Search Warrant, probable cause for was established by confidential informants and police surveillance

Facts

Police executed a search warrant for drugs on defendant’s home and found drugs. The search warrant was based on an affidavit which stated the following facts: The affiant police officer received information from a confidential informant (C.I. #1) who has given the affiant information in the past which was true and reliable. His information has led to the arrest of four persons for drug violations. C.I #1 stated that defendant was selling drugs from his house.

In the early part of January 2004 the affiant received information from another confidential informant (C.I.#2 who stated that defendant was selling cocaine from his house and he has been in the house in last 6 months and saw cocaine and marijuana.C.I. #2 has given the affiant information that proved to be true and reliable. C.I. #2 also made two controlled buys for police. The affiant believes that the information given by both informants is true and correct.

The affiant and another officer conducted surveillance of defendant’s house and one person leave the house that has an extensive criminal record. The officers also saw several persons enter the house and then leave a short time later. Defendant told C.I. #2 that he was holding cocaine and marijuana for sale.

Defendant moved to suppress the evidence on the ground that the affidavit did not state probable cause and the court granted the motion. The Commonwealth appealed.

Issue

Whether probable cause existed in the affidavit of probable cause as set forth by the affiant?

Decision

Yes. Reversed.

Reasoning

The affiant must present the district magisterial magistrate with facts to justify making a practical common sense decision that, under all the facts in the case, there is a fair probability that evidence of a crime will be found in a particular place. Probable cause must be based on the facts within the four corners of the affidavit. Probable cause exists where there is a probability of criminal activity.

When information for probable cause is obtained from a confidential informant, the issuing authority determines the reliability of the informant’s information from the facts supplied by police. The affidavit need not contain the names, dates or other information concerning prior arrests or convictions. The affidavit must, however, contain a statement stating the customary phrase that the informant has provided information which has in the past resulted in arrests or convictions.

The trial court suppressed the evidence because it determined that probable cause did not exist because the only incriminating information available at the time of the search was unsubstantiated and provided by a confidential informant who had not provided information in the past that implicated anyone.

Where, as in this case, an affidavit supporting a search warrant lacks a reference to the credibility of the informants or the reliability of the information provided, such a violation does not assume constitutional dimensions or result in substantial prejudice to the defendant warranting suppression of evidence where the affidavit provides probable cause to support the warrant independent of the questionable source. Also when two independent informants both supply the same information about a particular crime to police, each source tends to bolster the reliability of the other. Although the information supplied by one questionable source may be insufficient, the probability is extremely small that a second independent source would supply identical information if it were not probably accurate. Such corroboration by independent sources produces the necessary reliability to establish probable cause.

Based on these rules, the affidavit in this case clearly provides adequate probable cause to support the search warrant. Both informants provided independent confirmation of the presence and sale of drugs from defendant’s house. Therefore, any question of C.I #2’s reliability is resolved by the corroboration of C.I. # 1’s statement, whose veracity is not challenged. Also, further independent corroboration was supplied by the police surveillance of defendant’s house which confirmed vehicle traffic consistent with drug trafficking. Based on all the circumstances, the four corners of the affidavit clearly provided sufficient probable cause to issue the search warrant. Thus, suppression of the evidence was wrong.