Commonwealth v. Davis

• Decision Date: 22 June 1984
• Citation: 480 A.2d 1035,331 Pa.Super. 285
• Parties: COMMONWEALTH of Pennsylvania v. James Clarence DAVIS, a/k/a Dickey, Appellant.
• Court: Pennsylvania Superior Court

480 A.2d 1035

331 Pa.Super. 285

COMMONWEALTH of Pennsylvania v. James Clarence DAVIS, a/k/a Dickey, Appellant.

Superior Court of Pennsylvania.

June 22, 1984

Submitted March 24, 1983. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Susan C. DeYoung, Asst. Public Defender Harrisburg, for appellant.

William A. Behe, Deputy Dist. Atty., Harrisburg, for Commonwealth, appellee.

Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.

CERCONE, President Judge

Appellant was arrested, charged, and convicted of possession of a controlled substance with intent to manufacture or deliver. Post-trial motions were filed and subsequently denied. ^[1] Appellant was sentenced to a term of incarceration of three (3) to six (6) years. He then filed this appeal raising four issues, which actually represent nine claims.

The first contention raised is that the suppression court erred in not suppressing the fruits of a search conducted pursuant to a search warrant. Appellant argues that the affidavit of probable cause was inadequate to justify a search and that the premises to be searched were not described with "sufficient precision." Additionally, appellant complains that the police in executing the warrant violated the "knock and announce" rule. We find that the affidavit of probable cause was adequate and sufficiently precise to justify the search of appellant's residence and that the execution of the warrant was proper in the circumstances of this case.

The affidavit of probable cause read as follows Received information from an informant who has given truthful information concerning drugs to the affiant in the past. This informant was sent to said address after being searched by Hbg. Police Officers, observed going to and from said address where a $100 purchase of heroin was made. Said informant also observed more drugs on the premises. Informant was observed leaving the premises and again searched by Hbg. Police Officers. James Davis has been arrested on previous drug charges on 7-18-72 N.Y. City possession of dangerous drugs, 10-23-75 Pa. possession of heroin, 12-6-75 N.Y. possession of controlled substance, 12-8-78 N.Y. drug paraphanalia, [sic] 7-14-79, Hbg. Pa. heroin. The affiant on several routine surveillance observed persons addicted to controlled substances entering and leaving said residence. Below is a list of the serial numbers of the monies used to make said purchase.

In particular appellant complains that while the police alleged that a controlled buy had occurred at the described premises, they did not allege that it had been made from appellant. Additionally, he argues that the trustworthiness of the informant was not established and the allegations of the most recent previous drug involvement were three months old and had not resulted in a conviction. Finally, he contends that there was no indication of when the affiant had observed the coming and going of addicts from appellant's residence.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court adopted a "totality of the circumstances" approach in evaluating affidavits of probable cause used to support the issuance of search warrants. This court has followed the Supreme Court's lead. See Commonwealth v. Price, 318 Pa.Superior Ct. 240, 464 A.2d 1320 (1983); Commonwealth v. Sorrell, --- Pa.Superior Ct. ---, 465 A.2d 1250 (1983). Applying the "totality of circumstances" approach to the affidavit at hand, we find that the affidavit did not rely upon the unproven credibility of the undisclosed informant and that it did establish probable cause for the issuance of the search warrant.

The issuing authority was advised by the affiant of the controlled buy, of appellant's arrest record, and of the observation of known drug addicts visiting appellant's apartment. Each such factor is a proper consideration in assessing an application for a search warrant. See Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974) (probable cause established in part by prior related arrests); Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974) (may consider prior arrests and association with known violators); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974) (may consider encounters with individuals previously known as result of drug violations); Commonwealth v. Ensminger, --- Pa.Superior Ct. ---, 473 A.2d 116 (1984) (controlled buy by informant); Commonwealth v. Bable, 286 Pa.Superior Ct. 203, 428 A.2d 643 (1981) (police may consider prior criminal record). It is the combination of these various considerations which distinguish this case from others like Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. Demchak, 251 Pa.Superior Ct. 253, 380 A.2d 473 (1977); and Commonwealth v. Davis, 225 Pa. Superior Ct. 242, 310 A.2d 334 (1973).

