Com. v. Harlan, J. , 208 A.3d 497 ( 2019 )

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2019 PA Super 124COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMY TODD HARLAN :
:
Appellant : No. 1592 MDA 2018
Appeal from the Judgment of Sentence Entered August 24, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003153-2017
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
OPINION BY MURRAY, J.: FILED APRIL 23, 2019
Jeremy Todd Harlan (Appellant) appeals pro se1 from the judgment of
sentence imposed after the trial court convicted him of crimes committed
under The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§
780-101 to 780-144, and The Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-
____________________________________________
1 Appellant was represented by counsel during the trial court proceedings and
at sentencing on August 24, 2018. On August 31, 2018, Appellant filed a
petition to proceed pro se on appeal. On September 27, 2018, the trial court
conducted a hearing pursuant to Commonwealth v. Grazier 713 A.2d 81(Pa. 1998), after which it entered an order granting Appellant’s request based
on a finding that Appellant’s decision to proceed pro se was “knowing and
voluntary.” Order, 9/27/18. The court also granted Appellant’s trial counsel
“leave to withdraw as counsel of record.” Id.J-S16024-19
6128.2 On appeal, Appellant challenges the denial of his suppression motion.
After careful consideration, we affirm.
Appellant summarizes his argument as follows:
The affidavit of probable cause contained hearsay and
inadmissible and unsubstantiated double-hearsay with no
eyewitnesses, no named or reliable and trustworthy informants;
provided no factual basis from which to determine when the
unnamed informants allegedly obtained their information; and
was insufficiently corroborated both by the informants and by an
independent police investigation. Based on these factual defects,
the affidavit of probable cause was insufficient to justify a
probable cause determination and the issuance of a search
warrant.
Appellant’s Brief at 4.
The Commonwealth counters that “search warrants are able to rely on
hearsay to establish probable cause as long as the hearsay is reliable,” and
“the information between the two anonymous sources was corroborated by
each other as well as with [an] independent police investigation.”
Commonwealth Brief at 6. The Commonwealth further refutes Appellant’s
assertion of “stale” information, stating that “information was given using the
present tense and the illegal activity of growing marijuana is not something
that happens quickly.” Id.____________________________________________
2 Appellant was convicted of two counts of possession of a controlled
substance with intent to deliver and one count of manufacturing a controlled
substance, 35 P.S. § 780-113(a)(30); one count of persons not to possess a
firearm, 18 Pa.C.S.A. § 6105(a); one count of altering or obliterating marks
of identification, 18 Pa.C.S.A. § 6117(a); and one count of possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32).
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On appeal, we review the trial court’s denial of Appellant’s suppression
motion mindful of the following:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa. Super. 2016)
(citation omitted).
At the commencement of the hearing on Appellant’s suppression
motion, the suppression court confirmed:
THE COURT: So the warrant basically is the whole issue?
[DEFENSE COUNSEL]: Correct.
THE COURT: Do you understand that to be the issue,
[Commonwealth]?
[COMMONWEALTH]: Yes, Your Honor.
N.T., 11/27/17, at 3.
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The Commonwealth presented one witness, Manheim Borough Police
Detective Anthony Martelle, who testified to being a member of the Lancaster
County Drug Task Force and being the “case officer” who authored and
executed the search warrant for the home located at 1963 Cider Press Road
in Manheim. Id. at 5-6. Detective Martelle stated that he applied for and
executed the warrant on the same day, June 8, 2017. Id. at 9. The warrant
was entered without objection as Commonwealth Exhibit 1. Id. at 10.
Detective Martelle testified that when he executed the search warrant,
he found property belonging to Appellant, who resided in the home with
another individual, David Brandt. Id. at 6-7. Detective Martelle provided
Appellant with his Miranda rights “at least twice that day before we questioned
him.” Id. at 8. After the search, Appellant gave a statement. Id.
Appellant did not present any witnesses. Rather, defense counsel
argued that paragraphs 3 and 8 of the warrant, referencing a “confidential
informant” and a “concerned citizen,” were “really both anonymous tips
because there’s no indication of reliability.” N.T., 11/27/17, at 11. Counsel
continued:
[T]here is no time frame listed . . . as to when those individuals
received the information; and I believe that’s fatal because then
all you have is basically two anonymous tips that the person at
that residence – one containing double hearsay – is selling
marijuana or has marijuana.
