Com. v. Manuel, C. ( 2017 )

J-A06026-16
2017 Pa. Super. 94
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES HOWARD MANUEL
Appellant No. 1048 MDA 2015
Appeal from the Judgment of Sentence June 3, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007220-2014
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY A. MANUEL
Appellant No. 1152 MDA 2015
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007222-2014
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY LAZARUS, J.: FILED APRIL 07, 2017
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
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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 in which the reliability of a confidential
informant (“CI”) and the facts of criminal conduct that the CI provided the
police have not been adequately corroborated can supply the basis for either
a search or an arrest. Upon careful review, we are constrained to 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, as well as her own
training and experience, 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
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1
35 P.S. 780-113(a)(30).
2
The gender of the CI is unknown. We will refer to the CI with male
pronouns.
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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 information provided to them by the CI. 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 Timothy 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.
Appellants present the following issue for our review:
Whether the trial court erred in denying the Omnibus Pretrial
Motion to Suppress Evidence where the Application for a Search
Warrant and attached Affidavit of Probable Cause lacked
sufficient probable cause by failing to establish the veracity and
reliability of the [CI] and lacked independent police corroboration
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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?
Brief of Appellants, at 3.
We begin by noting our scope and standard of review of an order
denying a motion to suppress:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may 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. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where, as here, the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012), quoting
Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)
(citations omitted).
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, at the time the affidavit was
executed, led to a conviction. For the reasons that follow, we are
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constrained to 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).
Commonwealth v. Rapak, 2016 Pa. Super. 94, at *3 (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 (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.’”
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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) (citations and quotation marks omitted).
The relevant portion of the Officer Hoover’s affidavit of probable cause
provided as follows:
On June 16, 2014 I met with a reliable confidential informant
who advised they were inside 1110 Pleasant Grove Road, Red
Lion, PA 17356 located in Windsor Township of York County
within the past 72 hours. While in the residence, the informant
stated [he] observed marijuana packaged for sale, multiple
marijuana plants growing, and growing accessories such as
growing tools, soil, a humidifier and a grow tent. This informant
advised a [white male] named Timothy Manuel lives in the
residence.
The informant should be considered reliable due to the fact that
[he has] provided police with information that has led to a felony
drug arrest that is currently pending in the York County Court
system. This informant is familiar with what marijuana looks like
and how it is packaged in York County.
I ran a check through PENN DOT and observed Timothy Manuel
lists the address 1110 Pleasant Grove Road, Red Lion, PA 17356
as his residence. On 6/16/14 I viewed a red Mitsubishi parked in
the driveway of 1110 Pleasant Grove Road. The vehicle is
registered to Charles Manuel of 1110 Pleasant Grove Road, Red
Lion, PA 17356.
Based on the totality of the above circumstances, I know
through training and experience that narcotics dealers will
commonly use a location such as a dwelling to store or “stash”
larger quantities of narcotics, packaging, material, and proceeds
in order to protect their product(s) and proceeds and to evade
law enforcement. Based on my training and experience, I know
that narcotics dealers will commonly keep a portion of their
product and weapons on their person. Therefore, I request to
search all persons present for officer safety reasons and to
protect the destruction of evidence.
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I believe that the premise known as 1110 Pleasant Grove Rd. in
Windsor Township[ i]s being utilized to grow, store, package,
and prepare marijuana for the purpose of street level sales.
Therefore, I ask for the issuance of a search and seizure warrant
for the premises known as 1110 Pleasant Grove Rd. in Windsor
Township.
Affidavit of Probable Cause, 6/18/14.
Appellants argue that the information contained in the affidavit does
not sufficiently establish the reliability of the CI because previous
information provided by the CI had, at that point, resulted in only one arrest
and no convictions. Appellants assert that “[a] solitary arrest not resulting
in a criminal conviction is hardly deserving of automatic reliability veiled
behind a cloak of secrecy for confidential informants.” Brief of Appellants, at
16. Appellants cite the apparent doubts regarding the reliability of the CI
expressed by the trial court in its Pa.R.A.P. 1925(a) opinion:
While we agreed, and still do agree, to some extent with the
Appellant[s’] arguments, we think that the fact that Officer
Hoover was able to confirm that [Timothy Manuel] lived at the
residence provided by the CI, provided information about the
presence of drugs which was not available to the general public,
and that this particular CI had given reliable information in the
past did establish sufficient probable cause.
