Commonwealth v. Coleman

• Decision Date: 18 August 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Gary COLEMAN, Appellee.
• Court: Pennsylvania Supreme Court

830 A.2d 554

574 Pa. 261

COMMONWEALTH of Pennsylvania, Appellant v. Gary COLEMAN, Appellee.

Supreme Court of Pennsylvania.

Argued March 5, 2002.

Decided August 18, 2003.

Robert A. Willig, Pittsburgh, for the Com. of Pa., Appellant.

Vincent C. Murovich, Pittsburgh, for Gary Coleman, Appellee.

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

OPINION OF THE COURT

Justice CASTILLE.

This case is before the Court following our remand for further consideration in light of our decision in Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000), where this Court held that Article I, Section 8 of the Pennsylvania Constitution does not categorically prohibit the issuance of anticipatory search warrants. We agree with the Commonwealth that the Superior Court panel below erred in requiring a degree of certitude in this search warrant affidavit that is inconsistent with the inherently contingent nature of anticipatory warrants. Accordingly, we reverse the order of the Superior Court and remand for proceedings consistent with this Opinion.

On February 27, 1995, Sergeant William Black of the Elizabeth Township Police Department and Detective James Comunale of the North Versailles Police Department prepared an affidavit of probable cause, seeking contingent authority to search appellee's residence. The affidavit averred that a reliable confidential informant (hereinafter "CI") informed Sgt. Black that he could arrange a purchase of cocaine. The affidavit noted that the CI had given information in the past to both the Elizabeth Township Police Department and the McKeesport Police Department that had led to the arrests of other drug law offenders. In the middle part of February, the affidavit continued, the CI, working under the direction of Sgt. Black, was given $100 in "official funds" after a strip search revealed that he had nothing on his person. The CI then met a person identified in the affidavit only as an "unwitting informant" (hereinafter "UI"), who took the CI to a residence in North Versailles where the UI indicated he could purchase cocaine for the CI.

When the UI and the CI arrived at appellee's residence at 300 Dix Drive, at the corner of Dix and Tillman Drives in North Versailles Township, the UI took the $100 from the CI and entered appellee's residence. The UI returned a short time later with cocaine in powder form. The CI and the UI proceeded together to another location, still under the supervision of Sgt. Black. The CI and UI then parted company, at which point the CI met immediately with Sgt. Black, delivering to him the cocaine the UI had purchased from a person in appellee's residence. The powder field-tested positive for cocaine. The transaction took place between 10:00 p.m. and 6:00 a.m.

Sgt. Black informed Det. Comunale of the events occurring during the controlled cocaine buy. Det. Comunale was familiar with the residence where the purchase was made and knew that appellee lived there. A driver's license check and a check with the United States Postal Service confirmed that appellee lived at 300 Dix Drive, North Versailles. The affidavit noted that Det. Comunale had received numerous tips concerning a high volume of traffic at appellee's residence, especially in the late night and early morning hours. This traffic involved vehicles arriving at appellee's residence, the drivers and/or passengers going into the residence, exiting a short time later, and driving away. Det. Comunale also recounted a traffic stop of appellee in the late 1980s during which he had smelled the odor of burnt marijuana and appellee admitted he had been smoking a marijuana cigarette.

The affidavit further noted that Sgt. Black had directed the CI to arrange a second transaction for March 1, 1995, involving "the same scenario as the first transaction:" i.e., the CI would meet the UI in the early morning hours and the two would go to appellee's residence where the UI would take the CI's official funds and make a drug purchase. The affidavit concluded as follows:

Your affiant [sic] requests then that a nighttime anticipatory search warrant be issued to recover funds based upon the following:

1) The [UI] going into and coming out of 300 Dix Drive and delivering an amount of cocaine to the CI that the [UI] obtained inside the residence at 300 Dix Drive.

2) This same suspected cocaine field testing positive for cocaine.

3) The fact that intelligence both from the CI and other sources revealed that the Gary Coleman who is the actor who resides at 300 Dix Drive sells cocaine throughout the early morning hours regularly and the fact that the official funds given to Coleman by the [UI] might be gone due to future transactions where amounts of currency is [sic] exchanged for cocaine.

