Commonwealth v. Reicherter

SPAETH, Judge,

concurring:

The majority extends the principle of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), to hold that the police may transport someone several blocks to his home and require him to remain there while they execute a warrant to search the home for contraband. Slip op. at 1184 -1185. I think this extension both unwarranted and unnecessary. It is sufficient for our decision to apply the principle that the police may arrest someone without a warrant if they have probable cause to believe that he has committed a felony.

In Summers, the police obtained a valid warrant to search the defendant’s home for contraband. When the police arrived, the defendant came out of the house and began to descend the front steps, but the police detained him and continued to detain him, along with seven other occupants, while they conducted the search. The Supreme Court assumed that the detention was not supported by probable cause to arrest the defendant but held that it was nonetheless justified under the fourth amendment because: (1) it minimized the risk of harm to the officers; (2) it provided a safeguard against concealment or destruction of *263the contraband; (3) it facilitated an orderly completion of the search; (4) against the background of the search of his home, it represented a minimal additional intrusion on the defendant’s personal liberty; and (5) the search warrant provided an objective basis for concluding that someone in the home, although not necessarily any particular occupant, had committed a crime. None of these factors justifies the deprivation of an occupant’s liberty when he is several blocks away from his home. It is obvious that an absent occupant is far less likely to engage in sudden violence or to conceal evidence during a search than an occupant who is on the premises while they are being searched, for the absent occupant may not return to the premises during the course of the search. Moreover, the degree of intrusion involved in detaining an occupant and transporting him back to his home is considerably greater than that involved in detaining an occupant who is already on the premises to be searched. See Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied sub nom. Pennsylvania v. Lovette, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). I therefore do not agree with the majority’s conclusion that the police were justified in stopping appellant under Summers.

Apparently as an alternative to its extension of Summers, the majority holds that “the police had a reasonable belief that [appellant] was armed and their frisk of him was fully justified.” Slip op. at 260. I do not agree with this conclusion either. It is true that a police officer may stop and frisk a person if he reasonably suspects “that criminal activity may be afoot and that the person[ ] with whom he is dealing may be armed and presently dangerous____” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). See generally Commonwealth v. Wasiuta, 280 Pa.Super. 256, 421 A.2d 710 (1980) (collecting cases). But the record here does not suggest that the officers were aware of any unusual circumstances from which they could have inferred that criminal activity was “afoot.”

*264I nonetheless concur in the majority’s decision to affirm the judgment of sentence. A police officer who has probable cause to believe that a suspect has committed a felony may arrest the suspect without a warrant. Commonwealth v. Westerfer, 294 Pa.Super. 459, 440 A.2d 556 (1982); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632 (1975), cert. denied sub nom. Donnelly v. Pennsylvania, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976). Probable cause to make a warrantless arrest may be predicated upon the tip of an anonymous informant if the arresting officer “know[s] the underlying circumstances from which the informer concluded that the suspect participated in the crime and ha[s] some reasonable basis for concluding that the informant is reliable,” Commonwealth v. Jenkins, 288 Pa.Super. 232, 237, 431 A.2d 1023, 1025 (1981) (citing Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Patterson, 266 Pa.Super. 167, 403 A.2d 596 (1979)). Here, the affidavit in support of the application for the search warrant was based on the tips of three anonymous informants, as well as on the observations of local and federal drug enforcement authorities1 and the owner of Quaker City Chemical Co. I am satisfied that the police could reasonably conclude that the informants were reliable, and, further, that the information provided by the informants gave the police probable cause to arrest appellant without a warrant.

