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HomeMy WebLinkAbout96-0413 CriminalCOMMON~E~TH Ve KEVIN D. WILLIAMS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0413 CRIMINAL TERM CHARGES: UNLAWFUL DELIVERY, MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCH. II CONTROLLED SUBSTANCE IN RE: DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO COMPEL DISCOVERY BEFORE OLER, J. ORDER OF COURT AND NOW, this ~2~day of July, 1996, upon consideration of Defendant's omnibus pretrial motion for relief in the form of a Motion To Suppress and a Motion To Compel Discovery, and for the reasons stated in this Opinion, it is ORDERED and DIRECTED as follows: (1) The Motion To Suppress Evidence obtained as a result of the search of the premises at 208-B Lincoln Street, Carlisle, Pennsylvania, and the search of the Defendant's person is DENIED. (2) The Motion to Compel Discovery is GRANTED with respect to the following materials and statements in the possession of the Commonwealth, to the extent that such materials and statements tend to show illegal drugs or illegal drug activity upon the aforesaid premises not attributable to Defendant, or possession of illegal drugs or illegal drug activity on the part of a person or persons occupying the premises: (a) Any and all statements given by Cory and Terry Alston in relation to the investigation in the above-captioned case and in relation to any and all drug investigations involving Cory and/or Terry Alston or the residence at 208-B Lincoln Street, Carlisle, Pennsylvania; and (b) Any and all police reports relating to criminal drug investigations involving Cory and/or Terry Alston or the residence at 208-B Lincoln Street, Carlisle, Pennsylvania, to include, but not be limited to, alleged undercover purchases of controlled substances from Cory and/or Terry Alston or from the address of 208-B Lincoln Street, Carlisle, Pennsylvania. IT IS NOTED that other discovery issues have been resolved amicably between counsel. Travis N. Gery, Esq. Assistant District Attorney William G. Braught, Esq. Assistant Public Defender BY THE COURT, J.~e~ley 01~ : rc COMMONWEALTH V® KEVIN D. WILLIAMS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0413 CRIMINAL TERM CHARGES: UNLAWFUL DELIVERY, MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCH. II CONTROLLED SUBSTANCE IN RE: DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO COMPEL DISCOVERY BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In the present criminal case, Defendant is charged with possession of cocaine with intent to deliver. For disposition at this time are a Motion To Suppress and a Motion To Compel Discovery filed by Defendant in an omnibus pretrial motion for relief. A hearing on these matters was held on Wednesday, June 26, 1996. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered. FINDINGS OF FACT Pursuant to a search warrant issued by District Justice Paula P. Correal, members of the Carlisle Borough Police Department and the Tri-County Drug Task Force conducted a search of the premises at 208-B Lincoln Street, Carlisle, Cumberland County, Pennsylvania.~ In the affidavit of probable cause for the search warrant, Detective David R. Fones, of the Carlisle Police Department, averred the following facts: Within the preceding 48 See Defendant's Omnibus Pre-Trial Motion, paragraph 2. NO. 96-0413 CRIMINAL TERM hours a confidential informant, while under surveillance, had made a controlled purchase of crack cocaine from 208-B Lincoln Street, Carlisle.2 After the completion of the sale and upon his debriefing, the confidential informant told Detective Fones that a Cory Alston was selling crack cocaine from that residence.3 The informant further stated that "numerous buys" had been made from Cory Alston at 208-B Lincoln Street within the past two months.4 In addition, another confidential informant, who also worked for Detective Fones as well as for an Agent Mohn of the Attorney General's office, had made a controlled purchase from Cory Alston in Carlisle within the past two months,s A request was made in the application to search all persons present because of numerous people possibly purchasing drugs in that residence and they may have cash and or controlled substances on them. Also [the informant had] indictaed [sic], there was other individuals selling drugs at the residence besides Cory Alston.6 The warrant authorized a search of the premises at 208-B Lincoln Street for "[a]ny controlled substances, any drug 2 See Commonwealth's Exhibit 1, Omnibus Pre-Trial Motion Hearing, June 26, 1996 (hereinafter Commonwealth's Exhibit __). 3 Id. 4 Id. ~ Id. ~ See Commonwealth's Exhibit 1. 