Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, No. 1402 C 1985.
Kenneth B. Burkley, Greensburg, for appellant.
William C. Gallishen, Assistant District Attorney, Greensburg, for Com., appellee.
Wieand, Montemuro and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 373 Pa. Super. Page 386]
The issue in this appeal is whether the decision of the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is to be followed by the courts of this Commonwealth with respect to evidence seized pursuant to a search warrant which is subsequently invalidated under Article I, Section 8 of the Pennsylvania Constitution. The issue arises in an appeal by Louis R. Edmunds from a judgment of sentence imposed following a bench trial in which he was found guilty of possession of marijuana and related offenses after a substantial quantity of marijuana had been seized from his residence and an adjoining building.
The facts leading to the conviction are as follows. On August 4, 1985, in response to a telephone call, State Trooper Michael Deise met with two hunters who told him that while hunting in a wooded area they had come upon a white, corrugated building in which they saw growing marijuana plants. Trooper Deise questioned them about their familiarity with marijuana plants and satisfied himself that they were able to recognize marijuana plants. The men described the building to Trooper Deise and told him that
[ 373 Pa. Super. Page 387]
Edmunds was the owner. On the following day, Deise flew over the area and spotted the building. He also drove past the property and by examining the mailbox confirmed the residency of Edmunds.
Trooper Deise then applied to District Justice Margaret Tlunac for a search warrant and offered in support thereof the following probable cause affidavit:
On the date of August 4, 1985, this affiant was in contact by telephone with two anonymous males who were and are members of the community where [appellant] resides. Both anonymous males advised the affiant that while checking out familiar hunting areas off Route 31, these men observed growing marijuana near a white corrugated building approximately 20 X 40 feet in a cleared off area. These men looked into the building and observed several plants that appeared to be marijuana. This affiant questioned both of these men as to their knowledge of marijuana. This affiant learned that one of these men saw growing marijuana numerous times while he was stationed in Viet Nam. The other male saw growing marijuana while at a police station. This affiant described a growing marijuana plant and its characteristics and they agreed that what they had viewed agreed with the description and also that it appeared to them to be marijuana as fully described by the affiant. The two males wish to remain anonymous for fear of retaliation or bodily harm. An anonymous male advised this affiant that [appellant] lived there. Edmund's description being that of a white male in his middle thirties and he lived at the aforementioned location.
On the 5th day of August, 1985, this affiant with the use of a State Police helicopter, flew over the described location and observed the white corrugated building in the mountain area and located as described by the two males. Also on this date this affiant drove past the Route 31 entrance and observed a mail box with "Edmunds 228" printed on it.
[ 373 Pa. Super. Page 388]
The warrant issued upon presentation of this affidavit described the premises to be searched as follows: "Residence of Louis R. Edmunds . . . A one story stone and frame residence and white corrugated building and curtilege." With the intent of serving the warrant on the owner of the premises, Trooper Deise and other state policemen went to the residence, where they were met by Edmunds. When Edmunds went upstairs to find a written lease for the white, corrugated building, Deise accompanied him. At the top of the stairs, in plain view, Deise observed four bags of a green substance which he believed and which later was determined to be marijuana. A subsequent search of the white, corrugated building revealed marijuana plants.
Appellant filed a pre-trial motion to suppress the marijuana. He contended that the affidavit had been insufficient to establish probable cause for the issuance of a search warrant. More specifically, he argued that the affidavit had failed to show when the hunters had observed the marijuana plants and that there were insufficient facts from which it could be determined that the information given by the hunters was reliable.*fn1 The suppression court held that the failure of the affidavit to state the date of the hunters' observations rendered the affidavit inadequate to establish probable cause to believe that marijuana was growing in the building at the time when the warrant was issued. However, because the evidence established that the hunters had made their observations on August 4, 1985 and because this ...