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HomeMy WebLinkAbout99-573 criminalCOMMONWEALTH Vo JAMES LOVELL CAREY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-0573 CRIMINAL TERM IN RE' DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J, AND NOW, this ORDER OF COURT ~}~ day of JANUARY, 2000, for the reasons stated in the attached opinion, Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence is GRANTED in part and DENIED in part. It is granted insofar as any evidence seized from the person of the Defendant is suppressed. In all other respects, it is DENIED. By the Edward E. Guido, J. District Attorney H. Anthony Adams, Esquire For the Defendant :sld COMMONWEALTH go JAMES LOVELL CAREY · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 99-0573 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO. J. OPINION AND ORDER OF COURT On November 19, 1999, the Defendant filed an Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence. Specifically he alleges that the warrant for the search of his apartment was defective in that it was overly broad and was not supported by adequate probable cause. An evidentiary hearing was held before this Court on December 22, 1999. At the hearing a copy of the search warrant was entered into evidence as Commonwealth Exhibit 1. At the conclusion of the hearing, the parties were directed to file briefs, which they have done. This matter is now ready for disposition. FINDINGS OF FACT The affidavit of probable cause attached to the application for the search warrant set forth the following facts: Your affiant, Sergeant Stephen F. Valencic has been a Pennsylvania State Trooper for sixteen years and currently holds the position of District Office Commander of the Harrisburg Office of the Bureau of Liquor Control Enforcement. Your affiant has been involved in the enforcement and investigation of numerous drug and alcohol related arrests. In your affiant's experience, I have developed the ability to recognize the smell of 99-0573 CRIMINAL burning marijuana, the appearance of individuals under the age of 21 and the characteristics of malt or brewed beverages. Officer John Shindledecker has been a police officer with the Waynesboro Police Department in Waynesboro Pennsylvania for three years. Officer Shindledecker has received-specific training on identification and recognition of controlled substance. Officer Shindledecker has been made numerous arrests for violation of Act 64- Controlled Substance Act and alcohol related offenses. Specifically, section 63-08 (a) of Title 18 -the Pennsylvania Crimes Code. It is Officer Shindledecker's experience that persons present at places where controlled substances are distributed often have controlled substances for personal use and paraphernalia on their persons. So it is requested that any person present at the residence or arriving at the residence during the execution of the warrant be subject to the search. On Wednesday, December 9th, 1998 on or about 2300 hours, your affiant accompanied by Officer John Shindledecker approached 20 Britton Court apartment complex. At this time, numerous youthful appearing individuals were observed on the balcony of apartments "Q" and "R" in possession of clear plastic cups. The cups contained an amber colored liquid with a white foamy top that had the appearance of a malt or brewed beverage. One unknown black male located directly in front of apartment "Q" was heard yelling too (SIC) several youthful appearing white females who were departing the area to come back and that they had two barrels of beer and twenty bottles. Your affiant accompanied by Officer John Shindledecker approached apartment "Q" at which time the door leading into apartment "Q" was opened an (SIC) closed several times by youthful appearing individuals entering and exiting in possession of cups and bottles of beer. At this time a strong odor of' marijuana was smelled emanating from apartment "Q" .... We departed the area on or about 2310 hours. · o · Your affiant is requesting a nighttime search warrant due to the fact that the violations are currently taking place at this time and by daylight, the evidence will be consumed or destroyed, thus rendering the investigation unwarranted. Based upon the above facts, the affiant requested the issuance of a warrant to search the following "premises and/or persons"' Two story apartment building with brown brick coveting. A wooden balcony on the front of the apartment building. Located at 20 Britton Court in Shippensburg Township. The specific apartment being Q. ' Apartment Q is located on the second floor and is entered from the front balcony and has a gold letter Q on the entrence (SIC) door. All people 99-0573 CRIMINAL inside the Apartment at the time and during the search. All People entering and leaving the apartment. (emphasis added) Finally, the affiant identified the items "to be searched for and seized" as follows: People under the age of twenty-one consuming alcohol. Keg of Alcohol. Bottles of Alcohol. Cans of Alcohol. Controlled Substances contianed (SIC) in the Drug and Cosmetic Act. Drug paraphernalia, scales, anything used to ingest or introduce controlled substance into the human body. Any US Curancy (SIC) and or Ducuments (SIC) related to Drug sales of Controlled Substances. The District Justice issued the search warrant at 12:25 a.m. on December 10, 1998. It authorized a nighttime search of the premises and persons as requested. Sgt. Valencic and several other officers proceeded directly to the premises. By the time they arrived, the party was no longer in progress.