Com. v. Stamps

• Decision Date: 13 March 1981
• Citation: 427 A.2d 141,493 Pa. 530
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert STAMPS, Appellant.
• Court: Pennsylvania Supreme Court

Page 141

427 A.2d 141

493 Pa. 530

COMMONWEALTH of Pennsylvania, Appellee, v. Robert STAMPS, Appellant.

Supreme Court of Pennsylvania.

Submitted Oct. 22, 1980.

Decided March 13, 1981.

[493 Pa. 532] John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION

KAUFFMAN, Justice.

On February 24, 1976, appellant, Robert Stamps, was arrested and charged with possession and possession with intent to deliver a controlled substance. ¹ A search, pursuant to warrant, had uncovered twenty-five (25) packets of heroin in appellant's apartment. A timely motion to suppress the evidence was filed, but after a hearing, denied. On October 29, 1976, appellant was tried without a jury and convicted on both charges. Post-trial motions were filed, and on April 19, 1977, an arrest of judgment was granted with respect to the charge of possession with intent to deliver; ² all other motions, however, were denied and a sentence of six to twelve months was imposed. Thereafter, an appeal was taken to the Superior Court, and the judgment of sentence was affirmed. Commonwealth v. Stamps, 260 Pa.Super. 108, 393 A.2d 1035 (1978). We granted allocatur and now affirm. ³

On Thursday, February 19, 1976, a reliable informant ⁴ told Police Officer Victor Marcone (1) that "in the past 10 days" he had been inside appellant's second floor apartment at 1211 South 47th Street in Philadelphia; (2) that he had observed appellant with approximately ten bundles of heroin in his possession; (3) that appellant told him he was going to sell the "stuff" in one-half hour for $800.00 to a person named "Roy;" (4) that he also had seen appellant on another occasion leave his apartment with three bundles of heroin to sell to two different persons; (5) that customers "always" called appellant's telephone number before visiting his apartment to purchase drugs. ⁵

Thereafter, on Monday, February 23, 1976 from 11:20 a. m. to 11:50 a. m., police conducted a surveillance of the building in which appellant's apartment was located. At that time, they observed two persons enter the building and leave after a short period. On the basis of an affidavit prepared by Officer Marcone immediately after conducting the surveillance, a search warrant was issued on February 23, 1976. The following day Officer Marcone went to appellant's apartment building with the warrant, knocked on the front door, identified himself as a police officer, and waited for about two and one-half minutes before being admitted. While waiting, he heard someone running from the door.

After being admitted by appellant, Officer Marcone proceeded upstairs to appellant's second floor apartment, where he discovered a second male sitting in the kitchen staring into an open oven. ⁶ Another man then walked down from the third floor apartment into the kitchen of appellant's apartment. Thereafter, Officer Marcone searched the apartment and found twenty-five packets of heroin under the cushion of a couch located in the "combination parlor-bedroom." ⁷ He also discovered a telephone bill and an electric bill for the apartment addressed to appellant. After he was arrested, appellant, who kept his clothing in the kitchen and in the parlor-bedroom, was permitted to dress.

Appellant here raises two issues: (1) whether the affidavit prepared by Officer Marcone was based on stale information which could not support a finding of probable cause, and (2) whether the evidence adduced at trial was sufficient to establish appellant's possession of contraband in light of the presence of other persons in the apartment at the time of the search.

I

The probable cause portion of the affidavit provided:

