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 entered June 3, 2015
              In the Court of Common Pleas of York County
            Criminal Division at No: 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 entered July 1, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No: CP-67-CR-0007222-2014


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

DISSENTING OPINION BY STABILE, J.:                   FILED APRIL 07, 2017

      Probable cause for the issuance of a search warrant exists when there

is a fair probability evidence of a crime will be found in a particular place.

Commonwealth v. Lyons, 79 A.3d 1053, 1065 (Pa. 2013).
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       The CI in this case provided information to the police that in the

previous 72 hours he1 had been inside Appellants’ home and witnessed the

growing of multiple marijuana plants, marijuana packaged for sale, and

marijuana growing accessories such as growing tools, soil, a humidifier and

a grow tent. This was first-hand information from a CI who was present and

witnessed the criminal activity for which Appellants were charged and

convicted.     This was not an anonymous source, but rather, a CI who

previously provided reliable information to the police that led to a felony

arrest.   This was information that led the police to believe, based upon

training and experience, that the premises were being used to grow, store,

package, and prepare marijuana for the purpose of street-level sales.

Viewing the totality of the circumstances here, these facts establish a fair

probability that evidence of a crime would be found in the searched

premises.    See id.     These facts notwithstanding, the Majority nonetheless

insists that to establish probable cause, the police still must independently

corroborate the CI’s report of criminal activity.         Our case law no longer

supports such a mechanical application of probable cause under a totality of

the circumstances test, especially where the informant’s information is based

upon personal observation. See Commonwealth v. Clark, 28 A.2d 1284,

1287-88 (Pa. 2011).           In my opinion, the affidavit of probable cause

____________________________________________


1
  The gender of the CI is unknown.             As the Majority does, the CI will be
referred to with male pronouns.



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supporting the search warrant issued here by a neutral and detached

magistrate judge comfortably satisfied probable cause by establishing that

there was a fair probability that evidence of a crime would be found at

Appellants’ residence.        I would affirm the trial court’s ruling to deny

suppression. Therefore, I respectfully dissent.

       In Commonwealth v. Clark, 28 A.3d 1284 (Pa. 2011) our Supreme

Court provided an overview of the evolution of the probable cause standard.

              Prior to 1983, in order to establish probable cause for the
       issuance of a search warrant based on information received from
       a confidential informant, an affidavit of probable cause had to
       satisfy a two-part test [, the Augilar-Spinelli test]. The test
       required the affiant to set forth 1) the basis of the informant’s
       knowledge; and 2) facts sufficient to establish an informant’s
       veracity or reliability. Spinelli v. United States, 393 U.S. 410,
       89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378
       U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In 1983, the
       U.S. Supreme Court abandoned this “two-part” test and adopted
       a “totality of the circumstances” test. Illinois v. Gates, 462
       U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). [2] The
       Court held that the Aguilar-Spinelli factors were no longer
       rigid, independent requirements that had to be satisfied, but
       instead, were merely relevant factors among the totality of
       circumstances necessary to show probable cause.” Id.

Commonwealth v. Clark, 28 A.3d at 1286-87 (Pa. 2011) (emphasis

added) (footnote omitted). Under Gates, “probable cause is a fluid concept

that turns on the assessment of probabilities in factual contexts that are ‘not

readily, or even usefully, reduced to a neat set of legal rules.’” Id. at 1287-

____________________________________________


2
  This was followed by our State Supreme Court in Commonwealth v.
Gray, 503 A.2d 921, 926 (Pa. 1985).



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88; see also Commonwealth v. Repak, 138 A.3d 666, 671 (Pa. Super.

2016).    A totality of the circumstances analysis “permits a balanced

assessment of relative weights of all the various indicia of reliability or

unreliability of an informant’s tip.” Clark, 28 A.3d at 1288. Accordingly, “a

CI’s veracity and basis of knowledge are but factors among the totality of

circumstances” to be considered.          Id.   Therefore, post-Gates, “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.”   Id. (citing Commonwealth v. Luv,

735 A.2d 87, 90 (Pa. 1999) (some emphasis added); see also In the

Interest of J.H., 622 A.2d 351, 353 (Pa. Super. 1993).         An affidavit of

probable cause is reviewed “in its entirety, giving significance to each piece

of information and balancing the relative weights of all the various indicia of

reliability (and unreliability) attending the tip.”      Commonwealth v.

