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2018 PA Super 232
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES HOWARD MANUEL :
:
Appellant : No. 1048 MDA 2015
Appeal from the Judgment of Sentence June 3, 2015
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007220-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY A. MANUEL :
:
Appellant : No. 1152 MDA 2015
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007222-2014
BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY LAZARUS, J.: FILED AUGUST 23, 2018
Charles H. Manuel and Timothy A. Manuel (referred to collectively as
“Appellants”) appeal from their judgments of sentence, entered in the Court
of Common Pleas of York County, after they were each convicted in a
stipulated non-jury trial of one count of possession with intent to manufacture
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or deliver marijuana (“PWID”).1 The issue presented by this appeal is whether
a search warrant based on information provided by a confidential informant
(“CI”), whose reliability has not been adequately corroborated, can supply the
basis for either a search or an arrest. Upon careful review, we conclude that
it cannot and therefore reverse the judgments of sentence.
On June 16, 2014, Officer Michelle Hoover of the York Area Regional
Police Department met with a CI who advised her that, within the prior 72
hours, he2 had been inside the premises located at 1110 Pleasant Grove Road,
Red Lion, York County (“Pleasant Grove Residence”), and had observed
marijuana packaged for sale, multiple marijuana plants growing, and
marijuana growing accessories. The CI advised Officer Hoover that a white
male named Timothy Manuel lived at the residence.
Based upon the information provided by the CI, Officer Hoover applied
for and received a warrant to search the Pleasant Grove Residence and all
persons present. On June 20, 2014, the York County Drug Task Force
executed the warrant and found marijuana plants growing in Appellants’
bedrooms, as well as drug paraphernalia, cash, and a digital scale. Appellants
were arrested and each charged with one count of PWID.
On January 20, 2015, Appellants filed a joint motion to suppress,
arguing that the search warrant obtained by Officer Hoover lacked sufficient
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1 35 P.S. § 780-113(a)(30).
2 The gender of the CI is unknown. We will refer to the CI with male pronouns.
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probable cause because the police did not perform any investigation to
independently corroborate the CI’s information. A hearing was held on March
23, 2015, and, by order dated March 24, 2015, the trial court denied the
suppression motion.
A stipulated bench trial was held on May 1, 2015, at the conclusion of
which Appellants were found guilty of PWID. Appellants were sentenced on
June 3, 2015. Charles received a sentence of two years’ intermediate
punishment, consisting of two months’ imprisonment on Outmate status,
followed by four months of house arrest and then probation. Timothy was
originally sentenced to six to twenty-three months’ incarceration; however,
after he filed a motion for reconsideration of sentence, the court resentenced
him to a twenty-three month term of intermediate punishment, consisting of
three months’ imprisonment, followed by three months of house arrest and
then probation.
Appellants filed timely notices of appeal, which this Court consolidated,
and raised for our review the issue of whether the trial court erred in denying
their motions to suppress, where the Application for a Search Warrant and
attached Affidavit of Probable Cause lacked sufficient probable cause because
they failed to establish the veracity and reliability of the CI and lacked
independent police corroboration of criminal activity, in violation of the Fourth
and Fourteenth Amendments to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution.
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On appeal, the panel majority reversed, concluding that the information
contained in the affidavit of probable cause was legally insufficient to support
the issuance of a search warrant where the reliability of the CI, who had
previously provided information leading to only one arrest and no convictions,
had not been sufficiently established through independent police
corroboration. The dissent concluded that the affidavit “comfortably satisfied”
probable cause, emphasizing that the CI had personally observed marijuana
cultivation and packaging at Appellants’ residence.
The Commonwealth filed for reargument and we granted en banc
review. The parties submitted substituted briefs and raise the following issue:
Whether the trial court erred in denying the [motion to suppress]
where the [a]pplication for a [s]earch [w]arrant and attached
[a]ffidavit of [p]robable [c]ause lacked sufficient probable cause
by failing to establish the veracity and reliability of the [CI] and
lacked independent police corroboration of criminal activity, in
violation of the Fourth and Fourteenth Amendments to the United
States Constitution and Article I, Section 8 of the Pennsylvania
Constitution?
Substituted Brief of Appellants, at 3.
We begin by noting that our scope and standard of review of an order
denying a motion to suppress are unique when we are reviewing a
magistrate’s decision to issue a search warrant. They differ from those cases
in which we are reviewing a court’s decision regarding evidence obtained
without a warrant. When reviewing a magistrate’s decision to issue a warrant,
there are no factual findings from the trial court. Thus, we need not consider
“only the evidence of the Commonwealth and so much of the evidence for the
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defense as remains uncontradicted when read in the context of the record as
a whole.” See Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super.
