Commonwealth v. Gutierrez
2009 Pa.Super. 55, __A.2d__
Decided: March 30, 2009
The Court held that an officer's statement that others were convicted with the informant's aid showed reliability and satisfied the informant requirement for a search warrant.
On January 2, 2007, police secured a search warrant to search 657 Clinton Street in Reading, and Gutierrez's person for drugs, proof of residency at that location, and other evidence of drug-related activities. The affidavit was prepared by Officer Colon. The affidavit indicated that with the assistance of a confidential source (CS) he had conducted an investigation of 657 Clinton Street. The CS purchased crack cocaine from the house within a 48 hour period prior to the filing of the affidavit.
Officer Colon executed the warrant on the same day it was secured. The search produced 18 small plastic bags of cocaine and two other bags containing bulk cocaine hidden in the appellant's buttocks. The officers also recovered $200 cash from Gutierrez's pocket. Inside the house, the officers found more cocaine, a sawed-off shotgun, some letters addressed to Gutierrez, and two bags of marijuana.
Gutierrez was arrested and charged with possession of a controlled substance, possession with intent to deliver, and possession of a prohibited offensive weapon with respect to the sawed-off shotgun. The jury found him guilty on all 3 counts. At sentencing, the court decided that the Commonwealth had not produced sufficient evidence to support application of the mandatory minimum sentence of 5 years for drug and gun convictions.
Both parties appealed. Gutierrez argued that the affidavit issued by Officer Colon lacked probable cause to support the issuance of a search warrant. The Court used a totality of the circumstances test and since the warrant was based upon a confidential informant, the warrant must support the reliability of the unnamed source with sufficient facts. Further, a determination of probable cause requires only that the test demonstrates a fair probability that contraband or evidence of a crime will be found in a particular place.
Gutierrez argued that the affidavit lacked probable cause because reliability of the CS was not adduced in the affidavit. The Court disagreed because the reliability of the CS was supported by Officer Colon's indication that the CS's input had led the arrest and conviction of more than 25 people. The Court held the warrant valid.
The Superior Court also concluded that the weapons charge was accurate. Gutierrez argued that he wasn't in possession of the gun. The Court held that he was in constructive possession of the gun because he had the keys to the residence, he was at the location, and he possessed drugs and items associated with drug dealing. The Court affirmed the gun charge.
Finally, the Court agreed with the Commonwealth that the trial court had not conducted an appropriate analysis of whether the mandatory minimum sentence applied. The Court remanded the case for a new sentencing hearing in accordance to its opinion.
Officer Posted Too Much About Himself On MySpace
Reported in the NY Times March 11, 2009
The defendant, Waters, was on trial in a New York State Supreme Court for a weapon charge in New York City. a New York Police Department Officer was the arresting officer in the case. At the time of the arrest, the defendant was on parole from a burglary conviction He was arrested and charged with possession of a 9 millimeter Beretta and a bagful of ammunition.
Waters' defense attorney was Adrian Lesher of the Legal Aid Society. When developing his strategy, Attorney Lesher was intending on focusing what was in the New York officer's body. The officer was suspended from the police department for using steroids. He had maintained that the steroids were legally prescribed by a doctor, but he was nonetheless suspended.
After researching the police officer, Attorney Lesher developed a different defense. He found comments that the officer had made on the internet about video clips of arrests. The officer had made a comment about another officer who had punched a handcuffed suspect. He wrote "If he wanted to tune him up some, he should have delayed cuffing him." He continued by stating, "if you were going to hit a cuffed suspect, at least get your money's worth cause now he is going to get disciplined for a relatively light punch." While the New York officer had never been suspended for brutality or use of excessive force, these types of comments aided Attorney Lesher's defense.
The defense tactics were to show that the officer had a problem with use of excessive force and that he planted the weapon on the defendant to cover up his use of excessive force. The defense continued by introducing information found on the officer's MySpace web page. The officer's MySpace page on the day of the arrest showed his mood as "devious." On another day, he posted his status on his Facebook page: "Vaughan is watching Training Day to brush up on proper police procedure." Training Day was a movie that showed corrupt law enforcement officers as they devastated Los Angeles. The officer admitted that he had posted these items, but that they were a joke and nothing more. The jury did not see these items as a joke and the defense attorney's use of the officer's public posting on MySpace and Facebook were enough to paint a bad picture to the jury.
Over the objections of the prosecutor, the court allowed the evidence of the officer's postings in the trial. These ruling were appropriate and this type of information would more than likely be allowed in a Pennsylvania courtroom. The jury, with this evidence, believed the defense that this was an overly aggressive officer who planted a weapon on Waters to cover up his excessive force as the defendant had three broken ribs. The defendant was acquitted on what should have been a simple one-day trial leading to a quick guilty verdict.
Online public forums such as Facebook, MySpace, and Twitter are becoming increasingly popular in today's society. This story shows that law enforcement officers are under huge scrutiny and the defense bar can and will seek any advantage that can be gleaned from Internet sources.