2 NO. 96-0413 CRIMINAL TERM paraphernalia, packaging material, any records of drug transactions and occupancy. Proceeds derived from drug transactions or currency. All occupants and persons present."7 Defendant was found at the premises during the course of the search.8 The Commonwealth alleges that as a result of the search the following items were found on Defendant's person: (1) a rock of crack cocaine;9 (2) some court papers belonging to Defendant;~° (3) some cash;~ and (4) a pager.12 A search of the residence itself uncovered approximately 22 grams of rock crack cocaine.~3 On March 6, 1996, a preliminary hearing was held before the district justice, at which time the charge against Defendant was bound over for court.14 arraigned on a charge Possession with Intent On May 20, 1996, Defendant was formally of Unlawful Delivery, Manufacture or To Deliver a Schedule II Controlled 7 8 ( hereinafter lo Id · 11 12 13 14 Id. See Defendant's Omnibus Pre-Trial Motion, paragraph 2. Omnibus Pre-Trial Motion Hearing, June 26, 1996, N.T. __). N.T. 14. Id. N.T. 13. See Defendant's Omnibus Pre-Trial Motion, paragraph 3. 3 13 NO. 96-0413 CRIMINAL TERM Substance.~5 DISCUSSION Motion to Suppress 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."~6 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."~? The major purpose of the particularity requirement in these provisions is to prevent general searches.~8 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."~9 The legal principles applicable to a review of the sufficiency of an affidavit of probable cause to support issuance of a search warrant are well established. Before an issuing authority may Id. at paragraph 4. U.S. CONST. amend. IV. PA. CONST. art. 1, §8. Com. v. Reese, 520 Pa. 29, 34, 549 A.2d 909, 910 (1988). Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1017, 94 L. Ed. 2d 72, 80 (1987). 4 NO. 96-0413 CRIMINAL TERM issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search.2° The information offered to demonstrate probable cause must be viewed in a common sense, nontechnical, ungrudging and positive manner.2~ Probable cause is based on a finding of the probability of, not on a prima facie showing of, criminal activity, and one is to give deference to a magistrate's finding of probable cause.22 Further, "[t]he propriety of the grant of a search warrant to an affiant must be judged solely upon the information before 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 .... ..24 Search of residence. In his suppression motion, Defendant seeks to suppress all evidence obtained as a result of the search of the residence at 208-B Lincoln Street, Carlisle, Pennsylvania. Defendant challenges the validity of the search warrant and contends as follows: Com. v. Baker, 532 Pa. 121, 126, 615 A.2d 23, 25 (1992). Id. 22 Id. Com. v. Wilkinson, 436 Pa. Super. 233, 238, 647 A.2d 583, 586 (1994). 24 Id. 5 NO. 96-0413 CRIMINAL TERM 7. The search warrant is defective on the following grounds: (a) The search warrant generally does not contain sufficient facts to provide probable cause that the items listed in the search Warrant as items to be searched for would be on the premises of 208-B Lincoln Street; (b) There is an insufficient basis upon which the issuing authority could have determined that the factual assertions put forward in the search warrant from confidential informants were reliable, and therefore, the search warrant lacked probable cause. It is Defendant's position that the search of the premises represented a violation of his constitutional rights under Article I, Section 8, of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.25 Hearsay information can be sufficient to form the basis for issuance of a warrant in appropriate circumstances, where the issuing authority has been provided with sufficient information to make a "neutral" and "detached" decision about whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.2~ The duty of the reviewing court is simply to ensure that the magistrate had a "substantial ... basis See Defendant's Omnibus Pre-Trial Motion, paragraph 8. Com. v. Baker, 532 Pa. 121, 127, 615 A.2d 23, 25 (1992). 6 NO. 96-0413 CRIMINAL TERM for concluding that probable cause existed."27 The determination of whether hearsay supporting the issuance of a warrant is sufficiently reliable may hinge upon whether corroboration exists for the information received.28 Defendant argues that no probable cause existed to search the premises at 208-B Lincoln Street because the probable cause affidavit in support of the search warrant application failed to show that the information received by the affiant, and related in the affidavit, was reliable. However, it appears to the court that the reliability of the information was supported in the form of alleged corroborating events. An informant, according to the affidavit, told Detective Fones that he [the informant] had made "numerous buys" at the residence in question within the past two months. The informant's information that drugs were being sold from 208-B Lincoln Street was alleged to have been corroborated, inter alia, by the first- 2~ Id. 28 Com. v. Wilkinson, 436 Pa. Super. 