Commonwealth v. Zelasny

OLSZEWSKI, Judge,

dissenting:

There were four police officers from three separate police stations in Schuylkill County who were aware, through investigations and prior police contact, that the Zelasny brothers sold drugs. At least three reliable informants told these officers, members of the Schuylkill County Drug Task Force, that it was common practice for the Zelasnys to drive to New York, purchase drugs, return to Mahanoy City, Schuylkill County, and resell the drugs. Another informant telephoned Officer Robert Ravina and told him that the next morning the Zelasnys were going to pick up some money in the town of MacAdoo, drive to New York in one of three specified vehicles, and purchase drugs. The next morning, the Task Force witnessed “two white males” enter one of the automobiles, drive to MacAdoo, pick up some money, and drive to New York. Officer Ravina included this information in an affidavit, *599concluding that he had a “firm belief’ that the car would return from New York with drugs and that the Zelasny brothers would sell those drugs. My learned colleagues hold that these allegations were insufficient to establish probable cause to believe that drugs were in the car. I respectfully dissent.

The majority concludes that the affidavit’s allegations are insufficient to identify the Zelasny brothers as the drivers of the car. This hypertechnical reasoning expects a neutral magistrate to ignore the obvious: nearly every officer who was a member of the Schuylkill County Drug Task Force, the same force to which Officer Ravina belonged, personally knew the Zelasny brothers and their propensity to distribute drugs from New York. Nonetheless, since Officer Ravina chose to use the term “white males,” instead of “the Zelasnys,” to describe the occupants of the car, his “firm belief’ that the Zelasny brothers were selling drugs from a car which, as predicted, stopped in MacAdoo to engage in an illicit monetary transaction en route to a known drug source was pure speculation. We are asked to: (1) ignore the fact that this affidavit was prepared at 8:00 p.m., a mere fifteen minutes before the car returned to Schuylkill county, and (2) suppose that it could have been any “two white males” who, as predicted, drove a particular car to a particular destination, picked up money, and drove to a known drug source. When the Zelasny brothers turned out to be the actual drivers of the car, this was, of course, mere happenstance.

Whether an affidavit alleges facts which support a finding of probable cause is one that should be made in a “common sense, nontechnical, ungrudging and positive manner.” Commonwealth v. Baker, 532 Pa.Super. 121, 126, 615 A.2d 23, 25 (1992). The majority gives mere lip service to this standard by refusing, as we explain above, to allow the magistrate to read the affidavit in its context. Moreover, the learned majority does a disservice to its own rigid reading of the affidavit by referring to the drivers of the car as the “unidentified” drivers. A close reading of the affidavit discloses otherwise:

*6005. ... Based on the information received and the investigation conducted, surveillance [sic] was set up on 25, Jan. 1991 at 10:00 A.M. To further substantiate the information, [a]t 12:55 P.M. a white Cadillac^,] bearing Pa. Reg. # Temp. YRE-373[,] ... containing two white male occupants was followed through the Borough of MacAdoo and followed to the Consolidated Cigar Co.[,] Carbon Co.[,] just outside of MacAdoo. The vehicle approached the guard shack and parked. After several minutes elapsed[,] an unidentified white male, thin build long black hair[,] approached and spoke briefly with the passenger of the white Cadillac.

(Emphasis added.) Under the plain wording of the affidavit, it was the person at the cigar factory who was “unidentified,” not the passengers of the white Cadillac. I see it as perfectly logical to allow a magistrate to conclude, given the task force’s knowledge of the Zelasnys’ identity and the significant factual corroboration of the informant’s tip, that there was a fair probability that the Zelasnys were “the two white males” who were driving the white Cadillac and that drugs were contained in the vehicle.

The majority’s reliance on Commonwealth v. Flaherty, 400 Pa.Super. 397, 583 A.2d 1175 (19.90), moreover, is misplaced. In that case, Flaherty was a known dealer of percocet pills. An informant told police that Flaherty was so successful that he purchased a new car with the profits he reaped. The informant also indicated that Flaherty “will deliver pills to special customers using his car.” Id. at 400, 583 A.2d at 1176. Based on these allegations, the police obtained a search warrant and, while Flaherty was washing his car, executed it. We held that there was no probable cause to believe that there were drugs in the car at the time the warrant issued. The informant did not indicate that he had ever seen drugs in the car and only implicated Flaherty in uncertain future conduct. We noted that

absent from [the informant’s] declaration is any reference to a time frame from which to anticipate drugs being delivered from [Flaherty’s] vehicle. The particular frequency of such deliveries in the past, as well as the probability that such *601might continue at any particular time in the future remains wholly a mystery. Were such deliveries made by [Flaherty] hourly, daily, weekly, monthly, or at some other interval of time? “Any selection of time on our part would be purely conjectural — so too must have been the magistrate’s determination.”

Id. at 404, 583 A.2d at 1179 (quoting Commonwealth v. Conner, 452 Pa. 333, 340-41, 305 A.2d 341, 345 (1973)).

Here, the magistrate hardly needed to engage in any temporal speculation regarding when drugs might be located in the white Cadillac. The affidavit stated that the Zelasnys, known drug dealers, would be traveling to and returning from New York, a known drug source, on January 25. On January 25, while the car was returning from New York, thus corroborating the tip, the police applied for a search warrant. This case is entirely antithetical to Flaherty because here the informant predicted precisely when the criminal conduct would occur, whereas in Flaherty there was no such indication.1 What was conjectural in Flaherty was imminent here.

I simply cannot accept my colleagues’ postulation that the affidavit fails to identify with fair probability the Zelasny brothers as the drivers of the white Cadillac. Moreover, even if the Zelasnys were not identified properly, it is more than mere coincidence that “two white males” drove the Cadillac out of Mahanoy City, stopped at a factory in MacAdoo, and *602drove on a highway which leads directly to New York. These actions alone, which fully corroborate the informant’s tip, indicate to me that there was a fair probability that criminal activity was transpiring, and that drugs would be located in the car. If the police work in this case, as fully evidenced by the allegations in the affidavit, does not present probable cause, the Schuylkill County Police Drug Task Force has my sympathy.

. It is also interesting to note that in Flaherty, the police executed a speculative warrant while defendant was washing his car. There was absolutely no independent corroboration that any illegal activity was occurring in that car. Here, the police waited until their tip was fully corroborated to seek and execute a warrant. It seems that in this case, where there is a higher degree of urgency than in Flaherty, the police are being punished for being scrupulous. Although the majority is correct in asserting that we cannot look outside of the affidavit’s four corners, I cannot realistically entertain any notion that the police did not precisely know who the Zelasnys were, that they knew the Zelasnys were driving the vehicle, and that all of this was lost on the magistrate. Indeed, it is undisputed that the “unidentified” male at the cigar factory was an informant employed by another member of the Drug Task Force, specifically instructed to give “buy money” to the Zelasnys. By engaging in trifles, the majority simply ignores the reality of the situation and the context of the affidavit.