Loading...
HomeMy WebLinkAboutCP-21-CR-1587-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CHRIS TOPHER M. MURPHY OTN: K131170-4 CHARGES: (1) UNLAWFUL POSSESSION WITH INTENT TO DELIVER A SCHEDULE II C.S. (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA (3) PERSON NOT TO POSSESS FIREARM CP-2l-CR-1587-2005 IN RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BEFORE OLER, J. OPINION and ORDER OF COURT In this criminal case, Defendant has been charged with possession with intent to deliver a Schedule II controlled substance (cocaine), possession of drug paraphernalia, and person not to possess a firearm. 1 For disposition at this time is Defendant's motion to suppress evidence based upon federal and state search-and- . 2 seIzure provIsIOns. Defendant's motion seeks to suppress evidence resulting from the execution of a search warrant. The warrant authorized a search of Defendant's residence and was largely premised upon certain information provided by an informant to the police. The suppression motion challenges, on staleness grounds, the sufficiency of the probable cause affidavit supporting the application for the warrant: [T]he affidavit [of probable cause supporting the application for a search warrant] gives absolutely no time frame during which informant's alleged conversation regarding money in defendant's residence took place. In addition, the affidavit 1 Information, filed August 15,2005. 2 Defendant's Motion To Suppress Evidence and Authority in Support Thereof, filed December 5, 2005. fails to make any statement about drugs or guns being observed in the residence. Therefore, the magistrate had no evidence of recent criminal activity at the residence such as would provide probable cause for a search warrant? A hearing on the motion was held on February 22, 2006. For the reasons stated in this opinion, Defendant's suppression motion will be granted. STATEMENT OF FACTS As a result of events occurring on June 20 and June 21, 2005, a Carlisle Borough police detective applied on June 21, 2005, to a local magisterial district judge for a warrant to search the home of Defendant Christopher M. Murphy and one Jennifer Stoddard.4 The items to be searched for and seized were described as follows: Cocaine, drug paraphernalia, scales, packaging materials and cutting agents, proceeds from drug transactions, records from drug transactions, and any other types of illegal narcotics and other contraband related to the sale or use of narcotics, any type of telecommunication equipment and records.5 The affidavit of probable cause in support of the application read as follows: Your Affiant is Detective Jeffrey D. Kurtz, a sworn police officer with the Carlisle Police Department. Your Affiant has been a sworn police officer in Pennsylvania for over twelve (12) years and has been assigned as a detective in drug investigations for over two (2) years. Your Affiant has received training from the United State Department of Justice - Drug Enforcement Agency (DEA), Pennsylvania State Police (PSP), Pennsylvania Office of the Attorney General (P A OAG), Harrisburg Area Community College (HACC) for both Municipal Police Academy and other follow-up training, and training held for Federal, State and Municipal law enforcement officers. Your Affiant is empowered to apply for and execute search warrants for violations of the Pennsylvania Crimes Code (Title 18). Your Affiant has participated in over three hundred (300) drug investigations. 3 Defendant's Motion To Suppress Evidence and Authority in Support Thereof, filed December 5, 2005. 4 Commonwealth's Ex. 1 (search warrant), Suppression Hearing, February 22, 2006 (hereinafter Commonwealth's Ex. 1). 5 Commonwealth's Ex. 1. 2 Your Affiant was made aware of the following investigation that occurred in the late night hours of Monday 20 June, 2005 into Tuesday 21 June, 2005. Officer Paula Mullen, Middlesex Twp Police Department, responded to the Arby's Restaurant on the Harrisburg Pike for a report of threats being made to an employee there. Officer Mullen learned from Lisa Aponte that Murphy had called her and made threats to her welfare and safety over a domestic issue Murphy was having with his girlfriend, Jennifer Stoddard. Aponte also told Officer Mullen that she had though about purchasing crack-cocaine from Murphy, she had a past addiction to crack-cocaine and talked to him (Murph) about getting crack-cocaine from him and he had confided in her the following information; that he (Murphy) made frequent trips to New York City (NYC) to pick up crack-cocaine and marihuana and that he (Murphy) made these trips at least two (2) times a week, that he (Murphy) was a distributor of crack-cocaine and marihuana and that he (Murphy) had runners all over Cumberland County, that he (Murphy) kept a large sum of U.S. Currency, the proceeds from illegal drug transactions, at his house and the he (Murphy) resided in Carlisle Borough at 414 N. Pitt St. with Jennifer Stoddard. Aponte additionally told Officer Mullen that during a call with Murphy, prior to Aponte calling for