In Tolbert, the Commonwealth relied upon a stale observation by an informant and recent observations of conduct equally consistent with drug trafficking or innocent activity. Probable cause was found not to exist because the informant's first hand observation was not current and could not make innocent conduct suspect. Here we have a recent controlled purchase as well as visits by known drug users; the police here did not rely heavily upon the initial tip to support the warrant. In Demchak probable cause was not present, as while the police were aware of the defendant's prior arrest, his subsequent suspicious conduct was too dissimilar to the prior conduct to justify an intrusion into his privacy. Here the informant's purchase of heroin was consistent with appellant's background.

Probably most similar to appellant's situation, yet clearly distinguishable, is Davis, supra. There the basis for the search warrant were observations of reputed narcotic dealers coming and going from the defendant's residence. The defendant himself had a reputation as a drug pusher and had recently been arrested on such charges. Questionable activity was observed near his house. Such information did not afford a reasonable inference of criminal conduct. However, in appellant's situation we have the additional fact of a recent controlled buy.

Nor do we find merit to appellant's objections that the affiant's failure to indicate when he observed the known drug users coming and going and the staleness of appellant's prior arrests, prevented the issuing authority from finding probable cause present. For as we held in Commonwealth v. Ryan, 300 Pa.Superior Ct. 156, 170, 446 A.2d 277, 284 (1982); "Properly recited facts indicating activity of a protracted and continuous nature make the passage of time less significant. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981)." Prior conduct of a party can not alone support the issuance of a search warrant, however, such fact can be considered along with other available information so long as the prior conduct bears a sufficient similarity to the acts in question. Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974); Commonwealth v. Bable, 286 Pa.Superior Ct. 203, 428 A.2d 643 (1981).

In the case at hand the issuing authority could quite properly look at the alleged controlled purchase in light of appellant's prior arrests and the surveillance at an unknown time and find that it was probable that illicit drugs had been over a period of time and were currently being dispensed from appellant's residence. It is only the probability of criminal conduct, and not a prima facie case, of criminal activity that need be demonstrated. Commonwealth v. Mazzochetti, 299 Pa.Superior Ct. 447, 445 A.2d 1214 (1982). Here we find that the affidavit did set forth the probability that narcotics were being distributed from appellant's residence. ^[2]

In regards to the description of the premises, appellant submits that the row house had been converted into two units and had the police checked with his landlord they would have discovered such. In fact he contends the police should have been aware of this from their own informant's visit to the premises. The trial court accepted the police officer's testimony to the effect that from the outside there appeared to be only one residence and that according to their information, appellant and his girlfriend were the only occupants. The landlord testified that appellant rented the whole house.

In Commonwealth v. Andujar, 264 Pa.Superior Ct. 326, 399 A.2d 1074 (1979) this court held that where a row house had been converted into two units, but the description in the warrant evidenced only one unit, such description was sufficiently specific where diligent efforts of the police had not disclosed the existence of the internal subdivision. Similarly in Commonwealth v. Chamberlain, 277 Pa.Superior Ct. 503, 419 A.2d 1261 (1980) we stated that if there is cause to believe the premises covered by the warrant are being used as a single unit, the warrant directing the search of more than one unit is permitted. In the absence of evidence as to any exterior features which would have indicated the presence of more than one unit, a warrant will not be invalidated because it authorizes a search of an entire house, although the house consists of two units. Commonwealth v. Yucknevage, 257 Pa.Superior Ct. 19, 390 A.2d 225 (1978).

The current case clearly falls within the scope of the above cases and therefore we find that the search warrant did adequately describe the premises. As the police testified they were under the impression, which was correct, that appellant and his girlfriend were the sole occupants of the structure. Visual observations of the exterior of the building did not raise a question as to the unitary occupancy. Therefore we can not find a fatal flaw in the description of the premises.

Appellant's...