Probable Cause: When Does the Conclusion that a Critical Date is a Typographical Error Go Beyond the “Four Corners” of the Affidavit?

Com. v. Leed, 142 A.3d 20 (Pa. Super. 2016), 122 MAP 2016

Background

Leed was arrested on drug charges based on evidence seized through a search warrant.  He moved to suppress the evidence, arguing that the probable cause events recited in the search warrant were stale, including that a K-9 pass outside of his storage unit was stated to have occurred on March 21, 2013, but the search warrant was not sought until March 21, 2014.  At the suppression hearing, the trial court allowed the Commonwealth, over Leed’s objection, to elicit testimony that the K-9 sweep occurred on March 21, 2014, the same day that the detective completed the search warrant application, and that the March 21, 2013 date in the affidavit of probable cause was a typographical error.  The trial court, in denying the suppression motion, stated that it would not consider the detective’s testimony, but that based on the “four corners” of the affidavit of probable cause “it is clear that the K9 sweep took place on March 21, 2014 and that the indication that it occurred on March 21, 2013 reflects an obvious typographical error.” Slip Op., at 6.  Leed was convicted.

The Superior Court affirmed, holding that “a reviewing court (1) may consider the entirety of the affidavit of probable cause to determine whether the challenged statement constitutes a typographical error and (2) [we] find a substantial basis supports the issuing authority’s probable cause determination, notwithstanding that error.” Slip Op., at at 1.  Reviewing the case law concerning affidavits of probable cause, the court observed:

The Pennsylvania Supreme Court, in Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985), adopted the “more practical” test for probable cause set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). See Gray, 503 A.2d at 925-26 (discussing Gates, Spinelli v. United States, 393 U.S. 410 (1969), and Aguilar v. Texas, 378 U.S. 108 (1964)). Recognizing that probable cause is based on “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” both the United States and the Pennsylvania Supreme Courts have emphasized that “probable cause determinations must be based on common sense non-technical analysis.” See id. (citations and quotation marks omitted). Thus,

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 . . . conclud[ing] that probable cause existed.”

Id. (quoting Gates, 462 U.S. at 238-39).

Moreover, the United States Supreme Court recognized “the informal, often hurried context in which [a test for probable cause] must be applied . . . .” See Gates, 462 U.S. at 236.

[A]ffidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area. Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of probable cause.

Id. at 235 (citations and quotation marks omitted).

Further,

after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts. A grudging ornegative attitude by reviewing courts toward warrants[ ] is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.

Id. at 236 (citations and quotation marks omitted).

Slip Op., at  13-15.

Applying these principles, the Superior Court concluded that the trial court’s finding that the K-9 sweep date was a typographical error is “supported by an application of common sense,” Slip Op., at 21, because it is reasonable to believe the error escaped detection by the detective, the reviewing assistant district attorney, and the magisterial district judge, in light of chronological structure of the affidavit and its placement on the last page of the affidavit immediately before the request for the warrant. The court concluded that the affidavit of probable cause contained sufficient chronological milestones to believe that the K-9 sweep occurred immediately before the detective applied for and obtained the search warrant in 2014, not 2013.

The Supreme Court will hear argument on the following issues:

(1) Did the Superior Court err as a matter of law when it upheld the lower court’s determination that the issuing authority in [Petitioner’s] case had a substantial basis to find that probable cause existed within the four corners of a search warrant’s affidavit that was facially incapable of establishing probable cause? Specifically, did the Superior Court err when:

(a) The [c]ourt considered information beyond the affidavit’s four corners in direct conflict with the plain language of Pennsylvania Rule of Criminal Procedure 203? and/or

(b) The Court found there was no meaningful legal distinction between a reviewing court’s probable cause determination when an affidavit contains ambiguities or omissions requiring clarification, as opposed to when an affidavit contains explicit sworn-to facts requiring modification to substantiate a finding of probable cause?

(2) Did the Superior Court’s determinations below grant lower courts with arbitrary judicial discretion to fashion a finding of probable cause when the affidavit presented to the issuing authority does not, on its face, contain facts sufficient to establish probable cause?

For more information, contact Kevin McKeon or Dennis Whitaker.