~ The search commenced at 12:45 a.m. There was only one occupant in the apartment when the officers arrived. He was searched. The Defendant entered the apartment approximately ten to fifteen minutes after the search began. He advised the officers that he lived in the apartment and demanded to know what was going on. He was searched pursuant to the warrant and the officers seized a small amount of marijuana from him. Additional amounts of drugs and drug paraphernalia were discovered in the Defendant's bedroom. CONCLUSION OF LAW 1) Sufficient probable cause existed to support a search warrant for the premises. 2) There was insufficient probable cause to support a search warrant for all persons present on the premises. ~ There were no underage drinkers on premises at the time the officers arrived. Furthermore, no alcohol was seized because it had all been consumed. 99-0573 CRIMINAL 3) Any evidence seized from the Defendant pursuant to the search warrant must be suppressed. 4) Any evidence seized from the premises pursuant to the search warrant should not be suppressed. DISCUSSION Probable Cause For Search Warrant. Our Superior Court has noted that "the standard for evaluating whether probable cause exists for the issuance of a search warrant is the 'totality of the circumstances' test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983), which was adopted by the Pennsylvania Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921,925 (1985)." Commonwealth v. Luton, 448 Pa. Super. 608, 612, 672 A.2d 819, 821 (1996). The Luton. Court went on to state: A magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him,.., there is a fair probability that contraband or evidence of a crime will be found in a particular place. The information offered to establish probable cause must be viewed in a common sense, non-technical manner and deference must be given to the issuing magistrate. Id. at 612-13,672 A.2d at 821 (citations omitted). Applying the above standard to the facts before us, we are satisfied that the magistrate was presented with sufficient probable cause to justify the issuance of the search warrant for the premises. The occupants of apartment Q were hosting a keg party at which several underage patrons were drinking beer. In addition, some of the party - 99-0573 CRIM~AL goers were also using marijuana. Under those circumstances the magistrate was justified in issuing the search warrant.2 Authority To Search All Persons Present. The breadth of the warrant, however, is an entirely different matter. Defendant argues that the warrant was overly broad in that it authorized the search of all persons present or entering into the apartment during the search. For the reasons hereinafter set forth, we agree. Pennsylvania Rule of Criminal Procedure 2005(c) requires that every search warrant "name or describe with particularity the person or place to be searched.''3 The issuance of warrants authorizing the search of all persons present in a particular location are generally looked upon with disfavor in this Commonwealth. See Commonwealth v. Heidelberg, 369 Pa. Super. 398, 535 A.2d 611 (1987). While there are situations when such warrants may be issued, "they are only permissible when the affidavit of probable cause contains sufficient facts to justify a search of everyone found on the premises." Commonwealth v. Wilson, 429 Pa. Super. 197, 201, 631 A.2d 1356, 1358 (1993). The 2 It has long been the law of this Commonwealth that the smell of burning marijuana alone may be sufficient to establish probable cause for a search warrant. As the Superior Court stated in Commonwealth v. Stainbrook, 324 Pa. Super. 410, 471 A.2d 1223 (1984): The Supreme Court of the United States has held that an odor may be sufficient to establish probable cause for the issuance of a search warrant. United States v.. Ventre$ca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), as cited in Commonwealth v. Stoner, 236 Pa. Super. 161,344 A.2d 633 (1975) .... In Stoner, we analogized a "plain smell" concept with that of plain view and held that where an officer is justified in being where he is, his detection of the odor of marijuana is sufficient to establish probable.cause. 