Trial Court Opinion (Case No. 7222-2014), 8/14/15, at 7. Appellants argue
that, contrary to the trial court’s conclusion, the additional information
obtained by the police fell short of the quantum and quality necessary to
corroborate the CI’s information and establish his reliability. We agree.
In evaluating an affidavit of probable cause,
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
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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. And the duty of a reviewing
court is simply to ensure that the magistrate had a “substantial
basis for ... conclud[ing] that probable cause existed.”
Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1985), quoting Illinois
v. Gates, 462 U.S. 213 (1983).
An informant’s tip may constitute probable cause where police
independently corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where the informant
himself participated in the criminal activity. Commonwealth v. Clark, 28
A.3d 1284, 1288 (Pa. 2011). “[I]nformation received from an informant
whose reliability is not established may be sufficient to create probable
cause where there is some independent corroboration by police of the
informant's information.” Commonwealth v. Sanchez, 907 A.2d 477, 488
(Pa. 2006), quoting United States v. Tuttle, 200 F.3d 892, 894 (6th Cir.
2000).
As the trial court correctly noted, there is no “magic number” of
arrests or convictions for which a CI need previously have provided
information to be deemed reliable. See Clark, 28 A.3d at 1292 (“[T]here is
no talismanic recitation of a particular phrase with respect to ‘reliability’ or
‘basis of knowledge’ that will either be required or will suffice to conclusively
establish, or conclusively disaffirm, the existence of probable cause.”)
Moreover, we are mindful of the fact that we are not to consider the various
factors in a mechanical fashion, but rather assess the totality of the
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circumstances in a common-sense manner. See Commonwealth v.
Smith, 784 A.2d 182, 187 (Pa. Super. 2001) (pursuant to “totality of
circumstances” test, task of issuing authority is to make practical, common-
sense decision whether, given all circumstances set forth in affidavit, there is
fair probability that contraband or evidence of crime will be found in
particular place). Accordingly, the fact that the CI had previously provided
information leading only to one arrest does not automatically deem the
information provided in this case unreliable. Where, as here, a CI’s tip
provides inside information,3 police corroboration of the inside information
can impart additional reliability to the tip. In Interest of O.A., 717 A.2d
490, 498 (Pa. 1998). Here, however, the lack of substantial follow-up
investigation by the police to secure true corroboration of such inside
information constrains us to conclude that, under the totality of the
circumstances, the affidavit did not establish probable cause.
In this case, the police failed to conduct any investigation that might
have yielded corroboration of information unavailable to the public at large
and, thereby, increased the reliability of the CI’s tip. They neither arranged
for the CI to conduct a controlled buy at the premises nor performed any
type of photographic or electronic surveillance. Rather, Officer Hoover
merely ran searches through PennDOT that established that Timothy Manuel
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3
“Inside information” by necessity must be the type of information not
available in the public domain.
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resided at the Pleasant Grove Residence and that Charles Manuel registered
a car at that address. This generally available information was not
corroborative of criminal conduct. As our Supreme Court stated in In
Interest of O.A.:
If the facts that are supplied by the tip itself are no more than
those easily obtained, then the fact that the police corroborated
them is of no moment. It is only where the facts provide inside
information, which represent a special familiarity with a
defendant’s affairs, that police corroboration of the information
imparts indicia of reliability to the tip to support a finding of
probable cause. Thus, police corroboration of an informant’s tip
enhances the indicia of reliability and thereby strengthens the
determination that the facts and circumstances surrounding the
tip warrant a finding of probable cause.
In Interest of O.A., 717 A.2d at 498.
