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Commonwealth of Pennsylvania v. Steven Clark

October 18, 2011


Appeal from the Order of the Superior Court dated 10/29/08 (reargument denied on 1/5/09), affirming the Order of the Philadelphia County Court of Common Pleas

The opinion of the court was delivered by: Mr. Justice McCAFFERY


ARGUED: March 8, 2011


In this discretionary appeal, we review the lower courts' application of the totality-of-the-circumstances test for the existence of probable cause necessary to issue a search warrant as set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 233 (1983), and adopted by this Court in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985). Specifically, we query whether the lower courts properly applied the test in determining that a search warrant application was infirm because the affidavit of probable cause failed to expound, expressly, upon the veracity, reliability, and basis of knowledge of a confidential informant ("CI"). Because the totality of the circumstances underlying the application here included a factual recitation describing a successful controlled buy of narcotics that corroborated the affiant's averment that the CI was reliable, and because that recitation demonstrated a fair probability that narcotics would be found in the location for which the warrant was sought, we determine that the warrant was supported by probable cause. Accordingly, we reverse.

The affiant in this matter was Philadelphia Police Officer James Kidd, a fourteen-year narcotics bureau veteran who had been involved in over 3000 narcotics arrests by the time of the instant investigation. The affidavit of probable cause stated that on September 8, 2004, a "reliable confidential informant" had informed Officer Kidd that a white male, approximately 6'-6'2" in height, weighing approximately 170-195 lbs., known as "Steve," packages and distributes cocaine from 4242 Salmon Street in Philadelphia, and makes deliveries of cocaine in a white Pontiac Grand Am with a black roof, Pennsylvania license number FRG-5450. The affidavit further stated that the police conducted a controlled drug buy on September 9, 2004, as follows: The police observed a white male matching the description of "Steve" depart 4242 Salmon Street, directly enter a white Pontiac Grand Am with a black roof and license number FRG-5450, and drive to the site of a pre-arranged controlled buy. The police observed as the CI purchased cocaine in two green plastic baggies from the white male with $40 pre-recorded buy money. After the transaction, the police followed the white male back to 4242 Salmon Street, where they saw him exit the Pontiac and directly enter the residence. The police verified that the Pontiac was registered to "Steve Clark" with an address of 4242 Salmon Street.

Based on the above recitation, a Municipal Court Judge issued a search warrant for 4242 Salmon Street and the police executed a search of the residence on September 10, 2004. The police seized $1775 in United States currency, cocaine, cocaine "cutting" agents, packaging paraphernalia, a loaded .25 caliber handgun, and mail addressed to "Steve Clark." They arrested Appellee, Steven Clark, who subsequently filed a motion to suppress the evidence seized from the residence.

The trial court granted the suppression motion. It acknowledged that the affidavit stated that the CI was "reliable," but was concerned that there was no information as to how the reliability of the CI was established. The court opined, "[W]e are left to guess what circumstances exist which render the informant credible and his information reliable." Trial Court Opinion, dated 10/5/06, at 4. The court also questioned the basis of the CI's knowledge because the affidavit did not state that the CI had been in the residence before, or some similar facts upon which a reviewing authority could conclude that drugs would likely be found in the residence. It determined, "In the absence of information explaining how the informant knew that cocaine was being packaged and distributed inside defendant's residence[,] there is insufficient probable cause to issue the warrant for a search of defendant's residence." Id. at 5.

The Commonwealth filed an interlocutory appeal certifying that suppression substantially handicapped the prosecution, and the Superior Court affirmed in a nonprecedential, memorandum opinion. It concluded, as the trial court did, that the application was infirm because the affiant did not expressly state how he knew that the CI was reliable, or how the CI knew that there were drugs in the residence. Moreover, both the trial court and Superior Court held that, in order to be valid, any probable cause affidavit based on confidential information must contain, at a minimum, the "customary" recitation that the informant has provided information in the past that has resulted in arrests or convictions. Memorandum Opinion, 10/29/08, at 11. Additionally, the Superior Court concluded that there was nothing to connect the on-the-street drug transaction to Appellee's residence "other than the fact that [Appellee] left his house prior to the drug transaction, and returned there afterwards[.]" Id. at 12.

This Court granted the Commonwealth's petition for allowance of appeal to review the following issue:

Where the police conduct a successful controlled drug buy based on information supplied by a confidential informant, and recount the information and the conduct of the controlled buy in an affidavit of probable cause to obtain a search warrant, is probable cause lacking because the affidavit does not allege the basis of the confidential informant's knowledge and does not contain the "customary" phrase that the informant "has provided information that in the past has resulted in arrests or convictions?"

Commonwealth v. Clark, 996 A.2d 481 (Pa. 2010).

Prior to 1983, in order to establish probable cause for the issuance of a search warrant based on information received from a confidential informant, an affidavit of probable cause had to satisfy a two-part test. The test required the affiant to set forth:

1) the basis of the informant's knowledge; and 2) facts sufficient to establish the informant's veracity or reliability. Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).*fn1 In 1983, the U.S. Supreme Court abandoned this "two-part" test and adopted a "totality-of-the-circumstances" test. Illinois v. Gates, 462 U.S. 213, 233 (1983). The Court held that the Aguilar-Spinelli factors were no longer rigid, independent requirements that had to be satisfied, but instead, were merely relevant factors among the totality of the circumstances necessary to show probable cause.*fn2 Id.

The High Court noted that the prongs of the former two-part test had been intended as "guides to a magistrate's determination of probable cause" that required no "elaborate exegeses of an informant's tip." Id. at 231 n.6. The Court emphasized that probable cause is a fluid concept that turns on the assessment of probabilities in factual contexts that are "not readily, or even usefully, reduced to a neat set of legal rules." Id. at 232. The Court explained that a totality-of-the-circumstances analysis permits a balanced assessment of the relative weights of all the various indicia of reliability and unreliability attending an informant's tip. Id. at 234-235. Moreover, the Court criticized the former two-part test as having "encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot be sensibly divorced from the other facts presented to the magistrate." Id.

This Court adopted Gates as the applicable law under the Pennsylvania Constitution in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985). We noted that "in Gates, the United States Supreme Court decided that its prior holdings creating 'tests' for determining whether or not probable cause existed ran contrary to the notion of probable cause as based on 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 925 (quoting Gates, supra ...

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