*1 any, purchase respect adjustment, if with to the price subject property for the real which is the this holdings case with our hereinabove. All accordance parts other of the final decree the court below are to in full remain force and effect. Pennsylvania, Appellant,
COMMONWEALTH Lee Earl FRYE. Pennsylvania, Appellant,
COMMONWEALTH of (two cases). Patricia MEDICH Pеnnsylvania. Superior Court of Sept. 27, 1976. *2 Nichols,
Albert Dist. Atty., Conte, M. J. James Asst. appellant. Dist. for Atty., Greensburg, Manifesto, appellee. Pittsburgh, William CERCONE, Judge: appeal by
This an the order Commоnwealth from suppressing court below which evidence seized authorizing appellee pursuant warrant a search follow, For residence.1 re- the reаsons we suppression the lower verse court’s order. *3 February
On 1975, search warrants were is Frye’s for sued both automobile his Rambler resi and recited, perti for both dence. affidavits warrants part: nent
“I, affiant, the received confiden- information from a by tial phone who reliable informant this office called on 2-22-75 presencе and stated he of Lee subject as late as 2-22-75 witnessed and sell kilo a brick of marihuana to an unknown white male from 98-388, a white vehicle Rambler license number parking lot from across Palmers Restaurant Pa., Allegheny County. Turtle Lee told the also Creek, if anymore, to call him he 10:30 after needed P.M., 2-22-75 and later than no 1:30 A.M. 2-23-75 this would the best hours catch be to him at because appeal It is well settled 1. is entitled to Commonwealth suppression a order which either from of termination necesitates prosecution substantially impairs or the Commonwealth’s presentation Bosurgi, of its case. 411 Pa. denied, cert. 375 A.2d U.S. L.Ed.2d Gullet, (1963); Pa. taking of care business. be out becаuse would home past which has given in the information Informant has to the which lead proven true correct and to be and Danielson for VCSDD & CA.” arrest of Victor Frye’s in thе seizure residence resulted The search of para- drug bags plastic and related four weapons were also phernalia. Numerous firearms and resulted The search of Rambler found home. suppres- Following a in the confiscation of a revolver. hearing, the lower court ruled that evidence ob- sion Howеver, the tained from the Rambler was admissible. the house further held that all evidence seized from court suppressed. It is from this latter that the must be order lodged. apрeal was instant appeal whether on this issue raised
The sole upon a issued residence was search warrant showing cause. sufficient Texas, Aguilar In Spinelli (1964) Unitеd
L.Ed.2d 723 (1969), L.Ed.2d 637 guide- Supreme the constitutional Court delineated States issuing search warrant when lines for by upon supplied an to the affiant is based information provide informa- must The affiant informant. independent authority two tion for the make “First, must set forth determinations: the affidavit con- from which the informer circumstances place cludеs that the items to be seized are at be *4 Second, the under- searched. the affidavit must set forth lying whereby the has concluded circumstances affiant that the informеr his information reli- is credible and Pa.Super. 64, 60, Early, able.” Commomvealth v. 236 Kline, 197, (1975); 345 200 v. 234 A.2d Commonwealth Pa.Super. 12, (1975); 335 361 99, Pa.Super. In- Devine, 233 stantly, appellees that the affidavit did not con- contend tain sufficient circumstances from which the 148
issuing authority probable could that there was conclude present Frye cause marijuana to beliеve was the that disagree. residence. We outset, recognized
At the must be that prob able cause exists when the and circumstances set facts forth affidavit аre warrant a man of reasonable caution the belief the contraband specified Brinegar place. seized to be was in v. Unit 160, States, 388 69 ed U.S. S.Ct. 93 1879 L.Ed. (1949); v. Lucraz, 430 United Stаtes F.2d 1051 1970). only must further be We mindful “that prima probability, showing, and not a of criminal facie activity probable cause, Ohio, is the standard of Beck v. 89, 96, (1964); U.S. 85 13 L.Ed.2d by are that affidavits tested much less rigorous governing admissibility those standards than trial, Illinois, McCray 300, 311, of evidence at (1967); 87 S.Ct. L.Ed.2d judging issuing magistrates probable cause are not to be confined by niggardly by limitations оr restrictions on the use of sense, Ventresca, their United States v. common U.S. (1965); 13 L.Ed.2d and that their cause should be determination paid great by reviewing courts. Jones defеrence 270-271, U.S. L.Ed.2d (I960).” Spinelli, supra, at 89 S.Ct. at at 645. L.Ed.2d principles mind,
With
above
we examine
Appellees emphasize
fact that the
instant affidavit.
any
by
affidavit
statement
infоrmant
devoid
marijuana
he
Frye
observed
residence
at
or that
premises.
Appellees
point
had ever
also
been at
out
informant did
draw any
not
inferences Frye
Rather,
in his
stored
house.
was the
authority who concluded that
storing
prob-
in his
there
marihuana
residence. Was
*5
support
sense
to
such a conclusion? Common
able cause
informer
stated
compels
The
an affirmative
answer.
parking
Frye
lot “that
that he heard
tell the
anymore,
2-22-
P.M.,
if he
to call him after 10:30
neеded
this
and no later than 1:30 A.M. 3-23-75 because
be the best hours to catch him at home because
would
taking
this state
would be out
care
business.” Given
Frye
ment,
very
minimum that
which indicates at
telephone
taking
of his illicit
orders
furtherance
was
home;
his
there was direct evi
business at
fact that
trafficking
marijuana;
and the
dence that
was
illegality, value, and
marijuana
of its
because
fact
location;
man of
must be secreted
a “safe”
bulk
believing that
caution would be warranted
reasonable
being kept
Unit
marijuana
residence. See
at
Rahn, 511
supra;
Lucraz,
ed States v.
United States
Vynorius,
1975);
F.2d 290
(Mass.1975),
therein.
While might places have been secreted, where the *6 applied by magis that standard is also true “[t]he certainty objects sought that the will trate is not that of v. a result of search.” Porter United be found аs 602, States, 1964), cert denied 335 F.2d 695, 983, (1965). L.Ed.2d 574 Under 379 U.S. case, unique of this and facts and circumstances mind issuing preference ful of the to be accorded author ity’s marginal cases, оr decision doubtful States United Ventresca, 109, 741, 380 U.S. 13 L.Ed.2d (1965), dwelling we hold that warrant for the upon was issued cause.
Accordingly, below, suppressing the order the court the evidence seized residence, from is reversed. proceedings The cause is remanded for consistent here- with.
SPAETH, dissenting opinion. files J., a Judge (dissenting). SPAETH, Frye’s Since I not do think seаrch warrant upon residence showing was issued a prob- cause, able I would affirm the orders of the lower court. The application information set forth in thе for a search warrant must magis- be sufficient “to enable independently judge trate validity of the in- formant’s conclusion that the narcotics were where he they Spinelli said were.” (1969). L.Ed.2d 637 Here the
informant never said the appel- contraband was located at residence, lant’s allege nor appellant did told the buyer that it was stored there. The issu- ing authority drew that conclusion on their own. majority says justified by conclusion was statement could call him at home. That alone, statement however, did not prob- amount to appellant’s home. able cause that was at might suspicion there. At be most raised a Suspicion provide does basis fоr not a sufficient Jackson, 461 Pa. a search warrant. denied, 96 S.Ct. cert. (1975). probable cause 46 L.Ed.2d Nor does the street has committed crime on believe a man necessarily give his home. rise to cause to search Pa.Super. Kline, A.2d 361
Joseph et al. MARCUS *7 al., Appellants. Guy et DIULUS Superior of Pennslvania. Court Argued June 1976. Sept. 1976.
Decided