Commonwealth v. Miley

• Decision Date: 29 April 1983
• Citation: 460 A.2d 778,314 Pa.Super. 88
• Parties: COMMONWEALTH of Pennsylvania v. Frank J. MILEY, Appellant.
• Court: Pennsylvania Superior Court

460 A.2d 778

314 Pa.Super. 88

COMMONWEALTH of Pennsylvania v. Frank J. MILEY, Appellant.

Superior Court of Pennsylvania.

April 29, 1983

Submitted June 3, 1982.

Warren R. Hamilton, Philadelphia, for appellant.

Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before HESTER, CIRILLO and JOHNSON, JJ.

HESTER Judge:

Appellant Frank J. Miley, was charged on March 17, 1980 with possession with intent to deliver a controlled substance; manufacturing and possessing with intent to manufacture or deliver a controlled substance; and, intentionally possessing a controlled substance. He was found guilty of all charges following a non-jury trial in the Court of Common Pleas of Philadelphia County, Pennsylvania, and sentenced to a total term of imprisonment of not less than three (3) nor more than ten (10) years in a State Correctional Institution.

On March 17, 1980, Officer Raymond Stackhouse of the Philadelphia Police Department, received a telephone call from a confidential informant identifying appellant as the processor and seller of methamphetamine in a three story row house at 3831 Haverford Avenue, Philadelphia. Furthermore, the informant described appellant as a Negro male, age 45, 6 feet tall, the owner and operator of a blue and white 1975 Buick Electra and the frequent adorner of cowboy boots and cowboy hat. Finally, he informed Officer Stackhouse that appellant planned to move his methamphetamine lab that day, March 17, 1980.

Before securing a search warrant, Officers Stackhouse and Dougherty in plain-clothed attire, surveyed the row house from inside their parked, unmarked vehicle. Appellant was observed leaving the house; however, upon detecting the surveillance vehicle, his suspicions were apparently aroused and he retreated to the inside of the house. When appellant poked his head outside the front door a short while later, the officers approached him.

Both officers ascended the three steps leading directly from the sidewalk, running parallel to the street, to the threshold of appellant's row house. The exterior front door was open; consequently, the officers unobstrusively stepped into the hallway vestibule to shelter themselves from the rain and converse with appellant. The methamphetamine odor was detected at that point. ^[1]

The officers informed appellant that they planned to secure the residence and obtain a search warrant. They entered the first floor apartment from the interior doorway leading from the vestibule. Once inside, Officer Stackhouse called his supervisor, Lieutenant John Wilson, who, upon arrival, instructed Officer Stackhouse to obtain a search and seizure warrant for appellant's premises. Officer Stackhouse departed to do so.

Three other officers arrived to join Lieutenant Wilson and Officer Dougherty in securing the premises. Officer Stackhouse did not return with the search warrant for two and one-half hours; nevertheless, in the meantime, the officers at the scene obtained a key to a door at the end of the vestibule hallway leading to the second and third floors and discovered the chemicals, filters, flasks, tinfoil, bottles, face masks, scales, tubes, alcohol and other accessories used in processing methamphetamine. This paraphernalia was removed following Stackhouse's arrival with the search warrant.

Following his conviction of the aforementioned crimes, appellant's motions for a new trial and arrest of judgment were denied. This appeal is taken from the judgment of sentence.

Appellant first alleges that no probable cause existed for the issuance of the search warrant. He avers that the issuing magistrate had no knowledge of how the informant acquired his information of appellant's alleged illicit activity. Furthermore, according to appellant, Officer Stackhouse's detection of the methamphetamine odor was not an element of probable cause, because it was made following an unlawful intrusion into appellant's house. We disagree.