Then we have to look to the rest of the warrant to see
whether there’s any independent corroboration of criminal activity
and there simply is none.
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Id.
The trial court stated that “[t]hese type of issues are particularly fact
sensitive, and [involve] what a common sense reading of the information here
would convey to the magisterial district judge who signed the warrant.” N.T.,
11/27/17, at 13-14. The court then suggested that the parties brief the issue.
Appellant and the Commonwealth filed briefs on December 18, 2017 and
December 29, 2017, respectively. On March 8, 2018, the court issued an
opinion and order denying Appellant’s suppression motion. The case
proceeded to a bench trial, after which Appellant was convicted of the
aforementioned drug and firearms crimes.3 On August 24, 2018, the trial
court sentenced Appellant to four to ten years of incarceration. This timely
appeal followed.
On appeal, Appellant assails the “reliability and trustworthiness of the
unnamed informant” referenced in the affidavit of probable cause supporting
the search warrant. Appellant’s Brief at 9. Appellant claims that the court’s
citation to “present tense terminology” has “little to no merit in a case where
unnamed, anonymous sources with unprovable reliability and trustworthiness
are relaying hearsay and double-hearsay and there are no eyewitnesses to
the alleged criminal conduct.” Id. at 22-23. Appellant concludes:
____________________________________________
3 The Honorable James P. Cullen presided at the suppression hearing and
denied Appellant’s suppression motion; the Honorable Howard F. Knisely
presided at Appellant’s bench trial.
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The affidavit of probable cause in the instant case is defective and
fatal, the foundation of which is an unsubstantiated and
inadmissible double-hearsay allegation from unnamed and
anonymous sources, which was uncorroborated by the sources,
and insufficiently and inappropriately corroborated by
independent police investigation. There is no evidence that these
unknown individuals exist, or that the allegations were ever made.
There are no facts to indicate when any of these unnamed and
anonymous sources obtained the relayed hearsay and double-
hearsay. There are no eyewitnesses to any criminal conduct. The
basis of knowledge for the unidentified individual allegedly
supplying the unnamed informant with the information is
unknown. All of these unnamed individuals are unable to be
proven reliable and trustworthy, and there is no indication that
that any of them have provided accurate information in the past.
Id. at 31-32.
Procedural Defect
Preliminarily, we note that we cannot review the merits of Appellant’s
claim without reviewing the search warrant and supporting affidavit of
probable cause (affidavit). Although Appellant has included the affidavit in his
reproduced record, the affidavit is absent from the certified record. We
recognize:
The fundamental tool for appellate review is the official record of
the events that occurred in the trial court.
***
. . . Our law is unequivocal that the responsibility rests upon the
appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc)
(citations omitted).
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Our review further reveals that the clerk of courts failed to mail to
Appellant a copy of the record documents in contravention of Pennsylvania
Rule of Appellate Procedure 1931(d). The Rule instructs:
Service of the list of record documents.--The clerk of the
lower court shall, at the time of the transmittal of the record to
the appellate court, mail a copy of the list of record documents to
all counsel of record, or if unrepresented by counsel, to the parties
at the address they have provided to the clerk. The clerk shall
note on the docket the giving of such notice.
Pa.R.A.P. 1931(d).
We have stated that “[t]he purpose of Rule 1931(d) is to assist
appellants by providing notice as to what was transmitted so that remedial
action can be taken if necessary. Rule 1931(d) does not absolve the appellant
from the duty to see that this Court receives all documentation necessary to
substantively address the claims raised on appeal.” Commonwealth v.
Bongiorno, 905 A.2d 998, 1001 (Pa. Super. 2006) (en banc) (emphasis in
original). Nonetheless, our Supreme Court has determined that when a
document is “contained only within the Reproduced Record[, but] the accuracy
of the reproduction has not been disputed . . . we may consider it.”
Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012) (citing
Commonwealth v. Killen, 680 A.2d 851, 852 n. 5 (Pa. 1996) (“As a general
rule, matters not part of the record will not be considered on appeal,” but the
Court would “overlook this procedural defect” where, inter alia, appellant
included “the statements in the reproduced record, [and] the Commonwealth
has not objected.”).
