No. 152 Harrisburg, 1982, Appeal from the Judgment of Sentence of March 19, 1982 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 1735 C.D. 1979
Susan C. DeYoung, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Cirillo and Hoffman, JJ.
[ 331 Pa. Super. Page 292]
Appellant was arrested, charged, and convicted of possession of a controlled substance with intent to manufacture or deliver. Post-trial motions were filed and subsequently denied.*fn1 Appellant was sentenced to a term of incarceration of three (3) to six (6) years. He then filed this appeal raising four issues, which actually represent nine claims.
The first contention raised is that the suppression court erred in not suppressing the fruits of a search conducted pursuant to a search warrant. Appellant argues that the affidavit of probable cause was inadequate to justify a search and that the premises to be searched were not described with "sufficient precision." Additionally, appellant complains that the police in executing the warrant violated the "knock and announce" rule. We find that the affidavit of probable cause was adequate and sufficiently precise to justify the search of appellant's residence and that the execution of the warrant was proper in the circumstances of this case.
The affidavit of probable cause read as follows:
Received information from an informant who has given truthful information concerning drugs to the affiant in the past. This informant was sent to said address after being searched by Hbg. Police Officers, observed going to and from said address where a $100 purchase of heroin was made. Said informant also observed more drugs on the premises. Informant was observed leaving the premises and again searched by Hbg. Police Officers. James Davis has been arrested on previous drug charges on 7-18-72 N.Y. City possession of dangerous drugs, 10-23-75 Pa. possession of heroin, 12-6-75 N.Y. possession of controlled substance, 12-8-78 N.Y. drug paraphanalia, [sic] 7-14-79, Hbg. Pa. heroin. The affiant on several
[ 331 Pa. Super. Page 293]
routine surveillance observed persons addicted to controlled substances entering and leaving said residence. Below is a list of the serial numbers of the monies used to make said purchase.
In particular appellant complains that while the police alleged that a controlled buy had occurred at the described premises, they did not allege that it had been made from appellant. Additionally, he argues that the trustworthiness of the informant was not established and the allegations of the most recent previous drug involvement were three months old and had not resulted in a conviction. Finally, he contends that there was no indication of when the affiant had observed the coming and going of addicts from appellant's residence.
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court adopted a "totality of the circumstances" approach in evaluating affidavits of probable cause used to support the issuance of search warrants. This court has followed the Supreme Court's lead. See Commonwealth v. Price, 318 Pa. Superior Ct. 240, 464 A.2d 1320 (1983); Commonwealth v. Sorrell, 319 Pa. Superior Ct. 103, 465 A.2d 1250 (1983). Applying the "totality of circumstances" approach to the affidavit at hand, we find that the affidavit did not rely upon the unproven credibility of the undisclosed informant and that it did establish probable cause for the issuance of the search warrant.
The issuing authority was advised by the affiant of the controlled buy, of appellant's arrest record, and of the observation of known drug addicts visiting appellant's apartment. Each such factor is a proper consideration in assessing an application for a search warrant. See Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974) (probable cause established in part by prior related arrests); Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974) (may consider prior arrests and association with known violators); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974) (may consider encounters with individuals
[ 331 Pa. Super. Page 294]
previously known as result of drug violations); Commonwealth v. Ensminger, 325 Pa. Superior Ct. 376, 473 A.2d 116 (1984) (controlled buy by informant); Commonwealth v. Bable, 286 Pa. Superior Ct. 203, 428 A.2d 643 (1981) (police may consider prior criminal record). It is the combination of these various considerations which distinguish this case from others like Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. Demchak, ...