Commonwealth v. Alewine

BROSKY, Judge

dissenting:

I respectfully dissent. The overriding and governing standard for searches and seizures under the Fourth Amendment is reasonableness. A whole body of case law on every level and in every forum has been devoted to *290establishing what constitutes a reasonable search and seizure.. One premise which has evolved mandates that warrants not issue on stale information. In the present case I don’t believe anyone would question that the information in the affidavit of probable cause was sufficient to allow the issuance of a warrant on September 3, 1987. However, I have substantial doubt that the information was sufficient on September 24, 1987.

The magistrate is empowered to issue a search warrant only where the information contained in the affidavit establishes a probable cause to believe that evidence of illegal activity, or perhaps contraband, will be found in the area to be searched. Our cases have consistently insisted that the facts establishing probable cause be closely related in time to the issuance of a warrant. Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973). The reason for insistence on such a position is that, the closer the proximity in time, the more probable the cause to believe the evidence sought will be found, and, thus, the more reasonable the search-intrusion is. Our cases have also reflected a position that probable cause will be lacking if the information is not too proximate to the date of application or if it is otherwise stale. Id.

One accepted route to prevent the information in the affidavit from becoming stale is to establish an ongoing illegal activity. If such is shown the mere fact that key information in the affidavit refers to events occurring several weeks before will not obviate a finding of probable cause. Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971). Such a course could have been taken here with little difficulty. However, it was not, and the suppression court, relying primarily on this absence, found probable cause lacking. The Commonwealth does not contest the suppression court’s finding in this regard, but argues that, because there was reason to believe that appellant was in possession of an illegal gambling device, one that was per se illegal to possess, it was not necessary to establish continuing illegal activity. However, I am unconvinced that the search and *291seizure was based upon a proper showing of probable cause.

Due to the staleness of the information and a lack of evidence supporting an ongoing operation or activity, the probable cause is suspect in this regard. As such, the Commonwealth cannot rely upon such an assertion or inference of gambling activity to support probable cause. Instead, they argue, they had probable cause to believe that the two machines the officer played were per se gambling devices which, without more, were subject to seizure. Note that the officer was unable to confirm with certainty that the machines possessed all the necessary qualities to be classified as per se gambling devices. However, they assert, there was probable cause to believe the machines possessed all the necessary qualities. Furthermore, and very important to their argument, they assert this type of probable cause can never be stale because if the machines are illegal machines they cannot regain legality.

Assuming appellant’s position is well founded, one must question the proper scope of the warrant and thus the search and seizure. Does the fact that there is probable cause to believe two video poker machines are per se illegal create probable cause or justification to seize all other so called gambling paraphernalia, or must the scope of the search and seizure be limited to the two machines in question?

Alternatively, if there is a lack of probable cause to believe there is an ongoing gambling business involved and if there is no information regarding the other machines, do they somehow become subject to seizure? Are they guilty by association? Perhaps more importantly, and this may be the real issue here, can the Commonwealth “bootstrap” their way around a failure to establish a continuing or ongoing gambling operation by asserting that machines are per se illegal, thus allowing them to gain entrance and authority to seize not only the two machines, but also any evidence of an ongoing gambling business? To the extent probable cause is lacking as to an ongoing gambling busi*292ness, and existed only as to the two machines, the Commonwealth cannot assert that their intent was only to seize the two machines, for examination of the affidavit belies an assertion that the purpose of the search was limited to seizing the two per se illegal gambling devices.

In fact, the Commonwealth appears to acknowledge the rather tenuous nature of arguing that probable cause exist ed as to all the machines. They state in their brief:

The affidavit for the search warrant refers to all four video poker machines on the premises of the Office Lounge. The Commonwealth recognizes that it stretches the concept of probable cause to the verge of “guilt by association” to argue that probable cause to search for and to seize the other two machines as gambling devices per se was established merely by their proximity to the one known to be gambling devices.

