Com. v. Coleman

• Decision Date: 23 December 1999
• Citation: 743 A.2d 983
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gary COLEMAN, Appellant.
• Court: Pennsylvania Superior Court

743 A.2d 983

COMMONWEALTH of Pennsylvania, Appellee, v. Gary COLEMAN, Appellant.

Superior Court of Pennsylvania.

Argued September 30, 1999.

Filed December 23, 1999.

Vincent C. Murovich, Jr., Pittsburgh, for appellant.

Robert A. Willig, Asst. Dist. Atty., Pittsburgh, for Com.

Before JOHNSON, MUSMANNO and HESTER, JJ.

JOHNSON J.

¶ 1 This case presents an issue of first impression in our Commonwealth: whether it is proper for a magistrate to issue an anticipatory search warrant pursuant to a finding of probable cause that is based primarily upon the anticipated occurrence of future events enumerated in the affidavit of probable cause. We hold that a magistrate's finding of probable cause to issue an anticipatory search warrant may be based only on circumstances presently known to the police and not on the occurrence of triggering events enumerated in the affidavit. Therefore, we reverse the suppression court's order that denied Gary Coleman's motion to suppress evidence seized pursuant to an anticipatory search warrant because the affidavit of probable cause was based upon future cause to be established by future criminal activity, the occurrence of which was speculative. ¶ 2 This action arises from Coleman's conviction of four counts in violation of the Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S. § 780-113(a)(16), (30)-(32). Following a jury trial, Coleman was sentenced to no less than four years and no more than eight years' imprisonment. Coleman appeals the judgment of sentence and raises the following questions for our review:

I. DOES THE AFFIDAVIT OF PROBABLE CAUSE MEET THE REQUIREMENTS NECESSARY FOR THE ISSUANCE OF AN ANTICIPATORY SEARCH WARRANT?

A. IS THERE SUFFICIENT PROBABLE CAUSE?

B. WAS THE WARRANT PREMATURELY EXECUTED?

Appellant's Brief and Appendix at 4. Because we answer the first two questions in the negative and make our decision on those grounds, we will not address the third question.

¶ 3 "[T]he traditional standard of review of a magistrate's probable cause determination is whether a substantial basis existed for concluding that a search would uncover evidence of wrongdoing." Commonwealth v. DiGiovanni, 428 Pa.Super. 81, 630 A.2d 42, 45 (1993). "Our scope of review of a suppression court's ruling is confined primarily to questions of law." Commonwealth v. Sharp, 453 Pa.Super. 349, 683 A.2d 1219, 1221 (1996).

¶ 4 In Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), our Supreme Court adopted a "totality of the circumstances" standard for evaluating whether probable cause exists for the issuance of a search warrant based upon information received from a confidential informant. In Gray, the court stated:

"The task of the issuing magistrate is simply to make a practical, commonsense 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, 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 ... conclud[ing] that probable cause existed.' " Gray, 509 Pa. at 484, 503 A.2d at 925 (quoting 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))). Where the warrant is an anticipatory warrant, the magistrate must conclude "that there is a fair probability that evidence of current or past criminal activity will be on the premises to be searched at the time the warrant is executed." Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252, 1255 (1989). "This determination must be based on facts described within the four corners of the supporting affidavit." Commonwealth v. Stamps, 493 Pa. 530, 535-36, 427 A.2d 141, 143 (1981).

¶ 5 We will review the affidavit of probable cause on the basis of these standards. On February 27, 1995, Detective James Comunale and Sergeant William Black swore out an affidavit that states, in pertinent part, the following:

(1) "On or about the middle part of February" Sergeant Black supervised a transaction involving a "reliable confidential informant," an "unwitting informant" and "a person in the residence at the corner of Dix Drive and Tillman Drive;" (2) during the transaction the "unwitting informant" obtained cocaine from the "person in the residence;"

(3) Coleman resided at this residence;

(4) there were "numerous tips concerning a lot of traffic at the residence, especially in the late night/early morning hours" and the traffic was described as "a vehicle coming to the residence, the operator and/or passenger of said vehicle going into 300 Dix Drive and returning a short time later to said vehicle and leaving the area;"

(5) Detective Comunale had cited Coleman for a traffic violation in the "late 1980's" during which Detective Comunale "smelled the odor of burned marijuana;"

(6) the confidential informant was reliable because he had given information to two police departments that had resulted in the arrests of other drug offenders; and

(7) the confidential informant "will arrange the same scenario as the first transaction" for March 1, 1995.

