J-E01001-18


                                2018 PA Super 232

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              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
                                          :
              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: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
        J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY LAZARUS, J.:                             FILED AUGUST 23, 2018

      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

stipulated non-jury trial of one count of possession with intent to manufacture
J-E01001-18



or deliver marijuana (“PWID”).1 The issue presented by this appeal is whether

a search warrant based on information provided by a confidential informant

(“CI”), whose reliability has not been adequately corroborated, can supply the

basis for either a search or an arrest. Upon careful review, we 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, 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 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
____________________________________________


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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probable cause because the police did not perform any investigation to

independently corroborate the CI’s information. 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 he 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,

and raised for our review the issue of whether the trial court erred in denying

their motions to suppress, where the Application for a Search Warrant and

attached Affidavit of Probable Cause lacked sufficient probable cause because

they failed to establish the veracity and reliability of the CI and lacked

independent police corroboration 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.




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      On appeal, the panel majority reversed, concluding that the information

contained in the affidavit of probable cause was legally insufficient to support

the issuance of a search warrant where the reliability of the CI, who had

previously provided information leading to only one arrest and no convictions,

had   not   been    sufficiently   established   through   independent       police

corroboration. The dissent concluded that the affidavit “comfortably satisfied”

probable cause, emphasizing that the CI had personally observed marijuana

cultivation and packaging at Appellants’ residence.

      The Commonwealth filed for reargument and we granted en banc

review. The parties submitted substituted briefs and raise the following issue:

      Whether the trial court erred in denying the [motion to suppress]
      where the [a]pplication for a [s]earch [w]arrant and attached
      [a]ffidavit of [p]robable [c]ause lacked sufficient probable cause
      by failing to establish the veracity and reliability of the [CI] and
      lacked independent police corroboration 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?

Substituted Brief of Appellants, at 3.

      We begin by noting that our scope and standard of review of an order

denying a motion to suppress are unique when we are reviewing a

magistrate’s decision to issue a search warrant. They differ from those cases

in which we are reviewing a court’s decision regarding evidence obtained

without a warrant. When reviewing a magistrate’s decision to issue a warrant,

there are no factual findings from the trial court. Thus, we need not consider

“only the evidence of the Commonwealth and so much of the evidence for the

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defense as remains uncontradicted when read in the context of the record as

a whole.” See Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super.

2012). Instead, we are merely reviewing the magistrate’s decision to issue

the warrant.   As such, our duty is to “ensure that the magistrate had a

substantial basis for concluding that probable cause existed. In so doing, the

reviewing court must accord deference to the issuing authority’s probable

cause determination, and must view the information offered to establish

probable    cause     in    a    common-sense,       non-technical     manner.”

Commonwealth v. Torres, 764 A.2d 532, 537–38 (Pa. 2001).

      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 led to a conviction. Moreover,

Appellants assert that independent police corroboration of the CI’s information

was insufficient, consisting solely of verifying publicly available information.

For the reasons that follow, we 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
      [] (1983), and adopted in Commonwealth v. Gray, [] 503 A.2d


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       921 ([Pa.] 1985).[3]       A magistrate is 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.” The information offered to establish
       probable cause must be viewed in a common sense, nontechnical
       manner. Probable cause is based on a finding of the probability,
       not a prima facie showing of criminal activity, and deference is to
       be accorded a magistrate’s finding of probable cause.

Commonwealth v. Rapak, 138 A.3d 666, 670-71 (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
____________________________________________


3 Prior to the Supreme Court’s 1983 decision in Gates, an affidavit of probable
cause based on information from a CI had to satisfy a two-part test in order
to establish probable cause. Specifically, the affiant was required to set forth:
(1) the basis of the CI’s knowledge; and (2) facts sufficient to establish the
CI’s veracity or reliability. Spinelli v. United States, 393 U.S. 410 (1969);
Aguilar v. Texas, 378 U.S. 108 (1964). In Gates, the Court abandoned this
“two-part” test and adopted a “totality-of-the-circumstances” test, holding
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 the circumstances necessary to show probable
cause. Commonwealth v. Clark, 28 A.3d 1284, 1287 (Pa. 2011).

