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HomeMy WebLinkAboutCP-21-CR-0002520-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V.: : RYAN LEE WEIGLE : CP-21-CRIMINAL 2520 – 2008 : : IN RE: OPINION PURSUANT OT Pa. R.A.P. 1925 Guido, J., January , 2010 The defendant was convicted of various drug related offenses after a bench trial. He has filed this timely appeal from our sentencing order of October 27, 2009. The only issue raised on appeal involves our alleged error in failing to suppress the physical evidence obtained pursuant to search warrants. Specifically, the defendant contends that the search warrants were fatally defective because “the affidavit of probable cause failed to contain any facts that could enable an issuing authorizing to judge the reliability of the 1 confidential informant or the unwitting individuals described therein.” The standard for evaluating whether probable cause exists for the issuance of a search warrant is the “totality of the circumstances.” Commonwealth v. Baker, 513 Pa. 23, 518 A.3d 802 at 803 (1986). As the Baker court noted: The task of the issuing magistrate is simply 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 hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . A corollary of the ‘totality of the circumstances” test is that the affidavit should be interpreted in a common sense and realistic fashion. 1 See “Statement of Matters Complained of on Appeal.” We note that there were no confidential informants and only one unwitting individual referred to in the affidavits. CP-21-CRIMINAL 2520 - 2008 Id. at 803 – 804. In determining the existence of probable cause, our inquiry is limited to the facts contained in the affidavits accompanying the warrant application. Commonwealth v. Jones, 928 A.2d 1054 (Pa.Super. 2007). Applying those standards to the instant case, we were satisfied that the affidavits contained sufficient probable cause to justify the issuance of the search warrants. There were two separate search warrants at issue. The first was issued on September 24, 2008 for the defendant’s residence at 9 South Spring Garden Street, Carlisle. The affidavit of probable cause provided in relevant part as follows: Your Affiant has been assigned as a Detective . . . to the Office of the District Attorney of Cumberland County – Drug Task Force (CCDTF) since August 2002. . . . Your Affiant is completely familiar with the investigation currently pending in Cumberland County involving a male known as Ryan Lee WEIGLE and others. . . . Your Affiant has participated in and is familiar with the investigation herein described. . . . In this investigation, you Affiant and others have utilized unwitting individuals to make controlled purchases of oxycontin from WEIGLE. These purchases were made by an unwitting individual who was then provided with serialized official funds to make a purchase of a controlled substance. The unwitting was kept under constant surveillance until his/her arrival at the location where the drug transaction was to occur. The immediate area of the drug transaction was also under surveillance by law enforcement authorities. After the unwitting purchased the controlled substance from the target, the unwitting was again under surveillance until he she reached the undercover officer and provided him/her with the controlled substance. Your Affiant has direct knowledge of the facts set forth in this Affidavit. The specifics are as follows: The principal target of the investigation is Ryan Lee WEIGLE, a white male born 22 February 1980, Social Security Number 170-68-1972. WEIGLE is a known criminal actor who has past arrests and convictions from drug related offenses to include unlawful delivery/possession with the intent to deliver. Another actor involved in the investigation is Steven Jeffrey KUNKLE, a white male born 13 May 1983, Social Security 159-64-9514. KUNKLE is a known criminal actor who has past arrests for theft and burglary related offenses. Within the past seventy-two (72) hours Detective (Det) Kell, CCDTF, met with KUNKLE for the purpose of purchasing OxyContin, a Schedule II Controlled 2 CP-21-CRIMINAL 2520 - 2008 Substance, . . . KUNKLE was given a ride from his apartment . . . KUNKLE was given official funds by Det Kell to purchase the OxyContin. Surveillance was established in the area of S. Spring Garden St., where KUNKLE had indicated he would need to be driven to. KUNKLE was observed exiting Det. Kell’s vehicle and walking to the area of 9 South Spring Garden St., where he entered after knocking on the door. Sergeant (Sgt) Michael