Com. v. Aichele, J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEREMY GENE AICHELE, : No. 1484 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, July 1, 2015,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0001516-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 13, 2016
Jeremy Gene Aichele appeals the judgment of sentence in which the
Court of Common Pleas of Franklin County sentenced him to serve
42-100 months for possession with intent to deliver a controlled substance
and criminal use of a communications facility.1 Specifically, appellant
challenges the denial of his motion to suppress. We affirm.
On July 14, 2014, Officer Bryan P. Chappell, Jr. (“Officer Chappell”),
applied for a warrant to search 205 West Fourth Street, Waynesboro,
Pennsylvania. Officer Chappell requested the issuance of the warrant to
search for heroin, illegal controlled narcotics, evidence of funds or property
* Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512, respectively.
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obtained from the distribution, manufacture, or possession of controlled
substances, any paraphernalia, or any electronic devices used to facilitate
the sale or distribution of controlled substances. Appellant resided at
205 West Fourth Street.
In the affidavit of probable cause, which was attached to the warrant
application, Officer Chappell stated:
3) This investigation involves the distribution of
heroin at 205 West Fourth Street within the
borough of Waynesboro.
4) On July 14, 2014 I met with a Confidential
Informant about heroin distribution happening
at 205 West Fourth Street. A white male
known as Jeremy Aichele is the target of this
investigation. The Confidential Informant said
that they are able to make a purchase of a
quantity of heroin from 205 West Fourth
Street, specifically from Jeremy Aichele. The
Confidential Informant said that they are able
to contact Jeremy Aichele via cellular
telephone number (717) 655----- and make a
request to purchase a quantity of heroin. The
phone number (717) 655----- is on record for
Jeremy Aichele through the Waynesboro Police
Department Records.
5) The Confidential Informant has stated that
they have purchased heroin from Jeremy
Aichele at 205 West Fourth Street at least
every other day for the last couple of weeks
since Jeremy Aichele moved into the residence.
The Confidential Informant stated that they
contact Jeremy Aichele via cellular telephone
and when the Confidential Informant arrives at
the residence, Jeremy Aichele already has the
heroin weighed out and waiting.
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6) The Confidential Informant will make a phone
call to Jeremy Aichele at (717) 655----- and
set up a purchase of a quantity of heroin for
$170.00 from the residence at 205 West
Fourth Street Waynesboro. The Confidential
Informant will be searched for illegal
contraband and US Currency prior to and after
the purchase of a quantity of heroin. After the
Confidential Informant is searched, the
Confidential Informant will be provided pre-
recorded US Currency. The Confidential
Informant will be followed to 205 West Fourth
Street where the Confidential Informant will
enter the residence and make a purchase of a
quantity of heroin. The Confidential Informant
will exit the residence and will be followed to a
predetermined location. Once at the
predetermined location the Confidential
Informant will provide Investigators with a
quantity of heroin. The heroin will be field
tested. Once the heroin is tested and it shows
a presumptive positive for the presence of
heroin probable cause will have been
established that drugs are being contained and
sold at the residence of 205 West Fourth
Stree [sic] Waynesboro. Only when these
events have taken place, will probable cause
have been established authorizing a search to
be conducted at 205 West Fourth Street.
7) The Confidential Informants [sic] information
has been corroborated by the purchase of
heroin. Other information that has been
provided by the Confidential Informant has
been corroborated by Police Department
Records and personal knowledge by this
Officer.
Affidavit of probable cause (“Affidavit”), 7/14/14 at 1-2 ¶¶ 3-7.
A magisterial district judge issued the warrant on July 14, 2014. After
the confidential informant (“CI”) made the purchase of heroin for $170 as
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outlined in the Affidavit, the Waynesboro Police Department executed the
search warrant for 205 West Fourth Street. The search uncovered heroin, a
digital scale, drug paraphernalia, and approximately $1,000, including the
$170 that was used in the CI’s controlled buy. On July 14, 2014, appellant
was arrested and charged with delivery2 and possession with intent to
manufacture or deliver heroin and one count of criminal use of a
communications facility.