I Plcm. # 4334 having received information from a reliable informant 2- 19/76 that he was inside of the above location in the past 10 days and did see (Robert Stamps) have in his possession approx. 10 bundles of alleged Heroin which he stated to the informant was for one person named Roy who was coming over in a half an hour to buy the stuff for $800.00. This informant stated that there were approx. five other person (sic) in this apt. and that he would not be shore (sic) who to blame if it link (sic) out to the cops about this certain transaction. The informant also stated that he on another date seen the above named person called (BROTHER ROB) leave this apt. with three bundles of heroin on his possession and was going to the bar to sell them to two different persons. This informant also stated that this person (sic) phone number was 349-8533 and that before any of the aboves (sic) customers come over they always call. This informant in the past two years has given me information which has resulted in a number of arrests with evidence confiscated on all arrests. A check with the phone company of the number supplied to me by this informant was made and found it to be in the name of the above living at the above location. On 2/23/76 from approx. 11:20 a. m. to 11:50 a. m. a surveillance was conducted at the above location and two persons were seen entering and leaving this location after staying only a short period of time, one of the persons being a white male. Due to the information received from this reliable informant along with a phone check an (sic) a surveillance I believe that the above named person is selling and storing large quantities of Heroin from inside of his apartment.

Appellant contends that the informant's observation of criminal conduct no more than fourteen days prior to the issuance of the warrant was too remote to support a finding of probable cause at time of issuance, and that the evidence discovered pursuant to the warrant therefore should have been suppressed. We disagree.

It is well settled that for a search warrant to be constitutionally valid, the issuing authority must decide that probable cause exists at the time of its issuance. ⁸ This determination must be based on facts described within the four corners of the supporting affidavit, see Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819, 820 (1973); Pa.R.Crim.P. 2003(a), and closely related in time to the date of issuance of the warrant. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Commonwealth v. Tolbert, --- Pa. ---, 424 A.2d 1342 (1981); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971). Otherwise, evidence of criminal activity "... will become so attenuated with the passage of time as to be nonexistent at the time the warrant is applied for and is issued." ⁹

Courts have been reluctant, however, to set a hard and fast rule as to what constitutes staleness; such a determination must be made on a case by case basis. ¹⁰ Mere lapse of time between discovery of criminal activity and issuance of the warrant will not necessarily dissipate probable cause; a showing that the criminal activity is likely to have continued up to the time of issuance of the warrant will render otherwise stale information viable. United States v. Harris, 403 U.S. 573, 579 n.2, 91 S.Ct. 2075, 2079 n.2, 29 L.Ed.2d 723 (1971); see Tolbert, --- Pa. at ---, 424 A.2d at 1344; Eazer, 455 Pa. at 324, 312 A.2d at 400; Shaw, 444 Pa. at 113-14, 281 A.2d at 899.

In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), an affidavit similar to the one now before us declared that a reliable informant had purchased liquor illegally from the accused "within the past two weeks," and that he had also made similar purchases for a period of over two years. Rejecting the accused's contention that the information was stale, the Supreme Court of the United States concluded that there was a reasonable basis for the search. Likewise, in United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), an affidavit in support of a search warrant recited approximately four observations of illegal whiskey sales from June to September, 1970. Although the last observation occurred three weeks before issuance of the warrant, the Court held that the affidavit established probable cause since it "... properly recite(d) facts indicating activity of a protracted and continuous nature ...," thereby making the passage of time less significant than in the case of an isolated observation. ¹¹

In determining whether the affidavit in question was sufficient to establish probable cause, we recognize that affidavits supporting search warrants normally are prepared "... by nonlawyers in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). They therefore should be interpreted in a "common sense and realistic" fashion rather than in a hypertechnical manner. Ventresca, 380 U.S. at 108, 85 S.Ct. at 745; Commonwealth v. Greco, 465 Pa. 400, 406, 350 A.2d 826, 829 (1976); Commonwealth v. Matthews, 446 Pa. 65, 71, 285 A.2d 510, 513 (1971). Moreover, the probable cause determination of the issuing authority must be accorded great deference. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Ventresca, 380 U.S. at 108-09, 85 S.Ct. at 745-46; see Matthews, 446 Pa. at 71, 285 A.2d at 513.

Here, the affidavit reported that the informant had been inside appellant's apartment "in the past 10 days" and had observed appellant in possession of large quantities of heroin for sale on two separate occasions: (1) appellant told the informant he was going to sell ten bundles of heroin in "half an hour" to a person named "Roy", for $800.00; (2) the informant saw appellant leave his apartment with three bundles of heroin for sale to two other people. ¹² These...