Wallace, 42 A.3d 1040, 1048-49 (Pa. 2012) (quoting Massachusetts v.

Upton, 466 U.S. 727, 732 (1984)). Therefore,

            [i]f, for example, a particular informant is known for the
            unusual reliability of his predictions of certain types of
            criminal activities in the locality, his failure, in a
            particular case, to thoroughly set forth the basis of his
            knowledge surely should not serve as an absolute bar to
            a finding of probable cause based on his tip. Likewise,
            if an unquestionably honest citizen comes forward with
            a report of criminal activity-which if fabricated would
            subject him to criminal liability-we have found rigorous
            scrutiny of the basis of his knowledge unnecessary.


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           Conversely, even if we entertain some doubt as to
           an informant’s motives, his explicit and detailed
           description of alleged wrongdoing, along with a
           statement that the event was observed firsthand,
           entitles his tip to greater weight than might
           otherwise be the case.

Id. at 1051 (emphasis added) (quoting Gates, 462 U.S. at 233-34 (citations

and footnote omitted in original).       Likewise, “where the reliability of the

informant is not established, then the facts and circumstances surrounding

the tip must provide sufficient indicia of reliability to support a finding of

probable cause.”    Commonwealth v. Smith, 784 A.2d 182, 187 (Pa.

Super. 2001) (citing In the Interest of O.A., 717 A.2d 490 (Pa. 1998)).

The fluidity of the totality of the circumstances test under Gates does not

hamstring an issuing authority from finding probable cause to issue a search

warrant by insisting upon rigid criteria.      Rather, an issuing authority may

find that probable cause exists for a search warrant based upon whatever is

presented in an affidavit of probable cause, so long as what is presented

contains sufficient indicia of reliability to demonstrate there is a fair

probability that contraband or evidence of a crime will be found in a

particular place.   See Lyons, 79 A.3d at 1064.               Corroboration of a

confidential informant’s information, although very useful, is no longer

always   required   to   satisfy   the   dictates   of   probable   cause.   See

Commonwealth v. Jones, 668 A.2d 114, 117 (Pa. 1995).                         “The

suppression or exclusion of evidence is a ‘most extreme remedy’ that can be

justified only when it is necessary to vindicate fundamental rights or to

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correct or deter police abuse.” Commonwealth v. Huntington, 924 A.2d

1252, 1259 (Pa. Super. 2007) (citing Commonwealth v. Dennis, 618 A.2d

972, 981 (Pa. Super. 1992)).

     To illustrate, in Jones, a post-Gates plurality decision, the defendant

was charged with drug offenses.              Jones, 668 A.2d at 116.     He filed a

motion to suppress evidence obtained pursuant to a search warrant. Id. As

here, the defendant alleged that the affidavit supporting probable cause

contained no corroboration to ensure its reliability.         Id.   The affidavit of

probable cause related that the police had information from a confidential

informant who personally observed the selling of drugs upon the searched

premises, the informant observed drug abusers coming and going from the

premises from 3 p.m. to late evening, and the informant observed

paraphernalia to prepare powder cocaine into crack cocaine inside the

premises.   Id.        The informant provided reliable information in the past

leading to the arrest and conviction of one person and the arrest of two

other individuals whose cases were still pending in court.          Id. at 117. In

rejecting the defendant’s argument that the affidavit of probable cause

required corroboration, the Supreme Court emphasized that it is the totality

of the circumstances test to be employed and that this test does not require

corroboration     in    every   situation.     Id.   at   117-18.    “[R]equir[ing]

corroboration in every situation would be contrary to the purpose of the

totality of circumstances test: allowing a flexible, common sense approach to


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J-A06026-16


all circumstances of an affidavit.” Id. at 117 (citations omitted). The Court

stated “that the information provided by the informant was not rumor or

speculation, but was based upon direct, personal observation.”            Id.

Therefore, the Court held the affidavit provided a sufficient basis of

knowledge and no corroboration was required. Id. at 117-18.

