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August 19, 1997


Appeal from the Order of the Court of Common Pleas of Berks County, Criminal Division at No. 735/96. Before LUDGATE, J.

Before: Beck, Popovich and Montemuro,* JJ. Opinion BY Popovich, J. Beck, J., Concurs in the Result.

The opinion of the court was delivered by: Popovich


Filed August 19, 1997

The Commonwealth appeals the order of the Court of Common Pleas of Berks County granting the defendant/Angel Paredes-Rosario's motion to suppress and writ of habeas corpus. *fn1 We reverse.

Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court 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. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 139 (1983). Application of this standard reveals that Detective Andrea O. Kohut, of the District Attorney's Narcotics Enforcement Team (DANET), learned on December 8, 1995, the defendant was involved in drugs (heroin and cocaine). He used a rented vehicle to drive to New York to purchase the drugs and returned to the York, Pennsylvania area to deal. The confidential informant also gave the detective a description of the defendant and his address, both of which were verified.

On February 10, 1996, the confidential informant advised Detective Kohut the defendant would be leaving for New York at 3:00 p.m. in a rented, four-door champagne colored Nissan Altima with license number AXY9955. Prior to leaving, however, the defendant picked up an Hispanic male (the confidential informant) at Eleventh and Marion Streets, all of which was confirmed by Kohut before returning to her office to await developments.

The next contact with the confidential informant was by phone at 5:00 p.m., wherein he relayed the two were en route to New York. The second call came at 10:00 p.m. informing Detective Kohut that "they were having problems getting the cocaine." A third call at 11:30 p.m. repeated the earlier statement. The last communique at 1:15 a.m. (on the 11th of February) stated the defendant and Hispanic male were returning with fifty grams of heroin and were outside of Reading on Route 78. The confidential informant also told Kohut that heroin was located in the rear seat of the Nissan.

With the last contact of the confidential informant, Detective Kohut discontinued her preparation of the application for a search warrant and drove with her supervisor (Lieutenant Pease), and a backup of nine officers, to a location where the defendant was expected to drive. Within five minutes of their arrival, the defendant was spotted and followed for six miles before being stopped. Lieutenant Pease identified himself and told the defendant the police had reason to believe he was transporting drugs, the search for which would be accomplished upon the completion of a search warrant if consent were not given. More specifically, the officer stated:

I showed [the defendant] my identification, told him who I was, told him that we stopped him because we had reason to believe that he was transporting drugs and that we had a partial search warrant completed and that it would be completed and a search of his car would be conducted unless he decided to give us consent to search, then we would not need a search warrant and it would save time.

In reply to Lieutenant Pease's statement, the defendant waited "about a minute . . . then he said, okay, you can search the car." Heroin (49.5 grams) was discovered behind the rear seat in a clear plastic bag. The defendant was charged with possession of a controlled substance and possession with intent to deliver a controlled substance. An omnibus pre-trial motion seeking to suppress and discharge the defendant via a writ of habeas corpus was filed. After a hearing, the relief requested was granted and the defendant was discharged.

The Commonwealth perfected the present appeal and raises various issues for our consideration, the first of which assigns error to the court in requiring the police to obtain a search warrant in advance of having probable cause to do so.

It is the court's position the police "had sufficient probable cause to request that a magistrate issue a search warrant at least eight hours before the police stopped the four door Nissan Ultima [sic] rented by the Defendant on I-78 * * * at approximately 1:45 a.m." Court Opinion, 11/26/96 at 6-7 and 9 (Emphasis added).

It is true the police had information on December 8, 1995, that the defendant was dealing in drugs at a specific address and he rented vehicles to New York to replenish his supply. Further, the authorities were advised of the date, time, model, color and license number of the vehicle for the sojourn by the defendant in the company of the informant. Finally, once the ...

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