Commonwealth v. Haggerty , 388 Pa. Super. 67 ( 1989 )

TAMILIA, Judge:

These are consolidated appeals by the Commonwealth from the Orders of court entered June 8, 1988 suppressing approximately two and one-half pounds of cocaine and drug paraphernalia seized by police on a finding that the “four corners” of the challenged search warrant did not establish probable cause.¹

A bail commissioner issued the search warrant in this case, based on an affidavit which failed to provide the date on which the confidential informant witnessed the persons, whose home was to be searched, in possession of drugs.² Even so, the Commonwealth asserts the warrant was based on probable cause under the good faith exception to the exclusionary rule. The United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), recognized a good faith amendment to the exclusionary rule of the fourth amendment when it held the rule should not be applied so as to bar the use in the prosecution’s case-in-chief of inherently trustworthy, tangible evidence obtained by officers acting in reasonable reliance on a search warrant, issued by a detached and neutral magistrate, which ultimately is found to be defective. Id. at 907, 104 S.Ct. at 3412, 82 L.Ed.2d at 688.

Although we do not as yet have clear directions from the Pennsylvania Supreme Court on the good faith exception announced in Leon, supra, and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), we believe if the doctrine were approved by our Supreme Court, this case would clearly fall within it, even under the restricted view taken by the dissent of the probable cause statement contained in the search warrant and affidavit.

We agree with the following discussion by the Supreme Court in Leon:

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. ‘Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.’ An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, may well ‘generate disrespect for the law and administration of justice.’ Accordingly, ‘as with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’

Id. at 907-8, 104 S.Ct. at 3412-13, 82 L.Ed.2d at 688-9.

Although a search warrant is defective if the issuing authority is not supplied a time frame upon which to ascertain when the affiant obtained his information from his informant and when the informant himself obtained the information he allegedly had, Commonwealth v. Kalinowski, 303 Pa.Super. 354, 449 A.2d 725 (1982), citing Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973), we find the information as to the date of the drug activity was available for the bail commissioner’s use in issuing the warrant. See discussion, infra. An inadvertant error in processing a search warrant should not result in the dismissal of charges against alleged drug dealers. We find, however, aside from the good faith exception which remains to be construed by our Supreme Court, under the totality of the circumstances test, announced by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by our Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), the probable cause section does meet the test required for specificity relating to time, place and alleged criminal activity required to be contained within the four corners of the affidavit.

The trial court acknowledged the officers would have testified credibly that in supplying the information to the officer typing the warrant, all of the essential information was given to the effect that the criminal activity was observed by the informant on August 20, 1987, and while this date was typed in the affidavit as the date the information was received, it was inadvertently left out as the date when the activity was observed. We find that upon reading the affidavit from the point of view not of judges applying a critical legalistic eye, but of officers and magistrates working under time limits and urgency to proceed expeditiously, the only inference which can be drawn from the affidavit as written is that drug activity was currently in progress. Reading the affidavit within its four corners, it is fair to assume it informs that on Thursday, August 20, 1987, in the early evening hours, Sergeant Perez received information from a proven reliable informant that he/she had occasion to be inside 2549 N. Mascher Street, Philadelphia, Pennsylvania, in the company of Rivera a/k/a Brian where he observed Brian in possession of several large blocks of white chunky substance Brian referred to as cocaine, and that he had in his possession clear plastic baggies and two scales and Brian had a conversation with another person that he was going to start bagging cocaine so it could be picked up by his workers for distribution.

A fair reading of the affidavit leads to the conclusion the informant reported what he had just seen. Any other interpretation would be strained and would require that we ignore the more common sense approach announced by Gray and return to the hypertechnical standard required under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The necessity to establish the time frame concerning which the search warrant is sought is to avoid staleness as a warrant can only issue upon probable cause that exists at the time of issuance. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981). Mere lapse of time between discovery of criminal activity and issuance of a search warrant will not necessarily dissipate probable cause and a showing that criminal activity is likely to have continued up to the time of issuance of a warrant will render otherwise stale information viable. A period of fourteen days between the observed criminal activity and the issuance of the warrant was not too remote to support a finding of probable cause. Id. Here, the large quantity of cocaine, the need to weigh and bag it, and the use of workers to provide distribution, pointed to a large operation conducted over a period of time. The informant had delivered valid information leading to the arrest of a person and confiscation of cocaine within the previous five days. Pursuant to this information, the officer seeking the warrant, the officer typing the warrant, the bail commissioner who issued the warrant and the assistant district attorney who approved the affidavit for the officer believed the affidavit provided sufficient probable cause to support the warrant. None caught the inadvertent lapse in supplying the date the informant viewed the activity because the affidavit could reasonably be read to mean he reported the activity immediately after he viewed it on August 20, 1987.

For these reasons, we reverse the trial court and remand the case for trial permitting the evidence seized to be admitted.

While we have not attempted to support the admission of this evidence on the basis of the good faith exception adopted by the United States Supreme Court, we believe that rule is also applicable here. Where the police are not chargeable with any misconduct and in all respects their procedures have been in compliance with the law in pursuit of a search warrant, the mere inadvertence of those involved in preparing an affidavit, in failing to provide a fact which was known to the officials involved, should not result in the nullification of that effort. To do so would not be to assure protection of the innocent, as intended by the constitution, but it would provide undeserved escape mechanisms for the guilty.

Orders reversed at Nos. 02123, 02124, 02125 and 02126 Philadelphia, 1988; cases remanded for trial permitting the seized evidence to be admitted.

Jurisdiction relinquished.

KELLY, J., joins TAMILIA, J., and files a concurring statement. CAVANAUGH, J., dissents.

1 . The Commonwealth appeals on the basis of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), as suppression of the evidence of drugs and drug paraphernalia effectively terminated the prosecution.

2 . The affidavit stated:

On Thursday 8-20-87 in the early evening hours Sgt. M. PEREZ #428 Narcotics unit received information from a proven reliable informant, who within the past (5) days provided information to Sgt. M. PEREZ resulting in the arrest of (1) person and the confiscation of an amount of cocaine and heroin. This informant went on to state to PEREZ that he/she had occasion to be inside 2549 N. Mascher St., Phila. Pa. in the company of a H/M known to him/her as Jose RIVERA who also uses the name BRIAN, and while there the informant states he/she did observe RIVERA/BRIAN in possession of several large blocks of a white chunky substance which RIVERA did refer to as cocaine, the informant states that RIVERA also had in his possession several empty clear plastic baggies and (2) scales. The informant went on to state that he/she did hear a conversation between RIVERA and another unidentified H/M, and RIVERA did state to this H/M that he was going to start bagging up the cocaine so it could be picked up by his workers who would transport the cocaine to different locations for the purpose of selling it.