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Consonant with the above authority, and considering the particular
circumstances of this case, we will “overlook the procedural defect,” i.e., the
omission of the affidavit from the certified record. Accordingly, we review
Appellant’s claim in light of the undisputed and identical representations of
the affidavit in Appellant’s reproduced record, the Commonwealth’s verbatim
recitation of paragraphs 3 through 9 of the affidavit in its brief, and likewise,
the suppression court’s references to the affidavit in its opinion. See
Appellant’s Reproduced Record at 3-6 (unpaginated); Commonwealth Brief at
3-5; Suppression Court Opinion, 3/8/18, at 3-4, 10-11.
Affidavit Sufficiency
The copy of the affidavit supplied by Appellant in his reproduced record
– with the form title “Commonwealth of Pennsylvania, Application for Search
Warrant and Authorization” – contains at the top the typed words: “County
of Lancaster District Attorney 00010”; these typed words indicate that the
document is a copy of the affidavit the Commonwealth introduced at the
suppression hearing as Exhibit 1. The body of the 4-page document bears the
affiant signatures of Detective Martelle, and the signature of the magisterial
district judge as the “issuing authority.”4 In addition, each page bears a seal
____________________________________________
4Magisterial District Judges were known as “Justices of the Peace” prior to Act
53 of 1978, when the title became “District Justice.” Thereafter, pursuant to
Act 207 of 2004, the title became “Magisterial District Judge.” See also
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that reads: “Commonwealth of Pennsylvania, Lancaster County, Magisterial
District Judge 02-2-05.”
The affidavit further indicates that David Brandt resides at 1963 Cider
Press Road. Mr. Brandt is named in the affidavit; although he resided with
Mr. Brandt, Appellant is not named. As at the suppression hearing, Appellant
in his appellate argument focuses on paragraphs 3 and 8 of the affidavit.
Paragraph 3 references the confidential informant, who learned about the
marijuana growing operation “from an individual who resided in the
residence,” and paragraph 8 references the concerned citizen, “within the
community of Manheim,” who told Officer Martelle that a male who “lives on
Cider Press Road . . . is in the business of growing marijuana.”
The affidavit contains a total of ten paragraphs which read:
1. Your Affiant is currently employed with Manheim Borough Police
Department since January 1, 2012. During this time, your Affiant
investigated drug cases involving Marijuana, Synthetic Marijuana,
Heroin, LSD, Prescription Medications and Methamphetamine.
These investigations led to the filing of both felony and
misdemeanor violations of the PA Controlled, Substance, Drug,
Device and Cosmetic Act. Your Affiant graduated from Mansfield
University with an Associate’s Degree in 2008 and later from Lock
Haven University with a Bachelor’s Degree in 2010, both in
Criminal Justice Administration. You Affiant is a 2011 graduate of
the Mansfield Police Academy. Your Affiant was employed by the
Lycoming County Prison from November 2010 to December 2011
as a Corrections Officer, which included but was not limited to,
____________________________________________
Pennsylvania Supreme Court Order dated January 6, 2005, effective January
29, 2005. In Pennsylvania, Magistrates exist only in the federal court system.
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maintaining a secure facility by assessing prisoners verbal and
non-verbal cues that may lead to violence. Your Affiant has
attended several police schools and seminars including
Understanding the Sovereign Citizen, Hotel Motel Parcel
Interdiction, Drug Identification, Hidden Compartments, 2015 Pa
Narcotics Officers’ Association Conference, 2015 Magloclen 22nd
Narcotic Investigators Conference, U.S. DEA Operation Trojan
Horse Heroin and Prescription Drug Investigations Course, and
Outlaw Motorcycle Gangs and the Narcotics Connection. Your
Affiant was assigned full time to the Lancaster County Drug Task
Force on January 5, 2015, and has taken part in excess of two
hundred (200) investigations, either as the case officer or in
assisting other Detectives.
2. Common sense and common knowledge dictate that those who
engage in criminal Conduct attempt to hide their conduct from the
authorities. Possessors and sellers of illegal drugs, are known
through personal experience and training, and the experience of
others in the law enforcement community to do (but not limited
to) the following:
a. Frequently maintain on hand large amounts of cash that
represents proceeds as well as money to finance their ongoing,
drug business.
b. Drug traffickers often maintain firearms or other weapons
within their residences/vehicles or on their person to protect and
secure drugs, as well as, drug proceeds.
c. Maintain safety deposit boxes to secret proceeds as well as
controlled substances and/or documents.
d. Maintain books, records, receipts, notes, ledgers and the like,
airline tickets, money orders and other documents relating to the
sale, transportation, accounting of and for controlled substances.
