Com. v. Glass

• Decision Date: 20 June 2000
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael GLASS, Appellant.
• Court: Pennsylvania Supreme Court

754 A.2d 655

562 Pa. 187

COMMONWEALTH of Pennsylvania, Appellee, v. Michael GLASS, Appellant.

Supreme Court of Pennsylvania.

Argued November 17, 1999.

Decided June 20, 2000.

William C. Costopoulos, Costopoulos, Foster & Fields, Lemoyne, for Michael Glass.

R. Scott Cramer, Dist. Atty., Daniel Stern, Asst. Dist. Atty., Dist. Attorney's Office, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CASTILLE, Justice.

This Court granted review to determine whether Article I, Section 8, of the Pennsylvania Constitution categorically proscribes the issuance of what is commonly referred to as an "anticipatory search warrant," i.e., "`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.'" Commonwealth v. Glass, 718 A.2d 804, 806 (Pa.Super.1998), citing Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252, 1254 (1989), appeal dismissed, 526 Pa. 41, 584 A.2d 308 (1991), quoting 2 Wayne R. LaFave, Search and Seizure § 3.7(c) (3d ed.1996). We hold that such search warrants do not per se violate Article I, § 8. Accordingly, we affirm.

The anticipatory search warrant at issue here was based upon an affidavit of probable cause prepared by Trooper Brian J. Merritt of the Pennsylvania State Police Tactical Narcotics Team. The affidavit related that, on May 2, 1996, while executing a search warrant at a residence in Dauphin County, Trooper Merritt found a large quantity of controlled substances, as well as various receipts, paraphernalia, and records chronicling drug trafficking activity. The documentation revealed the location where controlled substances were being distributed, the quantity, and the amount of money related to the distribution. At this residence, Trooper Merritt also encountered a person identified in the affidavit only as "C.I. [confidential informant] # 1," who was later identified at the suppression hearing as Richard David Osborne.¹ Osborne decided to cooperate with the police. As part of his cooperation, Osborne explained that, on April 29, 1996, he had delivered four (4) pounds of marijuana to appellant, Michael Glass, at a price of $1,500 per pound. Appellant still owed Osborne $6,000 for the marijuana.

Five days later, on May 7, 1996, Trooper Merritt was at Osborne's residence when Osborne received a telephone call from appellant, who stated that he was prepared to pay Osborne the $6,000 and wanted Osborne to come to his residence to collect the money. Trooper Merritt and two other troopers searched Osborne and his vehicle. Finding no cash or drugs, the troopers then followed Osborne to appellant's residence and watched him enter the residence. Approximately one hour later, Osborne met the troopers at a predetermined location and Osborne handed the troopers $6,000 in cash that appellant had paid him. Osborne relayed to the troopers that appellant stated that he wished to purchase as much additional marijuana as Osborne could secure, and that the marijuana should be delivered to appellant's residence on May 9th. Osborne also informed the troopers that he had been supplying appellant with marijuana for approximately four months, always delivering it to appellant at appellant's residence.

Trooper Merritt also related that members of the Pennsylvania State Police Strike Force and members of the Attorney General's Bureau of Narcotics Investigations informed him that they were familiar with appellant and knew that he was involved in drug trafficking. A criminal history check of appellant revealed that appellant had a previous arrest for possession with intent to deliver a controlled substance.

Trooper Merritt further noted in the affidavit that he had secured a large quantity of marijuana through state police sources and had made arrangements with Osborne to deliver the marijuana to appellant on May 9, 1996—the same day on which he was seeking the search warrant. The trooper concluded the affidavit by noting that he was requesting an anticipatory search warrant to be served and executed upon delivery of the marijuana by Osborne to appellant at appellant's residence, and that the request was being made in order to keep appellant from using or distributing the drugs that were to be delivered. A district justice authorized the warrant on May 9, 1996, at 3:15 p.m., with the directive that it be served as soon as practicable but no later than within the next two following days.

At the suppression hearing, Trooper Merritt testified that he and Osborne proceeded with the controlled delivery on May 9, 1996. Trooper Merritt gave Osborne a quantity of marijuana and an alert pager, a device similar to other pagers but which sends out a radio signal when activated, and instructed Osborne to activate the pager as soon as he delivered the marijuana. Osborne entered appellant's residence with the marijuana and, approximately five minutes later, Trooper Merritt's alert pager sounded. After troopers met with Osborne at a pre-determined location, they searched him and his vehicle, and finding no marijuana, proceeded to execute the search warrant at appellant's residence.