2012). Instead, we are merely reviewing the magistrate’s decision to issue
the warrant. As such, our duty is to “ensure that the magistrate had a
substantial basis for concluding that probable cause existed. In so doing, the
reviewing court must accord deference to the issuing authority’s probable
cause determination, and must view the information offered to establish
probable cause in a common-sense, non-technical manner.”
Commonwealth v. Torres, 764 A.2d 532, 537–38 (Pa. 2001).
Appellants challenge the sufficiency of the information contained in the
probable cause affidavit. Specifically, Appellants assert that the reliability of
the CI was not established where the CI had previously provided information
leading to only one arrest which had not yet led to a conviction. Moreover,
Appellants assert that independent police corroboration of the CI’s information
was insufficient, consisting solely of verifying publicly available information.
For the reasons that follow, we conclude that the information contained in the
affidavit of probable cause was legally insufficient to support the issuance of
a search and seizure warrant.
The legal principles applicable to a review of the sufficiency of
probable cause affidavits are well settled. Before an issuing
authority may issue a constitutionally valid search warrant, he or
she must be furnished with information sufficient to persuade a
reasonable person that probable cause exists to conduct a search.
The standard for evaluating a search warrant is a “totality of the
circumstances” test as set forth in Illinois v. Gates, 462 U.S. 213
[] (1983), and adopted in Commonwealth v. Gray, [] 503 A.2d
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921 ([Pa.] 1985).[3] 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.” The information offered to establish
probable cause must be viewed in a common sense, nontechnical
manner. Probable cause is based on a finding of the probability,
not a prima facie showing of criminal activity, and deference is to
be accorded a magistrate’s finding of probable cause.
Commonwealth v. Rapak, 138 A.3d 666, 670-71 (Pa. Super. 2016), quoting
Commonwealth v. Ryerson, 817 A.2d 510, 513–14 (Pa. Super. 2003)
(quotation omitted).
Probable cause does not demand the certainty we associate with
formal trials. Rather, a determination of probable cause requires
only that the totality of the circumstances demonstrates a fair
probability that contraband or evidence of a crime will be found in
a particular place. Thus, where the evidence available to police
consists of an anonymous tip, probable cause may be established
upon corroboration of major portions of the information provided
by the tip. Similarly, where the evidence consists of the
allegations of a police informant who has not previously provided
information, probable cause requires only corroboration of
principal elements of information not publicly available. As
recognized by the [U.S. Supreme] Court in [Illinois v.] Gates,
[462 U.S. 213 (1983),] “[i]t is enough, for purposes of assessing
probable cause, that ‘[c]orroboration through other sources of
information reduced the chances of a reckless or prevaricating
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3 Prior to the Supreme Court’s 1983 decision in Gates, an affidavit of probable
cause based on information from a CI had to satisfy a two-part test in order
to establish probable cause. Specifically, the affiant was required to set forth:
(1) the basis of the CI’s knowledge; and (2) facts sufficient to establish the
CI’s veracity or reliability. Spinelli v. United States, 393 U.S. 410 (1969);
Aguilar v. Texas, 378 U.S. 108 (1964). In Gates, the Court abandoned this
“two-part” test and adopted a “totality-of-the-circumstances” test, holding
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. Commonwealth v. Clark, 28 A.3d 1284, 1287 (Pa. 2011).
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tale,’ thus providing ‘a substantial basis for crediting the
hearsay.’”
Commonwealth v. Otterson, 947 A.2d 1239, 1244-45 (Pa. Super. 2008),
quoting Commonwealth v. Brown, 924 A.2d 1283, 1286-87 (Pa. Super.
2007) (emphasis added) (citations and quotation marks omitted).
Officer Hoover’s affidavit of probable cause provided, in its entirety, as
follows:
The undersigned, Ofc. M. Hoover, has been a member of the York
Area Regional Police Department for six years, a member of the
York County Drug Task Force, and has been sworn as a Special
York County Detective authorized to conduct investigations in York
County, PA. During this time period, I have participated and
executed numerous narcotic investigations, search and seizure
warrants, and narcotics arrests. These narcotic investigations
include undercover purchases, controlled purchases using
confidential informants, execution of search warrants and
electronic surveillance.
Additionally, while working narcotic investigations in York County
I have had the opportunity to interview numerous narcotic
dealers, narcotic purchasers, informants, and other concerned
citizens with general drug information. These interviews focused
on the values of controlled substances, the appearance of
controlled substances, methods of sale, methods of packaging,
methods of hiding, secreting and transporting controlled
substances, as well as identifying persons involved in controlled
substance distribution.