      Here, as in Jones, the information provided by the CI was based upon

the CI’s personal observation of criminal activity within and upon Appellants’

premises reported to police within 72 hours of his observation.          Prior

information provided by this CI allowed the police to make a felony arrest.

In concluding that the issued warrant lacked probable cause, the Majority

entirely ignores the CI’s first-hand observation of criminal activity that

perhaps is the most significant feature of the affidavit establishing probable

cause in this case. Nor does the Majority discuss or give any credence to

the affiant officer’s expertise that lent support to the fact that Appellants’

use of the premises was typical of a stash house for drug activity and street-

level sales.

      Also illustrative that suppression was properly denied here is our

Supreme Court’s decision in Commonwealth v. Stamps, 427 A.2d 141 (Pa.

1981).     In Stamps, the appellant “was arrested and charged with

possession and possession with intent to deliver a controlled substance.”

Id. at 142. “A search, pursuant to warrant, had uncovered twenty-five (25)




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J-A06026-16


packs of heroin in the appellant’s apartment.” Id. A reliable informant had

told police

      (1) that ‘in the past 10 days’ he had been inside appellant’s
      second floor apartment . . . ; (2) that he observed appellant with
      approximately ten bundles of heroin in his possession; (3) that
      appellant told him he was going to sell the ‘stuff’ in one-half hour
      for $800.00 to a person named ‘Roy’; (4) that he also had seen
      appellant on another occasion leave his apartment with three
      bundles of heroin to sell to two different persons; (5) that
      customers ‘always’ called appellant’s telephone number before
      visiting his apartment to purchase drugs.

Id. The informant’s reliability was not questioned in Stamps, because the

informant “on a number of occasions over the past two years, had provided

police with reliable information concerning criminal activity.” Id. at 142 n.4.

In affirming the defendant’s judgment of sentence, the Supreme Court

upheld the validity of the search warrant upon the basis that the information

provided by the informant was information personally observed by him.

Id. at 145.   Although Stamps was a pre-Gates case, it is useful for our

present purposes.    It logically follows that if Gates admits weighing the

Aguilar-Spinelli factors among other considerations, then a search warrant

valid under Aguilar-Spinelli also would be valid under Gates; the

difference now being that after Gates no single consideration must be

satisfied to establish probable cause.

      The Majority concludes that the CI’s reliability was not established

solely by the fact he had provided a tip leading to one still pending

prosecution. Our law, however, does not establish any talismanic number of


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prior instances of reporting reliable information to support probable cause.

Nor does our law require that reliable information given in the past has

resulted in convictions, as opposed to arrests. It is well-settled “that prior

arrests attributed to information supplied by the informant need not result in

convictions to establish the credibility of the informant or the reliability of his

information.”    Commonwealth v. White, 457 A.2d 537, 539 (Pa. Super.

1983) (citations omitted). “[T]here is no logical reason for mandating that

all information lead to convictions before reliability is established.”            Id.

(quoting Commonwealth v. Archer, 352 A.2d 483, 486 (Pa. Super.

1975)).     “The essential fact is that an informant gave prior information

implicating others in criminal activity that proved to be correct.”                Id.

(citations omitted).       “[P]ast investigative leads that proved reliable and

accurate are a sufficient indication of reliability.” Id. (citation omitted); See

also Huntington, 924 A.2d at 1255                   (“In assessing an informant’s

reliability, a presumption exists that the information is trustworthy when it

has   been      provided    by   an    identified   witness”)    (citation   omitted);

Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001) (“[A]

tip from an informer known to police may carry enough indicia of reliability

to conduct investigatory stop, even though the same tip from an anonymous

informant     would    likely    not    have    done    so)     (citations   omitted);

Commonwealth v. Hayward, 756 A.2d 23, 36 (Pa. Super. 2000)

(“Identified citizens who report their observations of criminal activity to


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police    are    assumed   to   be   trustworthy   in   the   absence   of   special

circumstances.”) (quoting In the Interest of S.D., 633 A.2d 172, 174 n 1

(Pa. Super. 1993)). The reliability of the CI here was established by the fact

he was not an anonymous source and prior information provided by him led

to a felony arrest. The information was accurate and credible.

