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HomeMy WebLinkAbout97-0451 CriminalCOMMONWEALTH V. ROGER HOUSE OTN: E006637-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-0451 CRIMINAL TERM. CHARGE: UNLAWFUL DELIVERY MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCHEDULE I CONTROLLED SUBSTANCE AFFIANT: PTL. WILLIAM A. BURGER, JR. IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., February 13, 1998. In this criminal case, Defendant has appealed to the Superior Court from a judgment of sentence following a nonjury trial before the Honorable Edgar B. Bayley in which he was found guilty of possession with intent to deliver a Schedule I Controlled Substance (marijuana). The basis for the appeal is that Defendant's pretrial suppression motion was erroneously denied.~ At the pretrial hearing held before the writer of this opinion ~ Defendant's Statement of Matters Complained of on Appeal indicates the following bases for the appeal: 1. The police search and seizure of the Defendant's locked bedroom violated the Defendant's rights under the Fourth and Fourteenth Amendments of the United States Constitution and under Article I, Section 8, of the Constitution of the Commonwealth of Pennsylvania and, therefore, all evidence seized as a result of said search and seizure should have been suppressed by the Court. 2. The search warrant relied upon by police in making the above-referenced search and seizure and the affidavit in support of said search warrant failed to raise a sufficient probable cause to justify the search of Defendant's locked bedroom and, therefore, all evidence resulting from said search should have been suppressed by the Court. NO. 97-0451 CRIMINAL TERM on Defendant's suppression motion,2 suppression of evidence seized during a search of Defendant's bedroom pursuant to a search warrant was sought on the grounds that (1) probable cause was lacking for issuance of the search warrant as it pertained to the bedroom and (2) the bedroom was not encompassed by the description of the premises to be searched in the warrant.3 This opinion in support of the court's pretrial denial of Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS 1. On Wednesday, July 12, 1995, Patrolman William A. Burger, Jr., of the Silver Spring Township Police Department went to Apartment 3, 1 East Main Street, New Kingstown [Silver Spring Township], Cumberland County, Pennsylvania, to serve an arrest warrant upon an individual named Shawn House. 2. While serving the arrest warrant, the officer observed in plain view marijuana, scales and other drug paraphernalia, and these items were confiscated.4 3. Detective Dale E. Sabadish of the Silver Spring Township Police Department, on that same day and as a result of Officer 2 The hearing was held on Wednesday, June 4, 1997. References in this opinion to the transcript of the suppression hearing will be given as N.T.. 3 N.T. 4. Commonwealth's exhibit 1. NO. 97-0451 CRIMINAL TERM Burger's observations, inter alia, applied for a warrant to search the premises at Apartment 3, 1 East Main Street, New Kingstown [Silver Spring Township], Cumberland County, Pennsylvania, for marijuana, paraphernalia, packaging materials, scales, records, money and other controlled substances.S 4. The affidavit of probable cause in support of the application for the search warrant presented by Detective Sabadish read as follows: Your affiant is a police Detective with the Silver Spring Twp. Police Dept. and a part- time officer with the Tri-County Drug Task Force. In response to a request from the Cumberland Co. Police Dispatcher, I went to the above address and met with Officer Burger who informed me of the following. Officer Burger went to the aforementioned address to serve an arrest warrant for Shawn House. He knocked on the door to the apartment and was allowed access by another resident, that being Joe Northcraft. Northcraft showed Officer Burger upstairs and then summoned Shawn House who was in the bathroom. Officer Burger advised House that he had a warrant for his arrest and that he had to accompany Officer Burger to the District Magistrates Office. House requested to put on a pair of shoes and stepped past Officer Burger and into a bedroom where he sat down on the bed. Officer Burger accompanied House into the bedroom and for his own personal safety, he made a visual survey of the bedroom. On the nightstand directly beside the bed in which House was sitting, Officer Burger observed two (2) sandwich size baggies containing a green vegetable substance in which officer Burger determined to be marihuana. In addition to the baggies, there were several burnt marihuana cigarettes and Commonwealth,s exhibit 1; N.T. 6. 