(N. 2, appellant’s brief, p. 10). Rather, the affidavit was drafted so as to allege a gambling operation, and sought seizure of essentially all evidence of such gambling operation and gambling paraphernalia and devices. The Commonwealth failed to apply for the warrant in timely fashion and also failed to cure this defect by gaining additional information showing that the gambling activity was continuing. As such, it is questionable that probable cause existed at the time of issuance. And, of course, it goes without citation that probable cause must be judged based upon the facts contained in the affidavit, and cannot be provided by consideration of the evidence ultimately seized. The Commonwealth’s argument regarding per se illegal gambling devices appears, to me anyways, to have been fashioned only in retrospect after a problem with staleness and probable cause was perceived. I don’t believe this position taken after the fact can cure the lack of probable cause that existed at the time of issuance.

Assuming further that there existed probable cause to believe the machines were illegal gambling devices and subject to seizure, this does not automatically provide probable cause to believe these two machines would be found in *293the search. I believe the Commonwealth’s and majority position that there was probable cause to believe the machines were per se illegal can refer only to the particular two machines played by the officer. The Commonwealth apparently would not contend that probable cause extended beyond the two machines actually played by the officer as evidenced in their commentary about “guilt by association”. To the extent it is stretching the concept of probable cause to assert that cause existed to seize the other two machines seen at the Office Lounge, it would seem likewise stretching that concept to assert that cause existed to search and seize any machines acquired between the time of surveillance and execution of the warrant. The question then becomes, and it relates to the safeguards of the time proximity requirement, was there was probable cause to believe the same two identified machines would be on the premises three weeks after their identification?

The majority argues that it was reasonable to conclude from the circumstances and trappings of the Office Lounge that video poker machines were a regular fixture or part of the decor there. From this fact, and the fact that the machines are relatively large, they assert, it could be reasonably presumed the machines would still be there upon execution of the warrant. I am unconvinced that this is the case. Even assuming that video poker machines were a regular fixture of the Office Lounge there was no guarantee that the two identified machines would still be there. Such video games, despite their size, I believe, are often rotated from location to location if for no other reason than to provide some variety to patrons. There is no indication in the affidavit as to whether the machines were owned by the Office Lounge or owned by someone else and leased to the lounge. Further, there is no indication as to how long these two particular machines had been at the Office Lounge. These are factors which could have a substantial bearing on the likelihood that the same two machines would be present upon execution of the warrant.

*294Further, to the extent we can assume the machines were there to provide revenue to the owner of the business, it is possible the machines would be replaced by others proven to bring in greater revenue, or replaced with perfectly legitimate coin operated machines which also happen to be pulling in a lot of money. Three weeks is a sufficient amount of time for the machines to be removed from the premises in the ordinary course of business. As stated by our Supreme Court in Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283, 286 (1973):

In Shaw this court recognized that the facts and circumstances justifying a determination that probable cause exists may quickly change. This is not to say that the facts and circumstances are so fleeting that they always change. There are times when the facts and circumstance presented to the magistrate remain unchanged long after the warrant is issued. However, once it is recognized that it is possible for the facts and circumstances to change with the passing of time, a redetermination of probable cause is constitutionally required.

(Emphasis in original). I believe there was a definite possibility that the machines in question would be moved in the intervening three weeks, and, thus, I feel the staleness issue has not been sufficiently steered around by the arguments of the Commonwealth or the majority.

Finally, as indicated earlier, the overriding principle of search and seizure relates to reasonableness. Thus, I believe some inquiry of the reasonableness of the need to rely upon stale information is also required. What strikes me as peculiar regarding the reliance upon stale information in this case is the fact that the staleness could have been remedied with relative ease. There was apparently no particular legitimate reason that the presence of the machines in question at the Office Lounge could not have been confirmed by a quick stop there at a time considerably more proximate to the application for a search warrant. As the suppression court noted, the Office Lounge is relatively close in distance to the issuing magistrate’s office.

*295Consequently, the presence of the illegal machines could have been confirmed with relative ease. Furthermore, assuming the Commonwealth’s position is meritorious, the investigating officer would have needed to do no more than confirm that the previously identified machines were still present. It would have been unnecessary to again play them and receive payment. As such, I believe under the totality of the circumstances the search was unreasonable, and I would affirm the order of the suppression court.