         In my opinion, the Majority’s analysis also improperly focuses upon

what is not in the affidavit as opposed to what is contained in the affidavit to

support probable cause.         The Majority ignores entirely the weight and

significance the issuing authority placed upon the CI’s first-hand information

contained in the affidavit and instead faults the police for not taking every

opportunity to pursue more “substantial” corroboration prior to preparing the

affidavit of probable cause. Majority Op. at 10.

         The police must support a request for a search warrant with an

affidavit of probable cause.         See Pa.R.Crim.P. 206.      “The police have

probable cause when the facts and circumstances within the officer’s

knowledge are sufficient to warrant a person of reasonable caution in the

belief that an offense has been or is being committed.” Commonwealth v.

Harvard, 64 A.3d 690, 697 (Pa. Super. 2013) (quoting Commonwealth v.

Hernandez, 935 A.2d 1275, 1284 (Pa. 2007)).               Once presented with a

request by police for a search warrant,

                the task of an issuing authority is simply to make a
                practical, commonsense decision whether, given all the
                circumstances set forth in the affidavit, including the
                veracity and basis of knowledge of persons supplying
                hearsay information, there is a fair probability that

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J-A06026-16


           contraband or evidence of a crime will be found in a
           particular place. . . . Thus, the totality of the circumstances
           test permits a balanced assessment of the relative weights
           of all the various indicia of reliability (and unreliability)
           attending an informant’s tip . . . . It is the duty of a court
           reviewing     an    issuing    authority’s     probable   cause
           determination to ensure that the magistrate had a
           substantial basis for concluding that probable cause
           existed. In doing so, the reviewing court must accord
           deference to the issuing authority’s probable cause
           determination, and must view the information in a
           common-sense, non-technical manner.
Id.   (quoting Commonwealth v. Torres, 764 A.2d 532, 537-38 (Pa.

2001)).   Id. A reviewing court does “not conduct a de novo review of the

issuing authority’s probable cause determination, but [] simply determines

whether or not there is substantial evidence in the record supporting the

decision to issue the warrant.”    Torres, 764 A.2d at 540.       In analyzing

whether a warrant is supported by probable cause, judicial review is

confined to the four corners of the affidavit.   Commonwealth v. Rapak,

138 A.3d 666, 668 (Pa. Super. 2016).

      Here, the Majority does not give full import to all the information

contained within the affidavit of probable cause.       Instead, the Majority

strongly suggests, if not dictates, that the police should have, or are

required to corroborate substantially, the information in the affidavit of

probable cause.   While more information is no doubt better than less, the

determination of probable cause is to be based upon what is contained in the

four corners of the affidavit and not denied upon what else may have been

submitted in support of an application. Therefore, to the extent the Majority

bases its decision upon what does not appear in the affidavit of probable


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cause, as opposed to what is contained therein, the Majority, in my opinion,

has strayed from our standard of review.     Our standard of review merely

requires that we determine if an issuing authority had a substantial basis for

issuing a search warrant.    See Harvard, 64 A.3d at 697.       As should be

apparent, in my opinion that standard comfortably was met in this case.

The police were possessed of first-hand information from a reliable CI

suggesting to   them—based upon their        training and    experience—that

evidence of criminal activity would be found upon Appellants’ premises.

Short of some suggestion that this CI was lying, the magistrate judge had no

reason to doubt that the eyewitness information of this CI, who previously

provided reliable information to police, was both credible and reliable.

Viewing all information contained within the affidavit of probable cause in a

common-sense, non-technical manner the magistrate judge was justified in

believing that there was a fair probability that contraband or evidence of a

crime would be found upon the premises.       As a reviewing court, I would

conclude that the magistrate judge had a substantial basis upon which to

issue this search warrant.

