Commonwealth v. Wallace

CourtUnited States State Supreme Court of Pennsylvania
Citation42 A.3d 1040
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Gregory WALLACE, Appellant.
Decision Date26 April 2012

42 A.3d 1040

COMMONWEALTH of Pennsylvania, Appellee
Gregory WALLACE, Appellant.

Supreme Court of Pennsylvania.

Argued March 9, 2010.
Decided April 26, 2012.

[42 A.3d 1042]

Louis Theodore Savino, Jr., Louis T. Savino Associates, P.C., Philadelphia, Elliot Cohen, for Gregory Wallace.

Hugh H. Burns, Jr., Philadelphia District Attorney's Office, Philadelphia, Mary Huber, for Commonwealth of Pennsylvania.



Justice TODD.

In this case, we address whether there was sufficient probable cause for the issuance of an anticipatory search warrant for Appellant's home. After review, we conclude there was not and, thus, find the

[42 A.3d 1043]

warrant, which authorized a search of Appellant's home after the completion of a controlled purchase by a confidential informant, violated the Fourth Amendment to the United States Constitution, as well as Article I, Section 8 of the Pennsylvania Constitution. We therefore reverse the order of the Superior Court and reinstate the order of the trial court which suppressed evidence seized from Appellant's home.

On September 8, 2005, Philadelphia Narcotics Officer Myra Hawkins sought an anticipatory search warrant for Appellant's residence based on the following allegations she set forth in the affidavit of probable cause:

On Wednesday, 09–07–05, P/O Hawkins # 5701 received information from C/I # NFU# 2–012 about the sales of cocaine from a black male who is known to the informant as “GREG” and operates a Gold colored Mercedes used to deliver narcotics. The informant stated that he/she [ 1] can purchase 4 ounces of cocaine from “GREG” this date (09–08–05) between the hours of 7:00 p.m.–10:00 p.m. The informant also supplied the cellular and home phone number of “GREG” which is (215) 514–7235 (cellular) and (215) 462–4450). P/O Hawkins debriefed this informant again on 09–08–05, at which time the location for the sale was determined to be at 635 Morris Street.

P/O Hawkins # 5701 conducted an investigation of the residence of 635 Morris Street. Voters registration identified Gregory Wallace, DOB 02281971)[sic] as a registered voter at the location. A Bureau of Motor Vehicles investigation showed Gregory Wallace having a valid PA DL# 28390984 at the location of 635 Morris Street. A Criminal History Check of Philadelphia Photo Number # 0978274 give [sic] the address of 635 Morris Street listing the phone number of (215) 462–4450 same home phone number given to police by C/I NFU# 2–012 on 09–07–05.

C/I NFU# 2–012 has been used in the past refer to DC# 05–03–033540 yielding approx. 60 grams of cocaine with a street value of 6,000.00 and drug paraphernalia. After interviewing the informant and conducting an investigation of the premises, your affiant is requesting an anticipatory search warrant for the location of 635 Morris St upon completion of a controlled purchase of cocaine by this confidential informant.

Affidavit of Probable Cause, 9/08/05, at 2.

The warrant was issued by a magistrate judge on September 8, 2005. That same day, between 7:00 and 9:00 p.m., Officer Hawkins accompanied the informant to a house at 635 Morris Street and, after searching the informant for money and contraband, gave him $3,800.00 in prerecorded “buy money.” Officer Hawkins observed the informant knock on the door and then enter the residence. Two to three minutes later the informant exited the house, walked to where Officer Hawkins was waiting, and provided her with two bags of cocaine. The police then executed the search warrant, entered the house, and recovered during their search the buy money, along with other drugs, drug paraphernalia, and Appellant's keys to the house.

Appellant was arrested and charged with possession and possession with intent to deliver cocaine, as well as possession of drug paraphernalia. Prior to trial, he filed a suppression motion, and, after conducting a suppression hearing, the Honorable

[42 A.3d 1044]

Lillian Ransom ruled the drugs should be suppressed on the grounds that the warrant was not supported by adequate probable cause. In her Pa.R.A.P. 1925(a) opinion, Judge Ransom explained her reasoning: “Although the police verified the name, address and telephone number that the confidential informant gave to them, none of this information evidenced any suspicion of criminal activity. The police had not observed any criminal activity nor were they informed of any prior criminal activity involving either the appellant or that location.” Trial Court Opinion, 6/14/2007, at 3–4. The court additionally observed that the police did nothing to corroborate that the residence was being used for drug activity, through independent surveillance or other means, and, unlike in previous decisions from our Court concerning the validity of anticipatory search warrants—Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000), and Commonwealth v. Coleman, 574 Pa. 261, 830 A.2d 554 (2003)—there was no controlled buy of narcotics prior to the issuance of the warrant.

