J-A02034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

GLENN GRATZ

                            Appellee                No. 2376 EDA 2013


                      Appeal from the Order July 22, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003930-2011


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                            FILED APRIL 17, 2015

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

granting suppression of all evidence seized at the residence of Appellee,

Glenn Gratz.1 The Commonwealth contends that the trial court erred in its

application of the totality of the circumstances standard for reviewing the

sufficiency of the affidavit of probable cause.    We agree and, therefore,

reverse the order and remand for further proceedings.

       After searching his residence, the Commonwealth charged Gratz with

three counts of possession of narcotics with intent to deliver (“PWID”), three
____________________________________________


1
   This appeal properly invokes the jurisdiction of this Court as an
interlocutory appeal from an order that terminates or substantially handicaps
the prosecution. The Commonwealth has certified in good faith that the
Order substantially handicaps the instant prosecution. See Pa.R.A.P., Rule
311(d).
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counts of possession of narcotics, and four counts of possession of drug

paraphernalia. Prior to trial, Gratz filed a motion to suppress the evidence

discovered during the search of his residence, arguing that the affidavit of

probable cause was insufficient to justify the search of his residence. After a

hearing, the trial court granted suppression of all the evidence discovered at

Grant’s residence, and the Commonwealth filed this timely appeal.

       On appeal, the Commonwealth contends that the trial court erred in

granting the suppression motion.               We review a challenge to an order

granting suppression according to the following principles.

       The suppression court’s findings of fact bind an appellate court if
       the record supports those findings. The suppression court’s
       conclusions of law, however, are not binding on an appellate
       court, whose duty is to determine if the suppression court
       properly applied the law to the facts.

Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007)

(citations omitted).

       Here, the Commonwealth has not challenged any of the factual

findings of the trial court. Furthermore, the factual record developed at the

suppression hearing consists of only the affidavits of probable cause.2 We

therefore focus our attention upon the legal conclusions set forth by the trial

court in support of its order.

____________________________________________


2
  One affidavit was for the home, the other for Gratz’s vehicle. The two
affidavits are substantially similar; any distinctions are irrelevant for
purposes of this appeal.



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      The trial court found that the affidavit did not support a finding of

probable cause to search Gratz’s residence.       Specifically, the trial court

concluded that the affidavit did not provide sufficient reliable allegations to

support a finding that evidence of criminal activity could be found at Gratz’s

residence. When reviewing the sufficiency of an affidavit of probable cause,

we follow well established standards.

      In Commonwealth v. Gray our Supreme Court adopted the
      “totality of the circumstances” standard, announced in Illinois
      v. Gates, for evaluating whether probable cause exists for the
      issuance of a search warrant based upon information received
      from a confidential informant. In Gray, our Supreme Court
      stated:

         The task of the issuing magistrate is simply 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. 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.’

      This determination must be based on facts described within the
      four corners of the supporting affidavit. Furthermore, we stress
      that probable cause exists where there is a probability of
      criminal activity, not a prima facie showing of such activity.

      When information essential to a finding of probable cause is
      garnered from the use of confidential informants, the issuing
      authority determines the reliability of the informant’s information
      from the facts supplied by the police official. The determination
      of reliability does not hinge on disclosed records “regarding the
      track record of the informant.” Furthermore, the affidavit need
      not “contain the names, dates, or other information concerning
      prior arrests or convictions.” The affidavit must, however, at the
      very least, contain an averment stating the “customary” phrase

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      that the informant has provided information which “‘has in the
      past resulted in’ arrests or convictions.”

Dukeman, 917 A.2d at 341.

      In the instant case, the affidavit of probable cause alleged that

experienced narcotics officers interviewed a confidential informant, (“CI #1”)

who   informed    them   that   Gratz’s   wife,   Diane   Barnes,   was   dealing

methamphetamine from her residence in Plymouth Township.                  CI #1

indicated that this knowledge was gleaned from face-to-face and telephonic

communications with Barnes and her supplier, the last of which occurred

approximately a month before the interview. The affidavit indicated that CI

#1 had provided information to officers in the past that led to the arrest of

drug traffickers and the seizure of narcotics.

      The affidavit further indicated that officers had also received an

anonymous complaint about Barnes and Gratz dealing methamphetamine

from their residence at 3 Colton Drive, Plymouth Township.

      The affidavit also described independent investigation performed by

the officers.   Slightly more than a month after the interview with CI #1,

officers followed Gratz after he left his home and traveled to a nearby

shopping center.    After parking at the center, Gratz left his vehicle and

walked to a nearby car, occupied by Barnes. The two interacted for a short

time, and then Gratz returned to his vehicle, while Barnes drove away.

      After Barnes had left, Gratz walked to another nearby vehicle,

occupied by Kimberly Friedberg. Officers observed Gratz hand Friedberg a

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J-A02034-15


small bag in exchange for currency. Gratz then returned to his vehicle and

drove away.

      Friedberg departed the parking lot in the opposite direction and was

stopped by officers shortly thereafter. Friedberg denied the existence of any

narcotics    transaction,   but    told   officers   that   she    knew   Gratz   used

methamphetamines and that Barnes dealt methamphetamines.

      The affidavit also described an interview with another confidential

informant    (“CI   #2”).     CI     #2    informed     officers   that   Gratz   dealt

methamphetamines. CI #2 also informed officers that this knowledge was

derived from an instance where CI #2 observed Gratz preparing for the

purchase of a large amount of methamphetamine while in his house. CI #2

further indicated that Gratz had intended to purchase a pound of

methamphetamine that had been seized by other officers in an unrelated

operation.

      The trial court found that these allegations were insufficient. However,

this Court has previously held that

      [w]hen two independent informants both supply the same
      information about a particular crime to the police, each source
      tends inherently to bolster the reliability of the other. Although
      the information supplied by one questionable source may be
      insufficient, the probability is extremely small that a second
      independent source would supply identical information if it were
      not probably accurate.       Such corroboration by independent
      sources produces the necessary reliability to establish probable
      cause.




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J-A02034-15


Dukeman, 917 A.2d at 342.        Here, four separate informants, CI #1, an

anonymous complaint, Friedman, and CI #2 all indicated that either Gratz or

his wife Barnes were involved in the distribution of methamphetamines in

Plymouth Township.     Furthermore, officers independently observed Gratz

leave his residence and engage in what appeared to be a narcotics

transaction with Friedman. When viewed in a common sense fashion, these

allegations are more than sufficient to allow a reasonable person to conclude

that evidence of methamphetamine trafficking would be found in the

residence at 3 Colton Drive and in Gratz’s vehicle. We therefore conclude

that the trial court erred in granting suppression of the evidence and reverse

the order.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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