On June 16, 2014 I met with a reliable confidential informant who
advised they were inside 1110 Pleasant Grove Road, Red Lion, PA
17356 located in Windsor Township of York County within the past
72 hours. While in the residence, the informant stated [he]
observed marijuana packaged for sale, multiple marijuana plants
growing, and growing accessories such as growing tools, soil, a
humidifier and a grow tent. This informant advised a [white male]
named Timothy Manuel lives in the residence.
The informant should be considered reliable due to the fact that
[he has] provided police with information that has led to a felony
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drug arrest that is currently pending in the York County Court
system. This informant is familiar with what marijuana looks like
and how it is packaged in York County.
I ran a check through PENN DOT and observed Timothy Manuel
lists the address 1110 Pleasant Grove Road, Red Lion, PA 17356
as his residence. On 6/16/14 I viewed a red Mitsubishi parked in
the driveway of 1110 Pleasant Grove Road. The vehicle is
registered to Charles Manuel of 1110 Pleasant Grove Road, Red
Lion, PA 17356.
Based on the totality of the above circumstances, I know through
training and experience that narcotics dealers will commonly use
a location such as a dwelling to store or “stash” larger quantities
of narcotics, packaging, material, and proceeds in order to protect
their product(s) and proceeds and to evade law enforcement.
Based on my training and experience, I know that narcotics
dealers will commonly keep a portion of their product and
weapons on their person. Therefore, I request to search all
persons present for officer safety reasons and to protect the
destruction of evidence.
I believe that the premise known as 1110 Pleasant Grove Rd. in
Windsor Township[ i]s being utilized to grow, store, package, and
prepare marijuana for the purpose of street level sales. Therefore,
I ask for the issuance of a search and seizure warrant for the
premises known as 1110 Pleasant Grove Rd. in Windsor Township.
Affidavit of Probable Cause, 6/18/14.
Appellants argue that the information contained in the affidavit does not
sufficiently establish the reliability of the CI because previous information
provided by the CI had, at that point, resulted in only one arrest and no
convictions. Appellants assert that “[a] solitary arrest not resulting in a
criminal conviction is hardly deserving of automatic reliability veiled behind a
cloak of secrecy for confidential informants.” Substituted Brief of Appellants,
at 16. Appellants note that the affidavit does not indicate what the previous
information given by the CI was, how it led to an arrest, or whether the arrest
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“survived even a prima facie review at a preliminary hearing.” Id. at 15.
Appellants further cite the apparent doubts regarding the reliability of the CI
expressed by the trial court in its Pa.R.A.P. 1925(a) opinion:
While we agreed, and still do agree, to some extent with the
Appellant[s’] arguments, we think that the fact that Officer Hoover
was able to confirm that [Timothy Manuel] lived at the residence
provided by the CI, provided information about the presence of
drugs which was not available to the general public, and that this
particular CI had given reliable information in the past did
establish sufficient probable cause.
Trial Court Opinion (Case No. 7222-2014), 8/14/15, at 7. Appellants argue
that, contrary to the trial court’s conclusion, the additional information
obtained by the police fell short of the quantum and quality necessary to
corroborate the CI’s information and establish his reliability. We agree.
In evaluating an affidavit of probable cause,
The task of the issuing magistrate is simply 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. And the duty of a reviewing court is
simply to ensure that the magistrate had a “substantial basis for .
. . conclud[ing] that probable cause existed.”
Gray, 503 A.2d at 925, quoting Gates, 462 U.S. at 238-39.
An informant’s tip may constitute probable cause where police
independently corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where the informant
himself participated in the criminal activity. Clark, 28 A.3d at 1288.
“[I]nformation received from an informant whose reliability is not established
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may be sufficient to create probable cause where there is some independent
corroboration by police of the informant’s information.” Commonwealth v.
Sanchez, 907 A.2d 477, 488 (Pa. 2006), quoting United States v. Tuttle,
200 F.3d 892, 894 (6th Cir. 2000).
In this case, the sole indicia of the CI’s reliability presented in the
affidavit of probable cause was that he had provided information leading to a
single felony drug arrest. The affidavit does not identify the name of the
defendant or docket number in that case, indicate the type of information
provided by the CI that led to the arrest, or state whether the defendant was
even held over for trial. Moreover, there is no indication that the CI himself
participated in the criminal activity of which he informed the police, thus
exposing himself to legal jeopardy and lending credence to his information.
