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HomeMy WebLinkAbout01-0032 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo MICHAEL S. McCLELLEN OTN: H161989-2 CHARGES: (1) UNLAWFUL DELIVERY OF MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCHEDULE I CONTROLLED SUBSTANCE NO. 01-0032 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., December 6, 2001. In this criminal case, detectives, executing a search warrant issued by a district justice, allegedly seized marijuana plants and drug paraphernalia from the apartment of Defendant Michael S. McClellen. Defendant was charged with the unlawful manufacture of, or possession with intent to deliver, a Schedule I controlled substance.~ Prior to trial, Defendant filed a motion to suppress, based upon an absence of probable cause for issuance of the warrant because the supporting affidavit did not directly link the affiant's visual observation of marijuana plants growing on a balcony with Defendant's apartment] Following a hearing before the writer of this opinion, the motion was denied.3 ~ Act of April 14, 1972, P.L. 233, § 13, as amended, 35 Pa. C.S.A. § 780-113(a)(30) (West 1998 & Supp. 2001). Marijuana is classified as a Schedule I controlled substance. Act of April 14, 1972, P.L. 233, § 4, as amended, 35 Pa. C.S.A. § 780-104(1)(iv). A violation under 35 Pa. C.S.A. § 780-113(a)(30) is classified as a felony. 35 Pa. C.S.A. § 780-113(f)(1). 2 Omnibus Pre-Trial Mot., filed March 19, 2001, para. 7. 3 Order of Ct., March 29, 2001. At the conclusion of a non-jury trial before the Honorable Kevin A. Hess, Defendant was found guilty of the manufacture of a Schedule I controlled substance.4 Defendant has appealed to the Pennsylvania Superior Court from the judgment of sentence.5 One of the issues on appeal is expressed in Defendant's statement of matters complained of on appeal as follows: 1. On March 14, 2001, Defendant filed an Omnibus Pre-Trial Motion seeking to suppress evidence. 2. On March 29, 2001, a hearing was held on Defendant's Motion before the Honorable J. Wesley Oler, Jr., after which Defendant's Motion to suppress evidence was taken under advisement. 3. On March 29, 2001, Defendant's Omnibus Pre-Trial Motion seeking to suppress evidence was denied by the Honorable J. Wesley Oler, Jr. 4. Defendant appeals the denial of his Omnibus Pre-Trial Motion seeking to suppress evidence.6 This opinion in support of the pre-trial denial of Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS For purposes of Defendant's suppression motion, the record consisted of the application for a search warrant, with the supporting affidavit of probable cause, the warrant, and the inventory return.7 The affidavit of probable cause, prepared by the affiant, Detective James E. Heck of the Cumberland County Drug Task Force, stated, in pertinent part, as follows: 4 Order of Ct., Aug. 21, 2001 (Hess, J.). Defendant was sentenced to pay the costs of prosecution and to undergo 22 months of supervised probation. Order of Ct., Oct. 9, 2001 (Hess, J.). 5 Notice of Appeal, filed Nov. 6, 2001. 6 Defendant's Concise Statement of Matters Complained of on Appeal, filed Nov. 20, 2001, paras. 1-4. 7 Commonwealth's Ex. 1 (Application for Search Warrant and Authorization, Affidavit of Probable Cause, and Return of Service and Inventory); see N.T. 2-4, Suppression Hr'g, March 29, 2001 (hereinafter N.T. ) (stipulating to admission of search warrant application materials). 2 On September 29, 2000 our office was contacted by the West Shore Regional Police Department advising of a possible marihuana plant growing on the second floor balcony of 737 Hummel Ave. Lemoyne, [Cumberland County,] Pa.. On October 5, 2000 about 1300 hrs. [Detective Heck] and Detective Peiper from the Cumberland County Drug Task Force went to the residence of 737 Hummel Ave. and before we exited our vehicle we could see a marihuana plant on the second floor balcony on the east side of the balcony. This plant was above the railing and is estimated to be at least three foot tall. We then made entrance to the common area of the apartment building and knocked on the second floor door with the number 4 over the door. There was no answer at the door and there was no name on the mailbox for apartment number 4. All other mailboxes had names on the mailboxes.8 According to the affidavit, after leaving the apartment building, officers attempted unsuccessfully to find the name of the resident of the apartment.9 The search warrant application stated that the detectives proposed to search for marijuana and drug paraphernalia at "Apartment number four, with the number 4 over the door," a "Second Floor Apartment.''~° The application stated further that "[t]his apartment is located at [an] apartment building located at 737 Hummel Ave. Lemoyne, Pa.," described as a "two story apartment building white in color with red trim with 737 on the front of the building.''~ The occupants of the apartment were listed as "unknown." 12 On the basis of the application, including the probable cause affidavit, the district justice issued a warrant to search apartment four, allegedly Defendant's apartment. The inventory return, completed after the search, indicated that the detectives seized marijuana plants, seeds, and drug paraphernalia from the apartment. 8 Commonwealth's Ex. 1, at 4. 9 Commonwealth's Ex. 1, at 4. l0 Commonwealth's Ex. 1, at 1. ~ Commonwealth's Ex. 1, at 1. ~2 Commonwealth's Ex. 1, at 1. ~3 Commonwealth's Ex. 1, at 5-6. 