Appeal from the order entered February 8, 1988 in the Court of Common Pleas of Philadelphia County, Criminal, No. 8611-2870.
Jeffrey R. Hellman, Asst. Dist. Atty., Philadelphia, for Com., appellant.
Dennis H. Eisman, Philadelphia, for appellee.
Cirillo, President Judge, and Beck and Tamilia, JJ. Tamilia, J., files concurring opinion.
[ 387 Pa. Super. Page 199]
This case involves the question of the legality of an anticipatory search warrant; i.e., whether the police properly obtained a warrant to search a house based upon reliable information that controlled substances would be delivered to the house shortly after the warrant was issued. The trial court suppressed evidence seized by the police on the grounds that a warrant may not be issued in anticipation of
[ 387 Pa. Super. Page 200]
future criminal activity. After careful consideration, we reverse.
Our standard of appellate review is well established.
In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. While we are bound by the lower court's findings of fact if supported by the record, we are not bound by the court's legal conclusions which are drawn from the facts of the case.
Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1351-54 (1988) (citations omitted). See also Commonwealth v. Toanone, 381 Pa. Super. 336, 340, 553 A.2d 998, 999 (1989).
The relevant facts are as follows. On September 11, 1986, an undercover police officer received a tip from an informant that a man known as Jose was storing and selling controlled substances at 3031 North Lawrence Street in Philadelphia. Prior information from the same informant had led to the arrest of three persons and the seizure of controlled substances within the past two months. Sometime after 5 P.M., the undercover officer arrived at 3031 North Lawrence Street, knocked on the door, and told Jose that he wished to buy an ounce of cocaine. Jose said that he was waiting for a delivery of cocaine that would take place at approximately 10 P.M. He directed the officer to return to the house after 10 P.M. at which time he could purchase cocaine for $1,300 an ounce. While Jose and the undercover agent were talking, several other persons approached Jose and asked him for cocaine; those persons were also told to return after 10 P.M. that evening.
Based upon this information, the officer swore out an affidavit of probable cause and requested a warrant to conduct a nighttime search for contraband on the premises at 3031 North Lawrence Street. This warrant was approved and issued by a bail commissioner at 9:50 P.M.
[ 387 Pa. Super. Page 201]
Members of the Police Narcotics Unit arrived at the house at 10:20 P.M. and executed the warrant. While several policemen were searching the house, Officer Chavez kept watch over a crowd of people who had gathered across the street from the residence. Officer Chavez overheard appellee Miguel Reviera shouting to the crowd that the police had no right to search his brother's house. Mr. Reviera was arrested and charged with violations of the Controlled Substance, Drug, Device, and Cosmetic Act. Pa.Stat.Ann.tit. 35 §§ 780-101 to 780-144 (Purdon 1977 & Supp.1988).
On February 8, 1988, the trial court granted a defense motion to suppress physical evidence seized during the search of the house. The court based its decision on the grounds that as of 9:50 P.M. on September 11, 1986, the moment that the warrant was issued, the package of controlled substances had not yet arrived at 3031 North Lawrence Street. The Commonwealth filed a timely appeal to this court. Since the Commonwealth has certified in good faith that the suppression order if given effect would substantially handicap or terminate its prosecution of the defendant, we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Slaton, 383 Pa. Super. 301, 308-309, 556 A.2d 1343, 1346 (1989) (en banc).
We must determine whether the trial court was correct in finding that the defendant's rights were violated by the issuance of what is commonly referred to as an "anticipatory search warrant". An anticipatory search warrant is "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." 1 W.R. LaFave, Search and Seizure § 3.7(c) at 94 (2d ed. 1987). The validity of such warrants is a question of first impression for the appellate ...