Commonwealth v. Glass

718 A.2d 804, 1998 Pa. Super. LEXIS 2727
CourtSuperior Court of Pennsylvania
DecidedSeptember 15, 1998
StatusPublished
Cited by14 cases

This text of 718 A.2d 804 (Commonwealth v. Glass) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Glass, 718 A.2d 804, 1998 Pa. Super. LEXIS 2727 (Pa. Ct. App. 1998).

Opinions

FORD ELLIOTT, Judge:

This case presents an issue of first impression in the Commonwealth: whether Article I, Section 8 of the Pennsylvania Constitution proscribes the issuance of anticipatory search warrants. If it does, as appellant argues, then all of the evidence seized when the police searched appellant’s residence should have been suppressed. Because we find that anticipatory search warrants do not violate the Pennsylvania Constitution, we affirm.

Before setting forth the factual and procedural history, we note our standard when reviewing the denial of a motion to suppress. We must determine whether the record supports the trial court’s factual findings. Commonwealth v. Donahue, 428 Pa.Super. 259, 276-78, 680 A.2d 1238, 1247 (1993), appeal denied, 538 Pa. 612, 645 A.2d 1316 (1994). In making this determination, this court will consider only the evidence presented by the Commonwealth’s witnesses and so much of the evidence presented by the defense witnesses which, as fairly read in the context of the record as a whole, remains [806]*806uncontradicted.1 Id. If the record supports the suppression court’s factual findings, inferences, and legal conclusions, they will not be disturbed on appeal. Commonwealth v. Brinkley, 423 Pa.Super. 289, 290-92, 620 A.2d 1226, 1227 (1993), appeal denied, 535 Pa. 630, 631 A.2d 1003 (1993).

The relevant facts are as follows. On May 2, 1996, Trooper Brian J. Merritt of the Pennsylvania State Police Tactical Narcotics Team III, Harrisburg, served a search warrant for illegal substances on an individual in Dauphin County. Trooper Merritt found a large quantity of controlled substances, as well as various receipts, paraphernalia and records regarding this individual’s drug trafficking activity. (Notes of testimony, suppression hearing, 12/18/96 at 6.) The individual, Richard David Osborne, chose to cooperate with Trooper Merritt in order to receive more lenient treatment at sentencing. (Notes of testimony, jury trial, 12/18/96 at 78.) Part of this cooperation included Osborne’s explaining the meaning of his drug trafficking records, which included the name “Mike G.” next to the number “6125.” According to Osborne, this entry indicated that Michael Glass, appellant herein, owed Osborne $6,125 for four pounds of marijuana Glass had purchased. (Notes of testimony, suppression hearing, 12/18/96 at 7.)

On May 7, 1996, Trooper Merritt, along with Troopers Jay Lownsbery and Craig Snyder, returned to Osborne’s residence. While there, Osborne received a telephone call. After hanging up, he advised the troopers that it was appellant who called and that he was prepared to pay Osborne. (Id.) The troopers then searched Osborne and his vehicle, and followed him to appellant’s residence, which the troopers kept under a constant “rolling” surveillance during Osborne’s visit. (Id. at 11-12.) Osborne went inside, returning to a predetermined location after approximately one hour with $6,000 in cash. (Id. at 7-8.) Osborne told the troopers that appellant wished to purchase an additional five to ten pounds of marijuana on Thursday, May 9th. Osborne also said that he had been supplying appellant with marijuana for approximately four months, always delivering it to appellant’s residence. (Id. at 8.)

Trooper Merritt, who in the meantime had learned that other members of the strike force had received information indicating appellant’s involvement in drug trafficking, conducted a preliminary criminal history check. This check indicated appellant had been arrested previously for possession with intent to deliver a controlled substance. (Id. at 9.)

Based on all the information in his possession, Trooper Merritt obtained between 12 and 14 pounds of marijuana, which he re-packaged into one-pound packages, in order to conduct a reverse sting operation. (Id.) He also obtained an anticipatory search warrant, defined as “ ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’” Commonwealth v. Reviera, 387 Pa.Super. 196, 200-02, 563 A.2d 1252, 1254 (1989), appeal dismissed, 526 Pa. 41, 584 A.2d 308 (1991), quoting 1 W.R. LaFave, Search and Seizure § 3.7(c) at 94 (2d ed.1987).

After searching Osborne and his vehicle, Trooper Merritt gave the re-packaged marijuana to Osborne. Trooper Merritt also provided Osborne with an alert pager, a device that looks like any other pager but sends out a radio signal when a button is pushed. Trooper Merritt instructed Osborne to push the button as soon as he delivered the drugs. (Notes of testimony, suppression hearing, 12/18/96 at 9-10.) Osborne then drove to appellant’s residence with the troopers following. Within approximately five minutes, the alert pager went off. A few minutes later, after again searching Osborne and his vehicle at a pre-determined meeting place, the troopers executed the anticipatory search warrant. (Id. at 10.) When they arrived at appellant’s residence, they found him in the kitchen re-packaging the recently delivered marijuana. (Notes of testimony, jury trial, 12/18/96 at 38.) Among the items the troop[807]*807ers seized were one Harley-Davidson motorcycle; two trucks; $13,840 in cash, most of which was secreted behind a heat register; approximately 70 firearms; more than two dozen individual knives, plus 60 knives in a canvas wrap; the twelve pounds of marijuana used in the “sting”; and a small amount of marijuana found on appellant’s person. (R. at 14 and Exhibit A; notes of testimony, forfeiture hearing, 6/25/97 at 68-69.)2

Prior to trial, defense counsel filed a motion to suppress based upon the alleged unconstitutionality of the anticipatory search warrant. At the suppression hearing, Trooper Merritt testified that he did not believe he had sufficient probable cause to obtain a search warrant without the controlled delivery of drugs. (Notes of testimony, suppression hearing, 12/18/96 at 13.) The suppression court found “that at the time of obtaining the search warrant, there was not adequate probable cause to enter [appellant’s] dwelling or to conduct a search of any area in which he had a legally protected privacy interest.” (Id. at 16.) Nevertheless, the suppression court denied the motion to suppress. Following a jury trial, appellant was convicted of possession and possession with intent to deliver a controlled substance, and possession of drug paraphernalia.3 He was subsequently sentenced to three to ten years’ incarceration.

Appellant presents two issues, the first of which raises a challenge to the constitutionality of anticipatory search warrants under Article 1, § 8 of the Pennsylvania Constitution. Before addressing that issue, we note our agreement with the Commonwealth that appellant’s more specific challenges to the search warrant are waived. In particular, appellant’s claim that even if anticipatory search warrants do not per se violate the Pennsylvania Constitution, the warrant in his case is unconstitutional because the affidavit of probable cause was defective; and appellant’s claim that the affidavit at issue in this case does not comply with the Pennsylvania Rules of Criminal Procedure, are waived because they were not presented to the suppression court. See Commonwealth v. Rosenfelt, 443 Pa.Super.

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Cite This Page — Counsel Stack

Bluebook (online)
718 A.2d 804, 1998 Pa. Super. LEXIS 2727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-glass-pasuperct-1998.