Com. v. Gray

• Decision Date: 05 February 1986
• Citation: 503 A.2d 921,509 Pa. 476
• Parties: , 54 USLW 2366 COMMONWEALTH of Pennsylvania, Appellee, v. Ronald GRAY, Appellant. 43 M.D. 1984
• Court: Pennsylvania Supreme Court

Page 921

503 A.2d 921

509 Pa. 476, 54 USLW 2366

COMMONWEALTH of Pennsylvania, Appellee, v. Ronald GRAY, Appellant.

43 M.D. 1984

Supreme Court of Pennsylvania.

Argued May 17, 1985.

Decided Dec. 11, 1985.

As Amended Feb. 5, 1986.

Alan Ellis, David M. McGlaughlin, Philadelphia, for appellant.

Brett O. Feese, Douglas M. Engelman, William P. Carlucci, Asst. Dist. Attys., Williamsport, for appellee.

Robert A. Graci, Media, amicus curiae.

Before NIX, C.J., and LARSEN, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

This case requires us to determine whether the United States Supreme Court's decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), adopting a "totality of the circumstances" standard under the federal constitution in analyzing probable cause for search warrants based on information received from confidential informants, also meets the requirements of Article I, Section 8 of our Pennsylvania Constitution. Appellant was convicted of possession of marijuana with intent to deliver in violation of Section 13(a)(30) of the Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. § 780-113(a)(30). Superior Court affirmed the conviction and we granted appellant's petition for allowance of appeal. 322 Pa.Super. 37, 469 A.2d 169. Appellant's sole claim is that the search warrant in this case was defective under the standards set out by 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). He claims that Superior Court erred in analyzing the warrant under the standards of Illinois v. Gates, supra, because Gates should not be applied retroactively. He also urges us to readopt the Aguilar-Spinelli standards under the Pennsylvania Constitution. We believe that the totality of the circumstances approach is more in line with the current state of the law, and under general common-law principles it should apply to all pending cases which have not yet been finally determined. Thus, we adopt it under our Constitution and affirm appellant's conviction.

Several confidential informants told police that appellant and his girlfriend had approximately twenty pounds of marijuana at their residence. On January 27, 1981, the police obtained a search warrant for the premises and two vehicles, one of which was at the home. The probable cause allegations in the accompanying affidavit are the only source of controversy in this case. Because of the importance of this issue we set out those allegations in full:

On 27 January 1981 a confidential informant related the following information to your affiant:

Between 23 January 1981 and 27 January 1981 the confidential informant # 1 was at the residence of Ronald Gray, specifically described above. At the time the informant was present the informant personally saw approximately 20 pounds of marijuana. The informant further related that he had seen marijuana in the automobiles described above.

Your affiant believes the confidential informant to be reliable for the following On 16 January 1981 your affiant spoke with confidential informant # 2. At this time informant # 2 related that RONALD GRAY is one of the major drug distributors in Lycoming County. Informant # 2 is believed to be reliable because he has given information relating to Laughlin Jennings who is presently under criminal charges; Regina Webster and Curtis Missien who are presently under criminal charges; and David Fryday who is presently under criminal charges (the information relating to Fryday confirmed in a statement by Gina Brown who related that she purchased her drugs from Fryday). The informant # 2 stated that Fryday would be found in Wellsboro, Pa. as Fryday had left Williamsport. On 27 January 1981 Fryday was arrested in Wellsboro.

reasons: Two other confidential informants gave confirming information. In addition Trp. Thomas R. Scales confirmed information.

On 19 January 1981 District Attorney Kenneth D. Brown and Trp. John J. Monahan related the following to your affiant:

On 18 January 1981 Mr. Brown and Trp. Monahan spoke with confidential informant # 3. At this time confidential informant # 3 related that RONALD GRAY is one of the largest drug dealers in Lycoming County. Informant # 3 related that he had some contact relative to the purchase of drugs with Gray.