Furthermore, your Affiant knows that dealers in illegal substances
often keep the described materials in their residence/vehicles so
that they will have ready access to them.
e. Dealers in controlled substances also commonly maintain
addresses or telephone numbers in books or on papers which
reflect information concerning their supplier and/or customers.
Drug traffickers often utilize pagers, fax machines, computers and
cellular phones to maintain contacts with drug associates and/or
to maintain these records.
f. Sellers and users of controlled substances frequently maintain
paraphernalia, as described in PA Act 64. Sellers maintain in their
residence or on their person, paraphernalia for cutting, packaging,
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weighing and distributing controlled substances. This
paraphernalia includes but is not limited to, scales, razor blades,
plastic baggies and small zip lock baggies.
3. That during the week of 21 May 2017, your Affiant spoke with
a confidential informant (CI#1) who stated at David Brandt lives
on Cider Press Road in Manheim and grows Marijuana inside of his
residence. CI#1 stated that David Brandt grows between 15-20
Marijuana plants. CI#1 knew this to be true because he/she had
spoken with an individual who resided in the residence with David
Brant. CI#1 has demonstrated his/her knowledge of Controlled
Substances, to specifically include Marijuana, its packaging,
pricing and terminology.
4. That during the week of 21 May 2017, your Affiant conducted
a Pennsylvania Department of Transportation Driver’s License
search for David Brandt in Manheim. Your Affiant located a
Pennsylvania Driver’s License photograph for a David Lee Brandt
DOB: 11/29/1976 with an address of 1963 Cider Press Road
Manheim, Pennsylvania 17545. Your Affiant showed CI#1 the
photograph of David Lee Brandt and CI#1 positively identified the
photograph as the person he/she knew as David Brandt.
5. That on 29 May 2017, your Affiant conducted surveillance of
1963 Cider Press Road Manheim, Pennsylvania 17545. During this
surveillance, your Affiant did see that all of the windows on the
front of the residence were obstructed from the inside of the
residence. Through your Affiant’s training and experience, to
include being the lead case officer or assistant case officer on four
Marijuana grow operations, it is common for the windows of a
residence to be obstructed when Marijuana is being grown inside.
6. That on 31 May 2017, your Affiant send a court order to PPL for
the hourly, daily and monthly usage for 1963 Cider Press Road
Manheim, Pennsylvania 17545 for the last 3 months. In your
Affiant’s experience, the use of fans and high powered lights are
consistent with indoor Marijuana grow operations to cycle in
carbon dioxide, cycle out the oxygen the Marijuana plants emit
and provide light for the plants to grow. Several fans, and lights
are needed to create an environment for the growth of Marijuana
plants and to remove heat buildup from the powerful lamps. These
high powered lamps are set on 12 hour cycles to mimic the sun
cycles in nature. This is done to enable the plants to survive and
grow. The fans that are used draw a high amount of electricity
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resulting in higher than normal electrical usage. Often times,
these 12 hour cycles are shown in the electrical usage history.
7. That on 06 June 2017, Your Affiant received the results of a
court order sent to PPL for the electrical usage for 196[3] Cider
Press Road Manheim, Pennsylvania 17545. The records showed
that during the months of March, April and May there were distinct
12 hours electrical spikes from 1600 hours to 0300 hours. The
spikes continued every day for this time period.
8. That within 24 hours of the application of this, your Affiant
spoke to a concerned citizen within the community of Manheim.
He/she told your Affiant that a male named “Dave” who lives on
Cider Press Road in Manheim Pennsylvania is in the business of
growing and selling Marijuana. He/she stated that “Dave” grows
Marijuana in the basement of his residence on Cider Press Road,
Manheim Pennsylvania. He/she also knew that a “Tara Ritter” also
lived with “Dave”. He/she knew this to be true based on
conversations this individual had with “Dave”. That your Affiant
showed the concerned citizen within the community of Manheim
the Pennsylvania Driver’s License photograph for a David Lee
Brandt DOB: 11/29/1976 with an address of 1963 Cider Press
Road Manheim, Pennsylvania 17545. The concerned citizen within
the community of Manheim positively identified David Lee Brandt
as the individual he/she knew as “Dave”:
9. That a Criminal History Record check was conducted on David
Lee Brandt DOB: 11/29/1976. This Criminal History Check showed
that David Lee Brandt pled guilty and was sentenced for a Felony
Violation of the Pennsylvania Controlled Substance, Drug, Device,
and Cosmetic Act on three separate occasions. The dates David
Lee Brandt pled guilty were 20 April 1998; 21 May 1998, and 24
April 1998.
