Com. v. Glass

• Citation: 718 A.2d 804
• Parties: COMMONWEALTH of Pennsylvania v. Michael GLASS, Appellant.
• Decision Date: 15 September 1998
• Court: Pennsylvania Superior Court

Page 804

718 A.2d 804

COMMONWEALTH of Pennsylvania v. Michael GLASS, Appellant.

Superior Court of Pennsylvania.

Argued March 3, 1998.

Filed Sept. 15, 1998.

William Costopoulos, Lemoyne, for appellant.

Daniel W. Stern, Assistant District Attorney, Harrisburg, for Commonwealth, Appellee.

Before CAVANAUGH, POPOVICH, and FORD ELLIOTT, JJ.

FORD ELLIOTT, Judge:

This case presents an issue of first impression in the Commonwealth: whether Article I, Section 8 of the Pennsylvania Constitution proscribes the issuance of anticipatory search warrants. If it does, as appellant argues, then all of the evidence seized when the police searched appellant's residence should have been suppressed. Because we find that anticipatory search warrants do not violate the Pennsylvania Constitution, we affirm.

Before setting forth the factual and procedural history, we note our standard when reviewing the denial of a motion to suppress. We must determine whether the record supports the trial court's factual findings. Commonwealth v. Donahue, 428 Pa.Super. 259, 276-78, 630 A.2d 1238, 1247 (1993), appeal denied, 538 Pa. 612, 645 A.2d 1316 (1994). In making this determination, this court will consider only the evidence presented by the Commonwealth's witnesses and so much of the evidence presented by the defense witnesses which, as fairly read in the context of the record as a whole, remains uncontradicted. ¹ Id. If the record supports the suppression court's factual findings, inferences, and legal conclusions, they will not be disturbed on appeal. Commonwealth v. Brinkley, 423 Pa.Super. 289, 290-92, 620 A.2d 1226, 1227 (1993), appeal denied, 535 Pa. 630, 631 A.2d 1003 (1993).

The relevant facts are as follows. On May 2, 1996, Trooper Brian J. Merritt of the Pennsylvania State Police Tactical Narcotics Team III, Harrisburg, served a search warrant for illegal substances on an individual in Dauphin County. Trooper Merritt found a large quantity of controlled substances, as well as various receipts, paraphernalia and records regarding this individual's drug trafficking activity. (Notes of testimony, suppression hearing, 12/18/96 at 6.) The individual, Richard David Osborne, chose to cooperate with Trooper Merritt in order to receive more lenient treatment at sentencing. (Notes of testimony, jury trial, 12/18/96 at 78.) Part of this cooperation included Osborne's explaining the meaning of his drug trafficking records, which included the name "Mike G." next to the number "6125." According to Osborne, this entry indicated that Michael Glass, appellant herein, owed Osborne $6,125 for four pounds of marijuana Glass had purchased. (Notes of testimony, suppression hearing, 12/18/96 at 7.)

On May 7, 1996, Trooper Merritt, along with Troopers Jay Lownsbery and Craig Snyder, returned to Osborne's residence. While there, Osborne received a telephone call. After hanging up, he advised the troopers that it was appellant who called and that he was prepared to pay Osborne. (Id.) The troopers then searched Osborne and his vehicle, and followed him to appellant's residence, which the troopers kept under a constant "rolling" surveillance during Osborne's visit. (Id. at 11-12.) Osborne went inside, returning to a predetermined location after approximately one hour with $6,000 in cash. (Id. at 7-8.) Osborne told the troopers that appellant wished to purchase an additional five to ten pounds of marijuana on Thursday, May 9th. Osborne also said that he had been supplying appellant with marijuana for approximately four months, always delivering it to appellant's residence. (Id. at 8.)

Trooper Merritt, who in the meantime had learned that other members of the strike force had received information indicating appellant's involvement in drug trafficking, conducted a preliminary criminal history check. This check indicated appellant had been arrested previously for possession with intent to deliver a controlled substance. (Id. at 9.)

Based on all the information in his possession, Trooper Merritt obtained between 12 and 14 pounds of marijuana, which he re-packaged into one-pound packages, in order to conduct a reverse sting operation. (Id.) He also obtained an anticipatory search warrant, defined 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.' " Commonwealth v. Reviera, 387 Pa.Super. 196, 200-02, 563 A.2d 1252, 1254 (1989), appeal dismissed, 526 Pa. 41, 584 A.2d 308 (1991), quoting 1 W.R. LaFave, Search and Seizure § 3.7(c) at 94 (2d ed.1987).