4) The CI is a reliable CI who has given information both to the Elizabeth Twp. Police Department and the McKeesport Police Department that has led to the arrest of other drug law offenders.

5) Your affiants have been working for the South East Valley Task force for approximately 7 years and have used confidential informants and has [sic] applied for search warrants in the past with several of these being the anticipatory type.

6) The search warrant will only be executed if the CI receives cocaine from the [UI] who in turn must obtain the cocaine from the residence at 300 Dix Drive in North Versailles Twp.

7) The official funds given the CI will have the serial numbers recorded for absolute proof that the currency is the official funds given to the CI.

Affidavit, p. 2. Paragraph 6 is notable for purposes of our review here, since it made clear that execution of the warrant would be contingent only if there was a successful completion of the anticipated drug buy.

District Justice Georgina G. Franci approved the warrant. The affidavit of probable cause was sworn before District Justice Franci on February 27, 1995, while the warrant itself was issued and dated on February 28, 1995 at 12:00 noon. The warrant authorized entry of 300 Dix Drive at "anytime during day or night" but no later than 12:00 p.m. on March 2, 1995. The warrant listed the items to be searched for as "$100 in official funds," and identified those funds by denomination and serial numbers.

Later that night, police proceeded with the controlled buy, albeit it did not materialize precisely as predicted in the affidavit. Sgt. Black testified at the suppression hearing that he and other police officers met with the CI at approximately 10:30-11:00 p.m. on the night of February 28 and briefed him. The CI then attempted without success to contact the UI by telephone. At that point, the CI offered to approach appellee's residence and attempt to make the controlled buy on his own and police approved of that procedure. Accordingly, at approximately 1:15 a.m. on the morning of March 1, 1995, police supervised a transaction during which the CI, after having both his car and person searched, entered appellee's residence with the recorded buy money and returned four to five minutes later with cocaine. N.T. July 18, 1996, at 35-36, 43-45.¹

The controlled buy having been consummated, police executed the anticipatory search warrant and seized over $10,000 in cash, including the $100 in cash identified by serial number on the face of the warrant; cocaine and marijuana; wiretapping equipment; two mechanical scales; two electronic scales; and ten firearms and assorted ammunition. On June 4, 1995, appellee was charged with possession of a controlled substance,² possession with intent to deliver,³ possession of marijuana⁴ and possession of drug paraphernalia.⁵

Appellee moved to suppress the evidence seized pursuant to the warrant arguing, among other things, that there was an insufficient basis for the district justice to conclude that evidence of a crime would be found inside his residence at the time the warrant was to be executed. The suppression court denied the motion. On November 12, 1996, a jury found appellee guilty of all charges.

Appellee appealed to the Superior Court, challenging the suppression ruling. In an opinion filed pursuant to Pa.R.A.P. 1925(b), the trial court explained its reasons for denying suppression. The court noted that an anticipatory search warrant "presupposes" that the evidence to be searched for is not then present on the premises. In the trial court's view, such a warrant is proper if the factual averments support a belief that the evidence "will arrive at the place to be searched upon the happening of a particular event." The court noted that law enforcement officers are not obliged to wait until a criminal scheme is brought to fruition before seeking a warrant; rather, so long as the issuing authority is presented with sufficient information to support a reasonable belief that there is a fair probability that evidence of past or present criminal activity will be on the premises when searched, the warrant may lawfully issue. Turning to the averments in this case, the court reasoned that the warrant affidavit established both that there was ongoing criminal activity at appellee's residence and a fair probability that there would be evidence of that activity present in the residence on March 1, 1995. The court deemed the evidence concerning the first drug transaction to be sufficient in itself to support a warrant, while the second transaction, "which had to take place before the warrant became valid for execution," "only served to bolster the degree of probable cause already established and to eliminate any staleness problems because the date of the first transaction was as long as two weeks" prior to the warrant application. These averments, as well as the averments concerning the reliability of the CI and other suspicious nighttime activity taking place at appellee's residence, led the court to conclude that the district justice properly issued the warrant. Trial court, Manning, J., slip op. at 5-8.

The Superior Court...