Clepper, CPD, was set up to observe KUNKLE entering the residence and he immediately noticed lights going on upstairs at 9 South Spring Garden St. after KUNKLE entered. KUNKLE exited the address a few minutes later and returned to Det Kell and provided her with the purchased evidence before being driven away from the area. The purchased evidence was identified as 40 mg. OxyContin. KUNKLE identified his source to Det Kell as Ryan WEIGLE, that WEIGLE had been arrested several times in the past for drug related offenses. . . KUNKLE also arranged to meet with Det Kell within a day for a purchase of Cocaine, a Schedule II Controlled Substance, which would also come from WEIGLE. Your Affiant reviewed METRO and saw a dispatch entry from Friday 19 September 2008 where Patrolman (Ptlm) Parson dealt with WEIGLE at 9 South Spring Garden St. Your Affiant reviewed Penn DOT and saw 9 South Spring Garden St, Carlisle as the address listed on his license. Applying a common sense approach to the above affidavit there was more than “a fair probability” that evidence of a crime would be found in the defendant’s residence. The information provided by the unwitting individual Kunkle was independently 2 corroborated by affiant. Furthermore, the direct observations of the law enforcement officers, from Detective Kell, to the affiant and the surveillance officers, was more than enough to support the issuance of the search warrant. The second search warrant was issued on October 2, 2008. It authorized the search and seizure of all “incoming and outgoing calls and texts” for cellular phone number 717-386-8986 between 7:00 p.m. and 10:30 p.m. on September 23, 2008 and 2 He indicated that he had personal knowledge of the defendant’s prior drug related convictions. Furthermore, he verified the defendant lived at 9 South Spring Garden Street, Carlisle. 3 CP-21-CRIMINAL 2520 - 2008 between 6:00 p.m. and 10:00 p.m. on September 24, 2008. The affidavit in support provided in relevant part as follows: On Tuesday 23 September 2008 Your Affiant and members of the Carlisle Police Department and the Drug Task Force conducted a drug investigation in the Carlisle area of Cumberland County. Detective (Det) Kell met with an unwitting subject for the purpose of purchasing Oxycontin, a Schedule II Controlled Substance. The unwitting told Det Kell he/she needed to quarters to call his/her source known as Ryan and tell Ryan he/she was enroute. Det Kell offered the use of a cell phone to call Ryan instead of stopping at a payphone and the unwitting called 717.386.8986 and spoke with Ryan about stopping by and needing to get two (2) pills. The unwitting told Det Kell his/her source lived behind the Jiffy Lube on S. Spring Garden St. in Carlisle and had been in jail in the past for the sales of controlled substances. Based on the information provided to Your Affiant Ryan Lee WEIGLE was identified as the source of the Oxycontin. A successful purchase of Oxycontin was made from the unwitting after he/she had entered and exited WEIGLE’S residence at 9 S. Spring Garden St., Carlisle Borough. On Wednesday 24 September 2008 a similar investigation was conducted using the same unwitting subject who indicated to Det Kell that he/she had called WEIGLE for the purpose of purchasing Cocaine, a Schedule II Controlled substance. These calls were alleged to have been made before Det Kell met with the unwitting. Surveillance had observed the unwitting at a Sheetz nearby prior to meeting with Det Kell and there was a payphone present at the store. A successful purchase of Cocaine was made form the unwitting after he/she had entered and exited WEIGLE’S residence on the second date as well. The above affidavit was sufficient to support the search warrant for the phone records in question. Undercover officer Kell allowed the unwitting individual to use her phone to arrange a drug transaction. Her phone was used to call the particular number at issue. On the following night another drug transaction with the same supplier was arranged by the same unwitting individual. Common sense would dictate that there was a fair probability that he used a phone to arrange the second transaction. 4 CP-21-CRIMINAL 2520 - 2008 After a thorough review of the separate affidavits of probable cause we were satisfied that each contained sufficient facts to justify the issuance of the requested warrants. For that reason we denied the defendant’s Motion to suppress evidence. _______________________ ________________________ DATE Edward E. Guido, J. Jonathan R. Birbeck, Esquire Gregory B. Abeln, Esquire :sld 5