After searching Osborne and his vehicle, Trooper Merritt gave the re-packaged marijuana to Osborne. Trooper Merritt also provided Osborne with an alert pager, a device that looks like any other pager but sends out a radio signal when a button is pushed. Trooper Merritt instructed Osborne to push the button as soon as he delivered the drugs. (Notes of testimony, suppression hearing, 12/18/96 at 9-10.) Osborne then drove to appellant's residence with the troopers following. Within approximately five minutes, the alert pager went off. A few minutes later, after again searching Osborne and his vehicle at a pre-determined meeting place, the troopers executed the anticipatory search warrant. (Id. at 10.) When they arrived at appellant's residence, they found him in the kitchen re-packaging the recently delivered marijuana. (Notes of testimony, jury trial, 12/18/96 at 38.) Among the items the troopers seized were one Harley-Davidson motorcycle; two trucks; $13,840 in cash, most of which was secreted behind a heat register; approximately 70 firearms; more than two dozen individual knives, plus 60 knives in a canvas wrap; the twelve pounds of marijuana used in the "sting"; and a small amount of marijuana found on appellant's person. (R. at 14 and Exhibit A; notes of testimony, forfeiture hearing, 6/25/97 at 68-69.) ²

Prior to trial, defense counsel filed a motion to suppress based upon the alleged unconstitutionality of the anticipatory search warrant. At the suppression hearing, Trooper Merritt testified that he did not believe he had sufficient probable cause to obtain a search warrant without the controlled delivery of drugs. (Notes of testimony, suppression hearing, 12/18/96 at 13.) The suppression court found "that at the time of obtaining the search warrant, there was not adequate probable cause to enter [appellant's] dwelling or to conduct a search of any area in which he had a legally protected privacy interest." (Id. at 16.) Nevertheless, the suppression court denied the motion to suppress. Following a jury trial, appellant was convicted of possession and possession with intent to deliver a controlled substance, and possession of drug paraphernalia. ³ He was subsequently sentenced to three to ten years' incarceration.

Appellant presents two issues, the first of which raises a challenge to the constitutionality of anticipatory search warrants under Article 1, § 8 of the Pennsylvania Constitution. Before addressing that issue, we note our agreement with the Commonwealth that appellant's more specific challenges to the search warrant are waived. In particular, appellant's claim that even if anticipatory search warrants do not per se violate the Pennsylvania Constitution, the warrant in his case is unconstitutional because the affidavit of probable cause was defective; and appellant's claim that the affidavit at issue in this case does not comply with the Pennsylvania Rules of Criminal Procedure, are waived because they were not presented to the suppression court. See Commonwealth v. Rosenfelt, 443 Pa.Super. 616, 630, 662 A.2d 1131, 1137-38 (1995) (to preserve an issue for review, a party must make a timely and specific objection at trial; an appellate court will not consider a claim not brought to the trial court's attention at the time when any error committed could have been corrected), appeal denied, 544 Pa. 605, 674 A.2d 1070 (1996); Commonwealth v. Menginie, 312 Pa.Super. 293, 299-301, 458 A.2d 966, 969 (1983) (finding waiver of a claim that a search warrant was invalid because it contained misstatements of fact supporting probable cause, where Menginie failed to apprise the suppression court of the specific factual errors contained in the warrant). Our careful review of appellant's motion to suppress, as well as the entire transcript from the suppression court hearing, reveals nothing but a baldly stated challenge to the constitutionality of anticipatory search warrants under Article I, § 8 of the Pennsylvania Constitution. (R. at 18; notes of testimony, suppression hearing, 12/18/96.) Furthermore, the Commonwealth indicated this omission in its memorandum of law in opposition to the motion to suppress. (R. at Additional 1.) We turn, then, to the constitutional claim.

As appellant correctly notes, Pennsylvania courts have frequently found that the Pennsylvania Constitution affords its citizens a more heightened protection of their privacy interests than does the federal Constitution. As a result, while appellant concedes that Pennsylvania courts have found anticipatory search warrants constitutionally valid under the federal Constitution, he argues that they are invalid under Pennsylvania's Constitution. (Appellant's brief at 17-19, discussing Commonwealth v. DiGiovanni, 428 Pa.Super. 81, 630 A.2d 42 (1993), and Commonwealth v. Reviera, supra.)

When an appellant raises a claim implicating a provision of the Pennsylvania Constitution, our supreme court has held that he should brief and analyze: 1) the text of the Pennsylvania constitutional provision; 2) the history of the provision, including Pennsylvania case law; 3) related case law from other states; and 4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Rosenfelt, supra at 628-30, 662 A.2d at 1137, citing Commonwealth v. Edmunds, 526 Pa....