Com. v. Curtin

• Decision Date: 09 August 1993
• Citation: 427 Pa.Super. 224,628 A.2d 1132
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. William CURTIN. COMMONWEALTH of Pennsylvania, Appellant, v. John CONLEY.
• Court: Pennsylvania Superior Court

Page 1132

628 A.2d 1132

427 Pa.Super. 224

COMMONWEALTH of Pennsylvania, Appellant, v. William CURTIN.

COMMONWEALTH of Pennsylvania, Appellant, v. John CONLEY.

Superior Court of Pennsylvania.

Argued Oct. 28, 1992.

Filed June 2, 1993.

Reargument Denied Aug. 9, 1993.

Anthony M. Mariani, Pittsburgh, for Curtin, appellee.

Alisa N. Carr, Pittsburgh, for Conley, appellee.

Before McEWEN, FORD ELLIOTT and MONTGOMERY, JJ.

FORD ELLIOTT, Judge:

The Commonwealth brings this instant appeal, challenging the trial court's suppression ¹ of various items of evidence all related to video gambling devices. The evidence was seized during a massive police sweep involving the execution of over 100 search warrants. We find ourselves in agreement with the suppression court and will affirm the order dated February 26, 1992.

The factual background underlying this appeal is actually quite simple. For some time now, video gambling devices have been an entertainment staple at taverns, amusement parks, and other businesses throughout the Commonwealth.

Typically, these machines feature a game of chance such as poker or blackjack, to be played against the machine, or, as have appeared of late, are simply video slot machines. The patron inserts his cash wager, receives a given amount of credits, and then bets with these credits. If lucky, the patron will accumulate credits, tallied by the machine. When a certain numerical threshold is reached, the bettor may turn in his credits with the bartender or manager and receive a cash payment. The bartender or manager then clears the credits from the machine by use of what has come to be called a "knock-off" switch. At this point, the machine is ready for use by a new customer.

Appellees were vendors operating these video gambling devices and having machines in many locations throughout Allegheny County. At the time the instant searches and seizures occurred, appellees were apparently the largest such vendor in Allegheny County.

In September of 1988, upon information that the video machines were, in fact, being operated in an illegal fashion, state and City of Pittsburgh police instituted a countywide sweep for these machines and the records pertaining to them. In preparation, search warrant applications were assembled for 102 different locations. Most of the premises were taverns, but one, located at Windgap Road and Berry Street, was a warehouse owned by appellees, and another, located at 930 Saw Mill Run Boulevard, was appellees' business offices.

On September 22, 1988, 101 applications for search warrants were presented to District Justice Anna Marie Scharding of Mt. Oliver Borough. District Justice Scharding reviewed the applications in a morning session of 54 applications and an afternoon session of 47. Each application was approximately the same length. Although each application contained an individualized affidavit of probable cause, a substantial portion of each application was also comprised of boilerplate information. It was unclear from the testimony whether District Justice Scharding read every warrant application; however, District Justice Scharding granted each application, and the warrants were executed on the following day.

The lone warrant application which was not offered on September 22 with the 101 others was made the following morning on September 23. This application pertained to appellees' business offices located at 930 Saw Mill Run Boulevard. Unlike the 101 applications presented September 22, there is no allegation or argument presented that District Justice Scharding failed to read the September 23rd warrant application in full. Following the approval of this search warrant, the police began their countywide sweep.

Most of the warrants were for searches and seizures at businesses that were generally open to the public. Two businesses in particular were not. Those two were the object of the searches conducted at appellees' warehouse located at Windgap Road and Berry Street and at appellees' business offices located at 930 Saw Mill Run Boulevard.

The business office location was used mainly for the storage of business records and customer billing; there was no walk-in trade. Three employees generally were on duty there. The front door of the building was permanently locked and the back door was usually locked. The building was posted with signs reading, "Warning, No Trespassing, Guard dog on duty," and "Warning, No Trespassing." On the day of the countywide sweep, the rear door of 930 Saw Mill Run Boulevard was left unlocked. Police entered this building to execute their search warrant without first knocking on the door and announcing their identity.

Two issues are presented for our review, both challenging the validity of the trial court's suppression: 1) whether the review of the search warrant applications by the issuing authority was adequate, representing an independent and detached assessment of probable cause; and 2) whether the knock and announce rule applies to commercial property. ² We will resolve these concerns seriatim.

Preliminarily, we note our standard of review:

In an appeal from an order granting or denying a motion to suppress, the role of the appellate court is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, the Court may 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. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. DeBooth, 379 Pa.Super. 522, 527, 550 A.2d 570, 573 (1988), allocatur denied, 522 Pa. 588, 561 A.2d 740 (1989). We turn now to the issues.

The Commonwealth first asserts that the review of the 101 search warrant applications on September 22, 1988, by District Justice Scharding was adequate to satisfy constitutional demands. We observe an earlier discussion of those demands by our supreme court:

Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of our Pennsylvania Constitution prohibit unreasonable searches and seizures. They provide that no warrant shall issue except upon probable cause supported by oath or affirmation, and that the warrant must describe the place to be searched and the person or things to be seized. This constitutional protection against unreasonable searches and seizures is not some new thing produced by recent decisions in the courts. It is rooted in long recognized principles of humanity and civil liberty. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

In order to insure the protection of those constitutional provisions both this Court and the United States Supreme Court require law enforcement officers to obtain a judicially issued search warrant absent certain exigent circumstances. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Linde, 448 Pa. 230, 293 A.2d 62, cert. dismissed, 409 U.S. 1031, 93 S.Ct. 523, 34 L.Ed.2d 482 (1972); Commonwealth v. Cockfield, 431 Pa. 639, 246 A.2d 381 (1968); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966).

. . . . .

The magistrate's function is more than the ministerial one of administering an oath to an officer who has set forth facts the officer believes constitute probable cause. The magistrate must make a judicial determination, albeit a nontechnical, common sense judgment, see Gates, as to whether probable cause exists. It is not enough for a policeman to present an affidavit to the magistrate prior to the search which affidavit the judiciary may consider on the issue of probable cause with complete hindsight after the police have completed their search. The magistrate must actually make a finding of probable cause to validate the warrant before he issues it.

Commonwealth v. Chandler, 505 Pa. 113, 124, 477 A.2d 851, 855-856 (1984). See also Commonwealth v. Peticca, 401 Pa.Super. 553, 585 A.2d 1065 (1991), allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991).

The problem with the magistrate's review of the warrant applications instantly is two-fold. First, by the magistrate's own admission she did not read every page of every search warrant application. She maintained that she read the entire application only with regard to the first application. Thereafter, she claims to have read the individualized portions of each application but did not re-read the boilerplate sections, only glancing at those segments in order to determine that they were, indeed, identical.

Our second problem with the review of the warrant applications pertains to conflicting testimony. The suppression hearing below was handled in two sessions, one held February 22, 1991, and the other May 6, 1991. District Justice Scharding testified on both dates. Unfortunately for our determinations, the magistrate's account conflicted between the two occasions. On February 22, District Justice Scharding's testimony indicated that she may have failed to review the 101 warrant applications adequately. Her testimony was unclear and indicated either that she may not have ascertained that the boilerplate was identical in all of the applications or that she may not have read even the individualized parts of the applications:

[DEFENSE COUNSEL:]

Clearly you didn't read any of them; isn't that true?

[DISTRICT...