Com. v. Weidenmoyer

• Decision Date: 04 April 1988
• Citation: 539 A.2d 1291,518 Pa. 2
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Robert Harvey WEIDENMOYER and Deborah Jo Carter, Appellees.
• Court: Pennsylvania Supreme Court

Page 1291

539 A.2d 1291

518 Pa. 2

COMMONWEALTH of Pennsylvania, Appellant, v. Robert Harvey WEIDENMOYER and Deborah Jo Carter, Appellees.

Supreme Court of Pennsylvania.

Argued Nov. 13, 1987.

Decided April 4, 1988.

Mary M. Killinger, Chief, Appeal Div., Fort Washington, James W. Stauk, Roslyn, for appellant.

John G. McDougall, Philadelphia, for appellees.

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

OPINION

NIX, Chief Justice.

Appellees Robert H. Weidenmoyer and Deborah Jo Carter were convicted of violations of the Controlled Substance Drug, Device and Cosmetic Act ¹ and of criminal conspiracy. ² Weidenmoyer was sentenced to a term of imprisonment of one and one-half to five years, and Carter to a term of two to twenty-three months. The Superior Court reversed the sentences and relinquished jurisdiction. 350 Pa.Super. 630, 503 A.2d 454. The Commonwealth sought review of that decision in this Court, and we granted allocatur to address the question of whether the search warrant executed by police to recover evidence used against appellees was based on probable cause under Art. 1 Sec. 8 of the Pennsylvania Constitution. ³

On March 1, 1983, Trooper Walter A. Weniger, Jr., of the Pennsylvania State Police applied for a warrant to search the premises of 439 Main Street in Trappe, Pennsylvania, based upon the following affidavit:

1. The affiant in this affidavit is Tpr. Walter A. WENIGER, Jr., of the Penna. State Police. Tpr. WENIGER has been a member of the State Police for over fifteen (15) years. He has worked in the Narcotics Field for over ten (10) years and has been involved in over five-hundred (500) drug investigations. He is currently assigned to the Region II Narcotics Strike Force which investigates drug violations in Southeastern Penna.

2. On 28 February 83, the affiant received information from Cpl. Gregory DELP, Patrol Unit PSP Limerick, that on 27 February 83, at approximately 1945 hours, he was involved in an interview with Hazel Maxine COON, W-F-35, DOB--9-23-47, from Semmes, Ala., in reference to drug information concerning Robert Harry WEIDENMOYER, aka "BABBIT". Ms. COON related that she was staying at BABBIT'S residence in Trappe, Penna., which is located at 439 Main Street, Trappe, Penna., with a Walt KUGLER. They stayed at Babbit's residence from Friday 25 February 83 until the present date (27 February 83). While she was at BABBIT'S residence she observed a plastic bag with white powder in it, which she believed to be cocaine. She was offered this white powder to use by BABBIT, however refused.

3. Cpl. DELP also related to the affiant on 28 Feb. 83, that Ms. COON further related to him that while she was at BABBIT's residence (21-27 Feb. 83) she observed people coming to the residence, for what appeared to her, as buying drugs from BABBIT.

4. Robert Harry WEIDENMOYER, W-M-33, DOB--5/31/49, is known to the Penna. State Police as being a member of the War-Locks Motorcycle Gang. The affiant checked the files at PSP Limerick and learned that WEIDENMOYER had been arrested five (5) times for various charges including assault, robbery, trespass and uniform firearms act.

5. On 1 March 83, the affiant checked with a confidential informant, in reference to the activities of WEIDENMOYER. This informant has supplied information to the affiant in the past and has proved this information to be true and reliable. This informant has provided the Affiant with information which has led to the arrest and conviction of at least two (2) persons in Montgomery County for drug violations. Both arrests were made for possession and possession with the intent to deliver methamphetamine. This informant related to the affiant that he/she has known the subject WEIDENMOYER for over one (1) year and during that period of time has known the subject to sell methamphetamine and use cocaine. Approximately six (6) months prior to this date the informant observed the subject WEIDENMOYER with methamphetamine in his possession. The informant further related that WEIDENMOYER has no steady type of employment and to the best of the informant's knowledge his (WEIDENMOYER) sole source of income is selling drugs. The informant has not had personal contact with WEIDENMOYER within the past three or four (4) months, however, he/she has heard through other individuals that WEIDENMOYER is still selling methamphetamine.