233, 240, 647 A.2d 583, 586 (1994); see Com. v. Covert, 322 Pa. Super. 192, 469 A.2d 248 (1983) (information corroborated by police inquiry and surveillance); Com. v. Prokopchak, 279 Pa. Super. 284, 420 A.2d 1335 (1980) (information corroborated by police surveillance of defendant's home revealing drug activity); Com. v. Marzel, 291 Pa. Super. 553, 436 A.2d 639 (1981) (police officer's impression of on- going criminal activity was corroborated by information supplied by numerous informants); Com. v. Bove, 221 Pa. Super. 345, 293 A.2d 67 (1972) (affidavit lacked probable cause where there was not evidence of criminal activity other than information supplied by informer). NO. 96-0413 CRIMINAL TERM hand knowledge of the affiant that the informant entered 208-B Lincoln Street in a controlled situation with money for the express purpose of buying cocaine, and that he returned from the residence with cocaine. In addition, a controlled buy on the part of another informant was alleged to have been made from a resident of the premises within the previous two months. In view of the corroboration which allegedly existed for the information said to have been received by the affiant, the court can not agree with Defendant that insufficient indicia of reliability were asserted to support the third-party statements related in the affidavit of probable cause. The third-party statements, thus supported and considered in conjunction with the balance of the averments in the affidavit, more than justified a belief that the items enumerated would be found upon the premises. For this reason, evidence resulting from the search of the premises will not be suppressed. Search of Defendant. Defendant also seeks to suppress all evidence obtained as a result of the search of his person upon the following additional ground: 13. The search warrant was defective in permitting a search of "all occupants and persons present" in that there were insufficient facts put forth to support a finding of probable cause that "all occupants and persons present" would have contraband items.29 See Defendant's Omnibus Pre-Trial Motion, paragraph 13. 8 NO. 96-0413 CRIMINAL TERM Defendant again maintains that the search of his person represented a violation of his constitutional rights under Article I, Section 8, of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.3° Because Pennsylvania law requires that every search warrant "name with particularity the person or place" to be searched,3~ "all persons present warrants are not favored."~2 Pennsylvania courts have joined the majority of jurisdictions and adopted the following rule: "'[A]ll persons present' warrants [are] deemed constitutional when the totality of circumstances establish a sufficient nexus between the persons to be searched, the location, and the criminal activity suspected.''~ In adopting the above rule, the Pennsylvania Superior Court found the reasoning of two New Jersey Supreme Court cases, State v. DeSimone and State v. Sims, to be persuasive. In State v. DeSimone,34 the warrant at issue authorized the search of a certain automobile and "all persons found therein" for evidence of illegal See Defendant's Omnibus Pre-Trial Motion, paragraph 14. Pa. R. Crim. P. 2004(c). 3~ Com. v. Wilson, 429 Pa. Super. 197, 200, 631 A.2d 1356, 1358 (1993). ~ Com. v. Heidelberg, 369 Pa. Super. 398, 535 A.2d 611 (1987); see also Com. v. Graciani, 381 Pa. Super. 626, 554 A.2d 560 (1989); Com. v. Wilson, 429 Pa. Super. 197, 631 A.2d 1356 (1993). ~4 60 N.J. 319, 288 A.2d 849 (1972). 9 NO. 96-0413 CRIMINAL TERM gambling. Defendant was an occupant of the car that was the subject of the warrant and lottery slips were found in his possession. In the Court's opinion in DeSimone, Chief Justice Weintraub stated as follows: On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them. As to probable cause, it must be remembered that the showing need not equal a prima facie case .... No more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is a party to it .... And with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the on-going criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the 10 NO. 96-0413 CRIMINAL TERM Fourth Amendment. The evil of the general warrant is thereby negated. To insist nonetheless that the individual be described when circumstances will not permit it, would simply deny government a needed power to deal with crime, without advancing the interest the Amendment was meant to serve.3s The New Jersey court proceeded to determine that the search warrant in DeSimone was constitutionally valid since the affidavit indicated that the automobile was being regularly used in gambling operations. This fact made it