Commonwealth v. Manuel

194 A.3d 1076

COMMONWEALTH of Pennsylvania, Appellee

v.Charles Howard MANUEL, Appellant

Commonwealth of Pennsylvania, Appellee

v.Timothy A. Manuel, Appellant

No. 1048 MDA 2015

No. 1152 MDA 2015

Superior Court of Pennsylvania.

Argued April 24, 2018

Filed August 23, 2018

Jeremy D. Williams, York, for appellants.

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY LAZARUS, J.:

Charles H. Manuel and Timothy A. Manuel (referred to collectively as "Appellants") appeal from their judgments of sentence, entered in the Court of Common Pleas of York County, after they were each convicted in a stipulated non-jury trial of one count of possession with intent to manufacture or deliver marijuana ("PWID").¹ The issue presented by this appeal is whether a search warrant based on information provided by a confidential informant ("CI"), whose reliability has not been adequately corroborated, can supply the basis for either a search or an arrest. Upon careful review, we conclude that it cannot and therefore reverse the judgments of sentence.

On June 16, 2014, Officer Michelle Hoover of the York Area Regional Police Department met with a CI who advised her that, within the prior 72 hours, he² had been inside the premises located at 1110 Pleasant Grove Road, Red Lion, York County ("Pleasant Grove Residence"), and had observed marijuana packaged for sale, multiple marijuana plants growing, and marijuana growing accessories. The CI advised Officer Hoover that a white male named Timothy Manuel lived at the residence.

Based upon the information provided by the CI, Officer Hoover applied for and received a warrant to search the Pleasant Grove Residence and all persons present. On June 20, 2014, the York County Drug Task Force executed the warrant and found marijuana plants growing in Appellants' bedrooms, as well as drug paraphernalia, cash, and a digital scale. Appellants were arrested and each charged with one count of PWID.

On January 20, 2015, Appellants filed a joint motion to suppress, arguing that the search warrant obtained by Officer Hoover lacked sufficient probable cause because the police did not perform any investigation to independently corroborate the CI's information. A hearing was held on March 23, 2015, and, by order dated March 24, 2015, the trial court denied the suppression motion.

A stipulated bench trial was held on May 1, 2015, at the conclusion of which Appellants were found guilty of PWID. Appellants were sentenced on June 3, 2015. Charles received a sentence of two years' intermediate punishment, consisting of two months' imprisonment on Outmate status, followed by four months of house arrest and then probation. Timothy was originally sentenced to six to twenty-three months' incarceration; however, after he filed a motion for reconsideration of sentence, the court resentenced him to a twenty-three month term of intermediate punishment, consisting of three months' imprisonment, followed by three months of house arrest and then probation.

Appellants filed timely notices of appeal, which this Court consolidated, and raised for our review the issue of whether the trial court erred in denying their motions to suppress, where the Application for a Search Warrant and attached Affidavit of Probable Cause lacked sufficient probable cause because they failed to establish the veracity and reliability of the CI and lacked independent police corroboration of criminal activity, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

On appeal, the panel majority reversed, concluding that the information contained in the affidavit of probable cause was legally insufficient to support the issuance of a search warrant where the reliability of the CI, who had previously provided information leading to only one arrest and no convictions, had not been sufficiently established through independent police corroboration. The dissent concluded that the affidavit "comfortably satisfied" probable cause, emphasizing that the CI had personally observed marijuana cultivation and packaging at Appellants' residence.

The Commonwealth filed for reargument and we granted en banc review. The parties submitted substituted briefs and raise the following issue:

Whether the trial court erred in denying the [motion to suppress] where the [a]pplication for a [s]earch [w]arrant and attached [a]ffidavit of [p]robable [c]ause lacked sufficient probable cause by failing to establish the veracity and reliability of the [CI] and lacked independent police corroboration of criminal activity, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution ?

Substituted Brief of Appellants, at 3.

We begin by noting that our scope and standard of review of an order denying a motion to suppress are unique when we are reviewing a magistrate's decision to issue a search warrant. They differ from those cases in which we are reviewing a court's decision regarding evidence obtained without a warrant. When reviewing a magistrate's decision to issue a warrant, there are no factual findings from the trial court. Thus, we need not consider "only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." See Commonwealth v. Farnan , 55 A.3d 113, 115 (Pa. Super. 2012). Instead, we are merely reviewing the magistrate's decision to issue the warrant. As such, our duty is to "ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority's probable cause determination, and must view the information offered to establish probable cause in a common-sense, non-technical manner." Commonwealth v. Torres , 564 Pa. 86, 764 A.2d 532, 537–38 (2001).

Appellants challenge the sufficiency of the information contained in the probable cause affidavit. Specifically, Appellants assert that the reliability of the CI was not established where the CI had previously provided information leading to only one arrest which had not yet led to a conviction. Moreover, Appellants assert that independent police corroboration of the CI's information was insufficient, consisting solely of verifying publicly available information. For the reasons that follow, we conclude that the information contained in the affidavit of probable cause was legally insufficient to support the issuance of a search and seizure warrant.

The legal principles applicable to a review of the sufficiency of probable cause affidavits are well settled. Before an issuing authority may 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. The standard for evaluating a search warrant is a "totality of the circumstances" test as set forth in Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted in Commonwealth v. Gray , 509 Pa. 476, 503 A.2d 921 (1985).^{[3 ]} A magistrate is to make a "practical, common sense decision whether, given all 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." The information offered to establish probable cause must be viewed in a common sense, nontechnical manner. Probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and deference is to be accorded a magistrate's finding of probable cause.

Commonwealth v. Rapak , 138 A.3d 666, 670-71 (Pa. Super. 2016), quoting Commonwealth v. Ryerson , 817 A.2d 510, 513–14 (Pa. Super. 2003) (quotation omitted).

Probable cause does not demand the certainty we associate with formal trials. Rather, a determination of probable cause requires only that the totality of the circumstances demonstrates a fair probability that contraband or evidence of a crime will be found in a particular place. Thus, where the evidence available to police consists of an anonymous tip, probable cause may be established upon corroboration of major portions of the information provided by the tip. Similarly, where the evidence consists of the allegations of a police informant who has not previously provided information, probable cause requires only corroboration of principal elements of information not publicly available. As recognized by the [U.S. Supreme] Court in [ Illinois v. ] Gates , [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983),] "[i]t is enough, for purposes of assessing probable cause, that ‘[c]orroboration through other sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the hearsay.’ "

Commonwealth v. Otterson , 947 A.2d 1239, 1244-45 (Pa. Super. 2008), quoting Commonwealth v. Brown , 924 A.2d 1283, 1286-87 (Pa. Super. 2007) (emphasis added) (citations and quotation marks omitted).

Officer Hoover's affidavit of probable cause provided, in its entirety, as follows:

The undersigned, Ofc. M. Hoover, has been a member of the York Area Regional Police Department for six years, a member of the York County Drug Task Force, and has been sworn as a Special York County Detective authorized to conduct investigations in York County, PA. During this time period, I have participated and executed numerous narcotic investigations, search and seizure warrants, and narcotics arrests. These narcotic investigations include undercover purchases, controlled purchases using confidential informants, execution of

...