On October 16, 2014, appellant filed an omnibus motion and alleged
that the anticipatory search warrant was issued based on insufficient
probable cause:
7. The information provided in the Affidavit of
Probable Cause and Application for Search
warrant suggests that the search warrant was
issued based primarily on the assertion of a
confidential informant that he/she had
purchased drugs from Jeremy Aichele at the
address in the recent past and would do so
through a controlled buy with the police prior
to execution of the warrant.
8. The only way this information from the
informant was verified, as explained in the four
corners of the document, was by checking the
phone number given by the informant and
confirming that it matched the number on
record for Aichele at the Waynesboro Police
Department.
9. The Affiant also makes a vague
statement in the Affidavit that the ‘Confidential
Informant’s information has been corroborated
by the purchase of heroin,’ and as no previous
2
Appellant was not convicted of this charge.
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controlled buy was mentioned, it can only be
assumed that this statement is referring to the
previous buys allegedly made by the informant
himself/herself without police corroboration.
10. Therefore, this statement does nothing to
bolster the reliability of the informant’s
assertions.
11. Additionally, the Affiant states cryptically that
‘Other information that has been provided by
the Confidential Informant has been
corroborated by Police Department Records
and personal knowledge by this Officer.’
12. Based on the information contained in the
Affidavit, we can only assume that this
information was Aichele’s phone number and
possibly the address or owner of the residence.
13. There is no information provided in the
Affidavit which could lead us to believe the
police were able to corroborate anything
beyond that information.
14. Therefore, there was insufficient probable
cause to issue an anticipatory search warrant.
Omnibus motion, 10/16/14 at 1-2 ¶¶7-14.
After it received the Commonwealth’s response and heard oral
argument, the trial court denied the motion:
The Court does not take lightly the importance of
protecting individuals from unreasonable searches
and seizures as required under the Fourth
Amendment to the United States Constitution.
However, the Court finds that the Affidavit of
Probable Cause in this case was sufficient to satisfy
the two prong test articulated in [United States v.]
Grubbs [547 U.S. 90 (2006)] necessary for issuing
an anticipatory search warrant. There was sufficient
probable cause to believe that if the triggering
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condition, the controlled buy, occurred there would
be a fair probability of contraband or evidence found
at [appellant’s] residence. More importantly, and
distinct from [Commonwealth v.] Wallace [42
A.3d 1040 (Pa. 2012)], there was probable cause to
believe that the controlled buy itself would occur
based on the information contained in the affidavit.
As correctly highlighted by the Commonwealth,
although the information provided by the CI was a
significant contributing factor in establishing
probable cause, the affidavit also confirms that the
information was corroborated by Waynesboro Police
department records and personal knowledge of the
Affiant. Further, this Court finds [appellant’s]
attempt to analogize the case at hand with the
decision in Wallace to be unavailing. The instant
matter is clearly factually distinguishable from
Wallace for the numerous aforementioned reasons.
For all of the above mentioned reasons, [appellant’s]
Omnibus Motion must be denied.
Trial court opinion, 1/29/15 at 11-12.
Appellant raises the following issue for this court’s review: “Did the
trial court err in denying Appellant’s Motion to Suppress?” (Appellant’s brief
at 4.)
Initially, we note that our standard of review
when an appellant appeals the denial of a
suppression motion is well established. We are
limited to determining whether the lower court’s
factual findings are supported by the record and
whether the legal conclusions drawn therefrom are
correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by [the] defense that is not contradicted when
examined in the context of the record as a whole.
We are bound by facts supported by the record and
may reverse only if the legal conclusions reached by
the court were erroneous. Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa.Super. 2006),
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citing Commonwealth v. Scott, 878 A.2d 874, 877
(Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
A.2d 823 (2005).