Clark, supra. In short, the only evidence available to evaluate the reliability
of this CI is the fact that he once provided police with some unspecified
information that, either alone or in conjunction with other unidentified
evidence, led to a finding of probable cause to arrest someone on felony drug
charges.
The Commonwealth argues that the mere presence of “the ‘customary’
phrase that the informant has provided information which ‘has in the past
resulted in arrests or convictions’” is sufficient to establish a CI’s veracity.
Brief of Appellee, at 16, quoting Commonwealth v. Dukeman, 917 A.2d
338, 341-42 (Pa. Super. 2007). Dukeman, however, is distinguishable on its
facts. In that case, two CIs provided independent information regarding the
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presence and sale of drugs at Dukeman’s residence, as well as specific
familiarity with Dukeman and the locations of the drugs. The trial court
suppressed the evidence uncovered in the search, finding that one of the CIs
“had not provided information in the past that implicated anyone.” Id. at 339.
On appeal, this Court reversed, finding that any question surrounding one CI’s
reliability was resolved through the corroboration provided by the statement
of the second CI, whose veracity was not challenged. Additionally, in
Dukeman, the police further corroborated the CIs’ information by surveilling
Dukeman’s residence, which confirmed vehicle traffic consistent with drug
trafficking.
Likewise is the Commonwealth’s reliance on Commonwealth v.
Gutierrez, 969 A.2d 584 (Pa. Super. 2009), and Commonwealth v.
Gindlesperger, 706 A.2d 1216 (Pa. Super. 1997), misplaced. In Gutierrez,
a warrant was upheld where the CI’s input had led to the arrest and conviction
of more than twenty-five other persons. Moreover, the police corroborated
the CI’s information with a controlled buy at the address that was the subject
of the warrant in question. In contrast, here, the CI was far less demonstrably
reliable and the police did not conduct a controlled buy to corroborate the CI’s
information.
By contrast, in Gindlesperger, a CI witnessed marijuana plants being
grown in the subject premises and was stated by police to have provided
reliable information in the past that would result in multiple arrests at some
unspecified time in the future. The affidavit provided no names or other
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details as to the allegedly impending arrests. Upon review, this Court vacated
the judgment of sentence, finding that under the totality of the circumstances,
the reliability of the CI was not established. If anything, the facts in
Gindlesperger are akin to those in the matter sub judice; while the CI
personally observed drug activity at the Manuels’ residence, his reliability is
based solely on a single arrest not yet leading to a conviction.
We are cognizant that there is no “magic number” of arrests or
convictions for which a CI need previously have provided information to be
deemed reliable. See Clark, 28 A.3d at 1292 (“[T]here is no talismanic
recitation of a particular phrase with respect to ‘reliability’ or ‘basis of
knowledge’ that will either be required or will suffice to conclusively establish,
or conclusively disaffirm, the existence of probable cause.”). We are also
mindful of the fact that we are not to consider the various factors in a
mechanical fashion, but rather assess the totality of the circumstances in a
common-sense manner. See Commonwealth v. Smith, 784 A.2d 182, 187
(Pa. Super. 2001) (pursuant to “totality of circumstances” test, task of issuing
authority is to make practical, common-sense decision whether, given all
circumstances set forth in affidavit, there is fair probability that contraband or
evidence of crime will be found in particular place). Accordingly, the fact that
the CI had previously provided information leading only to one unadjudicated
arrest does not automatically render the affidavit lacking in probable cause.
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For example, where, as here, a CI’s tip provides inside information, 4 police
corroboration of the inside information can impart additional reliability to the
tip. See id. at 188. Here, however, the lack of any meaningful follow-up
investigation by the police to secure true corroboration of such inside
information leads us to conclude that, under the totality of the circumstances,
the affidavit did not establish probable cause.
Upon receiving the information from the CI, police failed to conduct any
investigation that might have yielded corroboration of information unavailable
to the public at large and, as a result, bolstered the reliability of the CI’s tip.
Police neither arranged for the CI to conduct a controlled buy at the premises
nor performed any type of photographic or electronic surveillance. Nor did
they conduct a trash pull. Rather, Officer Hoover merely ran searches through
PennDOT that established that Timothy Manuel resided at the Pleasant Grove
Residence and that Charles Manuel registered a car at that address. This
generally available information was not corroborative of the CI’s information.5
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4 “Inside information” by necessity must be the type of information not
available in the public domain.
