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December 24, 1997


Appeal from the Judgment of Sentence of February 14, 1996. In the Court of Common Pleas of Erie County Criminal Division, No. 01515-1994. Before CONNELLY, J.

Before: Kelly, J., Cercone, P.j.e., and Brosky, J. Opinion BY Cercone, P.j.e. Brosky, J. files a Dissenting opinion.

The opinion of the court was delivered by: Cercone


Filed December 24, 1997

This is an appeal nunc pro tunc *fn1 from the judgment of sentence entered upon appellant's conviction of possession of marijuana *fn2 and manufacture of a controlled substance (marijuana). *fn3 We vacate the judgment of sentence.

We adopt the lower court's statement of the pertinent facts of the case:

Pursuant to a search warrant issued on April 9, 1994, police officers entered the basement area of the defendant's residence and seized approximately 21 marijuana plants. The probable cause for the search warrant was based, in part, on information provided by a confidential informant (hereinafter "CI") that the defendant, Gregory Gindlesperger, was growing marijuana plants in his basement. Further, independent verification of this tip came when the police officer employed a thermal detection device and observed the emanation of heat waste from the defendant's house that was consistent with marijuana production activities.

According to the affidavit of probable cause for a search warrant, the CI told Officer Gerald Pfadt that he/she observed marijuana plants growing at the defendant's residence during February 1994. The CI stated that the plants were located in the basement and consisted of about 8 adult plants and 30 clone plants. The CI accurately described the appearance of marijuana plants to Officer Pfadt.

Officer Pfadt has been working as a police officer for 9 years, and he has been a member of the Erie County Mobile Drug Task Force for 5 years. He has been involved directly or has assisted in numerous investigations concerning violations of the drug law, including investigations of those who manufacture or grow controlled substances, such as marijuana, in indoor environments.

Officer Pfadt asked the CI to confirm marijuana production in the defendant's basement, and during the week of February 13, 1994, the CI did so. In March 1994, the CI told Officer Pfadt that the defendant was now using artificial lights to facilitate marijuana growth.

On March 17, 1994, Captain Gregory Davis of the Pennsylvania Army National Guard Drug Task Force viewed the defendant's residence through a thermal detection device, hereinafter referred to as a "WASP." This device is designed to distinguish appreciable and noticeable amounts of extraneous heat. Captain Davis detected "an unexplainable source of heat coming from the basement area that was not consistent with the location of the furnace or other known heat sources." He also checked five residences of similar structure and design on either side of the defendant's residence and detected no such heat pattern.

On April 9, 1994, a search warrant was issued. Within three days prior to this, the CI again confirmed the production of marijuana plants at the defendant's house. The search warrant was based, in part, on the fact that "this heat source would be consistent with the heat source coming from the artificial lighting used in the growing of marijuana." Officer Pfadt averred that "individuals who grow marijuana in an indoor setting do so in a continuing operation and have plants in various stages of growth so as to be able to have a continuous supply of marijuana to be harvested." He also averred that "the CI has provided information to this officer in the past that has been proven reliable and will result in the arrests of individuals for violations of the drug laws."

During the search of the defendant's residence, the police found marijuana plants growing in the basement and artificial lighting equipment. The defendant was arrested and charged with various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 708.101 et seq.

Trial court opinion, April 28, 1995, at 1-4 (citations omitted). Appellant filed a pre-trial motion to suppress the evidence seized during the search of his residence. The lower court denied that motion and a bench trial was held on May 30, 1995. On June 2, 1995, the lower court found appellant guilty of the charges. The lower court sentenced appellant, on January 30, 1996, to three to five years imprisonment, one hundred hours of community service, a $15,000 fine, and costs. Appellant's motion to reconsider sentence was denied.

Appellant raises the following issues on appeal:

1. Whether the search warrant based upon information provided by a single and anonymous, first-time confidential informant plus an infrared thermal detection device was unsupported by sufficient and permissible probable cause, thus rendering the ensuing search and seizure of evidence from appellant's home violative of his federal Fourth Amendment and state Article I, section 8 constitutional protections?

2. Whether the Commonwealth's failure to disclose the identity of the confidential informant both before or at the time of the suppression hearing warrants suppression of the evidence and dismissal of the prosecution?

3. Whether the lower court's refusal to accept the appellant's assertion of medical necessity as a legitimate defense at trial and/or sentencing violated his due process and other fundamental constitutional guarantees afforded by amendments 5 and 14 of the United States Constitution and Article I, Sections 1, 2 and 26 of the Pennsylvania Constitution?

4. Whether 35 P.S. § 780-113 (a)(30) is unconstitionally overbroad for failing to differentiate growing/manufacturing small amounts of marijuana for personal/medical use versus large amounts of marijuana for delivery to others?

5. Whether the Commonwealth failed to sufficiently prove the number of live marijuana plants to trigger the three-year mandatory prison sentence of 18 Pa.C.S. § 7508 (a)(1)(ii)?

Appellant's brief, at 3.

Our standard of review of an order denying a suppression motion is as follows:

When reviewing rulings of a suppression court, we must determine whether the record supports that court's factual findings. In so doing, we consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal Conclusions drawn therefrom are in error.

Commonwealth v. Hughes, 536 Pa. 355, 366-67, 639 A.2d 763, 769 (1994). When faced with a conflict of testimony, the appellate court defers to the suppression court, which, as fact finder, passes upon the credibility of witnesses, and whose findings are not disturbed when supported by the record. Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989).

Appellant's first contention on appeal is that the search warrant herein was not based on sufficient probable cause. Appellant advances three arguments related to this issue: (1) the warrantless use of the WASP device was an unlawful search in violation of the Fourth Amendment to the United States Constitution and Article I, section 8 of the Pennsylvania Constitution; (2) the nature of the WASP device and the way in which it was used rendered the information contained in the probable cause affidavit too unreliable to support a finding of probable cause for a warrant; and (3) the probable cause affidavit failed to establish that the confidential informant and/or his information was credible or reliable, and in fact was based on false or misleading information.

"The standard for evaluating whether probable cause exists for the issuance of a search warrant is the 'totality of the circumstances' test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) and adopted by [the Pennsylvania Supreme Court] in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985)." Commonwealth v. Jones, 542 Pa. 418, 424, 668 A.2d 114, 116 (1995). "A magistrate is to make a 'practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 424, 668 A.2d at 116-17 (citations omitted).

The information offered to establish probable cause must be viewed in a common sense, nontechnical manner and deference must be accorded to the issuing magistrate. The duty of a court reviewing the decision is to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Id. at 424, 668 A.2d at 117 (citations omitted).

Appellant claims that the warrantless use of the WASP device was an unconstitutional search under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. We will first examine this claim under the Fourth Amendment. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures . . . ." U.S. Const. amend. IV. "The touchstone of Fourth Amendment analysis has been the question of whether a person has a 'constitutionally protected reasonable expectation of privacy.'" Oliver v. United States, 466 U.S. 170, 177, 104 S. Ct. 1735, 80 L. Ed. 2d 214, 223 (1984), quoting Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576, 587 (1967)(Harlan, J., Concurring). An unreasonable search under the Fourth Amendment occurs when (1) a person has exhibited an actual expectation of privacy; and (2) ...

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