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HomeMy WebLinkAbout97-1838 criminalCOMMONWEALTH Of : IN THE COURT Of COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : v, : 97-1838 CRIMINAL TERM : MICHAEL SHIPE, : Defendant : IN RE: DEFENDANT'S PRE-TRIAL MOTION BEFORE HOFFER, P.J. ORDER OF COURT ANDNOW, ~~, (~ ,1998, after careful consideration of both parties' briefs, Defendant's Pre-trial Motion is denied. By the Court p.j. Travis Gery, Esquire Assistant District Attorney Cumberland County Attorney for the Commonwealth Paul Bradford Orr, Esquire 78 West Pomfret Street Carlisle, PA 17013 Attorney for the Defendant COMMONWEALTH OF IN THE COURT Of COMMON PLEAS PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 97-1838 CRIMINAL TERM : MICHAEL SHIPE, : Defendant IN RE: DEFENDANT'S PRE-TRIAL MOTION BEFORE HOFFER, P.J. OPINION OF THE COURT HOFFER, P.J.: In this opinion, we address Defendant Michael Shipe's Pre-trial Motion. Shipe claims that the Commonwealth executed an illegal seamh warrant of the Defendant's premises. Defendant asks that all of the evidence found at the premises be suppressed. Defendant also asks that the Commonwealth divulge the identity of the confidential informant who supplied information to the police which was then used to obtain probable cause for the search warrant. We deny Defendant's motion. Defendant's first claim is that the police officers entered his apartment prior to obtaining a search warrant, thereby violating Defendant's Fourth Amendment dghts. At the suppression hearing, two opposing stories were presented to the Court. For the Commonwealth, Officer Smith of the Carlisle Police Department testified. He stated that on the day in question he was at the Carlisle police station preparing warrants until 5:45 p.m. He obtained a search warrant for Defendant's 97-1838 CRIMINAL TERM apartment which was dated 5:50 p.m. The search warrant stated that the second floor apartment at 424 North Hanover Street would be searched for drug paraphernalia. Officer Smith testified that he entered the premises for the first time at 6:32 p.m. He searched the apartment for forty-five minutes to one hour and no one was present at the apartment during this search. For the defense, Miriam Shipe, the Defendant's grandmother testified. Mrs. Shipe claims that she went to her grandson's apartment at 5:20 p.m. She testified that she saw the rear door was open and a parole officer allowed her into the apartment. Mrs. Shipe claimed that the officer told her "there's a search going on, Officer Lortich is in there." Mrs. Shipe claims she left and returned approximately fifteen minutes later and saw Officer Lortich in the apartment. Miriam Cardova also testified for the defense. Ms. Cardova claimed that she arrived at the apartment at 5:40 p.m. or 5:45 p.m. She testified that when she arrived there she saw Officer Lortich at the door and Officer Smith in the apartment. This is an issue of credibility. Since each side has presented opposing testimony we must determine which party is more credible. We merely believe that the defense witnesses got their time mixed up; we accept the officer's testimony. The police had a proper warrant when they entered. 97-1838 CRIMINAL TERM Defendant's second claim is that the search warrant was invalid because it was not based on probable cause. The standard for determining whether probable cause exists for a search warrant is the "totality of circumstances" test. The issuing authority must make a practical, common sense decision, given all circumstances, including veracity and basis of knowledge of persons supplying hearsay, that there is fair probability that contraband exists. The totality of circumstances test is to allow a more flexible approach. Commonwealth v. Jones, 668 A.2d 114, 116-17 (Pa. 1995). The Court finds that the Commonwealth has met the above burden based upon the search warrant which was executed. The search warrant states that on August 16, 1997, the affiant received a phone call from a confidential informant stating that the informant had just observed two pounds of marijuana packaged in two separate bags in the Defendant's apartment. The confidential informant stated that one bag of marijuana was located in Shipe's apartment behind the television in the room next to the kitchen. The confidential informant then stated that Shipe was examining the second bag of marijuana. The warrant went on to state that based on Officer Smith's knowledge and experience in narcotics investigations, Smith believed that the marijuana was not for personal use and would be repackaged into smaller quantities for delivery. Smith went on to state in the 3 97-1838 CRIMINAL TERM affidavit that he believed the suspect did not yet have sufficient time to repackage and distribute the marijuana from the residence. Based upon the above information, the Court finds that the totality of circumstances test was met. The information contained in the warrant shows that the confidential informant was inside-of Shipe's apartment, had specifically seen where there was marijuana located, and saw Shipe handling the marijuana. The warrant also stated that the confidential informant had previously provided information that had led to arrests and convictions in the past. Additionally, the warrant stated that the affiant had received reliable information in the past from this informant. In Jones, the court went on to state that corroboration by the police is not needed if the affiant contends that the confidential informant was reliable in the past. Id. at 117. Based upon the information in the warrant, corroboration was not needed since the affiant had dealt with the confidential informant in the past and he had provided reliable information. Probable cause existed for a search warrant. The final issue which the Defendant raises is whether the Commonwealth must divulge the identity of a confidential informant. The courts have held that where the confidential informant is not a witness to the incident at issue, the 97-1838 CRIMINAL TERM Defendant must show that the Commonwealth's disclosure of the identity of the informant is material to his defense, reasonable, and in the interests of justice. Commonwealth v. Hritz, 663 A.2d 775, 778 (Pa. Super. 1995)(quoting Commonwealth v. Ross, 623 A.2d 827, 829 (Pa. Super. 1993)). At this point in time, the Defendant has not met the requirement of proving to the court that the information sought is material to the defense, the request is reasonable, and the information is in the interest of justice. 5