police assistance, Murphy told her (Aponte) that he was coming back from N ew York, was on 1-81 doing 110 mph and that she was not to leave Arby's until he (Murphy) got there and talked to her. Murphy called back and told her not to leave that one of his boys would be there in fifteen (15) minutes and in about that amount of time Michael Dwyer arrived. Dwyer told Officer Mullen that he was a friend of Murphy's. While taking the report from Aponte, Murphy arrived at the Arby's and began banging on the doors. Officer Mullen subsequently took Murphy into custody. Murphy was driving a Ford Probe, which had in plain view a large duffel style carrying bag and a sum of U. S. Currency in the center console with the outer bill appearing to be a $50. Murphy gave pre and post Miranda statements about possessing a small amount of marihuana inside the Probe and agreed to give consent for the recovery of the small amount of marihuana but began to dictate to Officer Mullen who would get his phone, money and the car. Officer Mullen subsequently had the Probe impounded for a search warrant in Middlesex Twp. Murphy was transported to the Carlisle Central Processing at the Courthouse by Officer Fiber, North Middleton Twp Police Department. Murphy was overheard making the statement "Man, I'm going to jail for life." once inside the booking center. Officer Mullen subsequently contacted the Carlisle Police Department, which contacted Y our Affiant to assume the investigation in regards to the residence at 414 N Pitt St, Carlisle Borough, Cumberland County. Your Affiant charged Murphy (B/M DOB 07-19-1974) with three (3) counts of unlawful delivery of the a controlled substance (crack-cocaine) 3 from drug investigations which happened in the spring of 2004 in Carlisle Borough. Murphy was living with Jennifer Stoddard (W/F 01-25-1984) in the Carlisle and Enola area of Cumberland County during and after the investigations last year. Your Affiant is aware that Murphy made frequent trips to NYC, a known source city for illegal drugs, during the time he was living in Carlisle Borough. Your Affiant is aware that Murphy was residing at 414 N. Pitt St, Carlisle Borough with Stoddard prior to this incident. Your Affiant met with Stoddard this date after being called to work. Stoddard said that she had moved out of the residence yesterday (Monday 21 June 2005) but that Murphy still had his belongings there. Currently there is an officer stationed at the residence to ensure that no one enters the residence until this search warrant is executed there. Your Affiant is requesting the search warrant for the residence to search for and recover any illegal controlled substances that might be present, recover the proceeds from drug transactions to include but not limited to U.S. Currency, to recover drug paraphernalia to include but not limited to scales, cutting agents and packaging materials, records of drug transactions, communication devices to include but not limited to cellular phones. Your Affiant is aware that persons engaged in the illegal dealings of controlled substances will often kept those items and the proceeds from those items hidden in their places of residence and in storage units or areas located on the premises but not directly connected to the dwelling. If any such outside storage units or sheds are present, Your Affiant asks that they be included in the search warrant.6 The search warrant was executed on June 21, 2005, and allegedly resulted m the discovery and seizure of cocaine, drug paraphernalia 7 and a firearm. 8 Defendant filed the suppression motion sub judice on December 5, 2005.9 Both the Commonwealth and Defendant are in agreement that the issue of probable 6 Commonwealth's Ex. 1. 7 NT 21-22. Suppression Hearing, February 22,2006 (hereinafter NT~. 8 NT 21-22. The firearm was allegedly observed during the search, and subsequently seized pursuant to a second warrant. See Commonwealth's Ex. 2 (search warrant), Suppression Hearing, February 22, 2006. To the extent that the first warrant lacked a lawful basis, evidence seized in the second search would be tainted thereby. See Commonwealth v. Sharp, 453 Pa. Super. 349, 683 A.2d 1219 (1996). 9 Defendant's Motion To Suppress Evidence and Authority in Support Thereof, filed December 5, 2005. 4 cause is to be determined from the contents of the affidavit and without reference l.d 10 to paro eVI ence. DISCUSSION Several principles pertinent to the present case are well-settled. First, under the Fourth Amendment to the United States Constitution, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against umeasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation. . . ." Under Section 8, Article I, of the Pennsylvania Constitution, "[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place . . . shall issue . . . without probable cause, supported by oath or affirmation subscribed to by the affiant." Evidence seized in violation of these constitutional constraints is, as a general rule, subject to suppression. Alderman v. United States, 394 U.S. 165, 171, 89 S. Ct. 961, 965, 22 L. Ed.2d 176 (1969); Commonwealth v. Rood, 686 A.2d 442,447 (Pa. Commw. Ct. 1996). Second, in a suppression hearing in which a constitutional right is said to have been violated, the burden of proof is upon the Commonwealth to show, by a preponderance of the evidence, that the evidence was not obtained in an unconstitutional manner. Commonwealth v. Eliff, 300 Pa. Super. 