Monday, August 11, 2008

Issues: B


Pennsylvania Rule of Criminal Procedure 206 specifically outlines the requirements for a search warrant;

(a) the name and department, agency or address of the affiant.

(b) Identify specifically the items or property to be searched for and seized;

(c) The name or describe with particularity the person or place to be searched;

(d) Identify the owner, occupant, or possessor or the place to be searched;

(e) Specify or describe the crime which has been or is being committed,

(f) Setting forth the facts and circumstances which for the basis for the affiant’s conclusion that there is probable cause to believe that the items or property identified are evidence or the fruit of a crime, or are contraband or are expected to be otherwise unlawfully possesses or are subject to seizure, and that these items or property are or are expected to be located on the particular person or at the particular place described.

As mandated by the Pennsylvania Constitution, Article 1, Section 8, the standard for evaluating whether probable cause exists for a search warrant to be issued is the totality of the circumstances. See Commonwealth v. Smith 784 A.2d 182, 187 (Pa. Super. 2001), Commonwealth v. Bartee 868 A.2d 1218 (Pa. Super 2005) and Commonwealth v. Gray 503 A.2d 921 (Pa. 1995). The issuing authority must make a common — sense decision whether, pursuant to the totality of the circumstances presented, there is a fair probability that evidence of criminal activity will be found in a particular place to be searched. Commonwealth v. Smith 784 A.2d 182 (Pa. Super. 2001). As always, due deference is given to the issuing magistrate. Commonwealth v. Rompilla 653 A.2d 626, 632 (Pa. 1995).

Applying the “Totality of the Circumstances Test”, 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...[concluding] "that probable cause existed.” Illinois v. Gates 462 U.S. 213, 239 (1983).

Under Pennsylvania case law the above decision must be based on the facts described within the four corners of the supporting affidavit. Commonwealth v. Smith 784 A.2d 182, 184 (Pa. Super. Ct, 2001). Under Gates the traditional test of the “veracity” and “basis of Knowledge” set out in Spinelli v. United States 393 U.S. 410 (1969) and Aquilar v. Texas 378 U.S. 108 (1964), was abandoned in favor of including those factors with any other factors and analyzing the affidavit under the “totality of the circumstances” to determine if probable cause exists to issue a search warrant.

In Pennsylvania, probable cause to issue a search warrant test is as follows: two factors are used generally when determining if a search warrant should be issued: (1) the items sought are connected with criminal activity and (2) the items will be found in the place to be searched. Commonwealth v. Gray 469 A.2d 169, 173 (Pa. Super. Ct. 1983).

Where information is gleaned from an informant, the reliability of an informant as probable cause, A magistrate must consider four factors in determining the credibility of an unidentified informant and the reliability of his information: (1) Did the informant give reliable information? (2) Was the informant’s story corroborated by another source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip? Commonwealth v. Gray 469 A.2d 169, 174 (Pa. Super. Ct. 1983). The affidavit of probable cause does not have to satisfy all four factors. Id. Information provided by an informant establishes probable cause if there is a probability of criminal activity, a prima facie showing of criminal activity is not required. Commonwealth v. Luton 672 A.2d 819, 822 (Pa. Super. Ct. 1996). When information essential to a finding of probable cause is garnered from a confidential informant the authority issuing a search warrant determines the reliability of the informant’s information from the facts supplied by the police official. Commonwealth v. Gindlesperger 706 A.2d 1216, 1225 (Pa. Super. Ct. 1997).

Although information provided by informants that is contained in an affidavit is hearsay, it may be a sufficient basis to establish probable cause for the purposes of issuing a search warrant. The issuing authority will look within the “four corners” of the affidavit for four factors when determining whether or not an informant is a reliable source and whether or not the affidavit supports a finding of probable cause to issue the search warrant.

Even if the computer forensic examination conducted upon the computers seized from the Defendants’ residence was suppressed, there is still sufficient probable cause in the affidavit for the search warrant for the Defendants’ email account as described at length in the above statement of facts section. The August 27, 2007 affidavit of probable cause for the search warrant for the party757 email account is an involved 22 pages, only a small part of which includes reference to the computer forensic examination on evidence seized from the Defendants’ residence; investigators acted in good faith in relying upon that warrant. Even if the evidence received from the search warrant was suppressed (based on an alleged illegal seizure of computers from the Defendants’ residence), which the Commonwealth submits should not be suppressed, investigators would have ultimately been provided information regarding that account, including all emails exchanged between and Matthew Brannon, from Matthew Brannon who has been interviewed by investigators.