Appeal from Order of Superior Court of Pennsylvania dated November 10, 1983, Affirming Judgment of Sentence of Lycoming County Court of Common Pleas, Criminal Division, Dated December 21, 1981, at Criminal Action No. 81-10, 104, 322 Pa. Superior Ct. 37,
Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion in which Zappala, J., joins. Larsen, J., joins in the majority opinion and files a concurring opinion. McDermott and Papadakos, JJ., join in the majority opinion and also join in Larsen, J., concurring opinion. Flaherty, J., did not participate in the consideration or decision of this case.
This case requires us to determine whether the United States Supreme Court's decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), adopting a "totality of the circumstances" standard under the federal
constitution in analyzing probable cause for search warrants based on information received from confidential informants, also meets the requirements of Article I, Section 8 of our Pennsylvania Constitution. Appellant was convicted of possession of marijuana with intent to deliver in violation of Section 13(a)(30) of the Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. § 780-113(a)(30). Superior Court affirmed the conviction and we granted appellant's petition for allowance of appeal. 322 Pa. Super. 37, 469 A.2d 169. Appellant's sole claim is that the search warrant in this case was defective under the standards set out by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). He claims that Superior Court erred in analyzing the warrant under the standards of Illinois v. Gates, supra, because Gates should not be applied retroactively. He also urges us to readopt the Aguilar-Spinelli standards under the Pennsylvania Constitution. We believe that the totality of the circumstances approach is more in line with the current state of the law, and under general common-law principles it should apply to all pending cases which have not yet been finally determined. Thus, we adopt it under our Constitution and affirm appellant's conviction.
Several confidential informants told police that appellant and his girlfriend had approximately twenty pounds of marijuana at their residence. On January 27, 1981, the police obtained a search warrant for the premises and two vehicles, one of which was at the home. The probable cause allegations in the accompanying affidavit are the only source of controversy in this case. Because of the importance of this issue we set out those allegations in full:
On 27 January 1981 a confidential informant related the following information to your affiant:
Between 23 January 1981 and 27 January 1981 the confidential informant # 1 was at the residence of Ronald Gray, specifically described above. At the time the informant was present the informant personally saw approximately
pounds of marijuana. The informant further related that he had seen marijuana in the automobiles described above.
Your affiant believes the confidential informant to be reliable for the following reasons: Two other confidential informants gave confirming information. In addition Trp. Thomas R. Scales confirmed information.
On 16 January 1981 your affiant spoke with confidential informant # 2. At this time informant # 2 related that RONALD GRAY is one of the major drug distributors in Lycoming County. Informant # 2 is believed to be reliable because he has given information relating to Laughlin Jennings who is presently under criminal charges; Regina Webster and Curtis Missien who are presently under criminal charges; and David Fryday who is presently under criminal charges (the information relating to Fryday confirmed in a statement by Gina Brown who related that she purchased her drugs from Fryday). The informant # 2 stated that Fryday would be found in Wellsboro, Pa. as Fryday had left Williamsport. On 27 January 1981 Fryday was arrested in Wellsboro.
On 19 January 1981 District Attorney Kenneth D. Brown and Trp. John J. Monahan related the following to your affiant:
On 18 January 1981 Mr. Brown and Trp. Monahan spoke with confidential informant # 3. At this time confidential informant # 3 related that RONALD GRAY is one of the largest drug dealers in Lycoming County. Informant # 3 related that he had some contact relative to the purchase of drugs with Gray.
On 27 January 1981 Trp. Thomas R. Scales related the following to your affiant:
During the fall of 1978 Trp. Scales had set up a transaction with Gray to purchase (2) cases of morphine from RONALD GRAY. During the course of the transaction, which took place in a cabin off Leg.Rte. 41028, a phone call came stating that there were police in the area.
Gray then refused to complete the transaction at that time. This information is contained in P.S.P. reports.
On 27 January 1981 when confidential informant # 1 related the information he was under oath.
On 27 January 1981 Trp. James Carey related the following information to your affiant:
On 27 January 1981 Trp. Carey in the presence of Ptl. Mark McCracken (South Williamsport Police) and confidential informant # 1 went to the residence of RONALD GRAY. At that time Trp. Carey located the above described home and the vehicles. The vehicles ...