unlikely that anyone not involved in the gambling operation would have been permitted in the vehicle to observe the illegal activities. This case can be contrasted with State v. Sims,36 where, applying the same analysis adopted in DeSimone, the New Jersey Supreme Court held invalid a warrant authorizing the search of a service station "and any persons found therein" for gambling paraphernalia. The affidavit supporting the application for the warrant implicated the service station only tangentially in the gambling operation, inasmuch as only one telephone call had been placed there, and the warrant contained no averment that gamblers had been observed on the premises placing bets. Based on these facts, the Court determined that the issuing authority had had no legitimate basis for concluding that probable cause existed to believe that all persons who might be found at the service station Id. at 321-22, 288 A.2d at 850. 75 N.J. 337, 382 A.2d 638 (1978). 11 NO. 96-0413 CRIMINAL TERM would be engaged in illegal activities. In the present context, the following analysis by former Justice Larsen of the Pennsylvania Supreme Court is instructive: [I]n Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) Justice William Rehnquist, writing a dissent for the United States Supreme Court, made a telling point when he stated that 'an absolute bar to searching persons not named in the warrant would often allow a person to frustrate the search simply by placing contraband in his pocket.' Id. at 102, 100 S. Ct. at 348. And so too, visitors to the premises could frustrate the efforts of police by placing contraband among their unworn personal effects or by announcing ownership of various articles of clothing and containers in order to place those items beyond the scope of the warrant. We cannot sanction any rule that through fraud and gamesmanship erects barriers to the effective and legitimate execution of search warrants.37 Defendant argues that the affidavit in support of the search warrant sub judice lacked sufficient facts to support a finding of probable cause to believe that "all occupants and persons present" would have contraband items in their possession. However, we are led to conclude that a sufficient nexus existed between the defendant, the location, and the criminal activity suspected to justify the authorization of an "all persons present" search warrant. The location searched was a private residence, not open to the 37 Commonwealth v. Reece, 520 Pa. 29, 34, 549 A.2d 909, 911 (1988) (emphasis added). 12 NO. 96-0413 CRIMINAL TERM general public. The limited nature of the premises, the residence's alleged history as a site of drug sales, and the alleged purchase by a confidential informant of drugs at the residence within 48 hours of the application for the warrant tend to support a reasonable inference that those present on the premises would be involved in the illegal activity. In addition, the suspected object of the activity was crack cocaine, a substance easily concealed or hidden on one's body. Given these facts, the Court can not hold improper the district justice's determination that probable cause existed to believe that any persons on-premise at 208-B Lincoln Street would be involved in illegal drug-related activities. For this reason, evidence resulting from the search of Defendant's person will not be suppressed. Motion To Compel Discovery Section 305(B) of the Rules of Criminal Procedure states the following: B. Disclosure by the Commonwealth. (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items. (a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is 13 NO. 96-0413 CRIMINAL TERM within the possession or control of the attorney for the Commonwealth. (2) Discretionary with the Court: In all court cases ... if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable. (a) the names and addresses of eyewitnesses; (b) all written or recorded statements, and substantially verbatim oral statements, or eyewitnesses the Commonwealth intends to call at trial; (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co- conspirators or accomplices, whether such individuals have been charged or not; (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice. Rule 305(B)(1)(a) compels the Commonwealth to disclose, upon request, any information it has that is favorable to the defendant and which is material to guilt or punishment.TM Evidence which is ~ Com. v. Jones, 432 Pa. Super. 97, 103, 637 A.2d 1001, 1004 (1994). 