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006). “It is
within the sole province of the suppression court judge to weigh the
credibility of the witnesses, and he or she is entitled to believe all, part, or
none of the evidence presented.” Commonwealth v. Snell, 811 A.2d 581,
584 (Pa.Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003) (citation
omitted).
An anticipatory search warrant is a search warrant that is based on an
affidavit which shows probable cause that at some future time, but not at
the time of the affidavit, certain evidence will be located at the place
specified in the affidavit. Commonwealth v. Glass, 754 A.2d 655 (Pa.
2000).
In United States v. Grubbs, 547 U.S. 90 (2006), the United States
Supreme Court explained an anticipatory warrant:
[F]or a conditioned anticipatory warrant to comply
with the Fourth Amendment’s requirement of
probable cause, two prerequisites of probability must
be satisfied. It must be true not only that if the
triggering condition occurs there is a fair probability
that contraband or evidence of a crime will be found
in a particular place, but also that there is probable
cause to believe the triggering condition will occur.
The supporting affidavit must provide the magistrate
with sufficient information to evaluate both aspects
of the probable cause determination.
Id. at 96-97.
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In evaluating an affidavit for probable cause to issue a warrant, an
issuing magistrate is to “make a practical, commonsense 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.” Glass, 754 A.2d at 661 (citations omitted).
Appellant contends that there was not sufficient probable cause to
believe the triggering condition, that the CI would purchase heroin from
appellant at appellant’s residence, would occur. Specifically, appellant cites
four items in the affidavit which Officer Chappell relied on to establish
probable cause and which appellant believes did not support such a finding:
1) an assertion by the CI that he would purchase heroin from appellant;
2) the CI’s provision of a telephone number which was on record with the
police as appellant’s phone number; 3) the “method” through which
appellant allegedly sold the heroin; and 4) the fact that “other information”
provided by the CI was corroborated by the police.
With respect to the CI’s assertion that he would purchase heroin from
appellant, appellant argues that even though the affidavit states that the CI
reported that he could purchase heroin from appellant and had done so for
“at least every other day for the past couple of weeks” (Affidavit at 1 ¶5),
the Affidavit does not address the CI’s reliability. Appellant further
complains that the Affidavit fails to state whether the Police Department had
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ever used the CI previously. Without more information to demonstrate the
credibility of the CI, appellant argues that the assertions by the CI are
insufficient to establish probable cause.
However, the record reflects that the CI admitted to having purchased
heroin from appellant numerous times, including every other day for the
previous two weeks. The CI’s admission that he had purchased heroin from
appellant at that address very recently and very frequently provides
adequate indication that the CI had a basis of knowledge regarding
appellant’s activities. Further, Officer Chappell stated in the Affidavit that
other information provided by the CI was corroborated by police department
records and Officer Chappell’s own personal knowledge.
Next, appellant argues that the CI’s provision of appellant’s cellular
telephone number, which was the same as the phone number the police had
on file for appellant, does not render the CI’s claims reliable. For support,
appellant cites to Commonwealth v. Wallace, 42 A.3d 1040 (Pa. 2012).
In Wallace, our supreme court held that an informant’s information about
Gregory Wallace (“Wallace”), a suspected drug dealer, that listed Wallace’s
address and home phone number, both of which the police independently
verified, did not provide indicia of reliability of the informant because “these
facts constituted readily ascertainable public information of a very general
nature and, thus, did not reveal a particular familiarity with [Wallace’s]
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affairs which would bolster the reliability of the confidential informant’s tip.”
Id. at 1052.
The trial court distinguished Wallace from the present case:
Lastly, the Court would note that the type of
phone number in the instant matter is different than
the one involved in Wallace. The phone number
contained in the affidavit in Wallace was the home
number of the defendant’s residence. However, the
phone number in the case at bar was [appellant’s]
cell phone number. It is entirely understandable
why the Wallace Court concluded that an
individual’s home phone number is readily
ascertainable public information of a very general
nature. Many home phone numbers can be
discovered by any member of the public with relative
ease simply by using a phone book. Most list an
individual’s name, home address, and the telephone
number. Thus, verifying that an individual lived or
owned a particular residence and learning the home
phone number associated with it is a simple task.