3 NO. 97-0451 CRIMINAL TERM pair of Hemostats and a 35mm film canister. Within eight feet from where House was sitting there was a dresser. Officer Burger observed a set of triple beam scales and an opened box of Ziplock sandwich bags. Officer Burger has been a police officer since 1986 and has seen marihuana many times in the past and has made arrests for possession of marihuana and paraphernalia. Your affiant and Officer Burger know that these articles are consistent with sales and use of controlled substances. Further, your affiant has spoken with Det. Kurt Voggenreidter of the Tri-County Drug Task Force and learned that House is known by them to be a marihuana dealer. Therefore, it is reasonable to believe that additional marihuana and related articles are probably secreted within these premises. The apartment consists of other rooms which are locked and may be occupied by persons other than the occupants listed on the face sheet of this affidavit. One of these rooms may be occupied by Roger House, the father of Shawn House. Roger House also has a record of Act 64 arrests.6 5. The application for the search warrant described the "premises and/or persons to be searched" as follows: 1 East Main Street, Apt. #3, New Kingstown, Pa. 17072; being a white frame multi-apartment building, subject apartment situated on the second floor and having its main entrance on the west side of the structure.7 As noted in the preceding finding, the application also indicated that one of the rooms in the apartment might be occupied by "Roger House [Defendant herein], the father of Shawn House" and Commonwealth,s exhibit 1. Id. 4 NO. 97-0451 CRIMINAL TERM that Roger House "also ha[d] a record of Act 64 arrests." 6. The Honorable Glenn R. Farner, District Justice, approved and signed the search warrant.8 7. On that same day, Detective Sabadish, Officer Burger, Agent Kurt Voggenreiter of the Tri-County Drug Task Force, and Agent Ron Diller of the Bureau of Narcotics Investigation, Office of the Attorney general, executed the search warrant.9 8. During the search of the apartment, the officers encountered a locked door.~° 9. There was nothing, such as a doormat, door knocker, or mailbox, to indicate that the locked door led to a separate apartment.~ 10. The room behind the locked door did not have a separate bathroom.~2 11. kitchen.~3 12. The room behind the locked door did not have a separate The room behind the locked door did not have an Commonwealth,s eXhibit 1; N.T. 6. N.T. 6-7. N.T. 7. N.T. 9-10. N.T. 27. Id. 5 NO. 97-0451 CRIMINAL TERM entranceway separate from the main entrance to the apartment.TM 13. The room behind the locked door was the bedroom of Roger House.z5 14. The room behind the locked door was within the premises to be searched as described in the warrant,z6 15. A significant quantity of marijuana was found in the room behind the locked door.zv DISCUSSION General principles. The Fourth Amendment to the United States Constitution provides that "no warrant shall issue, but upon probable cause ... and particularly describing the place to be searched and the persons or things to be seized.,,z8 Similarly, the Pennsylvania Constitution states that "no warrant to search a place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause.,,z9 The major purpose of the particularity requirement in these provisions is to N.T. 32. N.T. 30. N.T. 10. N.T. 17. U.S. CONST. amend. IV. PA. CONST. art. 1, ~8. NO. 97-0451 CRIMINAL TERM prevent general searches.20 This "requirement ensures that the search will be carefully tailored ... and will not take on the character of the wide-ranging exploratory searches the Framers [of the United States Constitution] intended to prohibit.-2~ "The standard for evaluating whether probable cause exists for the issuance of a search warrant is the 'totality of circumstances, test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), and adopted by [the Pennsylvania Supreme] Court in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A magistrate is to make a 'practical, common- sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying the hearsay determination, there is a fair probability that contraband or evidence of a crime will be .found in a particular place.'" Commonwealth v. Jones, 542 Pa. 418, 424, 668 A.2d 114, 116-17 (1995), quoting Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). Probable cause is based on a finding of the probability of, not on a prima facie showing of, criminal activity, and a reviewing court is to give deference to an issuing authority's finding of 2o Commonwealth v. Reese, 520 Pa. 29, 34, 549 A.2d 909, 910 (1988). 2~ Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1017, 94 L. Ed. 2d 72, 80 (1987). NO. 97-0451 CRIMINAL TERM probable cause.22 search warrant to information before Further, "[t]he propriety of the grant of a an affiant must be judged solely upon the the district justice at the time of its issuance."23 "The magistrate's decision must be based on the four corners of the affidavit in support of the issuance of the warrant ,t 24 probable cause for warrant at isSun. In the present case, the predicate for the search warrant for the apartment rested primarily upon three factors: that the police had already found a significant quantity of drugs and paraphernalia in the apartment; that this circumstance was very recent; and that occupants of the apartment, including Defendant, were known to be involved in drug activity. The Pennsylvania Superior Court has held that the knowledge of drugs within a residence can constitute probable cause to support a search warrant for the entire residence. See Commonwealth v. Ariondo, 397 Pa. Super. 