423, 428, 446 A.2d 927, 929 (1982). Third, "[f]or probable cause to exist at the time [a search] warrant issues, . . . the issuing authority must have probable cause to believe . . . that seizable property will be found on the searched premises at the time the warrant is executed." Commonwealth v. Glass, 718 A.2d 804, 812 (Pa. Super. Ct. 1998). Fourth, as has been noted by Judge, now Justice, Eakin, [i]n determining whether [a search] warrant is supported by probable cause, [a court] may not consider any evidence outside the four corners of the affidavit. Pa. R. Crim. P. 10 NT 4-5. 5 [203(B)]; Commonwealth v. Singleton, 412 Pa. Super. 550, 553, 603 A.2d 1072, 1073 (1992). Probable cause either exists or it does not, and its existence must be evident solely from the affidavit itself. Commonwealth v. Sharp, 453 Pa. Super. 349, 357, 683 A.2d 1219, 1223 (1996). Fifth, Pennsylvania has adopted a "totality of the circumstances test" for purposes of a determination as to the existence of probable cause in this context. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985); see Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed.2d 527 (1983). Sixth, "[a]n affidavit for a search warrant is to be tested by [a reviewing court] with common sense and a realistic manner, and not subjected to overly technical interpretations; the magistrate's determination of probable cause is to be accorded great deference on review." Commonwealth v. Days, 718 A.2d 797, 800 (Pa. Super. Ct. 1998). Seventh, the conclusion to be drawn from the affidavit of probable cause "must be based on facts which are closely related in time to the date the warrant is issued." Commonwealth v. Sharp, 453 Pa. Super. 349, 358, 683 A.2d 1219, 1223 (1996). Thus, where information from an informant is the basis for the affidavit of probable cause, "[a] search warrant is defective if the issuing authority is not supplied with a time frame upon which to ascertain... when the informant. . . witnessed the criminal acts detailed in the affidavit of probable cause." Commonwealth v. Murphy, 427 Pa. Super. 578, 580-81, 629 A.2d 1020, 1021 (1993). Finally, Pennsylvania does not recognize a "good faith" exception to the Commonwealth's exclusionary rule with respect to execution of warrants lacking probable cause. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), the Pennsylvania Supreme Court emphasized that "a search warrant is defective if it is issued without reference to the time when the informant obtained his or her 6 information[,]"ll and reversed a refusal to suppress evidence seized pursuant to a warrant supported by the following probable cause affidavit: On the date of August 4, 1985, this affiant Michael D. Deise, Penna. State Police, was in contact by telephone with two anonymous Males who were and are members of the community where Louis R Edmunds resides. Both anonymous males advised the affiant that while checking out familiar hunting areas off Rte. 31, east of Jones Mills and along the south side of Rte. 31. (sic) These men observed growing marijuana near a white corrugated building approximately 20 X 40 feet in a cleared off area. These men looked into the building and observed several plants that appeared to be marijuana. This affiant questioned both of these men as to their knowledge of marijuana. This affiant learned that one of these men saw growing marijuana numerous times while he was stationed in Viet Nam. The other male saw growing marijuana while at a police station. This affiant described a growing marijuana plant and its characteristics and they agreed that what they had viewed agreed with the description and also that it appeared to them to be marijuana as fully described by the affiant. The two males wish to remain anonymous for fear of retaliation or bodily harm. An anonymous male advised this affiant that Louis R Edmunds lived there. Edmund's description being that of a white male in his middle thirties and he lived at the aforementioned location. On the 5th of August, 1985, this affiant with the use of a State Police helicopter, flew over the described location and observed the white corrugated building in the mountain area and located as described by the two males. Also on this date this affiant drove past the Rte. 31 entrance and observed a mail box with "Edmunds 228" printed on it. 12 In Commonwealth v. Sharp, 453 Pa. Super. 349, 683 A.2d 1219 (1996), the Pennsylvania Superior Court noted the necessity for "a time frame upon which to ascertain. . . when the informant. . . witnessed the criminal acts detailed in the affidavit of probable cause[,]"13 and reversed a refusal to suppress evidence seized pursuant to a warrant supported by the following probable cause affidavit: After receiving information about possible drug (marihuana) growing near and upon the property rented by the above named individuals and receiving permission from the owner of the property a search of the out lying area was searched [453 Pa.Super. 