3 See also Article 1 Section 8 of the Pennsylvania Constitution which provides that a search warrant shall not be issued for a place or person "without describing them as nearly as may be..." 99-0573 CRIMINAL Superior Court set forth the following relevant factors to be considered in reviewing such a warrant: [T]hough generally disfavored, an "all persons present" warrant would be deemed constitutional when the totality of the circumstances established a sufficient nexus between the persons to be searched, the location, and the criminal activity suspected. In Heidelberg, we found a sufficient nexus to justify issuance of an "all persons present" warrant based upon the fact cocaine sales had been observed between the occupant and other persons at the house within twenty-four hours of the application for the warrant, a large quantity of cocaine was believed to be kept at the house, the place to be searched was a private residence, and the crime suspected involved contraband which could easily be hidden on the body. We reasoned that the likelihood that anyone present at the time of the execution of the warrant might be involved in the cocaine distribution or be willing to hide evidence of the operation on their person was sufficient to justify issuance of an "all persons present" warrant. Commonwealth v. Graciani, 381 Pa. Super. 626, 630, 554 A.2d 560, 561 (1987). (citations omitted) Applying the rationale set forth above to the case before us, it is clear that the instant warrant was overly broad. The probable cause affidavit in this case does not establish a sufficient nexus between the alleged criminal activity and all persons in or entering into the apartment. There were numerous people coming and going to the party. Only some of them were drinking alcoholic beverages and only some of those were underage. Furthermore, while the affidavit states that a strong odor of marijuana was coming from the apartment, it is not reasonable to suspect that everyone there was partaking of the illegal drag.4 Nor is it even remotely reasonable to conclude that everyone entering the apartment during the course of the search would be involved in the illegal activity. The warrant would authorize the search of a landlord checking on the noise or a hard working college student simply delivering a pizza. Under those 4 Some of the revelers were observed on the balcony and they were not using marijuana. 99-0573 CRIMINAL circumstances, the warrant is overly broad in violation of Article 1 Section 9 of the Pennsylvania Constitution as well as Pa. Rule of Criminal Procedure 2005(c). Appropriate Remedy. Having held that a portion of the warrant was invalid, we must now decide whether all of the evidence seized pursuant to the warrant must be suppressed. A similar issue was faced by the Superior Court in Commonwealth v. Bagley, 408 Pa. Super. 188, 596 A.2d 811, (1991). In Bagley a search warrant had been issued which authorized the search of an electrical system as well as a search for documents. The Superior Court agreed with the trial court that there was sufficient probable cause to justify a search of the electrical system but that there was not a sufficient showing of probable cause to justify the search for the documents. However, the Superior Court did not agree that all of the evidence had to be suppressed. It reasoned as follows' Our conclusion that some of the evidence seized pursuant to search warrant no. 12505 was properly suppressed does not prevent our reversing the order suppressing evidence pertaining to the electrical system. The doctrine of severance mandates that invalid portions of a search warrant may be stricken and the remaining portions held valid, as long as the remaining portions of the warrant describe with particularity the evidence to be seized .... Where a search warrant authorizes seizure of some items for which there is probable cause and other items for which there is no probable cause, the warrant is not wholly invalid. In such cases, suppression will be required only of the evidence which was seized without probable cause. Id. at 215,596 A.2d at 824. (citations omitted) Applying the above reasoning to the case at bar, the fact that there was insufficient probable cause to justify a search of all persons present does not invalidate the search of the premises for which probable cause was shown. Therefore, we will grant 99-0573 CRIMINAL Defendant's request ~to suppress the evidence seized as a result of the search of his person. However, we will deny his request to suppress the evidence seized as a result of the search of the premises. ORDER OF COURT AND NOW, this 21 sx day of JANUARY, 2000, for the reasons stated in the attached opinion, Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence is GRANTED in part and DENIED in part. It is granted insofar as any evidence seized from the person of the Defendant is suppressed. In all other respects, it is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney H. Anthony Adams, Esquire For the Defendant :sld