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Home My WebLink AboutCP-21-CR-0003528-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ANDREW P. BARKETT : CP-21-CR-3528-2011 IN RE: OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., July 10, 2012:-- Before the court is the omnibus pretrial motion filed by Defendant, Andrew P. Barkett. Following a hearing and briefing by the parties, the motion is denied in all respects. Facts The instant controlled substances charges against Defendant arise from an initial tip from a Confidential Informant regarding drug activity at Defendant’s residence. Based on this information, Patrolman Michael J. Scarlato, retrieved several trash bags that were placed at the driveway of Defendant’s residence. A search of the contents of the bags revealed a small amount of marijuana, suspected drug paraphernalia in the form of a hand rolled marijuana cigar, heat sealed bags, and mail addressed to the Defendant linking him to the trash collected in front of his residence. The search also revealed mail addressed to a third party in Harrisburg. Based on the results of the trash pull coupled with the confidential informant’s tip, Patrolman Scarlato obtained a search warrant for Defendant’s property. That search resulted in the discovery of more than two pounds of marijuana in heat sealed plastic bags, a digital scale, packaging material, and approximately $10,000. Discussion Defendant contends the affidavit of probable cause giving rise to the issuance of the search warrant is fatally defective due to its reliance on the results of a trash pull from three trash totes. In short, because the trash contained mail items linked to more than one individual at more than one address, and because the description did not include an inventory connecting contraband with the occupant of the residence, Defendant asks the Court to suppress all evidence against him. For the following reasons, we disagree. Standard of Review The Rules of Criminal Procedures provide, in relevant part: (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits. … (D) At any hearing on a motion for the return or suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (B). Pa.R.Crim.P. 203(B), (D). “In analyzing whether a warrant was supported by probable cause, judicial review is confined to the four corners of the affidavit.” Commonwealth v. Coleman, 830 A.2d 554, 560 (2003). Further, it is well-settled that our probable cause analysis is based on a review of the totality of the circumstances underlying the grant of a search warrant. Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986). Trash Pull In Commonwealth v. Minton, 432 A.2d 212 (Pa. Super. 1981), our Superior Court approved the propriety of issuing search warrants based on initially warrantless trash pulls from a defendant’s residence. After approving warrantless trash pulls, the Minton court found sufficient probable cause for the issuance of a search warrant where a trash pull revealed marijuana residue and a letter linking the defendant to the address of the trash pull. Despite the similarities to the instant matter, Defendant seeks to distinguish Minton on the basis that here, multiple trash bags were searched, letters with two different addresses were discovered, and the small amount of marijuana and paraphernalia were found in a bag that did not contain the specific letter linking Defendant to the address. We find these distinctions unavailing. Here, the probable cause for issuing the search warrant for Defendant’s residence was supported by three objective criteria: (1) the Confidential Informant’s tip regarding drug activity the Defendant’s residence; (2) the trash totes containing contraband were pulled from in front of Defendant’s residence; and (3) one of the trash totes contained a piece of mail linking the bag to Defendant’s residence. Based on the totality of the circumstances and the fact that all this information is included in the Affidavit of Probable Cause, there was sufficient probable cause to issue a search warrant for Defendant’s residence. We now address each basis for supporting the warrant individually. First, Patrolman Scarlato noted: I had received information from a Confidential Informant that drug related activity was to be taking place at 10 S St John’s Road, Camp Hill, Lower Allen Township. I have also had a previous drug related incident at the above listed address in which Marijuana and drug paraphernalia were recovered. Affidavit of Probable Cause, signed November 1, 2011 at ¶3 (emphasis added). Next, he clearly identified the location of the trash pull and related it directly to Defendant’s residence. The Affidavit of Probable Cause reads: On Tuesday November 1st 2011, I drove past the residence located at 10 S St Johns Road, Camp Hill, and observed three trash totes positioned at the end of the driveway in the grassy median between the public street and public sidewalk. This date is the regularly scheduled date for trash collection for that neighborhood. Surrounding residences in the neighborhood also had trash positioned in a similar manner. I collected several trash bags from the trash totes that had been positioned in front of 10 S St John’s Road. Affidavit at ¶4 (emphasis added). Finally, Patrolman Scarlato discovered, “mail addressed to Andrew Barket of 10 Saint Johns Road, Camp Hill and Michelle Yetter of 399 Timber Lane, Harrisburg.” Affidavit at ¶6. Defendant makes much of the presence of mail identifying a third party address unrelated to the Defendant. In light of the totality of the circumstances, this information is insufficient to undermine the probable cause established by the rest of the Patrolman’s investigation. The third party mail might have been more persuasive if it had been addressed to an adjacent residence; instead, it lists a Harrisburg address outside the county. It seems rather unlikely that a Dauphin County resident would deposit a trash bag containing contraband in front of Defendant’s residence at the precise time Patrolman Scarlato conducted a trash pull. Again, a common sense evaluation of the totality of the circumstances indicates that the search warrant for Defendant’s residence was supported by probable cause. Conclusion For these reasons, the Affidavit of Probable Cause contained sufficient information to establish probable cause in support of the search warrant. Accordingly, the court will not suppress any evidence discovered as a result of the execution of that warrant. Defendant’s Omnibus Pretrial Motion is denied in all respects. ORDER OF COURT AND NOW, this day of July, 2012, Defendant’s Omnibus DENIED Pretrial Motion is . By the Court, Albert H. Masland, J. Joshua M. Yohe, Esquire Assistant District Attorney Nathan C. Wolf, Esquire For Defendant :saa COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ANDREW P. BARKETT : CP-21-CR-3528-2011 IN RE: OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of July, 2012, Defendant’s Omnibus DENIED Pretrial Motion is . By the Court, Albert H. Masland, J. Joshua M. Yohe, Esquire Assistant District Attorney Nathan C. Wolf, Esquire For Defendant :saa