Com. v. Ensminger

• Citation: 473 A.2d 116,325 Pa.Super. 376
• Parties: COMMONWEALTH of Pennsylvania v. Harvey ENSMINGER, Appellant.
• Decision Date: 18 April 1984
• Court: Superior Court of Pennsylvania

Page 116

473 A.2d 116

325 Pa.Super. 376

COMMONWEALTH of Pennsylvania v. Harvey ENSMINGER, Appellant.

Superior Court of Pennsylvania.

Argued March 10, 1983.

Filed Feb. 10, 1984.

Reargument Denied April 18, 1984.

Spero T. Lappas, Harrisburg, for appellant.

William L. Thurston, Asst. Dist. Atty., Lebanon, for Commonwealth, appellee.

Before WICKERSHAM, BECK and MONTEMURO, JJ.

WICKERSHAM, Judge:

On August 13, 1980, appellant Harvey Ensminger was arrested and charged with possession of marijuana with intent to deliver. The arrest followed a search of the Ensminger residence conducted pursuant to a duly issued search warrant. Appellant filed pre-trial motions seeking, inter alia, suppression of the fruits of the search on the ground that the search warrant was improperly issued. On February 26, 1981, after a hearing, appellant's pre-trial motions were denied. On March 11, 1981, the Honorable John Walter, sitting without a jury, found appellant guilty as charged. Post-trial motions were filed and denied. Appellant was sentenced on December 1, 1981. This appeal timely followed.

Appellant avers that the search warrant was issued on the basis of an affidavit of probable cause that relied on information supplied by a confidential informant. Said affidavit of probable cause reads, in pertinent part, as follows:

During the month[s] of July and August the affiant conducted a drug investigation in the Northern Lebanon County area. As a result of this investigation names of local drug traffic[k]ers were learned from contacts made on the street while operating in an undercover capacity. The following names were learned as local traffic[k]ers in marihuana, cocaine and pills. Phillip "Lippy" Ensminger and Harvey ENSMINGER, who reside at a gray stone house located along the North side of Route 22 at RD# 3 Jonestown Pa.

During the month[s] of July and August 1980, the affiant was in contact with an informant which he feels reliable. The informant has personal contact with the ENSMINGERS at their residence. The informant has purchased marihuana and cocaine from "Lippy" and Harvey ENSMINGER at their residence during this investigation period.

Investigation by the affiant revealed that "Lippy" and Harvey ENSMINGER do in fact reside at RD# 3 Box 7320 Jonestown, Pa. in a gray stone house located on the North side of old Route 22, Jonestown, Pa.

During the third week in July 1980 the informant revealed that a large drug buy was to be made in the Northern [Lebanon] County area involving Harvey ENSMINGER, "Lippy" ENSMINGER, Jeff STUPPI, a white male named Tiny and a white male named Squiggy. A large quantity of marihuana and cocaine was involved. The informant further related the ENSMINGERS were to end up with a large quan[t]ity of the drugs at their residence in RD# 3 Jonestown, Pa.

On 11 August 1980 the informant was in personal contact with the affiant during the evening hours. The informant related he personall[y] was in the basement of the ENSMINGER residence on Saturday August 9th and Sunday August 10th and pers[o]nally observed a large quantity of marihuana being bagged along with a large quantity of cocaine.

On 11 August 1980 the informant in the presence of the affiant personally entered the ENSMINGER residence and delivered a quantity of marihuana to the affiant. The substance was field tested and found to react positively to the field reagent test for marihuana.

The affiant therefore deems the informant reliable and the information received true and correct.

Brief for Appellant at 43, Appendix 3.

At a suppression hearing held on February 26, 1981, the Commonwealth presented the testimony of Trooper Haberstroh who was the affiant to the affidavit of probable cause and who had searched the appellant's residence pursuant to the search warrant. The trooper testified to the circumstances surrounding the informant's entry into the Ensminger residence. Defense counsel lodged a continuing objection to any testimony that went beyond the averments in the affidavit of probable cause.

The suppression court overruled appellant's objection and allowed the trooper to testify that he conducted a pat-down search of the informant prior to the informant's entry into appellant's home (N.T. 2-26-81 at 14) and that he believed the informant did not possess any marijuana prior to entry. (N.T. 2-26-81 at 6) The trooper also testified that upon exiting from appellant's residence, the informant presented him with a marijuana cigarette. (N.T. 2-26-81 at 15) The marijuana cigarette was admitted into evidence at the suppression hearing. (N.T. 2-26-81 at 21).

Appellant's first issue in this appeal concerns the suppression court's admission of evidence beyond the averments in the affidavit of probable cause. Specifically, appellant states the issue as follows:

May a Suppression Court consider evidence beyond that which appears from the four corners of an Affidavit of probable cause to search?

Brief for Appellant at 2. Since, as discussed in more detail below, we find that the affidavit itself, independent of the additional evidence offered in testimony, contained sufficient information to support a finding of probable cause, we need not address this issue.

Appellant's remaining issues ¹ question whether the affidavit was sufficient to support a finding of probable cause. Specifically, appellant states the issues as follows:

2. Does the affidavit of probable cause in the instant case comply with the legal requirements concerning the presentation of:

(1) Underlying circumstances supporting the informant's conclusion that the contraband to be seized will be found at the place to be searched; and

(2) The circumstances justifying the affiant's belief in the reliability of the informant?

3. When an Affidavit of probable cause to search relies upon an informant's alleged controlled receipt of marijuana from within the premises to be searched, does the Affidavit have any impact when it does not reflect a pre-entry search of the person of the informant?

Brief for Appellant at 2. Appellant's second issue reflects a distrust of the information supplied by the informant and of the informant himself. We must, therefore, determine whether the information supplied by this informant supported a finding of probable cause.

Since the United States Supreme Court's decisions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), courts have employed a "two-pronged test" to determine whether an informer's tip can form the basis of probable cause. First, an officer requesting a warrant has to adequately reveal the circumstances or means by which he came by the information given in the affidavit. Second, the affidavit has to establish that the officer had a reasonable basis for concluding that the informer was reliable.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court replaced this "two-pronged test" with a "totality of the circumstances" approach. The facts of the Gates case were well summarized by this court in Commonwealth v. Sorrell, --- Pa.Super. ---, 465 A.2d 1250 (1983):

[A]n anonymous informant had sent a letter to the Bloomingdale, Illinois Police Department in which he accused Lance and Susan Gates of dealing illegally in narcotics. The letter described in detail a trip that the Gates would take to procure drugs. The letter predicted that: the Gates would travel to Florida separately on specified dates; that Mrs. Gates would drive and Mr. Gates would fly; that Mr. Gates would drive the car back to Illinois; and that the trunk would be loaded with narcotics. The police investigated the tip and corroborated all the allegations, except the presence of narcotics in the trunk.

The police then sought a search warrant for the Gates' residence and their automobile. The state court judge to whom application was made found that probable cause had been established. However, the Illinois appellate courts reversed saying that the affidavit submitted in support of the search warrant application failed to establish probable cause. The Illinois Supreme Court found that the anonymous letter alone would not provide a basis on the finding that probable cause existed, since it did not meet the Aguilar-Spinelli "two pronged test."

While the United States Supreme Court indicated that it was inclined to agree that the letter alone was not a sufficient basis for a finding of probable cause, the court found that the corroboration of the informant's allegations by the police provided the police with reason to act on the informer's tip.

Id. at ---, 465 A.2d at 1253. In doing so, the Supreme Court held that the two-pronged test was not...