Com. v. Baker

• Decision Date: 18 September 1992
• Citation: 532 Pa. 121,615 A.2d 23
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John BAKER, Appellant.
• Court: Pennsylvania Supreme Court

Page 23

615 A.2d 23

532 Pa. 121

COMMONWEALTH of Pennsylvania, Appellee, v. John BAKER, Appellant.

Supreme Court of Pennsylvania.

Submitted May 4, 1992.

Decided Sept. 18, 1992.

[532 Pa. 123] R. Mark Thomas, Norristown, for appellant.

Syndi L. Norris, Asst. Dist. Atty., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

Appellant requests that we suppress evidence seized under a search warrant which allegedly was deficient both facially and because the officer-affiant omitted material facts by misrepresentation in his affidavit regarding the untrustworthy criminal character of the informant and his uncorroborated information.

Appellant was found guilty in a non-jury trial before the Honorable Kevin J. Hess of the Court of Common Pleas of Cumberland County of unlawful possession with intent to deliver a controlled substance (cocaine). He was sent to prison for a term of three to six years.

In his Omnibus Pre-Trial Motion, and during all proceedings, Appellant has attacked the following affidavit of Officer Michael Strine (affiant) of the Carlisle Police Department:

Within the past 72 hours Agent Don Way of the Bureau of Narcotics, State Attorney Generals (sic) Office has had an informant in a police controlled/observation situation go to the residence of 418 North West Street and purchase Cocaine from Johnny Baker. The informant was supplied with official investigative funds prior to entering residence, upon exiting residence and returning to Agent Way the confidential informant did relinquish the Cocaine the informant had purchased from Johnny Baker to Agent Way.

On March 4, 1922 the same informant as mentioned before went into Johnny Bakers (sic) place of business at 65 West North Street and did purchase an amount of Cocaine.

On September 28, 1988 the same informant as mentioned before went into Johnny Bakers (sic) other address at 144 North Pitt Street and did purchase an amount of Cocaine.

On October 17, 1988 the same informant as mentioned before went into Johnny Bakers (sic) residence at 418 North West Street and did purchase an amount of Cocaine.

During all 4 transaction (sic) the Cocaine was delivered to the informant by the person of Johnny Baker. Within the past seventy hours of this date of application, the informant did purchase Cocaine from Johnny Baker at the address of 418 North West Street, during this transaction Johnny Baker did indicate to the informant that there were additional amounts of Cocaine in the residence.

Additionally, other independent sources have reported that Johnny Baker is involved in illegal drug sales from his residence at 418 North West Street, a property at 144 North Pitt Street, and a property at 65 West North Street.

The above information is true and correct to the best of your affiants (sic) knowledge, information, and belief.

The affidavit is alleged to be insufficient for two interrelated reasons: 1) on its face, it fails to set forth a sufficient basis for the affiant's conclusion that probable cause existed; and 2) the affidavit must fail because the affiant misrepresented, or alternatively showed a reckless disregard, in failing to tell the issuing magistrate that the informant was a drug addict and a convicted robber, and that the Commonwealth had agreed to nolle pros a charge of escape.

As to the first allegation, Appellant asserts that the affidavit does not indicate that the informant had been employed on past occasions and could not be proven to be reliable; that although the affidavit refers to a "police-observation," the truth is that the exchange of drugs between the informant and Appellant took place inside Appellant's house without an opportunity for the police to witness, and thereby corroborate, the transaction; that no other independent corroboration appears on the affidavit; and that the informant, a known drug user himself, was not searched prior to his entrees into Appellant's home.

Evidence of the nolle pros agreement, the identity of the informant, and the informant's burglary conviction were put on record at the suppression hearing in testimony by the police. (R.R., Suppression, pp. 38a-41a). That court found that the affidavit was sufficient on the facts and that the reliability of the informant was corroborated by the actual delivery of the cocaine. Under the "totality of circumstances" test, the warrant was not infirm.

The Superior Court affirmed in an unpublished memorandum opinion 413 Pa. 636, 595 A.2d 188, by finding that the stated facts provided a substantial basis upon which the magistrate could act under the "totality of circumstances" test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), as incorporated by Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). As to the charge of misrepresentation, the Superior Court held that the omitted information was not material so as to vitiate the affidavit: "had this information been included in the affidavit, the affidavit would still provide a substantial basis upon which the magistrate could have found probable cause." (Slip opinion, p. 8).

We granted Appellant's petition for allowance of appeal to review the sufficiency of Appellant's allegations that the police withheld information from the magistrate tending to show a corrupting influence, and that without this information the issuing magistrate could not make a neutral and detached decision about whether all the information in the affidavit established probable cause.

As we have often indicated, the legal principles applicable when reviewing the sufficiency of an affidavit to determine whether it establishes the probable cause necessary for the issuance of a warrant are well established. Before 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. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The information offered to demonstrate probable cause must be viewed in a common sense, nontechnical, ungrudging and positive manner. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973). It must also be remembered that probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and that deference is to be accorded a magistrate's finding of probable cause. Commonwealth v. Council, 491 Pa. 434, 444, 421 A.2d 623, 628 (1980).

Hearsay information is sufficient to form the basis of a warrant so long as the magistrate 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. And the duty of the reviewing court is simply to ensure that the magistrate had a "substantial basis for ......