HomeMy WebLinkAboutCP-21-CR-0001131-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
TYRONE BROWN, JR. : NO. CP-21-CRIMINAL 1131 – 2009
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., June , 2010
The defendant was found guilty of various drug related offenses after a non-jury
trial before the Honorable Kevin A. Hess. He has filed this timely appeal from the order
of sentence. The only issues raised on appeal involve our failure to grant his motion to
suppress certain evidence obtained from his residence pursuant to a search warrant.
Specifically he contends that the warrant was defective because the affidavit of probable
cause 1) failed to “contain any facts which could enable an issuing authority to judge the
reliability or trustworthiness of the confidential informant or the two unwitting
individuals. . .” and 2) “failed to include any facts from which probable cause could be
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found that illegal contraband was likely to be found at the address listed.”
The affidavit in the instant case provides in relevant part as follows:
Your affiant has been a Pa. State Trooper for over 18 years, and
during that time I have been assigned to the Bureau of Drug Law
Enforcement for 6 years
. . .
Within the past 72 hours Tpr. Beynon met with a confidential informant
for the purpose of purchasing a quantity of a controlled substance from
215 High Street Shippensburg Twp., Cumberland County. Residing at
this residence is unknown black males.
The CI was searched for contraband and found to have none. This CI then
met with an unwitting individual who directed them to another unwitting
individual. Tpr. BEYNON and the three individuals then traveled to 215
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Concise Statement of Matters Complained of on Appeal.
CP-21-CRIMINAL 1131 - 2009
High Street in Shippensburg Twp., Cumberland County. At this location,
nd
Tpr. BEYNON then provided the 2 unwitting individual with State
Police funds.
Surveillance officers observed the unwitting individual enter the
residence. After a short time, the unwitting individual exited the residence
and got back into Tpr. BEYNON’S vehicle at which time the unwitting
individual handed the CI a plastic bag of suspected cocaine and then the
CI handed the suspected cocaine to Tpr. BEYNON. The suspected
cocaine was tested by way of a NIK test kit which did show a positive
result for the presence for cocaine.
The purpose of this search warrant is to search for and recover any illegal
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contraband, to include but not limited to illegal drugs such as cocaine. . . .
The applicable law is well settled. In determining whether the issuance of a
search warrant is supported by sufficient probable cause, we are limited to a
consideration of the averments contained in the affidavit attached thereto.
Commonwealth v. Luddy, 281 Pa. Super. 541, 422 A.2d 601 (1980), Pa. R.Crim.P. 203
(D). However we must examine the affidavit in “a common sense, non-technical,
ungrudging and positive manner.” Commonwealth v. Wilkinson, 436 Pa.Super. 233, 238
647 A.2d 583, 585 1994). We must also consider the “totality of the circumstances.”
Commonwealth v. Gutierrez, 969 A.2d 584, 588 (Pa. Super. 2009). As our Supreme
Court has stated:
Pursuant to the “totality of the circumstances” test set forth by the
United States Supreme Court in Gates, the task of an issuing authority is
“simply to make a practical, common-sense decision whether, given all of
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.” (citations omitted).
Commonwealth v. Torres, 564 Pa. 86, 96 764 A.2d 532, 537 (2001).
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Commonwealth Exhibit # 1.
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CP-21-CRIMINAL 1131 - 2009
Applying the applicable law to the instant case, we were satisfied that the affidavit
established sufficient probable cause that cocaine would be found at the address to be
searched. The state police used an “unwitting individual” to purchase cocaine from the
residence at 215 High Street. The trooper supplied the funds. He witnessed the
individual entering the residence with the money and return from the residence with the
drugs.
We viewed defendant’s questioning of the reliability and trustworthiness of the
unwitting individuals and confidential informant to be a non-issue. They did not provide
any information which formed the basis for probable cause. While one or more of them
may have provided the police with information that drugs were available at the premises
in question, it was the actual procurement of the drugs that supplied the probable cause.
As per the affidavit those events were witnessed by numerous law enforcement
personnel.
_________________ ________________________
DATE Edward E. Guido, J.
Jaime Keating, Esquire
For the Commonwealth
Royce Morris, Esquire
For the Defendant
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