Appellant was convicted by a judge sitting without a jury of possession of a small amount of marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act. 1 Post-trial motions were denied, and appellant was fined $100.00 and sentenced to a 30 day suspended sentence and probation of six months. Appellant contends here that he should be discharged because the evidence was insufficient to support a conviction, or in the alternative that he should be awarded a new trial because the evidence was obtained in violation of the 4th Amendment. We hold that the evidence was not insufficient but was obtained in violation of the 4th Amendment.
1
On May 10, 1973, an officer of the Union Township Police Department obtained a warrant to search the house of Mrs. Stella Banahasky, appellant’s mother. The reasons given for the issuance of the warrant were the prior arrest of one Jerry Drake for possession of four bags of marijuana, and information from Drake that he was staying at Mrs. Banahasky’s house. (N.T. Suppression Hearing 4) Two officers went with the warrant to the Banahasky house, and, with *499 Mrs. Banahasky and appellant present, found a rolled cigarette and a plastic bag on the floor of Drake’s room. In appellant’s room the officers found a bag containing Drake’s clothing and two plastic bags filled with smaller bags containing marijuana, and a jacket hanging on the door, which appellant identified as his. In the pocket of the jacket the officers found seeds and residue of marijuana. Appellant’s conviction was for the possession of the seeds and residue.
To determine whether evidence was sufficient, it is necessary to accept as true all of the evidence upon which the trier of facts could properly have based the verdict.
Commonwealth v. Fortune,
Appellant correctly asserts that where others have equal access to contraband, evidence of defendant’s mere opportunity to control the contraband is insufficient to sustain a conviction of its possession.
Commonwealth v. Davis,
It is true that appellant and his mother both testified that the jacket had been worn by Drake the night before. However, this testimony simply created a question of credibility for the trial judge. Perhaps, as appellant argues, it would have been reasonable for the judge to have accepted the
*500
testimony of appellant and his mother — particularly in view of the evidence of larger quantities of marijuana in the room wrapped up with Drake’s clothes, and appellant’s open admission of ownership of the jacket. That, however, is not for an appellate court to say. The judge was free to believe any, all, or none of the evidence presented.
Commonwealth v. Williams,
2
The lower court specifically based its denial of appellant’s motion to suppress the marijuana found in his jacket upon a finding that appellant and his mother had consented to the search. In reviewing the order of a suppression court, we must accept a finding supported by the record, but we may nevertheless reverse if the court erred as a matter of law.
See Commonwealth v. Bundy,
Here the lower court found consent on the basis of a statement to the officers by appellant’s mother, made when the officers arrived at the house and announced that they had a warrant, “You don’t need a search warrant”. The court cited
Commonwealth v. Smith,
When a police officer displays a warrant and claims authority thereunder to search premises, he effectively de *501 dares his legal right to search and announces that the accused has no right to resist that authority. Bumper v. North Carolina,391 U.S. 543 ,88 S.Ct. 1788 ,20 L.Ed.2d 797 (1968). The submission [to a citation by police representatives] that they have authority to search can only be construed as an intention to abide by that authority, and not as an intention to voluntarily waive Fourth Amendment rights. United States v. Elliott,210 F.Supp. 357 (D.Mass.1962); Bull v. Armstrong,254 Ala. 390 ,48 So.2d 467 (1950). As we stated in Commonwealth v. Burgos, supra, 223 Pa.Super. [325], at 330, 299 A.2d [34], at 38: “Consent under such circumstances can hardly be said to be voluntary, for it is unlikely that a [person] would assert opposition to a search which appeared inevitable.” Such a “situation is instinct with coercion — albeit colorably lawful coercion . . . [and] [w]here there is coercion there cannot be consent.” Bumper v. North Carolina,391 U.S. at 550 ,88 S.Ct. at 1792 .
Commonwealth v. Pichel,229 Pa.Super. 103 , 106,323 A.2d 113 , 114 (1974).
The conclusion that the search may not be upheld as having been consented to is not, however, dispositive; it remains necessary to consider whether the search was proper because pursuant to a valid warrant.
As has been indicated, the lower court did not decide whether the warrant was valid, instead basing its order only on its finding of consent. Given this fact, appellant has not argued the validity of the warrant in his brief to us, although the Commonwealth has, and appellant did to the lower court.
Appellant first contended that the warrant was invalid because it failed to state or specify the areas to be searched. This contention is based on the fact that although the warrant was issued to search for drugs belonging to Jerry Drake, the evidence used to convict appellant was found in appellant’s jacket in his own room, which was not a place one would reasonably expect to find Drake’s contraband.
See Commonwealth v. Platou,
(b) identify the property seized;
(c) name or describe with particularity the person or place to be searched.
The official comment provides that these two subsections are “intended to prescribe general or exploratory searches by requiring that searches be directed only towards the specific items, persons or places set forth in the warrant.” Here the record does not include the entire warrant, and therefore does not disclose whether it fulfilled the specificity requirements, and if it did, whether the search extended beyond the authorization.
Appellant next contended that the warrant was invalid because the affidavit on which it was issued was insufficient to establish probable cause. 2
In appraising this contention, it should first be noted that appellant has standing to challenge the search of his room, even by the old standard, which required ownership or possession in the seized property or a substantial possessory interest in the premises searched.
See Commonwealth v. Rowe,
Here, the warrant issued on the following affidavit: I, George Nagy, Chief of Police of Union Township Police Department on the above date arrested one Jerry Drake with the Controlled Substance, Drug and Cosmetic Act, at which time I found four packets of suspected marijuana. Jerry Drake now resides at the residence of Stella Banahasky, Garvin Road, R.D. # 2, Finleyville, Pennsylvania. Based on these facts I have reason to believe more contraband, in form of marijuana, hashish and dangerous drugs and narcotics, are being secreted in the residence of Mrs. Stella Banahasky, R.D. # 2, Finleyville, Pennsylvania. (N.T. Suppression Hearing 10-11) 3
This simply established that Drake was found with some drugs on his person. Since there were not enough drugs to imply possession with intent to deliver, there was no reason to believe that he possessed any additional drugs, and therefore no probable cause to believe that he had left any additional drugs at the house where he happened to be staying.
*504 Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home. . . . “[A]n alle-
gation based on an assumption or supposition not supported by the facts is insufficient to support [an inference of] criminal activity in a premises, in spite of the fact that there are plenty of allegations alleged to relate to criminal activity of the individual who is alleged to have lived in the premises.”
Commonwealth v. Kline,234 Pa.Super. 12 , 17-18, 335 A.2d .361, 364 (1975) (quoting the lower court’s memorandum opinion).
Since the search cannot be upheld either on the basis of consent or a valid warrant, the evidence seized as a result of the search should have been suppressed.
The judgment of the lower court is reversed and the case is remanded for a new trial.
Notes
. Act of April 14, 1972, P.L. 233, No. 64, § 13, imd. effective. As amended, Act of Oct. 26, 1972, P.L. 1048, No. 263, § 1, imd. effective; 1974, Dec. 30, P.L. 1041, No. 340, § 1, imd. effective. 35 P.S. ' § 780-113(a)(31).
. Appellant further contended that the warrant was based upon illegally obtained evidence, but it is unnecessary to consider this contention.
. Pa.R.Cr.P. 2003(a) provides in pertinent part: “The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.” This rule did not take effect until 60 days from March 28, 1973, and the search warrant here was issued on May 10, 1973. However, at the hearing on the motion to suppress, Officer Nagy responded in the negative when asked whether he had related to the magistrate any facts in addition to those in the affidavit. (N.T. Suppression Hearing 11)