10. That based on the aforementioned facts and circumstances,
your Affiant respectfully requests that a search warrant be issued
for 1963 Cider Press Road, Manheim Pennsylvania 17545.
.
Upon review, we emphasize that “the totality of the circumstances” set
forth in the affidavit must be considered when examining whether probable
cause supports the issuance of the search warrant. We have explained:
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[T]he question of whether probable cause exists for the issuance
of a search warrant must be answered according to the totality of
the circumstances test articulated in Commonwealth v. Gray,
503 A.2d 921 (Pa. 1985), and its Pennsylvania progeny, which
incorporates the reasoning of the United States Supreme Court in
Illinois v. Gates, 462 U.S. 213 (1983).... The task of the
magistrate acting as the issuing authority is to make a practical,
common sense assessment of whether, given all the
circumstances set forth in the affidavit, a fair probability exists
that contraband or evidence of a crime will be found in a particular
place. A search warrant is defective if the issuing authority has
not been supplied with the necessary information. The chronology
established by the affidavit of probable cause must be evaluated
according to a common sense determination.
Further, probable cause is based on a finding of the probability,
not a prima facie showing, of criminal activity, and deference is to
be accorded a magistrate’s finding of probable cause. We must
limit our inquiry to the information within the four corners of the
affidavit submitted in support of probable cause when determining
whether the warrant was issued upon probable cause.
Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013) (quotation
marks and some citations omitted). See, e.g., Commonwealth v. Wallace,
42 A.3d 1040, 1049-50 (Pa. 2012) (noting that under the Gates test, “we
consider the affidavit of probable cause ‘in its entirety, giving significance to
each relevant piece of information and balancing the relative weights of all the
various indicia of reliability (and unreliability)’ . . . to determine whether the
issuing magistrate had a substantial basis for concluding that probable cause
existed.”). “[T]he task of a magistrate is to make a practical, common sense
determination whether, given all the circumstances set forth in the affidavit,
‘there is a fair probability that contraband or evidence of a crime will be found
in a particular place.’” Commonwealth v. Clark, 28 A.3d 1284, 1290 (Pa.
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2011) (quoting with approval Commonwealth v. Davis, 595 A.2d 1216 (Pa.
Super. 1991).
The search warrant in this case was for a home located at 1963 Cider
Press Road, in which law enforcement sought to locate controlled substances,
“specifically, but not limited to, marijuana.” Affidavit, 6/8/17, at 1. Appellant,
who lived in the home with David Brandt, assails the reliability of the
confidential informant who relayed that marijuana was being grown in the
house, and a “concerned citizen,” who identified a resident of the home, and
stated that the resident “is in the business of growing and selling marijuana.”
Appellant focuses on these two individuals, and discounts the “totality of
circumstances.” See Arthur, 62 A.3d at 432. Appellant focuses on
paragraphs 3 and 8 of the affidavit, and specifically claims that “paragraph 3
of the affidavit is critically defective and fatal.” Appellant’s Brief at 9, 13, 15-
16, 19. However, Appellant’s argument is not supported by the totality of
circumstances set forth in the “four corners” of the affidavit, which in addition
to containing information from the confidential informant and concerned
citizen, references the home’s “obstructed windows common to marijuana
growing,” electricity usage records from the prior three months showing
“distinct 12 hour electrical spikes,” and the criminal history record check of
the home’s other resident, David Brandt, which revealed three prior felony
convictions under The Controlled Substance, Drug, Device and Cosmetic Act.
See Arthur, 62 A.3d at 432.
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Moreover, as stated by the Commonwealth with regard to the
statements of the confidential informant and concerned citizen, “hearsay
information is sufficient to form the basis of a search warrant.” See
Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa. Super. 2007).