Affidavit of Probable Cause, 2/27/95. The affidavit requested an "anticipatory search warrant" for Coleman's residence at 300 Dix Drive to "recover official funds" that were to be given to the confidential informant and used to purchase cocaine on March 1, 1995. Based on the foregoing, the magistrate issued the search warrant. On March 1, 1995, the police supervised a transaction during which the confidential informant entered 300 Dix Drive with $100.00, given to him by the police, and returned with a gram of cocaine. Immediately thereafter, the police executed the warrant and seized contraband, cash and firearms from Coleman's residence.

¶ 6 This Court has had only three occasions to address anticipatory search warrants. See Commonwealth v. Glass, 718 A.2d 804 (Pa.Super.1998); Commonwealth v. DiGiovanni, 428 Pa.Super. 81, 630 A.2d 42 (1993); Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252 (1989). This appeal presents a question not specifically addressed in any of these cases. The question is whether a magistrate may properly issue an anticipatory search warrant when the probable cause affidavit contains insufficient information regarding past or present criminal activity and instead sets forth specific future events, the occurrence of which would establish a fair probability that evidence of criminal activity would be located on the premises. Concisely stated, the question is whether probable cause must exist at the time the warrant issues, or whether it need only exist at some future time after the occurrence of events specified in the affidavit. Based on our analysis of the foregoing cases and cases from other jurisdictions, we conclude that probable cause must exist at the time the warrant is issued, and probable cause must be based on facts that have transpired prior to the issuance of the warrant.

¶ 7 This Court has defined an anticipatory search warrant as a "`warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.'" Glass, 718 A.2d at 806 (quoting Reviera, 563 A.2d at 1254 (quoting 1 W.R. LAFAVE, SEARCH AND SEIZURE § 3.7(C), at 94 (2d ed.1987))); Di-Giovanni, 630 A.2d at 45 n. 2. However, the fact that an anticipatory search warrant may be issued for evidence not yet on the premises to be searched does not alter the fact "probable cause must exist at the time the warrant issues." Glass, 718 A.2d at 812.

¶ 8 The difference between an ordinary search warrant and an anticipatory search warrant is that an anticipatory search warrant is based on probable cause that evidence of criminal activity will be on the premises at some future time. See id. at 806. Thus, unlike a regular search warrant where the focus of magistrate's probable cause determination is on the probability of whether evidence sought is currently located on the premises, a magistrate's determination when issuing an anticipatory search warrant must focus on the probability that the evidence sought will be on the premises at the time the warrant is executed. A magistrate may make such a determination based only upon facts that have transpired prior to the issuance of the warrant and are enumerated within the affidavit. See id. Therefore, the magistrate may not consider the occurrence of the future triggering events mentioned in the affidavit when making a determination of probable cause. Rather, these triggering events are meant solely to be a means "of judicial control over the circumstances under which a search will be completed." Reviera, 563 A.2d at 1256.

¶ 9 In Reviera, the police received a tip from a reliable informant that a man named Jose was storing and selling controlled substances out of a house. An undercover officer went to the house that same day and attempted to purchase an ounce of cocaine from Jose. Jose told the undercover officer that he was waiting for delivery of cocaine that would arrive at 10 P.M. and directed the officer to return after 10 P.M. During this conversation, several other people approached Jose to purchase cocaine and were turned away with the same instructions to return after 10 P.M. Based upon this information, the officer swore out an affidavit of probable cause and requested a search warrant for Jose's house. The warrant was approved and issued at 9:50 P.M. The police executed the warrant at 10:20 P.M. and seized physical evidence that the defendant later moved to suppress. The trial court granted the defendant's motion, and the Commonwealth appealed to this Court.

¶ 10 We held that "a magistrate has authority to issue a search warrant where she reasonably concludes that there is a fair...