3 DISCUSSION Statement of Law Under the Fourth Amendment to the United States Constitution, "no Warrants shall issue, but upon probable cause." U.S. Const. amend IV. Under Article I, Section 8 of the Pennsylvania Constitution, "no warrant.., shall issue.., without probable cause." Pa. Const. art. I, § 8. Under both these provisions, a reviewing court must ensure that the issuing authority had a "substantial basis" for finding probable cause under the facts as presented in the warrant application. Common~vealth v. Torres, 564 Pa. 86, 96, 764 A.2d 532, 537-38 (2001). Probable cause in this context exists when there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Id at 96, 764 A.2d at 537 (quoting Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1986)). Although a court is obligated to review all the facts available to the issuing authority, the court should not review the record de novo. Id at tat, 764 A.2d at 540. Rather, the decision of the issuing authority is to be accorded "substantial deference," and the factual record should be viewed in a "common-sense, non-technical manner." Id at 97, tat, 764 A.2d at 538, 540; cf. Commonwealth v. Carlisle, 517 Pa. 36, 43, 534 A.2d 469, 472 (1987). In re Eckert, 260 Pa. Super. 161, 393 A.2d 1201 (1978), which dealt with a situation analogous to the present case, is instructive with respect to application of the probable cause standard.TM Eckert also involved a motion to suppress based upon an ~4 At the hearing on the suppression motion, it was argued by counsel for the Defendant that In re Wilks, 418 Pa. Super. 73, 613 A.2d 577 (1992), was analogous to the present case and compelled the conclusion that the district justice erred in the determination of probable cause. N.T. 4-6. However, as counsel for Defendant conceded, Wilks involved a challenge to the particularity of the warrant, not to the probable cause determination. N.T. 5. In Wilks, the Superior Court concluded that a warrant that specified the second floor of an apartment building was not sufficiently precise because it permitted a search of both apartments on that floor, when probable cause existed to search only one of the apartments. Wilks, 418 Pa. Super at 79-81, 613 A.2d at 579-80. Although probable cause was discussed tangentially in Wilks, the issue in the case was particularity of the warrant. Thus, Wilks is inapposite with respect to the question of probable cause involved in this case. 4 absence of probable cause for issuance of the warrant because the supporting affidavit did not directly link the affiant's visual observation of evidence of criminal activity with the defendant's home. Id at 165, 393 A.2d at 1203. In that case, the probable cause affidavit stated that evidence of criminal activity, specifically spent shell casings, had been seen on the roof of "the only occupied building" in a row of homes, but the affidavit did not identify the address of this building. Id at 164-65, 393 A.2d at 1202-03. The search warrant application stated that the location to be searched was "141 Penn St.," but did not identify this address as "the only occupied building" in the row of homes. Id at 165, 393 A.2d at 1203. In Eckert, the Superior Court rejected the defendant's argument that the affidavit did not adequately "connect" the evidence of criminal activity with the specific location to be searched. Id at 165, 393 A.2d at 1203. The Court, employing a "common sense reading of the application," concluded that it was reasonable for the issuing authority to infer that the "only occupied building," as the location was described in the affidavit, referred to "141 Penn St.," as the location to be searched was described elsewhere in the warrant application.~5 Id at 165-67, 393 A.2d at 1203-04. Application of Law to Facts In the present case, the court was of the view that the district justice had a "substantial basis" for finding that probable cause existed to search Defendant's apartment based on the facts as set forth by the affiant. The affidavit stated that the affiant and another detective observed marijuana growing "on the second floor balcony on the east side of the balcony" of the apartment building. Within the same paragraph, the ~5 The warrant application in Eckert was also challenged on the basis that, in the section describing the items to be searched for and seized, it identified the location to be searched as "139 Penn St.," not "141 Penn St.," which was the location actually searched. Eckert, 260 Pa. Super. at 165, 393 A.2d at 1203. The Superior Court stated that this "must have been a misstatement" and that the magistrate was still justified in issuing a warrant for "141 Penn St." Id at 165-67, 393 A.2d at 1203-04. In this aspect, the present case involves a stronger connection than Eckert because the affidavit at issue here did not contain inconsistent identifications of the place to be searched. 5 affidavit recited that the detectives "made entrance to the common area of the apartment building and knocked on the second floor door with the number 4 over the door." The specific description of the location of the balcony and the account of an immediate approach to apartment four clearly implied that the detectives determined that the balcony in question was associated with apartment four. This was a reasonable, common-sense reading of the warrant application, and the issuing authority in this case, like the issuing authority in Eckert, was justified in linking the illegal activity on the balcony with the apartment to be searched. In light of the substantial deference to be accorded the district justice's determination, this court was of the view that the application for a search warrant was not deficient is terms of probable cause as set forth therein. For the foregoing reasons, the order of court denying Defendant's motion to suppress was entered. BY THE COURT, Edmund Zigmund, Esq. Assistant District Attorney William G. Braught, Esq. Assistant Public Defender J. Wesley Oler, Jr., J. 6