We have explained:
A search warrant is defective if the issuing authority has not been
supplied with the necessary information. The chronology
established by the affidavit of probable cause must be evaluated
according to a “common sense” determination.
Hearsay information is sufficient to form the basis of a
search warrant as long as the issuing authority has been
provided with sufficient information to make a “neutral”
and “detached” decision about whether there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. The duty of the reviewing court is
simply to verify that the issuing magistrate had a “substantial
basis for concluding that probable cause existed.” The
uncorroborated hearsay of an unidentified informant may
be accepted as a credible basis for issuing a search warrant
if the affidavit of probable cause avers circumstances that
support the conclusion that the informant was credible.
Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537–538
(2001). . . .
Under our law, the focus is on the information provided to
the issuing authority and its response to that information.
Probable cause is a practical and fluid concept that turns on the
assessment of probabilities in particular factual contexts, which
cannot readily be reduced to a neat set of legal rules. The role of
the magistrate, as the issuing authority, is to make a “practical,
common sense decision” of whether, “given all the circumstances
set forth in the affidavit,” including the veracity and basis of
knowledge of any persons supplying hearsay information, there is
a “fair probability” that contraband or evidence of a crime will be
found in a particular place. The role of the reviewing court and the
appellate court is to ascertain whether the issuing magistrate
appropriately determined that probable cause existed for the
issuance of the warrant. Probable cause is based on a finding of
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probability and does not require a prima facie showing of criminal
activity. Both the reviewing court and this Court must
accord deference to a magistrate’s finding of probable
cause.
Id. at 1255–56 (some citations omitted) (emphasis added).
Here, the suppression court observed that “there is nothing in the
affidavit to indicate that the confidential informant from paragraph 3 had
participated in the crime or had provided reliable information previously.
Accordingly, the source’s information standing alone would be insufficient
absent corroboration.” Suppression Court Opinion, 3/8/18, at 10-11.
However, the court proceeded to address the circumstances that supported a
conclusion that the informant was credible, noting:
Corroboration takes two forms here. First, the information
was corroborated by police investigation. Unlike in Wallace,
where police did not detail their investigative steps, the affidavit
of probable cause recites that Detective Martelle undertook
surveillance of the property identified by the informant and
observed that all the front windows were covered from the inside
which, in his experience, was common when marijuana was being
grown inside. (Aff. at ¶ 5). Detective Martelle also stated in the
affidavit that he obtained a court order for electric usage at the
property which showed “distinct 12 hour electric spikes” every day
during March, April and May of 2017, (id. at ¶ 7), and that such
spikes, in his experience, were “consistent with indoor marijuana
grow operations,” (id. at ¶ 6). These spikes in electric usage,
occurring daily over an extended period, during the overnight
hours, and in a private residence rather than in some business
likely to operating overnight, are strongly suggestive of that the
conduct alleged was, in fact, going on contemporaneously with the
representations made to Detective Martelle. Additionally, as in
[Commonwealth v.] Singleton, [603 A.2d 1072 (Pa. Super.
1992)], the information from the confidential informant was
supported by that which came from the second source, the
concerned citizen noted in paragraph 8 of the affidavit of probable
cause.
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Id. at 11.
The suppression court then concluded:
Viewing the affidavit in its entirety, there was sufficient
information for the issuing magistrate to conclude there was a fair
probability that contraband or evidence of criminality would be
found on the premises which Detective Martelle sought to search.
Two individuals independently told Detective Martelle that a
particular person at a particular address “grows” marijuana in his
home. The manner in which this information was conveyed to the
detective and by the detective to the magistrate, reasonably
suggested that the information was current and, when the
detective undertook an independent investigation to corroborate
that information, he determined that the pattern of electric usage
at that home was consistent with an ongoing indoor marijuana
growth operation. Under these circumstances, the Court is
unwilling to substitute its judgment for that of the magistrate who
issued the warrant.
Id. at 11-12 (emphasis added).
As discussed above, the suppression court’s factual findings are
supported by the record and its legal conclusions are correct, and as a
reviewing court, we agree that the magisterial district judge appropriately
determined that probable cause existed for the issuance of the warrant. See
Freeman, 150 A.3d at 34-35; Huntington, 924 A.2d at 1255. Accordingly,
we do not disturb the denial of Appellant’s suppression motion.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2019
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