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      tale,’ thus providing ‘a substantial basis for crediting the
      hearsay.’”

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) (emphasis added) (citations and quotation marks omitted).

      Officer Hoover’s affidavit of probable cause provided, in its entirety, as

follows:

      The undersigned, Ofc. M. Hoover, has been a member of the York
      Area Regional Police Department for six years, a member of the
      York County Drug Task Force, and has been sworn as a Special
      York County Detective authorized to conduct investigations in York
      County, PA. During this time period, I have participated and
      executed numerous narcotic investigations, search and seizure
      warrants, and narcotics arrests. These narcotic investigations
      include undercover purchases, controlled purchases using
      confidential informants, execution of search warrants and
      electronic surveillance.

      Additionally, while working narcotic investigations in York County
      I have had the opportunity to interview numerous narcotic
      dealers, narcotic purchasers, informants, and other concerned
      citizens with general drug information. These interviews focused
      on the values of controlled substances, the appearance of
      controlled substances, methods of sale, methods of packaging,
      methods of hiding, secreting and transporting controlled
      substances, as well as identifying persons involved in controlled
      substance distribution.

      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


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      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.

      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.” Substituted Brief of Appellants,

at 16. Appellants note that the affidavit does not indicate what the previous

information given by the CI was, how it led to an arrest, or whether the arrest


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“survived even a prima facie review at a preliminary hearing.”         Id. at 15.

Appellants further 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
      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.”

Gray, 503 A.2d at 925, quoting Gates, 462 U.S. at 238-39.

      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.        Clark, 28 A.3d at 1288.

“[I]nformation received from an informant whose reliability is not established


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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).

      In this case, the sole indicia of the CI’s reliability presented in the

affidavit of probable cause was that he had provided information leading to a

single felony drug arrest.   The affidavit does not identify the name of the

defendant or docket number in that case, indicate the type of information

provided by the CI that led to the arrest, or state whether the defendant was

even held over for trial. Moreover, there is no indication that the CI himself

participated in the criminal activity of which he informed the police, thus

exposing himself to legal jeopardy and lending credence to his information.

Clark, supra. In short, the only evidence available to evaluate the reliability

of this CI is the fact that he once provided police with some unspecified

information that, either alone or in conjunction with other unidentified

evidence, led to a finding of probable cause to arrest someone on felony drug

charges.

      The Commonwealth argues that the mere presence of “the ‘customary’

phrase that the informant has provided information which ‘has in the past

resulted in arrests or convictions’” is sufficient to establish a CI’s veracity.

Brief of Appellee, at 16, quoting Commonwealth v. Dukeman, 917 A.2d

338, 341-42 (Pa. Super. 2007). Dukeman, however, is distinguishable on its

facts. In that case, two CIs provided independent information regarding the

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presence and sale of drugs at Dukeman’s residence, as well as specific

familiarity with Dukeman and the locations of the drugs.        The trial court

suppressed the evidence uncovered in the search, finding that one of the CIs

“had not provided information in the past that implicated anyone.” Id. at 339.

On appeal, this Court reversed, finding that any question surrounding one CI’s

reliability was resolved through the corroboration provided by the statement

of the second CI, whose veracity was not challenged.           Additionally, in

Dukeman, the police further corroborated the CIs’ information by surveilling

Dukeman’s residence, which confirmed vehicle traffic consistent with drug

trafficking.

      Likewise is the Commonwealth’s reliance on Commonwealth v.

Gutierrez, 969 A.2d 584 (Pa. Super. 2009), and Commonwealth v.

Gindlesperger, 706 A.2d 1216 (Pa. Super. 1997), misplaced. In Gutierrez,

a warrant was upheld where the CI’s input had led to the arrest and conviction

of more than twenty-five other persons. Moreover, the police corroborated

the CI’s information with a controlled buy at the address that was the subject

of the warrant in question. In contrast, here, the CI was far less demonstrably

reliable and the police did not conduct a controlled buy to corroborate the CI’s

information.