By the time the troopers entered the house, appellant was already in the kitchen re-packaging the marijuana. In all, the troopers seized approximately twelve (12) pounds of marijuana, including a small amount of marijuana found on appellant's person; a Harley-Davidson motorcycle; two trucks; $13,840 in cash; approximately 70 firearms; more than two dozen individual knives; and 60 knives in a canvas wrap. Prior to trial, appellant filed a motion to suppress the evidence seized from his residence based upon a broad claim that anticipatory search warrants violate Article I, § 8, of the Pennsylvania Constitution. The suppression court denied the motion. Following a jury trial, appellant was convicted of possession of a controlled substance and possession with intent to deliver a controlled substance, as well as possession of drug paraphernalia.

On appeal to the Superior Court, appellant raised three issues: (1) that anticipatory search warrants, such as that issued here, per se violate Article I, § 8, of the Pennsylvania Constitution; (2) that the warrant was wrongly issued because the affidavit of probable cause was defective; and (3) that the warrant was issued in violation of the Pennsylvania Rules of Criminal Procedure. The Superior Court found that appellant waived the latter two issues, since they were not presented to the suppression court, and rejected on the merits his broad state constitutional challenge to anticipatory search warrants. Glass, 718 A.2d 804.

We granted appellant's Petition for Allowance of Appeal, limited to his single, non-waived claim that Article I, § 8, of the Pennsylvania Constitution categorically proscribes the issuance of anticipatory search warrants.²

Our review of suppression court rulings is circumscribed. Where the record supports the suppression court's factual findings, we may reverse only if the legal conclusions drawn from these facts are in error. Commonwealth v. Cleckley, 558 Pa. 517, 520, 738 A.2d 427, 429 (1999). Here, of course, the issue is purely one of law involving the construction of our Constitution. Our task is "to interpret, not to rewrite," that Constitution. See Wertz v. Chapman Township, 559 Pa. 630, 644 n. 6, 741 A.2d 1272, 1279 n. 6 (1999).

This Court has yet to squarely address the constitutionality of anticipatory search warrants under either the Fourth Amendment or under Article I, § 8. Nor has the United States Supreme Court addressed the constitutionality of the practice. Nevertheless, we hardly write upon a blank slate, as the question of the propriety of anticipatory search warrants has been addressed by all of the United States Courts of Appeals save for the District of Columbia, many of our sister states, and the lower Pennsylvania courts. The overwhelming majority of courts that have considered the practice have concluded that such warrants pass constitutional muster. This includes every federal court of appeals,³ as well as state courts approving the warrants under the Fourth Amendment and under their state constitutional equivalents of the Fourth Amendment.⁴ In addition, this Court approved of what was, at least in part, arguably an anticipatory search warrant in Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986). In Baker, the search warrant affidavit recited, inter alia, that, between the 5th and 12th of March, 1981, the defendant had a controlled substance, T.H.C.,⁵ in his possession, and had delivered a substance containing T.H.C. to an informant on numerous occasions. The previous deliveries were made to the informant inside the defendant's residence while the informant was under the control of police surveillance officers. The defendant told the informant and others that he was expecting a larger quantity of T.H.C. on or about the 11th or 12th of March. On the basis of this information, a magistrate issued a search warrant on March 12th. In upholding the magistrate's finding of probable cause, we noted that "[p]robable cause exists when the magistrate is presented with evidence which would cause a reasonable man to believe that a crime is being, or is about to be committed." Id. at 28, 518 A.2d at 805 (emphasis supplied). Such a belief was warranted in Baker because there was evidence not only that a crime (possession of a controlled substance) was being, or had recently been, committed, but also because there was reliable information "that another crime was about to be, or had been, committed, i.e., the delivery of [the controlled substance]." Id. at 29, 518 A.2d at 805 (emphasis added).

We note further that legal scholars are in accord with the courts in approving properly drafted anticipatory search warrants. See generally LaFave, supra & n. 88 (citing sources); see also James A. Adams, ...