*1 al., Appellants. Hagen et Commonwealth *2 Submitted November 1975. Before 24, WATKINS, P. J., Jacobs, Hoffman, Cercone, Price, Voort, Van der Spaeth, JJ. Schnoll,
Robert M. Rosenblum and Alan for appellants. Malcolm, Attorney,
W. Thomas District for Com- monwealth, appellee.
Opinion J., April Jacobs, 1976: 17, 1974, April were convicted on of Substance, Drug, violation of The Controlled Device and following jury Judge Cosmetic Act1 a trial held before Appellant Hagen pay was sentenced to a Handler. fine and to a term of six to twelve $500.00 months imprisonment; appellant pay Basile to a fine and $300.00 to imprison- a term of four and one-half to six months ment. April 1. Act of P.L. No. 35 P.S. et §§780-101
seq. (Supp. 1975-76). timely application appellants to trial made to Prior during suppress evidence seized March 1973 search 35, Regency apartment, Apartment No. of their House Borough, denied. Apartments, Indiana which was Post- motions were filed and denied and instant trial sentencing. Appellants’ appeal sole contention followed suppress their to have been here is motion should granted below. We that the seized in the evidence suppressed have 1973 search should been March reverse. we therefore
Appellants claim the search involved issued without cause and was here improperly executed.2 The warrant named “William D. Hagen (William Hagen and Karen M. Basile D. Known owner, premises ‘Doug’)” occupant as as the name person “Apt. to be searched and No. 32 and/or therein, Brick, story rooms in two House and Borough, complex premises in Indiana Pa.” as the be *3 probable The affidavit of read as follows: searched. cause Sgt. Peter “On Jan. Buchan PSP received 1973 Sgt. Robert Brown of information from the Pittsburgh Dept, Police to Penna. State the effect goes by large is a in that that there dealer narcotics Regency ‘Doug’ presently living the name at the Indiana, Apartments House in Pa. On Jan. Sgt. Peter received information from Buchan a that he to true confidential informant believes be and large to the that there dealer in correct effect is a the was issued without 2. contend cause, urging to to the be that: It failed describe particularity; which it was based that the information on with searched “stale”; a the does not set forth a basis for conclusion affidavit was credible; underlying the was reliable or and the informant were not sufficient- of the informer’s information circumstances factual police They ly the in execution the warrant also claim that forth. set forcibly entering identify purpose in a situation before their failed to exigent circumstances. without by ‘Doug’ living the name of in an narcotics Regency apartment Apartments in House Indiana, Pa. and that the informant has observed smoking (1) in lb. of marihuana and marihuana one (1) also observed one lb. brick of bricks and being apartment, on dates marihuana sold at this being prior to the information received. Thistlethwaite, Gary P.S.P. Tpr. L. “On Feb. Tpr. who took the confidential informant met with Indiana, Pa., pointed out to and Thistlethwaite apartment as Regency apartment House #82 of given to which the information from this Sgt. on of Jan. Pete Buchan date had from and also confidential informant come same living suspect ‘Doug’ was at the time these where the were made. observations on Feb. informant was not sure “The confidential ‘Doug’ suspect had moved to as whether date, Doug but that this as of this from large shipment in the of Marihuana receive very in the (1) other form of one lb. bricks and ‘Doug’ this did near future and that when receive aware shipment the confidential informant would be ‘Doug’ and delivered to that the marihuana had been Buchan, Sgt. give information to Pete would this Penna. State Police. Antram, Ray Penna. Cpl. 9 Feb. 1973 date of
“On of the apartment #82 check on ran a State Police prior to Apartments learned that House M. Hagen Karen William G. 1973 a Jan. Indiana, House, #82, Regency Apt. lived Basile *4 Apt. 31, and from #82 Pa., and moved of Jan. 1973 as Pa., Indiana, House, where Regency Apt. into #32 residing present date. they to the are Buchan, 3, Sgt. Penna. Pete date of March “On dame from this information received State Police furnished informant that confidential [sic] shipment of previous information 8, marihuana mentioned on Feb. had arrived apartment occupied by ‘Doug’ at the Indiana, Apartments, (1) Pa. and that the one lb. bricks of marihuana were stored in a suitcase in the occupied by Doug.” bedroom We appellants’ with contention provide affidavit failed to a basis on which the issuer could conclude that the informant involved in this case was reliable or credible.
When a law
applies
enforcement officer
for a search
he makes
an
issuing
affidavit before an
authority.
“When
support
the information in
of the
issuance of the warrant has been received in substantial
part
informer,
issuing
from an
authority
must be
able to determine from the contents of this affidavit that
the officer ... has ‘some
concluding
reasonable basis for
the source
“tip”
of the
Aguilar
was reliable.’
Texas,
108,
1509,
378 U.S.
84 S.Ct.
The instant
affidavit does not meet
the above
allegation
standards.
It contains a bare
officer
that an
believed that
the information
infer-
received from the
*5
correct,
why
mant was true and
but no indication of
he
only
felt
the informant was credible or reliable. The
underlying circumstance set forth in the affidavit which
support
credibility
tends to
the informant’s
is the fact
Sgt.
agreed
that both
Brown and the informant
that
“Doug”
large
Although
was a
in
dealer
narcotics.
this
may
fact
have corroborated the informant’s information
“Doug”
dealer,
way
awas
it in no
corroborated the
present
informant’s information that narcotics were
in
apartments No. 32 or No. 35. The
fact
mere
that an
supplied
piece
informant has
one
of information which
may be
automatically
corroborated does not
establish
reliability
credibility.
or
There was no indication of the
past reliability,
informant’s
Soychak,
Commonwealth v.