359] and a visual of marihuana plants growing within the curtliege [sic] of the house a consent was given 11 Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 891 (1991). 12 Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 891 (1991). 13 Commonwealth v. Sharp, 453 Pa. Super. 349, 358, 683 A.2d 1219, 1223 (1996). 7 to Sheriff Frownfelter to search the outside of the house by Kristine Sharp where a total of approx. 10 plants were found. Plants outside the curtliage [sic] had chicken wire fencing around them and there was the same wire found on top of a wood pile within the curtliege [sic]. There was a yellow powder substance around the plants possible fertilizer or bug dust. Mr. Loy has a reputation to this office of being involved in the drug culture through various sources connected to the Sheriffs office. 14 On the other hand, in Commonwealth v. Gannon, 308 Pa. Super. 330, 454 A.2d 561 (1982), the Pennsylvania Superior Court reversed an order suppressing evidence resulting from a search warrant issued on August 17, 1979, supported by an application and affidavit of probable cause indicating a continuing offense dating back to a specific point in the prior year. In so doing, the Superior Court noted that: [e ]vidence of criminal actIvIty at some prior time will not support a finding of probable cause on the date that the warrant issues unless it is also shown that criminal activity continued up to or about that time. . .. Weare satisfied that the warrant and its accompanying affidavit [in this case] presented probable cause to believe that criminal activity had occurred since February 1978 and was continuing. IS In the present case, the critical aspect of the affidavit of probable cause as it relates to the existence of contraband within Defendant's residence is a statement by an informant to a police officer who relayed it to the affiant that at an unspecified time in the past (a) the informant had thought about purchasing crack- cocaine from Defendant and (b) Defendant had told her he was a distributor of crack-cocaine and marihuana, had runners for that purpose in Cumberland County, kept currency associated with drug sales at his residence, and lived with a Jennifer Stoddard at 414 North Pitt Street in Carlisle. A fair reading of the balance of the affidavit would tend to support a conclusion that Defendant was currently engaged 14 Commonwealth v. Sharp, 453 Pa. Super. 349, 358, 683 A.2d 1219, 1223 (1996). 15 Commonwealth v. Gannon, 308 Pa. Super. 330, 340,454 A.2d 561,566 (1982). 8 in drug trafficking and that he was currently living at 414 North Pitt Street in Carlisle. In the absence of any indication in the probable cause affidavit as to when Defendant had possessed currency associated with drug sales at his residence, the facts of this case are more analogous to those of Edmunds and Sharp than to those of Gannon. Although it is obvious that the Affiant utilized the information which he had received as effectively as possible in drafting the probable cause affidavit in question, and that he acted in good faith in relying upon the warrant in searching the premises in question, the court is of the view that the Commonwealth has not met its burden of proving that the evidence was not obtained in an unconstitutional manner. F or this reason, the following order will be entered: ORDER OF COURT AND NOW, this 20th day of April, 2006, upon consideration of Defendant's motion to suppress, following a hearing held on February 22, 2006, and for the reasons stated in the accompanying opinion, the motion to suppress is granted and all evidence resulting from the search of Defendant's residence pursuant to the search warrant complained of herein is suppressed. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Matthew P. Smith, Esq. Senior Assistant District Attorney Susan K. Pickford, Esq. Court-Appointed Counsel F or Defendant 9 10 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CHRIS TOPHER M. MURPHY OTN: K131170-4 CHARGES: (1) UNLAWFUL POSSESSION WITH INTENT TO DELIVER A SCHEDULE II C.S. (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA (3) PERSON NOT TO POSSESS FIREARM CP-2l-CR-1587-2005 IN RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BEFORE OLER, J. ORDER OF COURT AND NOW, this 20th day of April, 2006, upon consideration of Defendant's motion to suppress, following a hearing held on February 22, 2006, and for the reasons stated in the accompanying opinion, the motion to suppress is granted and all evidence resulting from the search of Defendant's residence pursuant to the search warrant complained of herein is suppressed. BY THE COURT, 1. Wesley Oler, Jr., 1. Matthew P. Smith, Esq. Senior Assistant District Attorney Susan K. Pickford, Esq. Court-Appointed Counsel F or Defendant