense has been or is being committed.” Commonwealth v. Harvard, 64
A.3d 690, 697 (Pa. Super. 2013) (quoting Commonwealth v. Hernandez,
935 A.2d 1275, 1284 (Pa. 2007)). Once presented with a request by police
for a search warrant, the issuing authority makes a practical, common sense
determination whether, based on the affidavit, there is a fair probability
evidence will be found in a particular place. Id. Employing the totality of the
circumstances test as outlined in Gates and adopted by our Supreme Court
in Gray, a balanced assessment of the indicia of reliability of an informant’s
tip can be made. See Gates, 462 U.S. at 238-39; Gray, 503 A.2d at 926.
“A magistrate's finding of probable cause must be based on facts described
within the four corners of the affidavit[,] and our scope of review of a
suppression court's ruling is confined primarily to questions of law." Harvard,
64 A.3d at 696 (quoting Commonwealth v. Smith, 784 A.2d 182, 184 (Pa.
Super. 2001) (citation omitted)).
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As explained above, a reviewing court does “not conduct a de novo
review of the issuing authority’s probable cause determination, but [] simply
determines whether or not there is substantial evidence in the record
supporting the decision to issue the warrant.” Torres, 764 A.2d at 540.
Nevertheless, the Majority improperly conducts a de novo review of the
information contained within the affidavit of probable cause. The Majority
concludes that the police should have corroborated, or are required to
corroborate substantially, the information in the affidavit of probable cause.
Here, the police were possessed of first-hand information from a reliable
CI suggesting to them—based upon their training and experience—that
evidence of criminal activity would be found upon Appellants’ premises. Short
of some suggestion that this CI was lying, the MDJ had no reason to doubt
that the eyewitness information from this CI, who previously provided reliable
information to police, was both credible and reliable. While more information
is no doubt better than less, the determination of probable cause is to be
based upon what is contained in the four corners of the affidavit and not
denied upon what else may have been submitted in support of an application.
Therefore, to the extent the Majority bases its decision upon what does not
appear in the affidavit of probable cause, as opposed to what is contained
therein, the Majority, in my opinion, has strayed from our standard of review.
Our standard of review merely requires that we determine if the record
supports the suppression court’s findings and if that court properly applied the
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law to the facts. Ryerson, 817 A.2d at 513. Viewing all information contained
within the affidavit of probable cause in a common-sense, non-technical
manner, the MDJ was justified in believing that there was a fair probability
that contraband or evidence of a crime would be found upon the premises. As
a reviewing court, I would conclude the suppression court did not commit legal
error in finding the MDJ had a substantial basis upon which to issue this search
warrant. Therefore, this Court should affirm. Lyons, 79 A.3d at 1064.
In its opinion, the Majority suggests Commonwealth v. Chatman, 418
A.2d 582 (Pa. Super. 1980), supports its analysis and conclusions. Majority
Op. at 14. I find the Majority’s reliance on Chatman misplaced and of no
precedential value. The decision in Chatman holds no precedential value, as
the decision was issued by an evenly divided en banc court that serves only
to affirm the result in the trial court. See Commonwealth v. Mosley, 114
A.3d 1072, 1082 n.11 (Pa. Super. 2015) (citing Commonwealth v. James,
427 A.2d 148 (Pa. 1981) (“when a judgment of sentence is affirmed by an
equally divided court . . . no precedent is established and the holding is not
binding on other cases.”). Moreover, Chatman was decided prior to our
Supreme Court’s 1985 Gray decision adopting Gates and its totality of the
circumstances test while discarding the Aguilar-Spinelli test upon which
Chatman relies. The issue in Chatman focused exclusively on the second
prong of the now discarded Aguilar-Spinelli test that required specific
findings on an informant’s credibility or reliability. Chatman, 418 A.2d at
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584. This Court evenly split on whether there was sufficient indicia of
reliability to satisfy the now discarded Aguilar-Spinelli test. Id. at 585.
In the end, despite acknowledging throughout the opinion that the
determination of whether probable cause has been established depends on
the totality of the circumstances, the Majority merely pays lip service to this
standard. Indeed, insisting on the insufficiency of the information addressing
the informant’s reliability or the lack of independent corroboration by police
as reasons for reversing the suppression court, the Majority de facto reverted
to the Aguilar-Spinelli test, which has been long abandoned by our courts.4
Properly applying our standard of review exposes the flaws in the
Majority’s finding of suppression court error. Here, the MDJ issued a warrant
based on the report of first-hand knowledge from the CI coupled with the
officer’s experience. Together they established a fair probability that evidence
of a crime would be found at Appellants’ residence. As explained above, the
“task of an issuing authority is simply to make a practical, commonsense
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4 In his dissent in Wallace, Justice McCaffery noted:
In Clark, we rejected the conclusion of the lower courts that the
affidavit was infirm because it contained no express statement
quantifying the informant’s reliability or basis of knowledge, and
stated that ‘[b]oth lower courts failed to look at the information
as a whole, but examined and considered individual factors in a
mechanical fashion, effectively nullifying the mandate to assess
the totality of the circumstances.’
Wallace, 42 A.3d at 1056 (McCaffery, J. dissenting) (citing Clark, 28 A.3d at
1289).
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decision whether . . . there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Harvard, 64 A.3d at 697 (quoting
Torres, 764 A.2d at 537). The suppression court then denied Appellants’
motion to suppress, properly according deference to the MDJ’s probable cause
determination and finding the MDJ had a substantial basis for concluding
probable cause existed. See id. (citing Torres, 764 A.2d at 537-38). It then
became incumbent on this Court to ascertain whether the record supports the
suppression court’s findings and to determine the reasonableness of the
inferences and legal conclusions drawn therefrom. Ryerson, 817 A.2d at 513.
Because this case turns on allegations of legal error, it is our charge to
determine if the suppression court properly applied the law to the facts. Id.Under our standard of review, we may reverse the suppression court’s
decision only if it “commits error of law or makes a factual finding without
record support.” Lyons, 79 A.3d at 1064. Finding neither, I would affirm the
suppression court’s order. Therefore, I dissent.
Judge Shogan, Judge Olson and Judge Murray join this Dissenting
Opinion.
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