On 27 January 1981 Trp. Thomas R. Scales related the following to your affiant:

During the fall of 1978 Trp. Scales had set up a transaction with Gray to purchase (2) cases of morphine from RONALD GRAY. During the course of the transaction, which took place in a cabin off Leg.Rte. 41028, a phone call came stating that there were police in the area. Gray then refused to complete the transaction at that time. This information is contained in P.S.P. reports.

On 27 January 1981 when confidential informant # 1 related the information he was under oath.

On 27 January 1981 Trp. James Carey related the following information to your affiant:

On 27 January 1981 Trp. Carey in the presence of Ptl. Mark McCracken (South Williamsport Police) and confidential informant # 1 went to the residence of RONALD GRAY. At that time Trp. Carey located the above described home and the vehicles. The vehicles were present at the location described by the confidential informant.

On 27 January confidential informant # 1 further related that he had contacted Gray concerning the marijuana between 25 January 1981 and 27 January 1981. At this time the informant # 1 stated that Gray said he still had marijuana.

Search Warrant and Affidavit dated January 27, 1981.

The police attempted to obtain appellant's consent to the search by asking him to accompany them while they executed the warrant. After appellant refused, the police went to appellant's home, served the search warrant, and began their search. They uncovered a total of nineteen plastic bags with about one pound of marijuana in each. Drug paraphernalia was found inside the house. The search of the second car produced no evidence used at trial.

Appellant filed an omnibus pre-trial motion in which he asserted that the evidence from this search should have been suppressed because the warrant was defective under the current state of the law. The court denied this portion of the motion, finding that the allegation of probable cause was sufficiently reliable. Appellant was tried and convicted of possession with intent to deliver.

Superior Court affirmed appellant's conviction. It stated that because the allegation of probable cause was sufficient under the relaxed standard of Illinois v. Gates Until 1983, the generally accepted standard for reviewing affidavits of probable cause supporting a search warrant based on information provided by confidential informants came from the United States Supreme Court cases Aguilar v. Texas, supra, and Spinelli v. United States, supra. Those cases required a warrant to pass two specific tests, under which the issuing authority had to be able to see, on the face of the affidavit of probable cause, both the informant's basis for his knowledge and independent facts showing the reliability of the informant. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (plurality); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Pa.R.Crim.P. 2003(a).

                supra, the [509 Pa. 481] motion to suppress was properly denied. 1  This appeal follows
                

The warrant in this case fails the Aguilar-Spinelli tests because no one of the parts which make up its whole meets both the basis of knowledge test and the test of the particular informant's reliability. The information from Informant No. One satisfies the basis of knowledge test since the affidavit states that this informant "personally saw" marijuana in the cars described in the search warrant. This information was not stale as the drugs were seen during the four-day period immediately preceding the application for the warrant. See Stamps, supra (evidence of possession of large quantities of drugs within fourteen days is not stale).

However, the affidavit does not satisfy the Aguilar-Spinelli standards of demonstrating the reliability of this particular informant. It states only that two other confidential informants gave similar information, and that a named trooper confirmed it. Thus, there is no independent demonstration of the reliability of Informant No. One. His reliability is wholly dependent on that of the other informants.

Conversely, Informant No. Two's statement that appellant was a major distributor of drugs in the area does not independently satisfy the basis of knowledge prong of the two-part test. There is no indication that the informant knew about the drugs in appellant's car, and, although he had given credible information regarding other current prosecutions, there is nothing to show any specific information about appellant's current activity. His past reliability is insufficient, by itself, to establish probable cause. Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973). Therefore, this informant's statement that appellant is a drug distributor does not independently support a finding of probable cause and does not confirm the other information the affidavit sets out under the Aguilar-Spinelli analysis tests, as contrasted with the Gates test of synthesis.

Similarly, Informant No. Three does not bolster the credibility of Informant No. One. The application for the warrant states that No. Three knows appellant is a drug distributor, and that he had "some contact relative to the purchase of drugs with [appellant]." This may provide a sufficient basis of knowledge, but it does not demonstrate this third informant's reliability. Consequently, application of the two-pronged Aguilar-Spinelli analytical approach to the various pieces of information in the affidavit leaves us without a basis to believe that appellant currently possessed drugs...