Commonwealth v. Graciani

44 Pa. D. & C.3d 356, 1987 Pa. Dist. & Cnty. Dec. LEXIS 281
CourtPennsylvania Court of Common Pleas, York County
DecidedJune 16, 1987
Docketno. 567 CA 1987
StatusPublished

This text of 44 Pa. D. & C.3d 356 (Commonwealth v. Graciani) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Graciani, 44 Pa. D. & C.3d 356, 1987 Pa. Dist. & Cnty. Dec. LEXIS 281 (Pa. Super. Ct. 1987).

Opinion

McCULLOUGH, J.,

This matter is before the court on defendant’s motion to suppress evidence obtained from a search of defendant [357]*357conducted as part of the execution of a search warrant issued on February 16, 1987, by District Justice Quentin R. Stambaugh. The search warrant identifies the items to be searched for and seized as cocaine and any other drugs and drug paraphenalia together with items relating to the possession, distribution and sale of narcotic and dangerous drugs. The search warrant describes the premises and persons to be searched as:

“534 Jessop PL, York, Pa., specifically a 21/2-story, semi-detached, green siding, home, with carpet on porch, wood gate on the side of the house, and all persons present to avoid the destruction or concealment of evidence.”

The affidavit in support of the application states that the applying police officer had received information from a reliable confidential informant that within the previous 72 hours the informant was at the premises and observed a hispanic female known as Richardo Colon’s wife selling cocaine to users who came there to purchase it. The informant stated that the users concealed the drug on their person before leaving the residence.

The affidavit in support of the application goes on to state that the same informant supplied information which led to the issuance of a search warrant for this same address one week earlier on February 10, 1987. During the search of the house on February 10, 1987, the police seized 33 packets of cocaine and arrested the owner for possession with intent to deliver cocaine.

When the police executed the search warrant, they entered the premises and observed several small children together with four adults. The police searched the premises and found no evidence of drugs. They then searched the adult individuals and removed 25 packets of cocaine from defendant.

[358]*358The issue presented is the sufficiency of a warrant to search persons identified only by their presence at a specified place. Analysis of this issue begins with an acknowledgement of the well settled principle that a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40 at 61-63, 88 S. Ct. 1889, 20 L.Ed 2d 917 (1968).

The guide in analyzing and determining this issue is the constitutional mandate that a search warrant must name or describe with particularity the person or place to be searched. Pa. Constitution; Article 1, Section 8; Pa. R.C.P. 2005(c); U.S. Constitution, Fourth Amendment.

Before undertaking this analysis and determination, the court notes that there is no Pennsylvania appellate decision and no United States Supreme Court decision squarely on point.

Arguments in support of such a search warrant usually point to a three-judge opinion in support of affirmance by an equally divided court in Commonwealth v. Duncan, 257 Pa. Super. 277, at 288-89, 390 A.2d 820 (1976). The judges in support of affirmance in Duncan did not adopt the appellant’s attack on the alleged generality of a warrant authorizing the search of “all persons on the premises to prevent the removal and destruction of evidence.” However, their opinion is dictum since the case involved evidence dropped by the appellant rather than seized during a search.

Arguments against such a search warrant usually point to the opinion in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). However, Ybarra concerned a search beyond the parameters of a search warrant authorizing the search of a named tavern and a named bartender. The issue in [359]*359Ybarra was the constitutionality of a statute authorizing the search of any person found on the premises being searched pursuant to a search warrant. In Ybarra, the opinion specifically noted that, when the search warrant was issued, .there was no showing that authorities had probable cause to believe that any person found on the premises, other than the named bartender, would be violating the law.

Thus, Ybarra, is like cases such as Commonwealth v. Eichelberger, 352 Pa. Super. 507, 508 A.2d 589 (1986), and Commonwealth v. Luddy, 281 Pa. Super. 541, 422 A.2d 601 (1980) in that the person searched is not described in the warrant. Such a search clearly runs afoul of the constitutional mandate that a warrant must name or describe with particularity the person or place to be searched.

Indeed, it would appear that no reported appellate decision in any jurisdiction, is precisely on point. The reason, of course, is that the analysis required here is unique to the facts presented in support of each application for a search warrant.

However, the framework for this analysis and determination is provided in the well reasoned decision by Weintraub, C.J., in State v. DeSimone, 60 N.J. 319, 288 A.2d 849 at 850-51 (1972):

“On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that [360]*360everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.
“As to probable cause, it must be remembered that the showing need not equal a prima facie case required to sustain a conviction. No more is demanded than a well grounded suspicion or belief that an offense is taking place and the individual is party to it. . . (citing cases). And, with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by, physical nexus to the ongoing criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated.

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Related

United States v. Ventresca
380 U.S. 102 (Supreme Court, 1965)
Sibron v. New York
392 U.S. 40 (Supreme Court, 1968)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
Ybarra v. Illinois
444 U.S. 85 (Supreme Court, 1980)
Commonwealth v. Eichelberger
508 A.2d 589 (Supreme Court of Pennsylvania, 1986)
State v. De Simone
288 A.2d 849 (Supreme Court of New Jersey, 1972)
Commonwealth v. Luddy
422 A.2d 601 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Duncan
390 A.2d 820 (Superior Court of Pennsylvania, 1978)
Commonwealth v. Carelli
454 A.2d 1020 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
44 Pa. D. & C.3d 356, 1987 Pa. Dist. & Cnty. Dec. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-graciani-pactcomplyork-1987.