      I find the Majority’s reliance upon In Interest of O.A., 717 A.2d 490

(Pa. 1998), in support of its conclusion that additional corroboration was

required here to be misplaced. In In Interest of O.A., the Supreme Court

examined whether police officers had probable cause to conduct a

warrantless arrest and search based on a tip from a confidential


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informant   “who    had     previously   provided   information   leading   to

approximately fifty arrests.” Id. at 493. In concluding the officers did not

possess probable cause, the Court distinguished its holding in Jones stating:

     In Jones, a magistrate issuing a search warrant made a
     determination that probable cause existed. In the instant case
     the determination was made by a police officer performing a
     warrantless arrest. A probable cause determination by a police
     officer making a warrantless arrest lacks the procedural
     safeguard that a neutral and detached magistrate can impart to
     any determination of probable cause. We recognize that the
     totality of the circumstances standard is the same whether used
     for determining the existence of probable cause for a
     magistrate’s issuance of a search warrant or a police officer’s
     determination that a warrantless arrest is justified. Nonetheless,
     any analysis of the relevant circumstances must consider
     that “the detached scrutiny of a neutral magistrate[] is a
     more reliable safeguard against improper searches than
     the hurried judgment of a law enforcement officer
     engaged in the often competitive enterprise of ferreting
     out crime.”      Thus, the usual deference given by a court to an
     issuing magistrate’s probable cause determination is lacking in
     the instant case.

Id. at 496 (emphasis added) (internal citations omitted). Additionally, the

Court held the informant’s tip did “not disclose a sufficient basis of

knowledge to support the police officers’ belief that a crime had been or was

being committed.”     Id.    “The only assertion that the informant made

relevant to his basis of knowledge was that he observed drugs for sale in the

[appellant’s] possession in an abandoned garage.” Id. at 496-97. “It was

unclear from [that] statement how the informant knew these were drugs in

[the appellant’s] possession.” Id. at 497. “Likewise, there was no assertion

that th[e] informant had provided information leading to any prior narcotics

arrests or any other information which would establish his familiarity with

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narcotics.” Id. Probable cause was found lacking to support the warrantless

arrest because the informant’s information was not sufficient to tie the

defendant to the alleged drug activity and there was absent the review of a

detached neutral magistrate.     Id.     Therefore, “the police did not have a

reasonable basis to conclude that [the appellant] had committed or was

committing a crime at the time he was arrested.” Id.

      Here, we are not dealing with a warrantless search that lacks the

detached scrutiny and additional measure of reliability of a neutral

magistrate. Nor are we faced with a situation where the CI here could not

tie the premises to criminal activity.     The warrant issued in this case was

reviewed by a magistrate based upon the affiant officer’s experience, the

CI’s first-hand knowledge of the criminal activity conducted by Appellants,

and the assurance of the CI’s reliability based upon his provision of prior

information that led to a felony arrest.

      Likewise, I find the Majority’s reliance upon Commonwealth v.

Chatman, 418 A.2d 582 (Pa. Super. 1980), to be misplaced and of no

precedential value. The decision in Chatman holds no precedential value,

as the decision was issued by an evenly divided en banc court that serves

only to affirm the result in the trial court. See Commonwealth v. Mosley,

114 A.3d 1072, 1082 n.11 (Pa. Super. 2015) (citing Commonwealth v.

James, 427 A.2d 148 (Pa. 1981) (“when a judgment of sentence is affirmed

by an equally divided court . . . no precedent is established and the holding

is not binding on other cases.”).      Chatman also was decided prior to our

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Supreme Court adopting Gates in 1983 in favor of a totality of the

circumstances test and discarding the Aguilar-Spinelli test upon which

Chatman relies. The issue in Chatman focused exclusively on the second

prong of the now discarded Aguilar-Spinelli test that required specific

findings on an informant’s credibility or reliability.   Chatman, 418 A.2d at

584.    This Court evenly split on whether there was sufficient indicia of

reliability to satisfy the now discarded Aguilar-Spinelli test. Id. at 585.

       I, therefore, respectfully dissent from the Majority’s decision and

would affirm the denial of Appellants’ suppression motion. The affidavit of

probable cause established there was a fair probability that evidence of a

crime would be found at Appellants’ residence. Additional corroboration of

this CI’s reliability and his first-hand information was not necessary. Under

our standard of review, the magistrate judge had a substantial basis for

determining that probable cause existed upon which to issue the search

warrant.




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