Superior
221 Pa.
(1972),
Ct.
said to
presence
marijuana
have observed the
No.
there is no indication that he made a
personal
similar
shipment alleged
observation of the
have come in at
No. 32. See Commonwealth v.
Muscheck,
460 Pa.
The informant’s information that was at apartment No. 32 is therefore not based on an averment personal of his observation and a basis for belief of this personal credibility reliability information or for his or is absent. The warrant was therefore issued without probable cause.
We also
the information set forth as a
probable
basis for
cause was “stale.” Our decisional law
long
principle
has
probable
adhered to the
cause for
issuance of a search warrant must be established at the
issued,
time that
Commonwealth v.
Conner, supra;
Simmons,
450 Pa.
(1973),
The January 16, 1973, activity prior to some date criminal at of consisting personal an informant of the observation illegal activity No. which took at Although Apartments. averred House facts are tending appellants thereafter moved to to show that indication apartment No. there is no corroborated activity they engaged apartment No. in criminal at which tend to show that 32. No facts are averred observation; placed under no No. 32 was personal is which would tend to observation averred was known to have been indicate that the contraband continuing moved; ongoing or indication of no additional activity of March criminal is averred. The averment arrived, shipment of had not by underlying supporting facts the infor- substantiated indicate that mant’s conclusion. The affidavit does not any knowledge personal the affiant or the informant had fact, identify upon which it of that nor does it the basis a fact. Even if it were was decided this was credibility assumed, arguendo, the informant’s reliability character, timely impeccable were of no shown, 3, 1973, underlying circumstances are on March above, the informant’s As no for conclusions. noted personal any kind, by the or the observation of affiant informant, activity nature, any of criminal is averred January 16, any as of March or other date after 1973. court that the information was
The lower concluded investigation from continued not “stale” because an upon January That is not the basis 16th to March 3rd. activity support prior will evidence of criminal which activity cause, which It is the criminal however. warrant, not up time of the continue to or about the must Shaw, See, supra. investigation. e.g., v. Commonwealth upon probable cause was here which The information old, been, best, having month it more than a based provided probable cause. See “stale” and no basis for Novack, supra; v. v. Commonwealth Commonwealth Bove, Suppa, supra; v. Pa. Commonwealth also, Commonwealth See Harper,
Judgments
case is
reversed and the
of sentence are
opinion.
with this
remanded for a new trial consistent
Dissenting
Opinion
by Price,
J.:
I
supplied
magistrate
dissent. The information
to the
adequate
satisfy
requirements
was more than
*7
Texas,
Aguilar
(1964).
Aguilar
The first be met where the affidavit either sets forth the manner in which the informant obtained his information or describes the activity Samuels, criminal in detail. Commonwealth v. (1975). Where the states, here, informant personally as he does that he activity, requirement observed the criminal the is met. requirement The (1) second is met where it is shown past given convictions; information (2) resulted in story the informant’s is corroborated some other source; (3) the informant’s statements were a declaration against interest; (4) or reputation defendant’s supports Ambers, tip. the informant’s (1973). In the Pa. by Sergeant case, given Brown to the information instant January 12, 1973, Sergeant on corroborated Buchan given by informant on the confidential information requirement. January 16, This satisfies the second 1973. I that the warrant issued on the basis of cannot Following discovery of the stale information. the initial transactions, drug continuing investigation. there was a police appellants The determined that had moved from building complex, one to another in the same awaiting anticipated drug were notice that they shipment had As soon as received such arrived. notice, they obtained the warrant and conducted the search.
While it is true that a search warrant will not issue if stale, supporting the information if it is demonstrated that criminal conduct has in fact con- tinued, information, spite age, then the relevant of its may Eazer, not be deemed stale. Commonwealth v. police Pa. Here the were shipment informed that a new would be arriving shipment soon and were later notified that the distinguish had been received. These facts this case from and, a situation where information is received after an any extended wait fails to reveal further criminal activity, a warrant is obtained on the first information. e.g., Shaw, See 281 A.2d argue fatally also the warrant was particularity defective because it failed with to describe Specifically, appellants to be searched. contend that the search was invalid because the warrant lists the *8 apartment to be searched as when in number apartment fact number 35 was searched. question
There is no apartment that the listed on the warrant was However, not the one light searched. in of holdings our in Kaplan, 234 Pa. Superior Ct. (1975), and Commonwealth Fiorini, Superior (1963), in this alone will not invalidate the warrant. As our court Kaplan stated: Fiorini, “In Commonwealth v. (1963), we held that it is not
necessary
apartment
description
to a valid
of an
building
particular
given.
its location within a
be
To
contrary,
directing
the
a search warrant
search of
a
apartment
occupied by
an
house
a number of
tenants,
person
different
which states
the name
the
occupying
apartment
to
the
be searched is valid.” 234
Pa.
Ct. at
Appellants’ police final contention is did not proper execute the in manner.
argue identify the officers to failed themselves entering apartment. absolutely before There is no merit to this contention. officers,
The one of uniform, whom was in full knocked on the door and announced their identity purpose. Although they figure observed a apartment window, no one answered their knock. policemen One of the went to enlist the aid of the manager gaining apartment. entrance to the After entering, they again identity announced their purpose and appellants. read the warrant There was a span approximately time ten minutes between the first entry. knock and the police The actions of the were absolutely correct.
I judgment would affirm the of the lower court.