Com. v. Ceriani

• Decision Date: 23 December 1991
• Citation: 600 A.2d 1282,411 Pa.Super. 96
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Carl CERIANI, Appellant.
• Court: Pennsylvania Superior Court

Page 1282

600 A.2d 1282

411 Pa.Super. 96

COMMONWEALTH of Pennsylvania, Appellee, v. Carl CERIANI, Appellant.

Superior Court of Pennsylvania.

Argued July 16, 1991.

Filed Dec. 23, 1991.

Richard R. Fink, Levittown, for appellant.

C. Theodore Fritsch, Jr., Asst. Dist. Atty., Doylestown, for the Com., appellee.

Before POPOVICH, HUDOCK and MONTGOMERY, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Bucks County on February 15, 1991, following appellant's conviction on charges of possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. We reverse the decision of the suppression court, vacate the judgment of sentence and remand for a new trial.

Appellant herein raises the following three issues, all of which arise from the denial of his pre-trial motion to suppress:

I. Was there insufficient evidence of probable cause presented to the magistrate to justify the issuance of a search warrant because the police affiant intentionally or recklessly omitted material information that would have been helpful in determining the credibility of the informant?

II. Where the police forcibly enter a residence to serve a search warrant at the same time as an eight-year-old boy opens the door in response to a falsehood that his father's car has been struck, has appellant been given a reasonable opportunity to voluntarily surrender the premises where there has been no compliance with the requirement that police knock, announce their authority and purpose, and wait a reasonable length of time to enter?

III. Did the Bensalem Township police act beyond the territorial limits of their primary jurisdiction when they failed to obtain consent of the chief law enforcement officer, or a person authorized by him to give consent prior to service of a search warrant outside the confines of their own jurisdiction?

Appellant's Brief, p. 3.

When we review the denial of a motion to suppress, this court must:

'determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).'

Commonwealth v. Ariondo, 397 Pa.Super. 364, 367, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).

Applying the aforementioned standard, we will first address appellant's assertion that the search warrant was issued without probable cause. Appellant argues that the affidavit of probable cause failed to set forth sufficient facts from which the issuing authority could independently determine the reliability and credibility of the informants. Further, appellant asserts that the police omitted from the affidavit information concerning the prior criminal record of informant Dana Lens which was material to the issue of his credibility.

When reviewing whether a search warrant was sufficiently supported by probable cause, we employ the "totality of the circumstances" analysis of Illinois v Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (adopting the "totality of circumstances" test in Pennsylvania). The "totality of the circumstances" test has been summarized as follows:

The task of the issuing magistrate is simply to make a practical, common sense 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, that there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gray, 503 A.2d at 925, quoting Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332.

The record reveals that on December 2, 1988, Detective Diaz applied for a warrant to search appellant's home located in the Magnolia Hill area of Bucks County. The affidavit of probable cause for the search warrant reads as follows:

Whereas, your Affiant is Juan Diaz # 52, Bensalem Twp., Police Department, is currently in a joint investigation with Tullytown Boro Police Department and the Bucks County District Attorney's Office. Your Affiant is a six year Police Veteran who's experience includes over 100 narcotics related investigations. I have received training in narcotics investigations by Immigration and Naturalization Services, Pennsylvania State Police, and the Bucks County District Attorney's Office.

Whereas, your Affiant received the following information from Bucks County Detective Bill Kling: At about 0715 hours, December 2, 1988, Bucks County Detective, Roberta Kostick interviewed Fay Geiser, 88 Junewood Drive Levittown Pa. Fay Geiser had just been arrested for various violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972 and was presently at the Tullytown Police Department, Tullytown Boro Bucks County Pa. Fay Geiser advised Detective Kostick that her source of drugs is a Dana Lens. Dana Lens's source is a man named Carl who used to live in Morrisville. She said that about 3-4 months ago Carl moved into a house in the Magnolia Hill section of Levittown. Detective Kostick then spoke to William Geiser, Fay's Husband, who was also at the Tullytown Police Department having been arrested for various violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972. Detective Kostick asked William Geiser if he knew a Carl, who was Dana Len's supplier. He said that he did and that Carl moved into a second hand house in Magnolia Hill.

Whereas, your Affiant Detective Juan Diaz talked to Dana Lens on 12-2-88, at Tullytown Boro Police Department. Dana Lens had just been arrested for violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972. Dana Lens told your Affiant, Detective Diaz, that he's supplied Methamphetamine by Carl Ceriani. Carl Ceriani resides at 49 Mistletoe, Bristol Twp., Bucks County (phone # 547-4272). Dana Lens also informed this writer that he has been selling Methamphetamine for Carl Ceriani for approximately one year. Dana Lens stated that he usually calls Carl Ceriani, via telephone and tells him that everything is good and if he could come over to borrow some tapes. This means that Dana Lens had sold all of his Methamphetamine and that he's ready to drive to Carl's house (49 Mistletoe Bristol Pa.) and pick up more Methamphetamine. Dana Lens stated that he usually gets 4 ozs. at a time.

Whereas, on 12-2-88, at approximately 1315 hours, Dana Lens contacted Carl Ceriani, via telephone and informed him that everything was good and that Dana wanted to come over to borrow some tapes. According to Dana Lens, Carl Ceriani told him that it was ok and to come over. Your Affiant was present during this phone call and heard Lens's end of the conversation.

Whereas, Detective Timothy Carroll of the Bensalem Police Department informed your Affiant that during the execution of a search warrant of Mr. Dana Lens, Detective Carroll came across Mr. Carl Ceriani's address and phone number (49 Mistletoe, Bristol Pa # 547-4272).

Whereas, your Affiant was advised by Bucks County Chief of Detectives, Paul Gourley, that according to the Voter's registration rolls, the following individuals reside [411 Pa.Super. 102] at 49 Mistletoe Lane, Bristol Twp. Bucks County Pa. Carl T. Ceriani, D.O.B. 1-10-52, Pamela S. Ceriani, D.O.B. 10-25-63 and Anthony J. Kulkavicz, D.O.B. is unknown.

Whereas, Bucks County Detective Thawley Hayman, informed your Affiant that according to the Bucks County Deed Book number 2840 page number 152, Mr. Carl T. Ceriani and Mrs. Pamela S. Ceriani are the owners of the residence located at 49 Mistletoe Lane, Bristol Twp., Pa., as of September 7, 1988.

Whereas, based on the preceding information, your Affiant believes Methamphetamine a scheduled II controlled substance is present at 49 Mistletoe Lane Bristol Twp. Pa and also that probable cause exists to search the premises, the residence of Carl Ceriani and Pamela Ceriani and any other person present to seize Methamphetamine and any other related paraphernalia and or records and monies.

Approved on this day 12-2-88 A.D.A. Kip Portman.

After reviewing the affidavit of probable cause, we find that the issuing authority had more than sufficient information upon which to determine there was a fair probability that methamphetamines would be found in appellant's home. Three separate informants identified appellant as the source of their drugs and provided detailed information concerning the location of appellant's residence. One of the three, Dana Lens, explained to police the method by which he contacted appellant in order to get a new supply of methamphetamines. Significantly, in the presence of the police, Lens contacted appellant and ordered additional drugs.

Applying the "totality of the circumstances" test, we find that the affidavit clearly supports a determination that probable cause existed. Instantly, appellant only attacks the credibility of informant Dana Lens, asserting that the issuing authority would not have found probable cause to exist had the magistrate known about informant's prior record and possible drug addiction. However, the fact that all of the informants, including Lens, made declarations against their penal interest supports the reliability of their statements. See Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982); Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1979); Commonwealth v. Kaschik, 235...