The trial court, which essentially conceded that the facts contained in
the affidavit of probable cause were thin, see Trial Court Opinion (Case No.
7222-2014) (“[W]e agreed, and still do agree, to some extent with the
Appellant[s’] arguments[.]”), found probable cause based largely on its
belief that the corroborative information obtained by the police was sufficient
to impart an indicia of reliability to the CI. However, as noted above, the
information obtained by the police did not confirm any of the CI’s alleged
inside information, but was readily obtainable. Accordingly, the
corroboration is “of no moment” and we conclude that the trial court erred in
making a finding of probable cause. Id.
This Court’s decision in Commonwealth v. Chatman, 418 A.2d 582
(Pa. Super. 1980), supports our conclusion. There, a CI provided police with
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information regarding the storage and sale of heroin from an address in
Wilkinsburg. Relevant to our inquiry, the affidavit of probable cause
included the following information regarding the CI’s reliability:
The affiant received information from a reliable informant who in
the past has been very knowledgeable about the narcotics traffic
in the Wilkinsburg area . . .. This informant has given
information in the past which led to the arrest of Curtis Williams
and Earl Montel.
Id. at 583. The trial court suppressed the evidence obtained as a result of
the search warrant issued as a result of the information supplied by the CI.
On appeal, the sole issue was whether “the averment that the informant’s
prior information led to the arrests of certain named individuals is sufficient
to establish the informant’s credibility.” Id. An equally divided panel of this
Court affirmed the decision of the trial court, concluding that:
An affidavit, such as in the case at bar, which merely states that
the informer supplied prior information leading to the arrest of
two individuals, cannot suffice to establish credibility because
there is no indication that the “information proved to be correct.”
In other words, as Professor LaFave has explained: “(t)he mere
statement that the police decided to arrest because of what this
informant said on a prior occasion does not indicate whether that
decision was lawful or whether anything learned incident to or
following the arrest verified what the informant had said.” 1 W.
R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 3.3, at 514 (1978). For all that appears in the
instant affidavit, [the individuals arrested as a result of the
informant’s information] may have been acquitted and the
information furnished against them by the informant may have
proven totally false. On the other hand, it may be that
prosecutions were pending against [them], or that the
prosecutions were dismissed for reasons unrelated to the
veracity of the informant’s information. Whatever the case
may be, the critical fact is that the unadorned assertion
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that the informant previously supplied information which
prompted arrests leaves the magistrate “intellectually
crippled in terms of making the informed judgment
contemplated by the fourth amendment.” Moylan, [Hearsay
and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer
L.Rev. 741, 759 (1974)].
Id. at 585 (emphasis added). Likewise, here, the fact that the CI previously
provided information which led to a single arrest – the details of which do
not appear in the affidavit – is insufficient to establish the CI’s credibility,
particularly as there is no indication that the information proved to be
correct. See id. See also Commonwealth v. Gindlesperger, 706 A.2d
1216 (Pa. Super. 1997) (reliability of CI not established where affidavit
stated CI provided information that “will lead” to future arrests and
contained no details as to prior information supplied by CI).
We acknowledge that this is a close case. However, the police had
every opportunity to pursue more substantial corroboration prior to
preparing the affidavit of probable cause, but failed to do so.4 We simply do
not believe that, without more, the CI’s reliability was established solely by
the fact that he had provided a tip leading to one still-pending prosecution,
the details of which were not included in the affidavit of probable cause.
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4
In noting the lack of corroboration by the police, we do not intend to
suggest that the police are in every case required to independently
corroborate information supplied by a confidential informant. However, in a
case such as this, where the facts establishing the CI’s credibility are
particularly thin, corroboration by police takes on added significance in our
“totality of the circumstances” evaluation of the four corners of the affidavit
of probable cause. See Sanchez, supra.
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Judgments of sentence reversed. Case remanded for proceedings
consistent with the dictates of this Opinion. Jurisdiction relinquished.
DUBOW, J., Joins this Opinion.
STABILE, J., Files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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