Com. v. Edmunds

• Decision Date: 25 April 1988
• Citation: 373 Pa.Super. 384,541 A.2d 368
• Parties: COMMONWEALTH of Pennsylvania v. Louis R. EDMUNDS, Appellant.
• Court: Pennsylvania Superior Court

Page 368

541 A.2d 368

373 Pa.Super. 384

COMMONWEALTH of Pennsylvania v. Louis R. EDMUNDS, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 19, 1987.

Filed April 25, 1988.

Kenneth B. Burkley, Greensburg, for appellant.

William C. Gallishen, Asst. Dist. Atty., Greensburg, for Com., appellee.

Before WIEAND, MONTEMURO and POPOVICH, JJ.

WIEAND, Judge:

The issue in this appeal is whether the decision of the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is to be followed by the courts of this Commonwealth with respect to evidence seized pursuant to a search warrant which is subsequently invalidated under Article I, Section 8 of the Pennsylvania Constitution. The issue arises in an appeal by Louis R. Edmunds from a judgment of sentence imposed following a bench trial in which he was found guilty of possession of marijuana and related offenses after a substantial quantity of marijuana had been seized from his residence and an adjoining building.

The facts leading to the conviction are as follows. On August 4, 1985, in response to a telephone call, State Trooper Michael Deise met with two hunters who told him that while hunting in a wooded area they had come upon a white, corrugated building in which they saw growing marijuana plants. Trooper Deise questioned them about their familiarity with marijuana plants and satisfied himself that they were able to recognize marijuana plants. The men described the building to Trooper Deise and told him that Edmunds was the owner. On the following day, Deise flew over the area and spotted the building. He also drove past the property and by examining the mailbox confirmed the residency of Edmunds.

Trooper Deise then applied to District Justice Margaret Tlunac for a search warrant and offered in support thereof the following probable cause affidavit:

On the date of August 4, 1985, this affiant was in contact by telephone with two anonymous males who were and are members of the community where [appellant] resides. Both anonymous males advised the affiant that while checking out familiar hunting areas off Route 31, these men observed growing marijuana near a white corrugated building approximately 20 x 40 feet in a cleared off area. These men looked into the building and observed several plants that appeared to be marijuana. This affiant questioned both of these men as to their knowledge of marijuana. This affiant learned that one of these men saw growing marijuana numerous times while he was stationed in Viet Nam. The other male saw growing marijuana while at a police station. This affiant described a growing marijuana plant and its characteristics and they agreed that what they had viewed agreed with the description and also that it appeared to them to be marijuana as fully described by the affiant. The two males wish to remain anonymous for fear of retaliation or bodily harm. An anonymous male advised this affiant that [appellant] lived there. Edmund's description being that of a white male in his middle thirties and he lived at the aforementioned location.

On the 5th day of August, 1985, this affiant with the use of a State Police helicopter, flew over the described location and observed the white corrugated building in the mountain area and located as described by the two males. Also on this date this affiant drove past the Route 31 entrance and observed a mail box with "Edmunds 228" printed on it.

The warrant issued upon presentation of this affidavit described the premises to be searched as follows: "Residence of Louis R. Edmunds ... A one story stone and frame residence and white corrugated building and curtilege." With the intent of serving the warrant on the owner of the premises, Trooper Deise and other state policemen went to the residence, where they were met by Edmunds. When Edmunds went upstairs to find a written lease for the white, corrugated building, Deise accompanied him. At the top of the stairs, in plain view, Deise observed four bags of a green substance which he believed and which later was determined to be marijuana. A subsequent search of the white, corrugated building revealed marijuana plants.

Appellant filed a pre-trial motion to suppress the marijuana. He contended that the affidavit had been insufficient to establish probable cause for the issuance of a search warrant. More specifically, he argued that the affidavit had failed to show when the hunters had observed the marijuana plants and that there were insufficient facts from which it could be determined that the information given by the hunters was reliable. ¹ The suppression court held that the failure of the affidavit to state the date of the hunters' observations rendered the affidavit inadequate to establish probable cause to believe that marijuana was growing in the building at the time when the warrant was issued. However, because the evidence established that the hunters had made their observations on August 4, 1985 and because this information had been communicated to the issuing authority but had been omitted inadvertently from the affidavit when it had been prepared in the magistrate's office, the court held that the police had exercised good faith. As such, the court held, suppression was not required.

In Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973), the Supreme Court of Pennsylvania held that a warrant issued without reference to the time when an informant had obtained his information was defective. The Court said:

"The search warrant is defective ... because the alderman was not supplied a time-frame upon which to ascertain when the affiant gained his information from his informants, when the informants themselves obtained the information they allegedly had, and if probable cause presently existed to believe, that at the time the warrant was issued, appellant was keeping a firearm in his automobile. As this Court has recently stated:

'Although the information supplied the magistrate "... must be tested with a commonsense, nontechnical, ungrudging, and positive attitude, ...", Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir.1966); United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the information must be sufficient "... to enable the magistrate independently to judge of the validity of the informant's conclusion that the narcotics were where he said they were." Spinelli [v. United States ], supra at 393 U.S. [410,] 413, 89 S.Ct. [584,] 587 (emphasis added). See also Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Cf. [Commonwealth v.] McCants, [450 Pa. 245, 299 A.2d 283 (1973) ]. Probable cause must be established at the time the warrant is issued. See, e.g., Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); [U.S. v.] Bailey, supra, 458 F.2d 408, (9 Cir.1972); Durham v. United States, 403 F.2d 190, 193 (9th Cir.1968); Spinelli v. United States, 382 F.2d 871, 897 (8th Cir.1967) (Heaney, J., dissenting), rev'd, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Rosencranz, supra; Schoeneman v. United States, 115 U.S. App.D.C. 110, 317 F.2d 173 (1963); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971); Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972). Cf. McCants, supra. "... [I]t is manifest that the proof [necessary to establish probable cause] must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro, supra, 287 U.S. at 210, 53 S.Ct. at 140.' "

Id. at 339-340, 305 A.2d at 345 (emphasis in original). See also: Commonwealth v. Kalinowski, 303 Pa.Super. 354, 359-360, 449 A.2d 725, 727-728 (1982).

In this instant case, the affidavit did not contain facts from which the date of the hunters' observations could be determined. Therefore, it was insufficient to permit the issuing authority to make a determination that probable cause existed at the time the warrant was issued.

Did this defect compel the suppression of the contraband discovered by police when they executed the warrant if, as the suppression court found, the police acted reasonably in relying upon the warrant which had been issued by the magistrate? It is clear now, in view of the Supreme Court decision in United States v. Leon, supra, that suppression is not required by the Fourth Amendment of the United States Constitution. In creating a "good faith exception" to the judge-made exclusionary rule, the Supreme Court said:

We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. "[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," Illinois v. Gates, 462 US, , at 267, 76 L Ed 2d 527, 103 S Ct 2317 [at 2347 (1983) ] (White, J., concurring in judgment), for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." United States v Ross, 456 US 798, 823, n 32, 72 L Ed 2d 572, 102 S Ct 2157 [2172, n. 32] (1982). Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v Fitzgerald, 457 US 800, 815-819, 73 L Ed 2d 396, 102 S Ct 2727 [2736-2739] (1982), and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known...