      By contrast, in Gindlesperger, a CI witnessed marijuana plants being

grown in the subject premises and was stated by police to have provided

reliable information in the past that would result in multiple arrests at some

unspecified time in the future.    The affidavit provided no names or other

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details as to the allegedly impending arrests. Upon review, this Court vacated

the judgment of sentence, finding that under the totality of the circumstances,

the reliability of the CI was not established.        If anything, the facts in

Gindlesperger are akin to those in the matter sub judice; while the CI

personally observed drug activity at the Manuels’ residence, his reliability is

based solely on a single arrest not yet leading to a conviction.

      We are cognizant that 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.”).      We are also

mindful of the fact that we are not to consider the various factors in a

mechanical fashion, but rather assess the totality of the 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 unadjudicated

arrest does not automatically render the affidavit lacking in probable cause.




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For example, where, as here, a CI’s tip provides inside information, 4 police

corroboration of the inside information can impart additional reliability to the

tip. See id. at 188. Here, however, the lack of any meaningful follow-up

investigation by the police to secure true corroboration of such inside

information leads us to conclude that, under the totality of the circumstances,

the affidavit did not establish probable cause.

       Upon receiving the information from the CI, police failed to conduct any

investigation that might have yielded corroboration of information unavailable

to the public at large and, as a result, bolstered the reliability of the CI’s tip.

Police neither arranged for the CI to conduct a controlled buy at the premises

nor performed any type of photographic or electronic surveillance. Nor did

they conduct a trash pull. Rather, Officer Hoover merely ran searches through

PennDOT that established that Timothy Manuel resided at the Pleasant Grove

Residence and that Charles Manuel registered a car at that address.           This

generally available information was not corroborative of the CI’s information.5

____________________________________________


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

5 The trial court essentially conceded that the facts contained in the affidavit
of probable cause were thin. See Trial Court Opinion (Case No. 7222-2014),
7/16/15, at 7 (“[W]e agreed, and still do agree, to some extent with the
Appellant[s’] arguments[.]”). Nevertheless, the court 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” that convinced the trial court of the affidavit’s sufficiency is of
no moment.

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      This Court’s decision in Commonwealth v. Chatman, 418 A.2d 582

(Pa. Super. 1980) (en banc), supports our conclusion. There, a CI provided

police with 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 pursuant to the

search warrant issued on the basis 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


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      [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 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 ultimately proved to

be correct. See id. See also Gindlesperger, supra (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).

      Here, the totality of the circumstances, as presented in Officer Hoover’s

affidavit, fell far short of establishing probable cause. The affidavit itself is

largely comprised of information that is irrelevant under the circumstances of

this case. For example, Officer Hoover writes extensively of her training and

experience, but did not use that training and experience to do anything more

than conduct a search of PennDOT’s records.        Pared down to its relevant

essentials, the affidavit of probable cause actually amounted to no more than

the following facts: A person that Officer Hoover knows told her that, within

the last 72 hours, he was in a residence confirmed by Officer Hoover to belong

to Appellants and, while there, the person saw live and packaged marijuana,

as well as accessories for the cultivation thereof. These facts, alone, do not

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form a substantial basis for concluding that probable cause existed.       See

Gates, supra.      Rather, the information indicates the need for further

investigation, which Officer Hoover did not undertake.

      In sum, we simply do not believe that the CI’s reliability was adequately

established by an averment that he provided a tip leading to one still-pending

prosecution, details of which were not included in the affidavit of probable

cause. Without something more, the affidavit of probable cause contained

insufficient information to “reduce[] the chances of a reckless or prevaricating

tale,” and provide “a substantial basis for crediting the [CI’s] hearsay.”

Otterson, supra. As such, the trial court erred in finding the warrant to be

supported by probable cause.

      Judgments of sentence reversed.

      P.J.E. Bender, Judge Panella, Judge Dubow and Judge Kunselman join

this Opinion.

      Judge Stabile files a Dissenting Opinion in which Judge Shogan, Judge

Olson and Judge Murray join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/23/2018




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