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
J-A06026-16



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
____________________________________________


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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J-A06026-16



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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J-A06026-16


      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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J-A06026-16



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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J-A06026-16


      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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J-A06026-16


      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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J-A06026-16



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

____________________________________________


3
  “Inside information” by necessity must be the type of information not
available in the public domain.



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J-A06026-16



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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J-A06026-16



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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J-A06026-16


       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.
____________________________________________


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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J-A06026-16



      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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