A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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Com. v. Wallace, 2012 WL 1434885, No. 52 EAP 2009,decided April 26, 2012

This was an appeal from the Superior Court, No. 3546 EDA 2006, 953 A.2d 1259 (Pa.Super.2008), which had reversed an Order of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0608391–2006 and remanding the case.

On September 8, 2005, Philadelphia police sought an anticipatory search warrant for the Appellant’s residence based on the following allegations set forth in an affidavit of probable cause:

On Wednesday, 09–07–05, P/O Hawkins # 5701 received information from C/I # NFU# 2–012 about the sales of cocaine from a black male who is known to the informant as “GREG” and operates a Gold colored Mercedes used to deliver narcotics. The informant stated that he/she can purchase 4 ounces of cocaine from “GREG” this date (09–08–05) between the hours of 7:00 p.m.–10:00 p.m. The informant also supplied the cellular and home phone number of “GREG” which is(215) 514–7235 (cellular) and (215) 462–4450). P/O Hawkins debriefed this informant again on 09–08–05, at which time the location for the sale was determined to be at 635 Morris Street. P/O Hawkins # 5701 conducted an investigation of the residence of 635 Morris Street. Voters registration identified Gregory Wallace, DOB 02281971)[sic] as a registered voter at the location. A Bureau of Motor Vehicles investigation showed Gregory Wallace having a valid PA DL# 28390984 at the location of 635 Morris Street. A Criminal History Check of Philadelphia Photo Number # 0978274 give [sic] the address of 635 Morris Street listing the phone number of(215) 462–4450 same home phone number given to police by C/I NFU# 2–012 on 09–07–05. C/I NFU# 2–012 has been used in the past refer to DC# 05–03–033540 yielding approx. 60 grams of cocaine with a street value of 6,000.00 and drug paraphernalia. After interviewing the informant and conducting an investigation of the premises, your affiant is requesting an anticipatory search warrant for the location of 635 Morris St upon completion of a controlled purchase of cocaine by this confidential informant.

The warrant was issued by a magistrate judge on September 8, 2005. That same day, between 7:00 and 9:00 p.m., Officer Hawkins accompanied the informant to a house at 635 Morris Street and, after searching the informant for money and contraband, gave him $3,800.00 in prerecorded “buy money.” Officer Hawkins observed the informant knock on the door and then enter the residence. Two to three minutes later the informant exited the house, walked to where Officer Hawkins was waiting, and provided her with two bags of cocaine. The police then executed the search warrant, entered the house, and recovered during their search the buy money, along with other drugs, drug paraphernalia, and Appellant’s keys to the house.

Appellant was arrested and charged with possession with intent to deliver cocaine as well as possession of drug paraphernalia. Prior to trial, he filed a suppression motion, and, after conducting a suppression hearing, the Honorable Lillian Ransom ruled the drugs should be suppressed on the grounds that the warrant was not supported by adequate probable cause, stating “Although the police verified the name, address and telephone number that the confidential informant gave to them, none of this information evidenced any suspicion of criminal activity. The police had not observed any criminal activity nor were they informed of any prior criminal activity involving either the appellant or that location.” The court additionally observed that the police did nothing to corroborate that the residence was being used for drug activity, through independent surveillance or other means, and there was no controlled buy of narcotics prior to the issuance of the warrant.

The Superior Court reversed the trial court in an opinion authored by Judge Stevens and joined by Judges Klein and Popovich. Commonwealth v.. Wallace, 953 A.2d 1259 (Pa.Super.2008). Appellant filed a petition for allowance of appeal in order to consider the following question: Did the Superior Court err in finding sufficient probable cause for the issuance of an anticipatory search warrant for Petitioner’s home?

In view of the totality of the factual circumstances in the affidavit of probable cause, the Commonwealth failed to provide the magistrate with a substantial basis to find probable cause to conclude that the controlled buy of drugs at Appellant’s home would occur, which was the triggering condition for the execution of the anticipatory search warrant. As this is an indispensable requirement under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the PA Constitution for an anticipatory warrant to issue, the warrant issued by the magistrate in this matter was unlawful, and the trial court properly suppressed the evidence.

Justice Todd wrote the Opinion. Justices SAYLOR,BAER and ORIE MELVIN joined the opinion. Justice EAKIN filed a dissenting opinion which Chief JusticeCASTILLE joined. Justice McCAFFERY filed a dissenting opinion which Chief Justice CASTILLE joined.

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