The same process cannot be used to obtain an
individual’s cell phone number. In this case the
affidavit states that the CI was able to contact
[appellant] through his cell phone number. This cell
phone number was only able to be verified as
[appellant’s] through the Waynesboro police records.
Therefore in this case it cannot be said that
[appellant’s] cell phone number constituted ‘readily
ascertainable public information of a very general
nature.’ The Court would note this important
distinction from Wallace.
Trial court opinion, 1/29/15 at 10-11.
We agree with the trial court. There is a significant factual difference
from Wallace. The fact that the CI had appellant’s cell phone number and
that number was corroborated by the police does support the reliability of
the CI.
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Next, appellant contends that the CI’s description of the method by
which appellant sold heroin does not support the CI’s credibility and does not
support a determination of probable cause. In the Affidavit, Officer Chappell
stated that the CI said that he would call appellant to make a buy of heroin
and when he arrived at appellant’s residence, appellant would have the
heroin weighed and waiting for him. Appellant argues that this is a
description of a generic drug deal and does nothing to bolster the CI’s
reliability or credibility.
While this description may describe a typical drug deal, it does not
mean it did not accurately describe how the CI purchased heroin from
appellant and could support a determination that there was a fair probability
that contraband or other evidence of a crime could be found at 205 West
Fourth Street. It was the province of the fact-finder to credit this statement;
we may not make our own credibility determinations.
Appellant next contends that the statement on the Affidavit that
“[o]ther information that has been provided by the Confidential Informant
has been corroborated by Police Department Records and personal
knowledge by this Officer” (Affidavit at 2 ¶7) does not provide any clarity as
to what Officer Chappell is referring and without any additional detail this
statement cannot serve as corroborating evidence. The trial court stated
that “[a]lthough not expanded upon in the affidavit, the Affiant’s personal
knowledge appears to include that the Affiant had investigated [appellant]
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for drug activity prior to receiving any information regarding the CI
regarding the current charges.” (Trial court opinion, 1/29/15 at 10.)
Appellant argues that the trial court cannot make this inference based on the
information contained in the Affidavit.
While this statement may or may not illustrate that the police were
investigating appellant, personal knowledge of the inside information
provided by a confidential informant can impart additional reliability to a tip.
Commonwealth v. Smith, 784 A.2d 182, 187 (Pa.Super. 2001). The fact
that Officer Chappell attested to the veracity of other information supplied
by the CI supports the credibility and reliability of the CI and bolsters the
case for the issuance of a warrant.
Finally, appellant argues that these averments taken together do not
meet the totality of the circumstances test where an issuing magistrate must
determine that there is a fair probability that contraband or evidence of a
crime will be found in a particular place based on all the circumstances set
forth in the affidavit. Commonwealth v. Coleman, 830 A.2d 554 (Pa.
2003). Essentially, appellant restates his earlier arguments concerning each
averment in the affidavit. Because we have already determined that these
averments standing alone supported the issuance of a warrant, it stands to
reason that the averments taken together could have led the magistrate to
conclude that there was a good chance that the issuance of a warrant would
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result in contraband or evidence of a crime.3 The trial court did not err when
it denied the motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
3
Appellant also points to the statement in the Affidavit that “the Confidential
Informant’s information has been corroborated by the purchase of heroin”
(Affidavit at 2 ¶7), and argues that Officer Chappell refers to the CI’s
statement that he previously purchased heroin from appellant and nothing
more. It is unclear exactly what is meant by this statement. However,
whether that proves to undermine the determination of probable cause must
be examined in light of all of the totality of circumstances. This court has
already determined that there was sufficient information to issue a warrant
given the totality of circumstances.
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