5 The trial court essentially conceded that the facts contained in the affidavit
of probable cause were thin. See Trial Court Opinion (Case No. 7222-2014),
7/16/15, at 7 (“[W]e agreed, and still do agree, to some extent with the
Appellant[s’] arguments[.]”). Nevertheless, the court found probable cause,
based largely on its belief that the corroborative information obtained by the
police was sufficient to impart an indicia of reliability to the CI. However, as
noted above, the information obtained by the police did not confirm any of the
CI’s alleged inside information, but was readily obtainable. Accordingly, the
“corroboration” that convinced the trial court of the affidavit’s sufficiency is of
no moment.
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This Court’s decision in Commonwealth v. Chatman, 418 A.2d 582
(Pa. Super. 1980) (en banc), supports our conclusion. There, a CI provided
police with information regarding the storage and sale of heroin from an
address in Wilkinsburg. Relevant to our inquiry, the affidavit of probable cause
included the following information regarding the CI’s reliability:
The affiant received information from a reliable informant who in
the past has been very knowledgeable about the narcotics traffic
in the Wilkinsburg area[.] This informant has given information
in the past which led to the arrest of Curtis Williams and Earl
Montel.
Id. at 583. The trial court suppressed the evidence obtained pursuant to the
search warrant issued on the basis of the information supplied by the CI. On
appeal, the sole issue was whether “the averment that the informant’s prior
information led to the arrests of certain named individuals is sufficient to
establish the informant’s credibility.” Id. An equally divided panel of this
Court affirmed the decision of the trial court, concluding that:
An affidavit, such as in the case at bar, which merely states that
the informer supplied prior information leading to the arrest of two
individuals, cannot suffice to establish credibility because there is
no indication that the “information proved to be correct.” In other
words, as Professor LaFave has explained: “(t)he mere statement
that the police decided to arrest because of what this informant
said on a prior occasion does not indicate whether that decision
was lawful or whether anything learned incident to or following
the arrest verified what the informant had said.” 1 W. R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 3.3,
at 514 (1978). For all that appears in the instant affidavit, [the
individuals arrested as a result of the informant’s information]
may have been acquitted and the information furnished against
them by the informant may have proven totally false. On the
other hand, it may be that prosecutions were pending against
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[them], or that the prosecutions were dismissed for reasons
unrelated to the veracity of the informant’s information.
Whatever the case may be, the critical fact is that the
unadorned assertion that the informant previously
supplied information which prompted arrests leaves the
magistrate “intellectually crippled in terms of making the
informed judgment contemplated by the fourth
amendment.” Moylan, [Hearsay and Probable Cause: An Aguilar
and Spinelli Primer, 25 Mercer L.Rev. 741, 759 (1974)].
Id. at 585 (emphasis added). Likewise, here, the fact that the CI previously
provided information which led to a single arrest – the details of which do not
appear in the affidavit – is insufficient to establish the CI’s credibility,
particularly as there is no indication that the information ultimately proved to
be correct. See id. See also Gindlesperger, supra (reliability of CI not
established where affidavit stated CI provided information that “will lead” to
future arrests and contained no details as to prior information supplied by CI).
Here, the totality of the circumstances, as presented in Officer Hoover’s
affidavit, fell far short of establishing probable cause. The affidavit itself is
largely comprised of information that is irrelevant under the circumstances of
this case. For example, Officer Hoover writes extensively of her training and
experience, but did not use that training and experience to do anything more
than conduct a search of PennDOT’s records. Pared down to its relevant
essentials, the affidavit of probable cause actually amounted to no more than
the following facts: A person that Officer Hoover knows told her that, within
the last 72 hours, he was in a residence confirmed by Officer Hoover to belong
to Appellants and, while there, the person saw live and packaged marijuana,
as well as accessories for the cultivation thereof. These facts, alone, do not
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form a substantial basis for concluding that probable cause existed. See
Gates, supra. Rather, the information indicates the need for further
investigation, which Officer Hoover did not undertake.
In sum, we simply do not believe that the CI’s reliability was adequately
established by an averment that he provided a tip leading to one still-pending
prosecution, details of which were not included in the affidavit of probable
cause. Without something more, the affidavit of probable cause contained
insufficient information to “reduce[] the chances of a reckless or prevaricating
tale,” and provide “a substantial basis for crediting the [CI’s] hearsay.”
Otterson, supra. As such, the trial court erred in finding the warrant to be
supported by probable cause.
Judgments of sentence reversed.
P.J.E. Bender, Judge Panella, Judge Dubow and Judge Kunselman join
this Opinion.
Judge Stabile files a Dissenting Opinion in which Judge Shogan, Judge
Olson and Judge Murray join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/23/2018
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