6. On 1 March 83, the affiant checked with Tpr. William DAVIS, PSP Motorcycle Club Intelligence Unit, concerning the activities of WEIDENMOYER. Tpr. DAVIS related that he received intelligence information concerning WEIDENMOYER approximately one (1) year ago and learned that he was selling methamphetamine. Tpr. DAVIS related that his information had WEIDENMOYER purchasing methamphetamine from Ronald "Ronnie" FOSTER, the National President of the Warlocks and that WEIDENMOYER was purchasing pound quantities.

7. On 1 March 83, the affiant further learned through Cpl. DELP that when he interviewed Ms. COON on 27 Feb. 83, Ms. Coon related that WEIDENMOYER has at least two (2) dogs, one (1) is a doberman and both are vicious. Ms. COON also related that BABBIT talked about a large amount of guns which he has somewhere.

8. The affiant feels that narcotic violations are being committed at the WEIDENMOYER residence and request that a search warrant be issued for the premises. Ms. COON was present inside the WEIDENMOYER residence between 25-27 Feb. 83 and observed drugs. A check with a reliable informant revealed that WEIDENMOYER is still involved in selling drugs. PSP Limerick has WEIDENMOYER'S last known address as 439 Main Street, Trappe, Penna. The affiant feels that probable cause has been established for a search warrant for the WEIDENMOYER residence.

The affiant was presented to District Justice Bernard Maher who found that probable cause existed. He issued a warrant to search the named premises. That same day, Troopers Thomas M. Bowman and George Painter went to 439 Main Street to execute the warrant. After knocking, they were met by appellee Carter who indicated that Weidenmoyer was not in the house. The officers identified themselves, handed Carter the warrant, and proceeded to search the premises. Thereupon police discovered contraband believed to be controlled substances and placed Carter under arrest. Weidenmoyer surrendered to police three days later.

A suppression hearing was held before Judge Anita B. Brody on August 25-26, 1983, to determine the admissibility of the evidence seized pursuant to the warrant. The judge held that the magistrate had a substantial basis for concluding that there was a fair probability that contraband would be found on the searched premises. The evidence was admitted at trial, and both defendants were found guilty of two counts of possession of a controlled substance, two counts of possession with intent to deliver, and criminal conspiracy. Post-trial motions were denied.

On appeal to the Superior Court, the judgments of sentence of each defendant were reversed. The court held that "the affidavit of probable cause was either too remote in time or bore no relevance to establishing probable cause to search [appellees'] home for controlled substances." In addition, the three-judge panel found that the statements of the informant, Hazel Maxine Coon, were not supported by adequate facts. Commonwealth v. Carter, Nos. 831-832 Phil.1984 (Pa.Super. filed Sept. 6, 1985). Judge Montemuro filed a dissenting memorandum.

Since the Superior Court decision, this Court has held that the standard for analyzing probable cause under the Pennsylvania Constitution for a search warrant based upon an informant's statements to police is the "totality of the circumstances" standard as announced by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We thus broadened the more rigid two-prong test of 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). Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). ⁴ This new test can be stated as follows:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing] that probable cause existed." Jones v. United States, [362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) ].

Commonwealth v. Gray, 509 Pa. at 484, 503 A.2d at 925, quoting Illinois v. Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. Regardless of which test is employed, it is clear that the affidavit submitted by Trooper Weniger justified the issuing authority in issuing the warrant to search 439 Main Street. The sentences should not have been reversed.

The propriety of the grant of a search warrant to an affiant must be judged solely upon the information before the district justice at the time of its issuance. Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984); Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975), cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376. The fact that the search resulted in the seizure of contraband is not relevant to our inquiry. Moreover, we note that the determination of the issuing authority should be given great deference. Illinois v. Gates, supra; Commonwealth v. Jones, supra; Commonwealth v. Stamps, supra; Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283 (1973). Therefore, we must examine the affidavit...