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Commonwealth v. Coleman

Denial of suppression motion was reversed where the affidavit in support of the request for an anticipatory search warrant failed to provide sufficient evidence establishing a fair probability that the anticipated drug transaction would occur.

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� 1 This case is before us on remand from the Pennsylvania Supreme Court. Pursuant to the Supreme Court’s order, see Commonwealth v. Coleman, 760 A.2d 848 (Pa. 2000), we now consider this case in light of the Court’s recent decision in Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000).

� 2 In Glass, the Supreme Court addressed the question of “whether Article I, Section 8, of the Pennsylvania Constitution categorically proscribes the issuance of what is commonly referred to as an ‘anticipatory search warrant,’ i.e., ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’” Glass, 754 A.2d at 656 (quoting Commonwealth v. Glass, 718 A.2d 804, 806 (Pa. Super. 1989)). The Court held that an anticipatory search warrant is not per se violative of Article I, Section 8. See id. In so holding, the Court stated that a magistrate considering whether there is probable cause for the issuance of an anticipatory search warrant may rely on information in an affidavit concerning future events “[s]o long as [the] factual averments [are] reliable and probative of the likelihood that evidence will be found where and when the warrant is to be executed. . . .” Id. at 664.

� 3 In the instant case, Gary Coleman does not challenge the per se constitutionality of the anticipatory search warrant issued for his home. Rather, he claims that there was no probable cause for the issuance of the warrant. Thus, our prior disposition focused on the sufficiency of the affidavit of probable cause, and we held that “a magistrate’s finding of probable cause to issue an anticipatory search warrant may be based only on circumstances presently known to the police and not on the occurrence of triggering events enumerated in the affidavit.” Commonwealth v. Coleman, 743 A.2d 983, 984-86 (Pa. Super. 1999). Consequently, we reversed “the suppression court’s order that denied Gary Coleman’s motion to suppress evidence seized pursuant to an anticipatory search warrant because the affidavit of probable cause was based upon future cause to be established by future criminal activity, the occurrence of which was speculative.” Id. at 985.

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