364, 380-81, 580 A.2d 341, 349-50 (1990) (knowledge that package accepted by suspect at suspect's dwelling contained cocaine held sufficient grounds for search warrant for entire dwelling). In addition, the immediacy of information as to an observation of drugs within a dwelling lends support to a belief 22 Commonwealth v. Baker, 532 Pa. 121, 126, 615 A.2d 23 25 (1992). , 23 Commonwealth v. Wilkinson, 436 Pa. Super. 233 238, 647 A.2d 583, 586 (1994). ' 24 Id. NO. 97-0451 CRIMINAL TERM that contraband will be found therein,25 as does the known presence of persons involved in drug activity.26 As a suppression court, is to give deference to the issuing authority's finding of probable cause where possible, and as the facts recited in the probable cause affidavit in the present case conform to traditionally accepted standards for a reasonable belief that contraband or evidence of a crime would be found somewhere upon the premises, the court was of the view that the affidavit in support of the application for a search warrant in this case demonstrated probable cause for a search of the apartment in question, including the various rooms contained therein. Description of premises to be searched. At the suppression hearing conducted on Defendant's motion, Defendant's counsel suggested that an overbroad interpretation of the premises to be searched as described in the warrant led police to enter Defendant's bedroom. In this regard, counsel noted the principle that a search warrant which fails to specify the particular dwelling unit for which probable cause to search exists within a multiple-dwelling building may be held invalid for lack of particularity. 2~ See Commonwealth v. Dennis, 421 Pa. Super. 600, 618 A.2d 972 (1992) (discussion of staleness in connection with search warrants). 26 See Commonwealth v. Martinez, 437 Pa. Super. 93, 649 A.2d 143 (1994). NO. 97-0451 CRIMINAL TERM Specifically, Defendant's counsel referred the court to the case of Commonwealth v. Carlisle, 517 Pa. 36, 534 A.2d 469 (1987), wherein the Pennsylvania Supreme Court considered the validity of a certain search warrant. In Carlisle, the application for the warrant inadvertently omitted from the description of the premises to be searched the apartment number of the dwelling unit which the probable cause affidavit indicated was the focus of police interest. Although the Court acknowledged that under some circumstances such an omission might be determinative of the validity of the warrant, it affirmed the decision of the Superior Court upholding the warrant's validity when it was considered in conjunction with the accompanying probable cause affidavit. Id.; see also In re Wilks, 418 Pa. Super. 73, 80, 613 A.2d 577, 580 (1992) (suppression held proper where apartment number in multiple- dwelling building omitted from description of premises to be searched in warrant). In the present case, however, the court was unable to agree with Defendant that his bedroom within a single dwelling unit was analogous to a dwelling unit within a multiple-dwelling building, for purposes of a limitation upon the extent of a permissibly authorized search. In this regard, it may be noted that there was no indication that Defendant's bedroom led to a separate residence. There was no doormat, door knocker, mailbox, separate entranceway/ kitchen or bathroom. In short, the indicia of separate dwellings 10 NO. 97-0451 CRIMINAL TERM upon which the holdings in cases such as Carlisle and Wilks are premised were lacking in this case. "Premises" have been defined by the Pennsylvania Superior Court to include "all property necessarily a part of the property of the premises or so inseparable as to constitute a portion thereof." Commonwealth v. Aponte, 456 Pa. Super. 435, 438, 690 A.2d 1189, 1191 (1997), quoting Massey v. Commonwealth, 305 S.E.2d 755 (Ky. 1957) (holding that a basement was within the premises described in a warrant). The premises of the apartment which the warrant in the present case authorized to be searched included the bedrooms contained therein by this definition, and it was the view of the court that the police acted within the permissible scope of the warrant when they entered the bedroom of Defendant. For the foregoing reasons, the court denied Defendant's motion to suppress. John A. Abom, Esq. Assistant District Attorney Attorney for the Commonwealth Robert Peter Kline, Esq. 331 Bridge Street, Suite 350 Post Office Box 461 New Cumberland, PA 17070-0461 Court-appointed Attorney for the Defendant 11