The Superior Court reversed the trial court in an opinion authored by then-Judge, now-President Judge Correale Stevens and joined by Judges Richard Klein and Zoran Popovich. Commonwealth v. Wallace, 953 A.2d 1259 (Pa.Super.2008). The panel offered the following rationale in support of its decision:

The ... affidavit explains: the manner in which the matter was brought to the attention of investigating authorities; the steps taken by Officer Hawkins to corroborate and verify the information supplied by the informant; the timing of her investigation; and the precise nature of the triggering event, namely the controlled buy. Once the controlled buy was made, probable cause was established. Based on the totality of circumstances, we find that the affidavit reveals a fair probability that the controlled buy would take place, and that controlled substances would be found at the location in question. Accordingly, finding that the search warrant possessed the requisite probable cause, we hold that the evidence seized from the residence pursuant to the search warrant was lawfully obtained.

953 A.2d at 1262–63.

Appellant filed a petition for allowance of appeal from our Court, which we granted, in order to consider the following question:

Did the Superior Court err in finding sufficient probable cause for the issuance of an anticipatory search warrant for Petitioner's home?

Commonwealth v. Wallace, 604 Pa. 322, 986 A.2d 46 (2009).

We begin by considering the arguments of the parties. Appellant contends that the decision of the Superior Court should be reversed because the affidavit of probable cause, facially, failed to set forth sufficient facts establishing probable cause that he was storing illegal drugs in his residence. Appellant points out that the only mention of his connection to illegal drugs was the informant's bald allegation that Appellant dealt drugs out of his automobile. He further notes that there was no effort made by the police to develop additional information to corroborate the allegations of the informant, or to establish that contraband could be found in his residence.

Appellant asserts that, under the United States Supreme Court decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (articulating a “totality of the circumstances” test to analyze whether an affidavit in support of a search warrant contains sufficient probable cause under the Fourth Amendment to the United States Constitution), and our Court's

[42 A.3d 1045]

holding in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (adopting the Gates analysis under Article I, Section 8 of the Pennsylvania Constitution), in order to determine whether an affidavit sets forth adequate probable cause, an informant's “veracity, reliability and basis of knowledge must be assessed.” Appellant's Brief at 10. Appellant maintains that the Superior Court failed to apply this standard when it evaluated the affidavit of probable cause in this matter.

Appellant notes that mere allegations by an informant, standing alone, are insufficient to establish probable cause, and he cites the plurality decision from our Court in In the Interest of O.A., 552 Pa. 666, 717 A.2d 490 (1998), to buttress this conclusion. Appellant discusses the lead opinion in that case, which found a tip from an anonymous informant that another individual was dealing drugs, to be insufficient to establish probable cause for arrest, despite the fact that the police officer had asserted that the informant had previously given information leading to 50 arrests. As Appellant points out, that opinion applied the Gates/Gray totality of the circumstances test and determined that, because the police merely made bald assertions that the informant was reliable, but provided no objective facts establishing his reliability, the failure of the police to corroborate the allegations of the informant rendered the arrest, and the search conducted thereto, illegal.

Comparing the information set forth in the affidavit of probable cause in the instant matter, Appellant calls attention to the fact that it contained no facts which corroborated the allegations of the informant. Appellant contends that, since there was no other evidence in the affidavit, apart from the unverified allegations of the informant, to suggest that he was a drug dealer, or that he stored contraband at his home, this lack of corroboration rendered the warrant fatally defective for lack of probable cause.

Appellant stresses that even anticipatory search warrants, which contemplate the occurrence of a future event, must still be supported by sufficient information establishing a fair probability that the event will in fact occur. Appellant argues the Superior Court has previously recognized this requirement in Commonwealth v. Smith, 784 A.2d 182 (Pa.Super.2001) (upholding suppression of evidence seized pursuant to anticipatory search warrant because...

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