14 NO. 96-0413 CRIMINAL TERM both favorable to the accused and material to guilt or punishment is exculpatory.39 Exculpatory evidence is that which "extrinsically tends to establish defendant's innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching."4° If the defendant's request for exculpatory evidence is not specific, then the evidence must clearly be material in order for the Commonwealth to be required to disclose it.4~ Under the second portion of Rule 305(B), the court, in its discretion, may require the Commonwealth to disclose other information and materials. However, before the court will exercise its discretion to permit disclosure, the defendant must show that the evidence requested in discovery is material, reasonable and in the interest of justice.~2 A mere assertion that the information might be helpful to the defense will generally not result in an order for disclosure.~3 Once the defendant shows that the requested evidence is material and that the request is reasonable, the court, in the interest of fairness, must balance the public interest in 4O 41 (1992). 42 (1994). 43 Id. Id. Corn. v. Moose, 529 Pa. 218, 233, 602 A.2d 1265, 1272 Com. v. Jones, 432 Pa. Super. 97, 103, 637 A.2d 1001, 1004 Id. 15 NO. 96-0413 CRIMINAL TERM protecting the flow of information against~ the accused's right to prepare a defense.44 In his motion, Defendant requests that the court exercise its discretionary power to order discovery of the following materials:4s (1) Any and all statements given by Corey and Terry Alston in relation to the investigation in the above-captioned case and in relation to any and all drug investigations involving Corey and/or Terry Alston or the residence at 208-B Lincoln Street, Carlisle, Pennsylvania.46 (2) Any and all police reports relating to criminal drug investigations involving Corey and/or Terry Alston or the residence at 208-B Lincoln Street, Carlisle, Pennsylvania, to include, but not be limited to, alleged undercover purchases of controlled substances from Corey and/or Terry Alston or from the address of 208-B Lincoln Street, Carlisle, Pennsylvania.47 It appears that most of the cocaine which Defendant is charged with possessing with intent to deliver was found in a residence 44 Id. 4s At the hearing, the Commonwealth had no objection to disclosing the following: (1) any and all statements made by Defendant to police officers (N.T. 5); (2) any and all results of fingerprint analyses of items seized at 208-B Lincoln Street, Carlisle, Pennsylvania, should any exist (N.T. 5); (3) the circumstances and results of any identification of the defendant by voice, photograph or in person identification, should any exist; and (4) any exculpatory evidence that may exist. (N.T. 15). 46 See Defendant's Omnibus Pre-Trial Motion, paragraph 20. This request was not limited to exculpatory evidence. See N.T. 6. 47 See Defendant's Omnibus Pre-Trial Motion, paragraph 20. This request is also not limited to exculpatory evidence. See N.T. 6. 16 NO. 96-0413 CRIMINAL TERM occupied by persons other than himself. In view of this fact, the Court believes that the requested discovery, to the extent that a given item sought tends to show drug activity upon the premises or by occupants of the premises which is not attributable to Defendant, would be material and relevant, is reasonably requested by Defendant, and, on balance, should be disclosed in the interest of fairness. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 12th day of July, 1996, upon consideration of Defendant's omnibus pretrial motion for relief in the form of a Motion To Suppress and a Motion To Compel Discovery, and for the reasons stated in this Opinion, it is ORDERED and DIRECTED as follows: (1) The Motion To Suppress Evidence obtained as a result of the search of the premises at 208-B Lincoln Street, Carlisle, Pennsylvania, and the search of the Defendant's person is DENIED. (2) The Motion to Compel Discovery is GRANTED with respect to the following materials and statements in the possession of the Commonwealth, to the extent that such materials and statements tend to show illegal drugs or illegal drug activity upon the aforesaid premises not attributable to Defendant, or possession of illegal drugs or illegal drug activity on the part of a person or persons occupying the premises: 17 NO. 96-0413 CRIMINAL TERM (a) Any and all statements given by Cory and Terry Alston in relation to the investigation in the above-captioned case and in relation to any and all drug investigations involving Cory and/or Terry Alston or the residence at 208-B Lincoln Street, Carlisle, Pennsylvania; and (b) Any and all police reports relating to criminal drug investigations involving Cory and/or Terry Alston or the residence at 208-B Lincoln Street, Carlisle, Pennsylvania, to include, but not be limited to, alleged undercover purchases of controlled substances from Cory and/or address of 208-B Pennsylvania. Terry Alston or from the Lincoln Street, Carlisle, IT IS NOTED that other discovery issues have been resolved amicably between counsel. Travis N. Gery, Esq. Assistant District Attorney BY THE COURT, William G. Braught, Esq. Assistant Public Defender : rc 18