The United States Supreme Court, in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), promulgated a two-pronged test for determining the constitutionality of a search warrant issued on grounds supplied by a confidential informant. Prior to defining and applying the test, however, the Aguilar court first noted that a magistrate's finding of probable cause for a search warrant requires evidence of a less persuasive character than that upholding a police officer's independent, and less impartial, determination of probable cause. Judicial determination of probable cause simply merits more deference from the reviewing court. Where the search warrant affidavit contains allegations not within the affiant-police officer's personal knowledge, the two-pronged test becomes operative. A magistrate's finding of probable cause will not stand unless he is "informed of (1) some underlying circumstances from which the informant concluded that the narcotics were where he claimed they were [; and, (2) ] some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable." Id. at 378 U.S. 114 and 115, 84 S.Ct. at 1514. The issuing authority here, then, should have been apprised of the informant's basis for concluding that appellant possessed and processed methamphetamine, and of Officer Stackhouse's reasons for believing the informant to be credible and reliable. See Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975).

Since the search warrant affidavit contained no information detailing the method by which the confidential informant learned of appellant's drug processing or plans to move his lab, the first prong of the Aguilar test was satisfied only if the tip described appellant's criminal activity in sufficient detail to indicate that it emanated from something more than mere rumor or appellant's reputation. Commonwealth v. Salvaggio, 307 Pa.Super. 385, 453 A.2d 637 (1982); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). During cross examination at the suppression hearing, Officer Stackhouse, the affiant, responded to defense counsel's inquiries as follows:

Q. Do you know how the informant came to the conclusion that Frank Miley was manufacturing this methamphetamine?

A. Did I come to the conclusion as to how he knew this information?

Q. Yes.

A. No.

Q. Did he tell you?

A. I don't recall if he stated exactly how he knew this information.

N.T., July 20, 1981, p. 31.

This portion of the suppression hearing quite unequivocally reveals that the issuing authority did not know how the informant came to know the appellant's illicit acts; therefore, we look to the affidavit for the actual tip itself. It reads accordingly:

On Monday, 3-17-80, the assigned, did receive information from an informant who, in the past six months, has given this officer information that has resulted in three arrests with narcotics being confiscated on all three occasions.

This informant did call me at approximately 11:00 a.m. on March 17, 1980, and did state that a male known to him as Frank Miley, approximately 45 years, Negro male, who lived at 3831 Haverford Avenue was selling and processing methamphetamine from his residence located at 3831 Haverford Avenue. He also stated that Frank had been making meth all weekend and was planning to move his lab on Monday, along with all of the meth he had been making. He then described to me the subject of the warrant as being approximately six feet tall with a beard and frequently wore a cowboy hat and the cowboy boots and that he drove a 1975 Buick Electra, white top with dark blue body and the tag being AGU839.

Officer Stackhouse testified at the suppression hearing that the description of appellant's appearance and the identification of his residence and vehicle were precise and accurate; nevertheless, we do not believe that portion of the affidavit to be necessarily indicative of criminal activity. Descriptions of appellant's physical appearance, residence and motor vehicle could have been gleaned from non-implicative occurrences at the workplace and myriad social gatherings. Moreover, the statement that appellant processed methamphetamine the entire previous weekend and planned to move his laboratory on March 17, 1980 does not provide the sufficient detail required by Spinelli, supra, and Salvaggio, supra. The Salvaggio informant disclosed his frequent purchase of cocaine and marijuana from the defendant. The informant here was a known methamphetamine consumer; however, it was not known whether appellant was his supplier or whether he had ever seen appellant's methamphetamine laboratory.

We agree, therefore, with appellant to the extent that the affidavit neither disclosed the informant's source of his information nor sufficiently described appellant's criminal activity, but this accord does not end our review of the first prong of the Aguilar test. Where an informant's report does not establish probable cause, but is corroborated by independent observation, the issuance of a search warrant becomes constitutionally justified. Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974); United States v. Acarino, 408 F.2d 512 (2d Cir.1969), cert. den., 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969).

Here Officers Stackhouse and Dougherty conducted an independent surveillance of appellant's house at 3831 Haverford Avenue during the late morning hours of March 17, 1980. They observed the Buick Electra, bearing the precise color...