In determining whether the tip of an anonymous informant is reliable, we must look to four factors: “(1) Did the informant give prior reliable information? (2) Was the informant’s story corroborated by any other source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip?” Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973) (citation omitted). See also Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 455, 445 A.2d 1214, 1218 (1982). Here, the reliability of the *265anonymous informants was established in part by the fact that they had previously provided the police with reliable information about criminal activity: The first informant had arranged for drug enforcement authorities to make two purchases of methamphetamine during the preceding six months; the second had arranged for the authorities to make one purchase of methamphetamine during the preceding month; the third had given information to the police that had led to four arrests and convictions for burglary. In addition, the information provided by the informants was corroborated, both by each other’s stories and by the observations of local and federal police. Finally, the information provided by the third informant was a declaration against his penal interest.

The reliability of thé informants upon whose tips the warrant was predicated was therefore amply demonstrated, and the question becomes whether the information they provided gave the police probable cause to arrest appellant.

The affidavit is replete with details about the underlying circumstances from which the informants and local and federal police concluded that appellant was engaging in the manufacture and delivery of methamphetamine. The first informant had frequently observed appellant distributing methamphetamine between January and August, 1979. During the summer of 1979, the informant had observed “test tubes, bottles, bunsen burners, hot plates, bottles of chemicals, a micro-wave oven with a gray substance in it and an infra-red light with a gray substance under its beam” in appellant’s residence, “all of which he believed to be the components of a methamphetamine laboratory.” Affidavit in Support of Application for Search Warrant at 1-2. The second informant knew appellant personally and said that appellant had been making gray and purple “speed” for several years and selling it in exchange for cash and stolen goods. The second informant also said that he had observed methamphetamine drying at appellant’s residence and that, on December 6, 1979, he purchased an ounce of methamphetamine at appellant’s home, where he smelled a *266strong odor that he associated with methamphetamine. Drug enforcement agents witnessed the purchase. The third informant said that appellant had been receiving stolen property during October 1979 at his residence. From October 25, 1979, through December 18, 1979, Philadelphia police officers observed people whom they believed to be burglars2 delivering packages to appellant and his wife. The third informant also said that he had bought methamphetamine from appellant on four occasions in exchange for stolen goods. On November 2, 1979, the police observed appellant purchase a 55 gallon drum of isopropal alcohol, which the affiant asserted was used in the manufacture of methamphetamine, from Quaker City Chemical Co., where he identified himself as “Jose Pratty,” and return with it to his home. The owner of Quaker City Chemical Co. said that on eleven previous occasions, “Josep Pratty” had purchased chemicals from his store, including “hydrochloric acid, reagent, acetone and methyl alcohol methanol.” Drug enforcement officials said that these chemicals are used in the manufacture of methamphetamine. On November 8, November 30, December 7, and December 15, 1979, Philadelphia police found filter papers in appellant’s trash. The papers were analyzed in a laboratory and found to contain methamphetamine residue.

On the basis of these facts the police had probable cause to believe that appellant was engaged in the manufacture and delivery of methamphetamine.3 Since the manufacture, *267delivery, and possession with intent to manufacture or deliver methamphetamine is a felony, 35 P.S. § 780-113(a)(30) & (f)(l.l) (1977), the police could arrest appellant without a warrant, Commonwealth v. Westerfer, supra; Commonwealth v. Donnelley, supra, and search him incident to that arrest. Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980).

. Both local and federal police were involved in arresting and searching appellant. N.T. at 15 (Suppression Hearing)

. Because the affidavit does not set forth the basis for the officers’ belief that the people who delivered packages to appellant and his wife were burglars, I do not view the assertion that these people were known burglars as adding any weight to the allegations set forth in the affidavit.

. Of course, this does not mean that every valid search warrant to search a home for narcotics is predicated upon probable cause to believe that every occupant of the home is engaged in illegal drug activities. See Michigan v. Summers, supra (Although search warrant was based on probable cause to believe that someone who occupied residence had violated narcotics laws, Court would not infer that police had probable cause to believe that defendant, who was one of eight occupants found on the premises, had violated such laws). Id. 452 U.S. at 693, n. 1, 696, 703, 101 S.Ct. at 2589, n. 1, 2590, 2594.